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05.05.18

Microsoft/Intellectual Ventures: Still Pairing to Tax the Entire World With Patent Lawsuits and Extortion

Posted in Bill Gates, Microsoft, Patents at 4:03 pm by Dr. Roy Schestowitz

The alternative is to run to the Microsoft-offered ‘safety’: “Microsoft Azure IP Advantage” (monthly fees for perceived ‘protection’)

Bill and Nathan

Summary: Bill’s Microsoft and Nathan’s Intellectual Ventures (with 95,000 ‘IP’ ‘assets’) are still brewing a lot of legal trouble/Armageddon, distributing plenty of patents to various patent trolls which themselves file lawsuits through shells and proxies

MICROSOFT may be evil, but it is not stupid. It is malicious and incompetent, but it’s trying hard to hide it. Those who expect Microsoft to just sue the entire world using software patents haven’t been paying attention. If Microsoft does these things directly, as it did against TomTom, even Microsoft apologists like Jim Zemlin condemn it. So Microsoft is nowadays doing the same things, albeit indirectly. It’s a lot harder after several USPTO reforms, but it’s still possible, as we have just shown in our post about Finjan.

“That SCO lawsuit, by the way, is not entirely over. It’s still ongoing. It has been 15 years!”Let’s just state this upfront very, very clearly: those who expect Microsoft patent attacks to be obvious and transparent are unrealistic or aren’t paying attention. Microsoft wants to damage its competition, but it does not want to be publicly seen doing it. In the case of SCO, for instance, Larry Goldfarb (Baystar), the key investor in SCO who had been approached by Microsoft, explicitly said that “Microsoft wished to promote SCO and its pending lawsuit against IBM and the Linux operating system. But Microsoft did not want to be seen as attacking IBM or Linux.”

Bruce Perens, a key Free software luminary, once wrote that “[o]n the same day that CA blasted SCO, Open Source evangelist Eric Raymond revealed a leaked email from SCO’s strategic consultant Mike Anderer to their management. The email details how, surprise surprise, Microsoft has arranged virtually all of SCO’s financing, hiding behind intermediaries like Baystar Capital.”

That SCO lawsuit, by the way, is not entirely over. It’s still ongoing. It has been 15 years!

“So after Microsoft armed a lot of patent trolls and blackmailed its rivals directly (or indirectly, typically via these trolls) it gets itself stung a little.”It should be no secret that stockpiling patents has been Microsoft’s strategy and contingency plan for over a decade. Microsoft was very explicit about this. The company still pursues truly bizarre patents on fictional things or things that the company never made (but the competition did make, usually with Linux on board). Jonathan Greig’s new puff piece about a Microsoft patent is one such example. No bendable displays from Microsoft, only from companies that sport Linux, but guess who gets the patents? In addition, Microsoft propaganda sites (they’re pretty obvious about their agency, the names of these sites too) try to paint Microsoft as the victim. Here’s a new example titled “Microsoft-developed video games involved in patent infingement lawsuit”. So after Microsoft armed a lot of patent trolls and blackmailed its rivals directly (or indirectly, typically via these trolls) it gets itself stung a little. Pity Microsoft! To quote “on Microsoft” (a Microsoft marketing site):

Microsoft’s dearth of Xbox One exclusives seems to be lacking in comparison to its competition late into this console generation and according to Gamerant, a patent infringement can be added to the list of theories as to why.

A lawsuit filed by Infernal Technologies and Terminal Reality against Microsoft may be one of the reasons first party exclusives have yet to make their way to the console in any meaningful way.

[...]

Indeed, Terminal Reality and Infernal Technologies claim that Microsoft has known about the infringement long enough to try and concoct an end-around that involved the company filing for similar patents back in 2007. Microsoft’s gambit to seemingly sidestep Terminal Reality’s claims did not pay off as patents 6,362,822 and 7,061,488 were already accounted for and thus resulted in a rejected patent filing for the company.

Another Microsoft-friendly site belatedly wrote about the Raniere case, again painting Microsoft as the victim. To quote:

Raniere v. Microsoft Corp., Nos. 2017-1400, 2017-1401, 2018 U.S. App. LEXIS 9775 (Fed. Cir. Apr. 18, 2018) (Before Lourie, O’Malley, and Wallach, J.) (Opinion for the court, O’Malley, J.).

The Federal Circuit affirmed a district court’s award of attorney’s fees to Appellees Microsoft and AT&T (collectively, “Microsoft”). Raniere sued Microsoft for patent infringement, claiming to be the owner of the asserted patents. However, Raniere previously assigned his rights in the patents to a third party, which dissolved before suit. Raniere argued that the rights had been transferred back to him, but was unable to provide any proof. Microsoft filed a motion to dismiss for lack of standing, and the district court dismissed the case with prejudice.

One might think, based on the above, that Microsoft is the victim, but buried deep inside legal sites is this update (behind paywall) about Microsoft’s patent lawsuit against Corel, which once upon a time developed GNU/Linux, Wine, and competition to Microsoft Office.

Bonnie Eslinger makes it sound as though Microsoft now it wants Corel (a former betrayed ‘partner’) completely dead:

Microsoft told a California federal judge Thursday that because a jury found Corel willfully infringed its Office software patents, the rival should pay attorneys fees for “deterrence and compensation,” while Corel maintained it tried to settle pretrial but Microsoft wanted “their pound of flesh.”

