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09.02.17

The EFF’s Daniel Nazer Demonstrates That the US Patent Office Continues to Provide Ammunition in the Form of Fake Patents

Posted in America, EFF, Patents at 11:19 am by Dr. Roy Schestowitz

Enabling extortion

Daniel Nazer

Summary: In its campaign against “Stupid” patents, notably software patents, the EFF shows a ridiculous software patent from JP Morgan

THE USPTO has not stopped granting software patents. Sure, these are pretty worthless patents (courts repeatedly reject them), but the Office makes money ‘selling’ (granting) these ‘products’ (monopolies).

Ever heard of “lawtech patents”?

“Sure, these are pretty worthless patents (courts repeatedly reject them), but the Office makes money ‘selling’ (granting) these ‘products’ (monopolies).”We have not. A new buzzword? Like “fintech patents”?

No such thing exists, except in the minds of patent law firms trying to get a monopoly on thought processes or business methods. Watch this new article which says: “According to recent figures produced by Thomson Reuters Legal, there has been an astonishing increase of nearly 500% in the number of lawtech patents filed since 2012. The rate of growth slowed last year to a more modest 33%, rising from 436 to 579.”

Ridiculous. Throw these down the trash. It’s a bubble.

We’re not yet able to understand why the USPTO wants to grant so many patents. It makes the value of the whole lot lower, not higher.

Why is the USPTO still granting software patents that are obviously a farce? Like those which any undergraduate student can come up with in a matter of minutes? The EFF’s Daniel Nazer gave one such example the other day, taking one patent from JP Morgan and breaking it down to bits [1, 2, 3]. To quote part of his analysis of this patent:

We have often criticized the Patent Office for issuing broad software patents that cover obvious processes. Instead of promoting innovation in software, the patent system places landmines for developers who wish to use basic and fundamental tools. This month’s stupid patent, which covers user permissions for mobile applications, is a classic example.

[...]

That’s it. The claim simply covers having an app check to see if another app is on the phone, getting the user’s permission to access data from the second app, then accessing that data.

JP Morgan is one of those very wealthy corporations that pursue “fintech patents” (either business methods or software patents), sometimes even on Blockchain/Bitcoin as we showed earlier this year and last year. We published about half a dozen articles about that.

“JP Morgan is one of those very wealthy corporations that pursue “fintech patents” (either business methods or software patents), sometimes even on Blockchain/Bitcoin as we showed earlier this year and last year.”Daniel Nazer’s analysis is thankfully receiving some attention from financial press and also Mr. Mullin, who said that “if JP Morgan Chase wanted to, it could actually accuse those developers of infringing its new patent. The developers could defend themselves and win, but only at enormous cost.”

Yes, hence the great danger of granting bogus patents. When will the USPTO stop equipping monopolists and trolls with such legal ‘weapons’?

Japan (Kyoto) Based Nintendo Suffers From Texas, the World’s Capital of Patent Litigation

Posted in America, Asia, Patents at 10:59 am by Dr. Roy Schestowitz

Where judges put their own financial interests before the rule of law

Rodney Gilstrap

Summary: Nintendo finds patent hostility in the US market, with particular judgments that are favourable to software patents and pass the burden to the accused

THE USPTO is generally regarded as the default or de facto patent office, as WIPO, for example, does not grant patents and the US is an essential market for many multinational companies. There’s nothing controversial about that statement. The EPO may want to be in the same position, but given Battistelli’s gaslighting and terror, it’s hardly surprising that EP applications from the US sank like a rock. The EPO is quickly becoming irrelevant and EPs granted over the course of decades lose their value.

Tomita Technologies (Japanese person, Seijiro Tomita, a former employee of Sony), fighting with Nintendo of Japan, may soon find itself wrestling in the US Supreme Court. There are “implications for software and electronics companies,” says this new report, as it’s about the doctrine of equivalents (covered here before):

Tomita Technologies has asked the US Supreme Court to hear its lawsuit against Nintendo over 3D imaging patents and rule on the doctrine of equivalents.

In its petition, Tomita said that the case has implications for software and electronics companies, particularly the importance of objective guidelines to provide certainty when determining equivalence between hardware and software implementations of patented technology.

In 2013, Tomita won a $30 million judgement after a district court jury found that the Nintendo 3DS handheld gaming system infringed Tomita’s patent for capturing and displaying 3D images without the need for special glasses.

Having worked on research in the area of 3D imaging, I can say with certainty it’s all about software (except the acquisition part/s). Why should Nintendo not challenge the patents on this basis?

