01.27.18
Posted in America, Asia, Patents at 12:14 pm by Dr. Roy Schestowitz
Sun rises from the east…
Summary: The migration of patent trolls and so-called ‘assertion’ activity (lawsuits/shakedown) to the Far East is a trade-off between a parasitic sector and a producing sector
“According to RPX Corp.,” said United for Patent Reform some days ago, “of the 19 patent suits filed yesterday, 15 were filed by patent trolls. That’s 79%.”
This isn’t so unusual. Sometimes it’s around 90%. RPX is collapsing and might soon be owned by patent trolls.
Thankfully, however, litigation is down overall. The numbers compiled by Docket Navigator were mentioned the other day in this post which is behind paywall:
Last year, 4,522 patent cases were filed in US district courts, according to a search of the Docket Navigator database conducted by Managing IP on January 7.
This was down 2.7% from 4,650 in 2016, which itself was down…
Litigation in the Eastern District of Texas (EDTX) is down very sharply. This in its own right is very good news. The courts there were notoriously trolls- and software patents-friendly.
If that sort of litigation goes to China, should the US worry? Good riddance. It was a yoke on companies that operate in (or are based in) the US.
To better serve its litigation ‘industry’ and pretend to be richer, China is placing more focus on patents. In fact, quite a few patent bullies go to China (RPX considers that), which has become like a new EDTX (its patent trolls included). IAM, being a proponent of patent trolls, seems to have China envy. Days ago it wrote that “China litigation may have helped IP Bridge secure wireless SEP licence with Samsung” as if it’s actually desirable.
A couple of factors made it seem that the China case against Broadcom – which was filed in the Beijing IP Court – was the one that played a decisive role in the settlement. As this blog noted at the time, the patents-in-suit had no fewer than 20 IPRs awaiting institution decisions at the time of the settlement, so the timing of the deal made little sense from a solely US perspective. Furthermore, industry research has characterised Broadcom as one of the US companies with the largest revenue exposure to the China market. According to Beijing IP Court documents, the court accepted the case against Broadcom on March 21st 2017, and on June 30th, IP Bridge had withdrawn it.
The truth of the matter is, China may be inheriting the very thing the US became notorious for. This, in turn, can discourage investment and operations in China. It’s worth noting that EDTX, in conjunction with ITC for injunctions (extra sanctions/embargo), is currently being used for alleged antitrust.. Watchtroll’s Steve Brachmann put it like this:
On January 10th, image-based barcode reading solutions provider Code Corporation of Salt Lake City, UT, announced that it had filed antitrust actions against Morris Plains, NJ-based engineering conglomerate Honeywell International (NYSE:HON) at both the U.S. International Trade Commission and in the Eastern District of Texas. Code, which is seeking an injunction on the importation and sale of barcode readers marketed by Honeywell for the healthcare industry, alleges that Honeywell engaged in a campaign to mislead distributors about the legitimacy of Code’s barcode reader products as part of an effort to monopolize that market.
Notice how neither company is based in Texas; one is from Utah and another from New Jersey (very far from Texas). Is TC Heartland going to be invoked? How about this new case “lack of personal jurisdiction”? As the Docket Navigator’s Web site put it:
The court granted a British defendant’s motion to dismiss plaintiff’s patent infringement claims for lack of personal jurisdiction under the state long-arm statute.