Microsoft Corp.’s bid for attorneys fees would give the company a financial slap against Corel Corp. that it didn’t get at trial.

This is direct patent action (aggression) from Microsoft against a much smaller rival. Microsoft uses software patents.

“This is direct patent action (aggression) from Microsoft against a much smaller rival. Microsoft uses software patents.”What about indirect actions? Enter Dominion Harbor, which received literally thousands of patents from Intellectual Ventures, Microsoft’s biggest patent troll. A site of this patent troll (Dominion Harbor) — a troll that receives patents from Microsoft’s troll, Intellectual Ventures — has just said that “Microsoft Irish unit records $239.5m loss on patent-buying fund write-off” [via] and to quote Charlie Taylor:

Intellectual Ventures (IV), a private partnership that established the fund, is credited with kickstarting the secondary market in patents. The company was co-founded by former Microsoft chief technology officer Nathan Paul Myhrvold and ex-chief architect Edward Jung, in 2000. It has raised more than $7.3 billion in investor capital since it was established with cumulative licensing revenues exceeding $4.3 billion.

IV has acquired 95,000 IP assets over the years and it has nearly 30,000 IP assets in active monetisation programmes.

In addition to the $136.5 million write-off last year, Microsoft Round Island Three Limited, whose principal activity is investment trading, racked up $103.5 million in reorganisation costs in the year to the end of June 2017.

The role of Nathan Myhrvold there is noteworthy and the photo at the top depicts him with Bill Gates (they’re still very close friends). Also, just before the weekend we stumbled upon this new report about the TiVo division (Rovi Corporation), which is connected to Microsoft’s patent troll Intellectual Ventures [1, 2]. It says that its “patent licensing machine keeps [t]rolling”:

This week, TiVo announced that it had come to terms on a new intellectual property licensing deal with TV maker Vizio.

“TiVo’s intellectual property (IP) continues to provide companies around the globe with access to the technologies transforming entertainment for viewers,” said Arvin Patel, executive VP and chief intellectual property officer of TiVo division Rovi Corporation, in a statement touting the deal.

Rovi Corporation is connected — in the liaising sense — to Intellectual Ventures and thus to Microsoft. It has been suing or pressuring (e.g. pressing for preliminary injunctions) lots of companies using patents. It’s hard to measure how much money flows from where exactly (or where it winds up). One sure thing, however, is that it makes the market a lot more hostile and risky. Microsoft hopes that a high-risk market will drive more companies into its ‘embrace’, nowadays in the form of “Microsoft Azure IP Advantage”.

Post-Alice, Using Software Patents, Microsoft-Backed Patent Troll Finjan Continues Suing Microsoft’s Competitors

Posted in Microsoft, Patents at 2:52 pm by Dr. Roy Schestowitz

Will Microsoft use this lawsuit too in order to promote “Azure IP Advantage”, i.e. paying Microsoft ‘rents’ which are ‘protection’ money to guard oneself from Microsoft’s own patent trolls?

Microsoft and Finjan

Microsoft Finjan stake

Summary: Finjan’s warpath of destruction shows no signs of stopping; it’s now suing Check Point, a relatively large company that occasionally exposes issues in Microsoft’s software

EARLIER this year we repeatedly noted that in 2017 the Court of Appeals for the Federal Circuit (CAFC) had rejected software patents pretty much every single time. In early 2018, however, in spite of squashing most USPTO-granted patents of a Microsoft-connected troll, Finjan, one patent endured and it caused a lot of damage. Tens of millions of dollars in so-called ‘damages’.

Finjan has already blackmailed or sued pretty much all of Microsoft’s important rivals in the security space. It’s a grotesque troll whose former staff is disgusted too (some of them protest Finjan’s actions, citing our coverage of these actions). Law.com (ALM Media Properties, a patent maximalist) has just published this advocacy of software patents from Anthony S. Volpe (Volpe and Koenig) and Harry Vartanian. They profit from patent maximalism, so they are attempting to bypass their Supreme Court (notably Alice) and get software/abstract patents in defiance of restrictions, e.g. by fooling the courts, tricking examiners etc. Don’t expect them to mention cases from 2017; they just ignore all these, instead turning to Microsoft cases such as Enfish (going two years back in addition to the recent case of Microsoft’s troll, Finjan). To quote:

The U.S. Supreme Court’s June 2014 landmark decision Alice v. CLS Bank International, 134 S.Ct. 2347 (2014), altered the course and viability of software patents in the United States and continues to cause uncertainty over the eligibility of software for patent protection. Alice announced a multi-step test for analyzing patent eligibility, under which the basic question for any software application is, “does the application satisfy the patent eligibility conductions of 35 U.S.C. Section 101 (Section 101)?” The United States Patent and Trademark Office (USPTO) has established examiner guidelines for software patent applications and patent practitioners have become increasingly skilled at responding to USPTO Section 101 rejections. Since the Alice decision, a number of decisions by the U.S. Court of Appeals for the Federal Circuit, a number of Federal Circuit decisions have had great influence on the examination practice in software, and at least two 2018 decisions by the Federal Circuit in patent infringement appeals have found the asserted software claims to be patent eligible. In both of these patent infringement appeals, the decision hinged on the disclosure or written content of the application’s specification.

