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12.10.17

Raw: Battistelli’s Control/Domination Over the Boards of Appeal

Posted in Europe, Patents at 7:58 pm by Dr. Roy Schestowitz

Full document

DG3

Summary: An old EPO document internally voicing concerns about the lack of independence at the Boards of Appeal

Raw: Conflicts of Interest of EPO Vice-President

Posted in Europe, Patents at 7:46 pm by Dr. Roy Schestowitz

Full document

Also see: EPO Enlarged Board tells Chairman: “disobey President when necessary”

VP3

Summary: An old EPO concern regarding structural collisions and mixed loyalties

Microsoft-Connected Patent Trolls Are Increasingly Active and Microsoft is Selling ‘Protection’ (Azure Subscriptions)

Posted in Microsoft, Patents at 5:46 pm by Dr. Roy Schestowitz

“Pay us and they won’t hurt you…”

RacketSummary: There are several indications that Microsoft-connected shells, which produce no products and are threatening a large number of companies, are inadvertently if not intentionally helping Microsoft sell “indemnification” (“Azure IP Advantage,” which echoes the Microsoft/Novell strategy for collecting what they called “patent royalties” one decade ago)

FOLLOWING subjugation and infiltration, as documented here for a number of years, Microsoft has already passed many of Nokia‘s patents to trolls, took many of Novell’s patents, and may be watching Yahoo! patents landing on the laps of trolls.

Here is a pro-trolls site speaking to an RPX person who wants to turn Yahoo’s patents into an extortion racket. This is what IAM wrote some days ago:

Excalibur IP, the entity which owns a large portfolio of former Yahoo! patents, has appointed Paul Reidy as its new president, as its parent company Altaba looks to refocus efforts on monetising the stockpile of almost 4000 assets.

Reidy spent six years at RPX before leaving the defensive aggregator in early 2016 and setting up his own consulting business. Before RPX he worked for a couple of years at Intellectual Ventures and prior to that had stints at Freescale Semiconductor and Motorola. He will report into Altaba general counsel Arthur Chong and will work alongside former Broadcom IP counsel Anthony Dreux, who also recently joined Excalibur as general counsel.

[...]

As this blog recently reported Provenance Asset Group CEO Dan McCurdy suggested at an event in New York last month that the reason why the Yahoo! assets haven’t sold is that not enough companies are scared of them. Reidy conceded there was some truth in what McCurdy had to say: “If there’s no urgency, if there’s no reason for anyone to do anything, people aren’t going to go to their boss and ask them to pay for a licence if they don’t feel like they need it, so it is incumbent on us to show people that they need it.”

Notice that mention of Provenance Asset Group, which is looking to troll (sue/extort) companies using thousands of Nokia’s patents [1, 2]. This can become a marketing tool for Microsoft’s “Azure IP Advantage”, as we explained in [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12]. This patent troll was also mentioned in IAM’s latest issue, in an article that spoke of “[a] record-breaking deal between Nokia and Provenance Asset Group shows just how important multinational patent portfolios now are to the patent buy-side…”

“Notice that mention of Provenance Asset Group, which is looking to troll (sue/extort) companies using thousands of Nokia’s patents. This can become a marketing tool for Microsoft’s “Azure IP Advantage”…”A couple more articles from this issue [1, 2] glorified such strategies and said: “Whisper it softly but the signs first glimpsed in 2016 are becoming stronger – the brokered patent market in the United States may just be in the first stages of a recovery…”

What they mean by “brokered patent market” is more or less akin to trolling. We often find Microsoft in the shadows (former executives and partners) and days ago we saw the serial patent troll that’s connected to Microsoft continuing to attack everyone but Microsoft (they attack almost all of Microsoft’s rivals). That troll is known as Finjan, an Israeli company which does nothing but litigation, and its latest target is Zscaler. Its latest declaration stated: “Finjan filed a Complaint (Case No. 3:17-cv-06946), on December 5, 2017, and alleges that Zscaler’s products and services infringe at least four U.S. Finjan patents.”

