10.28.17
Posted in Europe, Patents at 4:31 pm by Dr. Roy Schestowitz
Summary: Belgium’s representatives might need further scrutiny, say inside sources, for they have been enabling some rather dubious activity which merits inconvenient questions
EARLIER THIS MONTH we wrote about the alleged role Belgium played in appointment of the next President of the EPO. Minnoye, who is Belgian, retired this summer, but another Belgian might soon become the chief of EU-IPO.
As a source that we deem pretty reliable explained to us at the time: “According to internal sources from within Battistelli’s trusted circle [...] Battistelli would have visited the Belgian Delegation with A. Campinos to make following deal: Belgian supports Campinos at the EPO and in exchange France supports Belgian Christian Archambeau (former PD HR at EPO, A.K.A. “Magnum” for his pronounced taste for both mustache and Ferraris) at the head of EUIPO in replacement of Campinos.”
Now here’s the latest, which relates to our last post:
How the Belgian Delegation acts to disseminate fake news during the last meeting of the EPO Budget and Finance Committee in Munich last week.
A member of the belgian delegation was heard trying to convince EPO staff during the BFC that “the CA doc presented by PD HR (which foresees to move from 5 % of time-limited contract to no less than 100% of such contracts by 1st January 2018 for all new recruits), would actually be an express demand of Mr Campinos to Mr Battistelli so that when he arrives at EPO, the dirty work is done”.
Nicely tried but untrue.
The Belgian delegate who visibly acted upon express demand of Battistelli just forgot one detail: the very document was tabled by PD Bergot was ready well before Mr Campinos was elected.
This sad episode shows that the Belgian delegation plays dirty with Battistelli (nothing new here). What kind of deal will they get as a retribution for their support to all Battistelli’s toxic policies: a top manager position at EPO? The recruitment of children at EPO? Future will soon tell.
Battistelli is in fact utterly upset after the brilliant election of Mr Campinos in only a single round of vote. He cannot stand to see his power vanishing by the hour. He thus now starts to spit on the back of Mr Campinos.
All this is of course totally Niveaulos but it illustrates so well the Battistelli era, made exclusively of pathetic trahisons, intrigues and coup bas.
Is Belgium covering up for Battistelli in exchange for favours? If that turns out to be the case, then it’s just about as severe — if not more severe — than allegations that Battistelli gave EPO money to various small nations in exchange for their votes (which have the same weight as large nations with hundreds of thousands of European Patents). █
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Posted in Europe, Finance, Patents at 3:57 pm by Dr. Roy Schestowitz
Also see: A “Perfect Recipe for Fraud” at the European Patent Office (EPO)
Summary: Billions of euros from EPO stakeholders are mishandled and Battisteli even builds himself a bar (as shown above) using that money
THE EPO tries hard to hide internal affairs. It does not want matters to boil over or spill over (beyond the blurry boundaries of Eponia), for that might cause Benoît Battisteli to be held accountable for his horrific, jaw-dropping actions.
Earlier today we noted that a French politician, Claudine Lepage, had complained about what Battisteli does to the image of France. She was far from the first one warning about this and SUEPO has just posted about this too. To quote:
On 27 October 2017, Claudine Lepage, French Senator, reported again on the social situation in the European Patent Office (in French).
The original Q & A, published by the French Senate can be read here.
We are still hoping that a decent translation will turn up (one we can safely comment on, without risk of reliance on mistranslation).
Either way, here a transcript of highly interesting exchanges which occurred during last Budget and Finance Committee held in Munich last week.
“A nice little stop for Battistelli who wanted a vote on his proposal,” a source told us, “for doing basically what he wants with the cash on the EPO accounts. Thanks to the IT delegation which requested that the point be shifted from “for decision” to “for information” Battistelli did not get what he wanted.
“This exchange is surrealistic and shows the despicable lack of any decent system of check and balances at EPO. We speak here about what to do with the huge amount of cash available on the giro account of the EPO (over 2 BILLIONS EUR of applicants’ money) which incompetent “top managers” think they can manage competently. The public must know what is happening in this organisation.
“But of course there is no corruption at EPO (since all investigations target primarily union leaders and staff reps or joe average staff members) decision makers (who can decide upon millions of applicants’ money) can sleep tight.”
