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04.22.18

The Federal Circuit’s (CAFC) Decisions Are Being Twisted by Patent Propaganda Sites Which Merely Cherry-Pick Cases With Outcomes That Suit Them

Posted in America, Courtroom, Patents at 11:16 pm by Dr. Roy Schestowitz

Pulling a Berkheimer

Summary: The Court of Appeals for the Federal Circuit (CAFC) continues to reject the vast majority of software patents, citing Section 101 in many such cases, but the likes of Managing IP, Patently-O, IAM and Watchtroll only selectively cover such cases (instead they’re ‘pulling a Berkheimer’ or some similar name-dropping)

THE USPTO‘s examiner/examination guidelines may soon change. Ignore all the acronyms associated with that; also ignore the propaganda about it, courtesy of the patent trolls’ lobby*. We wrote a couple of rebuttals last week. Will the USPTO change the rules in lieu with a decision or two from CAFC? That partly depends on what CAFC does in the 90-day comment period/window. We’re therefore watching these things pretty closely.

Managing IP, which is a patent maximalists’ Web site, has managed to cherry-pick some patent which “survived” [sic] a Section 101 challenge at CAFC. Is it a software patent? Hell no! To quote:

In its important Vanda Pharmaceuticals v West-Ward Pharmaceuticals opinion, the Federal Circuit found the claims eligible at step two of the Mayo/Alice test whereas the district court found them eligible at step one

The headline from Managing IP says that a “patent survives Section 101 test at Federal Circuit” and as we explained many times before the word “survives” implies that the aggressor is the victim. As in, a company files a lawsuit and then pretends that its patents are being “attacked” and that it merely “survives” (not the defendant). This is gross spin or reversal of narratives; it’s so terrible a tactic which sometimes culminates in calling judges who assess legitimacy of patents “death squads” (as though they work for Stalin or Hitler).

“The headline from Managing IP says that a “patent survives Section 101 test at Federal Circuit” and as we explained many times before the word “survives” implies that the aggressor is the victim.”We certainly hope that patent administration and examination staff can see these propaganda sites for what they truly are; they attempt to come across as “professional” “journalism”, but they’re merely jingoism for a hostile agenda (involves threats, ruinous lawsuits, and forced/imposed bankruptcies).

Speaking of propaganda sites, Patently-O dresses up the propaganda as “scholarly” (clever ploy) and as we’ll show later today it’s back to PTAB bashing (the so-called ‘death squads’). Noting CAFC’s take on SCOTUS/Mayo (like the above which is more about Mayo than about Alice), Patently-O advocates patenting by “trick” (the word “trick” is actually in the headline) to bypass the law:

The claims at issue in Vanda were roughly parallel to those found unpatentable in Mayo v. Prometheus. In Mayo, representative claim 1 of the challenged Patent No. 6,355,623 was directed to treatment method that involved (a) administering a drug (6-thioguanine); and then (b) determining blood level of the drug. A low blood level (less than about 230 pmol per 8×108 red blood cells) indicates a lack of effectiveness and a need for a higher subsequent dose while a high blood level (greater than about 400 pmol per 8×108 red blood cells) indicates potential for toxicity and that the next dose should be reduced.

In finding the claim invalid, the Supreme Court unanimously held that the correlation between blood level, efficacy and toxicity was an unpatentable law of nature and that the administration and determination steps were already well known in the art and thus insufficient to transform the claim to a patent eligible invention.

In Vanda, representative claim 1 is directed to a method of treating a patient suffering from schitzophrenia by (a) determining whether the patient is genetically a poor metabolizer of the drug (CYP2D6 genotype) then (b) administering iloperidone to the patient (12-24 mg per day if good metabolizer; <12 mg per day if poor metabolizer) in order to reduce the risk of “QTc prolongation” for poor metabolizers.

First the dissent — Chief Judge Prost identified the similarity here and explained her position that “the asserted patent claims [are] directed to a law of nature.” At its crux, the invention began with the discovery of the health problems created by treating folks with lower CYP2D6 activity and recognition that a lower dose would be appropriate.

[...]

I believe that the invention should be patent eligible, the majority’s approach appears to latch onto simple patent drafting tricks as the basis for distinguishing Mayo — an approach directly rejected by the Supreme Court in Mayo.

Of course Patently-O “believe[s] that the invention should be patent eligible”; is there anything which Patently-O believes should not be patentable? Just look at the types the site hangs out with. Look at the constant glorification there of patent quantity (as if constant expansion in monopolies is blindfoldedly desirable).

“They tend to focus only on outcomes that suit them.”Michael Risch, another “scholarly” proponent of patent maximalism (he says he’s agnostic on software patents, but his past writings suggest otherwise) linked to Patently-O (an article from March) a few days ago. It’s about the Federal Circuit statistics, gathered by Jason Rantanen, himself a “scholarly” proponent of patent maximalism. To quote Professor Risch:

Jason Rantanen (Iowa) has already blogged about his new article, but I thought I would mention it briefly has well. He has created a database of data about Federal Circuit opinions.

