09.18.18

Links 18/9/2018: Qt 5.12 Alpha , MAAS 2.5.0 Beta, PostgreSQL CoC

Posted in News Roundup at 1:33 pm by Dr. Roy Schestowitz

GNOME bluefish

Contents

GNU/Linux

Free Software/Open Source

  • NYU applies open source Google AI to diagnose lung cancer

    If recent research is any indication, artificial intelligence (AI) has a bright future in medicine. Nvidia developed an AI system that can generate synthetic scans of brain cancer. Google subsidiary DeepMind has demonstrated a machine learning algorithm that can recommend treatment for more than 50 eye diseases with 94 percent accuracy. And in newly published research, New York University (NYU) showed how AI might aid in lung cancer diagnosis.

    A paper today published in the journal Nature Medicine (“Classification and mutation prediction from non-small cell lung cancer histopathology images using deep learning”) describes how a team of NYU researchers retrained Google’s Inception v3, an open source convolutional neural network architected for object identification, to detect certain forms of lung cancers with 97 percent accuracy.

  • Google AI Tool Identifies a Tumor’s Mutations From an Image
  • Announcing Heritage: An Open Source, Public Blockchain Project

    Heritage is a project of A​3​ by Airbus, the advanced projects outpost of Airbus in Silicon Valley. Airbus Foundation is the first strategic partner within Airbus to utilize blockchain technology developed by Heritage.

    Heritage is a decentralized application for the Airbus Foundation to hold charity fundraising campaigns internal to Airbus. Through open sourcing Heritage, Airbus Foundation will help charities onboard cryptocurrency and smart contracts, opening them to a new class of donor. Heritage hopes to set a standard non-profits can replicate to continue to grow the ecosystem while aiding an underserved market.

  • Versity announces next generation open source archiving filesystem

    Versity Software has announced that it has released ScoutFS under GPLv2. “ScoutFS is the first GPL archiving file system ever released, creating an inherently safer and more user friendly option for storing archival data where accessibility over very large time scales, and the removal of vendor specific risk is a key consideration.”

  • Web Browsers

    • Chrome

    • Mozilla

      • Fedora Firefox – GCC/CLANG dilemma

        After reading Mike’s blog post about official Mozilla Firefox switch to LLVM Clang, I was wondering if we should also use that setup for official Fedora Firefox binaries.

        The numbers look strong but as Honza Hubicka mentioned, Mozilla uses pretty ancient GCC6 to create binaries and it’s not very fair to compare it with up-to date LLVM Clang 6.

        Also if I’m reading the mozilla bug correctly the PGO/LTO is not yet enabled for Linux, only plain optimized builds are used for now…which means the transition at Mozilla is not so far than I expected.

      • September 2018 CA Communication

        Mozilla has sent a CA Communication to inform Certification Authorities (CAs) who have root certificates included in Mozilla’s program about current events relevant to their membership in our program and to remind them of upcoming deadlines. This CA Communication has been emailed to the Primary Point of Contact (POC) and an email alias for each CA in Mozilla’s program, and they have been asked to respond to the following 7 action items:

      • Emily Dunham: CFP tricks 1

        Some strategies I’ve recommended in the past for dealing with this include looking at the conference’s marketing materials to imagine who they would interest, and examining the abstracts of past years’ talks.

      • Thunderbird 60 with title bar hidden

        Many users like hidden system titlebar as Firefox feature although it’s not finished yet. But we’re very close and I hope to have Firefox 64 in shape that the title bar can be disabled by default at least on Gnome and matches Firefox outfit at Windows and Mac.

        Thunderbird 60 was finally released for Fedora and comes with a basic version of the feature as it was introduced at Firefox 60 ESR. There’s a simple checkbox at “Customize” page at Firefox but Thunderbird is missing an easy switch.

  • Databases

  • Pseudo-Open Source (Openwashing)

  • Funding

  • BSD

    • OpenBSD/NetBSD on FreeBSD using grub2-bhyve

      When I was writing a blog post about the process title, I needed a couple of virtual machines with OpenBSD, NetBSD, and Ubuntu. Before that day I mainly used FreeBSD and Windows with bhyve. I spent some time trying to set up an OpenBSD using bhyve and UEFI as described here. I had numerous problems trying to use it, and this was the day I discovered the grub2-bhyve tool, and I love it!

      The grub2-bhyve allows you to load a kernel using GRUB bootloader. GRUB supports most of the operating systems with a standard configuration, so exactly the same method can be used to install NetBSD or Ubuntu. [...]

    • OpenZFS Developer Summit 2018

      The sixth annual OpenZFS Developer Summit took place September 10th and 11th in San Francisco, California with an expanded focus on non-technical topics like community development and cross-project coordination. It also marked the “light at the end of the tunnel” status of several long-term OpenZFS features, notably dRAID, the distributed spare technology originally developed by Intel. [...]

  • FSF/FSFE/GNU/SFLC

    • Washington State Electronic Notary Public endorsements

      [...] This all seemed to me to be something that GnuPG is designed to do and does
      quite well. So I sent an email on Friday night to the sender of the letter
      requesting specific issues that my provider did not comply with. This
      morning I received a call from the DoL, and was able to successfully argue
      for GnuPG’s qualification as an electronic records notary public technology
      provider for the State of Washington.

      In short, GnuPG can now be used to perform notarial acts
      <http://app.leg.wa.gov/RCW/default.aspx?cite=42.45.140> in the State of
      Washington!

  • Openness/Sharing/Collaboration

    • Hindawi Limited Launches Open-Source Peer Review System Built on the PubSweet Framework

      Hindawi Limited is pleased to announce the launch of a new peer review platform built using the Collaborative Knowledge Foundation’s (Coko) open source PubSweet framework.

      This is the first complete open-source peer review system to come out of the Coko community, a group of like-minded organizations, including eLife, the European Bioinformatics Institute, and the University of California Press, keen on working collaboratively towards the advancement of openness in scholarly communications software.

    • Open Access/Content

      • Surprise: Bill Introduced To Finally Make PACER Free To All

        This would be… amazing. We’ve spent years highlighting the massive problems with PACER, the federal court system that charges insane amounts for basically everything you do, just to access public records, and which functions very much like it was designed around 1995. There are a few court cases arguing that PACER fees are illegal and a recent ruling in one of those cases agreed. As we noted at the time, that was hardly the final word on the matter. A bill like the ones Collins introduced would be an amazing leap forward in giving public access to court documents.

      • Collins introduces bill to increase transparency and access to federal court documents

        Rep. Doug Collins (R-Ga.) today introduced a bill to reform both parts of the federal courts’ electronic records system.

        “Americans deserve a justice system that is transparent and accessible. I introduced the Electronic Court Records Reform Act to modernize the judicial records systems and remove fee-for-access barriers that technology has rendered unnecessary,” said Collins.

        “As an attorney and the son of a law enforcement officer, I understand how crucial it is that this legislation ensures access to a freer, fairer and more accountable judiciary.”