[...]

Finjan arose out of a patent infringement action that Finjan brought against Blue Coat Systems alleging infringement of four Finjan patents, including U.S. 6,154,844, that are directed to identifying and protecting against malware. Finjan, at 1302. As a result of the trial in the district court, the jury awarded Finjan $39.5 million as reasonable royalty damages, which included $24 million for Blue Coat Systems’ infringement of the ‘844 patent. In a related bench trial addressing the nonjury legal issues, the district court concluded that satisfied Section 101 the ‘844 patent contained patent-eligible subject matter.

We lack the time to do a point-by-point rebuttal, but Vartanian and Volpe basically cherry-pick a handful among many hundreds of cases. They mention only what suits their marketing agenda. This is typical. We’ll supply some more examples of this tomorrow.

What is worth noting, however, is that Finjan is still drunk on power, eager to sue just about anything that moves until courts (or PTAB) stop it.

This Microsoft-funded patent troll is trolling “big time” again. It has only been weeks since the last time (see correction and press release). What we have here is an Israeli patent troll suing an Israeli technology company, also in the US. NASDAQ wrote about this [1, 2] as follows:

Finjan Holdings Inc. (FNJN) said it has filed a patent infringement lawsuit against Check Point Software Technologies Inc. ( CHKP ) and Check Point software Technologies Ltd.

The Complaint, filed in the U.S. District Court for the Northern District of California on March 3, 2018,, alleged that the Check Point products infringed at least one or more of Finjan patents.

Microsoft must be very pleased to see its patent trolls doing a lot of damage. Microsoft is getting its money’s worth. Maybe Microsoft will use this to encourage people to pay Microsoft Azure ‘rents’ (for ‘protection’). That’s the company’s latest business model: an extortion racket called “Microsoft Azure IP Advantage”.

The European Patent Office’s Decline in Patent Quality a ‘Blessing’ in Disguise But Mostly a Curse to Apple

Posted in Apple, Europe, Patents at 2:03 pm by Dr. Roy Schestowitz

But the lawyers? They must be delighted! Mo’ money, mo’ lawsuits, no problems (for them).

Broken windows theory prison
Reference: Broken windows theory

Summary: The ‘window breakers’ that are law firms (or patent maximalists) have created a hostile and unsafe environment in which many bogus patents exist and cause fear (even among people and companies that did nothing wrong and have not infringed/stepped on any valid patent)

HAVING covered these matters for well over a decade, and having focused on the EPO for nearly 4 years now, we heard and read all sorts of stories. Some of them cannot be published (ever) because of source protection. EPO insiders tell us about low-quality EPO patents from Apple. Yes, Apple is being granted what should never have been granted. Yet examiners are compelled to grant; there’s pressure from above. It means that Apple and other large corporations now have many European Patents (EPs) that are, in effect, bogus. If challenged in court — a highly expensive process — these would perish. Even examiners know that. There’s a reason why so many of them signed this petition, which fell on deaf ears (EPO management just carries on lying about patent quality).

Florian Müller, who has studied and covered Apple’s patent affairs for a very long time (after authoring books about technology), is back to his old and almost abandoned habit of visiting patent courts across Germany. He produced some decent, exclusive coverage this way (in the distant past). A few days ago he said that “Apple and Intel [were] jointly seeking invalidation of Qualcomm patent asserted against iOS Spotlight search” in Europe. It’s no secret that nobody (except lawyers) benefits from the granting of bogus patents. Generally speaking, Apple is not benefiting but mostly suffering from the decline in patent quality at the EPO. To quote Müller:

In the previous post I mentioned today’s Qualcomm v. Apple hearing (Munich I Regional Court). Just before going to the courthouse I checked on the EPO register and found something interesting: one of the four patents-in-suit was just granted last year, and a result, it was still possible for Apple and Intel to file a timely notice of opposition with the European Patent Office…

[...]

The claims appear extremely broad to me–like the worst Nokia patents-in-suit I’ve seen, but those Nokia patents at least tended to be much older.

Not so long afterwards Müller wrote: “Went to the Munich I Regional Court, which had told me by email last week that #Qualcomm v. #Apple would be heard at 9 AM, only to find out it‘ll be 4.5 hrs. later… No such thing as PACER in this semidigital-at-best country :-( #patents [] Back to the courthouse. Maybe Presiding Judge Dr. Zigann will say something about the extreme breadth of that patent family. Normally the focus at first hearings in Munich is on infringement, not validity. [] Break at Munich I Regional Court: court is inclined to find #iOS Spotlight search in infringement of #Qualcomm #patent family, remains unconvinced of #Apple‘s non-infringement contentions, *but* voiced serious doubts about validity at *unusually early* stage of proceeding.”

He later cited Techrights in relation to this patent family. Why was the EPO doing this?

Müller then turned it into another (more detailed) blog post, at the end of which he said that “Judge Dr. Zigann noted that the Federal Court of Justice is patentee-friendly.” This is not new to us; Germany is creating a sort of ‘parallel’ Eastern Texas in Europe, just as China does in east Asia. This attracts ‘business’, albeit only for lawyers and jurists. It’s a deterrent/repellent for actual, real businesses (TC Heartland in the United States made it a huge liability to have any kind of operation anywhere near/inside the Eastern District of Texas).

