02.17.18
Posted in America, Courtroom, Patents at 12:25 pm by Dr. Roy Schestowitz
“…patents for some technical sectors have been somewhat deprecatorily called by Mark Lemley and Carl Shapiro, a “lottery ticket”,” Neil Wilkof wrote before the weekend.
Summary: The patent ‘industry’ is hoping to persuade the highest US court to weaken the Patent Trial and Appeal Board (PTAB), for PTAB is making patent lawsuits a lot harder and raises the threshold for patent eligibility
THE patent maximalists in the United States want us to believe that the more patents are granted and the more lawsuits are filed, the greater the “innovation” will be (they just can’t help misusing such buzzwords*). The USPTO uses similar claims to justify never-ending expansion (e.g. number of granted patents). Suffice to say, that’s just a bubble.
Found via several patent maximalists such as this one was this new post in which Dennis Crouch (part of the patent microcosm) said: “The case relates to Stambler’s U.S. Patent No. 5,793,302 (authentication system and method). The patent has been asserted in dozens of cases and upheld in several court decisions prior to the PTAB finding it invalid.”
“Oil States is an anti-PTAB case which we expect to see ruled in favour of PTAB some time later this year.”This is about Stambler v Mastercard, a case which the patent maximalists will be trying to bring to the Justices. Why? Because it’s a potentially anti-PTAB case. Groups such as the EFF will hopefully submit oppositions if possible. From the petition: “The first question is substantially similar to that presented in Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, No. 16-712 (June 12, 2017), which has been argued and is awaiting decision by the Court. The second question is identical to that presented by the Petition for writ of certiorari in Celgard, LLC v. Matal (No. 16-1526) (question #2, petition pending).”
Oil States is an anti-PTAB case which we expect to see ruled in favour of PTAB some time later this year. We’ll say a lot more about PTAB tomorrow and on Monday. Oppositions to PTAB continue to slow down (losing momentum); the patent microcosm may have given up trying.
“…the barrier for (court) entry has been raised, which is probably bad news for lawyers but good news for everybody else.”The gold rush for low-quality patents was a bubble in the making. IAM has just published a puff piece/ad for its partner Clarivate, which measures companies in terms of patents, but what sorts of patents? Nowadays we see a lot of these patents imploding; PTAB and the courts do this. Unified Patents said in its Web site yesterday that it wants to educate law students on PTAB practice. Unified Patents itself extensively utilises PTAB to eliminate software patents. As they put it yesterday:
Unified Patents recently launched its 2nd public law school project to curb patent abuse against SMEs. In conjunction with University of Detroit Mercy School of Law and Brooks Kushman, Unified is working to help educate students on PTAB practice.
PTAB is, in our view, like a cleanup mechanism within the USPTO itself. “IP Edge managing director Gautham Bodepudi,” as IAM described him yesterday, suggests that “plaintiffs in US patent cases who understand the odds of victory are almost always best off settling” (not direct quote). IAM even used the word “trolls” (in relation to patent trolls):
The vast majority of patent disputes in the US settle before they end up in court. One reason for this, it is claimed, is because scared defendants are worried into making suits go away by aggressive plaintiffs (trolls) who give them a choice of settlement at one price or fighting a suit at a higher price. And, undoubtedly, there is an element of that involved.
However, there is a lot more on top. For example, looking from the plaintiff’s perspective there are also significant disincentives to take a fight all the way – especially against deep pocket corporate opponents.
According to some recent figures, about two-thirds of patent aggression bouts go unnoticed because they never reach the courts and the public might therefore not find out about them (unless a press release is issued). One way to look at it is, the aggressors are scared of the courts (or PTAB); another is, the accused/defendant is scared of litigation. Either way, the barrier for (court) entry has been raised, which is probably bad news for lawyers but good news for everybody else. █
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* The embrace of buzzwords can also be seen here. “AI” is an old hype wave resurrected (we presume by corporate marketing people along with gullible ‘journalists’ looking for popular key terms). It’s also propped up by the patent ‘industry’ in order to paint software patents as ‘novel’ (when they’re not).
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Posted in Apple, Patents, Samsung at 11:40 am by Dr. Roy Schestowitz
Related: In Apple/Samsung Patent Lawsuits Over Android/Linux, Only Patent Lawyers Are Winning (Again)
Summary: By pouring a lot of money and energy into the ‘litigation card’ Apple lost focus and it’s also losing some key cases, as its patents are simply not strong enough
THE USPTO can grant however many patents it wants, but judges are under no obligation to honour these patents. As scholars recently noted, many patents are granted erroneously in order to inflate patent numbers (this became a problem at the EPO as well in recent years).
