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10.15.17

Articles in English and German Speak About the Decline in Quality of European Patents (Granted by the EPO)

Posted in Europe, Patents at 9:15 pm by Dr. Roy Schestowitz

Quality of European Patents (EPs) is the very thing EPs derive their value from

Sinking

Summary: Heise and The Register, two sites that have closely watched EPO affairs for a number of years, speak about the real problem which is declining patent quality (or rushed examination) — a recipe for frivolous litigation in Europe

THE past week was a busy week for the EPO, but most news coverage focused on the next President. We did, however, write several articles about patent quality (or lack thereof) and the disappointing statement from Christoph Ernst's Council (or rather, the Administrative Council headed by Ernst).

“The Council seems too weak to be willing to state the truth and publicly acknowledge that there’s a problem with patent quality — a problem whose full magnitude will only be realised after invalidations, appeals etc.”The new German Chairman of the Administrative Council is already coming under scrutiny. Now there’s some news coverage in German about it and SUEPO drew attention to it. An update also contains some information from Elizabeth Hardon. From the article in German (written by one who is familiar with these matters):

Was als Fachdiskussion über die Zukunft des europäischen Patentsystems mit dem neuen Verwaltungsratschef des EPA gedacht war, entwickelte sich am Freitagabend zu einer harten Abrechnung mit dem scheidenden Präsidenten.

Harte Kritik an der sinkenden Qualität der Patentprüfungen im Europäischen Patentamt (EPA) als Folge der Überlastung von Patentprüfern musste sich der frisch gebackene Chef des Verwaltungsrats des Europäischen Patentamts, Christoph Ernst, Ministerialdirigent im Bundesjustizministerium am Freitag anhören. Ernst hatte auf Einladung des Münchner Max-Planck-Instituts (MPI) für Innovation und Wettbewerb eine optimistisches Bild zur Zukunft des europäischen Patentsystems gezeichnet, erklärte sich aber dazu bereit, die Diskussion über das Qualitätsproblem mit den Fachleuten zu führen.

An automated translation from Google Translate says:

What was conceived as a discussion about the future of the European patent system with the new board of directors of the EPO developed on Friday night to a hard billing with the outgoing president.

The freshly baked head of the Administrative Board of the European Patent Office, Christoph Ernst, Ministerialdirigent in the Federal Ministry of Justice, had to listen bitterly to the falling quality of the patent tests in the European Patent Office (EPO) as a result of overloading patent examiners. Ernst had drawn an optimistic picture of the future of the European patent system at the invitation of the Munich Max Planck Institute (MPI) for innovation and competition, but declared willing to discuss the quality problem with the experts.

Here is what stakeholders think about it:

Instead of thoroughly scrutinizing the filings, the EPA staff tried to get the files back quickly from the table. In the medium term, the declining quality of users could drive the users away and the entire EPO system shake, the lawyer said with great applause from around 60 participants at the MPI, many of whom contributed their own observations.

And then the part about Elizabeth Hardon:

The EPA auditor and trade unionist Elizabeth Hardon, who was put on the air by Battistelli in 2016, recalled that deficiencies in quality will only be apparent in a few years in follow-up nullity proceedings. The trade unionist at the MPI expressly welcomed the fact that others are standing up to criticize the work situation at the EPO. “We have not been heard for years,” she said.

There are many comments there.

More was said about the subject over at The Register; from page 2 (emphasised by SUEPO):

In response to the criticism, Battistelli came out swinging. He pushed the EPO’s annual Quality Report and argued that “quality is the first priority of the Office.”

He went to suggest there was a split between the examiners doing the work and their union representatives: “Unfortunately, I regularly hear untruths about the quality offered by the Office. In particular, this comes from the side of the personnel representation. Those who represent the staff dispute the quality of the products. This is normally never the case that one contests the quality of the work of his/her colleagues.”

But after years of complaints about how Battistelli has handled staff complaints and union officials, and with the announcement of his successor at the same meeting, several governments expressed their dissatisfaction.

The German government representative welcomed the quality report but then noted that the EPO was effectively grading itself.

“We must distinguish between process quality and product quality. The process quality can be certified. Product quality is discussed at meetings and it is unclear how it can be assessed,” he noted.

Aside from the German government being a very powerful voice within the EPO given Germany’s position as the largest patent holder in Europe, the EPO’s new chair is German government representative Christoph Ernst.

[...]

