05.13.18

The Supreme Court’s SAS Decision and the Race/Campaign to Undermine PTAB With Iancu’s Help

Posted in America, Courtroom, Patents at 11:54 pm by Dr. Roy Schestowitz

Recent: The Patent Trolls’ Lobby (IAM) Already Pressures Andrei Iancu, Inciting a USPTO Director Against PTAB

Speed Bump

Summary: As one might expect, people who profit from patent litigation are trying to stop or at least curtail/slow down the Patent Trial and Appeal Board (PTAB), whose primary function is preventing frivolous patent lawsuits by annulling improperly-granted patents (typically those that are actively being used to issue spurious threats)

AS the previous post noted, Oil States is being forgotten about and it’s no accident. It’s intentional. The general idea is to leave behind anything which legitimises PTAB and instead promote anti-PTAB clauses and cases. The USPTO seems cooperative with the latter agenda, especially with Iancu in charge. Add to all this a front group (BIO) or two and it doesn’t look particularly encouraging. The PTAB-hostile BIO had an “International Convention” advertised 24 hours ago. Guess what’s on the agenda… there’s also this upcoming ‘webinar’ on divided infringement, advertised 24 hours ago as well.

“Lawyers can ‘clock’ more time (time is money, billing) and PTAB won’t manage to deal with as many petitions.”Yesterday we wrote about pharmaceutical patent lawsuits soaring in Delaware and days ago we found this new report, which is titled “Delaware District Dismisses BPCIA ‘Private Right’ Claim; Says Controversy Not Sufficiently Immediate” (neither private nor a right, just like patents). As we shall recall in our next post, pharmaceutical patent litigants nowadays go extremely far to challenge courts or tribunals — to the point of resorting to “scams”. Things have gotten really dirty. In Promptu Systems Corporation v Comcast Corporation et al, as Docket Navigator noted the other day, the “Plaintiff’s Former Officer and Lead Inventor Disqualified as Consultant for Defendant” (conflict of interest is clear here). To quote:

The court granted plaintiff’s motion to disqualify plaintiff’s former officer/lead inventor of the patents-in-suit from consulting with defendant on non-confidential matters.

Anyway, it’s getting hard to challenge PTAB or win patent cases in US courts. That’s mostly because so many US-granted patents should never have been granted in the first place. The tactics among the litigation industry nowadays revolve around smearing PTAB and, as we noted yesterday, smearing the high courts as well. Again, this is really, really dirty.

An article by David M. Maiorana (Jones Day) recently (last week) recalled the SAS case and said this:

On April 24, 2018, the U.S. Supreme Court issued its decision in SAS Institute Inc. v. Iancu, where the Court held that the Patent Trial and Appeal Board (PTAB) must issue a final written decision as to any patent claim challenged by an IPR petitioner. Just two days later, the PTAB issued written guidance on the impact of the SAS decisions on AIA trial proceedings.

[...]

The SAS decision has rapidly changed practice before the PTAB. Practitioners must closely watch for future changes. The guidance notes that the PTAB will continue to assess the impact of the SAS decision and will provide further guidance in the future if appropriate. Jones Day will continue to monitor the situation and will provide further updates in this blog.

What about Oil States? It was by far more important a decision. As a reminder, the patent microcosm tries very hard to distract from it. See our previous posts on this matter:

Also obsessing over SAS were the patent maximalists of Patently-O, who have been trying to slow PTAB down for well over a year and nowadays promote Droplets v Iancu. The agenda is very clear to see. To quote Dennis Crouch’s latest:

Although non-precedential, Valmont Indus. v. Lindsay Corp (Fed. Cir. 2018) appears to be the first post-SAS Federal Circuit opinion involving a partially-initiated inter partes review (IPR) proceeding.

In its IPR petition, Lindsay challenged all 18 claims of Valmont’s U.S. Patent No. 7,003,357. The PTAB instituted, but only to claims 1-15 and 17-18 — the case against Claim 16 was not strong enough. In its final decision, the PTAB found the claims obvious except for claim 11 and, of course claim 16 (whose validity was not tried).

So PTAB reached the same conclusion, albeit more slowly. The patent microcosm is just trying to make life harder for PTAB. Iancu seems rather friendly towards this agenda. Lawyers can ‘clock’ more time (time is money, billing) and PTAB won’t manage to deal with as many petitions (IPRs). █

Three Weeks After Oil States the Patent Microcosm Has Already ‘Buried’ the Subject and 35 U.S.C. § 101 is Under Threat

Posted in America, Deception, Patents at 11:01 pm by Dr. Roy Schestowitz

Drinking their sorrows away

Patent Lawyers' Tears

Summary: The agenda of patent trolls, who are hoping to make Oil States go away, is well served by patent lawyers, who keep bringing up far less important (and far older) cases whose outcome better suited their financial interests

WILL THE USPTO take Oil States seriously? We asked this question ‘aloud’ in our last post. It’s the sort of thing that patent extremists hope the Office will just forget already. We took note of it in previous coverage about the Oil States decision, e.g. in:

Our prediction that patent maximalists would try to bury Oil States was largely correct. It’s barely even mentioned anymore (in sites dominated by law firms, except perhaps in new IAM ‘ads’, i.e. self-promotional pieces).

“Funny timing to bring up Alice all of a sudden (4 years after the decision and just days apart from Oil States).”To put it a little more bluntly, patent maximalists are still licking their wounds over Oil States — a decision that makes PTAB stronger and patents more limited in scope/magnitude. The patent microcosm generally promotes the next PTAB threats, namely cases like Droplets v Iancu or some class action ‘stunt’. They also push the SAS case, we noted about 24 hours ago in this advertisement for a ‘stacked panel’ event. “The panel will provide an analysis of the Court’s Oil States and SAS decisions and discuss the impact of these decisions on daily patent practice,” it says. Guess who’s on this panel…

“Watchtroll went back to writing about WesternGeco yesterday. It’s old.”Going back to April 24th (around the same time as the Oil States decision), mind what Workman Nydegger’s Brad Barger wrote: “Is Alice Coming Home From Wonderland? Finally Finding Direction in the Fairy Tale of 101 Jurisprudence”

Funny timing to bring up Alice all of a sudden (4 years after the decision and just days apart from Oil States). To quote:

In its 2014 decision, Alice v. CLS Bank, the Supreme Court dramatically reshaped the application of 35 U.S.C. § 101, which defines patent eligible subject matter. Much to the chagrin of inventors and patent practitioners around the world, the Supreme Court established a poorly defined test that the courts have struggled to apply in ways that result in consistent and predictable outcomes. The muddled rules and guidance provided by the courts have resulted in similarly inconsistent and unpredictable application of the law at the United States Patent and Trademark Office (USPTO). Strong anecdotal and statistical differences in the application of Alice could be seen across different art units, between different examiners within the same art units, and even between different panels of the Federal Circuit.

Fortunately, it appears that the USPTO is now taking concrete steps to stabilize the application of the Alice by examiners within the USPTO. Much of this change at the USPTO appears to be driven by the appointment of Director Iancu. In a recent appearance before the Senate Judiciary Committee, Director Iancu testified that the USPTO was addressing the confusion related to Alice by “work[ing] to provide more concrete tests – to the extent possible given Supreme Court precedent – that guide examiners and the public toward finding the appropriate lines to draw with respect to eligible subject matter.”

Watchtroll went back to writing about WesternGeco yesterday. It’s old. Oil States not interesting anymore?

“Oil States not interesting anymore?”Around the same time the patent microcosm (people who profit from lawsuits) also brought up the Kamstrup A/S case — one that we mentioned earlier this month. To quote:

In Apator Miitors ApS v. Kamstrup A/S, No. 2017-1681 (Fed. Cir. Apr. 17, 2018), the Federal Circuit affirmed the PTAB’s conclusion that Apator failed to swear behind a prior art reference, because Apator did not sufficiently corroborate the inventor’s testimony of conception prior to the reference’s filing date.

This was an important decision that serves to reaffirm PTAB’s authority, but it barely received any coverage.

Other sites of the patent microcosm wrote about a petition/case “seeking to invalidate [...] patent in a cannabis IPR currently pending before the PTAB.” To quote:

On this point, the PTAB recently conducted a trial and heard oral arguments from a canna-patent owner and a party seeking to invalidate that patent in a cannabis IPR currently pending before the PTAB. Specifically, IPR2017-00503 (previously flagged here) involves one of GW Pharma’s patents related to treating seizures with cannabidiol (CBD), the non-psychoactive cannabinoid found in the cannabis plant. GW Pharma is a British biopharmaceutical company known for its cannabis-based products, which it protects, in part, with its large cannabis-related patent portfolio (comprising around 100 patents and published applications in the U.S. alone), many of which are directed to treating diseases with cannabis-based compounds. GW Pharma is also currently pursuing FDA approval for its cannabinol drug for treatment of seizures and is well on its way to having the first drug derived from the cannabis plant approved in the U.S.

This is one of those cases where PTAB gets involved in disputes over patents on drugs, not software. We tend to focus on PTAB cases which involve Alice/§ 101.

“We tend to focus on PTAB cases which involve Alice/§ 101.”Speaking of § 101, on May 8th an interesting docket report came out from XpertUniverse, Inc. v Cisco Systems, Inc.

This is extraordinary especially because the Supreme Court (in Alice) changed patenting criteria in the US — serving to annul pretty much all software patents — but a jury relied on a very old ruling to deny justice:

The court granted plaintiff’s motion for summary judgment that defendant’s challenge under 35 U.S.C. § 101 was barred by collateral estoppel because a jury found the patent-in-suit valid in the parties’ prior action.

They’re alluding to 2012: “There is no evidence that a Section 101 defense was completely unavailable to [defendant] under the framework set out in [Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1282 (2012)], or that such a challenge would have been futile prior to Alice.”

“Speaking to people in the jury in technical terms won’t help; it often just confuses them and it makes it easier for lawyers to manipulate them.”This is why we oppose patent trials by juries, who are typically nontechnical and incapable of grasping the underlying claims in patents. Jury trials are OK for particular things that everyday newspapers cover (e.g. petty crime), but patents? Speaking to people in the jury in technical terms won’t help; it often just confuses them and it makes it easier for lawyers to manipulate them.

To say more on § 101, Gary Cohen, Mark Nowotarski and Trent Ostler did some propaganda on it half a week ago. We don’t want to delve into every single sentence and paragraph (in effect amplifying them), so we’ll just say that when Watchtroll uses terms like “Surviving Alice” it is basically perpetuating the bogus narrative that people with bogus patents that they often use to scam people into paying ‘protection’ money are actually the victims, trying to merely “survive” in court. It’s them who file the lawsuits! █

The Patent Microcosm is ‘Snookering’ Andrei Iancu on PTAB Deforms and Broadest Reasonable Interpretation (BRI), Amongst Other Things

Posted in America, Law, Patents at 10:15 pm by Dr. Roy Schestowitz

‘Snookered’ or just servicing the former employer and professional ‘compatriots’?

