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06.25.18

The EPO Seems to Have Corrupted ILO/ILO-AT Like It Corrupted the Media and Academia (Using ‘Toxic’ EPO Budget)

Posted in Courtroom, Europe, Patents at 9:03 am by Dr. Roy Schestowitz

EPO cash reserves are being exploited politically

ILO-AT and EPO
Source

Summary: People are starting to notice and point out compositional flaws and potentially very serious conflicts of interest inside ILO, which is supposed to ensure justice for EPO workers and is instead stonewalling the vast majority of them (just like Battistelli’s kangaroo courts inside the EPO)

CORRUPTION at the EPO is becoming more evident over time and it is rather infectious. It spreads to other institutions, some of which are supposed to guard against corruption. Don’t expect António Campinos to tackle any of this because as head of EU-IPO he often participated in this (e.g. commissioning so-called ‘studies’ together with Battistelli), he is indebted to Battistelli, and they have known each other for many years, never mind the fact that they're both French.

A local professor, who has quite a few European Patents and also patents at the USPTO, recently told me (2 days ago to be exact) that large booze companies (breweries) funded research on the supposed health benefits of alcohol. Quite a few academics decided to cooperate with them (the budget was incredibly large) until it got exposed, whereupon the whole thing (with its massive budget) got immediately dismantled. This, however, never quite happened under Battistelli. He kept scattering money and gifts to so-called ‘journalists’ (willing participants in the PR charades of Team Battistelli); he also relied on academics/scholars with ‘studies’ about patent trolls (denying the issue), UPC prospects (paying universities in the US as well — not just in the UK — for it!) and there’s no paperwork or paper trail by which to assess how much money was wasted on these lies, putting aside the massive toll in terms of trust, reputation and integrity of press, academia, etc. Put bluntly, money influx from patent applications was misused to corrupt academic institutions and European media. We hope that EPO stakeholders (e.g. applicants) are well aware of it by now. Some of that money also landed (by the millions) on Battistelli’s other employer.

“Is Team Battistelli doing to ILO what it did to the Boards of Appeal, basically removing the independence of courts by means of entryism and terrorism?”The EPO, or Team Battistelli to put it another way, is corrupting everything in touches, even politicians who help the UPCA move forward (it has made Germany look like a third-world country). Bayer/Monsanto have done similar things at all levels (academia, media, politicians, regulators), so maybe herein lies the best analogy. But has the EPO poisoned the courts too? Even those outside the EPO? Has that ‘cancer’ spread to ILO? Well, some comments in blogs certainly suggest so. We’ve decided to assemble them all in one place as these were posted in several separate places/posts. It’s related to this morning's ILO article, which was maybe inspired by some of these ‘leads’.

Is Team Battistelli doing to ILO what it did to the Boards of Appeal, basically removing the independence of courts by means of entryism and terrorism? They terrorise even judges and as Kluwer Patent Blog put it last week, “it seems Mr. Corcoran’s health has suffered severely from the situation and he has recently been admitted to a psychiatric hospital.”

Well, what sort of ‘court’ would the UPC be (apparently, rumours persist that corrupt Battistelli wants to be its chief)? Among the interesting comments that speak about it we have this:

It is easy to guess, I think it is clear to everyone that ILO is little more than a kangaroo court. I hope that Märpel is right and that Karlsruhe will notice that there is no judicial independence and stall the UPC until reforms are decided.

In another thread someone said: “Karlsruhe is watching you, dear Administrative Council members.”

As Kluwer Patent Blog put it last week, “Dear Mr. Chairman and Members of the Administrative Council, you have a high responsibility for what is going on at the EPO. Rest assured that both the public and the Federal Constitutional Court in Karlsruhe will be closely watching you.”

We expect the UPC to die, but confirmation of this death may take months if not years. We’ve always been told (for 3-4 years) that UPC was “just about to start” (“real soon now!”) but it never happened. These were unethical marketing stunts from patent law firms, notably Team UPC (which had drafted and lobbied for the UPCA to be ratified).

A few days ago Vincenz Weber wrote about his concerns for the EPO’s future:

Do not forget that the only asset the EPO has lies in its staff. It is a purely intellectual job, the EPO does not own factories or produce tangible assets. The EPO has also investment in his prior art collection, but that is an asset that every patent office and google can also offer. The real value lies solely in the brains and training of its staff.

That asset has been systematically erased under Battistelli. The EPO lost their best and more experienced staff either to early retirement or to seek other jobs or both. They also severely reduced their appeal on the job market and could not fulfill their recruitment targets, even when lowering their criteria considerably. I am sorry to say this, most of our young colleagues are charming, some are quite competent but a worrying percentage came because nobody else could possibly use them.

Battistelli also seem to want the staff not to feel part of a great project. Every other firm on the planet would have killed to get the spirit we used to have: people believed in the EPC, people grew a circle of friends at work and many retirees continued to visit regularly, because that is where their life was. Nowadays, retirees aren’t even allowed on the premises and staff is expected to rat on their colleagues if they want a non-pensionable bonus.

The lasting effects of this policy will haunt the EPO for a long time. It took 40 years to get the staff we had.

Here’s a similar view:

We stop industry visits, reorganisation in classification, training. Coaches for newcomers are more and more selected among the highly productive colleagues, those that cut many corners ; newcomers in a few years’ time will be on their own with little knowledge. at the moment examiners don’t have time to examine but at some point, the majority of examiners will not be able to properly examine. EPO will then be dead.