For a number of years — probably well over a decade — EDTX became the nuisance capital of the US. This capital, however, may be gradually outsourced to large cities in China. Great for litigators in China? No doubt. But it’s bound to hurt the Chinese economy unless the intention is to actually discourage foreign companies from operating there (there are local brands which China is hoping to promote at their expense). █
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Posted in Deception, Europe, Patents at 7:32 am by Dr. Roy Schestowitz
Bonus: CIPA is now fully embracing Battistelli, whose abuses are beneficial to Team UPC
Summary: The terrible state of the Unified Patent Court has just gotten even more terrible; The Chartered Institute of Patent Attorneys (CIPA), however, continues to tell a lot of lies and even joins hands with Battistelli to tell those lies to politicians
THE EPO‘s management is desperately looking for allies. Including IP Kat, which it already threatened for ‘daring’ to publish true information. CIPA’s leadership, which took leadership positions at IP Kat last year (relinquished earlier this year), is already posing for photos with Battistelli. CIPA is basically trying to ruin the British industry for the sake of litigation ‘business’ (to be further boosted by a UPC-like framework). Battistelli’s EPO has already begun corrupting British academia [1, 2], paying some universities to produce lobbying material with which to lobby the German court. How much more corrupt can the EPO get? Or low will it stoop?
“The EPO has already submitted its lies, no doubt bolstered by paid-for ‘academics’ (willing to sell out for some EPO budget).”According to JUVE’s editor, the “German Constitutional Court expects one more amicus brief. Date to submit it has been extended for German Bundestag to 31st of January, a spokesman confirmed to JUVE…”
So here we go. Delays again. The EPO has already submitted its lies, no doubt bolstered by paid-for ‘academics’ (willing to sell out for some EPO budget).
Thomas Adam responded to JUVE. He is a Simmons & Simmons patent litigator from Munich (much to gain financially from UPC litigation). He wrote: “No wonder since I am told that Bundestag took the decision to instruct counsel only around 12 December, 2017. Of course, they can now piggy-back on the briefs that have been published by now.”
“I personally think that CIPA has just committed reputational suicide by publicly sucking up to Battistelli.”Mr. Adam is no longer known as “UPC tracker” (he changed his Twitter username), perhaps seeing the writings on the wall (not enough to “track”). Even those people — deep down inside at least — are begrudgingly giving up on the UPC while calling “trolls” and "idiots" those with sobering messages.
“Forever delays for UPC discussions means people move on,” I told him, and “Battistelli is out soon…”
I personally think that CIPA has just committed reputational suicide by publicly sucking up to Battistelli. Watch what they wrote in Twitter (as if the Liar in Chief is a trustworthy voice of authority): “President Battistelli of @EPOorg makes it clear – #Brexit will have NO EFFECT on the work of UK patent attorneys at the EPO” (it will actually, as they themselves admitted thousands of times before).
“Brexit would mean less business from the EU. One of their key skills is the English language; after Brexit (if it happens) things change profoundly for the legal ‘industry’ that’s centered in and around London.”Who are they kidding?
Seriously.
Brexit would mean less business from the EU. One of their key skills is the English language; after Brexit (if it happens) things change profoundly for the legal ‘industry’ that’s centered in and around London. Heck, maybe Ireland will get a lot of their ‘business’. Here is what CIPA wrote in its own Web site about what it did with Battistelli:
They discussed progress made by the UK on the ratification of the Unified Patent Court Agreement and the likelihood of ratification in the coming months. CIPA and other leading UK IP organisations called on the UK Government to provide legal certainty regarding the UPC in a paper published last month
What they mean to say is that they are lobbying Sam Gyimah et al, probably telling them the usual lies about the UPC (behind closed doors). Watch what fellow patent extremists are writing, linking to this new video from CIPA. The title of the video, in its own right, is a lie: “European patent work unaffected by Brexit” (Nope! A lie!).
The shambles at the EPO are rather costly; a lot of talent has been lost, reputation was destroyed, budget was wasted corrupting media and academia, and a private pub was secretly set up for Mr. Battistelli at the expense of the Office. As one reader of ours put it some hours ago, the expenses go even further (lining the pockets of lawyers):
If one considers the sum total of the payments (reimbursements, back payments, moral damages, legal expenses etc.) to the complainants imposed by the ILO-AT to the EPO in just one session, the 125th, one realizes that it is over half a million Euros.