How many of these cases ever get covered by the likes of Managing IP, Patently-O, IAM and Watchtroll? Not many. They tend to focus only on outcomes that suit them. By “them” we mean financial agenda (of theirs or of their target audience). It’s not about truth, justice, etc. Such selection bias is part of their propaganda pattern, which we’ll revisit later today in relation to the Patent Trial and Appeal Board (PTAB).
____
* Watchtroll and IAM, two sites that promote the interests of patent trolls and other patent extremists, are nowadays doing collaborations and puff pieces with each other. Here’s an example which is only hours old.

Patents Roundup: Metaswitch, GENBAND, Susman, Cisco, Konami, High 5 Games, HTC, and Nintendo

Posted in America, Patents at 10:17 pm by Dr. Roy Schestowitz

We already know who’s always winning: patent lawyers

Summary: A look at existing legal actions, the application of 35 U.S.C. § 101, and questionable patents that are being pursued on software (algorithms or “software infrastructure”)

In Maxon v Funai, as we've just noted, software patents show weakness at the highest level bar the Supreme Court. This impacts USPTO guidelines.

In relation to the Metaswitch-GENBAND patent dispute, which is a longterm issue, a little more than two years ago we said that "Patent Lawyers and Judges Don't Understand Software Development". It’s pretty clear that only lawyers would gain from this dispute. Here is a new article on this subject:

As the communication and collaboration environment grows increasingly competitive, it seems that everyone is trying to innovate. In a quest to be more disruptive, intuitive, and compelling, some companies may even accidentally step on the toes of their competitors. Unfortunately, even the slightest issue can lead to a huge storm of legal problems – particularly when patents are involved.

In January 2016, a jury in the District Court for the United States discovered that Metaswitch was infringing on approximately 7 different GENBAND patents. GENBAND – now Ribbon Communications, obviously responded to this issue quickly, working to ensure that they maintained their position as a 2015 CNBC disruptor, and leader in real-time communications.

[...]

During the trial, GENBAND showed evidence that Metaswitch products were dipping their toes into a selection of patents, including 7,990,984, 7,184,427, 7,047,561, 7,995,589, 6934,279, 6,885,658, and 6,791,971. The products that were found to infringe on GENBAND technology included those in the Integrated Soft switches collection, Session Border Controllers, Call Feature Servers and a range of Universal Media Gateways.

How many millions of dollars have already been spent (wasted) on lawyers? Also consider the longterm Arista-Cisco patent dispute, which severely damaged Arista’s business (whereas Cisco is large enough to cope; it even has its own dedicated legal/patent department). Here’s a new article about Cisco’s latest peril (Susman):

A small inventor-owned software company backed by a powerful law firm are taking on Cisco Systems Inc. over alleged patent infringement. Los Gatos, California-based NetFuel Inc. sued Cisco on Friday,

It’s a “software company,” so one can imagine that “backed by a powerful law firm” it’s just going to try to win the jackpot by asserting software patents against Cisco. Will it win or just go bankrupt trying to win (without success)? Whatever happens, the law firm will gain financially. As we stressed in our previous post, having a software patent is just the first step; defending such a patent inside a courtroom is another matter altogether, especially when fighting against large companies (like Cisco) that can appeal to the Court of Appeals for the Federal Circuit (CAFC) if not the Supreme Court, too.

Case of point?

Konami Gaming, Inc. v High 5 Games, LLC. Covered by Joseph Herndon the other day, he summarised the case as follows: “Slot Machine Patent Invalidated As Being Directed to Ineligible Subject Matter”

In more details:

The ’869 patent describes that there is provided a gaming machine arranged to display a matrix of symbols containing elements: each column of the matrix comprising a portion of a simulated rotatable reel of the symbol containing elements, and each of the symbol containing elements of at least one consecutive run of the symbol containing elements of at least one reel is caused to display an identical symbol. Preferably, the identical symbol is selected by a game controller from a subset of available symbols. Figure 1 of the ’869 patent, reproduced below, shows a gaming machine with a display having a matrix of elements and symbols comprising portions of simulated rotatable reels.

[...]

Moreover, the Court did not agree that the mere configuration of a consecutive run of symbols in one simulated reel represents something more than changing the rules of the game. A generic slot game, as noted by experts in this case, has ever changing symbols selected at random. Realigning and altering the display of symbols on simulated spinning reels is the very essence of the generic slot game. Changing how often a symbol appears and where it appears in a slot game without more is simply altering the manner of display of random symbols — i.e., changing the rules of the game. Changes to game rules of a generic slot machine using conventional technology are not patentable.

The Court noted that the ’869 patent was allowed inter alia because it disclosed an alleged unique method of random selection — virtual spinning of a notional non-visible inner reel. However, a review of the specification and asserted claims indicates that the inventor never actually provided the structure or programming for this process. Consequently, Konami cannot establish that this selection process represents an inventive concept or new technology (or selection process) directed to a generic slot game.

This is arguably a software patent (we say arguably because it’s a game on a machine) and it’s one of so many that perish, sometimes even in district courts (Nevada’s in this case), not CAFC.

Here’s a new example involving HTC (from Taiwan). In Local Intelligence, LLC v HTC America, Inc. the court (a low court, district court in California) said that “refreshing a phone’s display” is not abstract, but let’s see what CAFC says if it does. From the article:

Earlier this month, the U.S. District Court for the Northern District of California ruled that claims related to refreshing a phone’s display are patent eligible under 35 U.S.C. § 101.

§ 101 is being attempted here, but whether it’s suitable or not remains (potentially) to be decided by a higher court.