    • Open Hardware/Modding

      • Learn To Code Games With The DevBoy Modular Open Source System

        Developer Nicolai Shlapunov has created a new modular open source system specifically created for learning how to program and develop games. The DevBoy has this week launched via Kickstarter with the aim of raising $100,000 over the next 30 days to make the jump into production. Watch the demonstration video below to learn more about the modular hardware kit can help you learn to dove games and allows you to configure different gaming systems depending on your needs. “Ever wanted to build your own game console? Robot remote control? May be an oscilloscope? DevBoy is what you need!”

      • RISC-V microconference accepted for Linux Plumbers Conference

        The open nature of the RISC-V ecosystem has allowed contributions from both academia and industry to lead to an unprecedented number of new hardware design proposals in a very short time span. Linux support is the key to enabling these new hardware options.

      • A $1, Linux-Capable, Hand-Solderable Processor

        Over on the EEVblog, someone noticed an interesting chip that’s been apparently flying under our radar for a while. This is an ARM processor capable of running Linux. It’s hand-solderable in a TQFP package, has a built-in Mali GPU, support for a touch panel, and has support for 512MB of DDR3. If you do it right, this will get you into the territory of a BeagleBone or a Raspberry Pi Zero, on a board that’s whatever form factor you can imagine. Here’s the best part: you can get this part for $1 USD in large-ish quantities. A cursory glance at the usual online retailers tells me you can get this part in quantity one for under $3. This is interesting, to say the least.

      • Open Source Paramotor Using Quadcopter Tech

        But not always. The OpenPPG project aims to create a low-cost paramotor with electronics and motors intended for heavyweight multicopters. It provides thrust comparable to gas paramotors for 20 to 40 minutes of flight time, all while being cheaper and easier to maintain. The whole project is open source, so if you don’t want to buy one of their kits or assembled versions, you’re free to use and remix the design into a personal aircraft of your own creation.

        It’s still going to cost for a few thousand USD to get a complete paraglider going, but at least you won’t need to pay hangar fees. Thanks to the design which utilizes carbon fiber plates and some clever hinges, the whole thing folds up into a easier to transport and store shape than traditional paramotors with one large propeller. Plus it doesn’t hurt that it looks a lot cooler.

  • Programming/Development

    • TNS Context: The CNCF Open Source Survey and the Ballerina Programming Language

      Today on The New Stack Context podcast, we talk with Chris Aniszczyk, co-founder of the TODO Group and Chief Technology Officer of the Cloud Native Computing Foundation (CNCF) about the results of our recent open source program management survey. We also talk about WS02‘s new cloud native programming language, Ballerina.

      Joining Context host TNS editorial director Libby Clark for this episode is TNS founder Alex Williams and TNS managing editor Joab Jackson.

    • The D Language Front-End Is Trying Now To Get Into GCC 9

      Going on for a while now have been D language front-end patches for GCC to allow this programming language to be supported by the GNU Compiler Collection. It’s been a long battle getting to this state but it looks like it soon might be mainlined.

      Last June was the approval by the GCC Steering Committee to allow D support in GCC. While the committee approved of its addition, the D language front-end didn’t end up getting merged in time for the GCC 8 stable release that took place earlier this year.

Leftovers

  • Science

    • Being nice to your employees pays off: Research

      Researchers surveyed nearly 1,000 members of the Taiwanese military and almost 200 adults working full-time in the US, and looked at the subordinate performance that resulted from three different leadership styles.

      They found that authoritarianism-dominant leaders — who assert absolute authority and control, focused mostly on completing tasks at all costs with little consideration of the well-being of subordinates — almost always had negative results on job performance.

      On the other hand, benevolence-dominant leadership — where primary concern is the personal or familial well-being of subordinates — almost always had a positive impact on job performance.

  • Health/Nutrition

    • What The U.S. Could Do If So Much Money Wasn’t Wasted On Health Care

      The United States spends 7.2 percent points more of our gross domestic product (GDP) on health care than several industrialized countries. That is $1.3 trillion the country effectively wastes on health care without getting better health outcomes.

      This is such a large amount of money it is almost impossible to wrap one’s head around. But it’s important to highlight just what could be done with that much money.

    • Negotiated Deal Stands For UN Tuberculosis Declaration

      The final text of the declaration can be found here [pdf], and the letter from the President of the UN General Assembly marking the end of the “silence period,” during which member states have an opportunity to break consensus, can be found here [pdf].

      “In accordance with paragraph 6 of General Assembly resolution 72/268, the political declaration shall be approved by the high-level meeting on the fight against tuberculosis on 26 September 2018 and subsequently adopted by the General Assembly,” the letter states.

      The final version of the text could be stronger on intellectual property flexibilities that promote access to medicines, but it is important that a deal has been reached, and there is room for improvement, according to civil society groups.

  • Security

    • Quantum Computing and Cryptography

      Quantum computing is a new way of computing — one that could allow humankind to perform computations that are simply impossible using today’s computing technologies. It allows for very fast searching, something that would break some of the encryption algorithms we use today. And it allows us to easily factor large numbers, something that would break the RSA cryptosystem for any key length.

      This is why cryptographers are hard at work designing and analyzing “quantum-resistant” public-key algorithms. Currently, quantum computing is too nascent for cryptographers to be sure of what is secure and what isn’t. But even assuming aliens have developed the technology to its full potential, quantum computing doesn’t spell the end of the world for cryptography. Symmetric cryptography is easy to make quantum-resistant, and we’re working on quantum-resistant public-key algorithms. If public-key cryptography ends up being a temporary anomaly based on our mathematical knowledge and computational ability, we’ll still survive. And if some inconceivable alien technology can break all of cryptography, we still can have secrecy based on information theory — albeit with significant loss of capability.

      At its core, cryptography relies on the mathematical quirk that some things are easier to do than to undo. Just as it’s easier to smash a plate than to glue all the pieces back together, it’s much easier to multiply two prime numbers together to obtain one large number than it is to factor that large number back into two prime numbers. Asymmetries of this kind — one-way functions and trap-door one-way functions — underlie all of cryptography.

    • This New CSS Attack Restarts iPhones & Freezes Macs
    • Time to Rebuild Alpine Linux Docker Containers After Package Manager Patch
    • GrrCon 2018 Augusta15 Automation and Open Source Turning the Tide on Attackers John Grigg
    • Software Patch Claimed To Allow Aadhaar’s Security To Be Bypassed, Calling Into Question Biometric Database’s Integrity

      As the Huffington Post article explains, creating a patch that is able to circumvent the main security features in this way was possible thanks to design choices made early on in the project. The unprecedented scale of the Aadhaar enrollment process — so far around 1.2 billion people have been given an Aadhaar number and added to the database — meant that a large number of private agencies and village-level computer kiosks were used for registration. Since connectivity was often poor, the main software was installed on local computers, rather than being run in the cloud. The patch can be used by anyone with local access to the computer system, and simply involves replacing a folder of Java libraries with versions lacking the security checks.

      The Unique Identification Authority of India (UIDAI), the government body responsible for the Aadhaar project, has responded to the Huffington Post article, but in a rather odd way: as a Donald Trump-like stream of tweets. The Huffington Post points out: “[the UIDAI] has simply stated that its systems are completely secure without any supporting evidence.”