This is user’s money that the mis-management, arrogance and disregard of the rule of law of Mr Battistelli and his team of incompetent persons (Lutz, Bergot, Topić etc.) has wasted in unnecessary disputes with the employees of the EPO.
There’s more to come in the next sessions.
These alleged managers are a disgrace for the Organisation, which before their arrival was financially and legally healthy,
A couple of years ago, according to Dr. Glyn Moody’s detailed report, “the EPO’s spokesperson mentioned the imminent arrival of the unitary patent system as an important reason for revising the EPO’s internal rules…”
Never forget the correlation between the UPC and the attacks on EPO staff. █
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Posted in Europe, Patents at 6:45 am by Dr. Roy Schestowitz
From archetypal bulbs to genetics?
Summary: Under the guise of “advancement” or “digitisation” a patent system originally designed to cover physical inventions is now being misused to cover mere thoughts/ideas and naturally-occurring phenomena of nature, but can the EPO resist this trend?
THE EPO (Office) shot down a CRISPR patent exactly 10 days ago. This, by extension, may mean that all CRISPR patents are passé and no such patents will be granted anymore (except if the decision gets overturned by the Boards).
This situation at the EPO is noteworthy; the above patents (collectively, by extrapolation) were rejected by oppositions after an intention to grant. This is the kind of thing we warned about in the previous post. Jade Powell from Marks & Clerk has just alluded to the European Patent Convention (EPC) as follows:
Article 123(2) of the European Patent Convention states that “The European patent application or patent may not be amended in such a way that it contains subject-matter which extends beyond the content of the application as filed”. Whilst the patent law of most countries contains a similar provision, few patent offices are as strict in their application of it as the European Patent Office.
This is an issue we see crop up time and again for our clients, especially those filing from the US.
Perhaps Powell does not quite know that even the EPO pretty much abandoned the European Patent Convention; Battistelli violates it routinely. There are absolutely no consequences whenever he does so. The very fact that patents are being granted on algorithms, genetics and so on is a reminder of that. EPC? Forget about it. Buried by Battistelli. As we said earlier this month, “Dr. Derk Visser’s Book About the European Patent Convention (EPC) Explains What Battistelli Has Done“. He bypassed the whole thing.
“Perhaps Powell does not quite know that even the EPO pretty much abandoned the European Patent Convention; Battistelli violates it routinely.”Just before the weekend, Kerry S. Taylor and Brenton R. Babcock from Knobbe Martens wrote about the Broad Institute’s CRISPR patent. Hasty patent examination, as was evident in this case, may have led to wrong expectations and false hopes. Oppositions were needed to help thwart an examination error (and a crucial one because extrapolation of such patents would mean monopoly on life). To quote:
In the ongoing worldwide patent battle over the CRISPR Cas9 gene-editing technology between the Broad Institute/MIT (Zhang, et al.), and the University of California/University of Vienna (Doudna/Charpentier, et al.), Broad suffered a stunning blow at the European Patent Office (EPO) last week.
In an EPO opposition proceeding challenging several of Broad’s European patents, the EPO’s Opposition Division revoked Broad’s foundational CRISPR patent, EP2771468. This EPO decision will likely lead to the revocation of several more – but not all – of Broad’s European patents.
The EPO’s Opposition Division is facing a fast-growing pile of oppositions. It shot up to about 4,000 oppositions in the past year alone. This is crazy.
In case someone wishes to see IAM’s views on this (IAM is Battistelli’s mouthpiece), those were expressed yesterday when it said “CRISPR patent cancellation is a stark reminder of procedural IP pitfalls” (pitfalls they say).
As one might expect, the patent trolls’ lobby promotes patents on genetics. To quote:
Though this was the EPO’s first opposition ruling relating to the ground-breaking – and potentially highly-lucrative – genome editing technology, it is only the latest development in one of the many patent battles that have arisen around CRISPR in various parts of the world over recent years.