And while on the subject of patents on games, watch what Nintendo is doing. As reported several days ago, “the patent is for the software infrastructure, not for new hardware,” so it certainly sounds like software. From the article:

While some have been speculating that this hints at a new console in the vein of the 3DS, there’s nothing in the language to indicate as such — the patent is for the software infrastructure, not for new hardware, so it could just as easily be for a mobile game or some kind of fancy Switch title (or even some sort of interconnectivity between the two, à la Jackbox Party Packs).

Historically, Nintendo found itself on the receiving end of many patent lawsuits in the US. To name some recent examples that we covered:

Let’s hope Nintendo only intends to use such patents ‘defensively’ (in response to patent aggression).

In Maxon v Funai the High ‘Patent Court’ (CAFC) Reaffirms Disdain for Software Patents, Which Are Nowadays Harder to Get and Then Defend

Posted in America, Law, Patents at 9:34 pm by Dr. Roy Schestowitz

In the fight against (or to water down) 35 U.S.C. § 101 the patent microcosm coins inane if not laughable sound bites like “Berkheimer Effect”

FunaiSummary: With the wealth of decisions from the Court of Appeals for the Federal Circuit (CAFC) wherein software patents get discarded (Funai being the latest example), the public needs to ask itself whether patent law firms are honest when they make claims about resurgence of software patents by 'pulling a Berkheimer' or coming up with terms like “Berkheimer Effect”

ANOTHER week goes by and the USPTO is still rejecting software patents. Not all of them, but a lot of them. That might soon change, but not so radically. This post outlines some recent developments.

A few hours ago BGR published this report, revealing that Walmart is pursuing shoddy software patents but dresses these up as “blockchain” (the usual trick).

To quote BGR:

While the majority of the world is having fun watching Bitcoin go up and down faster than a yo-yo, companies are scrambling to get in on the craze. In some cases, that just means announcing a “pivot to Bitcoin” and watching your company die; in other instances, it means taking the underlying technology of blockchain and applying it to conventional retail.

[...]

Of course, Walmart isn’t new to the world of payment processing. It spearheaded a new payment protocol that was being developed a few years ago as a rival to Apple Pay and other mobile wallet systems, called CurrentC. That system relied on users scanning a QR code and then the cashier scanning another QR code off your phone screen, and was undeniably terrible. Luckily, the popularity of Apple Pay and Google Wallet made CurrentC DOA.

One week ago we wrote about this 'blockchaining' of patents; this is the first time we see Walmart being mentioned in this context.

It’s not hard to understand why Walmart relies on hype like blockchains. It’s one pretty trivial way to make old ideas sound more innovative. Maybe when the hype tapers off they’ll just move on to the next hype wave. Maybe they’ll just call servers “cloud”, databases “blockchain”, algorithms “AI”, and surveillance “smart”. It’s all about ‘fashion’ and marketing.

When it comes to software patents, nothing has inherently or profoundly changed. The Office and patent courts still mostly reject these. As a new example of software patents being rendered invalid (under the Mayo/Alice test and 35 U.S.C. § 101) see this short article by Mike McCandlish. It’s about Funai and Maxon:

Affirming a motion to dismiss, the Federal Circuit found claims from four patents, directed to “electronic means of increasing user control over subscription entertainment content,” patent-ineligible under the Mayo/Alice test and 35 U.S.C. § 101. Maxon, LLC, v. Funai Corporation, Inc., (Fed. Cir. April 9, 2018) (non-precedential).

[...]

In step 2, the court agreed with the district court that the claims did not provide an inventive concept. The claims recited only generic computing processes using functional language. The claimed computer elements such as “computer-readable medium,” “logic,” “processor,” and “transceiver” were also generic, with no distinguishing limitations. The ordered combination of the claimed elements did nothing to elevate them to an inventive concept.

For the Federal Circuit to do this is noteworthy, even if the decision is non-precedential. Cheryl Beise wrote that “dismissing a patent infringement suit filed by Maxon, LLC against several smart television manufacturers on the ground that the asserted patents [...] an abstract idea that lacked an inventive concept…”

She too mentioned that it’s “a nonprecedential decision.” To quote:

The federal district court in Chicago did not err in dismissing a patent infringement suit filed by Maxon, LLC against several smart television manufacturers on the ground that the asserted patents—describing an electronic means of increasing user control over subscription entertainment content for smart TVs—were invalid as directed to an abstract idea that lacked an inventive concept, the U.S. Court of Appeals for the Federal Circuit has held in a nonprecedential decision.

Watchtroll wrote about it almost 12 days late:

On Monday, April 9th, the Court of Appeals for the Federal Circuit upheld the invalidity of a series of patents asserted against the American subsidiary of Japanese consumer electronics firm Funai. The patents, owned by Illinois-based Maxon, LLC, covered electronic means for improving user control over subscription entertainment content but the claimed technologies were deemed to be invalid under 35 U.S.C. § 101, the basic statute governing the patentability of inventions. The decision was issued by a panel comprised of Chief Judge Sharon Prost and Circuit Judges Todd Hughes and Kara Stoll.

What’s noteworthy here is that the Federal Circuit sticks to its guns, no matter what the patent microcosm keeps trying to tell the public. Several days ago we saw Steven M. Jensen and Jonathon P. Western spending more money promoting loopholes; we covered this before (rebuttal), but this has just been reposted by sites of the patent microcosm [1, 2].

