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06.14.18

The ’4iP Council’ is a Megaphone of Team UPC and Team Battistelli at the EPO

Posted in Deception, Europe, Patents at 3:50 pm by Dr. Roy Schestowitz

A patent maximalism council, serving the interests of patent trolls in Europe

4iP Council

Summary: The EPO keeps demonstrating lack of interest in genuine patent quality (it uses buzzwords to compensate for deviation from the EPC and replaces humans with shoddy translators); it is being aided by law firms which work for patent trolls and think tanks that propel their interests

Grünecker, Hoffmann Eitle, Maiwald and Vossius & Partner have finally found the courage to speak out against the EPO for at least some of its many scandals. Rest assured the German FCC will take note of that when dealing with several concurrent constitutional complaints regarding the EPO (like denial of travel to the World Cup which starts today and the UPC complaint).

“It’s a piece which promotes software patents using buzzwords like “AI” and “4IR” (like in the EPO’s Gazette, with a similar article there authored by Ménière).”The UPC is dead. Team UPC has barely said anything about it for over a week and Bristows’ UPC blog has just moved goalposts to SPCs [1, 2]. As for Team Battistelli, it barely even mentioned that lately, except in some delusional statements from Battistelli himself (in the threatre which he manages).

As we have mentioned in this post the other day, something called “4iP Council” (we hadn’t heard of it before!) posted some puff piece for the EPO’s fake ‘economist’ (Battistelli’s new friend) Yann Ménière. It’s a piece which promotes software patents using buzzwords like “AI” and “4IR” (like in the EPO’s Gazette, with a similar article there authored by Ménière). He’s clearly clueless on technical matters and his only quality appears to be 1) some degree; 2) being French and 3) being loyal to a corrupt president that loots the employer. The EPO is worse than a laughing stock these days. It’s a den of corruption, nepotism and worse. So we sort of had to laugh at the sight of this tweet, which was retweeted by the EPO this morning. To quote:

Did you see our interview with Yann Ménière, the @EPOorg’s Chief Economist on how #patent filing data illustrates the speed of the 4th Industrial Revolution? Includes a great update too on the Unitary Patent. https://bit.ly/2HQFRpY #AI, #IP, #IoT pic.twitter.com/LRD4PwE0P6

“4iP Council”, at least in Twitter, has just about 160 Twitter followers, with an almost identical number followed back (which means they’re likely mutual and thus ‘fakes’). For all we can tell, it’s a patent trolls’ think tank which promotes ‘unitary’ patents for a patent trolls-friendly litigation pipeline.

“Notice how, in one single tweet, at least 4 buzzwords or meaningless acronyms were included: 4IR, IoT, AI, and IP.”The EPO's previous chief economist warned about patent quality and patent trolls, but Ménière seems like merely an appendix of Battistelli. He never deviates from the official ‘party line’, which is basically a bunch of lies (e.g. about quality) and buzzwords. Notice how, in one single tweet, at least 4 buzzwords or meaningless acronyms were included: 4IR, IoT, AI, and IP.

And speaking of buzzwords, Mondaq has this new article by Taro Yaguchi (Keisen Associates). According to him, Japan’s JPO sets aside patents — mostly software patents — on buzzwords like “IoT”. Japanese courts are not entirely friendly towards these hyped up things, but here go the patent maximalists:

The Japan Patent Office (JPO) announced on June 6 that it has begun to make available its multi-category classifications for patent inventions directed toward Internet of Things (IoT) technology in various sectors. This is to enable more precise searching and analysis of IoT technology that is being developed in Japan.

This change builds on the addition the JPO made of subcategories to the IoT classification ZIT back in April 2017, which itself was a new thing in the world of patent office classification systems. Now the JPO’s searchable database J-Plat Pat treats the subcategories as acceptable input for searches

There are many Japanese patents at the EPO, almost twice as many as Chinese and Korean combined. Earlier today the EPO wrote: “Our experts on the Japanese, Chinese & Korean patent systems offer support in searching original-lang. databases…”

To which I reponded with: “While EPO offers and promotes entirely automated translation which — especially for technical disciplines — are utterly worthless, misleading…”

Only a short time later the EPO promoted automated translations again (on the same day), as it has been doing every couple of days lately. It wrote: “Patent Translate helps you to understand patent documents from all over the world…”

“They keep stressing that privacy is important to them, but in reality they conduct mass surveillance at the Office (even illegal surveillance by a firm that enlisted former Stasi staff)…”Well, let’s just use scare quotes around ‘understand’. They probably hope that people (readers/audience) never actually experimented with these so-called ‘translations’, which can be horrible depending on the target language. Patents are meant to be clear and unambiguous, not a salad of words that may or may not remotely make some sense, sometimes (if one gets lucky) even a coherent sentence.