Müller has been covering this case for quite some time because it involves Qualcomm and Apple, two companies he’s quite familiar with (their past also).

How would we sum up this case? An EPO failure. Bad EPs. This is good for patent trolls looking for ‘easy money’ in Germany, but what would that do to the real German economy? Does it want to thrive in a productive (e.g. manufacturing) industry or a litigation ‘industry’?

Müller wrote:

Today’s Qualcomm v. Apple hearing in Munich (see my previous post on Apple and Intel’s invalidation efforts and my tweet on the postponement of the hearing by 4.5 hours on short notice) started with a surprising move by Qualcomm: a withdrawal of several asserted claims. (Last month Qualcomm also withdrew several asserted claims from its first ITC complaint against Apple.)

Qualcomm’s German lead counsel, Quinn Emanuel’s Dr. Marcus Grosch, handed out the related motion to dismiss and explained that Qualcomm’s intent was to narrow the (in)validity issues in the case, the obvious objective being to avoid a stay of the infringement case (or of the enforcement of a potential injunction) pending resolution of any Apple-Intel nullity actions or the opposition (to a recently-granted EPO patent) I blogged about earlier today.

[...]

Judge Dr. Zigann noted that the Federal Court of Justice is patentee-friendly. Others say so, too, and it’s plausible. It may very well be that today’s United States Court of Appeals for the Federal Circuit is more balanced than the Federal Court of Justice of Germany. But there are serious issues when a patent involves search filters and is all about automation, yet an infringement is identified where a claimed filter doesn’t appear to be in play and a result depends on users organizing their data in a way that comes down to them doing the index-building or iteration that a database or search engine should perform.

Müller’s posts should be a reminder or wake-up call to the EPO. This recently-granted EPO patent is dodgy, just like many others. Intel and Apple are wealthy enough to pay lawyers to ‘intercept’ this patent in court, having probably paid a great deal of money to also research this patent. How many businesses can actually afford to do that?

It is meanwhile (as of last night) reported in US media that Qualcomm is deposing key Apple staff:

Apple Inc. executive Eddy Cue will be questioned by Qualcomm Inc.’s lawyers as part of a legal battle between the companies over billions of dollars in patents and licensing fees.

[...]

In November, Qualcomm filed a motion to depose Cue. Apple pushed back stating that Cue’s role overseeing services made him unrelated to the case. Qualcomm cited past Apple statements pinpointing Cue as one of the lead negotiators when the iPhone launched in 2007 exclusively on AT&T Inc.’s network in the U.S.

Cue, 53, is one of Apple’s highest-profile executives, having moved up through the ranks over 29 years at the company. As senior vice president for internet software and services, he frequently announces new features for Apple Music, Apple TV, and video-related services on stage at company events. He’s also Apple’s chief negotiator for digital music, video, and books and is one of Chief Executive Officer Tim Cook’s top lieutenants.

Stephen Nellis (Reuters) wrote about this too:

Qualcomm Inc can depose Apple Inc’s services chief Eddy Cue in addition to Chief Executive Tim Cook, a magistrate judge in the U.S. District Court for the Southern District of California ruled on Friday, part of the chipmaker’s effort to determine whether Apple worked with Samsung to focus regulatory scrutiny on Qualcomm.

The access to Cue is important because Qualcomm alleges talks between executives at Apple and its rival Samsung Electronics Co Ltd were central to its decision to cut off Apple from a stream of nearly $1 billion in licensing rebate payments.

What we have here are a bunch of hugely expensive patent cases from which only lawyers are profiting. Had these dubious patents not been granted (on truly laughable things, such as rounded corners), there would be no lawsuits and no thus money for lawyers.

As we noted at the very start, Apple is also culpable here, it’s not really a victim. Apple knowingly pursues laughable patents — a subject that Müller habitually jokes about. Pure gimmicks — one might say “consumerism” — patents are being spun using the buzzword “AR”, e.g. this example from a few days ago, in the form of PayPal patents [1, 2]. Here’s Apple with “VR” or “AR”, also as recently as days ago [1, 2]. Apple advocacy sites actually celebrate this nonsense. Apple may sue companies if they attempt to make products blind-friendly (or semi-blind-friendly). Is there no ethical breach here?

In other news, Apple has just been stung by trivial software patents yet again. There were many articles about it in the past week, e.g. [1, 2, 3] (“Apple Accused Of Violating Patents With iPhone X Camera”). Apple should really just join the fight against software patents; but it won’t… these patents aren’t really on the camera itself (i.e. physical) but something a lot more abstract.

Speaking of actions against Apple, Unified Patents recalls software patents which were “asserted against Apple and Visa…”

Robert Jain says these are becoming “likely invalid” after PTAB (similar to the EPO’s BoA) got involved. The patent if not patents (plural) at stake is assigned to a troll known as Universal Secure Registry:

On May 3, 2018, the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims in an IPR filed by Unified against U.S. Patent 8,577,813 owned and asserted by Universal Secure Registry, LLC, a known NPE. The ’813 patent, generally directed to authenticating a user using biometric and secret information provided to a user device, has been asserted against Apple and Visa.

