EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

09.20.18

Criticism of Unitary Patent (UPC) Agreement Doomed the UPC and Patent Trolls’ Plan — Along With the Litigation Lobby — for Unified ‘Extortion Vector’

Posted in Europe, Patents at 11:46 am by Dr. Roy Schestowitz

But dark clouds remain due to European Patents (EPs) that are leveraged by patent trolls

The natural wonders

Summary: The Unitary Patent or Unified Patent Court (UPC) was the trolls’ weapon against potentially millions of European businesses; but those businesses have woken up to the fact that it was against their interests and European member states such as Spain and Poland now oppose it while Germany halts ratification

TODAY’S EPO works for the litigation 'industry', not for science and technology. Examiners, who are themselves scientists and technologists, are rightly concerned. Will their job merely help trolls blackmail other scientists and technologists? What would happen to Germany if it became all about litigation? As the German Florian Müller told me yesterday: “Trolling with junk patents works best in Germany. With respect to injunctions, worse than the Eastern District of Texas.”

The threat of trolls in Europe is a growing threat; even predating anything similar to the UPC, litigation by trolls is soaring, especially in Germany. Some are using EPs, granted by the EPO. As American right groups such as the EFF can tell, patent trolls that only make a living by threatening lawsuits (and sometimes suing) also threaten and sometimes sue their exposers, their critics. I’ve received some threats (even death threats/death wishes) and the EFF was sued several times. Here is what it wrote a couple of days ago:

EFF to Court: The First Amendment Protects Criticism of Patent Trolls

EFF has submitted an amicus brief [PDF] to the New Hampshire Supreme Court asking it to affirm a lower court ruling that found criticism of a patent owner was not defamatory. The trial judge hearing the case ruled that “patent troll” and other rhetorical characterizations are not the type of factual statements that can be the basis of a defamation claim. Our brief explains that both the First Amendment and the common law of defamation support this ruling.

This case began when patent assertion entity Automated Transactions, LLC (“ATL”) and inventor David Barcelou filed a defamation complaint [PDF] in New Hampshire Superior Court. Barcelou claims to have come up with the idea of connecting automated teller machines to the Internet. As the complaint explains, he tried to commercialize this idea but failed. Later, ATL acquired an interest in Barcelou’s patents and began suing banks and credit unions.

Things aren’t yet this bad in Europe, but they can only get a lot worse if the EPO continues moving in the same trajectory.

Darts-ip has been mentioned this week in relation to a new partnership. Like similar firms in the US that claim to mitigate/reduce the risk from trolls, Darts-ip gathers information to that effect; they help track patent trolls and earlier this year they produced publications for IP2Innovate (speaking out against UPC on behalf of technology firms). This is their latest move:

Minesoft will partner with Darts-ip to include Darts-ip’s collection of patent and intellectual property litigation data on the PatBase database.

PatBase offers a searchable global database of patents, utility models, and designs. As part of the agreement, direct links from PatBase will lead to detailed disclosures in the Darts-ip Case Law database.

[...]

Eric Sergheraert, legal patent manager at Darts-ip, added: “The combination of PatBase’s exhaustive patent database and Darts-ip’s litigation data provides a unique opportunity for patent professionals to streamline and target their searches.”

“We look forward to providing this double insight for our clients and working with PatBase.”

Assuming litigation will grow, Darts-ip expects more ‘business’.

The UPC has all along been the promise of a boon for patent trolls in Europe. It’s pretty obvious and it’s not hard to understand why that might be.

Kluwer Patent Blog was cited by SUEPO today as well as by Team UPC (about Thorsten Bausch), which said (not collectively): “As I have pointed out before, for all practical purposes Art. 87(3) UPCA may be key to the UPC-Brexit conundrum.”

FFII’s Benjamin Henrion said: “UPC: UK might wish to take up any other topic of reforming patent law (e.g. computer-implemented inventions) to the extent that it is not bound by the EPC…”

Thorsten Bausch basically weighed in on a new paper from Germany, introducing it as follows:

A recent study by two eminent scholars from the Max Planck Institute for Innovation and Competition (MPI) on „The Impact of Brexit on Unitary Patent Protection and its Court“, which is available here, casts significant doubts whether it will be possible for the United Kingdom to stay in the UPC Agreement after the UK has left the European Union.