The patent microcosm generally likes to name-drop Berkheimer and Aatrix these days; we wrote nearly a dozen rebuttals on this topic alone (those two cases), but here we see the same thing brought up again. The patent microcosm says that an “opinion has had a particularly adverse effect on so-called “software” enabled patents; the buzz being that the very concept of “software” patents is now dead.”

They’re not dead per se, but the low chances of winning cases with software patents makes them too risky to assert and thus unworthy of pursuing in the first place.

Here is how the patent microcosm put it:

It seems that Douglas Adams has a great many fans in the universe of IP law. While he almost certainly didn’t have patent issues in mind while penning his cult classic, he was nevertheless prophetic of our current situation. In 2014, the Supreme Court issued its landmark Alice decision, which had the effect of significantly raising the bar for “patent eligibility.” The opinion has had a particularly adverse effect on so-called “software” enabled patents; the buzz being that the very concept of “software” patents is now dead. As a general proposition, that statement is simply wrong. However, it is true that many software patents—primarily those issued before the days of Alice—are now being invalidated for claiming only “abstract” ideas.

But what exactly does it mean to be “abstract”? Because of the amorphous state of patent “eligibility” standards, the decisions invalidating “abstract” patents largely lack consistency or predictability. I have listened to numerous District and Appellate Judges as well as new USPTO director Adrei Iancu suggest, or say outright, that the current standards for defining an “abstract idea” are a virtual black hole. I completely agree.

They can’t even spell Andrei Iancu right; we keep seeing law firms failing to name him correctly (variation of mistakes) while pressuring him to embrace patent maximalism.

Moving on a bit, watch Charles Bieneman trying to 'pull a Berkheimer' because he refuses to tolerate the de facto ‘death’ of software patents in the US.

He comes up with the term “Berkheimer Effect”:

A complaint for patent infringement has survived a Rule 12 motion to dismiss by making specific factual allegations to support arguments that the claims met the patent-eligibility requirements of Alice and 35 U.S.C. § 101. Sound View Innovations, LLC v. Hulu, LLC, No. LA CV17-04146 JAK (PLAx) (C.D. Cal. April 11, 2018). The patents at issue related to systems for operating and managing databases. (US Patent Nos. 5,806,062; 6,125,371; and 9,462,074.) This case is another sign that the Federal Circuit’s early-2018 decisions in Berkheimer v. HP, Inc. and Aatrix Software, Inc. v. Green Shades Software, Inc., may pose a new obstacle for parties seeing to invalidate patent claims under Section 101 – especially defendants filing motions at the pleadings stage in patent infringement lawsuits.

Bieneman wrote about another § 101 case:

Providing a common data format for “out-of-band network management” is patent-eligible, said a court in denying a motion to dismiss under FRCP 12 and 35 U.S.C. § 101. Avocent Huntsville LLC v. ZPE Systems, Inc., No. 3:17-cv-04319-WHO (N.D. Cal. March 21, 2018). In applying the Alice patent-eligibility test, the court thought that the claims of U.S. Patent Nos. 7,478,152 and 7,853,682 fell under the umbrella of cases like Enfish, LLC v. Microsoft Corp. (Fed. Cir. 2016), and were distinguishable from cases in which claims were found patent-ineligible, like In re TLI Commc’ns LLC Patent Litig. (Fed. Cir. 2016), and Digitech Image Techs., LLC v. Elecs. for Imaging, Inc. (Fed. Cir. 2014).

A short article by Mark St. Amour, posted in the same site (Bieneman’s), mentions Baker v Microsoft. This, for a change, isn’t about § 101 but about “the importance of prosecution history,” which is explained contextually as follows:

The Federal Circuit has again highlighted the importance of prosecution history for patent claim interpretation. In Baker v. Microsoft Corp., No. 2017-2357 (Fed. Cir. Apr. 9, 2018) the Federal Circuit upheld a district court claim interpretation and grant of summary judgement of non-infringement of US Patent 5,486,001.

Defendant Microsoft manufactures and sells various computing devices, peripheral devices, and software. For example, Microsoft sold a computer system that included a camera as a peripheral device.

[...]

Key to this case was the court’s reliance on the amendments to the claims and the remarks made to distinguish the amended claims from the prior art. Accordingly, such considerations that may arise during litigation of a patent should be kept in mind during prosecution, especially in the case when arguing features that distinguish from the prior art, but may not be explicitly be claimed. For example, when remarks accompanying an amendment describe the amendment as being narrower than a broadest reasonable interpretation.

If one assesses prosecution history of entities that wield software patents, a lot of these are patent trolls. It’s not exactly surprising considering the nature and breadth of patents on algorithms. With patents on medicine (chemistry), for instance, there might be just one or two large companies one can sue, due to the logistics of drug production. These companies are large enough to fight back and these companies are not likely to just shell out ‘protection’ money to trolls. There are no ‘indie’ drug producers operating from one’s basement, whereas software development is inherently different. The US patent office ought to recognise this and put an end to the lunacy which is patents on software. They’re economically unsound.