Concerns about EPO quality don’t just rest with the staff or governments either. Recently the EPO’s customers – European corporations – have started raising doubts about patent quality.

With Battistelli still in office until July next year, it is clear that nothing is going to be done to remedy what has become a toxic environment at the organization for the next six months (lest you forget, Battistelli has a permanent bodyguard and even had the brakes of his bike cut – quite something for a man who is very far from the public eye).

In a sense, none of this was new except the response from Battistelli and Ernst. The Council seems too weak to be willing to state the truth and publicly acknowledge that there’s a problem with patent quality — a problem whose full magnitude will only be realised after invalidations, appeals etc.

Software Patents and Patent Trolls Not a Solved Issue, But the US is Getting There

Posted in America, IBM, Patents at 11:18 am by Dr. Roy Schestowitz

Summary: A media survey regarding software patents, which are being rejected in the US in spite of all the spin from law firms and bullies such as IBM

TROLLS appear to be moving to Europe and Asia, notably to China. It’s not hard to see why.

As we noted in our previous post, there’s a big problem for patent trolls in the US. As for China? An article just updated (or bumped), some time during this weekend, reminds us that the only country where software patents are still valid and enforceable is China. Lei Zhou and Nancy (Xiaowen) Song (of Linda Liu & Partners, Linda Liu Group) said: “A computer program is patentable in China if it is written in the form of a method or virtual apparatus (ie, an apparatus including modules in one-to-one correspondence with methodological steps). In recent years, claims with an apparatus including processors and memories as their subject matter have been increasingly accepted by examiners.”

Barely any other nation that we can think of would tolerate these; it’s only China where these have bearing when brought before a court. We need to ensure that software patents become extinct everywhere, including in China, as many companies still trade with/in China.

Over the past week we’ve accumulated observations and various takes on the subject of software patents in the US. We’re still observing and concluding that there’s no redemption for them. More worthless software patents, based on [1, 2], are being framed as “AI”, but anyone with a clue knows Alice scraps these. Even if the USPTO says “OK” the courts will likely say “No!”

Steven J. Pollinger, the managing principal of McKool Smith’s Austin office (Texas), ranted the other day about the USPTO’s rejection of “Direct Claiming Of ‘Computer Software’” (i.e. no weasel words or loopholes).

McKool Smith staff, however, are in no position to assert what should come under patent scope; they represent many patent trolls. National Law Review published this on behalf of Pollinger, in essence lobbying for software patents without even asking any software professionals (who oppose this, obviously). To quote:

We propose that the U.S. Patent and Trademark Office amend its subject matter eligibility guidelines, and all other related guidance, to make clear that claims may be expressly directed to “computer software” consistent with 35 U.S.C. §101. This would bring the Patent Office’s practice in line with recent Supreme Court and Federal Circuit case law, and would help innovators to better protect their software inventions that play such a key role in today’s computer-focused economy.

The Patent Office’s current guidelines can be read to discourage or even prohibit direct claiming of computer software. Even where the crux of an invention is directed to software, patentees currently are motivated to engage in a needlessly inefficient and expensive claim drafting process, whereby practitioners seek to cover software in an indirect manner — with various sets of claims directed to configured systems, media, methods, or other similar language — instead of simply claiming software itself.

Even if people like Pollinger can ‘trick’ examiners into granting a software patent, the likelihood of such a patent being respected by courts has been vastly diminished. They know it! An honest law firm would say, “don’t litigate, software patents are dead,” but they profit for lying about it. As is often the case, the media that they have a grip on will twist and spin to make it seem otherwise.

How about this press release? It’s a paid-for statement that says “Enterprise IP management software is an automation system for modern corporate that supports in the tracking of patents, trademarks, copyrights and IP.”

IP Pro Patents, in the meantime, reminds us that it’s just a propaganda and marketing site with this puff piece about Anaqua. All these pieces of software merely give the illusion of value. They’re like a virtual world for paper ‘assets’.

Here is IP Pro Patents with another puff piece, ‘dressed up’ as an article preceded by: “Barney Dixon speaks to James Muraff of Neal Gerber Eisenbeg on how to tackle patent subject matter eligibility in the ever-growing wake of Alice” (2014)

The whole thing is just a marketing opportunity and a lot of spin around Alice, e.g.:

How does Neal Gerber & Eisenberg’s approach to Section 101 litigation differ from other law firms?