What if the “organisation is brought to collapse?” Read the following comment:

I sincerely hope that the political debate will yield fruits. If nothing is done, the situation can only go downwards. Why would the next president or the further next one refrain from abusing power, if he or she can do so with complete impunity / immunity? Battistelli has demonstrated that he could win over whomever was opposing him (internal controlling, suepo and individual members of the council) and get a free pass to put 2 billions Euros in a dubious investment scheme. All passed with flying colours and a personal bonus.

The EPO cannot afford another president like this one, but why would the next ones refrain from doing the same until the organisation is brought to collapse?

The more interesting comments, which contained relatively new information, were about ILO’s composition. Here’s some analysis of ILO:

I just got a quick look on internet and I found this link:

http://www.ilo.org/wcmsp5/groups/public/—dgreports/—trib/documents/meetingdocument/wcms_546217.pdf

When we look more carefully, only 14 persons did a speech during the celebration.

– The symposium was opened by Claude Rouiller and Drazen Petrovic.

– Intervention from Laurent Germond, Director, Employment Law, European Patent Organisation (EPO): “The general principles applied by the Tribunal”

– Intervention from Jean‐Didier Sicault , Attorney, Senior Lecturer in International Civil Service Law at the University of Paris II, France: “Milestones of the Tribunal case law”.

We have to take note that Mr Sicault was the employer of Mr Germond from 1998 to 2005. See https://de.linkedin.com/in/laurent-germond-9b90206a

It seems that Märpel was right when she said:
The world of international organisations is tiny, the world of international administrative justice even more so.

It looks to be a very small family where each cat knows very well the other cats.
Little mouses have no hope of justice.

The following comment took note of Bosnia-Hercegovina, related to the chief PR person of the EPO, as we noted here before (also enabling the EPO to better control Transparency International which she came from). As noted 3 years ago, “[s]he started her professional career as Democratization Officer heading an OSCE field office in Zenica in Bosnia and Herzegovina…”

Guess who else comes from there. To quote:

More interesting details can be found in Mr Petrovic’s official biography:

http://legal.un.org/avl/pdf/ls/Petrovic_%20bio.pdf

Best to make a copy before it disappears!

His intial law degree was obtained from Sarajevo University Faculty of Law in 1985.
This suggests that Mr. Petrovic comes from Bosnia-Hercegovina which at that time was still part of the Federal Republic of Yugoslavia.

He subsequently obtained a postgraduate qualification as “Master of Science in Law” from the University of Belgrade, Faculty of Law in 1990.

By an interesting coincidence a Vice-President of the EPO also comes from Bosnia-Hercegovina. His claimed academic qualifications include a “Master of Science in Economics” from the University of Banja Luka which was allegedly completed in 1989 although the degree certificate was not issued until 2001. There has been some controversy about the authenticity of this degree.

From the available evidence it seems that both Mr Petrovic and the EPO Vice-President hail from Bosnia-Hercegovina and were students at around the same time. It would be interesting to know if they are personally acquainted with each other ?

The term “Team Battistelli” which we coined is then brought up:

It should not be forgotten that the AT-ILO has also been complicit in covering “Team Battistelli” in other ways.

For example it has been sitting for a long time on the files in cases challenging the appointment of a certain member of Battistelli’s entourage who was “miraculously” promoted from grade A3 to A6 some time around the beginning of 2013 after she had been at the EPO for less than two years !

It is to be expected that at some point in the future the AT-ILO will get around to dealing with these cases and may even declare the promotion to have been unlawful.

But at that point Battistelli and most of his team will be long departed and it will be cold comfort to EPO staff to receive confirmation that the HR department had been controlled for many years by someone who should never have been appointed to such a position of responsibility.

Another example of how the AT-ILO fails to deliver effective legal protection against egregious abuses of power.

The AT-ILO is no solution – it is part of the problem …

Here’s more:

Mr. President will surely know the 126th session’s cases already.
The head of the international organisation is informed quickly after the decision.
And with the announcement of 22 May, I get the impression, that AT-ILO has a last present for the parting President.
They seem to be moving cases to not spoil his farewell bonus.

http://www.ilo.org/tribunal/news/WCMS_630007/lang–en/index.htm

OTOH, the postponement can also mean that they find the Corcoran case decision handling by Mr. B. was sub-optimal, and now wait with further decisions for a new president, who might be more willing to implement them according to the intention of the decision.
I’d love to know which cases were moved to a later session…
This just invites wild sepculation.

Some of this was already summarised succinctly in this morning’s post, but the above contains additional links and makes one wonder if the EPO ‘infiltrated’ ILO. That might help explain the change of tone in recent years.

The same sorts of comments that Merpel used to attract are now landing on Märpel's blog; there are more comments to that effect (regarding ILO) and much more behind/beyond that, we presume from curious EPO insiders who are experts at research (their job requires such skills). What else in Europe and beyond (like US universities and international institutions) is going to be compromised by Team Battistelli? When will authorities initiate an investigation? Battistelli’s immunity will have expired in less than a week, so it’s never too late to file reports, maybe even lawsuits (if EPO staff — past and present — is eligible to file any).

Benoît Battistelli’s ‘Dowry’ From the Administrative Council of the EPO

Posted in Europe, Finance, Fraud, Patents at 8:02 am by Dr. Roy Schestowitz

It might not be the last, either

EPO budget
Image source

Summary: The dreadful state of the EPO, where one man controls everything and mismanages money (sending a huge amount of money to his other employer, giving himself a massive bonus or a “golden parachute”, allegedly paying for national delegates’ votes and gambling with EPO budget), won’t be improved until the entire organisation removes “Team Battistelli” (the manifestation of Battistelli’s 8-year rogue regime)

Battistelli’s very last day at work is this coming Friday. António Campinos will take over after that; he’s more or less Battistelli’s own choice and he too is French.