Today’s European Patent Office Works for Patent Extremists and for Team UPC Rather Than for Europe or for Innovation

Posted in Asia, Europe, Patents at 7:49 am by Dr. Roy Schestowitz

This kind of ‘vendor capture’ might help EPO foes rationalise abolition of the EPO altogether (unless the Organisation can undo/reverse this hostile ‘regime change’)

AIPPI

Summary: The International Association for the Protection of Intellectual Property (AIPPI) and other patent maximalists who have nothing to do with Europe, helped by a malicious and rather clueless politician called Benoît Battistelli, are turning the EPO into a patent-printing machine rather than an examination office as envisioned by the EPC (founders) and member states

TECHRIGHTS was never against the EPO. Never. It was against software patents in Europe, which the EPO itself should be against, as well. A decade ago when the USPTO was easily and gleefully granting software patents we were critical of the practice rather than the Office itself. Nothing has changed since, except the Office (USPTO) now makes it a lot harder to get software patents. US courts even more so!

Patent examiners certainly know these things; this is what they deal with on an everyday basis. There’s always a push towards patent maximalism, courtesy of the patent ‘industry’. Patent rationalists, however, would rather focus on actual work (development and research), not lawsuits and reading of patents they may or may not infringe.

“There’s always a push towards patent maximalism, courtesy of the patent ‘industry’. Patent rationalists, however, would rather focus on actual work (development and research), not lawsuits and reading of patents they may or may not infringe.”In recent years, especially the past 3-4 years, some technology companies found their voice and fought back against patent maximalism. It helped the cause of software developers. On the other hand or the other side there were sites like IAM, Watchtroll, and Patent Docs, which constantly amplify the ‘patent’ industry and attempt to crush technology companies. They also routinely bash technology companies. That’s how bad they have become. They don’t even pretend to care for science and technology, let alone “innovation” (however they define it). Only hours ago Patent Docs did its usual Sunday advertising of patent maximalism events and/or so-called ‘webinars’ from The Knowledge Group and others, then the Practising Law Institute (PLI). These are patent maximalists; they make money out of it. Sadly, these are the sorts of groups that now control Battistelli’s mind and steer the EPO into oblivion. National delegates from national patent offices go along with it because they themselves are typically lawyers; they make more money and derive power from patent maximalism.

Several months ago we wrote about AIPPI pushing software patents agenda, a long time after they had demanded action by Jesper Kongstad, seeing that Benoît Battistelli sent the EPO down the drain (or up in flames).

With some apparent leadership changes it now seems like AIPPI learned to love the tyrant. Benoît Battistelli meets these patent maximalists, with whom he can probably better arrange the destruction of patent quality and the Office’s viability (they profit from that). With the obligatory Battistelli photos, on Friday they published this puff piece which says: (warning: epo.org link)

High-level representatives and experts from the EPO, led by President Benoît Battistelli, met with the International Association for the Protection of Intellectual Property (AIPPI) Bureau headed by its President Hao Ma at the EPO headquarters in Munich yesterday.

Notice what they say about Cambodia, which we mentioned last week because Cambodian people/firms have zero EPs:

AIPPI also expressed great interest in the recent entry into force of the validation agreement with Cambodia, the very first Asian country to join the European patent system. Fast-moving developments in the area of international co-operation, including reinforced co-operation, were acknowledged as particularly advantageous to the user community.

So “AIPPI also expressed great interest in the recent entry into force of the validation agreement with” a country that has no EPs? Seriously?!

Like we said many times, especially last year, the EPO had become somewhat of a laughing stock. Battistelli is just riding the coattails of half a century of EPO experience and reputation; he actually causes brain drain that diminishes experience and the reputation of the EPO is so terrible that some law firms dare/find courage to publicly complain. They know he might retaliate.

In relation to Patent Prosecution Highway, which prioritises litigation like UPC does (when patent litigation comes before actual patent justice and/or proper patent examination), Uhthoff Gómez Vega & Uhthoff SC wrote an article a couple of days ago. It’s in the patent microcosm’s platform and it mentions the EPO as follows:

Even though, the European Industrial Property Laws are more identical to Mexican Industrial Property Laws there are some exceptions when using the positive results issued by EPO, e.g., lastly the EPO has been granting subject-matter containing computer programs definitively banned in Mexico and consequently the favorable results may have a restriction. Fortunately, there are some strategies to overcome such restrictions focused to adapt the claims according to what it is permissible in Mexico.

The EPO accepts EPC 2000 claims which format is “Compound X for use in a method of treating a disorder Y”. At this point, it is important to mention that IMPI should accept such claims when using the positive results of EPO, but lastly there are some Divisions within IMPI which consider such claims as exceptions of patentability. For example, in our practice and experience said EPC 2000 claims are generally acceptable by the Biotechnology Division, while the Pharmaceuticals Division has a divided opinion concerning such claims.

Fortunately, there are strategies which reduce the risk of a rejection of the positive results of EPO which are applicable in Mexico depending on the case.

Remember that in Mexico (IMPI) software patents are officially banned, but IMPI grants them anyway. This is something that they and Battistelli have in common; such are the standards he has succumbed to. For perspective, last year Mexico was associated with 59 patents. In 2016 it was 32, so Mexico is not so important to the EPO (in relative terms; the US, by comparison, had 24,960 EPs granted last year).