Arguing the first step equally to, if not more than, the second is important because it gives a patent examiner a better sense of what the invention really is and the meaning of the specific required claim limitations, all up front. This often causes the examiner to realise the invention is really not just some broad (abstract) idea, at the outset of the arguments. I think the firms with better success argue both steps strongly, especially the first step.

But once assessed at a higher level like PTAB or courts (with an appellant) none of this would work. We’ve seen it all before. What are these people on, drugs?

Surely they know that patents on software aren’t worth pursuing, but either they intentionally lie about it or they’re on some truly strong drugs. Speaking of drugs, there are also patents on drugs, deemed “recreational”. Here is an article composed and published about it 5 days ago. From the introduction:

Patent law, possibly the most talked about yet least understood form of intellectual property, has yet to have a large impact on the marijuana industry. However, there is no doubt that the powerful protections that patent registrations provide will certainly have lasting effects. Many within the industry have the powerful tool known as patent law at their disposal, and a few have used it to great extent already. In this post I intend to nail down some patent basics and the potential implications that a patent-ridden landscape could have on not just the industry, but the plants themselves.

Even patents on drugs would be a lot more enforceable than patents on software at this stage. This new article admits that “Alice thus significantly curtailed what software-related inventions remained available for patent protection. However, it provided no specific guidance for determining the bounds of what software-related innovations remained patent eligible” (there are caselaw-type examples though).

EFF bashers such as J Nicholas Gross like to over-complicate patents to celebrate them being granted; when rejected they simplify it.

Watch what he wrote the other day: “USPTO reaches new milestone of insanity, rejects patent application on turbine engine as just an “abstract idea” https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016005774-09-28-2017-1 …”

“You must be over-simplifying what the patent claimed,” I told him “maybe wrongly ascribed to a “device” such as a turbine engine.”

Several days ago we found this report titled “Lufthansa Technik AG Files Patents For New Composite Repair Robot” and it made it sound like Lufthansa is patenting software now. To quote from the article: “The robot’s specially developed software scans and diagnoses damage, identifies the surface and calculates the scarf joint’s form and a milling path before cutting out the damaged material.”

There’s a physical element to it, but the software part should not be patentable. The same goes for 3-D printers. Several days ago there was this report about Ultimaker, noting that “[o]pen source was a big focus at this year’s edition of the TCT Show, and remains so as well for Ultimaker, which maintains deep roots in the community.”

So why patents? It says “following the company’s first filed intellectual property patent” as if they try to build a patent portfolio around their software.

How about this new article regarding Blockchain, which is already being infested with questionable software patents? Leslie M. Spencer and Marta Belcher ought to know that software patents are dead. Courts reject them.

Why does Ropes & Gray LLP promote software patents on Blockchain still?

From their article:

Blockchain — the distributed ledger technology underlying bitcoin — has the potential to have a revolutionary impact far beyond cryptocurrencies. Fundamentally, a blockchain is an immutable record of transactions — each one cryptographically verifiable and linked to the other transactions — that allows for accurate and secure transfers of digital assets without requiring a middleman or trusted broker such as a bank. IBM Chairman and CEO Ginni Rometty has stated that “blockchain will do for trusted transactions what the internet has done for information,”1 and a recently published World Economic Forum white paper argued that blockchain is creating an “internet of value.”2 Whether the mainstreaming of blockchain is as imminent as some suggest, a huge amount of investment is flowing into the development of blockchain applications in sectors ranging from financial services to health care to supply chain management.

They are quoting Ginni Rometty from IBM, the leading lobbyist for software patents and one of the biggest patent bullies around. IBM keeps trying to undermine Alice and the company’s patent chief has in fact just promoted this article about Alice, taking note only of the few decisions where Alice challenges got rejected by the Federal Circuit (not any time recently). To quote:

It has now been over three years since the U.S. Supreme Court handed down its transformative patent decision in Alice Corp. v. CLS Bank. During that time, the Federal Circuit has issued only a precious few decisions upholding the validity of software patent claims. Thus, it is critical that patent applicants and practitioners understand the lessons that these cases offer and the hallmarks of software patent eligibility they establish. While clear eligibility rules remain elusive, the cases that have been decided provide valuable guideposts for drafting patent applications moving forward.