Another quarterly congregation of the Administrative Council of the EPO will commence in 2 days. Last time it was so secretive that it was hard to confirm that they had given Battistelli a massive bonus (like three years of additional work but without doing anything!).

“It is far worse than FIFA has ever been.”Isn’t it odd that the Administrative Council never said anything (at least not on the record) about Battistelli sending millions of euros (EPO budget) to his other employer? Well, thankfully (albeit very belatedly) German media says something about it (see “Die unheimliche Wette”, as mentioned in our recent post). Just a few hours ago SUEPO wrote: “Publication rights requested and awaiting confirmation…” (so expect an English (and probably French) translation some time soon).

Campinos, a former banker, will likely cover up Battistelli’s financial recklessness and misbehaviour. Remember that a person close to Battistelli (also French) is in the relevant committee. We last mentioned this aspect when dealing with the toxic loans scandals at Battistelli’s other employer. Don’t forget what was mentioned here before in relation to the Greek element in the Finance and Budget Committee (Loredana Gulino). The following comment brought it up again earlier this month. It said this:

What do you expect from someone [Battistelli] with a greek best friend in the Finance and Budget Committee until 2016 (for two years this greek guy was the head of the committee without even having a position in his own country!!!! …and every single one just covered it). However, rumor has it, that during his past tenancy in the greek patent institute (2005-2013) he was a master in bullying….

The EPO is corrupt to the core. It’s worth saying this again: at this stage, considering Ernst’s complicity and Campinos’ ‘selection’ (with Battistelli calling many shots), not to mention Team Battistelli remaining in tact at the very top, the EPO needs to be completely rebooted. High-level management needs to be ‘flushed’ and they need to start all over again to salvage the institution. It is far worse than FIFA has ever been.

06.24.18

Patent Extremism — Like All Extremes — Leads to Bad Outcomes

Posted in America, Patents at 11:57 pm by Dr. Roy Schestowitz

Patents have, to some people, become like a religion

Religion of patents

Summary: Religiously believing in the value of all granted patents is a form of extremism which actively puts many lives at risk; the sooner this is realised, the better off society will be

THE affairs at the EPO serve to show what happens when a patent extremist, Battistelli, is put in charge. With Iancu in charge of the USPTO (a Trump appointee) we might soon have a similar patent extremist calling all the shots (like Battistelli), but we’re not that pessimistic, at least not yet.

“Letting things burn (up in flames) because of patents? Does the court really want to restrict sales of fire trucks?”Balance between patent monopolies and public interests isn’t a new subject; in fact, it’s often debated in the context of access to health, i.e. maximising the saving of lives. The other day the patent blog Docket Report wrote about Pierce Manufacturing, Inc. v E-One, Inc. et al. It said this:

The magistrate judge recommended granting plaintiff’s motion for a preliminary injunction prohibiting sales of the accused fire trucks and found that plaintiff established irreparable harm through lost sales of non-patented products.

Letting things burn (up in flames) because of patents? Does the court really want to restrict sales of fire trucks? There may be impending orders whose delivery is critical for people’s safety.

Docket Report also wrote about The Regents of the University of California et al v Affymetrix, Inc. et al and a high-profile patent case, PPC Broadband, Inc. v Corning Optical Communications RF, LLC, which will potentially reach SCOTUS. The first one shows a taxpayers-funded university (tax-funded research) engaging in patent aggression. It says that “[t]he court granted plaintiff’s motion to compel the production of an email with a third party manufacturer that defendants clawed back under the common interest privilege because the manufacturer was not represented by counsel.”

“Patent maximalism is a disease and it profoundly hurts those who are absolutely innocent.”The second one is summarised as follows: “Following the Federal Circuit’s affirmance of the jury verdict, the magistrate judge recommended granting plaintiff’s motion to enforce liability on defendant’s $68 million supersedeas bond and rejected defendant’s request to continue the stay pending its certiorari petition to the Supreme Court.”

So a district court, the lowest possible court, is trying to deny access to the very highest court, SCOTUS? That makes no sense at all. SCOTUS would quite likely bring sanity back, as it has been doing over the past few years.

“Who benefits? The lawyers. They don’t care who pays the bills as long as they do get paid.”Anyway, here we are dealing with patent maximalists and people who are more concerned about patents than about wellbeing of people and academic institutions (which ought to pursue education, not lawsuits). We grapple with technology-hostile sites like Watchtroll which advertise patents and very belatedly promote software patent lawsuits because their goal is to make lawsuits “great again”. While slamming “Big Tech” (example from yesterday) the site is trying to tell us that it’s interested in “innovation”. Who are those people kidding? They keep attacking judges, they attack politicians who care about science, and they try to eliminate quality control at the USPTO (similar to the Boards of Appeal at the EPO). 4 days ago the site wrote about Xitronix Corporation v KLA-Tencor Corporation and also about this case regarding who pays the lawyers (because that’s all they really care about; it’s about money). At stake here there’s an inter partes review at the Patent Trial and Appeal Board (PTAB), albeit it’s about 35 U.S.C. § 285 rather than something like 35 U.S.C. § 101 (more relevant to us). To quote:

Stone Basket sued Cook for patent infringement and Cook petitioned for an inter partes review of the asserted patent. After the PTAB instituted review, Stone Basket filed a motion requesting adverse judgment. The PTAB granted the motion and canceled all asserted claims. Stone Basket then moved to dismiss the district court litigation with prejudice, and the court granted this motion. Cook then filed a motion for attorney’s fees under § 285, which the court denied because the case was not “exceptional.”

This basically means that frivulous litigation, initiated using bogus patents (issued in error), would still cost a lot of money to the innocent defendant (the victim). Well, isn’t that the “exceptional” thing? That justice makes the victim pay for the victimiser’s abuses/misuses?