“AIPPI also expressed great interest in the recent entry into force of the validation agreement with Cambodia, the very first Asian country to join the European patent system.”
      –EPO
Speaking of the US, the EPO continues to promote its patent maximalism events there. In this particular event which the EPO promotes almost every day they also give tips for patenting software at the EPO. We provided an explanation in last week's long post (when these daily promotions began).

Sadly, the EPO keeps spreading myths (this one on Friday). It frames patents as something that they are not. Companies openly say that they do not read patents because reading any patent would make any future infringement willful and thus damages several times worse. Does the EPO not get that? Will the EPO keep pretending (almost every day) that it’s all about “SMEs”? In the same way that Team UPC keeps lying about the UPC, insisting that it’s really for SMEs? Vis-à-vis UPC, Dehns (part of Team UPC) will soon speak at a ‘webcast’/’webinar’ of The Knowledge Group (mentioned above). Some staff of theirs has been calling people who oppose or are sceptical about the UPC "trolls" and "idiots" and here they are bragging about their role in the EPO:

Dehns provides and implement strategic advice on a wide range of IP issues, and file more than 5,500 UK, European and international patent and trade mark applications each year; the latest figures from the EPO show that, in 2016, Dehns filed the highest number of European Patent applications among all European Patent Attorney firms.

This helps explain their lobbying for the UPC; they don’t care and can’t care any less about patent quality. They just want to ‘shove’ as many patents as possible into the EPO, irrespective of the damage these patents may cause to firms other than their clients (even totally innocent firms, targeted by wrongly-granted patents).

The EPO is Dying and Those Who Have Killed It Are Becoming Very Rich in the Process

Posted in Europe, Microsoft, Novell, Patents at 7:16 am by Dr. Roy Schestowitz

We wouldn’t be surprised if Campinos became known/remembered as the EPO’s last President (ever), just like Ron Hovsepian at Novell

French patent office
The EPO is a French patent office. When quality does not matter it’s just another French patent office (like INPI), run mostly by French people who are connected to Battistelli.

Summary: Following the footsteps of Ron Hovsepian at Novell, Battistelli at the EPO (along with Team Battistelli) may mean the end of the EPO as we know it (or the end altogether); one manager and a cabal of confidants make themselves obscenely rich by basically sacrificing the very organisation they were entrusted to serve

THE EPO is so out of control that examiners must give up any genuine ambition of doing their job properly, as per the EPC.

A trusted source wrote to tell us about Battistelli’s “last present,” saying that he now decides to “make it two times harder to refuse applications.” This comes from a reliable source.

We have been hearing and reading similar things for quite some time, but it only seems to get worse over time. The vision of endless growth is misguided and it’s bound to cause massive layoffs some time soon. The Office and by extension the Organisation is in disarray. It cannot survive like this. But Office management has tenures and can just ‘move on’ when the Office implodes (probably after management rewarding itself with lots of massive bonuses) and the Organisation is occupied/dominated by people from national patent offices, so the death of the EPO might actually be good for them in the long run.

“A trusted source wrote to tell us about Battistelli’s “last present,” saying that he now decides to “make it two times harder to refuse applications.” This comes from a reliable source.”Are we seeing the end time of the Office? Do not be misled by the constant lies from Battistelli, who according to a recent poll has single-digit approval rates among stakeholders and his choice of succession (another Frenchman, Campinos) is cause for optimism for just 1 in 7 stakeholders. The EPO, to us at least, seems like the failed organisations we covered before. In 2006 until around 2010 we wrote thousands of articles about Novell right here in this Web site; Novell quickly imploded after it had signed a submissive patent deal with Microsoft. We now see the same symptoms at the EPO, with management granting itself humongous wages, pay rises, bonuses etc. while staff gets laid off and business runs dry. Prior to 2006 I was a huge fan of Novell and SUSE, but when a manager called Ron Hovsepian took over he rapidly destroyed Novell, wrongly assuming that patents would somehow save the company; at the end they got picked up by Microsoft. Wikipedia calls CPTN “a consortium of technology companies led by Microsoft that acquired a portfolio of 882 patents as part of the sale of Novell to Attachmate” and we we wrote a lot about it. Mr. Hovsepian became a very rich man while he destroyed the company; the same is true for Battistelli right now.

“An Office which controls the Boards of Appeal (like Battistelli does) is an instrument which totally lacks oversight.”Putting aside the Novell analogy (I dedicated 4 years of my life to covering that), how about IP Kat? It doesn’t even write so much nowadays (this year) and sometimes it seems like IP Kat is on the same side as patent trolls, more so after its founder (Jeremy) left. It’s like the blog is run by Bristows (Team UPC), which now does this multi-part puff piece about a Microsoft-connected think tank called Fordham IP.

Where’s their coverage of EPO matters? EPO scandals?

The Boards of Appeal at the EPO are complaining that they are understaffed, besieged, and even abused. IP Kat‘s Eibhlin Vardy managed to write something that overlooks all this, courtesy of lawyers from Kilburn & Strode:

The EPO is not this GuestKat’s natural habitat, and so she was glad to be reminded of the consultation on the new rules of procedures of the Boards of Appeal from Katfriend Gwilym Roberts of Kilburn & Strode.

Nothing has been said about the complaints from the Boards of Appeal (just a day or two beforehand). How come? The EPO wrote: “We look forward to receiving your comments on proposed changes to our appeal procedure.”