    • New CAS BACnet Wireshark Report Tool Helps User to Quickly Locate Intermittent Issues
    • Hackers For Good, Working To Gather Stakeholders To Find Answers To Cyberspace Challenges

      For a number of people, the word hacker means bad news. However, if some hackers have malevolent intentions, there are also hackers for good, and their skills were put to the challenge last week as they tried to save a fictitious city fallen into the hands of a group of cyber terrorists. The challenge was part of a two-day event organised by a young Geneva-based non-governmental organisation seeking to raise awareness about digital trust and bring accountability to cyberspace.

  • Transparency/Investigative Reporting

  • Environment/Energy/Wildlife/Nature

  • Finance

    • I worked in an Amazon warehouse. Bernie Sanders is right to target them

      Sanders has also been highlighting some of the 19th-century working practices used by Amazon to control and discipline its workforce inside of its fulfilment centres. Sanders’ bill – the Stop Bad Employers by Zeroing Out Subsidies Act, or the ‘Stop Bezos Act’ – would tax employers like Amazon when their employees require federal benefits.

      [...]

      Yet what I found while working for Amazon shocked me. I had done warehouse work previously when I was younger, along with a range of other poorly paid, manual jobs. In other words, my shock at the way workers were treated by Amazon was not a product of some wet-behind-the-ears naivety: I fully expected warehouse work to be tough. Yet what I witnessed at Amazon went far beyond that. This was a workplace environment in which decency, respect and dignity were absent.

  • AstroTurf/Lobbying/Politics

    • US power couple purchase Time Magazine for $190 million

      Time Magazine is being sold by Meredith Corp to Marc Benioff, a co-founder of Salesforce, and his wife.

      The Wall Street Journal reported that the iconic news magazine is being sold for USD 190 million to Benioff, one of four co-founders of Salesforce, a cloud computing pioneer.

    • Morning Edition’s Think Tank Sources Lean to the Right

      When it comes to seeking “expert” opinions on events for its reports, NPR often looks to a trusted roster of think-tank sources. In a study of NPR’s Morning Edition from February to July 2018, FAIR found that sources from left-of-center think tanks were underrepresented, with right-leaning think tank sources appearing almost twice as often.

      Out of 129 episodes aired Monday through Friday over the course of six months, researchers and fellows representing think tanks were quoted 144 times. Centrist think tanks were most commonly heard on Morning Edition, with 63 interview (44 percent of citations). Fifty-one (35 percent) of the show’s interviews were with conservative or center-right groups, while 28 (19 percent) involved progressive or center-left groups.

      Representatives from two think tanks—the pro-seafood Lobster Institute and the Rich Earth Institute, which promotes turning urine into fertilizer—could not be placed on the political spectrum.

    • The Election DataBot: Now Even Easier

      We launched the Election DataBot in 2016 with the idea that it would help reporters, researchers and concerned citizens more easily find and tell some of the thousand stories in every political campaign. Now we’re making it even easier.

      Just as before, the DataBot is a continuously updating feed of campaign data, including campaign finance filings, changes in race ratings and deleted tweets. You can watch the data come in in real time or sign up to be notified by email when there’s new data about races you care about.

      DataBot’s new homepage dashboard of campaign activity now includes easy-to-understand summaries so that users can quickly see where races are heating up. We’ve added a nationwide map that shows you where a variety of campaign activity is occurring every week.

      For example, the map shows that both leading candidates in Iowa’s 1st District saw spikes in Google searches in the week ending on Sept. 16 (we track data from Monday to Sunday). The Cook Political Report, which rates House and Senate races, changed its rating of that race from “Tossup” to “Lean Democratic” on Sept. 6.

  • Censorship/Free Speech

    • Google’s Chinese Search Engine Will Censor Results, Provide Gov’t-Approved Pollution Data

      Google’s Chinese search engine also contains a blacklist of terms like “human rights,” “student protest,” and “Nobel Prize,” showing the government has a deep interest in using the custom-built search engine to deter and punish dissent. None of this is surprising, other than Google’s willingness to participate in government censorship. Google does pretty much the same thing with Android phones here in the US, where everything in the ecosystem is tied to the originating phone. There are ways to prevent that, but most phone users won’t take those steps. In China, however, the phones are also registered with the government, removing the third-party hop needed to tie internet activity to a person.

      Even Google’s seeming embrace of censorship and dissent deterrence may not be as surprising as it should be, as any number of social media platforms have made considerable concessions to authoritarian governments in recent years, rather than face losing market share in these countries.

      [...]

      Companies make bad decisions when faced with doing the right thing or doing the most profitable thing. Google premised its existence on not being evil. Pulling out of China lived up to that ideal. This does not. Concessions will always be made, but if these leaked documents are accurate, what Google is doing in China is far more than making small compromises to provide Chinese citizens with platforms not entirely controlled by their government. For all intents and purposes, Dragonfly is the government’s toy, built on tech underpinnings and expertise Google has apparently offered willingly.

    • Google’s search engine for China censors results for ‘democracy,’ ‘human rights,’ or ‘free speech’

      Early in August, a report from The Intercept claimed that Google was working to make a China-friendly version of its search engine that would censor results to make the government happy. A number of Google engineers quit the company after learning about this particularly egregious breach of Google’s “don’t be evil” policy, and now yet another report from The Intercept reveals exactly what Google was willing to censor.

      [...]

      More than anything, the report — which is well worth reading in full — shows the extent that even the biggest tech companies will go to in order to capture a share in a major emerging market. It’s easy to argue that if Google doesn’t acquiesce, a local firm will just do so anyway, but clearly Google’s own employees think it’s worth keeping the moral high ground.

  • Privacy/Surveillance

    • Revealed: The Justice Dept’s secret rules for targeting journalists with FISA court orders

      Today, we are revealing—for the first time—the Justice Department’s rules for targeting journalists with secret FISA court orders. The documents were obtained as part of a Freedom of Information Act lawsuit brought by Freedom of the Press Foundation and Knight First Amendment Institute at Columbia University.

      While civil liberties advocates have long suspected secret FISA court orders may be used (and abused) to conduct surveillance on journalists, the government—to our knowledge—has never acknowledged they have ever even contemplated doing so before the release of these documents today.

      The FISA court rules below are entirely separate from—and much less stringent—than the rules for obtaining subpoenas, court orders, and warrants against journalists as laid out in the Justice Department’s “media guidelines,” which former Attorney General Eric Holder strengthened in 2015 after several scandals involving surveillance of journalists during the Obama era.

      When using the legal authorities named in the “media guidelines,” the Justice Department (DOJ) must go through a fairly stringent multi-part test (e.g. certifying that the information is critical to an investigation, that it can’t be obtained by other means, and that the DOJ exhausted all other avenues before doing so) before targeting a journalist with surveillance. They must also get approval from the Attorney General.

    • Federal Court Says NSA PRISM Surveillance Good And Legal Because The Gov’t Said It Was Good And Legal

      Three years after its inception, a prosecution involving possibly unlawful FISA-authorized surveillance, hints of parallel construction, and a very rare DOJ notification of Section 702 evidence has reached a (temporary) dead end. The defendants challenged the evidence on multiple grounds — many of which weren’t possible before the Snowden leaks exposed the breadth and depth of the NSA’s domestic surveillance.