Docket Navigator has meanwhile highlighted Uniloc USA, Inc. et al v Apple Inc. Uniloc has been a pretty major patent troll since Microsoft paid it (yes, lots of money from Microsoft) and nowadays it’s going after Apple with those same patents. As evidence of the fact that we’re talking about algorithms here:

The court denied plaintiff’s motion to compel production of the entire source code for two of defendant’s operating systems because plaintiff failed to establish that the additional code was relevant and proportional to the needs of the case.

If they want to see source code, does that not make it obvious that these are software patents which can be voided under Section 101/Alice? Microsoft surrendered to Uniloc well before Alice and things have changed since.

We’ll have a lot more to say about Microsoft’s own patent aggression in the next few posts. In the meantime Apple can (or ought) to just join the patent reformers and abandon the patent aggression legacy of Jobs and Cook. As for the EPO? Examiners seem to be pressured to grant patents in clear defiance of the EPC. Therein lie some of Apple’s biggest problems at the moment.

If Anyone Has Defamed the European Patent Organisation/Office (EPO) It’s Benoît Battistelli

Posted in Europe, Patents at 12:48 pm by Dr. Roy Schestowitz

EPO turned into a laughing stock which repels job applicants and issues invalid patents. If CEOs can be sued by stakeholders/shareholders for mismanagement, why can’t Battistelli?

Order of succession
Reference: Order of succession

Summary: The image of the EPO suffered heavy blows because of Benoît Battistelli, who also turned the Office into a succession (royalty-like) regime/kakistocracy which floods Europe with bogus patents

THE EPO has become a lot worse than a banana republic. At the moment we’re doing several parallel investigations into Battistelli scandals, some of which will hopefully yield additional articles next week. How on Earth did someone like Battistelli manage to become President of this high-reputation Office? People at very senior levels had warned about him before it happened. The Office was put in the hands of a sociopath, a chronic liar, a bully and a textbook example of people who must never ever receive immunity of any kind. Donald Trump is ‘small potatoes’ compared to this.

“The Office was put in the hands of a sociopath, a chronic liar, a bully and a textbook example of people who must never ever receive immunity of any kind.”Yesterday we saw this French article titled “France: Cambodia Joins The European … Patent Organisation”. It had been published on the 4th of May (somewhat belatedly) by Francois Pochart and Geoffroy Thill from August & Debouzy. This article appears to actually celebrate the banana republic of the EPO connecting with a former French colony that has zero European Patents (EPs) — a subject we wrote about as recently as late last year and earlier this year. Here is what they wrote:

The European Patent Organisation (EPO) confirms its expansion. The EPO now rallies 44 states far beyond the European borders. The EPO has indeed signed agreements with Morocoo [sic] and Tunisia and from now on with Cambodia; that one might regard as an old reminiscence of the former French protectorates from the beginning of the 20th century.

With “Morocoo [sic] and Tunisia and from now on with Cambodia” the EPO has begun looking like another INPI, not EPO as envisioned by the EPC. Need it be added that Battistelli picked a Frenchman as his successor (born in France, studied in France, mother is French)?

“The article is laughable because it’s not about the EPO but about Battistelli, as usual; it’s all about him and it’s full of quotes from him.”Battistelli seems to believe that he’s on some sort of Napoleonic expedition across Europe, having almost reached Russia already. His lobbying tours and handouts for agenda (if not votes) has been noted here for a number of years. It often seems like he’s using small countries in East Europe (with almost no EPs) to ‘secure’ votes. As of yesterday (warning: epo.org link), there’s another new example, this time from Ljubljana. It’s accompanied by a new Benoît Battistelli photo op, this time with Eva Štravs Podlogar and Vojko Toman in Slovenia. Did he do enough over there to ‘secure’ votes this time too? Misusing EPO budget? Like anyone is even keeping track of that budget (other than one of Battistelli’s French confidants)…

The article is laughable because it’s not about the EPO but about Battistelli, as usual; it’s all about him and it’s full of quotes from him. There’s also a UPC ‘plug’:

Some 200 representatives from the 36 countries gathered in Ljubljana this week at the EPO’s 2018 PATLIB conference to discuss how best to support companies and inventors through their patent information services. The event, organised annually since 1990, brings together staff of patent information centres to share their experience and knowledge in providing information and advice on intellectual property at local level.

“I am particularly pleased to see so many of Europe’s patent information specialists here in Ljubljana today,” said EPO President Benoît Battistelli, in his welcome address. “The EPO attaches great importance to supporting the PATLIB network, which serves the patent system – and the public interest – by providing much-needed patent information services, and thus fostering a favourable climate for innovation.”

[...]

Both sides welcomed the news of the ratification of the Unified Patent Court Agreement by the United Kingdom last week as a decisive step forward. The EPO President also stressed the importance of a full completion of ratification of the UPC Agreement by Slovenia, not least because Ljubljana will host one of the seats of the new court’s Mediation and Arbitration Centre.

So this is why he went there, no?