IAM and Trump
IAM IANAL (I am Not a Lawyer): Masquerading as objective but actually servicing patent maximalists (they wanted to put in charge of the USPTO someone even more radical than Iancu)

Summary: The Donald Trump-nominated and appointed USPTO chief turns out to be the disaster he was expected to be considering the fact that he came from the patent microcosm (from a firm that used to work directly for Trump)

THE USPTO did fantastic work for a number of years. We were rather enthusiastic if not thrilled about the reforms implemented by Lee, Matal and others. It seemed like the US patent system had shifted back in the direction of science and technology rather than Big Litigation (law firms), which is where Iancu comes from. His firm used to work for Trump, who later nominated him. We don’t want to make this ad hominem, so we shall focus on the actions and words of Iancu. It doesn’t look too encouraging, especially in light of the past week. The Patent Trial and Appeal Board (PTAB) is being defended by the highest US court, but Iancu seems eager to weaken it. Moreover, his ‘guiding hand’ seems to be think tanks of billionaires like the Koch brothers and a bunch of patent extremists. Not good.

This post is a concise summary of the past week’s developments, starting with this piece from Gene Quinn (Watchtroll), one of the first people to write about it. To quote:

Earlier today the USPTO announced proposed rulemaking that would change the prior policy of using the Broadest Reasonable Interpretation (BRI) standard for construing unexpired and proposed amended patent claims in PTAB proceedings under the America Invents Act and instead would use the Phillips claim construction standard.

This is about BRI. Sandip H. Patel (Marshall, Gerstein & Borun LLP) wrote about it as well later on. To quote his article (in a site of patent law firms):

The Patent Office today issued a press release of its notice of proposed rulemaking that would replace the broadest reasonable interpretation standard the Patent Trial and Appeal Board applies to construe unexpired patent claims and proposed substitute (amended) claims in AIA trial proceedings with the Phillips standard applied in patent cases before federal district courts and the International Trade Commission (ITC). The Office also proposes to amend the rules “to add that the Office will consider any prior claim construction determination concerning a term of the involved claim in a civil action, or an ITC proceeding, that is timely made of record in an [AIA trial] proceeding.” Any proposed changes adopted in a final rule would be applied retroactively to pending AIA trials.

By May 11th we already saw several more articles about it, e.g. one from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. An article by Michael C. Newman, Peter J. Cuomo and Patrick T. Driscoll said this:

The U.S. Patent and Trademark Office announced a propose change to the standard for construing both unexpired and amended patent claims in Patent Trial and Appeal Board (PTAB) proceedings under the America Invents Act (“AIA”). The change would replace the current Broadest Reasonable Interpretation (“BRI”) standard with the standard articulated in Phillips v. AWH Corp. 415 F.3d 1303 (Fed. Cir. 2005) (en banc). This change would harmonize the claim construction standard applied in inter partes review, post-grant review, and covered business method patent proceedings before the PTAB with the one used by federal district courts and the International Trade Commission. The proposed amendment would also allow the PTAB to consider any prior claim construction determination concerning a term of the involved claim in a civil action, or an ITC proceeding, that is timely made of record in an AIA proceeding.

Patently-O wrote about this bunch of changes (more than one) several times, starting with this press release:

USPTO Press Release: Alexandria, VA – Today, the United States Patent and Trademark Office announced its proposed rulemaking to change the prior policy of using the Broadest Reasonable Interpretation standard for construing unexpired and proposed amended patent claims in Patent Trial and Appeal Board (PTAB) proceedings under the America Invents Act. The proposed new standard is the same as the standard applied in Article III courts and International Trade Commission (ITC) proceedings.

The USPTO also proposed to amend the rules for PTAB trials to add that the USPTO will consider any prior claim construction determination concerning a term of the claim in a civil action, or an ITC proceeding, that is timely made of record in an Inter Partes Review (IPR), Post Grant Review (PGR), or Covered Business Method (CBM) proceeding.

The purposes of the proposed rule include, among other things, to ensure consistency in claim construction between the PTAB and proceedings in district court or at the ITC, and to increase judicial efficiency.

A Notice of Proposed Rulemaking (NPRM) will publish on May 9, 2018. Please submit comments to ptabnpr2018@uspto.gov within 60 days from the notice of publication.

They are open to comments. Will Iancu gradually sabotage PTAB to help patent maximalists (and thus discredit the USPTO again)?

“Will Iancu gradually sabotage PTAB to help patent maximalists (and thus discredit the USPTO again)?”Writing under an identical heading (identical to Patently-O‘s) and very similar wording to the original, Andrew R. Cheslock (Foley & Lardner) had more to say and so did Thomas A. Haag (Seyfarth Shaw LLP), who merely edited the press release on the face of it:

The USPTO announced today proposed rulemaking for changing its policy related to claim interpretation in Patent Trial and Appeal Board (“PTAB”) proceedings (not including patent examination). Currently, the broadest reasonable interpretation (“BRI”) standard is applied when analyzing claims. The proposed new rules would result in “the same as the standard applied in federal district courts and International Trade Commission (“ITC”) proceedings;” i.e., “ordinary and customary meaning” according to “a person of ordinary skill in the art in question at the time of the invention,”1 and “reasonable certainty” for definiteness analysis2. In addition, it is proposed that the USPTO/PTAB “will consider any prior claim construction determination concerning a term of the involved claim in a civil action, or an ITC proceeding, that is timely made of record in an IPR, PGR, or CBM proceeding.”

The Notice of Proposed Rulemaking is scheduled to publish tomorrow, May 9, 2018. The comment period is scheduled to end 60 days from publication—July 8, 2018. The unpublished Proposed Rule can be found here.

It appears that the USPTO and the PTAB are reacting to recent Supreme Court decisions, e.g., Oil States and SAS (See our summary of these cases here). Or perhaps, this is the next step in USPTO Director Andrei Iancu’s pledge to “provide reliable, predictable and high quality IP rights.” In any case, it is clear that there are still many changes coming to post grant proceedings before the USPTO.

Here’s another post about it:

The U.S. Patent and Trademark Office published a notice of proposed Rulemaking in the Federal Register (83 Fed. Reg. 21221) today which would provide a change to the claim construction standard used in Inter Partes Reviews (IPRs), Post-Grant Proceedings (PGRs), and Covered Business Method Reviews (CBMs). Instead of the broadest reasonable interpretation (“BRI”) standard originally adopted, and blessed by the Supreme Court in Cuozzo Speed Technologies LLC v. Lee, the proposed rulemaking would adopt the same standard used by district courts and the ITC. The use of a harmonized standard has been long advocated by patent holders, specifically because they are faced with an unfair dichotomy — a more stringent construction when alleging infringement, but a broader construction when faced with an allegation of unpatentability at the PTAB. Or, as the Office acknowledged in the notice, it is possible that “even if a competitor’s product would not be found to infringe a patent claim if it was sold after the patent’s effective filing date, the same product nevertheless could constitute invaliding prior art if publically sold before the patent’s effective filing date.” Nevertheless, over time, the BRI standard for post-issuance proceedings has been refined by the Federal Circuit to the extent that it was almost approaching the Phillips standard anyway. In fact, cases in which the claim construction standard has been outcome determinative are few and far between. Still, this effort to harmonize the construction of issued claims regardless of which tribunal is considering the issue is welcome and long overdue.

Iancu at the Office seems to be an ‘agent’ of patent trolls and law firms (as expected), but can courts/judges compel him to stop this?

“US To Weaken Post-Grant Patent Reviews,” Steven Seidenberg wrote in his headline at IP Watch. To quote:

Government agencies do not ordinarily relinquish power easily, or without a struggle. But these are not ordinary times in the USA. Trump appointees have pushed a variety of federal agencies – including Interior, EPA, and HUD – to surrender much of their powers. Yesterday, the USPTO joined that list, when it announced proposed new regulations that would weaken the agency’s review of existing patents.

Richard Lloyd, who lobbied Iancu in person (PTAB-shaming tactics), admits that PTAB is still doing fine but still tries to demolish PTAB in order to help patent trolls (his employer’s sponsors). “Change in claim construction at PTAB may not have a big practical impact but its message is clear,” says his headline. From outside the paywall:

Since he took over as Director of the USPTO, Andrei Iancu has been outlining his intention to bring greater predictability to the US patent system. That has been a welcome message to rights owners who over the last few years have become accustomed to a whirlwind of legal and policy changes, many of which have not exactly gone their way. However, as he strives for that predictability, in recent weeks the market has been getting accustomed to a new era of change for the US patent system.

What “new era of change”? Self-fulfilling prophecies again? UPC advocacy tactics?

It certainly seems like Iancu is low-hanging fruit to patent maximalists. Judging by this new article from Mike Masnick, something is clearly amiss. In an official USPTO event they now evoke/invoke “terrorism” for their purposeless, shameful agenda. To quote:

For many years now we’ve had fun pointing out the ridiculous claims of the legacy copyright industry execs insisting that copyright infringement funds terrorism. Of course, the evidence for this was seriously lacking. Back in 2011 there was an incredibly detailed, evidence-rich debunking of the claim by Joe Karaganis, showing basically no connection between terrorism and infringement.

But, alas, it’s a topic that never seems to go away. And now it appears that a design patent lawyer has updated the talking points to now claim that terrorists are infringing on design patents to fund their terroristic activity. First, as a quick refresher: when we talk about patents, we’re usually talking about utility patents, which are a monopoly for a new invention or process. Design patents, on the other hand, are really more akin to trademarks, in that they grant a monopoly on the look of something. The idea that ISIS is out there infringing on, say, the look of someone’s fancy belt buckle or a new planter is just sort of ludicrous on its face. But it certainly didn’t stop big shot patent lawyer Robert Katz from making the claim at a recent event held by the US Patent and Trademark Office (who, really, should know better).

The event was the USPTO’s “Design Day” held a few weeks ago, in which there were a series of discussions on design patents and such. If you go to the Livestream of the event, about an hour in Katz starts out by playing up how crafty infringers are getting, saying that they’re getting smarter about how they avoid getting caught…

[...]

Katz goes one better in talking about how “dangerous” products were introduced into the market, he gets to claim that knockoff makeup products were causing people to break out in rashes because they had “feces” in them. Indeed, there was just a seizure by the LAPD of some supposedly counterfeit makeup products, and the whole “feces” claim made a bunch of headlines (though, it’s odd that half the stories call it “animal waste” and the other half call it “human feces.”) There don’t seem to be many details beyond a tweet from the LAPD — an organization never known for exaggerating anything or making statements that are inaccurate.

He also claims that sex traffickers are using infringement to fund their efforts (I thought they were using the trafficking to fund it, but… who knows?) But that’s just the lead in to the really nutty claim. It all comes back to… TERRORISM!

This is totally insane, but we’re becoming accustomed to that in this age of Trump/Trumpism. Patent lawyers can be mad extremists sometimes, salivatising over litigation, financial ruin, and destruction of science. Does the USPTO remember who or what it was supposed to serve (originally)?