      The federal judge presiding over the case — which involved material support for terrorism charges — has declared there’s nothing wrong with anything the NSA or FISA Court did, so long as the surveillance was authorized and possibly had something to do with national security. (via FourthAmendment.com)

      First, the defendants — all accused of providing material support to Al Qaeda (remember them?) — asserted the constitutionality of the NSA’s upstream collections should be revisited in light of the Snowden leaks. The court [PDF] says these more-recent exposures are no reason to upset the precedential apple cart.

    • Congress Is Poised to Give Trump Administration Powerful New Spying Powers

      Congress is once again using “national security” as magic words to increase the government’s surveillance powers in dangerous and unaccountable ways.

      The Trump administration wants more spying power — and Congress appears poised to give it to them.

      Touting national security to justify spying powers that jeopardize our constitutional rights is a strategy that we have seen before. It happened with the Patriot Act after 9/11, and members of Congress and government officials are now employing similar arguments again. This time it involves a drone bill that some in Congress are pressing to be sneakily inserted into a larger piece of legislation that could be considered this month.

      According to news reports, members of Congress are lobbying to add the Preventing Emerging Threats Act of 2018 to the Federal Aviation Agency Reauthorization Act. Proponents of the bill claim that it will make our country safer. But, in reality, the drone legislation will give new surveillance powers to the Trump administration to spy on journalists, activists, and other Americans without a warrant.

      According to bill sponsors, the bill’s intent is to arm the “Department of Homeland Security and the Justice Department with the ability to act quickly and effectively when a drone poses a risk to large-scale events and government facilities.” This goal may be admirable, but the bill does not achieve it.

      Instead, the bill empowers these agencies to warrantlessly spy on Americans without complying with existing US laws — including the Wiretap Act, Stored Communications Act, and the Computer Fraud and Abuse Act. Generally, these laws require the government to get a warrant if they want to wiretap or access other types of stored communications.

      The drone bill, however, exempts DHS and DOJ from these restrictions anytime it deems a drone a “threat” to certain covered areas. The bill defined covered areas so broadly — including areas where there may be emergency responses or federal investigations— that it will inevitably sweep in areas where media organizations have a legitimate interest in reporting.

  • Civil Rights/Policing

    • ‘This Is an Unprecedented Level of Secrecy and Non-Transparency’

      Media are certainly reporting the confirmation hearings of Supreme Court nominee Brett Kavanaugh. But there’s a case to be made that stories that just get views from various folks about what it would be like with Kavanaugh on the court, but sidestep serious questions about the process that would put him there, are doing less covering than covering up.

      Media get things wrong all the time, but among the deepest damage they do is invisibilizing possibilities, making it seem that things they don’t consider can’t happen. It’s a sort of implicit passivity that permeates corporate reporting, of which the air of “oh well, what’s next” fatalism wafting off of much coverage of Kavanaugh is just one example.

    • California Law Could be a Big Step Forward for Police Transparency
    • A Full Investigation Is Needed Into the Sexual Assault Allegations Against Brett Kavanaugh

      Both Kavanaugh and his accuser, Christine Blasey Ford, should testify under oath before the Senate Judiciary Committee.

      Over the weekend, details of serious charges of sexual assault alleged to have been committed by Judge Brett Kavanaugh became public, as did the name of the woman raising these allegations. In a letter to Sen. Diane Feinstein and in an interview with The Washington Post, Dr. Christine Blasey Ford described an incident in high school when she says Kavanaugh sexually assaulted her at a party.

      Judge Kavanaugh has denied the allegations. “I have never done anything like what the accuser describes — to her or to anyone,” he said in a statement on Monday.

      These allegations, like all allegations of sexual misconduct, deserve to be taken seriously.

      Initially, Dr. Ford did not want her story to become public. She was afraid that doing so would “upend her life.” This is the reality women face, within a culture that too often vilifies people who come forward. Already, she has reportedly received threatening emails and is the subject of vicious online trolls, cruel tweets, and mocking Instagram posts, including one by Donald Trump Jr. But according to her lawyer, Debra Katz, “She’s willing to do whatever it takes to get her story forth.”

      It is critical that the confirmation hearings be delayed so that a thorough and transparent investigation can be conducted, including a hearing at which both Ford and Kavanaugh have an opportunity to testify under oath. The Senate cannot move forward with this lifetime appointment to the highest court in the land without considering the results of a fair, non-partisan, and complete process. If Judge Kavanaugh is confirmed, he could sit on the Supreme Court for the next 40 years. This confirmation process is the only process he will ever go through. Now is the time for the allegations to be investigated and testimony to be heard.

    • Blood-Spatter Expert in Joe Bryan Case Says “My Conclusions Were Wrong”

      A hearing to determine whether Joe Bryan should be granted a new trial came to a dramatic conclusion on Monday with a surprise, eleventh-hour admission from the expert witness whose testimony had proved critical in convicting the former high school principal of the 1985 murder of his wife, Mickey.

      “My conclusions were wrong,” retired police Detective Robert Thorman wrote in an affidavit introduced by the defense of the bloodstain-pattern analysis he performed. “Some of the techniques and methodology were incorrect. Therefore, some of my testimony was not correct.”

      Bloodstain-pattern analysis is a forensic discipline whose practitioners regard the drops, spatters and trails of blood at a crime scene as clues, which can sometimes be used to reverse-engineer the crime itself. Thorman had only 40 hours of training in the discipline when he was called in to work on the Bryan case. His testimony about a blood-speckled flashlight that Mickey’s brother found in the trunk of Bryan’s car four days after the murder made the state’s tenuous theory of the crime seem plausible.

      At Bryan’s trial in 1986 and then again at his 1989 retrial, Thorman testified that tiny flecks of blood on the flashlight could only be “back spatter” — a pattern that indicated a close-range shooting. What connection the flashlight had to the crime, if any, was never clear; in 1985, a crime lab chemist found that the blood on it was type O, which corresponded not only to Mickey but to nearly half the population. But Thorman effectively tied the flashlight to the crime scene, going so far as to say that the killer had likely held the flashlight in one hand while firing a pistol with the other.

      Bryan had been attending a principals’ convention in Austin, 120 miles from where the murder occurred in Clifton, Texas, in the days surrounding the murder. He has always maintained that he was in Austin, asleep in his hotel room, at the time of the crime.

    • How Facebook Is Giving Sex Discrimination in Employment Ads a New Life

      We’re taking on Facebook and 10 companies for using the social platform to direct job ads toward men, excluding others.

      In 1967, the newly formed National Organization for Women staged a weeklong protest of The New York Times and other newspapers. Their demonstration targeted the long-standing practice of printing classified listings in two separate columns: “Help wanted: Male” and “Help wanted: Female,” which of course resulted in the exclusion of women from high-paying jobs and industries. As a result of NOW’s advocacy campaign, the Equal Employment Opportunity Commission, the federal agency charged with enforcing Title VII of the 1964 Civil Rights Act prohibiting race and sex discrimination in employment, finally made clear — over the strong objection of newspapers — that limiting job postings to one sex was unlawful. Sex-segregated classified ads subsequently became a thing of the past.