Yesterday we stumbled upon this new report from a reliable news site which said:
A federal judge handed a minor but significant legal defeat to Apple in its long-simmering patent dispute with Samsung on Thursday evening.
U.S. District Judge Lucy Koh agreed with Samsung that the South Korea smartphone manufacturer owes Apple about $6.4 million, but not the ongoing royalties to which Apple claimed it was entitled.
The order only settles a sliver of the overall patent fight, parts of which have climbed all the way to the U.S. Supreme Court.
This is about software patents and the award is without a shadow of a doubt exceeded by the legal bills; things become a lot more expensive when these cases reach the US Supreme Court — something which may happen for design patents [1, 2]. As explained here yesterday, “patent experts [are] concerned about legal uncertainty surrounding design patent damages” in Apple v Samsung. Matt Levy, who used to write for CCIA, shows up again:
An Apple v. Samsung–far from the first, to put it that way–will be held in three months. The Engine panel discussion was not exactly a trial preview. The perspective was very high-level, including an outlook (by Matt Levy) as to what might happen after the trial. Mr. Levy believes the Federal Circuit will again take an exceedingly patentee-friendly position, and the Supreme Court will have to correct it again.
Nobody on the panel appeared to believe that the 19th-century unapportioned-disgorgement rule in 35 U.S.C. § 289 is appropriate with respect to today’s multifaceted technology products. However, the focus of the panel wasn’t on advocating new legislation, though the subject did come up. It was more about the high degree of uncertainty surrounding not just the Apple v. Samsung re-retrial but presenting an issue to the industry at large.
[...]
Mr. Duan explained that design patent litigation isn’t nearly as widespread as software patent litigation, but depending on what happens in Apple v. Samsung and other design patent damages cases, design patents could give rise to many lawsuits by patent trolls in the not too distant future.
Without a doubt, industry groups are concerned about the lack of legal certainty. One of the questions from the audience (toward the end of the YouTube video) came from the Software & Information Industry Association (SIIA).
As we pointed out earlier this month, SIIA supports PTAB. The above people are interested in improved patent quality. █
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Posted in America, Courtroom, Patents at 10:54 am by Dr. Roy Schestowitz
The original decision
Summary: In view or in light of a recent decision (excerpt above), patent maximalists who are afraid of the Patent Trial and Appeal Board (PTAB) try to paint it as inherently unjust and uncaring for facts
EARLIER this month we wrote about Berkheimer, a decision that had been distorted somewhat by the patent microcosm (as usual).
This distortion continues unfortunately (but expectedly), with sites such as Watchtroll writing about it yesterday. Dennis Crouch too panders to patent extremists with their false allegations that PTAB ignores/overlooks facts. Here is what he wrote:
Following upon its February 8 decision in Berkheimer, the Federal Circuit has again sided with the Patentee on eligibility grounds – holding here that the lower court’s judgment on the pleadings failed to consider disputed issues of material fact. Prior to this pair of cases, it was unclear whether eligibility analysis involved factual questions. Although pair of cases indicate a precedential sea-change, both opinions were written by Judge Moore and joined by Judge Taranto (Berkheimer was also joined by Judge Stoll).
Like we said before, this isn’t necessarily about Section 101 and it does not imply what many patent extremists are trying to insinuate. Managing IP framed it as a Section 101 ‘thing’ and also called it a “blockbuster” (in the headline even). It’s only a blockbuster for those who want it to be. There was nothing fascinating about it. To quote the outline:
“Whether something is well-understood, routine, and conventional to a skilled artisan at the time of the patent is a factual determination,” writes Judge Moore. Observers have taken this as a sign of the pendulum swinging back towards patent owners on Section 101
“Observers”?
They mean the patent microcosm. Then again, consider whose megaphone sites like Watchtroll, Patently-O and Managing IP really are. We might need to do some more debunkings in the future when Berkheimer is brought up. We’ll give some examples of that tomorrow and on Monday as it has become somewhat of a theme/pattern. █
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Posted in Microsoft, Patents at 9:48 am by Dr. Roy Schestowitz
Summary: The patent/litigation arms race keeps getting a little more complicated, as the ‘arms’ are being passed around to new and old entities that do nothing but shake-downs
LAST month we wrote about RPX, which might soon be bought by trolls, paying extraordinary amounts of money to patent trolls, such as Acacia (Microsoft-connected troll).