“We predict that in the coming years Microsoft will try to make money by causing patent chaos everywhere while offering “indemnification” in exchange for monthly fees (i.e. ‘protection’ money).”Microsoft is meanwhile stockpiling patents on things where they have a minuscule market share and are more likely pursuing ‘protection’ money [1, 2]. We predict that in the coming years Microsoft will try to make money by causing patent chaos everywhere while offering “indemnification” in exchange for monthly fees (i.e. ‘protection’ money). The dissemination of patents to trolls is very much what we should expect for this strategy to work.

“That’s extortion and we should call it what it is. To say, as Ballmer did, that there is undisclosed balance sheet liability, that’s just extortion and we should refuse to get drawn into that game.”

Mark Shuttleworth

“Microsoft is asking people to pay them for patents, but they won’t say which ones. If a guy walks into a shop and says: “It’s an unsafe neighbourhood, why don’t you pay me 20 bucks and I’ll make sure you’re okay,” that’s illegal. It’s racketeering.”

Mark Shuttleworth

Yes, RPost is Definitely a Patent Troll and Its Software Patents Are at Risk Thanks to Alice

Posted in America, Patents at 5:00 pm by Dr. Roy Schestowitz

Packet Intelligence is also a patent troll, but Watchtroll has just called it “a patent owning entity”

Watchtroll's Gene Quinn

Summary: The latest whitewashing (or reputation-laundering) pieces from Watchtroll, which tries to justify patent-trolling activities with software patents, typically in the Eastern District of Texas

Watchtroll, a notorious site which watches after the trolls, published this ridiculous piece 5 days ago. “RPost Does Not Meet Any Definition of ‘Patent Troll’,” Bob Zeidman (Zeidman Consulting) wrote. He basically said the very opposite of what everyone keeps saying. We wrote about RPost earlier this year (two weeks ago to be precise) and last year regarding GoDaddy v RPost. Patent Buddy, who habitually boosts Watchtroll, said a few days ago: “Second Petition for Writ of Cert for RPost v GoDaddy, filed by Inventors Group Urges Urges Reconsideration of Alice: https://dlbjbjzgnk95t.cloudfront.net/0991000/991131/20171205132501171_amici%20curiae%20brief%20and%20appendix%20for%20mercado%20et%20al.pdf …”

“Watchtroll, being part of the patent trolls’ lobby, basically uses a “I’m not a crook” defense on behalf of patent trolls, as usual.”The author, Zeidman, basically explains that once upon a time RPost actually did make something. But just because a company used to operate and used to have products does not mean it cannot become a patent troll. Litigation alone means troll. Watchtroll, being part of the patent trolls’ lobby, basically uses a “I’m not a crook” defense on behalf of patent trolls, as usual. In the next post we’ll highlight Microsoft-connected trolls of these kinds.

The following day, Watchtroll being Watchtroll, it wrote about Packet Intelligence taking bunk software patents to the notorious ‘court’ of Eastern Texas. What is Packet Intelligence? Watchtroll dubs it “a patent owning entity,” which obviously means a troll. The ‘company’ has no online presence other than lawsuits and articles about lawsuits. Here is what Watchtroll wrote:

On Thursday, November 9th, a jury verdict entered in a patent infringement case in the Eastern District of Texas held that plaintiff Packet Intelligence, a patent owning entity headquartered in Marshall, TX, did not prove infringement of claims from three patents asserted against Canadian communications service solutions provider Sandvine Corporation (TSE:SVC). The jury verdict comes less than one month after Packet Intelligence won a jury verdict of infringement on the same asserted patents in a different Eastern Texas case filed against Westford, MA-based application and network performance management firm NetScout Systems (NASDAQ:NTCT).

We sadly enough have media (syndicated even by Google News) which is run by, sometimes funded by and works for patent trolls. That’s not just Watchtroll; IAM and other sites do this too.

The Latest Scams in the Patent World

Posted in Patents at 4:11 pm by Dr. Roy Schestowitz

Scams and cheats

Summary: Examples of ‘dirty laundry’ of the patent microcosm, which it understandably does not like covering (as it harms confidence in their services/advice)

THE patent microcosm does not like to cover stories which are perceived/considered to be harmful to the patent microcosm. Simply put, the patent microcosm does not do journalism; it’s all marketing and lobbying.