The post-Alice eligibility analysis uses the Supreme Court’s previously established two-step framework. Under Step 1, courts first decide whether patent claims are directed to an abstract idea. If they are found “not abstract,” that finding alone supports eligibility, and the analysis can end. If the claims are found to be directed to an abstract idea, under Step 2 courts decide whether the claims contain an inventive concept sufficient to ensure that the claims amount to “significantly more” than the abstract idea itself. If they do, they are deemed patent eligible. This post examines the Federal Circuit decisions upholding software patent claims on Step 1 grounds; we will also publish a second post that examines patent claims upheld on Step 2 grounds.

Look who wrote this article. It’s S. James Boumil from Proskauer Rose LLP, which is being dishonest (cherry-picking) again. No Federal Circuit case has, for many months, favoured software patents (Visual Memory v NVIDIA is not relevant at all). “James assists clients in obtaining and enforcing intellectual property rights in the U.S. and abroad,” says the disclosure. So obviously he just wants companies to sue spuriously; he would earn money no matter if the cases get dropped/dismissed.

This is the kind of tripe pushed by IBM!

IBM is trying hard to convert its pile of software patents into much-needed cash (now that IBM is imploding), but PTAB and courts keep invaliding IBM patents, typically using Alice. IBM keeps setting up groups and events to fight against Alice, but so far no success…

Dennis Crouch, who has also been trying to crush Alice and bring back software patents, advertised this event a few days ago. The title says very clearly what it’s trying to accomplish. “The Need for Legislative Reform: The Berkeley Section 101 Workshop” is the title and here is the abstract:

Over the past five years, the Supreme Court has embarked upon a drastic and far-reaching experiment in patent eligibility standards. Since the founding era, the nation’s patent statutes have afforded patent protection to technological innovations and practical applications of scientific discoveries. However, the Supreme Court’s 2012 decision in Mayo Collaborative Services v. Prometheus Laboratories imposed a new limitation on the scope of the patent system: that a useful application of a scientific discovery is ineligible for patent protection unless the inventor also claims an “inventive” application of the discovery. The following year, the Court ruled that discoveries of the location and sequence of DNA compositions that are useful in diagnosing diseases are ineligible for patent protection. And in its 2014 Alice Corp. v. CLS Bank International decision, the Court ruled that software-related claims are ineligible for patent protection unless the abstract ideas or mathematical formulas disclosed are inventively applied.

They just can’t help trying to undermine the Supreme Court, can they?

The other day Crouch promoted a paper which said “legal job market is strong and growing” (by “legal jobs” they means jobs that are not making anything, just suing, or threatening to sue).

Looking at the paper in question, it speaks of patent maximalism and concludes: “In fact, patent attorneys with the appropriate background (mechanical, electrical, chemical or computer engineering degrees or “MECC Engineers”) are quite attractive on the employment market. Yet, they still do not come to law school.”

Maybe they want to change the world for the better, not destroying people’s actual work. Dennis Crouch remarked that this “article argues that “this fact will have a deleterious effect on the United States economy.””

What will? The patent microcosm? To people like Crouch, for example, the “United States economy” probably just means a bunch of blood-sucking law firms. With patents being granted to malicious firms like Securus (the incarceration industrial complex).

Some “economy”, eh?

US Patent Trolls Are Leaving and the Eastern District of Texas Sees Patent Cases Falling by More Than Half

Posted in America, Courtroom, Patents at 10:14 am by Dr. Roy Schestowitz

Summary: The decline of patent aggression in the US and the patent microcosm’s response to Justices, having ruled in TC Heartland, curtailing patent trolls

THE world is changing for the better when it comes to patents. Sure, the European Patent Office (EPO) is in trouble as patent scope is out of control there, but in the US things are improving. The EPO‘s friends at IP Europe wrote/quoted: “Development of innovative new standards jeopardised by #IEEE patent policy”

We wrote about IEEE the other day, specifically in relation to this article. This is a lie. IP Europe knows that it’s a lie. But it’s paid to lobby for patent extremists such as Microsoft. The IEEE is US-based and it’s possibly leaning towards liberal policies. That may mean no patent tax on standards.

In various other ways the US improving. Patent trolls seem to be on their way out. We have not heard of Erich Spangenberg for a while (he nearly disappeared). He is one of the most disgusting patent trolls of all. He had blackmailed over a thousand (maybe thousands) of firms using what later turned out to be an invalid patent and now, according to IAM, he is “back buying in the US”. To quote:

IPNav founder and renowned [sic] patent monetiser [sic] Erich Spangenberg is back buying US assets. According to an 18th September notice on the USPTO patent assignment database an entity called Page Innovations LLC acquired a single patent from inventor Justin Page relating to identity theft protection. In the assignment cover sheet Spangenberg is listed as the manager of Page Innovations. The details of the assignment were first reported in an RPX weekly email.