      Or so we thought.

      Today, five decades later, sex-segregated job listings are roaring back to life. Enabled by social media platforms like Facebook, advertisers are increasingly using users’ personal data to direct their ads — including for jobs — to individual users based on characteristics such as sex, race, and age, thus excluding users outside of the selected groups from learning about these opportunities.

      We can’t let this archaic form of discrimination continue to take hold. That’s why on Tuesday, the ACLU, along with the Communications Workers of America and the employment law firm Outten & Golden LLP, filed charges with the Equal Employment Opportunity Commission against Facebook and 10 companies that targeted ads for jobs in male-dominated fields to younger male Facebook users only, excluding all women and non-binary individuals, as well as older male users. The case is brought on behalf of three job seekers and the Communications Workers of America on behalf of a proposed class of millions of job applicants. It alleges that these job advertising practices violate federal civil rights laws prohibiting sex and age discrimination in employment.

    • Court: Trump’s ‘Get ‘Em Out’ Order Directed At Campaign Rally Protesters Is Protected Speech

      The Sixth Circuit Appeals Court has taken a look at some of President Trump’s campaign trail trash talk and decided urging fans to remove protesters wasn’t incitement, even if the phrasing was a bit graceless. (h/t Elizabeth Joh)

      The plaintiffs — Kashiya Nwanguma, Molly Shah, and Henry Brosseau — attended a Trump campaign rally for the express purpose of protesting it. There’s nothing wrong with that. It’s the sort of thing that happens all the time, even if Trump tends to draw more detractors than most. During his speech, Trump had his critics ejected, telling attendees to “get ‘em out of here.”

      The plaintiffs, having been unceremoniously ejected (with some extra jostling from Trump supporters), sued, claiming Trump’s “get ‘em out of here” directly caused them harm and violated the state of Kentucky’s riot incitement law.

      The Appeals Court disagrees [PDF] with this assessment, using the plaintiffs’ own statements to undo their assertions. But it’s not happy with the lower court’s decision to apply a less strict standard to Trump’s wording to give the plaintiffs a better shot at hitting the mark with their state claims (“incitement to riot”). Applying the plausibility standard — that Trump’s “get ‘em out of here” could have conceivably incited a riot — makes no sense if the lower court wasn’t willing to apply that same standard to words Trump said directly after that.

    • Beyond Prisons — Episode 28: Prison Strike 2018

      Recorded in the midst of the strike on August 30, co-hosts Brian Sonenstein and Kim Wilson have a conversation with Ware about the strike’s progress, as well as the challenges of organizing and why the press is woefully unprepared to report on the action.

  • Internet Policy/Net Neutrality

    • Ajit Pai Whines About California’s Net Neutrality Effort, Calls It ‘Radical,’ ‘Illegal’

      Much like the giant ISPs he’s clearly beholden to, Ajit Pai isn’t particularly happy about California’s efforts to pass meaningful net neutrality rules. The state’s shiny new law recently passed the state assembly and senate, and is awaiting the signature of California Governor Jerry Brown. ISPs recently met with Brown in a last-minute bid to get him to veto the bill (a very real possibility) despite widespread, majority public support.

      Pai last week took some time to whine about California’s bill at the Maine Heritage Policy Center, a “free market” think tank supported by (shockingly) major ISPs.

    • Ajit Pai: California net neutrality law is “illegal”

      During the Obama years, when Pai was a mere FCC commissioner, he argued that states had the right to overrule federal telcoms rules. But he was arguing in favor of states’ rights to overrule federal regulations that said states couldn’t stop cities from building municipal internet services that competed with the telcos that Pai formerly served in an executive capacity.

    • Ajit Pai calls California’s net neutrality rules “illegal”

      California’s attempt to enforce net neutrality rules is “illegal” and “poses a risk to the rest of the country,” Federal Communications Commission Chairman Ajit Pai said in a speech on Friday.

      Pai’s remarks drew an immediate rebuke from California Senator Scott Wiener (D-San Francisco), who authored the net neutrality bill that passed California’s legislature and now awaits the signature of Governor Jerry Brown.

  • Intellectual Monopolies

    • Economic Analysis of Intellectual Property Notice and Disclosure

      Notice of intellectual property content, ownership, boundaries, scope of rights (and limitations), enforcement institutions, and remedial consequences plays a central role in resource planning and other economic and social functions. This chapter examines the function, design, and economic effects of intellectual property notice and disclosure rules and institutions. Based on this analysis, the chapter offers a comprehensive set of policy, institutional, and litigation reforms.

    • India: Patents Excluded

      Later, in 2012, Mr. Patel (Bharat Bhogilal Patel) filed a complaint against LG Electronics and multiple other importers for infringement. A circular was released by the govt. in 2009, which helped in the implementation of the IPR Rules, 2007. This circular addressed the issue of a Customs Officer not having the pre-requisite knowledge on Patents, Geographical Indication Infringements and design compared to Trademark and Copyrights. In order to deal with the infringements of the former kind, they should have been pronounced as offences by the court of law making the application by the Customs Officer simpler.

      In order to deal with this, vide notification no. 56/2018, the Central Government introduced amendments to the IPR Enforcement Rules, 2007 and introduced the Intellectual Property Rights (Imported Goods) Amendment Rules, 2018.

    • Germany: Abdichtsystem, Federal Court of Justice of Germany, X ZR 120/15, 16 May 2017

      This case concerns the question of whether, and under what conditions, a supplier of infringing products who is located abroad can be held liable for infringement of the German patent for acts committed abroad. The FCJ held that the supplier may be liable if he was aware or should have been aware of the fact that the products he was supplying would eventually also reach the German market through his customers. Where the supplier does not market the products directly to Germany, there is no general obligation to monitor the activities of his customers.

    • Trademarks

      • Cai v. Diamond Hong, Inc. (Fed. Cir. 2018)

        Zheng Cai DBA Tai Chi Green Tea Inc. appealed an opinion of the U.S. Patent and Trademark Office Trademark Trial and Appeal Board (TTAB) cancelling registration of his mark “WU DANG TAI CHI GREEN TEA” due to a likelihood of confusion with Diamond Hong, Inc.’s registered mark, “TAI CHI,” pursuant to 15 U.S.C. § 1052(d) (2012).

        The Federal Circuit affirmed the decision, and despite the two marks (shown below) looking substantially different in appearance at first glance, other factors weighed in favor of the cancellation.

    • Copyrights

      • Traditional Knowledge and the Commons: The Open Movement, Listening, and Learning

        CC licenses and public domain tools help individuals, organisations, and public institutions better disseminate digital resources and data, breaking down the typical barriers associated with traditional “all rights reserved” copyright. At the same time, CC licenses can’t do everything for everyone. First, the licenses operate in the sphere of copyright and similar rights. They do not attempt to license, say, personality rights, trademark, or patent rights. Also, the CC community recognizes that voluntary licensing schemes will never be a comprehensive solution for access to and reuse of knowledge and creativity around the world. This is one reason why CC works on international copyright reform issues, including the protection and expansion of user rights.