Lots of patent extremists, even front groups of Microsoft (see this complete list), have just decided to weigh in on a patent “scam” (not our term) which is misuse of tribal immunity in the US. But scams in the context of patents aren’t so rare; in fact, we have covered plenty over the years.

“Simply put, the patent microcosm does not do journalism; it’s all marketing and lobbying.”Days ago we saw another example of the patent microcosm’s malpractice, “based upon mishandled patent litigation”. A blogger who habitually covers ethics (David) wrote: “Interesting case for a couple of reasons: (1) if you sue for fees you likely will face a counterclaim for malpractice (it’s not always but it is often); and (2) remember that because of Gunn v. Minton, malpractice cases based upon mishandled patent litigation or prosecution will be decided by state courts. I’ve testified in state courts on patent matters and it is a different world out there.”

Another post from the same blog then alleged that in a NobelBiz case “the patent does seem fairly silly and also fraudulent.”

“These sites/blogs typically dislike it when we pick out of them tidbits/stories which they would rather not emphasise.”David has also just covered Lex Machina. “Someone signed on,” he said, “but is (literally now) having a call with, I think a client, broadcasting this conversation on the training session. Not only that, they had the training call muted, so this person couldn’t hear the poor trainer trying to get his attention to stop broadcasting confidential information. She cancelled the call as a result, perhaps saving this fool from a disciplinary violation.”

The funny thing about all this is that the above comes from Patently-O, which is itself a centerpiece of the patent microcosm. These sites/blogs typically dislike it when we pick out of them tidbits/stories which they would rather not emphasise. They want to disseminate information (selectively) and would rather not have it seen by the perceived opposition. IAM, for example, is promoting patent trolls, but in the process it also reveals to us their mischief. We’ll give some examples in our next post.

Patents Are Becoming a Welfare System for the Rich and Powerful

Posted in Patents, RAND, Standard at 3:42 pm by Dr. Roy Schestowitz

Recent: The SEP/Patent Trolls’ Lobby Insults the Victims, Calling Them “Free Riders”

Welfare of dogs

Summary: A culture of litigation and more recently the patenting of broad industry standards may mean that multi-billion dollar corporations are cashing in without lifting a finger

THE gross saturation of patents in the United States used to work in favour of patent law firms, at the expense of firms which actually produce things.

A few days ago we learned about yet another large sum (nearly 0.1 billion dollars) being passed based on a patent dispute/lawsuit that alleges “lost profits” (as if it’s corporate welfare, wherein you declare an entitlement for profits). We wrote about that subject a few weeks ago. “The lawsuit is related to WesternGeco’s patents on marine seismic surveys,” Patently-O wrote. “Adjudged infringer ION manufactures components of the system in the US, for assembly and use “on the high seas.” A jury found liability under 271(f) – exporting components of a patented invention for assembly abroad. The jury also awarded the patentee $12.5 million in reasonable royalties in addition to $93.4 million in lost profits based upon specific competitive contracts lost.”

“Since when have patents become merely a tool of ‘wholesale’ wealth passage?”So that’s even over 0.1 billion dollars (all in all). Based on potential alone, or the mere claim of potential.

Since when have patents become merely a tool of ‘wholesale’ wealth passage? Patents were not originally envisioned as such and this does not contribute to innovation, it just makes already-rich people even richer.

Now let’s look at so-called F/RAND, which ought not exist in the first place. It’s the basic idea that even industry standards are ‘owned’ in the patents sense, and we’re supposed to think that’s “fair”, “reasonable” and “non-discriminatory”. In reality, it is the opposite of all these things. It’s an unjust tax which empowers monopolies.