We have been writing about RPX for nearly a decade. We’ll come back to RPX in a moment.

The biggest news on the patent front was reported by Joe Mullin several days ago. It’s extremely pleasing to see that the US Supreme Court has managed to eject many patent trolls out of Texas. Here are some numbers:

New lawsuits are down—way down—in the mostly rural district that was once the national hotspot for patent disputes.

For several years, the Eastern District of Texas hosted more patent lawsuits than any other judicial district in the country. Last year, East Texas saw more patent lawsuits filed than the next four judicial districts combined. But in May, the Supreme Court sharply limited where patent owners can choose to file their lawsuits, in a case called TC Heartland. That’s leading to a sharp change in the geography of patent litigation.

[...]

The trend seems likely to continue, given a recent case called In re: Cray Inc., in which an appeals court clarified how TC Heartland must be applied. In that case, a federal judge ruled that a case against supercomputer manufacturer Cray could be kept in East Texas because the company employed a single work-from-home employee in the district. The top patent appeals court sharply disagreed, though, and overturned that decision, forcing the Cray case out of East Texas.

“The patterns we’re seeing are changing dramatically, and the double-digit dominance of East Texas is gone,” said Brian Howard, Lex Machina’s data scientist, in an interview with Ars.

United for Patent Reform‏ said: “Since #TCHeartland #patenttroll filings in #EDTX have dropped from 50% to 26%…”

This is based on Lex Machina.

Here is RPX’s take on some of the latest figures: “Patent law faces continued uncertainty in all three branches of government. The Supreme Court’s TC Heartland decision in May likely precipitated a dip in new patent litigation that carried unevenly through the third quarter. While litigation remains slow overall, plaintiffs have begun to test the bounds of TC Heartland by bringing novel venue arguments in the Eastern District of Texas and by charting new courses in Delaware, California, and Illinois. On the other hand, the tables could turn: the Court granted certiorari in Oil States in June, casting the continued existence of inter partes review (IPR) into doubt. Though most commentators discount petitioner Oil States’s likelihood of success, even the slightest potential for victory is a ray of hope for patent owners.”

On the Federal Circuit reaffirming all this, here is another belated take (we wrote about this before):

Until the U.S. Supreme Court’s May 22, 2017 ruling in TC Heartland v. Kraft Foods, the Court of Appeals for the Federal Circuit and the United States district courts had interpreted the patent venue statute, 28 U.S.C. §1400(b), to allow plaintiffs to bring a patent infringement case against a domestic corporation in any district court where there is personal jurisdiction over that corporate defendant. The Supreme Court’s TC Heartland ruling, however, clarified that personal jurisdiction alone does not convey venue for patent cases under the patent venue statute. But that clarification led to confusion as to how to interpret the venue statute itself. The Federal Circuit just addressed that confusion in In re Cray Inc.

In re Cray was also an important decision because it helped highlight the sheer disregard for the law (and the Supreme Court) down in Texas. It is hopefully a lot clearer now (to more trolls) that there’s nothing attractive about Texas. The figures speak for themselves.

Qualcomm’s Nightmares Are Getting Worse as Antitrust Questions Are Raised and Assessed

Posted in Antitrust, Apple, Asia, Patents at 9:22 am by Dr. Roy Schestowitz

Silicon chip

Summary: Qualcomm is getting itself deeper in trouble as fines pile up and its multi-billion dollar dispute with Apple isn’t getting it anywhere

THE company known as “Qualcomm” used to exist in the market. One could actually buy things with the “Qualcomm” brand on them. Nowadays, Qualcomm is just something that’s a tax. It’s embedded in many products and the tax includes software patents, which aren’t even valid in many of the respective markets. Later this week we intend to organise our articles about Qualcomm in a Wiki page similar to that of the EPO.

“It’s embedded in many products and the tax includes software patents, which aren’t even valid in many of the respective markets.”Several days ago Qualcomm got slapped with a massive fine (almost $0.8 billion in a nation as small as Taiwan). Will they fine them even more in nations like Korea and China? We shall see…

From the report of Bloomberg (found via Florian Müller):

Qualcomm Inc. was fined a record NT$23.4 billion ($773 million) by Taiwan’s Fair Trade Commission in the latest blow from regulators over the way the U.S. company prices mobile phone chips and patents.