Patent maximalism is a disease and it profoundly hurts those who are absolutely innocent. Who benefits? The lawyers. They don’t care who pays the bills as long as they do get paid.

Even After SAS Institute, Inc. v Iancu (Decision on PTAB) There’s No Stopping the Crackdown on Bogus US Patents

Posted in America, Courtroom, Patents at 11:08 pm by Dr. Roy Schestowitz

No sunsetting for the Patent Trial and Appeal Board (PTAB)

Flower sunset

Summary: Technology firms take advantage of PTAB, eliminating patents that should never have been issued by the US patent office in the first place; that makes it incredibly difficult for patent maximalists (led by Iancu) to phase PTAB out, more so after Oil States Energy Group v Greene’s Energy

THE US patent office (USPTO) is being pressured by the court system (notably the Federal Circuit, led by SCOTUS) to abandon patent maximalism. It’ll need to happen. If the Office does not change, people will lose confidence in US patents.

Michael Loney, the editor of Managing IP (a patent maximalism site), wrote about corporate lobbying by pharmaceutical giants for exclusion from the Patent Trial and Appeal Board’s (PTAB) proceedings. They basically want to be placed above the law (patent law). Orrin Hatch is a highly corrupt 'politician' who takes bribes from this monopolistic industry as well as law firms; he’s trying to protect them from generics (i.e. access to medicine). All that Loney had to say was this:

The Hatch-Waxman Integrity Act of 2018 would require a generic manufacturer wishing to challenge a brand-name drug patent to choose between Hatch-Waxman litigation and IPR, which one observer describes as a “Hobson’s choice”

Where are all the supposed/so-called ‘journalists’ when one needs them? Like we keep saying, when it comes to patents, reporting is dominated by law firms and patent maximalism sites. So nobody seems capable of bringing up the fact that this bill is indirectly funded by pharmaceutical giants. They just ‘buy’ politicians to do their footwork; not just lobbyists but actual politicians.

Remember SAS Institute, Inc. v Lee? Earlier this year it became SAS Institute, Inc. v Iancu (Iancu comes from the patent microcosm) and SCOTUS issued a decision that may slow down — albeit not stop (as per Oil States Energy Group v Greene’s Energy) — PTAB. SAS Institute, Inc. v Iancu is being brought up again. A patent maximalism site, Patently-O, says that the Federal Circuit got involved in this matter. It believes that when you have a bogus patent and PTAB deems it invalid you should still (potentially) be able to amend that patent rather than lose it, introducing odd notions like “versions” of patents. To quote Patently-O: “In its Final Written Decision, the PTAB partially invalidated Sirona Dental Systems U.S. Patent No. 6,319,006 (claims 1-8 obvious over two prior art references; claims 9-10 patentable). Following cross-appeals, the Federal Circuit the Federal Circuit found no error in these ultimate conclusions, but did vacate the decision based upon the Board’s refusal to allow the patentee to amend its claims.”

They’re citing SAS Institute, Inc. v Iancu (formerly Lee). The side note says: “The PTAB decision here is the one IPRO where then PTO Director Michelle K. Lee took-up her statutory role as a PTAB Judge.”

PTAB is very important as it serves to protect the reputation of US patents by eliminating bad ones, often before they even reach a court or get granted. PTAB is viewed as “Evil” or “Satanic” only in the eyes of a meta-industry that profits from litigation alone.

PTAB isn’t supported only by small companies but large ones too. Even Apple, a serial patent aggressor.

As usual, when a patent/PTAB story is about Apple the big media will oblige to cover it aplenty [1, 2]. This latest story has been covered in financial media too, under headlines like “Apple Loves to Fight Patents”. Actually, Apple loves to fight with patents, e.g. against Linux/Android. Just because if filed IPRs against Qualcomm does not change that. The story is also in tech media, e.g. [1, 2] and in Apple-centric sites (e.g. 9to5Mac, Mac Rumors, and Apple Insider). Shara Tibken wrote on June 21st for CBS/CNET:

Apple’s trying a different tactic in its battle with Qualcomm — asking for the chipmaker’s patents to be declared invalid.

The iPhone maker on Thursday filed petitions with the US Patent and Trademark Office, asking for the four Qualcomm patents be canceled, according to Bloomberg. Those patents are at issue in a fight between the companies over licensing fees that Qualcomm receives for its mobile technology.

Apple argues the four patents — related to how to focus a digital camera, a device that works as a phone and personal digital assistant, touch-sensitive displays, and circuit memory — aren’t new ideas and shouldn’t be valid, Bloomberg said.

This should be considered good news as it also serves to protect Android OEMs. We generally support Apple’s side in this whole dispute for this reason.

“Qualcomm faces its first-ever IPRs as Apple turns up the heat in the pair’s increasingly fractious dispute,” IAM wrote, having published this article about it. To quote:

The sprawling dispute between Apple and Qualcomm, in which the two Califoirnia-based companies are slugging it out in a protracted, multinational dispute, took a new turn yesterday when the iPhone giant filed inter partes reviews (IPRs) against two of the chipmaker’s patents that have been asserted against it in district court. It could well tbe the foirst [sic] time Qualcomm has been forced to defend its patents before the Patent Trial and Appeal Board. The patents in question are 7,693,002 and 8,665,239. The former was filed in October 2006 and issued in April 2010, and the latter was filed in November 2012…

Qualcomm patents are also being challenged at the EPO right now, as we noted last month and earlier this month. What will the final outcome be? Will there be a settlement? We certainly hope that the patents in question (EPs and US patents) will perish before such a settlement is reached (and if it’s reached). Qualcomm might be tempted to avoid invalidation at all costs!