This is the sort of fluff that IP Kat is repeating. Well, the Boards of Appeal actually complain, but this is how the EPO framed it: “2017 was a year of growth for the EPO Boards of Appeal in terms of their overall quantitative performance.”

Growth?

Battistelli has shrunk them. They complain about understaffing.

At IP Kat (the way it’s run nowadays) the comments are, as usual, better than the posts. “A friend of the Boards” who is the sole commenter wrote:

It is a bit easy to complain that the boards are slow. They are slow due to the fact that the BA are dramatically understaffed, and everybody knows the cause of this understaffing. Even if from July 2018 onwards the staffing level may slowly get back to normal, so that the backlog can be brought to a decent level, this will take years. And here the BA are not to blame!

In the last three years the backlog has grown by 500 files/year. On the 31.12 of the following years the backlog was: 7907 in 2015, 8418 in 2016 and 8 946 in 2017.

In their present version the RPBA are in place since 2005, so it cannot said that they come as a surprise. Neither the fact that any request filed at the BA should be substantiated.

The bulk of the amendments proposed is simply to codify the recent case law of the BA in matters of procedure. But one stance which is established now for many years, will not change: it is fatal to wait to go to the BA to file requests which could have been filed earlier. Nothing new under the sun!

When one looks at T 2046/14, it is a prime example of how the attitude of an applicant can be detrimental to its interests by not being pro-active. In this case, it is no surprise that the patent has been revoked as the MR, AR 1 and 2, as well as AR 6-8 were all offending Art 123(2), reason for which the patent was revoked by the OD. AR 3-5 filed when entering appeal where not defended before the OD, and were filed without any substantiation as to why they would overcome the objections under Art 123(2). AR 9 was filed during OP when the decision had fallen that none of the preceding requests were not allowable and/or not admitted. AR 10-12, totally new requests, were filed when entering appeal and no reasons where given as to why they could overcome the objections. On top of it, they were divergent.

All those late filed requests were dealt with under the present RPBA, which already have enough bite.

As far as preliminary opinions are concerned, the vast majority of BA are already informing the parties about their opinion, but I doubt that they will ever become binding, or they will have to deal with all objections raised in the procedure.

Minutes of first instance are already playing an important role. For example the BA looks at them when an alleged procedural violation is brought in. In the absence of reaction of the party to the minutes, the substantial procedural violation is generally dismissed. But in any case, the BA cannot order an amendment to the minutes, and they have never done, for the simple reason they were not present.

However, this brings in a problem. The minutes of the OP before the first instance are not part of the decision as such, and hence not open to appeal. They are actually the property of the minute writer and of the countersigning officer. You may even request an OP for attempting to amend the minutes, but it is left to the discretion of the signatories of the minutes whether they want to amend them or not. As said the BA cannot force a change to the minutes. Looking at cases, most of the requests to amend minutes are not successful and the new rule will not change a lot.

An Office which controls the Boards of Appeal (like Battistelli does) is an instrument which totally lacks oversight. This is why Battistelli can keep looting the budget/coffers, grant lots of bogus monopolies (like a drunken maniac on a money-printing or patent-printing machine), hire friends and their family members, and nobody will say or do a thing to stop him, not even when helping himself to the cookie jar ('bonuses'). Those who attempt to say something can end up like Judge Corcoran or key staff like Els Hardon — a cautionary couple of tales for sure. The EPO is dysfunctional beyond repair.

“Those who attempt to say something can end up like Judge Corcoran or key staff like Els Hardon — a cautionary couple of tales for sure.”The modus operandi at play here is a rather familiar one; we saw that not only in Novell. It is very common in financial institutions where a manager or a small bunch of managers take massive risks (at the company’s or shareholders’ expense), e.g. toxic, high-risk loans. They know it’s a bubble that will inevitably implode, causing the business to collapse. But on this road to the collapse it seems like they bring about explosive quarter-to-quarter growth, so they give themselves many successive bonuses, probably stash these somewhere offshore and when the business goes bankrupt and all the staff gets laid off they just can’t care less; nobody will go after their hidden money or demand back these bonuses. They become obscenely rich/ridiculously well-defended by expensive and well-connected law firms and probably never have to pursue a job anywhere anymore. Generally speaking, destruction of an organisation for self enrichment is a widely known phenomenon with many known examples of it. Just to be clear, the way it usually works is, a person does not intentionally strive for destruction but simply prioritises making oneself (and friends/spouse/other) rich, so if that priority/priorities necessitates destruction, then so be it. This is why accountability or impartial audit structures must exist. The EPO deprecated these under Battistelli.

Short: Just Keep Repeating the Lie (“Quality”) Until People Might Believe It

Posted in Deception, Europe, Patents at 6:41 am by Dr. Roy Schestowitz

Related to this (graphic in this page): Short: Highly Misleading and Unscientific Graphics From the EPO for an Illusion of Growth

The quality lie

Summary: Battistelli’s patent-printing bureau (EPO without quality control) keeps lying about the quality of patents by repeating the word “quality” a lot of times, including no less than twice in the summary alone (highlighted above)

Bureau of Engraving and Printing
He keeps granting or minting lots of monopolies as if the more the merrier (reference: Bureau of Engraving and Printing)

Shelston IP Keeps Pressuring IP Australia to Allow Software Patents and Harm Software Development

Posted in Australia, Patents at 4:49 am by Dr. Roy Schestowitz

Grant Shoebridge wants what’s good for Grant Shoebridge, not for Australia

Grant Shoebridge

Summary: Shelston IP wants exactly the opposite of what’s good for Australia; it just wants what’s good for itself, yet it habitually pretends to speak for a productive industry (nothing could be further from the truth)

THE corrupting influence of the patent ‘industry’ (notably law firms) is often mentioned here in relation to the USPTO. It also appears as though the patent ‘industry’ has leverage over Battistelli, which helps explain the EPO‘s suicidal (self-destructive) path. We’ll write about that later today.