Either way, so much for patent and service ‘quality’, eh?

Later in the day the EPO spoke of “[i]mprovement to the security of our online services,” linking to its site (warning: epo.org link) which now says: “As of 18 June 2018, you will need TLS 1.2 to connect securely to our online services (a secure connection is indicated by “https” in your browser’s address bar). Older protocols such as TLS 1.0 and 1.1 will be unavailable from this date on.”

They keep stressing that privacy is important to them, but in reality they conduct mass surveillance at the Office (even illegal surveillance by a firm that enlisted former Stasi staff) and what the EPO neglects to say is that it’s giving lumps of its very personal data ‘wholesale’ to private firms (example here and here, with more context in here).

Grünecker, Hoffmann Eitle, Maiwald and Vossius & Partner Find the Courage to Express Concerns About Battistelli’s Ugly Legacy and Low Patent Quality

Posted in Europe, Patents at 2:48 pm by Dr. Roy Schestowitz

A brown envelope

Summary: The astounding levels of abuse at the EPO have caused some of the EPO’s biggest stakeholders to speak out and lash out, condemning the Office for mismanagement amongst other things

THE EUROPEAN Patent Office, EPO, is in a very bad state because many talented examiners are no longer there and the Office struggles to recruit talent. Money can buy some reputation, but it cannot bury a legacy of pure evil from Battistelli. Applicants (for patents and jobs) understand, more or less at least, what’s going on.

There’s only half a month for the crook to still ‘lead’ (i.e. destroy) the Office before his ‘child’ António Campinos takes over. Insiders say that Campinos intends to change pretty much nothing. Team Battistelli will remain in tact, protected by Herrnst (Ernst) and the rest of the Administrative Council.

Thankfully, some stakeholders have — dare we say! — “unionised” against the Office and have put forth a letter. António Campinos too has received the relatively strongly-worded letter, warning about the damage Battistelli caused (without specifically mentioning Battistelli). A copy of the letter was also sent to Battistelli and Herrnst (Ernst), his ‘boss’ who did pretty much nothing over the past year, at times even openly denying the decline in patent quality. Remember that EPO staff (about a thousand of them) already admitted a massive decline in patent quality — a monumental effort to speak about it without risk of retribution.

Leading German patent law firms grew tired of the abusive and corrupt administration; we appreciate that, but why did they wait until a fortnight before Battistelli leaves? Is Campinos the main target audience of this letter? He’s indebted to Battistelli who gave him the job (or cemented the candidacy), so we very much doubt it’ll have an effect on him. “Each year our law firms file more than 9500 patent applications with the EPO,” said the authors of the letter. Will they consider reducing that as deterrence against the EPO’s bad policies? They make some solid points; for example, the fifth point: “If the users of the European system gain the impression that granted EP patents cannot be relied upon anymore due to insufficient search and examination, the users may increasingly be discouraged from filing European patents. This might unhinge the entire patent system.”

They also say “in contrast to an industrial company, we cannot see why the profit of the EPO needs to be increased beyond the level of self-funding.”

Don’t worry, Battistelli pockets the spare cash.

Here’s Kluwer Patent Blog’s introduction to the letter, which it posted this morning:

Four leading patent law firms in Germany – Grünecker, Hoffmann Eitle, Maiwald and Vossius & Partner – have published an open letter expressing ‘great concern’ about the developments at the European Patent Office, particularly ‘the modifications to the incentive systems for the examination of patent applications’.

The ‘overreaching desire for high productivity’ has led to a series of problems, according to the letter, which is directed to outgoing EPO president Benoit Battistelli, the chairman of the Administrative Council Christoph Ernst, principal director user support & quality management Niclas Morey and future EPO president Antonio Campinos (who will start in office on 1 July 2018).

Among others, the firms write that when ‘the aim is to terminate proceedings as quickly as possible (…), the quality of the search and examination of applications must suffer’. The rather high fees, moreover, ‘can only be justified by giving the examiners sufficient time for an indepth assessment of each single application’. Patents with an erroneous scope of protection distort and hinder economic competition and might unhinge the patent system, they write.

More broadly, the law firms question the enormous financial reserves of the European Patent Office, amounting to 2.300.000.000 euros, 650 million euros to fund the pension scheme not included: ‘in contrast to an industrial company, we cannot see why the profit of the EPO needs to be increased beyond the level of self-funding. From our perspective, the high surplus is rather an indication that the fees are too high and that a further, problematic increase of productivity is not appropriate.’