We have already explained why this Unitary Patent ‘ratification’ in the UK was mostly a stunt:

A few days ago we mentioned the latest Bristows/IAM lies about UPC (Unitary Patent). Remember that Battistelli gave over a million euros to a notorious PR agency, which later paid IAM some money for UPC lobbying. The latest nonsense from IAM is already debunked in this new comment from “Proof of the pudding” (IP Kat pushes UPC agenda, but comments do not). To quote:

I was also mulling over the reasons why a quote that I had read from Mr Johnson appears to indicate that he believes that the UPCA can come into force post-Brexit. Now I understand: his view is predicated upon the assumption that it will not be necessary to amend the UPCA (to deal with Brexit issues), as, in his view, an interpretation protocol (or statement) will do.

Mr Johnson’s view presumably takes into account of the ability, under the Vienna Convention, for parties to an Agreement to reach a new Agreement regarding interpretation. Whilst I can concede that this proposed “fix” is at least not wildly implausible, it appears to me that there is still a long way to go before any conclusions can be reached upon whether it will work.

First question: is it possible for a later Agreement to provide an interpretation that was clearly not meant in the original Agreement? For example, is it possible to proclaim in a later Agreement that, were the original Agreement says “black”, this is to be interpreted to mean “white”?

Second question: will an Agreement upon interpretation suffice if the proposal is to interpret the same term in different ways in different provisions? For example, the Gordon & Pascoe opinion proposes a number of amendments that seem impossible to replace with single (new) interpretations of terms.

Third question: is it even possible to craft an Agreement on interpretation if the original Agreement is not yet in force?

Fourth question: is an Agreement on interpretation even valid if, to all intents and purposes, it represents an amendment of the Agreement? This is especially pertinent to the UPCA, Article 82 of which prohibits amendment except in very specific circumstances after the Agreement has come into force.

Fifth question: the proposed “reinterpretation” takes a very different view on the fundamental nature of the court, namely seeing it as a court “Common to the Contracting States” (instead of “Common to the Contracting [EU] Member States”). Would this not have constitutional implications in the Contracting States? This suggests that any subsequent Agreement would need to be ratified according to the constitutional requirements of the Contracting States.

Any answers?

When one considers the steward of a system like UPC and bears in mind that it’s worse than a banana republic, talks about “constitutional requirements” and other such ‘nuisance’ don’t quite apply. The EPO breaks the law routinely and it never faces any legal consequences for it. Under Battistelli the EPO is just broken beyond repair; it has been reduced/diminished into nothing but a ‘patent-printing machine’ that’s operating out of control and without supervision. Battistelli not only destroyed the EPO’s reputation. He essentially defames his own employer while exploiting its financial resources to feed his other employers, e.g. in Saint-Germain-en-Laye. And he got a massive bonus for it! Who will pay the price? All of Europe. Many meritless lawsuits are coming.

The European Patent Organisation (EPO) Stopped Working and It’s Also the Fault of Jesper Kongstad, Not Just Benoît Battistelli

Posted in Europe, Patents at 11:58 am by Dr. Roy Schestowitz

Earlier this year: EPC Foresaw the Administrative Council Overseeing the Patent Office, Jesper Kongstad Made It “Working Together”

Battistelli and Kongstad

Summary: Jesper Kongstad, an enabler of Benoît Battistelli who along with Nicolas Sárközy supported Battistelli’s candidacy, recalled in light of new information

TODAY was supposed to be all about the USPTO, but readers are contacting us with new information; late last night (around midnight) we brought up Nicolas Sárközy again. We’re also (re)examining the patent granted to Remmal, who got the EPO/European Inventor Award last year. We’re planning to show that his European Patent (EP) probably should not have been granted at all.

Kongstad’s successor actively denies the decline in patent quality. Yes, Herr Ernst (Herrnst?) is very much like his predecessor and he too has been protecting Battistelli (so far no dissent, unlike Kongstad towards the end). Kongstad ended up joining the private sector (the patent microcosm). It happened as soon as his EPO career was finished (only days). He has since then been completely and totally off the radar although his wife and he probably still slaughter chinchillas (just more discreetly). Managing IP said at the time: “Former director of the Danish Patent and Trademark Office Jesper Kongstad has joined Zacco as an industrial advisor and investor. He will be advising on IP strategy and business growth.”

Several hours ago Managing IP published this new article by occasional site contributor Inspicos A/S (Copenhagen, Denmark, home of Kongstad, a.k.a. “Battistelli’s protector”). This firm seemed rather worried about being in any way associated with Kongstad, judging by the comment it had left on its own article. There appears to be no connection except adjacent sessions in this event from about a decade ago. See Debattørerne – Karen Krarup [PDF] and here’s a quick screenshot/section from it:

Karen Krarup

The new article from Inspicos A/S focuses on proof of “plausibility before the EPO” — something on which it says “the EPO has been more relaxed than the USPTO or SIPO” (!!!). Well, lenience at the EPO is the new normal and later today we’ll show the negative impact it is having on real, productive companies. In fact, the EPO increasingly gets it wrong on patent grants as part of a policy to lower patent quality (while constantly lying about it, for obvious reasons) and help patent trolls and their law firms. Here’s what Inspicos A/S said:

A common dilemma for inventors and applicants before the European Patent Office is whether an invention is sufficiently mature for a patent application to be filed. Although a proof-of-concept is often established at the date of filing, an inventor does not always have the opportunity to investigate every aspect of their invention before a patent is filed.