Going back to the Supreme Court’s “SAS” (SAS Institute, Inc. v Iancu) decision, Loney takes note of remaining questions:

The big questions remaining after the Supreme Court’s SAS ruling include how institution rates will change, how strategy at the Board should evolve and how district courts and the Federal Circuit will react. Michael Loney investigates

The Supreme Court ruled that the PTAB must institute proceedings on all challenged claims or none at allEight weeks on from the Supreme Court’s decisions in SAS Institute v Iancu and Oil States Energy Group v Greene’s Energy…

The rest is behind a paywall, but the direction he’s going at suggests that he wants a slowdown (as do readers/subscribers of such a site, which caters for the patent microcosm).

Worry not; PTAB is only growing in relevance and Oil States assures that Iancu cannot eliminate PTAB. He can try to suppress it, sure, but at what cost?

Another software patent is biting the dust, reports Patent Docs. So will law firms stop pursuing these? No, never. As long as they manage to bamboozle some technical firms into this notion that such patents have value the applications will keep on coming and examiners occasionally grant these. The summary below says that “the challenged claims were found to be unpatentable under 35 U.S.C. § 101.” How very common. § 102 and § 112 were also mentioned:

On June 11, 2018, the U.S. Patent and Trademark Office Patent Trial and Appeal Board (PTAB) issued a final written decision in the Covered Business Method (CBM) patent review between Dish Network Corp./LLC (collectively, “Dish Network”) and Customedia Tech. LLC (“Customedia”), in which the challenged claims were found to be unpatentable under 35 U.S.C. § 101. (Some challenged claims were also found to be unpatentable under 35 U.S.C. §§ 102 and 112, but this post addresses only the § 101 challenge.)

It remains to be seen in the coming weeks/months if Iancu’s strategy against PTAB goes anywhere. It’s clear that he's a closeted foe of PTAB, i.e. against part of his very own employer.

Can Alice/35 U.S.C. § 101 Stop Microsoft-Connected Patent Trolls in the US?

Posted in America, Microsoft, Patents at 10:08 pm by Dr. Roy Schestowitz

US map

Summary: The latest lawsuits and inter partes reviews (IPRs) which deal with Microsoft-connected trolls and other potentially-suspicious activities

HAVING spent the past 12 years tracking Microsoft’s patent assaults on GNU/Linux, we’re pretty familiar with the satellite entities and the history is well documented. The records at the USPTO sometimes show which hands the patents get passed to (various different shell entities, connected to bigger trolls and corporations like Microsoft).

Microsoft still attacks GNU/Linux using software patents and as mentioned here before (earlier this month), Microsoft entryism or hijack of Yahoo turned Yahoo patents into the same thing it turned Nokia’s patent portfolio into. These patents are now being passed to trolls, according to RPX and recent docket filings. Even IAM’s Richard Lloyd wrote about it the other day:

Twitter found itself on the wrong end of an infringement lawsuit late last month when an entity called Digi Portal accused the social media company of infringing on one of its patents. According to a recent RPX newsletter, Digi Portal is an apparent affiliate of the NPE IP Edge, which, as the most prolific plaintiff in the US over the last two years, has plenty of experience litigating against some of the largest and highest profile companies around. What’s most interesting about the patent-in-suit, though, is that it was previously owned by Excalibur, the corporate vehicle set up to monetise…

Will the underlying patents be challenged by the Patent Trial and Appeal Board (PTAB) and maybe the Federal Circuit (later on)? Do note that IP Edge is involved. We wrote about IP Edge several times earlier this year, e.g. [1, 2, 3, 4]. Had Microsoft not destroyed Yahoo, these patents wouldn’t end up in the hands of these trolls.

There’s meanwhile other activity of interest. A notorious patent troll, Uniloc, has just been squashed owing to Alice/35 U.S.C. § 101. As Docket Navigator put it:

The court granted defendant’s motion to dismiss because the asserted claims of plaintiff’s wireless remote control patent encompassed unpatentable subject matter and found that the claims were directed toward an abstract idea. “The court concludes that because the asserted claims are directed towards the result — and therefore, abstract idea — of wirelessly controlling remote devices, they are patent-ineligible. The specification refers to ‘⁠[a] method for controlling a remote device[] over a wireless connection.’ ‘underscor[ing] that [the asserted claims are] directed to an abstract concept.’ More importantly, the asserted claims provide only for generic processes and components to achieve that result. . . . And although the Patent purports to solve a number of problems with remotely controlling devices, it does not solve those problems through an improvement in any specific technology.”

The Uniloc-Microsoft history is well documented because it went on for many years. At the end, Uniloc received a lot of money from Microsoft.

The Microsoft-connected patent troll Acacia has also just been defeated (in PTAB), as recently as 6 days ago. To quote Unified Patents:

On June 19, 2018, The United States Court of Appeals for the Federal Circuit summarily affirmed the Patent Trial and Appeal Board’s ruling in Unified Patents Inc. v. American Vehicular Sciences, LLC IPR2016-00364 that all challenged claims of US Patent 9,043,093, are unpatentable, effectively ending the assertion of those claims against multiple parties.

Owned and asserted by American Vehicular Sciences, LLC, a subsidiary of Acacia Research Corporation, the ’093 patent related to a single side curtain airbag for vehicles and has been asserted in multiple district courts against automotive manufacturers and equipment suppliers including Honda, Nissan, Toyota and Hyundai. The infringement case is currently stayed in the Eastern District of Michigan.

Acacia operates though many entities/proxies. Notice how often they targeted GNU/Linux firms like Red Hat. Acacia’s connections to Microsoft were covered in dozens of past articles.