“This is totally insane, but we’re becoming accustomed to that in this age of Trump/Trumpism.”Iancu comes from the patent microcosm, so he now repeats the lie from lobbying fronts like the Chamber of Commerce (CoC). What next? Koch Brothers? From the summary: “USPTO Director Addresses U.S. Patent System’s Decline in U.S. Chamber of Commerce Worldwide Patent Protection Rankings” (this whole index is based on a major lie, as Unified Patents recently reminded me).

Watch Iancu drinking this Kool-Aid: “Iancu then turned to patent opposition procedures, primarily Inter Partes Review (IPR). (Note: Since giving this address, the Supreme Court held in a 7-2 decision in Oil States v. Greene’s Energy that IPR proceedings do not violate Article III or the Seventh Amendment of the Constitution.)”

“Iancu comes from the patent microcosm, so he now repeats the lie from lobbying fronts like the Chamber of Commerce (CoC).”Oil States will be covered here later (and separately). Will the USPTO even take much account of it? Or will it try to have it ‘shelved’ it like the patent microcosm hopes?

Several days ago Dennis Crouch (a PTAB foe) wrote about an anti-PTAB stunt, basically giving publicity to a bunch of crazies. People with bogus patents try to sue their government for granting them bogus patents. And here are the details:

A new class-action lawsuit has been filed against the U.S. Government alleging damages suffered by “patent holders whose property was taken by the USPTO without compensation in violation of the Fifth Amendment of the Constitution.” Christy, Inc. v. USA, 18-cv-00657 (Ct. Fed. Clms. 2018) (2018-05-09-1-Complaint).

The basic story here begins with the USPTO’s “public (and shocking) admission” that the AIA Trials are targeted toward patents that were “erroneously granted in the first instance” — i.e., the USPTO erred in issuing the patents and that is why the AIA trials are now necessary. The problem though is that the erroneous issuance lead to a granted property right with the potential for substantial royalty income, substantial payments of maintenance and other USPTO fees, and often substantial costs involved with the AIA-trial.

Watchtroll didn’t take long to give them a platform as well:

In the class action suit, Christy is asserting claims against the U.S. government founded upon the breach of express or implied contract claims to which the U.S. is a party, the Takings Clause of the Fifth Amendment as well as violation of due process. The contract claims at issue include the agreement by the government to issue patents with specific claims which are covered for a specific period of time in exchange for the patent owner’s payment of issuance and maintenance fees; Notice of Allowance and Fee Transmittal forms represent the express or implied contract made by the patent applicant or owner with the U.S. government.

Considering Oil States, this is a futile lawsuit which will never take off.

“It’s like the worst of patent maximalism (Koch, CoC, Watchtroll and patent trolls) have got Iancu by the ears; his only ‘boss’, however, should be courts like CAFC and SCOTUS.”Speaking to the judge-bashing Watchtroll, which was witch-hunting his predecessor, Iancu reveals his true colours again. Does he not know what Watchtroll has been doing? We doubt it. It just shows that he’s OK with it. Giving an interview is a form of endorsement. And that’s a bad sign.

Here’s another take from Dennis Crouch, this time about Administrative Claim Construction Procedure (ACC):

Several years ago, I proposed an Administrative Claim Construction Procedure (ACC)— allowing a patentee or third party to request a claim-construction by the USPTO. The process would be much like an Inter Partes Review (IPR) proceeding – although my proposal would end the proceedings before actually analyzing whether the prior art reads upon the claims.

[...]

In his first major action as USPTO Director, Andrei Iancu has proposed modifying the approach to claim construction that the Patent Trial and Appeal Board (PTAB) applies in IPR proceedings (as well as PRG and CBM proceedings). Rather than using the usual examination standard of “broadest reasonable interpretation,” the proposal would shift to the “ordinary meaning” of claim terms as applied by the courts and exemplified by Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc) and adjusted by Teva Pharms. USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831 (2015).

Although the BRI and Ordinary Meaning standards are actually quite close, the courts and PTO have regularly held them to be different enough to avoid preclusion or even consideration when considering a claim construction performed by another judicial body. Thus, the PTO Notice explains: “Minimizing differences between claim construction standards used in the various fora could lead to greater uniformity and predictability of the patent grant [and] could help increase judicial efficiency overall.” (Note – the notice does not mention issue preclusion or collateral estoppel).

Last but not least, in relation to Post-Grant Review (PGR) again, as well as estoppel, there’s new input from CAFC.

Andrew H. DeVoogd, Christopher G. Duerden and Anthony E. Faillaci (Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.) wrote the following:

The Federal Circuit recently overturned a decision estopping the plaintiff from pursuing its infringement claims in the United States District Court for the Eastern District of Arkansas, and clarified the effect of reexamination on equitable estoppel and laches. In John Bean Technologies Corporation v. Morris & Associates, Inc., the Federal Circuit held that District Court abused its discretion applying equitable estoppel to bar John Bean Technologies Corp.’s (“John Bean”) infringement action without considering the impact of an intervening ex parte reexamination on the claims of the asserted patent.

This again is an example of the courts doing their job, unlike the Office under Iancu. We fear that the Office is now more or less servicing an angry mob rather than technology firms. It’s like the worst of patent maximalism (Koch, CoC, Watchtroll and patent trolls) have got Iancu by the ears; his only ‘boss’, however, should be courts like CAFC and SCOTUS. It should be about justice, not economics of law firms. █

The Evil, Truly ‘Evil’ Patent Trial and Appeal Board (PTAB) and the Courts Have the Audacity to Verify/Disprove Patent Validity

Posted in America, Patents at 9:00 pm by Dr. Roy Schestowitz

J Nicholas GrossSummary: The concept of patent justice seems rather elusive to those who make a living out of pretending not to grasp it (like Mr. Gross on the right); US patent caselaw, however, continues to improve over time

TECHRIGHTS spent well over a decade complaining about USPTO patents that had been wrongly granted, leading to invalidation attempts. Prior to PTAB this was a lot harder. This meant that patent justice was hard to find unless one had deep pockets (court battles are extremely expensive, especially with appeals taken into account).

“They just don’t care about patent justice, only patent maximalism (maximising litigation and extortion opportunities).”Patent trolls typically rely on software patents. They also depend on dodging actual court battles where validity of patent can be questioned/challenged (before PTAB only courts could do this). This is why trolls’ proponents like Watchtroll, IAM and so on protest against PTAB so much. They just don’t care about patent justice, only patent maximalism (maximising litigation and extortion opportunities).

The Droplets case was recalled by Watchtroll on Friday. James Yang wrote:

Droplets, Inc. v. ETrade Bank

In Droplets, Inc. v. ETrade Bank (Fed. Cir. 2018), ETrade filed a petition for inter partes review against U.S. Patent 8,402,115 (‘115 Patent) which was owned by Droplets, Inc. ETrade was attempting to invalidate the 115 patent because Droplets (patent owner) alleged that ETrade was liable for patent infringement.

The ‘115 Patent was the last patent in a family lineage of four patent applications. See diagram below. The Franco PCT is based on the 917 provisional.

[...]

When reviewing a patent for a noninfringement opinion, do not assume that the prosecution was done properly. As discussed in this case, even though the 115 did not claim priority back to the Franco PCT, the examiner did not use the Franco PCT which would be the best prior art reference against the 115 because presumably at least certain portions were identical to each other.

We already wrote about such noninfringement opinions. Expect sites like Watchtroll, IAM and so on to resort to judge-bashing, lobbying of Iancu etc. We’ll give some examples later today. Another CAFC case has already just been covered by Watchtroll, taking note of a patent which became unenforceable:

The invention disclosed in the ’993 patent, at issue in this appeal, involves heating water on demand during the fracking process instead of using preheated water. Mr. Hefley, the sole named inventor and founder of Heat On-The-Fly, LLC (“HOTF”), filed the earliest provisional application on September 18, 2009. Prior to the critical date of September 18, 2008, Mr. Hefley and his companies performed on-the-fly heating of water on at least 61 fracking jobs using the system described in the ’993 patent application and collected over $1.8 million for those services. Although Mr. Hefley discussed the requirements of the on-sale bar against patent eligibility with his business partner, he did not disclose any of the 61 fracking jobs to the Patent and Trademark Office (“PTO”). The patent issued on May 8, 2012.

Energy Heating LLC (“Energy”), one of HOTF’s competitors, began using its accused process of heating water in 2012. After HOTF raised the possibility of a patent infringement lawsuit and Energy lost a business contract, Energy sought a declaratory judgment that the ’993 patent was unenforceable for inequitable conduct, invalid as obvious, and not infringed.

The district court granted declaratory judgment, finding the patent unenforceable for inequitable conduct, and denied Energy’s motion for attorneys’ fees under 35 U.S.C. § 285. The Federal Circuit affirmed the court’s finding of inequitable conduct but vacated the denial of attorneys’ fees and remanded on that issue alone.

Proponents of patent maximalism, typically a bunch of law firms, aren’t happy about this status quo. Mr. Gross, an attorney who writes for patent trolls, recently unleashed a bunch of rants against PTAB, such as this (regarding Section 101):

Bad 101 decisions continue to multiply like viruses at PTAB bc, as they say: “the decisional mechanism courts now apply is to examine earlier cases… and which way they were decided” https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016005922-04-26-2018-1 … Since 90% decisions are adverse, system is rapidly being poisoned

No, the system is actually being repaired for those who want to mind their own business, creating things rather than suing. Is that so difficult to understand? Here he goes again (regarding Section 101, as usual):

See, this is the additional collateral crap PTAB is now pulling when CAFC affirms using Rule 36… citing Morsa as approving rejection of claims on targeted advertising, bc CAFC too lazy to do review on merits and explain fine distinctions in 101: e-foia.uspto.gov/Foia/RetrieveP…

He says that “PTAB continues bastardizing [Section] 101 caselaw”, but he actually means applying, not “bastardizing”:

PTAB continues bastardizing 101 caselaw, including Diehr, to reject claims on “controlling a torque output of an electric machine of an electrified vehicle during a vehicle creep condition” e-foia.uspto.gov/Foia/RetrieveP… Mess continues unabated

And again Section 101:

Like hundreds of other small innovators, Invidi gets their patent application on targeted asset delivery system nixed by PTAB as “abstract idea” e-foia.uspto.gov/Foia/RetrieveP…

Mr. Gross also took note of Microsoft having its software patents thrown away (Section 101):

LinkedIn bought these patent applications years ago; this is one of 1st of many on “fact checking” technology to be reviewed and rejected by PTAB under 101: they have a long road ahead: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017001329-04-30-2018-1 …

Then the obligatory IBM example (Section 101 invalidation):

IBM Can’t Win at the PTAB; The PTAB Reversed the Examiner’s 101 Rejection But Instituted a New 101 Rejection of the Same Claims: https://anticipat.com/pdf/2018-04-30_13396177_178276.pdf …

Notice the profound impact of Section 101. Without even going to court, various parties actively work to eliminate software patents of patent aggressors.

“It puts engineers/programmers back in control, at the expense of parasitic lawyers who got accustomed to exploiting/taxing them.”What’s not to like?