The original – and most-discussed – CRISPR dispute is taking place in the US, where the technology was first developed. There, the Broad Institute is in conflict with the University of California, Berkeley, which developed the foundational CRISPR Cas-9 methods, but only for use in bacterial cells. The west-coast entity is seeking to invalidate the Broad Institute’s US patent, whose claims, it argues, interfere with its own IP rights.
What was noteworthy to us was the EPO going further than the USPTO when it comes to patent scope (already a notorious thing).
“They want everything to become patentable. They would profit from that.”For those who haven’t been following the cult of patents on life (they have dedicated sites to push this nefarious agenda), here’s Warren D. Woessner insinuating that genetic cloning ought to become patentable (but cannot). To quote: “On January 25, a team at the Chinese Academy of Sciences published an online paper that will appear in Cell, 172, 1-7 (Feb. 8, 2018) reported the cloning of two Macaque Monkeys by Somatic Cell Nuclear Transfer. While non-primate animals such as mice, sheep (remember Dolly) and bovines have been successfully cloned, primates had not. [...] If you don’t want to read my 20-year old article, the basic cloning technology has not changed much, and it is well-summarized In re Roslin, App. No. 2013-1407 (Fed. Cir., May 8, 2014). I did two consecutive posts on this decision on May 9, 2014, questioning the rationale used to affirm a Board decision refusing a patent claim to an animal prepared by adult cell cloning. The Fed. Cir. panel found that Dolly the cloned sheep – and other cloned animals– were patent-ineligible as a product of nature that, although man-made, do not exhibit “markedly different characteristics” over its nuclear DNA donor sheep. Sound familiar?”
The Court of Appeals for the Federal Circuit (CAFC) did the right thing about Dolly, but rest assured Woessner and the likes of him will attempt to change this. They want everything to become patentable. They would profit from that. As another new example of patents on genetics, see this new report from Law 360:
A California federal jury handed Illumina Inc a $26.7 million win against genomics company Ariosa Diagnostics Inc. on Thursday, finding Ariosa infringed two of its patents protecting prenatal testing technology.
One wonders if decisions like Mayo can help overturn this. Generally speaking, as longtime readers of ours know, we oppose patents on software and on life (or risking many lives); nature is not an invention and granting monopolies associated with understanding of nature is not only obscene but also completely overlooks the original purpose of patents. █
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Posted in Europe, Patents at 5:59 am by Dr. Roy Schestowitz
Related: Team Battistelli Parties Like It’s Still 2010 (Pre-Battistelli Governance), Fails to Acknowledge Demise of EPO as Popular Employer and Instead Lies to Staff
Summary: The EPO’s brain drain is showing; the ability to properly scrutinise patent applications (using time and skills/experience) is further diminished by the obsession with “production” and “timeliness” (deadlines, Early Certainty etc. rather than “it’s ready when it’s ready”)
“We’re experiencing technical issues with submissions via Online filing & New online filing (CMS),” the EPO wrote yesterday. “The acknowledgement of receipt contains a FALSE virus warning. Filings will be processed as usual. Technicians are working to resolve the issue ASAP.” It later added: “The technical issues with submissions via Online filing & New online filing (CMS) have been resolved. We apologise for the inconvenience.”
Why did this even happen? “Technicians with experience must have left (or are leaving) the EPO as part of the exodus,” I told them. It certainly looks like technical issues are becoming more frequent (we covered some previous ones) and therein lies the risk of brain drain.
We keep hearing stories about exceptionally low bar at EPO recruitment, rushed examination, lack of expertise, new staff that overburdens/encumbers senior staff and so on. People near and inside the EPO speak about these issues. Granting patents for the sake of granting patents isn’t a good thing; it reduces the certainty associated with European Patents; courts would reject these.