TC Heartland is Still Deterring and Suppressing Patent Trolls in the United States

Posted in America, Patents at 8:22 pm by Dr. Roy Schestowitz

Heartland tractor

Summary: Eastern Texas is being ‘evacuated’ in the wake of TC Heartland, which continues to be brought up by legal defense teams

THE decision known as TC Heartland has been great. This year-old, Earth-shattering SCOTUS decision helped discourage litigation which relied on Texas. It helped guard the innocent, i.e. those falsely accused of infringement, typically using dubious patents; they try to dodge the trolls-friendly courts, which blindly accept almost anything granted by the USPTO (usually in jury trials, where the jury is nontechnical).

“It’s no exaggeration to say the in East Texas the courts openly signaled that they would be plaintiffs- and trolls-friendly. They made no secret of the fact.”Baker Donelson (W Edward Ramage), in another paid placement at IAM, very belatedly caught up with In re Bigcommerce — a case about dodging to courts that do their job instead of trying to appeal to patent trolls. It’s no exaggeration to say the in East Texas the courts openly signaled that they would be plaintiffs- and trolls-friendly. They made no secret of the fact.

Over at Docket Navigator, a site which tracks cases of interest/importance, quite a few TC Heartland-related cases have been brought up over the past week. Consider Blue Rhino Global Sourcing, Inc. v Sky Billiards, Inc. d/b/a Best Choice Products and Adrian Rivera v Remington Designs, LLC d/b/a iCoffee, both of which are citing TC Heartland.

“Over at Docket Navigator, a site which tracks cases of interest/importance, quite a few TC Heartland-related cases have been brought up over the past week.”“The court granted defendant’s motion to transfer for improper venue and rejected plaintiff’s argument that defendant waived its venue challenge,” said one Docket Report and another new TC Heartland case had the opposite outcome: “The court denied defendants’ motion to dismiss or transfer for improper venue because defendants waived their venue challenge through their litigation conduct.”

With numbers (latest figures) suggesting that the District of Delaware becomes venue of choice for many [1, 2] we’re somewhat relieved to leave the era of Eastern Texas behind. No doubt the economy there will suffer (businesses would be wise not to operate there after TC Heartland), but one might call that karma for bad faith and overzealously litigious spirit.

The ILO Tribunal: Is It Still Worthy of Our Trust?

Posted in Europe, Law, Patents at 6:54 pm by Dr. Roy Schestowitz

The latest EPO FLIER (No. 38), published by staff from the EPO on 22 June 2018 (source: www.epostaff4rights.org), has the title “The ILO Tribunal: Is it still worthy of our trust?”

We reproduce its content here in order to give our readers direct access to it.

Trust

Summary: Trusting ILO-AT has become a lot harder in light of its handling of EPO scandals

 

The Administrative Tribunal (AT) of the International Labour Organization (ILO) is the successor of the League of Nations Administrative Tribunal, created as a judicial tribunal to ensure to officials the firm conviction of safety and security emanating from justice, provide a judge for internal disputes, and preclude the possibility of one of the parties being a judge in his own cause.

For European Patent Office (EPO) labour disputes, the ILO-AT is the only external legal instance.

Extent of jurisdiction

The applicable law, under the ILO-AT Statute1, is formally limited to the terms of appointment and service conditions of the organisation concerned. But the ILO-AT’s case law on this point has been inconsistent; in some judgments, general principles of law and human rights have been considered as additional sources of law, in others they have been excluded2. The Tribunal does not order interim relief. Witnesses can give written statements but their cross-examination is not possible. Since 1989, the ILO-AT has declined to hold any oral hearings. The Tribunal has no means of enforcing judgments.

The Tribunal has recently changed its approach concerning general decisions. While Staff Committee members could, in the past, challenge general decisions directly, it now seems that general decisions (legislative decisions) may no longer be challengeable at all. Concerned employees must now wait until an administrative decision implementing a general decision, eg a career reform, produces a direct adverse effect on them,3 eg through a missed promotion that was due, visible on a payslip. This has as a consequence that every staff member must file an individual appeal instead of a staff committee member filing a model appeal for all. The number of internal appeals has thus since exploded.3 Another consequence is that many general decisions, eg decisions changing governance rules, may no longer be challengeable, even if they are presumably illegal.

Workload issues

The ILO-AT struggles to meet its caseload2,4. In 2015, the Tribunal said: “It is the number of complaints filed against a single organization, the EPO, rather than the rise in the overall number of organizations having accepted its jurisdiction, that represents the main challenge for its effective functioning.5 At the same time, the Tribunal has made it clear that it has “reached its limits in terms of output” and that it cannot increase it any further “without compromising the quality of its services.

The Tribunal has recently reasserted that the main challenge to its functioning is the large number of EPO cases4,6. Robin Silverstein reports that the chosen approach to reducing the backlog has affected the quality of the judgments being delivered: “ILOAT staff rush through records of pending cases, and draft hundreds of judgments, dismissing as many cases as possible on technicalities, and glossing over the finer points of those appellant submissions that it accepts.It is a common gripe among appellants that the judgments finally rendered contain anomalies, mischaracterizations and factual errors, and fail to address key claims and legal arguments.2,7

Until 2014, the Article 7 “summary dismissal procedure” was only rarely used8: Sessions 1-116 (3305 judgments) saw only 19 summary dismissals (0.65%). The Tribunal changed its approach, leading to a rapid processing of a large number of complaints and a corresponding reduction in the size of the backlog. This was achieved without increasing the number of judges or Registry staff4. The report4 of the 332nd Session of the ILO Governing Body is a little ambiguous in its wording, but it gives the impression that it was the goal of the new approach to reduce the case backlog. Sessions 117-125 (676 judgments) saw a striking increase: 124 summary dismissals (15%), 74 of them concern EPO complaints (32%). Summary dismissal denies in fact access to justice.