Some insiders told us there is also financial fraud, but there aren't sufficient whistleblower protections for the relevant people to come out with the evidence.
Either way, or in any event, the following transcripts speak for themselves:
Point 10.5 New investment policy for EPO
Chief Financial Officer EPO: [he presents a PowerPoint]
From 850 million euros in 2011, we have come to 2.11 billion euros in cash in 2017. We still manage the funds with guidelines dating back to the 90s. At present, we have invested 90% in bond papers. 10% are fixed in bank accounts. 0.33% was the average for bond papers in recent years. The continuation of this investment policy would be a sign of a poor investment. Deloitte has recommended to make the guidelines more flexible. The cash can be invested over a long-term period. It was recommended to invest 380 million euros per year in long-term debt with 1.17% return per year. The investment mandate must be revised so that the investments can be made more flexibly. For this purpose, For example, shares. The longer investment period would minimize the risk of volatility. Other European investors are widely diversified. We asked Mercer for a study. The potential losses should not exceed the profit from 2017, ie 400 million euros. Mercer has simulated a flexible plant distribution. We want to achieve a return of 4% per year. This would require 35% equities, 55% fixed income investments and 10% alternative products. € 250 million of cash reserves would come from operating surplus. 10.6 billion euros would come together by 2036. Despite a conservative approach, the Office is able to achieve € 12 billion by 2036. For this purpose, an approach in two steps must be selected. First of all, the inventory directive has to be revised. Then you need to select one or several fund managers to generate a 4% return. The document provides you with all the information in the appendix. In the second step an external provider has to be selected. In September, an FAC was set up, which also includes high-ranking external staff. The Office proposes a more flexible stocking directive.
Germany:
A presentation is something different than the document. It is about important decisions. We share the view that the investment policy must change. But there must be more details. The Federal Court of Auditors and the Ministry of Finance have told us that the document is not acceptable. You go to Mercer and show us the result. We should believe you. The parameters must be set precisely in advance. The WIPO shows that it is possible. The distribution of assets and the distribution of risk and governance are all much clearer. In the presentation everything was much more harmless than in the document. The document does not contain a distribution of the investment. 2 billion euros could be invested in high-risk investments. I do not suppose that this is the goal, but I would like to take it from the document. We have nothing in principle against outsourcing. But we are missing information on profitability. The RFPSS is managed internally. Why should the cash now be managed differently? It is currently quite open, who should intervene if and when an undesirable development occurs. It is said that the EPO should still provide documents. We would like to decide in advance. We do not want to give any general authorization and then have to agree piece by piece. We would like to see the overall strategy. WIPO has provided much more precise information. We would like to see this as an orientation. Then, in May, with a modified document, you can hopefully initiate a vote based on sound data (emphasis added).
United Kingdom
We have voted in favor of this document being for information purposes only. Not because the president is no longer responsible, but because there are many elements missing in the document, we have done so. Here the risks are fictive. The resources of the Office must be used transparently. For the first time, I hear a 4% return. I would have preferred that the German CPI plus be taken. I do not see a proper methodology in the document. The investment distribution is also not listed. The guidelines on page 9 allow much greater risks than they can be addressed by the RFPSS. The RFPSS can not buy high-yield bonds. The Office could do so. That would still be something we would approve. We need a much better overview. Without an appropriate framework, this is not acceptable. Similar changes were made in other international organizations and everything was very clear. With this document I can not tell my government that everything is in order (emphasis added).
Remember that many people’s pensions are also at stake here. Can they trust crooked Battistelli and his team, who love to reward themselves? They don't disclose this, they just take the money. Battistelli wasted millions of euros building himself a palace using budget that allegedly belongs to an external contractor, inducing big losses for that contractor. █
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Posted in Patents at 2:58 pm by Dr. Roy Schestowitz
And the CEO makes a killing, with $14,000,000 a couple of years ago
Summary: Amgen’s aggressive patent strategy, culminating even in embargoes, leaves Amgen executives with blood on their hands (but also a lot of patent fees from serial litigation)
Earlier this year we wrote a great deal — at least in passing — about Amgen’s embargo ambitions. It’s a company of what’s commonly known as “fat cats”. We even dedicated entire articles to this matter [1, 2, 3], especially in relation to Sandoz v Amgen. Remember that in this domain in particular embargo typically means death to a lot of people — something that seems not to bother Amgen’s managers. This aggressive, ruthless, greedy company has neither regard nor value for human life.