Typically, the EPO has been more relaxed than the USPTO or SIPO regarding this issue, and if an applicant at the EPO encounters an objection that a particular aspect of a claimed invention is not sufficiently disclosed, such an objection can typically be overcome by providing experimental evidence to the EPO that the aspect in question actually works as proposed. Experimental evidence of this nature can be post-published, i.e. the patent application can be supported by experiments carried out after the filing date.

EPO case law requires in principle that a patent claim should be examined for compliance with the requirements of sufficient disclosure (Article 83 EPC) on the basis of the application documents as originally filed. In practice, however, this requirement has not been strictly applied, and patents and patent applications often survive objections of lack of sufficiency, especially if post-published data can be provided.

Some recent decisions of the EPO Boards of Appeal in the pharmaceutical field have developed the existing case law around how plausible the technical effect of an invention must be at the filing date of the patent application.

Well, the EPO Boards of Appeal have not been functional, partly ‘thanks’ to Mr. Kongstad, who on behalf of his ‘boss’ Battistelli repeatedly attacked Judge Corcoron and pressured for his firing/resignation. Kongstad played a key part in terrorising the Boards of Appeal; they no longer felt safe from the wrath of Battistelli/Kongstad (a duo) and thus they lost their impartiality.

Never forget the role Kongstad played in the demise of the EPO. Kongstad may be gone by now, but his toxic legacy as well as his role in empowering Battistelli (see the document below) must not be forgotten.

Original: English [PDF]

Jesper Kongstad and Battistelli working together

Tesla’s ‘Truckload’ of ‘Open’ Patents Cannot Save It From a Nuisance Lawsuit in Arizona

Posted in Patents at 10:38 am by Dr. Roy Schestowitz

Tesla

Summary: Tesla ought to join the efforts to reform the patent system so as to maximise innovation rather than litigation; pursuing lots of patents and then calling them “open” (just a promise not to sue basically) isn’t the way to go

FOUR years ago Tesla made an announcement which would soon be emulated by other companies. They were openwashing their patents. They did not say they would not sue, but like many so-called ‘pledges’ they just stated they would restrict the circumstances under which patents would be leveraged inside the courts. They used terms like “open source”, albeit in the context of patents (monopolies) that’s a pretty wild distortion of the meaning of the term.

On the first of May (Mayday) there was some press coverage about a $2 billion patent lawsuit against Tesla. We did not cover it at the time because it didn’t seem as important as EPO scandals, but now (a weekend) is a good opportunity for catchup.

“It’s patently obvious there is no merit to this lawsuit,” a spokesperson for Tesla told The Verge. So said the following article:

Nikola Motor Company has filed a lawsuit in Arizona alleging that Tesla’s all-electric Semi infringes on the hydrogen truck startup’s patents. The lawsuit claims Tesla willfully copied these patents in creating its electric truck, and Nikola is seeking $2 billion in damages in return.

“It’s patently obvious there is no merit to this lawsuit,” a spokesperson for Tesla told The Verge. A representative for Nikola Motors said in a statement to The Verge that “[w]e are not commenting because it is in the courts. The lawsuit speaks for itself.”

[...]

Nikola says that Tesla’s truck is causing “confusion in the market,” and claims that “Tesla’s infringement has harmed Nikola’s ability to attract investors and partners because investors can now partner with Tesla to have an alternative fuel semi-truck.” The damage from this alleged infringement, per Nikola’s calculations, is “in excess of $2 billion.”

The lawsuit may have absolutely no merit, but in the patent world if some patent examiner granted bogus patents, then you still need to hire a lawyer and may lose a trivial case due to lack of funds. Racket? Maybe. And patent lawyers benefit the most from it, no matter the outcome of legal cases. This is why more people need to speak about patent maximalism and its ramifications/impact on innovation, finances etc. It’s not as simple as patent propagandists tell us.

Here is another news report about that same lawsuit:

Tesla Semi rival Nikola Motors has filed a $2 billion lawsuit against the California-based electric car and energy company. According to trucking startup, the Tesla Semi’s design infringes on the patents of the Nikola One, its hydrogen fuel cell-powered sleeper cab.

Nikola’s complaint outlines several design aspects of the Semi that were allegedly copied from the One. Among these are the Semi’s wraparound windshield, mid-entry door, front fenders, and the electric truck’s aerodynamic body. The similar drag coefficient between the Nikola One (0.37) and the Tesla Semi (0.36) was also cited as further evidence that the Elon Musk-led company copied Nikola’s design.

The lawsuit also stated that Tesla, at one point, attempted to hire Nikola’s chief engineer not long after the One was unveiled to the public. Furthermore, a cease and desist letter was sent to Tesla before the unveiling of the Semi, asking the Elon Musk-led company to hold off on the vehicle’s announcement until its patent issues with Nikola were resolved. Tesla, however, opted to ignore the request.

Censorship by patents? Axing of products that can lower pollution? Cui bono?

Incidentally, a short time before this news came out NewsWeek published this article titled “Elon Musk, Toyota and the Case for an Open Patent System” and here are some key paragraphs:

Converting ideas into tangible products has long relied on patents. Even before the U.S. Patent Act of 1790, which gave 14 years of exclusivity to whoever owned a piece of intellectual property, we have relied on a stringent code of laws to ensure that the creator of something new reaps the benefits of that idea and its execution.