The full text of the letter is published below.

SUEPO has already taken note of this letter and the first comment says: “I can only applaud the companies involved in writing this letter. I could not agree more with the concerns that it expresses. I can only hope that the incoming president realises that the concerns expressed cannot be easily dismissed… not least because the unprecedented nature of the letter indicates that the authors must be very concerned indeed.”

SUEPO then gets mentioned by “Save the EPO from destruction,” whose message says:

MANY THANKS for this brilliant initiative.

By the way the content of the letter could be taken up by SUEPO as-is!

Indeed SUEPO (which represents half of EPO staff) denounced since years (so far to no avail) the dangers of Battistelli’s policies (for both the quality of the patents delivered as well as on health of staff)…

and the Administrative Council remain passive.

It is 5 to 12.

In a few weeks, Mr Campinos will arrive in an exhausted office which cannot continue on this path much longer before collapsing.

Let’s hope that Mr Campinos will understand the poisonous legacy he inherits from his predecessor and in particular, that he has to be very cautious with the teams in place who are directly responsible for this debacle (in particular in HR, and DG1) since something must be done asap to restore both the social atmosphere, the reputation of the EPO AND the quality of the work performed.

Where were these law firms 4 years ago when SUEPO sounded the alarm? Or when the EPO banned (blocked) our site, in effect attempting to muzzle its own whistleblowers? This corrupt EPO management has killed the goose for a few remaining golden eggs; work is (pretty soon) running out, which means that the Office is imploding (with layoffs still expected). We have thus far found only one article about it. IPPro Patents wrote:

Four German law firms have penned an open letter to the European Patent Office (EPO), expressing “great concern” over recent developments at the EPO, specifically the ever-increasing work targets at the office.

The law firms Grünecker, Hoffmann Eitle, Maiwald, and Vossius & Partner wrote that “the incentive systems and internal directives appear to be increasingly directed towards rewarding or even requesting rapid ‘termination’ of proceedings and a correspondingly higher productivity”.

The letter said that this has resulted in penalisation of detailed and thorough assessment of cases.

It said that while the law firms do appreciate the increased speed, such “overreaching desire” for high productivity has led to a range of problems, including issues of quality, scope of protection and inadequately assessed patents.

Now is the time to carefully check which so-called ‘IP’ site covers the matter (letter) and which ones deliberately ignore it like IP Kat (controlled by Team UPC elements and patent maximalists nowadays).

IAM Concludes Its Latest Anti-§ 101 Think Tank, Featuring Crooked Benoît Battistelli

Posted in America, Europe, Law, Patents at 3:48 am by Dr. Roy Schestowitz

It’s all about money to them; even if that means demolishing the law itself

A global recession

Summary: The attack on 35 U.S.C. § 101, which invalidates most if not all software patents, as seen through the lens of a Battistelli- and Iancu-led lobbying event (set up by IAM)

MIRACULOUSLY enough, the EPO‘s management has managed to become Europe’s great embarrassment, having aligned itself with radical elements such as Team UPC and patent trolls’ lobbies such as IAM and Watchtroll. Those who aren’t familiar with these might think that it’s not a big deal. But it is. It is.

“§ 101 is currently the main barrier to software patents in the US.”For a number of years the patent maximalists (some of whom are radical enough to be called extremists) have been attempting to bypass the law. They come up with all sorts of tricks and even fabricate ‘news’ in order to oust officials whom they view as a ‘threat’ (like Michelle Lee). Some of these extremists work for think tanks of billionaires with a financial agenda, whereas others are literally funded by aggressive patent trolls. Either way, it’s scary to think that they wield enough influence to change laws, leadership and so on.

§ 101 is currently the main barrier to software patents in the US. We write about this several times per week. § 101 has been very good for software developers, testers and users simply because programmers everywhere loathe software patents and never asked for software patents in the first place.

“§ 101 has been very good for software developers, testers and users simply because programmers everywhere loathe software patents and never asked for software patents in the first place.”“Can Blockchain Technology Transform the Intellectual Property (IP) Industry” says this new headline, which one can tell is a load of nonsense given the use of propaganda terms like “Intellectual Property” (they could just say patents instead). These people refer either to management of knowledge or patenting of algorithms involving “blockchains” (they typically just allude to some general-purpose databases). But this is part of an ongoing hype wave, which is also infecting the patent world (legal/law), not just the various domains of technology.