The company has been violating antitrust rules for at least 7 years and Qualcomm collected NT$400 billion in licensing fees from local companies during that time, the Taiwanese regulator said in a statement on its website Wednesday. The San Diego-based company didn’t immediately respond to a request for comment.

Qualcomm has attracted scrutiny from regulators around the world, with it practices probed in South Korea, China, Japan, the European Union and elsewhere. The company is engaged in a fierce battle with Apple Inc. that has seen the iPhone maker cut off billions of dollars in payments to Qualcomm.

Müller wrote about it in his own blog later on. To quote:

The Taiwan Fair Trade Commission’s decision to impose a record fine of more than $700 million on Qualcomm and to demand a departure from some of Qualcomm’s longstanding, problematic practices is really huge. If I didn’t believe so, I wouldn’t be writing this blog post about two hours after receiving approval from Apple to publish my iOS game, after three years of development. We’re initially making the game available in 24 countries now and will do our U.S. launch (after a bit more fine-tuning) next month, at which time I’ll be more specific about category, name, features, everything.

[...]

This has been a very eventful ten months for Qualcomm in antitrust terms. It’s hard to identify the tipping point, but my prediction is Qualcomm will have to fundamentally change its patent licensing and other business practices in the not too distant future, and when that happens, today’s Taiwanese decision will be considered to have been among the more important events in that regard.

IAM, as expected, isn’t too happy. “Whatever happens with the appeals,” it wrote, “the fact that the TFTC has shown its cards means there is one less major regulatory question mark for Qualcomm in Asia. The focus of the antitrust war may shift to the US and EU going forward, although there is still important Apple-Qualcomm litigation going on in China, Taiwan and Japan.”

On a separate day IAM spoke about NXP patents and Qualcomm, which it dubbed “one of the world’s leading licensors” (more like one of the world’s leading bullies). To quote:

According to a news report earlier this week Qualcomm has offered to agree to certain patent-related conditions in order to get the greenlight for its $38 billion takeover of NXP from European Union regulators. The giant US chipmaker is said to have told regulators that it will not acquire NXP’s standard essential patents (SEPs) and will not assert the Dutch company’s IP relating to near field communication (NFC) technology, except for defensive purposes.

Given that Qualcomm is one of the world’s leading licensors and makes a big chunk of its profits from monetising its patent portfolio in the mobile space, these possible concessions are very significant. The San Diego based business’s licensing practices are of course well and truly in the spotlight right now thanks to various regulatory investigations and its increasingly bitter spat with Apple. As we reported earlier today, Qualcomm was fined $773 million by Taiwan’s antitrust authorities (the company has said it will challenge the decision in court) and has also been hit with fines in the recent past by South Korea and China.

An article from Eric Jhonsa at The Street has meanwhile explained “Why Apple Is Likely to Come Out Ahead in Its Royalty Battle With Qualcomm” and to quote the summary:

Apple probably won’t get everything it officially wants in its legal fight with Qualcomm. But similar to what happened in its patent battles with Samsung, Apple might end up in a better position than if it had never sued.

As we explained at the start of the year, if Apple wins this battle, it will be good news for Android, too. Apple has just, yet again, been sued for patent infringement. Will Apple interpret that as a wakeup call regarding patents? Perhaps a nice goal for us to have is to compel companies like Apple to understand that software patents aren’t in their interest and therefore fight along with us.

“Will Apple interpret that as a wakeup call regarding patents?”In the meantime, as of Friday, “Qualcomm Seeks China iPhone Ban, Expanding Apple Legal Fight” (because it’s feeling the pressure).

To quote Bloomberg again:

Qualcomm Inc. filed lawsuits in China seeking to ban the sale and manufacture of iPhones in the country, the chipmaker’s biggest shot at Apple Inc. so far in a sprawling and bitter legal fight.

The San Diego-based company aims to inflict pain on Apple in the world’s largest market for smartphones and cut off production in a country where most iPhones are made. The product provides almost two-thirds of Apple’s revenue. Qualcomm filed the suits in a Beijing intellectual property court claiming patent infringement and seeking injunctive relief, according to Christine Trimble, a company spokeswoman.

Qualcomm is just trying to intimidate Apple, but we very much doubt this pressure (or financial risk) will turn Apple away. At the end, we certainly hope that Qualcomm will lose and preferably fold as a company. Qualcomm has nothing left to offer.