Well, when one does litigation for a living (and let’s face it, that’s what the above people do) this whole “PTAB thing” is a living nightmare. It puts engineers/programmers back in control, at the expense of parasitic lawyers who got accustomed to exploiting/taxing them. █

Links 13/5/2018: RC5 of Linux 4.17, SparkyLinux 4.8, Malicious Package Found on the Ubuntu Snap Store

Posted in News Roundup at 8:24 pm by Dr. Roy Schestowitz

GNOME bluefish

Contents

GNU/Linux

  • Desktop

  • Kernel Space

    • Linux 4.17-rc5

      Things continue to look fairly normal. About half the rc5 release is driver
      updates, with amdgpu standing out but mainly because everything else is
      really pretty small, not because the amdgpu patches are all that big.

      Outside of drivers, there’s a random collection of changes all over: some
      filesystems (ceph and cifs), some networking, some core kernel, some small
      arch updates, and some tooling.

      There’s a fair number of changes in there (shortlog appended as usual), but
      a lot of them really are one- or two-liners.

      So I think we’re in pretty good shape. Please go keep testing, though, to
      make sure we’re not missing anything.

      Linus

    • Linux 4.17-rc5 Released As Another Normal Weekly Test Release

      Linus Torvalds has done a Mother’s Day release of the Linux 4.17-rc5 kernel.

      Linus notes that this latest Linux 4.17 release candidate continues looking “fairly normal” with about half of the changes being driver updates and then a random collection of other changes. He notes that so far they are in fairly good shape.

    • Linux 4.17 Gets More Spectre V1 Fixes

      Thomas Gleixner this morning sent in the latest batch of x86/pti updates for containing the latest mitigation improvements around Meltdown and Spectre CPU vulnerabilities.

      This latest pull request has several fixes, including a possible deadlock fix. There have also been a number of Spectre Variant One access restrictions.

    • Linux Foundation

      • Bigger than Linux: The rise of cloud native

        The Cloud Native Computing Foundation’s first KubeCon + CloudNativeCon of the year took place in the Bella Center, Copenhagen. A giant greenhouse of a building with snaking industrial pipework and connecting concrete bridges; it’s a vast container made of glass letting in light. A suitable setting for an industry that’s evolved rapidly from the release of Docker’s superstar container technology back in 2013.

        Attendance has rocketed to 4,300, according to Dan Kohn, executive director of the CNCF, which almost triples attendance from a year ago in Berlin, but that’s not surprising as cloud native computing industry is meeting the business world’s demand for more scalable, agile applications and services that can be run across multiple geographical locations in distributed environments.

    • Graphics Stack

      • RADV Lands VK_PIPELINE_CREATE_DISABLE_OPTIMIZATION_BIT

        The RADV Vulkan driver within Mesa has landed its VK_PIPELINE_CREATE_DISABLE_OPTIMIZATION_BIT support so applications/games can opt to disable optimizations when compiling a Vulkan pipeline. This is notably what was just covered the other day for helping to reduce stuttering with DXVK.

      • DXVK 0.51 Brings Fixes & Asynchronous Pipeline Compilation Support

        DXVK 0.51 is now available as the latest version of this library for running Direct3D 11 games under Wine via the Vulkan graphics API.

        The DXVK 0.51 release most notable adds asynchronous pipeline compilation support for Vulkan drivers making use of VK_PIPELINE_CREATE_DISABLE_OPTIMIZATION_BIT. This is the feature for reducing stuttering for games on DXVK and as of this morning is now supported by the RADV driver. We’ll see how long it will take until the NVIDIA Vulkan driver and others support this feature. For now though DXVK ships with this support disabled and requires using the DXVK_USE_PIPECOMPILER=1 environment variable as this feature can cause hangs for Prey and potentially other titles.

      • VK9 Gets Better Support For Shaders, 64-bit Fixes

        While the rapidly maturing DXVK library has been capturing much of the limelight when it comes to piping Direct3D over Vulkan, the VK9 project targeting Direct3D 9 on top of Vulkan continues making progress.

      • Intel’s Mesa Driver Prepares To Kill Off The Blitter

        Jason Ekstrand has spent some time away from the Intel ANV Vulkan driver to kill the hardware blitter usage within the i965 Mesa OpenGL driver.

        With a set of patches posted on Friday, the Intel Mesa driver eliminates its hardware blitter usage for Intel Sandy Bridge hardware and newer. Ekstrand explained that the graphics hardware blitter has been degraded on recent generations of Intel graphics, “On Sandy Bridge, the blitter was moved to another ring and so using it incurs noticable synchronization overhead and, at the same time, that synchronization is an endless source of GPU hangs on SNB. Some time around the Ivy Bridge time frame, we suspect that the blitter ended up with somewhat slower paths to memory than the 3D engine so it’s slower in general. To make matters worse, the blitter does not understand any sort of compression at all and so using it frequently means having to do some sort of resolve operation.”

      • Latest Intel ARB_gl_spirv Patches Published By Igalia

        It’s almost one year since the release of OpenGL 4.6 and while there is support outside of the Mesa tree, mainline Mesa still doesn’t support this latest OpenGL revision due to the holdups around SPIR-V ingestion support.

        Intel’s i965 and AMD’s RadeonSI drivers would have supported OpenGL 4.6 with mainline Mesa months ago, but they’ve been held up on the ARB_gl_spirv extension and the related ARB_spirv_extensions support. This work allows for SPIR-V modules to be used by OpenGL complementary to GLSL and allows for GLSL to also to be used as a source language for creating SPIR-V modules for OpenGL consumption. This is basically all about better interoperability between OpenGL and Vulkan — not an easy task to implement.

      • RADV Adding New Bit To Help Avoid Stuttering With DXVK

        The RADV Vulkan driver will soon have VK_PIPELINE_CREATE_DISABLE_OPTIMIZATION_BIT to help avoid stuttering with DXVK for running Direct3D 11 games on Wine over Vulkan.

        While DXVK performance is already quite compelling and handling a surprising number of D3D11 games rendered via Vulkan considering how young this project is, DXVK and potentially the other Vulkan Linux drivers may soon see less stuttering.

    • Benchmarks

      • KDE vs. GNOME, X.Org vs. Wayland Radeon Linux Gaming Performance With Ubuntu 18.04 LTS

        For those wondering how the Radeon Linux gaming performance is changed between desktop environments when testing Ubuntu 18.04 LTS out-of-the-box, here are some benchmarks. Not only is it looking at the performance between GNOME Shell 3.28.1 and KDE Plasma 5.12.4, but it’s also comparing each desktop environment with its X.Org and Wayland session support. Additionally, these tests were done with both AMD Radeon Polaris and Vega graphics cards.

  • Applications

  • Desktop Environments/WMs

    • K Desktop Environment/KDE SC/Qt

      • Release of KDE Frameworks 5.46.0

        KDE today announces the release of KDE Frameworks 5.46.0.

        KDE Frameworks are 70 addon libraries to Qt which provide a wide variety of commonly needed functionality in mature, peer reviewed and well tested libraries with friendly licensing terms. For an introduction see the Frameworks 5.0 release announcement.

        This release is part of a series of planned monthly releases making improvements available to developers in a quick and predictable manner.

      • KDE Frameworks 5.46 As The Latest Add-Ons Update

        KDE Frameworks 5.46.0 is out today as the newest version of this collection of add-on libraries used by KDE applications and more for complementing the Qt5 tool-kit.

      • KDE Connect Junior Jobs

        One of KDE’s Community goals for the next years is streamlined onboarding of new contributors. It’s very important that new people regularly join the community for various reasons. First of all, there will always be something to do and the more contributors the merrier! But there are also people becoming very inactive or leaving the community and these people need to be replaced. Furthermore new people bring in new and fresh ideas. It’s important to have people from diverse backgrounds in the community.

      • Management of LVM VGs in Calamares

        I talked in my last post about some of my LVM studies for the first goal of GSoC. This post is an addition to the last one, focused more in explaining how I want to implement it and talking a little bit about some application concepts from Calamares that I’ve studied.

      • This week in Usability & Productivity, part 18

        Image operations in Gwenview that have been undone can now be re-done too (Peter Mühlenpfordt, KDE Applications 18.08.0)

      • GSoC 2018 with KDE – Community bonding period

        The community bonding period ends today and the coding period begins.

        Community bonding period had been quite hectic for me with respect to learning new things and thinking of good ways to implement them. I didn’t know much about piano or other musical instruments (as I had never played them before) and was unaware of many notations and usages, but thanks to my mentor Emmanuel Charruau (allon on IRC) who suported me a lot and always cleared even my very silly doubts (as I myself was learning various elements of piano and its notations for the first time). He provided me all the resources step-by-step and helped me learn so much about the project in such less time.

        It was quite fun exploring new things and learn them which I would never had.

  • Distributions

    • New Releases

    • Arch Family

    • Red Hat Family

      • Sky’s the limit as Cathay Pacific deploys Red Hat cloud

        Cathay Pacific has deployed Red Hat solutions and services to drive customer experience across the airline, transforming legacy infrastructure into a modern hybrid cloud architecture.

        Specifically, the carrier leveraged the vendor’s OpenStack Platform and OpenShift Container Platform offerings, in a bid to improve end-user experience through digital technologies.

        Based in Hong Kong, Cathay Pacific is an international airline offering passenger and cargo services to 200 destinations in 52 countries and territories worldwide.

      • Fedora

    • Debian Family

      • Derivatives

        • Canonical/Ubuntu

          • 32-bit ARM Is Also On The Chopping Block For Ubuntu

            Not only are developers talking about dropping Ubuntu 32-bit x86 support but the ARMHF support might also be cut as well for 32-bit ARM boards.

            With ARMv8 ushering in 64-bit ARM has been common now for years, Ubuntu developers are also considering dropping the Ubuntu ARM hard-float port for ARMv7 support. This is a tiny bit surprising considering the wide number of 32-bit ARM SBCs out in the wild, including some ARMv7 boards still being peddled by different vendors. But then again it’s not too often we see ARM SBCs support Ubuntu releases outside of the LTS cycles: Ubuntu 18.04 will remain available with armhf and by the time of Ubuntu 20.04 LTS, hopefully many of these other boards will have been phased out from any production purposes. There are still occasional ARM SBC reference images I come across even using the aging Ubuntu 14.04 and many of the older 32-bit ARM boards currently using 16.04 probably won’t see updates to 18.04.

          • 11 years of Ubuntu membership

            It’s been 11 years and 1 month since I was awarded with official Ubuntu membership. I will never forget that day: as a kid I had to write about myself on IRC, in front of the Community Council members and answer their questions in a language that was not my primary one. I must confess that I was a bit scared that evening, but once I made it, it felt so good. It felt good not just because of the award itself, but rather because that was the recognition that I did something that mattered. I did something useful that other people could benefit from. And for me, that meant a lot.