CoinAnnouncer‘s Amy Tori has just done the same thing, having stated the following in her article “Blockchain Platforms Grabbing Patents”:

When trying to measure the pace and scope of innovation in the blockchain world, look no further than the speed of patent applications in the field. Startups, established companies, researchers, and tinkerers all filed over 1200 blockchain patent applications (more than doubling 2016’s total) in 2017 in South Korea, the U.S., Japan, China, and Europe. In the U.S, patent applications have skyrocketed to over 700 as of early 2018, (though the number could be higher thanks to restrictions on public information about recent filings). China leads the world in blockchain patent applications.

Blockchain’s relationship with the patent system is a complicated, untested, and at times fraught one. At the same time, patents are driving essential innovation in the blockchain world.

[...]

European applicants have struggled to receive approval thanks to ambiguity over whether blockchain is a business model or software platform (which are not patentable) versus a new technological invention. Data on the success of patent applications in the U.S. is still emerging, but successful applications have indeed been granted over the past year to entities such as CoinBase or Goldman Sachs.

Notice that part about Europe. Some European patent lawyers/attorneys have openly complained about it. They just want lots and lots of software patents and say so explicitly (Bastian Best comes to mind). Blockchain hype waves are still being used to get software patents not just in China (which permits it) but in countries that disallow software patents. We routinely cover examples from the US. How about India, which does not allow software patents? Richa Bhatia thinks that the “AI” hype (nowadays they just use buzzwords for disguising software patents) is spreading to India. She wrote this yesterday:

Should AI Be Allowed To Get Patents? How Can Indian Companies Protect Their Inventions?

[...]

Herbert Roitblat, principal data scientist at Mimecast, an international company which specialises in cloud-based email management, had said that the older view was that algorithms were not patentable because they were “discovered” and not invented from scratch. Another viewpoint is that algorithms cannot be patented because traditionally they only list down a set of instructions to follow. The principal data scientist argues that even though current AI applications are suited for particular tasks, the ultimate goal is to advance artificial general intelligence. For example, DeepMind’s recent innovation AlphaGo Zero can be patented since it is a general-purpose system built to advance AGI and not just play the game.

[...]

India also excludes computer programmes or algorithms from getting patented as per the Computer-related Inventions (CRIs). Hence patents can only be granted if they pass the software patent eligibility test and are combined with hardware aspects to be registered under Indian patent law. According to US and India-based IP consultants, companies which want to claim IP protection should follow these guidelines…

[...]

A section of lawyers believes that copyright laws are antiquated and should be updated to reflect current technological developments.

AI researchers also argue that as AI-facilitated innovations evolve, the law should be changed to take into account inventions co-created by AI.

What we are trying to draw attention to here is the flagrant (mis)use of buzzwords. The “ICT” buzzword (or three-letter acronym) is still being used extensively by the EPO and as we noted earlier this week, the EPO now has a seemingly new Web page dedicated to it: http://epo.org/ict

Yesterday the EPO spoke of “patents & artificial intelligence at CEBIT” (here we go with “AI”!), basically promoting that nonsense yet again (Georg Weber doing it this year in CeBIT, just as he did a year ago at the same event). The full tweet said: “Need a new perspective? Talk to us about patents & artificial intelligence at CEBIT 2018! We are in Hall 27. http://epo.org/ict #CEBIT18 pic.twitter.com/Hlibu8oUFD”

Yes, there’s a photo there as well. But more interesting were the retweets from the EPO about what happened the day beforehand, courtesy of Benoît Battistelli and IAM.

“The anti-§ 101 lobby is not motivated by care for science and technology. It’s often motivated by clear and open disdain for both.”For those who missed it, IAM set up a patent trolls-funded event that deals with § 101 eligibility issues by basically attacking § 101. They’re openly promoting software patents and the audience/speakers make no pretense about it. It’s a lobbying event with a particular agenda/desired outcome.

A Koch Brothers-funded supporter of patent trolls, Adam Mossoff, was also included in this lobbying event of IAM, basically pushing software patents and attacking PTAB as usual. We only know this because the CCIA was there too, later writing this very long rebuttal that begun thusly:

I’m out at IPBC Global this week, and one of the hot topics of conversation here is patent eligibility under § 101. In fact, Director Iancu’s remarks focused heavily on § 101, and the panel I spoke on debated the relative importance of patent quality and patent eligibility. (I argued that patent quality is more important than eligibility; the audience agreed with my side of the argument.)

As part of this discussion, I’ve heard a few people mention Prof. Adam Mossoff’s “Gold Into Lead” article comparing patent eligibility between the U.S. and other patent offices. Mossoff’s article claims it identified, from a database of 17,000 applications, a set of 1,700 that were allowed in China or Europe, but rejected in the U.S. based on § 101 eligibility issues.