Forget About Apple; Two of the Leading Phone Makers (Samsung and Huawei) Are Bickering Over Patents

Posted in Apple, Asia, Patents at 8:35 am by Dr. Roy Schestowitz

The aggressor is Huawei

Huawei and China

Summary: Massive Android OEMs, Huawei and Samsung, are in a big patent dispute and this time, for a change, China is a legal battleground

THE war Apple started against Android in 2010 was a patent war. The first target was HTC from Taiwan. Later on Apple targeted the biggest (at the time) Android OEM, namely Samsung.

Huawei has since then challenged Samsung to the crown, after Samsung became a bigger OEM than Apple. As is widely known by now, Apple started flinging all sorts of ridiculous design patent lawsuits at Samsung. Some of these patents looked almost comical and last week we explained why design patents, as a whole, are a lame shame (trademark and copyright laws already cover designs). More people need to talk about this. Several days ago Patently-O plotted duration of such patents (believe it or not, it’s fifteen years). “If I were preparing to file a design patent around early May 2015,” it said, “I might have held-off a bit on the filing to pass the May 13, 2015 threshold. Design patents stemming from applications filed on or after that date have a 15-year patent term (calculated from patent issuance) as opposed to a 14-year term for those filed prior to the threshold date.”

“…the patent courts in china have become kangaroo courts like the Eastern District of Texas.”So the USPTO further extended the life of patents which probably ought not exist in the first place.

Sadly, patents like these continue to be used in countries where the threshold for patenting is low. Huawei, for example, first sued Samsung in both China and the US, knowing that China’s State Intellectual Property Office (SIPO) is notorious worldwide for probably the lowest patent quality. Moreover, as we have shown recently, the patent courts in china had become kangaroo courts like in the Eastern District of Texas. Here is the latest on this from English-speaking Chinese media:

The patent war between Chinese smartphone maker Huawei Technologies Co and its South Korean rival Samsung Electronics Co has been in the headlines again recently, after China’s State Intellectual Property Office (SIPO) announced its latest rulings on eight cases.

The SIPO’s Patent Reexamination Board announced on September 30 that five patents involved in Samsung’s lawsuits against Huawei are invalid, one is partly invalid and only two remain valid. At this point, 10 of the 16 patent infringement lawsuits Samsung filed against Huawei in China have been determined invalid, accounting for 62.5 percent of the total.

The patent battle started in May 2016 when Huawei first sued Samsung in both China and the US for alleged infringement of its smartphone patents, involving several of its cellular communications technology and software inventions used in Samsung smartphones. In July 2016, Samsung countersued Huawei over six alleged infringement patents.

It’s worth noting that SIPO found most of the patents it had granted to be invalid. Yet another reminder of the low patent quality there.

IAM (lobbying group that calls itself publisher) keeps egging on or encouraging a patent trolls epidemic in China. See what it wrote some days ago. We are worried that China’s race towards patent maximalism will spread to other countries. Patent radicals in the US already cite “China!” all the time, in an effort to lobby their officials for broader patent scope.

Tim Heberden From the Glasshouse Advisory is Throwing Stones in a Glasshouse to Create Patent Litigation

Posted in Australia, Patents at 7:55 am by Dr. Roy Schestowitz

One-man firm or just a patent propaganda front with marketing like “Elevate your IP”?

Glasshouse Advisory

Summary: IAM’s latest lobbying, aided by the patent microcosm, for a climate of feuds and disputes (to line the pockets of the litigation ‘industry’)

PEOPLE who make a living out of patent maximalism are, quite expectedly, promoting patent maximalism. Tim Heberden is one such person, who is linked to IAM, a patent maximalism lobby group.

As a reminder, Australia recently extended or augmented the ban on software patents. We last wrote about this a monhh ago. The Productivity Commission, a government research body, studied these matters and concluded that patents on almost everything would be misguided and counterproductive. Patent maximalists were — and still are — angry about it. That means more money for programmers, not for pests.

“The Productivity Commission, a government research body, studied these matters and concluded that patents on almost everything would be misguided and counterproductive.”Now there is a so-called ‘study’ from a patent maximalist who says companies should embrace patent maximalists (like himself). Tim Heberden From the Glasshouse Advisory (which seems to be only/mostly about himself) obviously received a mention from IAM, which towards the end disclosed the connection. To quote: “These businesses are all leaders in the field of IP value creation. But new research from Tim Heberden, IP economics director at Glasshouse Advisory, shows that many publicly traded companies in Australia are missing the opportunity to explain the value of their intellectual assets to investors. This, he says, can be detrimental to their corporate health. [...] Heberden is a member of the IAM Strategy 300.”

