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07.28.18

Microsoft’s Biggest Patent Troll Now Leverages the US ‘International’ Trade Commission (ITC) for Embargo Attempts

Posted in America, Microsoft, Patents at 3:21 pm by Dr. Roy Schestowitz

The world

Summary: The latest reports about the supranatural court that works from the US and imposes US patent law worldwide serve to show that Intellectual Ventures too has its finger in the pie

THE USPTO has granted truly awful patents for a number of decades. The chart (graph) of the number of granted patents (over time) makes it abundantly clear. The problem is that low-quality patents won’t always be tested by a court and many lawsuits predate the Patent Trial and Appeal Board (PTAB), which uses inter partes reviews (IPRs) to invalidate US patents outside of courts, too.

“These people can and do assert control over foreign companies.”A dozen years ago Microsoft used patents to embargo a rival from East Asia, not from China but from Asia in general (although the production is often in mainland China, Microsoft’s production included). Microsoft filed a complaint at the ITC and managed to block the competition (in the area of computer mice). We covered that at the time.

ITC has since then made quite a few headlines and yesterday Docket Navigator wrote about it, which is rare (citing “LED Lighting Devices, LED Power Supplies, and Components Thereof, 337-TA-1081 (ITC July 24, 2018, Order) (Lord, ALJ)”). To quote: “The ALJ denied respondents’ motion for summary determination that complainants could not satisfy the economic prong of the domestic industry requirement because of their de minimis domestic investments.”

ALJ stands for Administrative Law Judge, which at the United States International Trade Commission is a high position. These people can and do assert control over foreign companies. Well, the ITC and its ability to impose embargoes is on the line again. Richard Lloyd from the patent trolls’ lobby (IAM), a known cheerleader of Microsoft’s biggest patent troll, now speaks of efforts to embargo the rivals (of Microsoft, as usual) using the ALJs. To quote: “An International Trade Commission judge has called into question Intellectual Ventures’ ability to get an injunction against several car manufacturers and industry suppliers in what is a key case in the firm’s attempts to license much of the sector. A failure to get a favourable verdict from the ITC would come as a considerable blow to the broad assertion campaign that IV launched last year. In a hearing earlier this week, Administrative Law Judge Thomas Pender suggested that IV had not done enough to satisfy the domestic industry requirement.”

This isn’t really about cars (there are many non-vehicular things inside cars these days). Another new article by Yury Kalish and Blaney Harper (Jones Day) has meanwhile emerged at Mondaq, the context for this case having been covered here dozens of times before. ITC basically continues to make products deliberately worse, ignoring judges at PTAB when they say the patents at hand are invalid. As Yury and Blaney put it a few days ago:

The underlying investigation between the Complainant, Cisco Systems, Inc. (Cisco) and Respondent, Arista Networks, Inc. (Arista) concluded in May 2017 when the ITC found that Arista, infringed two of Cisco’s patents – U.S. Patent Nos. 6,377,577 (“the ’577 patent”) and 7,224,668 (“the ’668 patent”). The ITC subsequently issued an LEO and a CDO against Arista.

[...]

Parties at the ITC should pay particular attention to the usefulness of redesigned products at the ITC. Respondents should look to incorporating a redesigned product into their case strategy early and Complainants should consider how to address any such redesigns, including how to effectively utilize modification and enforcement proceedings. As this case demonstrates, the ITC gives little deference to PTAB proceeding unless all appeals have been exhausted.

This has been truly incredible; the ITC’s ALJs basically assert that they are above all other courts and can simply disregard other courts’ rulings. What sort of justice is this? Embargo first, ask questions later? And now they even open their doors to Microsoft-connected patent trolls such as Intellectual Ventures, whose patents are very often invalidated by the Federal Circuit? This is very wrong.

The EPO Abandoned Patent Quality and António Campinos Has No Intention of Changing That

Posted in Europe, Patents at 2:14 pm by Dr. Roy Schestowitz

A frivolous litigation pipeline

A pipeline

Summary: Instead of advancing science and technology (as originally intended) today’s EPO seems eager to serve the litigation pipeline, i.e. patent law firms and litigious firms (including patent trolls) whose sole/primary production is lawsuits

THE demise of patent quality at the EPO accompanies human rights violations. It’s a race to the bottom of many things and ultimately the goal is to just ‘produce’ a lot of low-quality patents, plenty of litigation with these, and plenty of revenue for lawyers, prosecutors etc.

“It would be an absolute nightmare, except for the litigation ‘industry’ (double-dipping, feeding off both plaintiff and defendant/s).”Hogan Lovells’ Steffen Steininger and Katharina Berghofer have just published this article. We last mentioned Hogan Lovells a few days ago.

Hogan Lovells notes that “[n]ot only did [German's] Higher Regional Court find it was not bound by the EPO, it added that contradictory statements by a plaintiff in validity proceedings should only be taken into account under exceptional circumstances…”

Believe it or not, it’s about cigarette paper, which reminds us of that notorious (and recently-granted) European Patent on chewing gum. To quote:

The decision also underscores the significance of the German bifurcated system, in which German civil courts handle infringement and panels of the European Patent Office (EPO) and the German Federal Court handle validity.

The patent at issue relates to a cigarette paper having a reduced tendency for inflammation. According to the patent, this is achieved by applying a thin film (solution) on the cigarette. In opposition proceedings, a panel of the EPO decided the term “solution” did not include “suspensions.” In subsequent infringement proceedings, however, the Higher Regional Court ruled the opposite. It held that suspensions fall within the scope of the patent and found the same to be infringing. In doing so, the court stressed that it was not bound by an interpretation of the EPO; rather, the infringement court should make its own assessment on how to define claim features.

Yes, well, imagine what would happen if UPC, governed primarily by the EPO, took charge. It would be an absolute nightmare, except for the litigation ‘industry’ (double-dipping, feeding off both plaintiff and defendant/s).

“Let’s just face it: today’s EPO has a sole goal, which is to grant as many patents as possible rather than perform proper examination.”French media got in contact with us a day ago. It’s the biggest media in France and we therefore hope it will have an impact. Will anyone finally pay attention to the plea of examiners? Will there be more scrutiny over — amongst other things — human rights violations at the EPO? As much of a scandal (weeks in the media) as a violent bodyguard who used to work for Battistelli? Does something need to go physically out of control before the media pays attention?

Other than the above, things have been eerily quiet. For example, almost every other day the EPO posts this kind of tweet about the European Inventor Award 2019. António Campinos has also just been mentioned by World Intellectual Property Review. They just repeat that latest PR/face-saving post from Campinos:

This was one of the goals he outlined in a blog post after taking up the reins at the EPO earlier this month amid a period of turmoil for the office.

WIPR has previously reported on tensions at the EPO, including strikes, before Campinos took over as president on July 2.

As his first month in the position draws to a close, Campinos demonstrated a willingness to improve the office’s outlook.

How so? Name an example. A concrete one. He has done absolutely nothing over the past 4 weeks. Even insiders say so. The EPO’s Twitter account just repeats his PR again (our response is in here) and says stuff like: “Four patent applications are filed worldwide every minute.”

That’s the kind of thing a patent maximalist would say; as if the goal is to increase filings and grants irrespective of economics, competition, merit and so on.

Let’s just face it: today’s EPO has a sole goal, which is to grant as many patents as possible rather than perform proper examination. Why else would the most senior examiners be driven out?

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