“This aggressive, ruthless, greedy company has neither regard nor value for human life.”A few days ago this subject was brought up again by Law 360. It’s about this high-profile biosimilars case:
A recent biosimilars litigation raises issues regarding the scope of the 35 U.S.C. § 271(e)(1) safe harbor provision and whether it protects commercial stockpiling. Amgen Inc. et al. v. Hospira Inc., No. 1:15-cv-839 (D. Del., Sept. 25, 2017). Hospira is seeking approval to market a biosimilar version of Amgen’s erythropoeietin (“EPO”) anemia treatment.
That’s another kind of EPO, not the hopeless one in Munich.
“Amgen’s greed (pursuing these truly obscene levels of ‘damages’) isn’t a victimless move.”Amgen’s case against Pfizer’s subsidiary Hospira was also mentioned in this site which is dedicated to biosimilars. It said that “a federal jury found that Hospira had infringed on Amgen’s US Patent Number 5,856,298 (the ‘298 patent), which covers erythropoietin, and ordered the biosimilar developer to pay Amgen, the maker of the reference epoetin alfa (Epogen), $70 million. Hospira had unsuccessfully argued during the trial that its development of a biosimilar product was protected under safe harbor.”
Amgen’s greed (pursuing these truly obscene levels of ‘damages’) isn’t a victimless move. It will directly harm a lot of people, as we explained before. But Amgen doesn’t care about people, unless these people are able to afford grossly overpriced ‘products’, in which case these people are merely ‘consumers’ (like empty vessels that shell out money). This whole war over biosimilars (also an active subject/area of debate at the EPO) and patents on biosimilars leaves actually impoverished and ill people worse off. Many will just die.
“This whole war over biosimilars (also an active subject/area of debate at the EPO) and patents on biosimilars leaves actually impoverished and ill people worse off. Many will just die.”Writing about Bloomberg’s report on the subject (Wall Street media), IAM has just praised the practice. To quote” “This article was pessimistic about Amgen’s chances of penetrating AbbVie’s “seemingly impregnable fortress of patents”, while another Bloomberg blog suggested that AbbVie’s patent strategy was indicative of why only two biosimilars had made it onto the US market by 2016, despite the regulatory route to market being opened in 2010.”
For those who aren’t sure what ill people are at stake here, see Wikipedia and let your blood boil… if you have enough red blood cells to afford it boiling without passing out. █
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Posted in America, Courtroom, Patents at 2:29 pm by Dr. Roy Schestowitz
Summary: The company which has been reduced to just a patent troll that uses software patents to demand many millions of dollars finally hits a wall (against Sega)
THE patent troll Uniloc was recalled here last weekend because it had been paid a lot of money by Microsoft and is now chasing Microsoft’s rivals.
“Add this to the long list of “dead” (invalidated) software patents.”Uniloc is as parasitic as it gets. Its track record is well documented here (for nearly a decade) and days ago it turned out that it had lost yet another case (and software patent):
Uniloc’s patent for anti-piracy software has been invalidated in a US Court of Appeals for the Federal Circuit ruling.
The federal circuit affirmed the US Patent and Trademark Office (USPTO) Patent Trial and Appeal Board (PTAB) decision, which held the patent as “unpatentable for being anticipated and obvious”.
Uniloc asserted the patent in an inter-partes review at the PTAB against video game developer, Sega.
Add this to the long list of “dead” (invalidated) software patents. As we noted in our last article, rumours say that the USPTO may be about to ban every such patent. Will all the loopholes be closed and prevent further issuance of software patents?
“You know something is amiss when patent lawyers just try to work around the law using words and semantics.”Patently-O, which has just published this patent trolls cartoon, does not want to say anything about “trolls” (the above case or the rumours from the USPTO). Dennis Crouch sees his area of research becoming growingly obsolete. He was more concerned about kicking out Michelle Lee, bashing PTAB, and bashing Google. Days ago he wrote about “Means-Plus-Function”, which is one of these tricks for bypassing the rules and patenting what would otherwise be rejected. “Although the Federal Circuit does not state this expressly,” he wrote, “the holding here is basically that, in addition to being indefinite, a patent claim also fails written description when it includes a means-plus-function limitation without disclosing a specific structural embodiment that performs the claimed function.”