“What’s worth noting here is IAM’s eagerness to increase litigation and tensions.”Another fine example of IAM lobbying disguised as media (as in “IAM Media”). Around the same time they also congratulated TiVo, which had become somewhat of a patent bully in recent years, on a new hire from patent bully number 1, IBM. TiVo seems certain or looks like it’s going to become more and more aggressive with patents. To quote IAM: “Ehrlich spent almost 30 years at IBM first as an engineer before moving to the legal department in 1994 and taking a series of IP-focused roles. Most recently he led the patent licensing and business development legal team responsible for generating IP income. At TiVo he will take charge of all of the IP functions outside of litigation essentially filling the role that Patel had at Rovi before his move to take the top IP job at Technicolor and the company’s acquisition of TiVo (the combined business adopted the latter’s name). “The TiVo IP team is already one of the best in the world but we’re looking to make it even stronger,” Patel told the IAM blog. “I’m looking to turn it into a powerful 21st century commercialisation engine that is capable of driving the growth of the company. Marc is one of the first pieces that will help us move in that direction.””

IBM’s push for software patents will be mentioned later today in another post. What’s worth noting here is IAM’s eagerness to increase litigation and tensions.

Access to Medicine is More Important Than Patents

Posted in America, Patents at 6:51 am by Dr. Roy Schestowitz

Pills

Summary: Some of the latest news about patents that impede/deny access to crucial medication; strategic litigation from the generics sector, seeking to invalidate patents and then offer low-cost alternatives

A COUPLE of weeks ago we wrote about various patent monopolies whose value to society is questionable. At one point we highlighted news about a patent case which led to massive penalties ($70,000,000) and medicine embargoes. That was Amgen.

Last week Amgen’s patent disputes were brought up again by Managing IP. To quote: (it’s mostly restricted in terms of access)

The permanent injunction [i.e. embargo] granted by the District of Delaware in the dispute between Amgen and Sanofi/Regeneron over cholesterol-lowering treatment has been vacated, in a decision that also included some implications for the USPTO’s practice of granting broad antibody claims

The Federal Circuit has vacated the permanent injunction in the dispute between Amgen and Sanofi/Regeneron over cholesterol-lowering treatment.

It’s hard to see how sanctions like embargoes can ever benefit society, especially when life-saving medicine is at stake. It’s saddening to see almost no sites (bar IP Watch perhaps) speaking about this. What’s worse, now that there’s positive change, owing to the US Supreme Court, sites like this are promoting the illusion that doing the right thing on patents would cause death in “developing nations” — the very opposite of what is true. To quote:

On May 30th, the Supreme Court ruled in Impression Products, Inc. v. Lexmark International, Inc. that all patent rights are automatically exhausted upon the sale of a product irrespective of contract stipulations and regardless of whether the sale is made domestically or internationally. While the dispute in this case involved articles of manufacture, the decision has strong implications for the biotechnology and pharmaceutical Industry, and may make it easier for drugs sold legally overseas to make their way back to the U.S. market.

[...]

Another possible effect of the Lexmark decision is a decrease in drug donations from pharmaceutical companies to developing nations…

This is nonsense. If anything, the ruling compels companies to focus less (in their business model) on patents. We used to write a great deal about the sham such “donations” tend to be; sometimes they just experiment on a population, under the guise of philanthropy or charity. Production costs are minuscule anyway and what’s expensive is risk of litigation due to clinical trials gone awry. We wrote about companies such as Merck and Novartis in relation to this (mostly half a decade ago) and speaking of which, watch what Patently-O published a few days ago. It is now a platform for patent radicals from Novartis (malicious company in the patent sense) and the notorious WIPO. It’s easy to see what they want and it has nothing to do with public interests.

In Japan, according to last week’s IAM blog post, there’s now a debate (and lawsuit) that spills over to the US. Generics versus patents again:

In order to submit Paragraph IV certifications, Sawai will reportedly conduct invalidity searches for patents which protect original drugs and that have significant patent terms remaining. By invalidating patents for original drugs, Sawai expects to increase sales of its generic drugs. From the early 2020s, Sawai plans to release one or two generic drugs each year in the United States.

This is very good. Sawai would therefore improve access to medicine at affordable prices.

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