This might be concerning, if there weren’t reasons to have serious questions about the article’s conclusions.

Mossoff’s track record is well documented, even in Techrights. He’s what we consider to be one of the patent extremists. He blocked me in Twitter because he could not tolerate my views (and possibly because I pointed out who was funding his ‘work’). IAM used to block me as well, but eventually it realised that it wasn’t actually effective. Not at all.

“…§ 101 is a very big deal because it restricts — for a change — patent scope (for the first time in decades).”The anti-§ 101 lobby is not motivated by care for science and technology. It’s often motivated by clear and open disdain for both. One patent maximalist wrote: “Submitted to publisher manuscript for a revision: 165th since first publication 40 years ago. Some things have changed with patent law since then. Some not. Biggest issue in 1978: Section 101 patent eligible subject matter!! And for 2018.”

Yes, § 101 is a very big deal because it restricts — for a change — patent scope (for the first time in decades). “Iancu calls for 101 shake-up,” Joff Wild’s headline declares in the outline of this lobbying event. The patent microcosm, IAM included, heavily lobbies and relies on Iancu — a part of the ‘family’, having come from the litigation ‘industry’ himself (his firm had worked for Trump too).

The “new USPTO director Andrei Iancu made clear that the patent eligibility regime in the US had become dysfunctional and that further PTAB reforms are on the cards,” Wild wrote. These aren’t exact words or even quotes, but it sounds more like Wild just writes his own views, attributing these to Iancu. Watchtroll habitually does the same thing.

“Don’t be easily distracted by the late articles and puff pieces about the European Inventor Award…”Then came the part about Battistelli. The EPO retweeted IAM a couple of times, first on this tweet about Battistelli’s new buzzword (acronym) for software patenting, “4IR”. It says: “Rate of growth in 4th Industrial Revolution-related patent applications at ⁦ @EPOorg⁩ over last five years is 54%. Overall growth rate at office 7.6% – Battistelli”

They just made up some term and then claim growth, just like other firms do with vague terms like “cloud”. Another tweet said: “Europe’s patent balance. Interesting slide from ⁦ @EPOorg⁩’s Battistelli”

Yes, go on and suck up to Battistelli while he promotes software patents by IAM's own admission (this admission came several months prior to this talk). Battistelli even promotes software patents in the United States, where such patents are on the way out.

“Yesterday at 3 AM in the morning (English time) Battistelli’s propaganda rag IAM wrote about “Battistelli legacy,” saying nothing about his corruption and abuses at the EPO (he’s working for IAM now).”Don’t be easily distracted by the late articles and puff pieces about the European Inventor Award (here’s the latest example). Battistelli would rather have people read ‘articles’ composed by the several PR firms which he hired this month. Just “a few days ago in Saint-Germain-en-Laye,” writes Benoît Battistelli in his ‘blog’
(warning: epo.org link), not mentioning that this whole ‘Inventor Award’ helped him pass a lot of money to his other employer (Saint-Germain-en-Laye).

Yesterday at 3 AM in the morning (English time) Battistelli’s propaganda rag IAM wrote about “Battistelli legacy,” saying nothing about his corruption and abuses at the EPO (he’s working for IAM now). Here’s Joff Wild’s piece titled “The Battistelli legacy,” starting with the typical Big Lie about “quality”. The EPO “Pravda” (IAM) basically repeats its latest propaganda which Battistelli likes to cite. IAM does not even pretend to have any independence anymore; it’s being paid by the EPO’s PR firm. Here they go:

Quality commitment – Today’s proceedings kicked off with a keynote presentation by Benoît Battistelli, the outgoing president of the European Patent Office. The 2018 IAM annual benchmarking survey revealed that the EPO enjoys the highest approval rating among our readers, being perceived to grant the highest quality patents of any of the IP5 offices. Battistelli’s speech set-out how the EPO has achieved this: it has not only built the examiner corps up to 4,400, but also introduced a two-year training programme for new recruits; and the EPO is the only major IP office not to outsource any of its key functions. The office’s patent database is larger than any other, while it offers access to 50 million original patent documents from Asia. It is also the first major office to achieve ISO 9001 re-certification for the whole patent process, Battistelli added. These measures were among the reasons why, as Battistelli pointed out, the office had been able to increase productivity, with patent grants increasing at a faster rate than applications between 2010 and 2017 – and unit costs decreasing over the same timeframe. Further digitalisation of services and a commitment to being at the forefront of developments in artificial intelligence would help the EPO to maintain the quality and efficiency of its services, Battistelli concluded. (AH)

This is followed by Microsoft’s AI-washing of software patents (as we noted the other day):

Microsoft’s Nicolas Schifano used the example of basketball’s Dallas Mavericks, who won the 2011 NBA championship after the team partnered with a start-up which collected huge amounts of data and used AI techniques to help change tactics. That led to the Mavericks attempting and making far more three-point shots, something that meant they could overcome their underdog status to beat the favoured Miami Heat. It was one clear example of why AI’s long-term significance is an undoubted slam-dunk.