At almost the exact same time Managing IP wrote about “functional claiming”.
You know something is amiss when patent lawyers just try to work around the law using words and semantics. They quietly acknowledge that things have changed profoundly. █
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Posted in America, Patents, Rumour at 2:06 pm by Dr. Roy Schestowitz
Each time a software patent gets granted a kitten/puppy will die
Summary: As virtually every court ruling in the US is against software patents (more so at higher courts) the US patent office accepts that it can no longer issue such patents, according to rumours/gossip
PATENT BUDDY, a huge proponent of software patents, wrote the other day what s/he labeled “USPTO GOSSIP”. Given everything we know and have been writing about the USPTO, it seems very plausible. Now that high courts invalidate just about every software patent that lands on their lap it’s about time for USPTO to adapt and stop issuing these.
“The USPTO merely embarrasses itself if it keeps issuing patents which it knows for sure courts would reject (sometimes PTAB rejects these also, once it gets petitioned).”“We are hearing from multiple [USPTO] examiners that they are to reject virtually all computer-implemented inventions under 101,” says the gossip.
It’s about time! If true…
The USPTO merely embarrasses itself if it keeps issuing patents which it knows for sure courts would reject (sometimes PTAB rejects these also, once it gets petitioned).
Does anyone else know anything about it? Can documents related to this be shared with us? It’s not likely that the patent microcosm would want to publicise such a thing as it would scare their clients away.
“The patent trolls’ lobbyists/voices try to paint what Supreme Court Justices did in 2014 as against the law. It’s their latest miserable strategy, which we first noted and wrote about last weekend.”The Supreme Court was very clear; no software patents. Alice remains without challenge for 3.5 years (so far) and as we’ll show in a later article, Watchtroll lobbies hard to put an end to that. The patent trolls’ lobbyists/voices try to paint what Supreme Court Justices did in 2014 as against the law. It’s their latest miserable strategy, which we first noted and wrote about last weekend.
Here. again, comes the spinner in chief. He attempts to frame the Justices as against patent law. “In her decision,” he wrote, “Judge Huff granted Plaintiffs Rule 12(c) motions for judgment on the pleadings – ruling that all claims of the five asserted patents were invalid for claiming ineligible subject matter under 35 U.S.C. § 101.”
Yes, as usual. It’s worth noting that this has become so routine a judgment that it’s almost boring. █
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Posted in GNU/Linux, Microsoft, OIN, Patents at 1:35 pm by Dr. Roy Schestowitz
Microsoft will never co-exist with Linux; it just wants to eat it alive
Summary: The Open Invention Network (OIN), whose CEO used to talk about how Microsoft would attempt to pass patents for patent trolls to attack GNU/Linux, adds Canon as a community member and we are attempting to keep track of Microsoft’s intricate shell game (securing a multi-billion dollar patent ‘tax’ on Linux)
THE many patent trolls out there are not the main problem; the main problem is software patents, which patent trolls love to use. Lawsuits may have moved out of Texas, but patent trolls are still active and according to this group which is keeping track of such valuable, illuminating statistics: “Of the 26 patent suits filed on Friday, 15 were filed by patent trolls — that’s 58%.”
“Shortly after Microsoft blackmailed Canon for using Linux — using software patents as an extortion tool — Canon was sued by Microsoft’s biggest troll (Intellectual Ventures).”Sometimes it’s more like 90%. It depends on the day. We once estimated that about 90% of “news” about patents also boil down to lies and marketing from the patent ‘industry’, so it’s not easy to get the truth in this domain. One had to dig quite deep.
As we noted here before [1, 2], shortly after Canon had signed a patent agreement with Microsoft (probably protection racket) Microsoft’s biggest patent troll attacked Canon. These deals may be worthless if companies can go behind one’s back and send trolls to attack so-called ‘allies’. Several days ago Canon announced that it was joining the Open Invention Network (OIN), but that’s not going to protect is from patent trolls. Shortly after Microsoft blackmailed Canon for using Linux — using software patents as an extortion tool — Canon was sued by Microsoft’s biggest troll (Intellectual Ventures). How can OIN help in such a scenario? There is nothing it can do. Here is what the press release says:
Open Invention Network (OIN), the largest patent non-aggression community in history, announced today that Canon has joined as a community member. As a global leader in such fields as professional and consumer imaging and printing systems and solutions, and having expanded its medical and industrial equipment businesses, Canon is demonstrating its commitment to open source software as an enabler of innovation across a wide spectrum of industries.