  • Devices/Embedded

Free Software/Open Source

  • Join the Orvium Innovation, first open source and decentralized framework for managing scholarly publications

    Knowledge is power. This phrase holds the truest form when it comes to publication of knowledge. One of the most lucrative markets in the world, the publication houses work in a manner that where the cost of publishing is on the publisher’s end. Work submitted by authors is selected carefully, the basis being relevancy, the interest of the readers and the commercial viability. Authors are then compensated for their works. Publication houses pay more to their content submitters if they have a higher quality of work, while another may agree to print an article easily, but with limited reader reach, it will pay out much less.

    [...]

    The ORV token is used in the Orvium platform for the exchange of monetary matters, such as payment for reviews, publications, copyrights etc. The ORV’s ICO is yet to be announced. A total of 379 million ORVs will be available for the public through its ICOs.

  • HP Elitebook 8770w Ported To Coreboot, But Need To Disassemble The Laptop For Flashing

    If you happen to have an HP Elitebook 8770w laying around from Intel’s Ivy Bridge era, that Hewlett Packard laptop has now been freed by Coreboot.

    This Intel Ivy Bridge quad-core laptop with SO-DIMM memory modules and using MXM 3.0b graphics cards can now work with Coreboot Git. Though if you have this laptop, for performing the initial port you first need to disassemble the laptop down to the motherboard. But at least when the initial Coreboot flash is done, subsequent flashes can be done using the Flashrom software.

  • Terratest – an Open Source Go Library for Automated Infrastructure Testing

    Gruntwork open sourced their Go framework Terratest which can be used to write automated tests for testing infrastructure. The library comes with support for Terraform and Packer.

    Terratest was developed internally at Gruntwork to maintain their Infrastructure as Code (IAC) library, a repository of tools based on Terraform, Python, Go and bash for managing infrastructure on AWS. IAC is available to paying Gruntwork users.

    Writing tests in Terratest involves using Go’s inbuilt package testing mechanism. A test run creates real infrastructure components like servers, deploys applications on them and validates the expected behaviour using Terratest tools. At the end of the test, Terratest can undeploy the apps and cleanup resources using Go’s defer mechanism, similar to JUnit’s teardown method. Can Terratest run against an existing infrastructure deployment instead of creating it from scratch each time? The tool wiki recommends against this as it might create undesirable changes in the environment. However, this can be difficult to follow for some teams who have complex infrastructure topologies and do not wish to create an entirely new setup to run the tests. A feature called namespacing can isolate resources by using unique identifiers. Note that namespacing here does not translate to the generally understood term of isolating components by tagging them with labels, but rather to ensuring unique identifiers for resources and using only those resources for testing which have the identifiers generated in the test framework.

  • Events

    • Fractal Hackfest

      This week, I was able to attend to the Fractal Hackfest. My train from Paris arrived at Strasbourg at 12:45, so I missed the beginning of the Hackfest in the morning but I could be there for the afternoon. I stayed until the middle of Saturday’s afternoon.

      On Thursday, I wasn’t there on the morning but there was a sum up of the important part of the morning’s discussions.

      There can be two main use cases for Matrix: one for friends, family and other small group discussions, where there are a low volume of messages and you care about all of them; and another for huge and noisy rooms in which there is a lot going on and you don’t necessarily care about most of it (for instance, you would want to be able to focus on the messages mentioning you). Both of these use cases could motivate to split Fractal in two apps: “Barbecue” (for the first use case) and “Banquet” (for the second one).

  • Web Browsers

    • Mozilla

      • Mozilla Officially Unveils Firefox 60 Quantum Web Browser as the Next ESR Series

        Mozilla officially announced today the release of its Firefox 60 web browser as the next ESR (Extended Support Release) series for all supported platforms on the desktop, including Linux, Mac, Windows, and Android.

        Firefox 60 “Quantum” was launched today as the next ESR (Extended Support Release) series of the widely-used open-source and cross-platform web browser, ready for deployments in enterprise environments thanks to a new policy engine, as well as Group Policy support that helps IT professionals easily configure the browser using a cross-platform JSON file or Windows Group Policy.

      • Important: Pale Moon users and NoScript support (Parody)

        Yesterday our readers discovered problems with the Pale Moon web browser, which according to the NoScript website has either security, compatibility or usability issues when using popular add-ons like NoScript:

        One reader who uses NoScript found the plugin was displaying the above window and offering to disable the Pale Moon browser, rather than have it cause users any further trouble.

  • BSD

  • Programming/Development

    • shutil module in Python

      File Management and Handling file objects are considered to be one of the most tricky tasks in all programming languages. Some programming languages provide us with some tools which abstract away the difficult parts of File Handling with easy to use functions and interfaces. This is exactly what Python‘s shutil module does as well.

Leftovers

  • Medium abruptly cancels the membership programs of its 21 remaining subscription publisher partners

    No publication has been burned worse throughout these changes, perhaps, than The Establishment, which had been wooed to move off WordPress and entirely onto Medium, and migrated all its content the same day Medium announced its drastic changes early last year. “I shan’t lie to you, gentle reader — it was a dark and shocking day for The Establishment,” cofounder Kelley Calkins wrote at the time. Now, it’s at a precipice again.

  • A new documentary will explore the life and legacy of Ursula K. Le Guin

    Curry kickstarted Worlds of Ursula K. Le Guin in 2016, and has been working on the project ever since. Earlier this week, she released a trailer for the documentary, which will use archival footage and recent interviews with Le Guin to examine her life and the impact of her career. The film will also feature interviews from authors such as Margaret Atwood (The Handmaid’s Tale), Neil Gaiman (American Gods), Theodora Goss (The Strange Case of the Alchemist’s Daughter, and a forthcoming critical volume on Le Guin), and others. “She’s being recognized not just as one of our great science fiction and fantasy writers,” Goss says in the trailer, “but as one of our great American writers.”

  • Science

    • Social media copies gambling methods ‘to create psychological cravings’

      These methods are so effective they can activate similar mechanisms as cocaine in the brain, create psychological cravings and even invoke “phantom calls and notifications” where users sense the buzz of a smartphone, even when it isn’t really there.

      [...]

      “If you disengage, you get peppered with little messages or bonus offers to get your attention and pull you back in,” said Schüll. “We have to start recognising the costs of time spent on social media. It’s not just a game – it affects us financially, physically and emotionally.”

  • Health/Nutrition

    • At the VA, a Law Meant to Discipline Executives is Being Used to Fire Low-Level Workers

      The Nation spoke to more than two dozen current and former VA employees and union officials, who portrayed the VA as an agency needlessly cracking down on loyal workers. Union officials allege that the law is being abused to retaliate against whistle-blowers and union members, and that the VA leadership has created conditions for employees to fail by promulgating stringent new work standards that have recategorized hardworking employees as failing. The law also established the shadowy Office of Accountability and Whistleblower Protection, headquartered in Washington but with satellite offices across the country, staffed by 68 employees, as of last month, who provide “investigative internal affairs services.”

  • Security

    • Google YOLO [iophk: "javascript"]

      Actually don’t even click anything. Malicious websites can simply track your cursor’s position and change the invisible button/iframe’s position accordingly. So even if you make a click by mistake you will be forced to click on something else.

    • One year on from the WannaCry attack, are we more vulnerable than ever? [Ed: The ToryGraph repeats Microsoft's lies about Windows XP; all versions of Windows have NSA back doors and XP was hardly the problem in this case. The problem is Microsoft collusion with NSA.]

      The hackers, reportedly from North Korea, didn’t intentionally target the UK’s health service: it was collateral damage. WannaCry entered computers through a glitch, discovered by the US National Security Agency, in early Windows operating systems. The 33 affected NHS practices were hit because they hadn’t updated their Windows XP software for many years.

      [...]

      One of the biggest problems facing the UK, as WannaCry showed, is a lack of technical proficiency. There just aren’t enough defenders in the face of highly trained foreign criminals and state-sponsored hackers, Hannigan explains.

      [...]

      The fight doesn’t end with education. Hannigan’s other suggestions have included the creation of an international cyber war treaty. In the meantime, he welcomes the news that all NHS computers will be upgraded to Windows 10 and that the Government will spend £150 million in the next three years to improve the service’s security.

    • Malicious Package Found on the Ubuntu Snap Store

      An attentive Ubuntu user has spotted today a cryptocurrency miner hidden in the source code of an Ubuntu snap package hosted on the official Ubuntu Snap Store.

      The app’s name is 2048buntu, a clone of the popular 2024 game, packaged as an Ubuntu snap —a relatively new app format for Ubuntu OS.

      According to a GitHub user named Tarwirdur, the app contained a cryptocurrency mining application disguised as the “systemd” daemon, along with an init script that provided boot persistence.

    • Malware Found In The Ubuntu Snap Store

      Software Center doesn’t make them safe. This is proved by a recent discovery of malware in some snap packages from the Ubuntu Snaps Store.

      At least two of the snap packages, 2048buntu and Hextris, uploaded to the Ubuntu Snaps Store by user Nicolas Tomb, contained malware. All packages by Nicolas have since been removed from the Ubuntu Snaps Store, “pending further investigations”.

      The report comes from a bug which mentions that the 2048buntu snap package (and other packages by Nicolas Tomb) contains a hidden cryptocurrency miner inside. You can see the init script below:

    • Ubuntu Snap Store app contained cryptocurrency miner, showing open source doesn’t equal safe [Ed: This headline is not correct. Snaps are proprietary.]
    • Malware Found on the Ubuntu Snap Store

      Malware has been found hiding inside software on the Ubuntu Snap store.

      A pair of (seemingly normal) apps hosted by the Canonical-backed app hub were discovered to contain a сryptocurrency miner disguised as the “systemd” daemon.

      The affected apps also shipped an “init script” to auto-load the malicious code on boot and allow it to run in the background on affected systems.

    • Google Takes Legal Road To Bring “Regular” Security Updates To Android Devices
    • ATM attacks: How hackers are going for gold

      Now, with confirmed strains of malware like Ploutus.D being used in ATM jackpotting attacks on U.S. soil, jackpotting can be added to the growing list of popular ATM attack types, including skimming, shimming and network-based attacks. Here we examine various ATM attack techniques and offer security recommendations to protect against them.

    • Unpatched Oracle WebLogic servers targeted for mining
    • USBGuard

      One of the most common security concerns (especially when traveling) is the attach of unknown USB device on our system.

    • Valve are paying hackers for finding security flaws, plus a website refresh teased top secret games

  • Defence/Aggression

    • Terrorists Are Still Recruiting on Facebook, Despite Zuckerberg’s Reassurances

      At least a dozen U.S.-designated terror groups maintain a presence on Facebook, a review by Bloomberg Businessweek shows. That includes Hamas and Hezbollah in the Middle East, Boko Haram in West Africa, and the Revolutionary Armed Forces of Colombia (FARC). The terror groups are rallying supporters with everything from gruesome photos of death caused by their enemies to quotidian news about social services they offer. Several can be found simply by typing their names into Facebook’s search bar in English or, in some cases, in Arabic or Spanish. Some of the groups proudly link to their Facebook pages on their home websites, too.

    • Trump’s War Against Iran

      An apparent coordination between Trump leaving the Iran deal and Israeli attacks on Iranian targets in Syria portend an attack on Iran itself, says Eric S. Margolis.