Grotesque whitewashing of Battistelli then follows. Just like a paid advertiser of Battistelli, Joff Wild writes: “As Battistelli gave his keynote presentation this morning it was hard not to think that we were watching and listening to a man very keen to cement a legacy. Seen from afar his achievements are significant: he has transformed working practices at the office, improved efficiency, put the agency on a firmer financial footing and increased Europe’s international influence, all while maintaining the EPO’s reputation as the issuer of the highest quality patents among the IP5.”

“Battistelli was an utter disaster and merely a liability to ‘unitary’ patents because his own abuses are a barrier to UPC; the constitutional complaints have a lot to do with the EPO’s violations of the law.”And here’s the UPC part: “Should it also be issuing unitary patents that a Unified Patent Court system is largely finding valid when cases come before it, then basically everything Battistelli set out to achieve when he started his job back in 2010 will have been done and all the negatives will be forgotten.”

Battistelli was an utter disaster and merely a liability to ‘unitary’ patents because his own abuses are a barrier to UPC; the constitutional complaints have a lot to do with the EPO’s violations of the law. Battistelli ensured that his own pick, the fellow Frenchman António Campinos, takes his place. This way he won’t be held accountable by a successor for corruption and other abuses at the EPO (Campinos is a former banker, so surely he can see and understand Battistelli’s rogue financial moves).

Expect IAM to remain a loyal fan of both Battistelli and Campinos. IAM knows the palm which feeds it. The remainder of that long summary/outline is filled with patent maximalism. There’s “Toward FRAND 2.0” and other patent maximalists’ nonsense (that’s what the whole event was about, organised by the patent trolls’ lobby itself).

“…there’s no indication whatsoever that US Congress or even the higher patent courts in the US will revisit/revise 35 U.S.C. § 101.”Those who attended IAM’s event probably drank enough Kool-Aid to believe that § 101 (as we know it) is going away or getting watered down. But it’s up for judges to decide, not a bunch of predatory lawyers preaching to another predatory lawyer called Iancu.

In Pernix Ireland Pain DAC v Alvogen Malta Operations Ltd. (mentioned here yesterday morning) § 101 did not apply, but it had nothing at all to do with software. It’s hard to find technical cases where § 101 challenges ultimately fail, so of course patent maximalists such as Kevin Noonan would cherry-pick this one:

It appears that Judge William C. Bryson, U.S. Appellate Court Judge on the Federal Circuit bench, is riding the circuit these days, peripatetically ruling on the St. Regis Mohawk Tribe’s motion to join ANDA litigation in the Eastern District of Texas last October and, last week, denying Defendant’s motion to reconsider his grant of summary judgment that the claims at issue in Pernix Ireland Pain DAC v. Alvogen Malta Operations Ltd. were not invalid for being patent-ineligible subject matter under 35 U.S.C. § 101.

Well, this case had nothing whatsoever to do with abstract patents, but this one seems good enough (at least for Noonan) to give an impression of a rebound. There’s no such rebound and there’s no indication whatsoever that US Congress or even the higher patent courts in the US will revisit/revise 35 U.S.C. § 101.

Google Gets Told Off — Even by the Typically Supportive EFF and TechDirt — Over Patenting of Software

Posted in America, EFF, Europe, Google, Patents at 2:00 am by Dr. Roy Schestowitz

Jarek Duda
Source: Jarek Duda’s homepage

Summary: The EFF’s Daniel Nazer, as well as TechDirt’s founder Mike Masnick, won’t tolerate Google’s misuse of Jarek Duda’s work; the USPTO should generally reject all applications for software patents — something which a former Commissioner for Patents at the USPTO seems to be accepting now (that such patents have no potency after Alice)

THE EPO is not allowed to grant ‘pure’ software patents; the USPTO, if it was to fully embrace Alice, would not permit this either. In practice, however, they nowadays rely on buzzwords, as we shall explain in the next post. To bring up again an example that we mentioned the other day, Uber is trying to call software patents something “AI”, basically patenting bogus, abstract ideas (courts would definitely reject these).