“It bought a lot of patents from Intellectual Ventures, which is more or less a Microsoft proxy.”As it turns out, based on this blog post from yesterday, RPX also buys USPTO patents from Microsoft patent trolls like Intellectual Ventures. To quote:
RPX has acquired a tranche of patent assets from the Intellectual Ventures Invention Science Fund in what is the first such deal between the firms. So far two sets of rights have shown up on the USPTO assignment database — one for 35 granted patents and applications and another for 22 — and a spokesperson for RPX confirmed that 66 assets had changed hands in total.
[...]
RPX has done plenty of deals with NPEs such as Acacia and WiLAN in the past, but hasn’t bought any assets from IV. The pair did work together on the $525 million acquisition of the Kodak portfolio in 2012 which saw IV and a group of 12 licensees including Apple, Google and Samsung stump up much of the cash for the deal. Most of those patents are now held by Dominion Harbor and as more former IV assets end up in the courts we may see more acquisitions by RPX as it looks to mitigate patent risk for its clients.
Dominion Harbor is another troll to keep an eye on. It bought a lot of patents from Intellectual Ventures, which is more or less a Microsoft proxy. It’s like an arms trade. █
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Posted in Europe, Patents at 9:14 am by Dr. Roy Schestowitz
Lots of fake news lately from those who stand to benefit from UPC (at the expense of everybody else)
Summary: The Unified Patent Court (UPC) is merely a distant dream or a fantasy for litigators; to everyone else the UPC lobby has done nothing but damage, including potentially irreparable damage to the European Patent Office, which is declining very sharply
THE UPC is not going anywhere; except away. Maybe. The EPO barely mentions it any longer and Team UPC seems to have been reduced to just Bristows (almost nobody else mentions it anymore). Just before the weekend Mathieu Klos from JUVE wrote: “UPC challenge Germany I: According to constitutional court spokesman: as yet no date for oral hearing or judgement. If there were an oral hearing, press release to be published in advance. Next Wednesday (21.02.) the Court publishes list of cases it intends to decide in 2018.”
“No word about the UPC from Team UPC for at least two days now, so we can safely assume that the UK has — once again — said no to “unitary” nonsense (patent maximalism disguised as “unity”, “EU”, “harmony”, “community” and so on).”And later on this: “UPC challenge Germany II: According to constitutional court spokesman: Court received all amicus briefs, no further institution got deadline extension. All paperwork is done, now judges can read and decide.”
No word about the UPC from Team UPC for at least two days now, so we can safely assume that the UK has — once again — said no to “unitary” nonsense (patent maximalism disguised as “unity”, “EU”, “harmony”, “community” and so on). Waste of effort is all it boils down to; they should improve actual patent quality, but there’s no money in it for lawyers. In fact, it would render many of them redundant.
“Was the gamble on UPC (massive headache for European companies but boon to litigators worldwide) worth it?”And speaking of redundancies, it’s regretful and uncomfortable to say, but a lot of EPO workers can already envision themselves losing their jobs. See some of the latest comments here.
One reader of ours told us that the “EPO plans addition of Art 53(1)(f) in Service regulations: staff can be dismissed if the exigencies of the service require an abolition of a post or a reduction of staff. To be debated during next session of AC.”
Yes, well, that’s hardly a surprise. A Portuguese friend explained to me earlier today all sorts of things about the former employer (bank) of the upcoming President of the EPO. It seems as though we’ll have lots to say in July when layoffs become a big item on the agenda. Here’s one new comment that stands out (it’s about how backlog runs out, rendering many examiners redundant and many dubious applications enshrined as patents):
The reduction in training time has become a usual fashion since the full deployment of BEST around 2005, as BEST was allegedly increasing productivity/production by 30%, the training time for search and examination was reduced by 50%.
15% time gain for search and 15% time gain for examination makes 30% time gain in total! Yes this is the level at which such a decision was taken. The real gain in production given by BEST was much lower, but in order for the pill to pass the AC, the figure had to be enlightened. But still the training time was reduced by 50%.