Independence and impartiality

It has been the subject of some debate whether the ILO-AT is truly independent.2 The Tribunal’s seven judges are appointed on three-year renewable contracts.2 Renewable contracts for judges cast doubt on their independence9. The appointment of the ILO-AT judges is not transparent and there are no clear standards for their minimum professional qualifications3. The Tribunal is financed through fees paid by the defendant organisations on a per-dispute basis10,11. About 60% of the ILO’s caseload comes from just six organisations, about 20% from the EPO alone.

The ILO-AT has had several bilateral talks with the EPO administration – a party in the dispute – without informing or inviting representatives of the appellants8. A March 2016 ILO report12 mentions that two video conferences were held in 2015, “with senior officials from the legal and human resources services” of the EPO, who “highlighted the internal challenges faced by the EPO in a context of ongoing reforms, called for improvements in the Tribunal’s case management in general, and appealed to the understanding of the Tribunal offering financial support if needed.” Written requests13 to involve staff representatives in these talks have apparently been to no avail8. Considering “the functioning and credibility of the Tribunal at risk”, the ILO’s Director-General arranged a meeting with the EPO President12. To this meeting, which took place in April 2016, he (apparently) also invited the President of the Administrative Tribunal14. But when the Tribunal‘s credibility is at risk, does it help to organise bi-lateral talks with one party to a dispute – while excluding the other party?

The EPO administration informed the Director-General about its “targeted communication campaigns on the Tribunal’s case law, as statistics show that a considerable number of complaints against the EPO are dismissed.12,15 This measure was positively received at the ILO since it was expected to help reducing the number of complaints filed by EPO staff12. But how can a Tribunal, whose task is to establish justice in labour disputes, welcome measures aiming at discouraging staff members from claiming their rights?

The March 2016 ILO report12 further mentions several communications to the Director-Generalin which president Battistelli gives “an overview of recent disciplinary cases involving staff representatives of the European Patent Office, some of which had resulted in the dismissal of the individuals concerned”, and that “the analysis of the cases referred to the Tribunal indicates that a significant number of complaints stem from strained relations between staff representatives and management.

A March 2017 ILO report14 lays out that in its March 2016 Resolution16, the Administrative Council had “noted that disciplinary sanctions against staff or trade union representatives were widely questioned in the public opinion”, and that during a meeting in April 2016, the Director-General, the EPO President and the President of the Tribunal had “exchanged views on the situation created by the high number of complaints against the EPO, the root causes of the backlog and possible solutions.” An agreement on certain points “prompted the Director-General’s optimism that real progress could be made in the coming months so as to alleviate the Tribunal’s workload …”.

The drafting of judgements

For the Tribunal to work efficiently, the cases are prepared by the Registry: “The Registry is tasked with providing technical, factual and legal support to the judges, thus requiring its staff in effect to draft judgments.2 In 2010, the Registry was staffed by the Registrar and a part-time secretary10. Its current staff also comprises a “small team of legal officers.17The Tribunal has recently reformed the work of the Registry, so that it is now even “better focused on assisting the judges.4 The seven judges themselves are generally not familiar with the defendant organisation’s own and very specific sets of rules since they “do no work for the Tribunal on a full-time basis, but usually sit only twice a year for three to four weeks each time,” and “some of them have extremely busy schedules as they are still serving in the supreme courts of their respective countries.5 The judges will thus not study the full set of submissions but rather rely on the work done by the Registry. The preparatory work of the Registry has thus a significant impact on the decision which will be taken by the judges.

Personal ties

The ILO-AT has issued publications with contributions from members of its member organisations. For example, Laurent Germond, “Director Employment Law” at the EPO, and responsible for legal disputes of staff members with the European Patent Organisation, was invited to make a speech at a symposium18 to celebrate the Tribunal’s 90th anniversary in 2017. His speech can be found in a recent ILO publication19, edited by Mr Dražen Petrović, the Registrar of the Tribunal. Mr Petrović and Mr Germond have been personal friends for a long time20. It may not be a coincidence that Mr Petrović joined the ILO on 1 December 2013 while Mr Germond joined the EPO at the end of 2013. Under the circumstances, the Registrar could naturally have more understanding for the arguments of the defendant organisation than for those of the appellants.

The 126th session

The ILO-AT judges met again from 23 April to 18 May 2018 at the International Labour Office in Geneva. The judgments will be delivered in public on Tuesday, 26 June 2018 at 3 p.m. and published on the Tribunal’s website shortly thereafter.

Among the EPO cases judged are those of Elizabeth Hardon, Ion Brumme and Malika Weaver, at the time chair, vice-chair and treasurer respectively of the Munich branch of the EPO’s largest staff union SUEPO. They were collectively suspended (on the same day!). The SUEPO chair and vice-chair were then dismissed, and the treasurer down-graded by president Battistelli – officially for reasons that had nothing to do with their work as staff representatives.

It will be another test of the ILO-AT’s independence. It will show whether the Tribunal will recognise this amazing “coincidence” for what it really is – an attempt to get rid of pesky opponents and to suppress any meaningful dialogue.21

The ILO-AT has the mandate to guarantee that the over 60,000 international civil servants of more than 60 international organisations over which it has jurisdiction can enjoy protection against arbitrary acts committed against them by their employer.17 We fervently hope that it takes its duties seriously. If it does not, the entire legal framework for thousands of staff falls apart.