“The Supreme Court no doubt ‘upsets’ the status quo and pisses off the patent maximalists, but that’s just the law.”The term “AI” comes from CNN, which has just published “Uber wants to patent a way to use AI to identify drunk passengers” (AOL went with another kind of headline). Still just a patent application, CNN says that “[t]he patent application describes a system that learns how you typically use the Uber app, so that it can identify unusual behavior. The system relies on an algorithm to weigh a variety of factors, including typos, how precisely a user clicks on links and buttons, walking speed, and how long it takes to request a ride. The time of day, and where a ride is requested may also be considered.”

Of course this should be rejected. The Supreme Court no doubt ‘upsets’ the status quo and pisses off the patent maximalists, but that’s just the law. Robert Stoll, a former Commissioner for Patents at the USPTO, now admits (implicitly) that software patents are pretty much ‘dead’ in the US and trade secrets should be pursued instead. Have such patents outlived their usefulness? His summary at Watchtroll says: “Innovative algorithms and even diagnostic methods may be easier and more effectively protected by trade secret. Trade secret protection avoids the uncertainty of compliance with the vague patentability standard set forth by the Supreme Court.”

Coming from a patent maximalist like Stoll, this is pretty significant. These people have seemingly given up. Almost.

It is good to see that EFF staff is nowadays speaking explicitly about “software patents” rather than just “bad patents” (or equally vague terms). Mr. Nazer has just noted: “In an important sense, this is the story of just about every software patent. Almost all of them take the form: Use [existing hardware] and [known software methods and techniques] to get a [fairly unexceptional result]. [] When IBM is getting 9,000 freaking patents every year, and Google and Microsoft are getting 2,500 each, they are filing applications for every trivial little thing they do.”

Well, IBM acts like a patent troll and Microsoft keeps feeding patent trolls whilst also using software patents to blackmail GNU/Linux companies (an extortion racket). Google being mentioned there is noteworthy and we’ll explain why in just a moment.

Historically we have been relatively sympathetic towards Linux-powered products such as Android. We openly supported these products knowing that these had been subjected to Microsoft’s blackmail. This had an impact on both GNU and Linux (and beyond).

Some hours ago, in writing about Space Data Corporation v Alphabet, Inc. and Google LLC, the Docket Navigator revealed that Google seemingly suspects that it is being sued by proxy (maybe by Microsoft). We say Microsoft because we already have extensive evidence that Microsoft does such things, e.g. the SCO lawsuit. Might a company like Microsoft be funding these lawsuits against Google and Android? We know for sure that Microsoft has been feeding patents into the mouths of patent trolls which go after Android OEMs. “The court denied defendants’ motion to compel additional discovery regarding plaintiff’s litigation funding because defendants failed to establish relevance or proportionality,” says the Docket Report. Who does Google suspect to be the financier of Space Data Corporation’s litigation campaign? We don’t know. But does Google deserve full sympathy? Well, not anymore.

The EFF’s Daniel Nazer mentioned the situation we covered earlier this week. He wrote that “Google’s ANS patent only stands out because the real inventor of ANS took every step he could to ensure that the new compression algorithm would truly belong to the public.”

“And he also approached the media,” I told Nazer, “myself included…”

Nazer highlighted “Google’s response: “but we are applying the technique to video” might not impress a talented computer scientist like Jarek Duda. But arguments like that prevail at the USPTO all the time.”

The USTPO profits from issuing lots of bogus patents that courts would invalidate later (if the defendant/IPR filer can afford it). This really ought to stop. Google itself ought to stop as well. TechDirt has just published a complaint about this as well, including this preceding background:

For the most part, Google has actually been one of the good guys on patent issues. Unlike some other Silicon Valley companies, Google has long resisted using its patents to go after others, instead only using the patents defensively. It has also fought for patent reform and experimented with new models to keep its own patents out of the hands of patent trolls. But it’s been involved in an ongoing fight to patent something that an earlier inventor deliberately released into the public domain, and it reflects incredibly poorly on Google to keep fighting for this.

A Polish professor, Jarek Duda, came up with a new compression technique known as asymmetric numeral systems (ANS) years back, and decided to release it to the public domain, rather than lock it up. ANS has turned out to be rather important, and lots of companies have made use of it. Last summer, Duda noticed that Google appeared to be trying to patent the idea both in the US and around the globe.

Tragically, this happened just weeks after Duda had called out other attempts to patent parts of ANS, and specifically said he hoped that companies “like Google” would stand up and fight against such attempts. Three weeks later he became aware of Google’s initial patent attempt and noted “now I understand why there was no feedback” on his request to have companies like Google fight back against attempts to patent ANS. In that same thread, he details how there is nothing new in that patent, and calls it “completely ridiculous.” Despite noting that he can’t afford to hire a patent lawyer, he’s been trying to get patent offices to reject this patent, wasting a bunch of time and effort.