“It’s the basic idea that even industry standards are ‘owned’ in the patents sense, and we’re supposed to think that’s “fair”, “reasonable” and “non-discriminatory”.”A short while ago (in academic terms) Colleen Chien mentioned her new paper which can be found here. “Patent litigation is down but transactions are up,” she said. “I discuss in my new paper, “Software Patents as Currency, Not Tax on Innovation” @BerkeleyTechLJ”

Here is her abstract: “Software innovation is transforming the U.S. economy. Yet our understanding of how patents and patent transactions support this innovation is limited by a lack of public information about patent licenses and sales. Claims about the patent marketplace, for example, extolling the virtues of intermediaries like non–practicing entities, or characterizing software patent licenses as a tax on innovation tend not to be grounded in empirical evidence. This Article brings much–needed data to the debate by analyzing transactional patent data from multiple sources and reporting several novel findings. First, this study finds that, despite reductions in the enforceability of software parents and levels of patent litigation, the market for software patents has remained remarkably robust, and actually grown in the number of transacted assets. The strength of this demand appears to be driven by the defensive—not only offensive—value of software patents, the importance of software–driven business models, and bargain shopping in the acquisition of patents. Second, this Article explores the extent to which software patent transfers support the transfer of technology as opposed to supporting just the transfer of liability, or freedom from suit, with mixed results. This study finds that the majority of material software licenses reported by public companies to the SEC from 2000–2015 (N=245) support true technology transfer. However, in recent years, large numbers of software patents apparently have also been sold to avoid litigation or to provide general operating freedom, rather than to access specific technologies. Software patents transferred between public companies from 2012 and 2015 were two to three times more likely to go from an older company to a younger company, and from a higher revenue to a lower revenue public company. These findings underscore the enduring importance of software patents in supporting both technology transfer and freedom to operate. Despite the prevalence of NPEs, most patents are not bought for assertion, but to support these critical innovation functions. As such, the data support the characterization of software patents as a currency of—rather than a tax on—innovation.”

It is certainly good news that litigation is decreasing, but software patents ought not be viewed as patent-eligible anymore. A lot of these transactions Chien speaks of are akin to FRAND and it’s a form of loophole, just like the so-called ‘NPEs’ (trolls) she alludes to.

Looking at sites of the patent microcosm rather than academic papers, one finds another new lawsuit. Here is what IAM said:

Sprint, the US’s fourth largest mobile company, has launched a patent infringement lawsuit against Charter alleging that the cable TV giant infringes on 11 patents relating to voice over packet (VoP) technology.

The case was filed in Delaware district court earlier this month and marks the latest attempt by Sprint, which is owned by Japanese tech giant Softbank, to monetise its patent portfolio. As well as the suit against Charter, Sprint also filed a case using the same patents against another cable business, Mediacom Communications.

Unfortunately, VoP is — quite arguably — about software, just like VoIP (Internet Protocol, which deals with packets too). We hope that Charter will fight back and attempt to invalidate these patents (invalidating a dozen won’t be cheap and definitely not fast).

“We hope that Charter will fight back and attempt to invalidate these patents (invalidating a dozen won’t be cheap and definitely not fast).”The patent microcosm shares IAM’s blood-lust. It wants a lot of litigation or taxation as it gets a share of the loor. See this for example. Just about everything that’s bad for society Bristows will love. It is celebrating with patent trolls and maximlaists again (SPCs). It’s also lobbying for software patents, FRAND, SEP, and the UPC, which this guy too is promoting, along with the rest of that toxic bundle. “Isn’t it funny,” he asked, “that the free market loving Anglo-Saxons want judges to determine the #FRAND rate while the Germans (of all people) want the judge to provide boundaries and let the market set the #FRAND #royalty for an #SEP #Patent”

“A lot of that tax pertains mostly if not entirely to software patents.”The term “royalty” is a euphemism for tax. This new article by William New speaks of the 5G tax, which we wrote about earlier this winter.

The bottom line is, patents are becoming merely a tax in many areas. Sure, litigation is on the decline in the US (unlike — say — in China or Germany), but that in itself does not guarantee end of injustices. A lot of that tax pertains mostly if not entirely to software patents.

Unlike the Mobile Domain, When it Comes to Cars Patent Lawsuits Remain Rare

Posted in America, Patents at 2:51 pm by Dr. Roy Schestowitz

Yesterday: Phones/Mobility (Trillion-Dollar Market) May Have Become Infested and Encumbered by Aggressive, Dying Companies

Car reflexes

Summary: An optimistic note regarding the relatively low-temperature legal landscape surrounding advanced automobiles, even though patents are being amassed on software in that domain

THE overabundance of patents does not discourage stagnation. It certainly does, however, hinder innovation in fast-moving fields such as software (programming/coding). One does not require a factory to write/develop and copy/distribute code. None of this is extraordinary a claim; it’s practically taken for granted by people who actually write code. They have somewhere between little to no interest in patents. They never really asked for patent protection; knowing that their software gets copyrighted is sufficient peace of mind.