AA Thornton & Co’s Stuart Greenwood wrote and published this article yesterday. It relates to what we recently wrote about PPH (legal firms linked to it, suggesting that they too agree with our assertions). We said that patent examination at the EPO is already far too hurried (leaked E-mails provide solid evidence of it). It’ll get worse over time because Battistelli has just lowered the price of patent applications (a desperate effort to inflate the number of applications after they tumbled last year). “EPO extends fast-track programmes,” Greenwood wrote, naming some of the latest additions:
The EPO have recently extended their fast-track pilot programme agreement (the Patent Prosecution Highway, or PPH) with Canada, Israel, Mexico and Singapore.
[...]
In addition to these four extended programmes, the EPO has operational PPH pilot programmes with the IP5 offices (the grouping of the world’s five largest IP offices, made up of the EPO and the patent offices of China, Japan, Korea, and the US), as well as with the national patent offices of Australia, Brazil, Colombia, Malaysia, the Philippines, Russia and the Eurasian Patent Office.
The combination of stricter time constraints and brain drain is bound to prove fatal to the reputation of such patents. Battistelli can lower the price all he wants (application revenue will decline, irrespective of the number of applications), but in the long run he is killing the EPO. This is no way to run the Office; What this EPO autocrat does not want to grasp is that replacing patent examiners with machines is about as insane as replacing university professors/researchers with a bunch of servers in the back room. It only works if you count something like numbers of words/papers/patents generated, irrespective of actual quality. █
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Posted in America, Patents at 5:28 am by Dr. Roy Schestowitz
The innovative nature typically just boils down to hardware acceleration and CPU/GPU capacity (physical)
Reference: History of the graphical user interface
Summary: While the Patent Trial and Appeal Board (PTAB) rejects a GUI patent, the Court of Appeals for the Federal Circuit (CAFC) tolerates one, necessitating a deeper technical understanding of why user interfaces aren’t inventions at all
YESTERDAY we wrote about the disaster which is patents on GUIs. The Court of Appeals for the Federal Circuit (CAFC) was responsible for this travesty after the USPTO had granted the patent. Developers generally rely on copyright for code and GUIs are often designed to accommodate users’ familiarity; there’s no need for patents there as patents in this domain would harm both users and developers. GUIs are a design ‘thing’; several months ago [1, 2] we wrote about why designs too should be covered by something like “registered design”, not patents. There are trademarks too, among other things.
Yesterday, Barker Brettell LLP said: “All of these methods of engaging customers will have various electronic user interfaces.”
But don’t grant patents on user interfaces; that would have devastating effects on the whole profession. Not just on physical interfaces but also computer interfaces (rendered on a screen).
It’s worrying to see the patent bar lowered to the point where the layout of buttons is considered an ‘invention’.
Not everyone is easily fooled by this; the technical judges at the Patent Trial and Appeal Board (PTAB), for example, say “no” to patents on GUIs. Here’s a new example:
Earlier this week, the company filed another appeal against a Patent Trial and Appeal Board ruling over one of its GUI patents.
Appeals to CAFC? Section 101 may not be most suitable for dealing with it; common sense, however, ought to tell judges that layout of buttons is mostly certainly not inventive.
The terrible decision from CAFC is still widely celebrated by shouting (ALL CAPS) patent extremists; it’s a disaster to be celebrated by the patent microcosm because this signals to them a ‘softening’ CAFC. Here is what their biggest press outlet wrote two days ago
For the second time this month, the Federal Circuit has sided with patent owners on the issue of patent eligibility under Section 101. Russ August & Kabat partner Benjamin Wang had the winning argument for Core Wireless.
But they misrepresent it somewhat; in one case it was a patent troll seeing all of its patents except one being thrown away; in the second case (GUIs) Section 101 is not even most suitable a test. What the defendant’s strategy ought to have been is, explain to these nontechnical judges that GUIs are not inventions. Because they’re not. Xerox would claim otherwise, having serially bullied companies using patents (e.g. Palm) or passed patents for trolls to do this to Linux (Red Hat and Novell a decade ago). █
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