“…we have a pretty good idea (and record) of who lobbies who, when, and what for.”Over the years we wrote about 200 short posts or long articles about patent policy ‘down under’, especially as it relates to software patents in New Zealand and in Australia (IPONZ and IP Australia, respectively). This means we have a pretty good idea (and record) of who lobbies who, when, and what for.

“Given the current substantial uncertainty that exists regarding how the proposed objects clause will be implemented, this draft legislation will be keenly anticipated and Shelston IP will keep you advised of developments.”
      –Grant Shoebridge
Over the past few years we’ve seen Shelston IP pushing patent extremism and software patents ‘down under’ e.g. [1, 2, 3]. They weren’t quite so active until a few years ago. Nowadays they are lobbying IP Australia to become a patent maximalist (or a ‘patent-printing machine’) rather than a patent examination office, having noticed that the commission associated with productivity advised against software patents and policy adapted accordingly. Just before the weekend Grant Shoebridge from Shelston IP had another go at it:

In this first of two “patentable subject matter” articles, I will consider IP Australia’s proposals in relation to the introduction of an objects clause and its seemingly significant potential impact on Australia’s patent eligibility threshold.

[...]

The next stage in the introduction of an objects clause into the Australian Patent Act will be the preparation of an exposure draft of the legislative amendments together with a draft explanatory memorandum on the intended purpose and interpretation of the objects clause. Given the current substantial uncertainty that exists regarding how the proposed objects clause will be implemented, this draft legislation will be keenly anticipated and Shelston IP will keep you advised of developments.

Notice that last sentence; these people actually believe the law exists just to serve them and it’s for them to decide on. How arrogant an assumption. They don’t even produce anything.

What IP Australia needs to understand (and hopefully does already) is that firms like Shelston IP are foes of productivity; they derive power and income from litigation, disputes, threats of litigation, and escalating disputes. Whatever they suggest on the subject of patents is counterproductive to productivity. In a sense, one might as well just say that IP Australia needs to listen to what Shelston IP wants and then implement the exact opposite of what Shelston IP suggests.

Is Andy Ramer’s Departure the End of Cantor Fitzgerald’s Patent Trolls-Feeding Operations and Ambitions?

Posted in America, Patents at 1:24 am by Dr. Roy Schestowitz

Cantor Fitzgerald

Summary: The managing director of the ‘IP’ group at Cantor Fitzgerald is leaving, but it does not yet mean that patent trolls will be starved/deprived access to patents

Richard Lloyd, the most extreme among the IAM bunch (patent trolls’ lobby), mentioned just before the weekend that Andy Ramer had left Cantor Fitzgerald, a major Wall Street brokerage house that lost 658 of its 960 employees when the World Trade Center was destroyed in the Saudis-led terror attacks.

Tough time for patent trolls? Certainly. As a reminder, they attempted a patent auctioning platform, which is typically a venue for trolls to grab ‘orphaned’ patents to be ‘monetised’ (by blackmail). There’s even this patent titled “Process and apparatus for conducting auctions over electronic networks” which cites US5774880A and US5905974A from Cantor Fitzgerald (source: USPTO).

Here’s what Lloyd wrote:

Andy Ramer, who was one of the driving forces behind the Ocean Tomo patent auctions in the 2000s, has left Cantor Fitzgerald after a little over four years at the investment giant, where he was managing director of the IP group. Ramer is not moving to another position, though IAM understands he is keen to remain in the IP sector. Given the strong entrepreneurial streak he has demonstrated over a number of years, it would not be a surprise if he started his own business. Ramer joined Cantor Fitzgerald in 2013, initially focusing on launching an auction platform.

These auctions are a terrible thing; it’s how active patent trolls like Dominion Harbor get patents from massive trolls such as Intellectual Ventures. We need to ensure all these Microsoft-connected trolls go out of business and stop blackmailing companies. One step towards that is ensuring that the facilitators, potentially Cantor Fitzgerald too, fail miserably or exit this so-called ‘market’. Patents are not a commodity to be traded or sold unless we come to accept the mythology that patents are “property”, “assets”, “rights” etc. (they're actually monopolies and when passed around misuse/abuse becomes likely).

Ramer is no stranger to Microsoft-connected patent trolls. He presented alongside with several of them (e.g. Conversant/MOSAID and Finjan) 4 years ago at the “IP Dealmakers Forum”. Ramer was on the first panel. He was quoted as telling a bunch of patent trolls and troll feeders: “In the old days you were getting deals where big checks were written up front, which huge backends [...] the calculus has changed. [You] spend a lot of money to get to the pot of gold at the end I’m not going to pay very much.”

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