        Another dimension of openness that could be better understood from the perspective of the “open” community is the sharing of cultural works related to indigenous communities. This has been talked about with terms such as “traditional knowledge”. Traditional knowledge consists of a wide range of skills, cultural works, and practices that have been sustained and developed over generations by indigenous communities around the world. These communities hold entitlement over this knowledge as well as responsibility for the preservation of their knowledge, but haven’t always had the autonomy to decide what can be done with their knowledge. International and national instruments have attempted to codify the value of traditional knowledge and rights of indigenous peoples, but the place of such knowledge within conventional intellectual property structures remains deeply contested and uncertain.

        These issues and more were brought up at the 2018 Creative Commons Global Summit as well, and has since started an important conversation within the CC community. I’m an attorney and doctoral candidate at UC-Berkeley Law, and over the summer I worked as a research fellow for Creative Commons to conduct an investigation into the current issues regarding traditional knowledge and its intersection with the open movement. A draft of the paper is complete, and we welcome your thoughts and suggestions to it.

      • Thanks To ISP Bahnhof, We Know Just How Crazy Copyright Trolling In Sweeden Is Getting

        For some time, Swedish ISP Bahnhof has been sounding the alarm over copyright trolling practices in its home country. While cynics will note that Bahnhof has absolutely made its refusal to hand over customer data a central part of its marketing messaging, the ISP has also made a point to publicly track copyright trolling court cases, threat letters, and pretty much everything else related to copyright trolling in Sweden. And, frankly, it’s due pretty much solely to Bahnhof’s tracking efforts that we now know just how insanely worse copyright trolling in Sweden has gotten in just the last year or so.

      • Apple Didn’t Delete That Guys iTunes Movies, But What Happened Still Shows The Insanity Of Copyright

        Last week we, like many others, wrote about the story of Anders G da Silva, who had complained on Twitter about how Apple had disappeared three movies he had purchased, and its customer service seemed to do little more than offer him some rental credits. There was lots of discussion about the ridiculousness — and potential deceptive practices — of offering a “buy” button if you couldn’t actually back up the “purchase” promise.

        Some more details are coming out about the situation with da Silva, and some are arguing that everyone got the original story wrong and it was incorrect to blame Apple here. However, looking over the details, what actually happened may be slightly different, but it’s still totally messed up. Apple didn’t just stop offering the films. What happened was that da Silva moved from Australia to Canada, and apparently then wished to redownload the movies he had purchased. It was that region change that evidently caused the problem. Because copyright holders get ridiculously overprotective of regional licenses, Apple can only offer some content in some regions — and it warns you that if you move you may not be able to re-download films that you “purchased” in another region (even though it promises you can hang onto anything you’ve already downloaded).

        [...]

        But, alas, we’re left with yet another example of the insanity driven by excessive copyright, in which copyright holders get so overly focused on the notion of “control” that they feel the need to control absolutely everything — including making sure that no wayward Canadians might (GASP!) purchase and download a movie meant for Australians. It’s this overwhelming, obsessive desire to “control” each and every use that messes with so many people’s lives — including da Silva’s — and makes sure that the public has almost no respect at all for copyright. Give up a little control, and let the edge cases go, and maybe people wouldn’t be so quick to condemn copyright for removing their own rights so frequently.

Today’s European Patent Office (EPO) Works for Large, Foreign Pharmaceutical Companies in Pursuit of Patents on Nature, Life, and Essential/Basic Drugs

Posted in America, Europe, Patents at 5:58 am by Dr. Roy Schestowitz

A butterfly

Summary: The never-ending insanity which is patents on DNA/genome/genetics and all sorts of basic things that are put together like a recipe in a restaurant; patents are no longer covering actual machinery that accomplishes unique tasks in complicated ways, typically assembled from scratch by humans; some supposed ‘inventions’ are merely born into existence by the natural splitting of organisms or conception (e.g. pregnancy)

THE EPO used to be so much better than the USPTO. I personally used to like the EPO and was proud to say we had the best patent office in the world. It was strict, it was pedantic, and it assured limits on patent scope. That is no longer the case, however, as many EPO insiders can attest to as well. They too complain about the collapse in patent quality that we've just revisited.

“…billionaire drug lords are using patents to profit from the very disease which they themselves created (drug addiction).”Looking across the Atlantic, it’s not hard to see patent scope going (or already gone) insane. Some of the things being patented are outright laughable (we’ll deal with these in a separate post later on) and they would be funny/amusing if they didn’t cause so much agony/pain for legitimate, practicing companies. In the area of patents on natural things, how about this new “settlement”? Bausch Health blackmailed a rival until the rival gave up. They try to drive competitors out of business using patents alone. Is this good for the so-called ‘free market’? What would be the impact on people in need of medicine?

In other news that gained traction lately, billionaire drug lords are using patents to profit from the very disease which they themselves created (drug addiction). It is not even remotely ethical. These people should be in prison, but they are billionaires who are well connected. We mentioned this yesterday and it’s good to see that the public now scrutinises the USPTO over it.

Speaking of evil patents, how about the EPO’s decision to uphold a notorious patent last week? For those who haven’t been keeping abreast of it, read “António Campinos Needs to Listen to Doctors Without Borders (MSF) et al to Salvage What’s Left of Public Consent for the EPO” (published a few days ago).

Life Sciences Intellectual Property Review (LSIPR), a propaganda site of the patents-on-life lobby, wrote about the subject yesterday. It started as follows:

The European Patent Office (EPO) has upheld a patent covering Gilead’s hepatitis C medicine sofosbuvir, despite opposition from humanitarian organisation Médecins Sans Frontières (MSF).

Speaking to LSIPR, the EPO confirmed that it has “maintained in an amended form” European patent number 2,604,620 on Thursday, September 13.

The decision was announced following oral proceedings in Munich, Germany. The EPO advised that it will publish the full decision here once the Opposition Division has written its ruling.

We certainly hope that these people at the Opposition Division understand their impact on many lives, especially poor people. It’s a dark day for the EPO. It’s even darker for a lot of people with darker skin.

“Putting aside DuPont’s historic role in genocide, we’re rather concerned to see the trend of patenting organisms, genetics and so on.”Now, looking at the US, the Federal Circuit dealt with a Patent Trial and Appeal Board (PTAB) inter partes review (IPR) and patent maximalists responded as follows yesterday: “The new DuPont v. Synvina decision is important for its specific application obviousness of claim ranges. It also creates some amount of tension with prior cases — particularly Dynamic Drinkware and Magnum Oil – regarding burden shifting within Inter Partes Review proceedings. [...] On appeal, the Federal Circuit holds here that the traditional obviousness burden-shifting associated with ranges applies to IPR proceedings. To be clear, the patentee never has the burden of proving non-obviousness. But, once a prima facie case of obviousness is established, the claims will be cancelled unless the patentee provides evidence to support its position.”