It’s no secret that patents discourage passage of simple computer code. There’s a lot of ‘red tape’ associated with code that’s claimed to be patented, e.g. Microsoft’s FAT and exFAT. This, in turn, can discourage interoperability and standardisation. Again, there’s nothing controversial in these claims. It’s obvious and it’s trivial to explain.

“There’s a lot of ‘red tape’ associated with code that’s claimed to be patented, e.g. Microsoft’s FAT and exFAT. This, in turn, can discourage interoperability and standardisation.”3 days ago Bloomberg wrote an article titled “Carmakers Want Silicon Valley’s Tech Without Its Patent Wars”. This article was soon reposted with a different headline by the Financial Post, then by the Standard-Examiner, The Record, and Toronto Star. They just modified the headline and left the body in tact. The thesis of all this is that sharing works better than not sharing. Tesla already did the right thing several years ago.

To quote the article:

As automakers turn their vehicles into app-laden computers on wheels, there’s one habit they don’t want to acquire from Silicon Valley: fighting over patents in court.

Manufacturers from BMW AG to Hyundai Motor Co. to Ford Motor Co. are trying to learn from the smartphone wars, which cost technology companies hundreds of millions of dollars in legal fees, as they prepare to revolutionize their vehicles.

“No sane automaker wants to repeat these wars, where the lawyers were the only winners,” said William Coughlin, chief executive officer of Ford Global Technologies, Ford’s intellectual property arm.

[...]

Both Toyota Motor Corp. and Ford were among the top 21 recipients of U.S. patents last year, with 1,540 and 1,530, putting them in company with Apple Inc., Qualcomm Inc., and Alphabet Inc.’s Google, according to figures compiled by the Intellectual Property Owners Association.

What this article fails to mention is that many of these patents are software patents and thus toothless, more so after Alice. We already wrote a number of articles about such patents, which impact a domain I developed software in half a decade ago.

“Let’s hope that this domain of software, where Free/Open Source software already gains niche, will remain mostly void of patent litigation.”There was another article related to this a few days ago and it said that “Automakers have ramped up their patent applications as they compete to roll out crash avoidance systems, on-board Wi-Fi and cars that can drive themselves.”

There have been very few lawsuits in this area however. Except perhaps Google's as well as some patent licensing deals (not the same as lawsuits and potentially quite amicable too).

Let’s hope that this domain of software, where Free/Open Source software already gains a niche, will remain mostly void of patent litigation.

The Federal Circuit Rules (Again) in Favour of Section 101/Alice, Koch-Funded CPIP Tries to Overturn Alice at the Supreme Court

Posted in America, Patents at 10:54 am by Dr. Roy Schestowitz

When Big Polluters too intervene in patent law at the highest levels (just like Oil States)

Fred KochSummary: The US Supreme Court’s decision on Alice continues to have a profoundly positive impact (except for trolls) and Koch-funded academics try hard to compel the US Supreme Court to reverse/override Alice (so far to no avail)

THE American patent office is the world’s “foremost” (or leader) when it comes to impact or importance. This is of great advantage to the United States and maintaining credibility/reputation/appeal for that Office is thus crucial. Introspection and reflection are essential.

The other day the corporate media (Washington Post, owned by the world’s richest person) published an article about this year’s “stupidest patents” as judged by the EFF. To quote:

This year’s stupidest patents include several glaringly obvious and unoriginal ideas, including the “invention” of automated out-of-office emails, a way to organize files on a computer, software that helps users count calories, and a disturbing trend of patents being granted on the use of routine and well-known artificial intelligence techniques.

Yet the U.S. Patent Office gave each of these protection that now lasts 20 years. Some of the patents were approved this year; in other cases, 2017 marked the first time a troll tried to enforce them, often against a wide range of users and third-party developers who were almost certainly unaware of the existence of the claimed inventions.