The bottom line is, irrespective of Google’s disgusting behaviour, the USPTO should stop tolerating software patents. These have caused misery and brought about nothing but agony. The Supreme Court made it rather clear that no such patents should be granted anymore (assuming that the patent office does not wish to grant patents courts would later reject). So one might say that the real problem here boils down to the patent office, which Google simply seeks to game/exploit. Like many other companies do…

From the Eastern District of Texas to Delaware, US Patent Litigation is (Overall) Still Declining

Posted in America, Courtroom, Patents at 1:08 am by Dr. Roy Schestowitz

The Patent Trial and Appeal Board (PTAB) is ‘where it’s at’ these days (with occasional appeals to the Federal Circuit)

Decline sign

Summary: Patent disputes/conflicts are increasingly being settled outside the courts and patents that aren’t really potent/eligible are being eliminated or never brought forth at all

THE patent microcosm is deep in denial these days, seeing the effect of SCOTUS on the USPTO and especially on courts. Alice is a lot more powerful than Bilski ever was and after TC Heartland it is very difficult to reach judges in the Eastern District of Texas, the capital of patent trolls in the US. Another new case, covered by Dennis Crouch some hours ago, went like this: “Team Worldwide (TWW) sued Wal-Mart in E.D. Texas for infringing its U.S. Pat. Nos. 9,211,018, 7,346,950, and 7,246,394 (air mattress products). Wal-Mart does not make the accused products but does sell them. The manufacturers (Intex, Coleman, and Bestway) are all contractually bound to indemnify Wal-Mart and intervened to defend their products. After intervening the manufacturers then demanded that the case be severed and transferred to their chosen districts (Intex to C.D. Cal; Coleman to N.D. Ill, and Bestway to Arizona). The district court refused — holding that the manufacturers had waived any objection to venue by intervening.”

This is quite an exceptional case as patent aggressors and trolls still explore the ‘terrain’ just over a year after TC Heartland.

Even Watchtroll generally admits the demise of patent litigation in the US, but it then focuses on Delaware (the exception, not the norm) in order to make it seem like everything is great for the lawsuits ‘industry’. Yesterday it wrote this:

Legal data analytics provider Lex Machina recently published a post featuring data points regarding the filing of patent infringement cases in the year following the U.S. Supreme Court’s decision in TC Heartland v. Kraft Foods Group Brands. In that decision, the Court held that the patent venue statute (28 U.S.C. § 1400(b)) meant that domestic companies could only file patent infringement suits in the judicial district where they were incorporated. Lex Machina’s one-year data update shows that TC Heartland has toppled the Eastern District of Texas as the top forum for patent infringement filings among U.S. district courts. The decision has also affected the filing behaviors of high-volume plaintiffs (HVPs), or those entities filing 10 or more patent infringement cases in U.S. district courts within one calendar year.

The months following SCOTUS’ TC Heartland decision last May saw interesting developments regarding the patent venue statute and its application in U.S. district court. In Eastern Texas, In re: Cray, Judge Rodney Gilstrap created a four-part test for determining residence which was struck down months later on appeal to the Federal Circuit. Last November, the Federal Circuit issued a precedential decision which held that the TC Heartland ruling changed controlling law and can be applied retroactively, allowing defendants in patent infringement cases to file new motions to transfer venue even when such motions were previously denied.

What few of these people want to openly admit is that the lawsuits (or litigation) ‘industry’ is a dying breed. Or it’s shrinking at least, making way for science and engineering at the expense of litigation/legal defense budgets.

We should openly stress that we are not against patents or against patent litigation. We just think that patent scope should be sensibly restricted and lawsuits filed only where/when the patents are solid. Frivolous lawsuits benefit (financially) nobody but the lawyers.

Here’s a new report about a seemingly amicable agreement over US patents (no need for a lawsuit either), involving not software patents:

Global Graphics Software is licensing three patents covering inventions by Mitchell J. Bogart, the inventor and managing member of Rampage LLC.

The Company plans to utilize the methods alongside its own software solutions for inkjet and to pass on the benefits exclusively to its OEM customers.

The three patents are U.S. Patent Nos. 9,053,410, 9,734,440, and 9,278,566 which cover the Quantone™ processing methods of screening and compensation for multiple gray-level digital presses and automatic print head registration.

Imagine what the world would look like if all deals were made this way, not based on abstract patents and not through courtroom battles.

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