Putting aside DuPont’s historic role in genocide, we’re rather concerned to see the trend of patenting organisms, genetics and so on. This should not be happening. Earlier this month Wired published this article titled “Crispr’s Epic Patent Fight Changed the Course of Biology” and as we noted earlier this year the EPO’s Opposition Division fought back against it. Making life “owned” using patents sure “Changed the Course of Biology”… for the worse. From the article, which names the role of the Federal Circuit:

After three bitter years and tens of millions of dollars in legal fees, the epic battle over who owns one of the most common methods for editing the DNA in any living thing is finally drawing to a close. On Monday, the US Court of Appeals for the Federal Circuit issued a decisive ruling on the rights to Crispr-Cas9 gene editing—awarding crucial intellectual property spoils to scientists at the Broad Institute of Cambridge, Massachusetts.

The fight for Crispr-Cas9—which divided the research community and triggered an uncomfortable discussion about science for personal profit versus public good—has dramatically shaped how biology research turns into real-world products. But its long-term legacy is not what happened in the courtroom, but what took place in the labs: A wealth of innovation that is now threatening to make Cas9 obsolete.

So they’ll be evergreening their patent portfolio if they get their way. The concept that all of life should be patented isn’t so controversial among patent law firms. Kevin Noonan, for example, constantly promotes this agenda and yesterday he wrote about another case of the Federal Circuit with an important outcome:

The varying appellate fortunes of patentees regarding the question of obviousness is illustrated nicely in the Federal Circuit decision in Orexo AB v. Actavis Elizabeth LLC handed down earlier this month. The statute, 35 U.S.C. § 103, was intended to tether the question of obviousness to the prior art (and untether it from judicial whim regarding “inventiveness” or “invention” as found in several Supreme Court decisions stating with Hotchkiss (and, to patent law’s detriment, resurrected under § 101 by Justice Breyer and in other recent decisions from the Court). Nevertheless, there cannot help to be a subjective aspect to the issue of obviousness, which is illustrated by this decision when placed in contrast, for example, with other recent obviousness determinations by the Federal Circuit (see, for example, “Acorda Therapeutics, Inc. v. Roxane Laboratories, Inc.”).

[...]

The opinion illustrates the District Court’s error in accepting as evidence supporting obviousness testimony that, if selected, citric acid as a carrier particle would have been expected to work, citing In re Gordon, 733 F.2d 900, 902 (Fed. Cir. 1984) (“The mere fact that the prior art could be so modified would not have made the modification obvious unless the prior art suggested the desirability of the modification.”). A similar error arose regarding the District Court’s dismissal of Orexo’s argument regarding preserving the 4:1 ratio of buprenorphine to naloxone, the panel stating the error to be the District Court’s finding that “there is nothing in the prior art which would have discouraged a person of ordinary skill from following the path set out in the various references” instead of recognizing that “no reference or combination of references proposes the path of the ’330 Patent.” Put more succinctly the opinion states “[t]he question is not whether the various references separately taught components of the ’330 Patent formulation, but whether the prior art suggested the selection and combination achieved by the ’330 inventors.”

Finally, the opinion turns to the objective indicia, which “guide the analysis of obviousness,” citing Leo Pharm. Prods., Ltd. v. Rea, 726 F.3d 1346, 1357–58 (Fed. Cir. 2013). Without expressly stating it, the Court here finds clear error in the District Court’s discounting these factors, for example, stating that a 66% increase in buprenorphine bioavailability was “more than a trivial ‘degree.’”

Well, it is our view that any patent on life should be regarded as obvious and fail the obviousness test, as well as prior art test. Life is, after all, not an invention but something that always existed or evolved on its own (an act of nature). When laws are drawn up by lobbyists of law firms and pushed by politicians bribed by big pharmaceutical firms, however, laws make no sense. It’s like companies are basically buying laws. Those laws are designed for nothing except boosting their profits and eliminating competition, including competition in the form of disruptive (to their cash cows) research. █

The EPO Has Quit Pretending That It Cares About Patent Quality, All It Cares About is Quantity of Lawsuits

Posted in Europe, Patents at 4:50 am by Dr. Roy Schestowitz

Dark clouds over every legitimate (practicing) company in Europe

Dark clouds

Summary: A new interview with Roberta Romano-Götsch, as well as the EPO’s promotion of software patents alongside CIPA (Team UPC), is an indication that the EPO has ceased caring about quality and hardly even pretends to care anymore

TODAY’S EPO is nothing like your father’s and grandfather’s EPO. It has become a lot more like the USPTO (one decade ago, predating much-needed reforms in the US).

“They conflate application pendency with patent quality and staff (as in patent examiners) isn’t happy about this lie.”The EPO’s Roberta Romano-Götsch, who will attend an event in Chicago in which the EPO (per its own words) will promote software patents under the guise of “automobiles” innovation, has done an interview with Gene Quinn (Watchtroll). The second part was published yesterday. It’s an event they organise with IPO, the pressure group of the litigation ‘industry’ (which also lobbies quite ferociously for software patents). EPO promoted this and “stay classy, EPO” was my response to them. “Associating with patent zealots who attack judges just like Battistelli did…”

Regular readers of ours are probably familiar with the tone and the agenda of Watchtroll. From the interview:

We then move on to discuss what the term “quality” means to the EPO, and then pivot into discussing the EPO’s upcoming Automotive and Mobility Seminar, which will take place in Chicago from September 26-27, 2018.

As usual, we prefer not to quote much — or anything at all — from Watchtroll because the site uses misleading terms like “efficient infringers” and insults those who stand for science. The interview reinforces the perception that what EPO means by “quality” is how fast it grants a patent! That’s it. Even if wrongly. They conflate application pendency with patent quality and staff (as in patent examiners) isn’t happy about this lie. Not even stakeholders are happy because what good are patents that would be rendered invalid if brought into a courtroom? The patent microcosm doesn’t care so much because it profits by the number of applications and any visit to the court is very “big money”, irrespective of the outcome of cases (frivolous or not).

We are very concerned that António Campinos is nothing but an extension of Team UPC because his first step as President, on his second day in Office, was UPC boosting. Campinos competed for the job with an actual judge (one who values justice and sports decades of experience, including at the ICC), but Battistelli intervened and stacked the deck as he always does. So now we have another ‘flavour’ of Battistelli — a quieter and more subtle one. “President @EPOorg António Campinos gives a master class to the new civil servant graduates of the #SPTO on IP future challenges,” the EPO quoted another account as saying yesterday. At least we now know how Campinos uses his time. So I asked them: “Did he teach them how to illegally sack workers like he does at the EPO?”

“Campinos competed for the job with an actual judge (one who values justice and sports decades of experience, including at the ICC), but Battistelli intervened and stacked the deck as he always does.”I cited this recent example of what he did at the EU-IPO although there are more recent examples from the EPO.

In another EPO tweet there was yet more of the usual advocacy of software patents — something that the EPO does 2-4 times per day (weekdays). This one explicitly names “computer-implemented inventions” (CII means exactly the same as software patents) and speaks of some “free-of-charge” brainwash from CIPA. To quote: “What’s the EPO’s approach to computer-implemented inventions? Daniel Closa, one of our senior experts, will explain at this free-of-charge seminar in London” (where such patents aren’t allowed “as such”).

The EPO’s liaison with CIPA is a subject we recently covered. The EPO typically associates with IPO, CIPA and Watchtroll these days. In other words, it’s all about the litigation ‘industry’.