It is not a joke. And this was long before the Office had to endure the present tenant of the 10th floor! He simply aggravated the situation, but was helped in this endeavour by the former VP1 Minnoye.
New examiners receive an initial training as how to churn out as many communications as possible in the first year. When the replies arrive, training has already been reduced drastically, and they are left on their own…
Training time is time in which neither the trainee nor the trainer produce. Training people is considered as an extra task not belonging to the core tasks. Core tasks have absolute priority. Language training might be given, but outside the working time, whether such training is considered necessary or not.
Training, especially when it comes for highly educated people like examiners, needs to be carefully conceived. While in the past it was within DG1/DG2 i.e. in direct contact with the people at the “coal front”, it is nowadays under HR, with the famous E.B! It is thus not at all surprising that training has developed in the way shown above.
Furthermore, in order to increase the output, not all examiners will deal with oppositions. On the face of it, it might look positive and more efficient. But not only does it create two classes of examiners, whereby those not dealing with oppositions will not have a chance to go to DG3 should they wish to do so, but it takes away from the “basic” examiner that what he is dealing with is not a mere piece of paper for which he gets points, but represents an asset which has either to be defended or pushed out of the way.
It is by dealing with oppositions that examiners realise that their work is not just playing with words (original Minnoye), but represents an economic value. To me, dealing with oppositions is part of the necessary general culture needed by an examiner in order to fully comprehend his job, and not just an adjustable variable useful in getting more production out.
That some directors instruct their people not to adapt the description is not a surprise. Just a waste of time. That afterwards in litigation before a national court, the proprietor can then try to pull wool over the eyes of a judge is a nice side effect. But one day those people will also sit on the other side.
Some directors go even as far as to say that it is not even necessary to read the description, just look at the claims and at the drawings if any. Even a long time ago, oral instructions were given that if the first examiner decides to grant, the two other members of the division had to shut up.
And with all those measures examiners are meant to be respected and feel happy at work. It makes me want to puke.
See some later comments in there about the USPTO compared to the EPO. The EPO is losing its advantage and it’s the USPTO that now enjoys a rise in applications (they’re on the decline in the EPO). The emerging theme right now is how easily the EPO will soon fire employees (traditionally it was very difficult, which meant work security). What will the ‘Campinos era’ bring? Based on what we’re told, he’s hardly any better than Battistelli; some people are a lot more negative about him than we are.
What will the ‘Campinos era’ mean for patent quality? More lies about quality? Watermark’s Christian Schieber has just written about ‘anti-PACE’ — basically a belated response to rushed examination that many applicats did not want at all. As Schieber put it:
The European Patent Office (EPO), following public consultation, intends introducing a new procedural option enabling applicants of European Patent (EP) applications to request postponement of the start of substantive examination, by up to 3 years.
Currently, applicants can speed up the grant procedure of an EP application, using the Programme for Accelerated Examination of European patent applications (PACE) or other mechanisms. However, no mechanism is currently available to defer commencement of examination. For EP applications filed directly with the EPO, examination has to be requested no later than 6 months from publication of the European search report. For EP applications originating in International (PCT) applications, examination is requested at the time of regional phase entry, ie latest by 31 months from the priority date of the PCT application.
So they can delay it by “up to 3 years” (i.e. until 2021). Will there even be an EPO as we know it in 3 years? SUEPO believes that mass layoffs can begin as early as this year.
The Lawyer’s Daily, a site whose name is self-explanatory, says that CIPO (Canada) assumes EPO will last another 3 years, never mind if there are many layoffs coming soon. To quote yesterday’s article:
As of January, the Patent Prosecution Highway pilot agreement between the Canadian Intellectual Property Office (CIPO) and the European Patent Office (EPO) has been extended for another three years.
According to a statement from CIPO, the Patent Prosecution Highway allows applicants at the CIPO and EPO to obtain corresponding patents quickly and efficiently. It also enables the two patent offices to benefit from work previously done by each other, which reduces examination workload and improves patent quality.
The above is not actually news. Not really (we mentioned it before). What’s news is all sorts of worthless deals Battistelli signs in countries like Cambodia (with zero European Patents) or distant nations like Argentina with only dozens of European Patents.
We worry that Europe is losing its competitiveness in terms of patents (which we’re not inherently against). How could anyone envision/consider the attacks on the EPC and the EPO as a good thing? Was the gamble on UPC (massive headache for European companies but boon to litigators worldwide) worth it? █
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