06.24.18
Posted in America, Patents at 11:57 pm by Dr. Roy Schestowitz
Patents have, to some people, become like a religion
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. █
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Posted in America, Courtroom, Patents at 11:08 pm by Dr. Roy Schestowitz
No sunsetting for the Patent Trial and Appeal Board (PTAB)
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. █
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Posted in America, Microsoft, Patents at 10:08 pm by Dr. Roy Schestowitz
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. █
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Posted in America, Patents at 8:22 pm by Dr. Roy Schestowitz
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. █
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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.
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 Statute, 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 excluded. 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, 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,. 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.” 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,. 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,
Until 2014, the Article 7 “summary dismissal procedure” was only rarely used: 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 independence. 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 basis,. 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 report 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 requests 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 Tribunal. 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, 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 Resolution, 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.”The 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 symposium to celebrate the Tribunal’s 90th anniversary in 2017. His speech can be found in a recent ILO publication, edited by Mr Dražen Petrović, the Registrar of the Tribunal. Mr Petrović and Mr Germond have been personal friends for a long time. 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.
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. █
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Posted in America, Europe, Patents at 10:39 am by Dr. Roy Schestowitz
Mayo/35 U.S.C. § 101 should count, too
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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Posted in America, Patents at 10:12 am by Dr. Roy Schestowitz
Iancu and his colleagues at the USPTO should make the Office fit for purpose, not a patent-printing machine
Summary: Alice Corp. v CLS Bank continues to be the sole recent reference for handling of software patents; that being the case, it’s rather disturbing that patent law firms continue to recommend patenting of software and offer lousy excuses for that (mainly because they profit at the expense of those foolish enough to believe them)
THE strength of patents, as noted in the previous post, is determined by the goodness or the legitimacy of patents (based on prior art, inventive merit etc.) and it’s something that the EPO departs from whereas the USPTO reluctantly adopts. It begrudgingly adapts to SCOTUS and the Federal Circuit, which deals with plenty of appeal from district courts and the Patent Trial and Appeal Board (PTAB).
Whether it likes it or not, the USPTO will have to improve; already, as we showed early this year, PTAB helps examiners elevate the quality of patents it grants (many get rejected based on Alice). Thankfully, we have not grown tired of writing about patents. Even after 12 years! I’ve personally done that for about a decade and a half and seeing the progress made in the US and Europe it looks like advocacy does have an effect, albeit a very slow one.
“Whether it likes it or not, the USPTO will have to improve; already, as we showed early this year, PTAB helps examiners elevate the quality of patents it grants (many get rejected based on Alice).”Media coverage regarding patents is still quite appalling. It’s like the patent microcosm appointed itself “reporters” and is now writing the so-called ‘news’ about patents (more spam/ads that we’re keeping track of and taking stock of). When the media posts pure spam for patent law firms or ‘business’ (all new examples from the past week) we’re ever more convinced that sites like Techrights are necessary. There’s a reason why EPO scandals aren’t covered much by the media, certainly not in the US.
Scanning through the past week’s news feeds we see that software patents are still being granted by the Office (USPTO), e.g. this to Genpact (announced days ago). Here’s more on that one.
Why was it granted?
“In 2014, the Alice decision made it much harder to patent software in the USA, ” Cory Doctorow recalled a few days day in an article about something else.
Well before 2014 there was another case, which almost nobody brings up (ever). “A controversial ruling limiting software patents has been making a comeback,” Timothy B. Lee wrote. [via]
There’s a lot more beyond the summary and it looks like it took much research to produce, citing the eminent Mark Lemley.
Forty years ago this week, in the case of Parker v. Flook, the US Supreme Court came close to banning software patents. “The court said, ‘Well, software is just math; you can’t patent math,’” said Stanford legal scholar Mark Lemley. As a result, “It was close to impossible in the 1970s to get software patents.”
If the courts had faithfully applied the principles behind the Flook ruling over the last 40 years, there would be far fewer software patents on the books today. But that’s not how things turned out. By 2000, other US courts had dismantled meaningful limits on patenting software—a situation exemplified by Amazon’s infamous 1999 patent on the concept of shopping with one click. Software patents proliferated, and patent trolls became a serious problem.
But the pendulum eventually swung the other way. A landmark 2014 Supreme Court decision called CLS Bank v. Alice—which also marks its anniversary this week—set off an earthquake in the software patent world. In the first three years after Alice, the Federal Circuit Court, which hears all patent law appeals, rejected 92.3 percent of the patents challenged under the Alice precedent.
The shifting rules about software patentability reflect a long-running tug of war between the Supreme Court and the Federal Circuit. The Federal Circuit loves software patents; the Supreme Court is more skeptical.
That fight continues today. While the Federal Circuit has invalidated many software patents in the four years since the Alice ruling, it also seems to be looking for legal theories that could justify more software patents. Only continued vigilance from the Supreme Court is likely to ensure things don’t get out of hand again.