“The EPO typically associates with IPO, CIPA and Watchtroll these days. In other words, it’s all about the litigation ‘industry’.”Speaking of this litigation ‘industry’, Managing IP is a site which targets it. It is a pro-UPC publisher (that organised lobbying events for UPC, sometimes directly connected to the EPO). Some media companies are lobbyists and think tanks disguised as “news” and Managing IP is a living reminder of this. Yesterday it published “CIPA urges UK government to stay in EUIPO after Brexit” and then tweeted “CIPA has sent a letter to the UK prime minister asking the government to negotiate continued participation in the EU trade marks and designs system after #Brexit” (Managing IP is being a megaphone of CIPA, as usual).

Even though this has nothing to do with the UPC (which is dead anyway) Team UPC tried to interject things. Thomas Adam wrote on Twitter: “CIPA trying to set an example for continued UPC participation of UK after Brexit?!”

“It’s like the main aim is to ‘generate’ more business for litigators rather than serve the public or acknowledge real innovation.”No, the article doesn’t even mention the UPC. Also published yesterday was this article from Rachel Havard (AA Thornton & Co) titled “Brexit: Considerations for European Union Trade Marks and Registered Community Designs” (UPC not mentioned here either).

The bottom line is that today’s EPO, more so with António Campinos in charge, is little more than an extension in cahoots with the litigation pipeline. It’s like the main aim is to ‘generate’ more business for litigators rather than serve the public or acknowledge real innovation. In our previous post we showed how a European Patent had been used by a notorious bully in Germany (the bully is from the US). No wonder examiners, who are basically scientists, are royally pissed off. █

Qualcomm’s Escalating Patent Wars Have Already Caused Massive Buybacks (Loss of Reserves) and Loss of Massive Clients

Posted in Apple, Courtroom, Patents at 3:57 am by Dr. Roy Schestowitz

Yesterday: Qualcomm’s Patent Aggression Threatens Rationality of Patent Scope in Europe and Elsewhere

Qualcomm loses Apple’s business and drops NXP deal. What’s next?
Reference: Qualcomm loses Apple’s business and drops NXP deal. What’s next?

Summary: Qualcomm’s multi-continental patent battles are an effort to ‘shock and awe’ everyone into its protection racket; but the unintended effect seems to be a move further and further away from ‘Qualcomm territories’

ARMED with patents, including software patents from the EPO and USPTO, Qualcomm embarked on a misguided crusade which was bound to drive away clients and reduce interest in its patent pool. A few hours ago it was noted that “Apple Moves Away From Qualcomm” (even further than before) and according to Florian Müller, who followed the respective cases closely, there’s a new lawsuit in Germany, based on a European Patent:

With a view to a Qualcomm v. Apple patent infringement trial in Munich on Thursday I contacted the Munich I Regional Court to check on the time. As for the biggest issue in that case, may I refer you to my recent post on how thin air can “practice” claim limitations unless the name of the game is the claim.

On the same occasion, I inquired about any Qualcomm v. Apple first hearings that might come up in the near term. Unlike other German courts, the Munich court holds a first hearing, not as formally focused on claim construction as a U.S. Markman hearing, prior to patent trials. A spokeswoman for the court kindly informed me that a first hearing in two parallel cases, targeting different Apple entities, has been scheduled for March 28, 2019.

The patent-in-suit in both cases is EP1988602 on a “mobile terminal with a monopole[-]like antenna.”

Knowing the usual Munich timelines, it appears that the new complaints have only been filed recently. I guess just before the main summer vacation season here, or at least not long before.

“These sorts of multi-continental patent battles aren’t particularly new, but they serve to highlight the sort of thing that the EPO in Germany probably looks to facilitate, even if that would mean a lot more patent trolls, attacks on generics and so on.”In a later post Müller wrote that ITC “staff raises public-interest concerns over ban of Intel-powered iPhones sought by Qualcomm” and “staff says none of the 3 remaining patents-in-suit (from Qualcomm’s 2nd ITC complaint against Apple) is infringed. Apple [is] on [a] winning track.”

“CCIA raised these concerns in our public interest filings,” Josh from the CCIA said, so “I’m glad the ITC staff sees the same issues with exclusion in this case. (Not to mention infringement.)”

Quoting Müller, who was busy writing more than usual yesterday:

This morning, opening statements were delivered at the start of the evidentiary hearing in the investigation of Qualcomm’s second ITC complaint (request for U.S. import ban). The complaint was filed last December. An earlier complaint by Qualcomm against Apple is at a more advanced procedural stage: a final initial determination (a preliminary ruling by an Administrative Law Judge, which is however subject to Commission review) was originally due last Friday, but after the ALJ originally in charge retired, Chief ALJ Bullock took over and extended the deadline by two weeks. In that earlier case, the Office of Unfair Import Investigations (OUII, commonly referred to as “the ITC staff”) recommended an infringement finding with respect to one patent. Staff recommendations are not binding on ALJs, and even ALJs don’t make the final decision: the Commission itself does. But what the staff says is often adopted.

We have been critical of ALJs who ignored rulings from the Patent Trial and Appeal Board (PTAB). The Federal Circuit later dealt with the inter partes review (IPR) in question. The matter of fact is, Qualcomm is trying to increase pressure and improve its chances of “winning” by filing actions in several courts and in several continents — not so unusual a trick. Apple did that the Samsung and Huawei too is trying it against Samsung right now. But as Müller pointed out, the judge in the US is well aware that Chinese patent law is different and in some sense harsher than American law. Müller compares this to the case of Microsoft v Motorola — one which we covered at the time. To quote:

With respect to China, let’s face one thing: every U.S. judge knows that the rule of law, just like democracy, works differently in China. Huawei’s lawyers portray the Chinese proceedings at 100% fair and comprehensive. Samsung’s counsel obviously didn’t suggest that the proceedings were unfair, nor did Judge Orrick say so in his order. The Federal Circuit will be diplomatic, too. But that doesn’t mean that the appellate judges won’t have their private and unspoken opinion anyway.

The strategic issue here is the one I mentioned in the headline: coerced FRAND rate-setting arbitration. In order to distinguish Huawei v. Samsung from Microsoft v. Motorola (with Samsung being the new Microsoft and Huawei being the new Motorola), Huawei points out that Microsoft said it would accept a court-determined FRAND rate without insisting on adjucation of all the defenses that Samsung is pursuing (though Judge Robart actually did hold some Motorola patents invalid anyway). But beyond differences between Huawei and Microsoft regarding the preconditions for rate-settings (which I simply attribute to the fact that the standards at issue in Microsoft v. Motorola were not nearly as critical to Microsoft’s business as the ones in Huawei v. Samsung are to Samsung’s core business, thus Microsoft was prepared to pay for invalid and non-infringed patents and exclusively concerned about injunctive relief), Huawei must deny that it is an unwilling licensor (not in the sense of unwillingness to extend a license, but to do so on FRAND terms) engaging in hold-up and instead argue that Samsung is an unwilling licensee engaging in hold-out.

These sorts of multi-continental (or cross-continental) patent battles aren’t particularly new, but they serve to highlight the sort of thing that the EPO in Germany probably looks to facilitate, even if that would mean a lot more patent trolls, attacks on generics and so on. █

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