The case that received a lot more media attention, however, is iLife Technologies Inc. v Nintendo. Gaming sites [1, 2], British news sites, and even Joe Mullin in the US, have covered it.

Welcome to Texas, Nintendo. That’s where patent litigation/lawsuits are big (legal) ‘business’. A jury in Texas (home of patent trolls) decided in favour of a software patent for “detecting if a person has fallen down.” As a gaming site put it:

After suing Nintendo over the motion-sensing accelerometers used for Wii Remotes, iLife has been awarded $10 million by a Texas Jury.

Nintendo has provided a statement explaining “On Aug. 31, 2017, a jury in Texas found that certain Wii and Wii U video game systems and software bundles infringed a patent belonging to iLife Technologies Inc. related to detecting if a person has fallen down.

Nintendo ought to appeal and take this case as far as possible from Texas, where justice on patents has been farcical (or dubious at best).

After TC Heartland it will be easier moving lawsuits out of Texas; but then there’s this new analysis regarding jurisdiction:

In determining that a Kansas court did not have personal jurisdiction over an accused patent infringer, the Federal Circuit found that the accused infringer’s activities prior to the date the patent was granted were irrelevant to the question of whether the infringer had sufficient activity in Kansas such that the Kansas court had personal jurisdiction over the accused infringer. The court also found a forum selection clause in an end user license agreement accepted by the accused infringer did not apply and could not be used in the patent infringement suit to dictate the court in which the case would be heard.

Nintendo does not target Texas specifically. In fact, Texas would be pretty insignificant (fiscally) to Nintendo.

Why are disputes over software patents still being dealt with in a state where judges are “reprehensible”, according to US politicians? They barely even follow the law, they just do what they believe is good for their local economy.

Patently-O’s War on the Patent Trial and Appeal Board (PTAB) Continues

Posted in America, Patents at 10:27 am by Dr. Roy Schestowitz

Patently-O or Trolly-O?

Trolly-O Patently-O

Summary: Patently-O stoops to the level of Watchtroll and becomes an attack dog at the service of patent parasites, trolls, and extremists

WRITING about the Court of Appeals for the Federal Circuit (CAFC) and the USPTO isn’t a new thing at Patently-O; the constant PTAB bashing, however, is pretty new. We first took note of it earlier this year and since then we’ve written close to a dozen articles about it. This PTAB-bashing blog (a friend of patent trolls these days) conveniently omits briefs in support of PTAB. How much clearer can the bias get? Hardly a scholarly thing to do; it’s more like lobbying. We know whose (or in whose favour).

“Hardly a scholarly thing to do; it’s more like lobbying.”There is a lot at stake right now because the Supreme Court is getting an opportunity to abolish or weaken PTAB — something which we certainly don’t hope (nor expect) it will do. There’s also impending change of leadership at the USPTO. As Professor Robin Feldman from UC Hastings College of the Law put it in a message to IAM last week:

In the patent policy battles that have dominated recent headlines—patent trolling and PTAB challenges of pharma patents—Iancu is an unknown quantity. Having represented successful plaintiffs and successful defendants, patent holders and lawsuit targets, he brings the perspective of both sides of the table.

In addition, Iancu’s written works show a respect for software, along with scepticism of some of the judicial tests that allow patenting of software. In other words, at this point, he seems able to walk down the middle of the aisle.

For an incoming USPTO director, I would expect patent quality to be job #1. The USPTO has taken a beating over that topic, from the Government Accountability Office (GAO) report several years ago, from commentators and from policy makers. His background suggests a disciplined pragmatist, and I would expect that discipline to focus on quality of the product.

Notice the part there about software patents, which relate to Section 101/Alice. There are several dimensions of lobbying right now (at least 3), or angles attempted by the patent microcosm to thwart the Alice effect. They want software patents to be “great again”.

“PTAB-bashing blogs like Watchtroll and Patently-O would have us believe that PTAB is crooked, but it’s a financially-motivated lie.”Jonathan Szarzynski‏ wrote: “Last week CAFC overturned Andrews killing Visual Memory on [Section] 101, yesterday he finds Acceleration Bay eligible.”

A PTAB basher, J Nicholas Gross, used that to say: “That’s what we get with “Alice in judicialland” precedent – completely random decisions” (they’re not random at all, but the attempts to discredit PTAB now claim the judges to be crooked or incompetent, sometimes even "impotent").

PTAB-bashing blogs like Watchtroll and Patently-O would have us believe that PTAB is crooked, but it’s a financially-motivated lie. We’ve noticed recently that Watchtroll and Patently-O work more closely together and link to each other. That says a lot about what happened to Patently-O, which was once a respected blog, unlike Watchtroll.