“A key innovator in many technologies, Canon is one of the world’s most sophisticated corporations in developing and managing intellectual property,” said Keith Bergelt, CEO of OIN. “Canon has further distinguished itself by joining both the LOT Network and OIN. As a large patent holder, Canon has recognized the importance of participating in these complementary defensive patent networks together as part of a comprehensive IP strategy.”
“Open source technology, especially Linux, has led to profound increases in capabilities across a number of key industries, while increasing overall product and service efficiency,” said Hideki Sanatake, an Executive Officer, Deputy Group Executive of Corporate Intellectual Properties and Legal Headquarters at Canon. “By joining Open Invention Network, we are demonstrating our continued commitment to innovation, and supporting it with patent non-aggression in Linux.”
It speaks of “patent non-aggression in Linux,” but Microsoft is still aggressive (with patents) against Linux and it claims to be a ‘contributor’ to Linux (it certainly contributes to headaches). Microsoft’s ‘contributions’ in Munich speak for themselves. Financial ‘contributions’ to officials more-like…
“Dominion Harbor received a lot of patents from Microsoft’s patent troll (Intellectual Ventures) and a similar number of patents is passed from the Microsoft-connected Nokia.”Last week we mentioned VirnetX, which is a patent troll that got paid by Microsoft. It is still suing Apple, again earlier this month, and the following new blog post mentions Document Security Systems (DDS) in relation to the same business [sic] model of patent trolls. They intend to do nothing but prey on companies; no products in the pipeline:
Back in June, VirnetX Holding Corp announced plans to sell a 10% stake in itself to an obscure Japanese partner billed as a consortium of Japanese corporations and financial institutions. The PIPCO (which trades on the NYSE American exchange) was set to gain $20 million in expansion capital as well as an entrée into a potentially lucrative market for licensing its secure communications technologies and patents. But according to recent SEC filings, the stake in VirnetX will no longer change hands after the company’s favourable US district court verdict against Apple boosted its share price.
[...]
Times are tough for PIPCOs, no doubt, and it can’t be easy for them to find investors. VirnetX isn’t the only such company we’ve seen look to Asia for financing: Document Security Systems did a stock swap with a Singapore businessman only last month to save itself from being de-listed from the NYSE American exchange. Listed licensing companies understandably want to diversify, and Asia is a natural ground for expansion. But the big patent players in Asia have so far focused their partnerships on private NPEs and national patent funds like IP Bridge and Intellectual Discovery. I don’t expect that will change anytime soon.
This same blog, which favours patent trolls (we track it for information about trolls), speaks about InterDigital. We have been writing about InterDigital since 2007 and it turns out now that an antitrust investigation against it falls through. Here they go again pursuing a tax (share of it) on every mobile device:
What it doesn’t include, though, is some of the other giant SEP holders such as Qualcomm, InterDigital, Ericsson and Nokia. They have largely resisted attempts to license their wireless patents through pools, although the first three have joined Avanci, the collective licensing platform headed by former Ericsson CIPO Kasim Alfalahi that is looking to license patents relating to 2G, 3G and 4G mobile technology in a number of different Internet of Things (IoT) verticals.
What’s also worth noticing is that Nokia (mentioned above) has just passed thousands of patents to some obscure entity. We previously showed how Microsoft-connected patent trolls had been fed by Microsoft in order for them to attack Microsoft’s rivals. That’s why the following might be important. Portions from this new blog post:
Last Friday, this blog broke the story of a huge portfolio of Nokia assets that had been acquired by Provenance Asset Group, a company set up by IP advisory business Quatela Lynch McCurdy (QLM). With around 4,000 US assets it looks to be amomg the largest transactions so far in 2017.
[...]
Nokia’s recent spate of transfers is one reason for the significant jump. As well as the large stockpile recently acquired by PAG, the Finnish telco has also put a portfolio of 6,000 patents up for sale through AQUA Licensing. Following its purchase of Alcatel-Lucent last year, which significantly boosted its patent reserves, Nokia has clearly been busy assessing the size and scope of its portfolio. Intellectual Ventures has also shaken up the secondary deals market, significantly ramping up its rate of sales including, earlier this year, the disposal of around 4,000 former Kodak patents to Dominion Harbor.