      [...]

      The U.S., Saudi Arabia and Israel all recently suffered a stinging defeat in Syria. Their campaign to overthrow the Assad government in Damascus by using the rag-tag ISIS movement, and other jihadist wild men, was defeated by the Syrian Army, backed by Russian air power, Lebanon’s Hezbollah and some Iranian militia groups and army advisors.

      The alleged Iranian rocket barrage, supposedly in response to Tuesday’s attack, was directed at the Israeli-occupied Golan Heights that were illegally annexed and occupied after the 1973 Arab-Israeli War and are still held, legally, as part of Syria. Israel is very nervous about having world attention drawn to its continued occupation of the strategic Golan Heights from which Israeli heavy artillery can reach Damascus.

      Israel now claims to have wiped out more than a score of Iranian positions in Syria. As far as we can tell, these were minor logistics or communications facilities, not the backbone of a supposed Iranian offensive against Israel. Iran is in Syria at the invitation of the Syrian government.

    • The EU Will Not Stand by Iran

      Ever since Donald Trump’s announcement that the U.S. would pull out of the Joint Comprehensive Plan of Action (“JCPOA”) with Iran and would unilaterally impose across-the-board sanctions on that country, a procession of European leaders including the leaders of the U.S.’s most powerful European allies – Britain, France and Germany – have publicly declared their intention to stand by the JCPOA.

      There is also brave talk of the EU creating safeguards for European companies which in defiance of the U.S. continue to trade or do business with Iran.

      President Rouhani of Iran – who has a big personal stake in the JCPOA, which he personally negotiated – has for his part said that Iran will for the time being abide by the terms of the JCPOA whilst it waits to see how Europe will react.

      In the meantime the talk of the EU standing up to the U.S. over the JCPOA has increased talk – or hope – that a corner in U.S.-EU relations has been turned, and that the EU will henceforth increasingly defy the U.S., making Donald Trump’s decision to pull out of the JCPOA a further step in the decline of U.S. power.

  • Transparency/Investigative Reporting

    • Pamela Anderson writes letter to Kanye West asking him to support Julian Assange

      Pamela Anderson, who visited Julian Assange at his Ecuadorean Embassy refuge in London multiple times, has written to Kanye West in an attempt to gain his support for the WikiLeaks founder.

    • Pamela Anderson Wrote a Letter to Kanye West Asking Him to Help Julian Assange

      Kanye West has been causing quite a stir on Twitter in recent weeks, and apparently, Pamela Anderson thinks that means the rapper can help with a legal case close to her heart: that of Julian Assange. According to TMZ, Anderson has written a letter to West, asking him to give her friend some publicity and claiming the WikiLeaks founder is being tortured.

    • Julian Assange ‘BANNED from taking visitors and phone calls’ in Ecuador embassy

      The Wikileaks Twitter account wrote that the Ecuadorian embassy in London was refusing Mr Assange most forms of contact with the outside world.

      Mr Assange has been living in the embassy since June 2012 when he faced extradition to Sweden to face questioning over allegations of sex crimes, which he has always denied.

    • Ecuador ‘bans Julian Assange from taking visitors and phone calls’ in embassy where he’s been holed up for almost six years

      Ecuador has banned WikiLeaks founder Julian Assange from taking visitors and phones, it has been claimed.

      The whistleblower website tweeted that Mr Assange was being refused most forms of contact with the outside world by the Ecuadorian embassy in London.

      He has been living at the embassy since June 2012 to avoid extradition to Sweden to face questioning over allegations of sex crimes, which he always denied.

      But Mr Assange is facing increasing isolation inside the embassy, with officials announcing in March that he was having his internet access curtailed.

    • Ex-Assange Hater Sarah Palin Praises WikiLeaks’ Head for ‘Opening People’s Eyes’

      WikiLeaks published the former governor of Alaska’s private emails back in 2008. She has until recently been a strong critic of WikiLeaks’ activities, but has now changed her views.

      Sarah Palin, former Republican governor of Alaska, has expressed her appreciation for Julian Assange’s work as the head of WikiLeaks in an interview with the One America News network. According to her, she had previously not understood how important his work is, but now she has seen that Assange is “trying to provide people with information.” Palin is confident that such information helps people make “better decisions.”

    • ‘The smelly kid in class’: Former Met officer taunts Julian Assange’s mother on Twitter
    • Sputnik: Ecuador Prepares to Hand Julian Assange Over to UK

      More than six years after Julian Assange moved himself into the confines of the Ecuadorian embassy building in London, the WikiLeaks founder finds himself in danger again, Sputnik writes.
      Remarks made earlier this week by Ecuador’s Foreign Minister Maria Fernanda Espinosa suggest that her government may be depriving Assange of the political asylum it granted him in in 2012 and hand him over to British and then US authorities, the World Socialist Website wrote on Saturday.

    • Ecuador Hints It May Hand Over Assange

      Julian Assange is in immense danger. Remarks made this week by Ecuador’s foreign minister suggest that her government may be preparing to renege on the political asylum it granted to the WikiLeaks editor in 2012 and hand him over to British and then American authorities.

      On March 28, under immense pressure from the British and U.S. governments, Ecuador imposed a complete ban on Assange having any Internet or phone contact with the outside world, and blocked his friends and supporters from physically visiting him. For 46 days, he has not been heard from.

      Ecuadorian Foreign Minister Maria Fernanda Espinosa stated in a Spanish-language interview on Wednesday that her government and Britain “have the intention and the interest that this be resolved.” Moves were underway, she said, to reach a “definite agreement” on Assange.

      If Assange falls into the hands of the British state, he faces being turned over to the U.S. Last year, U.S. Attorney General Jeff Sessions stated that putting Assange on trial for espionage was a “priority.” CIA director Mike Pompeo, now secretary of state, asserted that WikiLeaks was a “non-state hostile intelligence service.”

  • Finance

  • AstroTurf/Lobbying/Politics

    • 5 Surprising Ways America Is Actually Moving Backwards

      When people wax nostalgic, it’s typically for fun stuff, like old cameras and weathered rocking chairs … not polio or segregation.

    • At FDA, TVs now turned to Fox News and can’t be switched

      CBS News has confirmed an email was sent to researchers at the FDA’s Center for Biologics Evaluation and Research responding to apparent efforts to change the channel on internal television screens. The email from “[White Oak] Digital Display” sent on Wednesday, May 3, was sent to inform the researchers of the “reason for the change from CNN to Fox.” White Oak is the name of the FDA’s campus.

      The email goes on to inform employees that the decision came from the Trump administration.

  • Censorship/Free Speech

    • Fresh case of censorship hits Zimbabwe as dancehall star is fined over song

      Zimbabwean dancehall star, Tawanda Mumanyi, popularly known as Seh Calaz, may spend a month in jail if he fails to pay a $100 fine imposed on him by a court in Harare for recording a song deemed as obscene and indecent.

      Magistrate Ms Josephine Sande on Thursday convicted him of contravening the country’s Censorship and Entertainment Control Act with his song “Kurova Hohwa”, local media The Herald reports.

      Mumanyi, in his plea in mitigation, said when he recorded the song, he did two versions, one for the public and another for private use.

    • Publishers, Editors Inflict Tyranny of Censorship on Freedom of Speech, Says Adedayo

      A member of the Tribune’s editorial board and former media adviser to ex-Enugu and current Oyo State governors, Dr. Festus Adedayo, has said that government censorship of freedom of the press and freedom to publish were fast diminishing in the world and is being substituted by other forms of censorships, the most visible being internal censorship by book publishers and editors themselves.

      He made this known while discussing the sub-theme “Addressing freedom to publish challenges in Africa” as one of the panelists at the recently concluded seminar of the International Publishers Association (IPA) held at the Eko Hotels & Suites with the general theme

      “Publishing for sustainable development: The role of publishers in Africa.”

    • Eurovision Returns To Glitz, Politics And Censorship

      In previous years, those have mostly involved Russia. Last year, for instance, the Russian act was banned by Ukrainian authorities from coming to the country since she had visited Crimea after Russia annexed the peninsula. This year Russia submitted the same singer, Yuliya Samoylova, but she failed to qualify for Saturday night’s final.

      This year, as in contests past, some of the audience booed as the Russian voting results were being read, a response to anti-LGBT policies in Russia. Eurovision has a large gay following, and rainbow flags are frequently seen in the crowd alongside national flags from competing countries.

      Chinese viewers of Tuesday’s semifinal would have struggled to make out those flags, though, as Mango TV blurred out rainbow flags.

      China, which doesn’t compete in the contest, also edited out two of the acts from the performance.

    • Facebook censorship

      On Friday night, Facebook blocked a Dawn.com post for Pakistani users of its platform.

      The 2017 update was a news report on politician Javed Hashmi’s news conference in which he criticised the judiciary, the military and politicians with a warning that the country had entered the worst crisis in its history.

    • What Spotify’s Alarming R. Kelly Censorship Means for the Future of the Internet

      Seen from one perspective, the industry-defining streaming music service is a golden beacon, a bright light piercing the gloom of a profit-hungry, dangerously amoral industry, thanks to its renewed commitment to ethical business practices. Shift your vantage point a bit, however, and it’s a dark and sinister censorship machine—a bleak harbinger of our technodystopian future in which unaccountable internet services become our nanny bots, removing any power or responsibility from human end-users sucking at the silicon teat.

      Here’s how we got here: On Thursday, Spotify rolled out a new “Hate Content & Hateful Conduct” policy, which says the service may remove songs or entire artist catalogs from curated playlists—or even erase them from the service altogether—if a song “incites hatred or violence against a group or individual” based on their race, religion, sexual orientation or other sensitive aspect of their identity. Furthermore, even if their music is unobjectionable, artists may also be deep-sixed if their personal behavior doesn’t live up to Spotify’s moral standards. For example, the company says, violence against children and sexual violence are beyond the pale.

    • Eurovision: Is Chinese censorship on the rise?

      When you’re at home watching TV, you wouldn’t normally expect a broadcast to suddenly cut out.

      But that’s exactly what audiences in China have become used to.

      During the first semi-final of the 2018 Eurovision Song Contest, Chinese broadcaster Mango TV edited out footage.

      It blurred rainbow flags and removed some entries altogether.

      Irish singer Ryan O’Shaughnessy’s performance was not aired because it featured two male dancers enacting a gay love story.

    • Eurovision axes Chinese broadcast after censorship row

      The European Broadcasting Union has torn up its contract with a leading Chinese broadcaster which held the rights to air this year’s Eurovision Song Contest.

      The dramatic move by the EBU followed the Chinese broadcaster’s decision to censor two performances in the competition’s first semi-final earlier this week.

  • Privacy/Surveillance

    • A former spy boss believes the next generation of agents could come from Manchester – this is why

      A former spy boss believes young Mancunians affected by the Manchester Arena bomb will apply to join the new GCHQ centre in Manchester when it arrives next year.