Kaspersky Labs Showed How to Battle Software Patent Trolls

Posted in America, Patents at 10:05 am by Dr. Roy Schestowitz

Summary: Like Newegg and few other companies that crushed patent trolls (even at a high expense), Kaspersky refuses to pay ‘protection’ money and instead demands ‘protection’ money

THE US patent system has long encouraged the rise of patent trolls. Patent trolls are dependent on software patents; that is all they need. The cost has been huge. As Dave Lane recalled yesterday: “Here’s the reference for that claim #softwarepatents have cost the US $500 billion over the past decade.”

More here: “It’s almost as if software patents haven’t cost the US half a $trillion in the past decade or so. Some dumb just can’t be fixed.”

Thankfully, after Alice, more patent trolls are walking away or never bother suing at all. They walk away at a high cost sometimes, as we last showed before the weekend, citing Kaspersky's epic move.

This was covered by TechDirt on the same day. To quote:

We’ve talked a lot over the years about the importance of standing up to patent trolls. Newegg, famously, has its “Never Settle” mantra for dealing with patent trolls. And we covered the case of Fark’s Drew Curtis, a few years back, who simply refused to give in when a patent troll tried to shake him down. Part of that standing firm was that when he eventually “settled” the case, he demanded that he be allowed to reveal that the settlement was for $0 (usually trolls require a gag clause on settlements to avoid anyone finding out what happened). But it appears Kaspersky Labs has taken this up a notch.

Two years ago, we wrote about the patent troll with the somewhat on-the-nose name of Wetro Lan (get it? “we trollin’”) that was threatening lots of companies. One company it went after was Kaspersky Labs, which it eventually sued in East Texas (naturally). Things didn’t quite go according to Wetro Lan’s plan. As Joe Mullin at Ars Technica explains, by the end of the case, Wetro Lan had to pay Kaspersky to get the company to agree to let the case die.

It’s almost like ‘manual’; it shows how to ‘blackmail’ patent trolls, turning the tables on them. As British media has just put it:

“it’s not just any old victory; it’s truly a landmark one. Indeed, our shooing off Wetro Lan with its tail between its legs will go down in the annals of patent law as a crucial precedent, since no one before has ever secured a victory like we just have: we not only forced the troll to withdraw its lawsuit; we also got it to pay us compensation!,” he said.

It seems possible that using PTAB IPRs one can accomplish the same thing. When all the trolls have is a bunch of patents (or just one patent) there’s nothing they fear more than losing these patents.

‘Building the Evidence Base on the Performance of the UK Patent System’ Put in Perspective and Threats From Patent Maximalists

Posted in America, Europe, Patents at 9:22 am by Dr. Roy Schestowitz

Building the Evidence Base on the Performance of the UK Patent System

Summary: Analysis (however short) of the new report from UK-IPO and lobbying by law firms from the US to expand patent scope not only in the US but also Europe

TECHRIGHTS is not a job to me. It’s an expensive hobby (I run it at my own expense). I’m a software person. I’m thankful for the fact that here in the UK software patents aren’t much of an issue; it’s the UPC that threatens to bring them here, hence the opposition from British software companies.

IP Kat‘s latest “Friday Fantasies” by Hayleigh Bosher (usually a weekly roundup) spoke about the UK-IPO’s report [PDF] and unlike Bristows and Managing IP (UPC boosters), the Kats don’t spin it as a UPC thing. Unlike the Unitary Patent (UPC) zealots, they don’t pretend there’s something in it about the UPC. Here is the relevant bit:

UK patent system: Building the evidence base, a new UK IPO Report

The UK IPO has produced a report titled ‘Building the Evidence Base on the Performance of the UK Patent System.’ The research considers the UK patent system through a range of sources including stakeholder interviews, analysis of data, and existing academic literature, looking at how companies patent in the UK, who patents in the UK, and how the UK system compares to other countries.

The report suggests that overall the operation of the UK patent system is positive. The number of patents covering the UK is high; however, UK firms appear underrepresented in patent applications, with a lower proportion of domestic applicants than other countries.

Notice the comment from Barbara Cookson. “The UK IPO name and shame procedure is best for foreign parties with no real business or assets in the UK,” she said. Here is her full message:

A costs order from the IPO against an English entity can most conveniently be enforced through IPEC using the district judges that man the small claims track. A statutory demand is a bit OTT unless there is reason to believe the company is insolvent and would be better struck off. If you prefer a simple life at the desk you could just do a money claim online for the debt but the court fees are higher and if the defendant does not pay you are still back with enforcement. The Money Claim Online works with a UK company that is solvent and really does not want any judgements against it and simply has not paid because its peeved by the decision. The UK IPO name and shame procedure is best for foreign parties with no real business or assets in the UK to enforce against.