Dominion Harbor received a lot of patents from Microsoft’s patent troll (Intellectual Ventures) and a similar number of patents is passed from the Microsoft-connected Nokia. Does that mean that Android will be targeted next? Time will tell, but that seems likely.
Microsoft is trying to make this entire space very toxic (lots of patent lawsuits and patent tax) in order to entice companies/people into Azure for perceived ‘safety’ [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15]. That’s how it also coerces Android OEMs into pre-installing Microsoft software. █
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Posted in America, Deception, Google, Patents at 10:40 am by Dr. Roy Schestowitz
Summary: Apparently, according to the patent microcosm, Google runs the world and software patents are very evil only when Google gets them
THE patent trolls’ lobby has never been consistent. It cherry-picks and habitually contradicts itself (here is one of the cherry pickers asking for help).
Generally speaking, the US “Patent Office has recently made it much more difficult to secure software patents,” to quote this article from a few days ago. It’s common knowledge now; the real media (not sites of patent law firm) talks about it. Here’s the full paragraph:
For example, drones that fly overhead and apps that access information on consumers’ smartphones both raise questions of privacy and infringement of consumers’ rights, he said. Meanwhile, the Patent Office has recently made it much more difficult to secure software patents.
“The patent trolls’ lobby has never been consistent.”The other day we saw the patent trolls’ lobby resuming its misguided witch-hunt that seeks to blame Google for all this (often because of Michelle Lee). This was soon mentioned by Lisa M. Brownlee, Benjamin Henrion, and software patents boosters who love picking on Google. See the software patents propagandist (Patent Buddy) who call it “Unbelievable!!” that “Receiving a Sequence of Symbols” is deemed to be patentable by the USPTO (not courts). They all cite a post from Dennis Crouch. It just helped demonstrate lack of quality control/oversight at the USPTO (something for PTAB to tackle perhaps) because it is granting software patents that should clearly be rejected. “In addition to its gaping abstract idea problems,” Crouch explained, “the patent claims priority to a collection of more than one hundred (100) provisional patent applications – 2004 priority date.”
“It just helped demonstrate lack of quality control/oversight at the USPTO (something for PTAB to tackle perhaps) because it is granting software patents that should clearly be rejected.”IAM too decided to poke by saying: “Perhaps @EFF could have a look at this controversial new Google patent. A candidate for Stupid Patent of the Month?” (it linked to a site of a patent troll, Dominion Harbor).
It’s this rant about Google, which other contributors (to this troll’s site) exploited to say that EFF is “the lapdog [which] will have to get clearance first from their corporate master before being allowed to pretend to bite the hand that feeds them” (as if EFF is a “lapdog” of Google).
“This is the kind of rubbish that encouraged harassment of Michelle Lee and led to her resignation.”What’s worth noting here is that the patent trolls’ lobby is happy to single out Google, attacking Google alone over software patents. So they love software patents, but deem these evil only when they’re Google’s? This is the kind of rubbish that encouraged harassment of Michelle Lee and led to her resignation. These same bullies also attempt to frame me as some kind of “Google shill”. They see “Google” in everything they don’t like!
On another day this same person complained that patents on software were being rejected. To quote: “PTAB reaches peak crazy: tells patent applicants dont bother passing Director guidelines for 101, we ignore them: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2015007596-10-24-2017-1 …”
So make up your mind, trolls (and their enablers). Are you in favour of software patents or not? Because they’re all equally ludicrous and should not be granted. █
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Posted in Deception, Europe, Patents at 8:54 am by Dr. Roy Schestowitz
The screenshot below (taken moments ago) shows how Lexology and the likes of it (law firms lobbying and/or advertising themselves) totally dominate channels of information
Summary: Coverage regarding patents in Europe is still (nearly) monopolised by the patent microcosm, i.e. the ‘industry’ that profits when many patents are granted and a lot of lawsuits get filed
LAST month we wrote about Switzerland in relation to Patent Boxes (means for dodging tax). Yesterday, Philipp Groz and Teresa Rudolph from Schellenberg Wittmer wrote two ‘articles’ about patents in Switzerland, noting that “[c]omputer programs as such are not patentable.” (the term “as such” became infamous within the EPO and caused great controversy)
When we say “two articles” we use scare quotes because actually these are two identical self-promotional posts, possibly intended to help occupy more search results pages (SEO). One is titled “Patents in Switzerland” and the other “An overview of patentability in Switzerland”. It’s all the same. Here is the part we’re interested in:
To what extent can inventions covering software be patented?