      Robert Hannigan, ex-director of the UK intelligence agency, which works closely with MI5 and MI6 to combat terrorism, said ‘keeping the city safe’ after last year’s atrocity will be a big motivator for a generation of new recruits.

      Speaking exclusively to the M.E.N during a visit to the city, Hannigan, said the ‘diverse and young workforce’, growing tech industry and ‘impressive’ universities offered an ‘untapped talent pool’ for the new Government Communications Headquarters base.

      He said: “Counter terrorism is a massive part of GCHQ’s work and it’s apt to be able to come to a city that has suffered from it. It’s great that young people in Manchester will have an opportunity to be part of that.

    • The Clock Is Ticking: Get Your Copy Of CIA: Collect It All On Kickstarter!

      Last month, we launched our Kickstarter campaign to turn a formerly-top-secret CIA training game into something you can play at home. We hit our goal much sooner than we expected, and now we’re less than two weeks away from the close of the campaign — so if you want to get your hands on a copy, hurry up and become a backer!

      CIA: Collect It All comes with over 150 high-quality playing cards in a premium box, and is also available in a digital print-and-play version. The game pits you and your friends against each other in a race to solve as many global crises as you can by leveraging clever combinations of the many varied and creative techniques used by real intelligence agencies, from satellite imagery to hacking to good old fashioned espionage.

    • US pollies again push bill to ban encryption backdoors

      US politicians from both sides of the divide have reintroduced a bill into Congress that would prevent any government bid to mandate that backdoors be built into commercial software and hardware.

    • Government would be barred from mandating crypto backdoors under House bill

      The Secure Data Act would prohibit agencies from mandating or requesting a “manufacturer, developer, or seller of covered products [to] design or alter the security functions in its product or service to allow” for surveillance. The bill would exempt surveillance authorized by the Communications Assistance for Law Enforcement Act.

    • Cops Can Find the Location of Any Phone in the Country in Seconds, and a Senator Wants to Know Why

      Here are the letters Senator Ron Wyden sent to mobile carriers and the FCC demanding answers and action on the recently highlighted law enforcement service to easily track phones across the country.

    • DNA is just another way we can’t opt out of data sharing

      But I absolutely believe we are dangerously lacking in responsible stewardship of both data and having a sane conversation about imbalances of power. So, like most of us, I do what I can to hope for the best and prepare for the worst.

    • Facebook Just Tapped the Next Mark Zuckerberg

      If there were ever a question as to who would step in to fill Zuckerberg’s shoes should something happen to him, it has been resolved. With his new role as head of the company’s family of apps—Instagram, WhatsApp, Messenger and the tried and true Big Blue (aka Facebook)—Facebook’s chief product officer is stepping out as the leader he has long been internally. Anyone paying close attention knows this already.

    • Facebook is making its biggest executive shuffle in company history

      CEO Mark Zuckerberg has reorganized the social giant’s product and engineering organizations into three main divisions, including a new “Family of apps” group run by Chief Product Officer Chris Cox, the executive previously in charge of the core Facebook app. Cox will now oversee Facebook, Instagram, WhatsApp and Messenger, according to multiple sources, four social apps with a combined reach of more than five billion monthly users.

    • ‘We’re waiting for answers’: Facebook, Brexit and 40 questions

      “It could be that these adverts are just the tip of the iceberg. It’s just so hard getting any sort of information out of them, and then not knowing if that information is complete.”

    • Facebook hit with class action lawsuit over collection of texts and call logs

      Facebook collected the logs of text messages and calls, including the recipients and duration of the communications, through its apps for Android including Messenger when users opted into being able to send SMS from the app or give access to their contact lists.

  • Civil Rights/Policing

    • Black activist jailed for his Facebook posts speaks out about secret FBI surveillance

      Handcuffed and shaking in the cold wind, Balogun thought a misunderstanding must have led the FBI to his door on 12 December 2017. The father of three said he was shocked to later learn that agents investigating “domestic terrorism” had been monitoring him for years and were arresting him that day in part because of his Facebook posts criticizing police.

    • Congress Weighs Indefinite Detention of Americans

      Under the guise of exercising supervisory power over the president’s ability to use military force, Congress is considering writing Donald Trump a blank check to indefinitely detain U.S. citizens with no criminal charges. Alarmingly, this legislation could permit the president to lock up Americans who dissent against U.S. military policy.

      The bill that risks conveying this power to the president is the broad new Authorization for Use of Military Force (AUMF), S.J.Res.59, that is pending in Congress. Senate Foreign Relations Committee chair Bob Corker (R-TN) and Democratic committee member Tim Kaine (VA) introduced the bipartisan bill on April 16, and it has four additional co-sponsors.

      This proposed 2018 AUMF would replace the 2001 AUMF that Congress gave George W. Bush after the September 11 attacks. Although the 2001 AUMF authorized the president to use “all necessary and appropriate force” only against individuals and groups responsible for the 9/11 attacks, three presidents have relied on it to justify at least 37 military operations in 14 countries, many of them unrelated to 9/11.

    • Loyal dog protects its owner from furious motorists as he sleeps off hangover in the middle of a street

      The protective pooch lies on top of the man in the footage and barks at anyone who comes near him.

      The dog then licks its owner’s face and paces around his body in a circle in a desperate bid to protect him.

  • Internet Policy/Net Neutrality

  • DRM

    • Innovation should be legal; that’s why I’m launching NeTV2

      I’d like to share a project I’m working on that could have an impact on your future freedoms in the digital age. It’s an open video development board I call NeTV2.

      It’s related to a lawsuit I’ve filed with the help of the EFF against the US government to reform Section 1201 of the DMCA. Currently, Section 1201 imbues media cartels with nearly unchecked power to prevent us from innovating and expressing ourselves, thus restricting our right to free speech.

  • Intellectual Monopolies

    • Jury Cannot Award Disgorgement of Profits in Trade Secret Misappropriation Cases

      Tex. Advanced Optoelectronic Sols., Inc. v. Renesas Elecs. Am., Inc., Nos. 2016-2121, 2016-2208, 2016-2235, 2018 (Fed. Cir. May 1, 2018) (Before Dyk, Bryson, and Taranto, J.) (Opinion for the court, Taranto, J.)

      The Federal Circuit affirmed a jury finding that Renesas was liable for trade secret misappropriation and patent infringement for a set of apparatus claims, but vacated the damages awards in the case and remanded for further proceedings.

    • Trademarks

    • Copyrights

      • Pirate IPTV Service Goes Bust After Premier League Deal, Exposing Users

        Pirate IPTV service Ace Hosting has shut down and gone into liquidation after agreeing to pay the Premier League a copyright settlement of £100,000. With unpaid VAT and corporation tax bills running to £260,000 also unpaid, Ace subscribers and resellers, who are owed around £353,000, are set to have their details made public and could even be handed to the authorities.

      • Google is preparing to petition the Federal Circuit to revisit Oracle’s Android-Java copyright victory

        While I’m not going to reiterate my positions on copyrightability and “fair use” in connection with Oracle v. Google (I fully stand by what I’ve written before and which the Federal Circuit has vindicated, but don’t see a point in repeating what I’ve been saying for so many years), it does sometimes surprise me that there is so little interest in the proceedings. The latest example is that I haven’t seen any media coverage of the fact that Google is preparing a petition for a rehearing en banc (a full-court review) of Oracle’s recent appellate victory (this post continues below the image):

      • Bing Deleted a Quarter Billion Pirate Research Results Last Year

        When it comes to takedown notices, a lot of attention is paid to Google. But what about Bing? Last year, copyright holders asked Microsoft’s search engine to remove roughly a quarter billion URLs from its index. Among the requesting copyright holders is, interestingly, Microsoft itself.

      • Iconic Megaupload.com Domain Has a New Owner

        As part of its criminal case against Megaupload, the US Government seized several domain names belonging to Kim Dotcom’s defunct file-hosting service. While the feds have held onto the iconic Megaupload.com domain for years, it was recently taken over by RegistrarAds, a company with a history of controversial domain cases.

      • BitTorrent Inc. Changed Its Name to Rainberry

        BitTorrent is without a doubt one of the more recognizable technology brands of the century. It, therefore, comes a surprise that BitTorrent Inc. has changed its name to Rainberry. According to the company, it’s strictly a “corporate decision,” but a more detailed motivation is lacking.

Software Patents in the United States: It’s a Lot More Difficult, But Patent Examiners Must Watch Out for Buzzwords and Hype/Marketing

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

Patent lawyers/applicants try to describe algorithms in terms which are deliberately misleading

Pep vibrates
Anxious to see if they can mislead the examiners

Summary: A roundup of announcements and news pertaining to software patents in the US, including some of the latest ‘trendy’ ways for bypassing Alice/Section 101 (in effect a ban on abstract patents, such as patents on algorithms)

THE USPTO does not grant software patents as easily or as frequently as it did before. Sure, many of these slip in and of course the courts (and PTAB) throw many of these away. We happen to be watching (and have watched) patent lawsuits and grants. We try to understand what’s going on. Several months ago we habitually showed the many cases/situations where PTAB thwarted patent grants just before the grant; Section 101 was cited quite a lot back then. But PTAB’s capacity is limited, so there aren’t always appeals. PTAB rarely gets involved at this particular stage (when it does, as happens more over time, a grant typically gets denied).

A few days ago this press release came out, bragging about nothing but new patent grants. Some of these patents are software patents based on my fast reading of the press release. It’s likely that patent law (e.g. assessment by PTAB) would render them worthless. From the press release: “Covering a spectrum of technologies including: vehicle-to-grid power integration, vehicle controls software, exportable power, and unique powertrain architectures, these recent patent grants further strengthen the international IP position for EDI.”

“Several months ago we habitually showed the many cases/situations where PTAB thwarted patent grants just before the grant; Section 101 was cited quite a lot back then.”Based on another new press release, Bigbelly continues in its patent lawsuits expedition/campaign, using what seems like software patents. Techrights covered this quite a few times in the past. Bigbelly seems like somewhat of a troll. The press release says that “the cloud-connected Bigbelly smart waste and recycling system combines smart, sensing, compacting stations with real-time software.” (yes, they say software)

Another litigious firm, 3Shape, uses patents — apparently software patents included [1, 2] — to harass a rival. It’s doing it again. Its press release says:

3Shape A/S today announced that it has filed a patent infringement complaint asserting its Patent No. US 9,962,244 B2: Focus Scanning Apparatus Recording Color against Align Technology, asserting that Align Technology’s ITero Elements intraoral scanner infringes the 3Shape patent.

We’ve already explained why at least some of these patents seem to cover software.

If lawsuits aren’t bad enough, how about patent-induced embargo (ish) over “motion sensor hardware, software and/or design” (which might be deemed invalid if actually properly assessed)? To quote this days-old announcement:

The District Court has issued an injunction against PPG and its principals, officers, directors, shareholders, employees, affiliates, agents, successors and assigns are, as of May 9, 2018, enjoined from making, using, selling, importing, or offering motion sensor hardware, software and/or designs that operate (and/or would enable products to operate) in the same or substantially similar manner as the PPG technology accused of infringing multiple claims for U.S. Patent No. 8,903,521.This injunction shall continue until the expiration of the ’521 patent or until modified by the Court.