The 15 people recently inducted into the National Inventors Hall of Fame have 545 patents among them. That’s a lot of light-bulb moments, many of them leading to demonstrable progress. But what if progress is also hampered by patents, as some are now saying?

Tesla CEO and SpaceX founder Elon Musk is one of those people. The vocal opponent of intellectual property law maintains they actually harm invention, and he’s acted on that belief: In 2014, Tesla promised not to sue people for using its electric car patents.

But that alone does not secure Tesla itself. To really address the underlying issues Musk et al should press for further patent reform, not mere openwashing of Tesla-assigned patents.

In the Latest EPO Official Journal (April’s Publication) Battistelli’s Next Employer is Mentioned Literally Hundreds of Times and Promoted in 20 Pages out of 75 Pages

Posted in Europe, Patents at 6:39 am by Dr. Roy Schestowitz

The EPO’s publications, including the EPO’s Web site, have deteriorated. They’re nowadays a shrine to Battistelli’s ‘Empire’.

Official Journal April 2018

Summary: The EPO seems to have devolved into a playground of Battistelli rather than anything resembling a professional patent office; the evidence of this is abundant and pretty revealing

THE USPTO is sort of connected to the US government (we covered it last month; it’s a little complicated), so there’s still some level of accountability there. The same cannot be said about Europe because of the EU’s relatively young age and the patent office which predates the EU not by much. National delegates, who can be corrupted by money (e.g. their votes 'bought'), cannot be trusted for their integrity, especially when many of them just boil down to heads of national patent offices. Staff’s lost rights are a symptom of this immaturity (no effective safeguards in place) and the high level of corruption at the EPO is almost to be expected, especially when appointing to the leadership a lot of the ‘Nicolas Sárközy pack’, as we last noted last night.

“Judging by the number of times it’s mentioned in the EPO’s Official Journal, Team Battistelli might again have (mis)used EPO resources to promote employers of Battistelli other than the EPO.”Battistelli and Campinos, two Frenchmen who have known each other for a long time, will soon swap seats in France. We’re talking about CEIPI. CEIPI staff isn’t happy; we’ve been told so. Judging by the number of times it’s mentioned in the EPO’s Official Journal, Team Battistelli might again have (mis)used EPO resources to promote employers of Battistelli other than the EPO. CEIPI is going to suffer from association with Battistelli, who in addition to his EPO scandals seems to have entangled himself in a web of scandals in French politics, as well…

Reading EPO material is no simple task. The Gazette, for example, is a massive pile of lies from start to finish (I went through the ‘torture’ of reading it this time around). This “Official Journal April 2018″ (warning: epo.org link) was released days ago, then promoted by the EPO’s online accounts. Almost half of it is CEIPI ‘spam’. Is this normal? Or a new thing? We’ve asked some people for their opinion. To me, having paged through the whole thing, the “Official Journal” (of the EPO) looks more like a CEIPI brochure/syllabus.

“Almost half of it is CEIPI ‘spam’.”Based on the archives of the Municipal Council of Saint-Germain-en-Laye, there are yet more scandals implicating Battistelli over there. The man has quite a history there and it’s not exactly flattering. What we wrote yesterday led to the following comment:

The future

the last guest post is excellent! 2 observations about it.

1. The system Battistelli is always the same whether in Munich or At Germain en Laye: foul play.

2. The small article in the press is a self fulfilling prophecy, isn’t it? I guess it was prepared and sent in advance to the journalist and that the “news” was written by Battistelli’s political group.

And you see how unreliable they’re to publish this puff piece in advance. Shame on them!

3. However there is another prophecy in this article: Battistelli brutally departing from the EPO. Not fulfilled yet although nearly 7000 individuals are hoping for it. I firmly believe that this part wasn’t a mistake but a try to give perception of independence between St Germain en Laye and Munich/EPO.

4. Last, not least: the connection between the terms Battistelli and brutality sounds familiar

“There are more interesting revelations from the archives of the Municipal Council of Saint-Germain-en-Laye,” a reader told us. This is the subject of ongoing research. Will Battistelli be held belatedly accountable like his 'padrone' Nicolas Sárközy? We shall see, but all we can do is highlight the facts; Battistelli’s diplomatic immunity expires within less than a couple of months.

“Battistelli nearly doubled the number of patent grants (number of applications remained quite steady), in effect overwhelming the system with bad or questionable grants.”EPO insiders nowdays refer to Benoît Battistelli as "the cancer" and speaking of cancer, amid the transition towards INPI-type ‘examination’ (i.e. none) patents are being granted on cancer treatments [1, 2] and Cantargia, having published this press release yesterday, is under the false impression/assumption that lack of appeals to a patent grant in a ‘patent-printing machine’ of Battistelli means the patents have merit. Here is what it wrote: “Cantargia AB (“Cantargia”) today announces that the company’s European patents covering antibody treatment of leukemia as well as solid tumours will remain in force based on the European Patent Office (“EPO”) communication that no appeals have been received during the formal appeal period.”

Battistelli nearly doubled the number of patent grants (number of applications remained quite steady), in effect overwhelming the system with bad or questionable grants. The damage this will cause to Europe if not the Office as well may take several decades to property measure/calculate (patents last decades). Battistelli will probably have died by then.

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