The 40-year-old Flook ruling remains a key weapon in the Supreme Court’s arsenal. It’s the court’s strongest statement against patenting software. And, while software patent supporters aren’t happy about it, it’s still the law of the land.
It’s a pretty good report. Thom Holwerda said “it’s a great article that looks at the history of the tug of war between the Supreme Court and the Federal Circuit.” (when it comes to software patents policy in the US)
Kevin E. Noonan, a patent maximalist, has meanwhile mentioned SCOTUS in relation to patent eligibility. SCOTUS, having reformed patent scope in the US, seems fine with the way things are nowadays. To quote:
Like Sherlock Holmes’ quiet dog, the significance of the Supreme Court’s patent eligibility jurisprudence following their decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc. and Alice Corp. v. CLS Bank Int’l is that there hasn’t been any. The Court has shown a similar reticence towards wading into the uncertain waters created by the Federal Circuit regarding the safe harbor created by the Hatch-Waxman Act, codified at 35 U.S.C. § 271(e)(1). Last Monday was the most recent instance of the Court’s refusal to address how the lower courts have implemented these statutory provisions in denying certiorari in Cleveland Clinic Foundation v. True Health Diagnostics LLC and Classen Immunotherapies, Inc. v. Elan Pharmaceuticals Inc.
[...]
Denying certiorari petitions cannot be used to interpret the Court’s views on whether the lower courts are properly applying its precedent; the Court frequently permits an issue to “percolate” through the courts and then chooses a case that, in their view provides a suitable vehicle for further clarification of the law. The Court has recently used this practice in other contexts (Gill v. Whitford; Benisek v. Lamone). In the meantime, however, patentees and the public await the time when the Court will deign to weigh in on either of these questions.
Seeing that Alice Corp. v CLS Bank just isn’t going away any time soon, the patent microcosm latches onto isolated and old CAFC cases. The anti-PTAB outfit Anticipat, for instance, is once again trying to prop up Berkheimer as though it is still relevant (it’s not, it’s old) and Scott Graham, in patent maximalists’ media, cherry-picks some low court’s case (Delaware District Court) to make it seem like Berkheimer is still relevant (it’s not). To quote the relevant part:
The chief judge of the busiest patent court in the country made it clear this week that he’s still going to grant at least some Section 101 motions at the summary judgment stage. Chief Judge Leonard Stark of Delaware recalled patent claims against Amazon Cloud Services that he’d thrown out last year, so he could reconsider them under the Federal Circuit’s new Berkheimer framework.
He threw them out again. “Although plaintiff tries to rely on expert testimony, here this is insufficient to create a genuine issue of material fact,” Stark wrote in Kaavo v. Amazon.com.
Kaavo is a software company that holds a patent that fairly bleeds ineligibility. The title is “Cloud computing lifecycle management for N-tier applications.” According to Stark, the patent is directed to the abstract idea of setting up and managing a cloud computing environment. Neither the claim language nor the specification discloses specific improved methods or systems of cloud computing, he added.
Kaavo argued that various dependent claims contained limitations that preserved their eligibility. For example, claim 11 describes “receiving security information; determining a requested security action based on the security information; and sending a security event based on the requested security action.”
It’s not to hard too understand why they try so desperately to keep Berkheimer in some headlines; a Delaware case, however, isn’t of much significant. Decisions often cite CAFC, not district courts and definitely not PTAB.
But don’t expect the lawyers to lie down and give up; some patent “Prosecution” and “Willfulness” so-called ‘webinars’ from the Intellectual Property Owners Association (IPO) and Practising Law Institute (PLI), respectively, are coming up. Such agenda-pushing by IPO and PLI has been covered here for a very long time. They just try to push litigation agenda, urging more people to sue (initiating ‘business’ both at the plaintiff’s and defendant’s side).
The truth of the matter is that most patents in question are ‘dead’ (futile inside the courts), so nobody would benefit from litigation except the lawyers. Those who claim otherwise are just wasting time and money of people wrongly led to believe otherwise. How about this third ‘webinar’ advertised some hours ago (along with the above) by Patent Docs? From the description: “Michael L. Kiklis and Stephen G. Kunin of Oblon McClelland Maier & Neustadt will provide guidance to patent practitioners on how to draft patent applications to overcome both Section 101 and AIA challenges.”
How can they honestly recommend pursuing software patents in 2018? Just look at the record. One retired attorney has just said that CAFC, the “Fed. Circuit Denied en banc Review of the Invalidation of Vote Verification Patent Claims under 101/Alice: https://dlbjbjzgnk95t.cloudfront.net/1055000/1055429/petition.pdf … ”
Another patent maximalist ranted: “Worst EVER: PTAB screws IBM patent applicant, invents NEW “abstract idea” and includes 180 pages of new material (including an unpublished dissertation) in decision to argue “fundamental building block” – affirm §101 rejection https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017001831-06-06-2018-1 … never seen IDS in an opinion!”