Nazer believes none of these patents should have been granted in the first place, having failed to overcome the basic legal requirements of being both original and non-obvious. A big part of the problem, he says, has to do with how the patent office works. “Patent examiners spend an average of only 18 hours reviewing each application,” he told me, “which is grossly inadequate.”

[...]

That’s the case with EFF’s January winner, a patent granted to CBS Interactive for software that allows users to “interact” with song lyrics by reviewing and entering annotations. Ditto for a patent, recently asserted against Uber and Lyft, that purports to cover all software that “determines if a taxi is free,” and, if so “sends the current location of the taxi to the taxi dispatch server.” And then there’s a patent granted to HP for software that sends calendar reminder messages, which the patent office reviewed for years “without ever considering any real-world products” that already existed.

It would be good for the EPO to have a similar type of scrutiny as it helps highlight and potentially weed out patents that become a liability.

“It would be good for the EPO to have a similar type of scrutiny as it helps highlight and potentially weed out patents that become a liability.”It’s worth noting that much/many if not most/all the above are software patents. Far too many such patents were granted by examiners and after Alice it seems plausible that almost all of them are bunk. We say almost because there are exceptions. The other day, for example, a patent maximalist cherry-picked and wrote that “PTAB Reversed Examiner on 101/Alice Rejection of Printing Claims–Not per se Software: https://storage.googleapis.com/pbf-prod/pdfs/2017-11-30_13584785_175081.pdf …

Usually it’s the opposite. So the above is a case of “man bites dog”. It seldom happens. For a less selective coverage regarding Alice see what the EFF’s Daniel Nazer wrote just before the weekend: “Important Federal Circuit ruling today affirms a district court fee award against a patent troll. Appeals court agreed that patent owner should have known its patent was invalid under Alice v CSL Bank. http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2442.Opinion.12-6-2017.1.PDF … [] This is important because many of the worst patent trolls (e.g., eDekka LLC, Shipping & Transit LLC) have patents that are clearly ineligible under Alice. When faced with fee motions, these trolls try to distract court by arguing 101 jurisprudence in general is too uncertain.”

“These are cowboy hat-donning non-scientists pretending to care about inventors.”Also see this other tweet that said: “Inventor Holding 12/8/17 patent claims invalid under 101, attorney fees from date of Alice decision…”

This is pretty significant.

Make no mistake, however, as this feud certainly isn’t over and the patent trolls’ lobby is still active. CCIA apparently had “lunch @ManagingIP and now we’re on to everyone’s favorite, software patents.”

Yes, software patents are still on the agenda. Rabid, frenzied lobbyists want them back. They constantly fight for that and perpetually mislead. So did Adam Mossoff from the pro-patent trolls (and overtly right wing) think tank. He wants software patents back in the US. “CPIP Scholars” (think tank for the Koch brothers) said that “CPIP Scholars @AdamMossoff & @Patent_Lund File Amicus Brief Urging Supreme Court to Fix Section 101. #Fix101 #PatentsMatter https://cpip.gmu.edu/2017/12/06/cpip-scholars-file-amicus-brief-urging-supreme-court-to-fix-section-101/ …”

“No intellectual argument can defend their position, so ignoring or even blocking people is the best they can do.”They’re aiming directly at Alice. The headline is “CPIP Scholars File Amicus Brief Urging Supreme Court to Fix Section 101″ (by “Fix” they mean subvert, water down) and there’s another misleading new article titled “Protecting intellectual property in America is harder than ever,” composed by a pro-software patents lobby which is just a tiny platform of extremists (they call themselves “US Inventor”). “This op-ed completely misconstrues multiple patent issues,” a writer from TechDirt had said about it before I told him who “US Inventor” actually was. These are cowboy hat-donning non-scientists pretending to care about inventors. They’re closely connected to Watchtroll. “IPWatchdog,” he responded. “where intellectual honesty goes to die…”

Indeed. Watchtroll (IPWatchdog) is so dishonest that when its founder lost an argument to me (over software patents, revealing that he did not know how software even works!) he decided to just block me in Twitter. No intellectual argument can defend their position, so ignoring or even blocking people is the best they can do. The same is true for the Conservative ilk of Adam Mossoff (who apparently reported me to Twitter for not agreeing).

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