Computer programs as such are not patentable. However, computer-implemented inventions are patentable (eg, inventions involving the use of a computer, computer network or other programmable apparatus, where one or more features are realised by means of a computer program).
To what extent can inventions covering business methods be patented?
Business methods as such are not patentable. However, business methods may be patentable if they are combined with technical features.
Yesterday we wrote about a similar self-promotional piece from Keltie LLP (UK) and this morning a pseudonym which seems to be associated with the firm confronted us over it. They promote loopholes by which to mislead examiners and when people criticise them for it they just walk away, as usual…
Also published yesterday was this article from Potter Clarkson LLP (Richard Wells and David Carling to be specific).
It speaks about “inventive step”/”technical effect” at the European Patent Office (EPO) and bemoans the appeal boards “[r]aising the plausibility bar,” which is the very thing these boards exist to ensure. To quote:
In T 0488/16, the board reiterated that it is not essential that the application contains experimental data or results, provided the nature of the invention is such that it relies on a technical effect which is either self-evident or predictable or based on a conclusive theoretical concept.
Nevertheless, it is clear that it is not sufficient merely to assert that the technical problem the application purports to solve is solved. Some form of verifiable evidence is required in the application as filed.
When drafting new European patent applications, applicants should minimise the extent to which they may need to rely on post-published evidence during pre- and post-grant proceedings, bearing in mind that reliance on what is made plausible from the common general knowledge opens up questions of obviousness.
In the absence of adequate experimental results, additional effort should be put into the construction of a strong technical explanation for the purported effect which overcomes the plausibility threshold, thereby enabling the applicant later to rely on post-published evidence.
It is clear from T 0488/16 that it will not always be possible to address this issue even by severely narrowing the scope of the claims.
Great care should, therefore, be taken when considering withholding experimental evidence simply to maintain a commercial advantage.
This decision may also provide useful ammunition for opponents during oppositions. In most cases, the threat of the plausibility issue may result in the delaying of filing new applications until sufficient data become available.
As the EPO’s recent decision brings its approach closer in line with that adopted by other patent offices, most notably those in China and Japan, these choices will be familiar to practitioners handling worldwide patent portfolios.
The authors ought to know that the boards have already been marginalised and oppositions made more difficult (for various reasons). It’s all intended to ensure quick grants and many low-quality patents, which Battistelli is perpetually prepared to lie about (his greatest power is that he’s willing to lie without qualm or guilt).
One last article of interest is this one from Kevin Kabler and Andrew Whitehead. They both work for patent maximalists and software patents lobbyists, Fenwick & West LLP, who can’t help pushing towards patents on life just like they push hard for patents on abstract ideas. Here they are lobbying alongside the EPO (Georg Wimmer) and USPTO (Marjorie Moran):
At the September 21, 2017 symposium, Fenwick’s Kevin Kabler moderated the panel. Sharing insights* into patent eligibility and obviousness considerations in the U.S. were speakers Marjorie Moran (USPTO) and Andrew Whitehead (Fenwick). On the European side, our guests were Georg Wimmer (EPO) and Frances Salisbury (Partner, Mewburn Ellis, UK).
[...]
A: In Europe, make sure you’ve got some intermediates in the application and make sure your technical case is clearly stated. In the U.S., talk to your examiners. At the USPTO, you’ll find that going back and forth in writing, especially with the constantly changing landscape of patent eligibility, causes more confusion sometimes than it solves; so if your case has been picked up for examination, call your examiner at any point in time, it will help shorten your prosecution path considerably in the vast majority of cases.
Yes, the EPO has long advised people not to submit anything without a middle(wo)man which can cost up to $500 per hour. Such is the inane state of affairs and the reason people have reported abuse/sent complaints (some of which we covered here before).
Suffice to say, any financial gain for patent law firms happens at the expense of actual scientists/technologists (like patent examiners). █
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