Software patents are rarely original, so PTAB does a fine job eliminating those. It’s simply applying Section 101 — something which many examiners have been failing to do (especially prior to Alice when guidelines were different).
We’re not against patents. Here’s an example of a newly-granted patent which is not software-related, but still… we carry on finding new patents being granted despite being evidently abstract. The USPTO continues to grant many such patents, but the courts would throw them away if challenged; that’s a deterrent for plaintiffs to ever initiate any legal action. A new example of a software patent in the US also comes from Apple. Apple should know algorithms aren’t patentable (such patents would not be enforceable in courts anyhow), but it’s going for it anyway. As Will Hill put it in Diapora, “just when the ridiculous patents against graffiti should be expiring…”
Here’s another new example; the Office needs to stop granting patents which courts would not honour; it’s self-harming. It merely reduces confidence in US patents.
We’ve also just noticed this kind of resurgence of “blockchain” as a surrogate for databases in software. Ropes & Gray LLP’s Leslie M. Spencer and Marta Belcher ride the blockchain hype wave in order to promote patents that are bunk and likely void. They did it twice [1, 2] in recent days and it’s part of a troublesome trend.
Walmart too is pursuing software patents disguised as "blockchain" and days ago an article was published about it. It was titled “Why Walmart filed a patent for blockchain, wearables and EHR data” (these patents are just software).
How about Fortune with “As Blockchain Grows, Companies Look to Avert a Patent War”? 5 days ago Michaela Ross published in “Bloomberg Big Law Business” a report that mostly quotes lawyers, as usual. Here’s a portion:
Blockchain patent wars may be looming, and companies are experimenting with preventive measures.
Startups and industry leaders, like IBM Corp. and Alphabet Inc.’s Google, are winning patents for the technology that is fueling cryptocurrencies and being applied to traditional businesses. They are also increasingly coordinating to uncover solutions—from cross-licensing and pooling patents to patent pledges—that would help ward off patent trolls and infringement lawsuits that plagued past tech revolutions, like the semiconductor or mobile phone booms.
“You’re seeing a much more aggressive effort of a nascent industry to create pools and a pool environment,” Josh Krumholz, co-leader of Holland & Knight LLP’s intellectual property practice, told Bloomberg Law. “It’s unsurprising to me because they’re obviously taking lessons from other industries like telecom.”
A surging number of blockchain experiments and related patent applications across various industries present ripe opportunities for patent assertion entities or trolls, as they’re often known, who could hamper innovation if not properly contained, patent attorneys say.
When Ross says “patent assertion entities or trolls” she means the likes of Erich Spangenberg with IPwe. IAM did a puff piece for him just before the weekend, calling his trolling “monetisation”. █
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Posted in America, Patents at 9:09 am by Dr. Roy Schestowitz
The inversive spin that needs tackling, calling what’s weak “strong”
Summary: The concept of patent strength is being distorted in all sorts of ways and acronyms like IPR still being used not to describe the process by which bad patents get eliminated but to spread propaganda like ‘intellectual’ ‘property’ ‘rights’
THE ARRIVAL of Alice four years ago meant that software patents, even those that had been granted by the USPTO prior to Alice, were on shaky ground. If used litigiously, courts would typically reject these and if the Patent Trial and Appeal Board (PTAB) got ‘called in’ in the form of an inter partes review (IPR) or petition, then too it would happen. Appealing decisions to the Federal Circuit would have yielded a similar outcome. So here we are in 2018; the USPTO continues to grant some software patents, as we shall show in a moment (a later post), albeit some are disguised thinly using semantic tricks and buzzwords.
“Patent strengthening would mean actually raising the quality of patents, but this isn’t what Watchtroll has in mind.”Inter partes reviews are the real “IPRs”. But patent maximalists’ sites like Managing IP [sic] speak of “Alibaba’s IPR report, which isn’t what it sounds like. Stop misusing propaganda terms like IPR as in ‘intellectual’ ‘property’ ‘rights’ (there’s nothing intellectual about them, they’re definitely not property and unlike many things, such as free speech, they’re not rights but a temporary monopoly or a privilege). Watchtroll has already come up with this nonsense about “Patent Strengthening” (they mean “strengthening” not in the same sense the STRONGER Patent Act meant it). To quote:
Patent strengthening is the term we use to refer to the process of achieving the greatest potential for value from a patent during the prosecution – before a patent is even granted.
Patent strengthening would mean actually raising the quality of patents, but this isn’t what Watchtroll has in mind. The Office knows that it ought to mean improving patent quality, i.e. fewer patents, but they don’t want to go down that path. Patent maximalists still call the shots at the Office, albeit not in courts or at PTAB. █
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