There are even patents that mention software explicitly, e.g. [1, 2] in recent days. ‘Cloudwashing’ and other buzzwords such as “IoT” are exploited to patent software as well. Such patents are bunk, void, rubbish, but here they go again with “Internet of Things” in the headline (4 patents). CloudTrade too does not seem to be aware that software patents are nowadays pretty much void and invalid, worthless at best. It still brags about these. To quote: “CloudTrade’s patent-protected software uses unique rules-based technology with backward tracking search, to interpret, validate, and extrapolate semantic meaning from complex documents, of any type.”

“We certainly hope that examiners know better than hype waves and buzzwords; software remains software (code), no matter what label/marketing term one ‘slaps’ onto it.”We should probably note that Alice-dodging has become rather common a practice — one that we’ll cover separately in a later post. Among the tricks? Having software disguised using “AI”, “Internet of Things”, or “blockchain” hype (there are many others). Here is a new example of it — one wherein bunk patents and likely worthless patents are painted/framed as “blockchain”. On April 24th the patent maximalists wrote about “blockchain patent trends” (basically software patents). “Johan Ståhlberg and Isabel Cantallops Fiol of Valea AB consider developments in the field of blockchain patents, examining the number of blockchain patents applied for and granted in various jurisdictions and fields,” said the summary. Weeks later colleagues like Karry Lai in Hong Kong wrote about “blockchain and AI”. “The chief IP counsel of the fintech leader tells Managing IP about the challenges of blockchain and AI patent filing,” says the summary. They actively promote all this hype and they avoid speaking about software (which is, inherently, what all those things boil down to). Software patents are bunk, even if one labels algorithms “AI” or “blockchain” or whatever.

A few days ago Susan Y. Tull from Finnegan (Finnegan, Henderson, Farabow, Garrett & Dunner LLP) wrote about “machine learning” and said that “[n]ewly published patent application and granted patents reveal applications of artificial intelligence software” (notice the word software).

She correctly attributed this kind of ‘trick’ to IBM, which nowadays calls many of its software patents “cloud” or “AI” (we covered this before). To quote:

In 2017, IBM received a patent for drug discovery using machine learning.

[...]

Software and software applications are increasingly being applied to the medical device and health tracking fields. Apple recently obtained a patent directed to an “electronic device that computes health data.” U.S. Patent No. 9,723,993 is directed to an electronic device including a camera and sensors to compute the health data of the user. Of note, the patent’s illustrations show Apple’s iPhone performing this function. Oxygen saturation, pulse rate, and perfusion index are among the tracked conditions identified in the patent.

When they speak about stuff like “computes health data” they talk about data processing using algorithms; they want the readers to think that supposed “intelligence” (as in AI) somehow makes that an invention and therefore patent-eligible. We certainly hope that examiners know better than hype waves and buzzwords; software remains software (code), no matter what label/marketing term one ‘slaps’ onto it. █

EPO-Funded Propaganda for Software Patents Reaches as Far as East Asia and the EPO Then Brags About That

Posted in Asia, Deception, Europe, Patents at 9:53 am by Dr. Roy Schestowitz

EPO gazette

Summary: The Gazette and the European media have already disseminated the “4IR” lie (pretending algorithms are something they’re not) and the patent-printing machine which Battistelli grossly misuses seems to have spread that lie to all four corners of the planet

THE USPTO is moving away from software patents, but the corrupt EPO goes in the opposite direction in defiance of the law. Last year Battistelli wasted EPO budget paying European media (the ‘Big Publishers’) to create so-called ‘research’ and spread this propaganda of his (calling software “4IR”). Shown above is the EPO’s internal gazette (quarterly publication, full of lies that outsiders cannot see and therefore challenge/correct), which also disseminated this propaganda to about 10,000 people, mostly EPO insiders. Just before the weekend the EPO wrote: “Europe, the USA and Japan are the established leaders in #4IR innovation, but China and Korea are rapidly catching up. More findings here: http://bit.ly/4IR_findings” (notice the image they’re using).

“Last year Battistelli wasted EPO budget paying European media (the ‘Big Publishers’) to create so-called ‘research’ and spread this propaganda of his (calling software “4IR”).”If that’s not bad enough, they have also just created this new page. That was less than a week ago (warning: epo.org link). Found via Mikk Putk‏ , the page is titled “Korea: Accelerated examination for Industry 4.0 related inventions implemented” (sounds similar to computer-implemented inventions, another buzzword/mask for software patents).

“EPO insiders call Battistelli a “cancer” or a “tumour” and judging by the above development this “cancer” is spreading globally.”Several weeks ago we wrote about how the EPO had apparently lobbied Korea to adopt this lie (which Battistelli wasted EPO budget to manufacture). As Benjamin Henrion put it some days ago: ‘Korean Patent Office pushing for software patents by renaming them as “4th Industrial Revolution” https://is.gd/2uH21G google translate is your friend, but no way to add a link to it…”

EPO insiders call Battistelli a “cancer” or a “tumour” and judging by the above development this “cancer” is spreading globally. Battistelli’s impact, however corrupt it may be, cannot be ignored by those outside Europe. South Korea does not generally allow software patents; will the Koreans too attempt to (mis)use some buzzwords of Team Battistelli to change that? █

CAFC is Under Attack by the Patent Microcosm, Whose Scrutiny is Starting to Resemble PTAB-Bashing

Posted in America, Courtroom, Law, Patents at 8:46 am by Dr. Roy Schestowitz

The Patent Trial and Appeal Board (PTAB) is defended by the Supreme Court (Oil States decision), but will patent extremists manage to scandalise and oust judges in another branch?

Watchtroll

Summary: The Court of Appeals for the Federal Circuit (CAFC) is attacked by patent maximalists whenever it suits them, is occasionally being misrepresented by the patent microcosm and is generally coming under intense scrutiny by the perishing ‘industry’ of patent parasites and trolls

THE Court of Appeals for the Federal Circuit (CAFC) is the basis/substance of Section 101 caselaw, which the USPTO follows. CAFC, in turn, adopts decisions other than its own, notably those of the Supreme Court, e.g. Alice and Oil States. As we shall show tomorrow, the USPTO is altering a few things in its guidelines, based on CAFC and the Supreme Court; it’s nothing radical, but patent maximalists do try to make it sounds profound and revolutionary. They hope to affect the outcome that way.

The Federal Circuit Bar Association (FCBA) is a group of patent maximalists. As per this promotion from earlier today, there’s a session coming later this month:

The Federal Circuit Bar Association (FCBA) will be offering a webcast entitled “Last Party Standing: Who Has Standing to Appeal Administrative Decisions to the Federal Circuit?” on May 22, 2018 from 3:00 pm to 4:30 pm (EST).

FCBA being FCBA, it will be speaking for patent maximalists rather than actual patent judges from CAFC. This is expected. We expect nothing else.

In this age of Trump/Trumpism we’re seeing many attacks on judges (like their President). The latest attacks on CAFC — not just on PTAB — come from cowboy hats-donning self-acclaimed "inventors" (who used terms like “draining the swamp” in relation to USPTO Director Michelle Lee). They spewed this out at Watchtroll 5 days ago. So the site has just attacked CAFC (a high court) yet again. We’re sure that the judges at CAFC will be very impressed. This only further alienates them. Watchtroll habitually calls for firing or resignation of judges (CAFC judges included) if they 'dare' say something that patent maximalists do not wish to hear. It’s mob mentality. Theodore Chiacchio does the same (4 days ago), albeit more politely. Writing about the decisions of CAFC is OK, but bashing the decisions, the courts and even individual judges is not honourable. It’s not illegal, but it’s disrespectful and it paints these attorneys/pundits as people who disregard the law except when a decision suits them.

So putting aside these nasty attacks, let’s look at what CAFC actually did do. We don’t wish to feed/entertain insults or words about them.

First of all, patent lawyers engage in misconduct again. Referred to as “unclean hands”, this was covered by Watchtroll and others before it [1, 2]. Ashley M. Winkler (Finnegan, Henderson, Farabow, Garrett & Dunner, LLP) wrote that “CAFC Affirms District Court Decision Finding Unclean Hands In Gilead V. Merck” and here’s the substance of the argument:

In Gilead Sciences, Inc. v. Merck & Co. Inc., Nos. 16-2302, 16-2615 (Fed. Cir. Apr. 25, 2018), the CAFC affirmed the district court’s finding that misconduct attributable to Merck barred it from asserting two patents against Gilead under the unclean hands doctrine. This appeal arose from an action relating to treatments for Hepatitis C, and more particularly Gilead’s treatments Solvadi® and Harvoni®, which use the compound sofosbuvir. Further discussion of the decision can be found on Finnegan’s Federal Circuit IP Blog.

Another CAFC decision was covered by Charles R. Macedo and Jung Hahm, who oddly enough chose Watchtroll as a platform:

The decision on appeal turned on the construction of a term of art, “non-exhaustive search,” in the field of database search algorithms. Below, the Board’s construction was supported by the specification and the Board’s factual findings—based on objective evidence and credibility determinations—on what “non-exhaustive search” means in the field. Applying its construction, the Board confirmed the patentability of most of the claims challenged in the IPRs. On appeal, the Federal Circuit panel reversed the Board’s construction, vacated in part and remanded those IPR decisions with respect to claims using this term of art. Google LLC v. Network-1 Techs., Inc., No. 16-2509, slip op. (Fed. Cir. Mar. 26, 2018) (nonprecedential) (“Opinion”).

Algorithms are abstract as per Section 101 and should thus be unworthy of patents; any patents on these (even if they call the said database/s “blockchain” or whatever) ought to be voided by the court. In this particular case CAFC seems to be even tougher than PTAB. It makes it quite interesting.

Another blog of patent maximalists spoke about the rare situation “[w]hen two decisions are released simultaneously [and] how [one can] treat the precedential value of the cases relative to one another” (like a chronology rule of thumb). The Supreme Court often releases decisions in tandem and it recently released two decisions — both pertaining to PTAB — simultaneously. To quote this post, which actually focuses on CAFC:

The tension between the cases in this situation is actually fairly small, but the setup raises an interesting question in my mind. When two decisions are released simultaneously, how should we treat the precedential value of the cases relative to one another? My initial answer is that the cases should be treated as we would a plurality Supreme Court decision.

Veering away from the simultaneous release — would it matter if one were uploaded to PACER (the Docket) a few hours before the other? Under Federal Rules of Appellate Procedure R. 36, “a judgment is entered when it is noted on the docket.” The rules do not, particularly define priority of precedent, and I have not seen any Federal Circuit precedent on-point. Supreme Court becomes precedent immediately upon release. Federal Circuit decisions should seemingly have the same result by Default.

If Justices’ decisions (such as Oil States, which we shall cover later) become precedents “immediately upon release,” then it must spell trouble to a lot of cases against PTAB, including the publicity stunt which is class action (also to be covered later and separately). █

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