__________

2 Robin Silverstein, REVISITING THE LEGAL BASIS TO DENY INTERNATIONAL CIVIL SERVANTS ACCESS TO A FUNDAMENTAL HUMAN RIGHT, Michigan State International Law Review, Vol. 25.2 (2017)

4 Functioning of the Administrative Tribunal of the ILO – An update, ILO Governing Body, Programme of the 332nd Session in March 2018

5 Matters relating to the Administrative Tribunal of the ILO – Workload and effectiveness of the Tribunal, Programme of the 325th Session of the ILO Governing Body (from 29 October to 12 November 2015)

6 The ILO is working on an amendment to the Tribunal’s statute and rules of procedure, apparently with the aim of improving the backlog situation (see B28/6/18), but we are not aware of any details of that on-going process

9 In a recent decision, the Federal Constitutional Court clarified that the nomination of qualified judges to first instance administrative tribunals for a fixed term is in line with the German constitution, but under the condition that contract renewal is excluded

10 Matters relating to the Administrative Tribunal of the ILO: Financing of the Tribunal, Programme of the 309th Session of the ILO Governing Body (November 2010)

11 The costs per case, which vary roughly between 15.000 Euros and 25.000 Euros, are calculated by dividing the “session costs”, which cover expenses for the judges, legal services and translations, by the number of cases dealt with during the session. The major share of the Tribunal’s “overhead costs”, which include the office space and the operational costs of the Registry including staff salaries, have, at least until 2010, been borne by the ILO.

13 Letter, on behalf of SUEPO, from Schwab, Flaherty & Associés to Guy Ryder, ILO Director-General (23.02.2016)

15 The glowing reports on ILO-AT sessions by VP5 or the Director Employment Law, which are published in the EPO intranet and in the Gazette, form presumably part of these “targeted campaigns”. You can find an example here.

18 Symposium in honour of the ILO’s Administrative Tribunal (5 May 2017)

20 Also “Märpel” has reported about this personal connection; see The best friend of a key man on the R.I.P. Kat blog

 

 

The Dangerous Adoption of Patents on Life and Nature

Posted in America, Europe, Patents at 10:39 am by Dr. Roy Schestowitz

Mayo/35 U.S.C. § 101 should count, too

Free Argentine revolution, Mayo

Summary: In the face of pressure from patent maximalists, as well as an appointment of a patent maximalist to the top of the US patent office, lawyers/law firms which strive to extend patent scope to life itself (or nature) seem to be getting their way

OVER the past week some lawyers’ sites mentioned Vanda Pharma (Vanda Pharmaceuticals v West-Ward Pharmaceuticals) — a case we had mentioned a week prior. It’s not about software, but it’s still somewhat relevant. Sanjeev Mahanta at Watchtroll wrote about it a couple of days ago and Steven Seidenberg at IP Watch wrote about Vanda Pharma a day beforehand. It’s behind a paywall, but the critical introduction says this: “For more than a decade, the United States has been making it harder to obtain patents. A series of court rulings have steadily restricted the types of inventions that are patent-eligible. The tide, however, may be now turning. The Federal Circuit’s recent decision in Vanda Pharmaceuticals v. West-Ward Pharmaceuticals has opened the way to many future patents on biotech and personalized medicine. The ruling is a big step forward for the biotech and medical industries, and perhaps for patients seeking better medical care. But there’s a catch. Vanda could be overturned because it conflicts with the US Supreme Court’s 2012 decision in Mayo Collaborative Services v. Prometheus Laboratories.”

It is not too shocking that the Trump-connected USPTO Director (Iancu) is quick to selectively embrace decisions that broaden patent scope, serving the industry he came from. He doesn’t seem to be learning the lessons about the importance of patent quality. It’s like he’s working for the patent microcosm rather than for applicants, or more broadly for science and technology.

OK, we get it; so while shutting out software patents they now grant new sorts of patents on life. As one site has just put it, “USPTO grants first ever US CRISPR patent” (unlike the EPO, which moves away from such patents). To quote:

The US Patent and Trademark Office (USPTO) has granted Emmanuelle Charpentier’s company, ERS Genomics, the first ever US patent covering CRISPR gene editing.

The patent covers the use of an optimised guide RNA format in all environments, including human cells.

The USPTO deemed the patent to be unrelated to the ongoing dispute between Charpentier/UC/Vienna group and the Broad Institute/MIT/Harvard group.

A site dedicated to advocacy of patents on life said that “Broad secures US discovery win in CRISPR EPO dispute,” which means that the EPO too has some issues (firms trying to patent life/genome in spite of the EPC). To quote:

The US Court of Appeals for the First Circuit has confirmed that a request to obtain discovery for use in a foreign proceeding, in this case at the European Patent Office (EPO), will be denied unless the relevance of that discovery can be shown.

Circuit Judge Juan Turruella delivered the precedential decision on Wednesday, June 20.

Genome editing company Intellia Therapeutics has an exclusive licence to proprietary CRISPR/Cas9 technology owned by Jennifer Doudna, a founding member of Intellia.

A team led by Doudna and Emmanuelle Charpentier had conducted research on bacteria that can carve up and target genetic material, which led to Doudna filing the provisional patent application in the US in May 2012. In June the same year, they published an article describing their findings.

In October 2012, members of the Broad Institute of Harvard and MIT submitted a manuscript on the same topic and, in December, filed a provisional patent application relating to genomic sequencing.

For the EPO and for the USTPO to be taken seriously they will need to fight this ‘temptation’ (or pressure) to grant patents on everything under the Sun. Sometimes it feels like Iancu is to patent quality what Battistelli (and likely António Campinos as well, time will tell) has been. Do they realise that it’s not a game where scores are counted in terms of number of granted patents? That is the crazy mentality of WIPO, which would have us believe that innovation thrives in China just because heaps of rubbish patents get granted by SIPO (in a language few inside WIPO can even comprehend, let alone read out loud).

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