In the case of software, naming and shaming isn’t even necessary. Copyright does the job. Plagiarism of code is a serious abuse and in the case of Free/libre software there’s the aspect of copyleft licence compliance.

Fenwick & West LLP, propagandists for software patents (see for example this or that), are doing a think tank/lobbying event with EPO in it. A few days ago this came up:

As traditional biomedical research and data science have converged, we have seen an influx of patent application filings in this newly developing space. The prepar​ation and prosecution of these cross-disciplinary patent applications have posed unique challenges and there remains a great deal of uncertainty and confusion around certain patentability challenges both in the United States and the European Union. In this highly informative program, our panel of examiners from the US Patent Office and the European Patent Office will do a deep dive into the roadblocks that precision medicine and bioinformatics patent applications can face. We will also cover the main differences between the EPO and the USPTO and address how to best navigate them in the current legal environment.​

This event is 19 days away. What they’re basically pushing for is expansion of patent scope or workarounds that bypass the restrictions/boundaries. Fenwick & West is part of the patent ‘industry’, so all it wants is lots of patents and litigation that accompanies these. That’s pretty much what the UPC too is all about.

It’s a Family Business: French Succession Plan at EPO After Battistelli’s Departure

Posted in Europe, Patents at 8:40 am by Dr. Roy Schestowitz

MoU signed by Bergot

Summary: Battistelli is promoting Requena, as expected, while making many other management types redundant

RUMOURS from the EPO suggest that the next President is likely French. But then, adding insult to injury, the long-planned restructuring — in defiance of recommendations from business experts — is being implemented. Guess who’s being put in charge…

“Guess who’s being put in charge…”A late Friday announcement (as usual) from the EPO said this: “Dear Colleagues, As part of the consolidation of the general organisational structure of the Office that was decided in June, the President’s Office, Directorate External Communications, the Chief Economist Unit and the Chief of Protocol Unit have been grouped under the lead “Principal Directorate Presidential Area”. The restructured Presidential Area will foster the internal and external coordination of the preparation and implementation [...] orientations of the Office. In line with the set-up of the new unit as from 1 September 2017, I am pleased to announce the appointment of Gilles Requena, head of President’s Office since 2015, as its Principal Director. I wish Mr Requena every success in his function.”

That was posted yesterday. Funny that nothing is said about the nepotism and family connection. Published on the EPO intranet on September 1st, this message serves to reaffirm much of what we wrote earlier this year. Not much is surprising about it.

“For those who don’t know, Bergot is married to Requena, a former colleague of Battistelli in France.”Speaking to someone who is familiar with these matters, we have more context to it: “In its drive to cut costs the EPO management had decided to merge directorates and reduce the numbers of directors, leaving part of their work to be done by team leaders who would merely get a monthly bonus but no pensionable salary. After months of uncertainty in which all the directors were kept out of the loop it has been announced that a total of 80 positions had been filled (61 as directors for large directorates, 5 as directors [...] opposition directorates and 14 as coordinating directors). What happens with the rest of the roughly two dozens directors not on the appointment list is, after several weeks, still unknown and very much representative for the chaotic management of the EPO under Battistelli and Bergot.” (B&B)

For those who don’t know, Bergot is married to Requena, a former colleague of Battistelli in France.

“However,” continued the above, “if B&B were not able to find a solution for the out of favour directors, they managed to contrapt [sic] Mr. Battistelli´s friend Mr. Requena a principal director´s position. Hardly a surprise, considering that Mr. Requena had fallen behind his wife, Mme. Bergot, when the latter was appointed a principal director after Mr. Battistelli changed the rules in order to allow her to jump from A3 to A6 (impossible under the previous regulations). Having two spouses on different management levels would have ruined the conjugal harmony, so a big thanks to the thoughtful Mr. Battistelli.

“The “swamp” — so to speak — has not been drained. It’s still being filled with yet more of Battistelli’s cronies, who continue to be promoted.”“Jokes aside, the EPO is more and more resembling an African or Central Asian dictatorship, with the ruthless potentate bestowing lucrative court positions on his cronies. What is scary is that the EPO´s descent may continue under the next president who will find it hard to dismantle the crony structure built by Battistelli.”

Yes, as we said before, we don’t expect major changes after Mr. Kongstad and Mr. Battistelli leave the Organisation and the Office, respectively. The “swamp” — so to speak — has not been drained. It’s still being filled with yet more of Battistelli’s cronies, who continue to be promoted.

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