I know that this is to some extent a “hot potato”, and at least a very political topic in patent circles, where different stakeholders hold quite different views, also on this blog. I will try my best to focus on the arguments raised by Professor Dr. Hanns Ullrich and Dr. Matthias Lamping without fury or favour. Before doing so, a note of caution may be appropriate. This „Research Paper“ actually consists of two studies which, as the authors write in their joint General Introduction, have been undertaken spontaneously and independently to reflect such concerns in the authors’ particular field of expertise. Each of them and even more so the paper as a whole is weighty and voluminous: 182 pages in total. Trying to summarize the work that went into this research paper on a blog like this one will inevitably fail to do justice to the authors and their work. Hence, I apologize in advance for all omissions and simplifications and would encourage the readers to read the original source rather than just relying on this „super-executive summary“.

What is the authors’ core thesis and what are their arguments? The authors state that it would neither be in conformity with the EU Treaties, nor politically desirable from a point of view of retaining the EU’s ability to control the conditions of innovation and its legal protection within the Internal Market, if the UPCA were opened to accession by third countries.

[...]

Whether the UPC will ever come into force or not, and whether or not the UK will then be part of it, remains to be seen. The MPI authors certainly have a point in arguing that uncertainty is not good for the UPC system, and that it would be better to clarify the compatibility of the UPCA with EU Law through the CJEU sooner rather than later. But whatever the outcome of such deliberations, it is good that the patent judges of Europe work together and develop a consistent methodology how to approach their respective cases.

From comments (first comment, there aren’t many), noting the difference between litigation (Gordon & Pascoe) and MPI:

It is nice to (finally!) see a report covering the MPI articles reach an IP blog. I believe that it will be very interesting indeed to see what happens next.

Predictably, there have already been attempts by those firmly in the “pro-UPC” camp to dismiss / minimise the significance of the articles. However, to date, this has been done solely by attempting to infer that the MPI authors are somehow lacking in EU law expertise, at least compared to Gordon & Pascoe. In my view, that amounts to nothing more than an unprofessional (and ad hominem) attack upon the credentials of the authors. Frankly, I expected better. Indeed, the whole of the patent profession across Europe DESERVES better. This means addressing the SUBSTANCE of the concerns raised by the authors.

I have to say that I am not going to hold my breath waiting for credible answers to the substantive points raised in the articles. This is not least because one of the main concerns raised relates to Article 267 TFEU. That is precisely the concern that I have repeatedly raised (in this forum and others) over recent years, and to which I have NEVER received a credible answer. No matter how much I would like to be surprised on this point, I do not see a credible answer emerging any time soon … though there will no doubt be a plentiful supply of smoke and mirrors to help the politicians to continue to cling to the belief that there is nothing to worry about.

Blogs like IP Kat have not said a word about it; considering the ties to CIPA, perhaps they just hope nobody will notice what MPI said.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Links 1610/2018: Linux 4.19 RC8, Xfce Screensaver 0.1.0 Released

    Links for the day



  2. Judge-Bashing Tactics, Undermining PTAB, and Iancu's Warpath for the Litigation and Insurance 'Industries'

    Many inter partes reviews (IPRs) at the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office (USPTO) leverage 35 U.S.C. § 101 against software patents; instead of putting an end to such patents Director Iancu decides to just serve the 'industry' he came from (a meta-industry where his firm had worked for Donald Trump)



  3. 'Cloud', 'AI' and Other Buzzwords as Excuses for Granting Fake Patents on Software

    With resurgence of rather meaningless terms like so-called 'clouds' (servers/hosting) and 'AI' (typically anything in code which does something clever, including management of patents) the debate is being shifted away from 35 U.S.C. § 101 (Section 101); but courts would still see past such façade



  4. Corporate Media's Failure to Cover Patents Properly and Our New Hosting Woes

    A status update about EPO affairs and our Web host's plan to shut down (as a whole) very soon, leaving us orphaned or having to pay heavy bills



  5. Links 15/10/2018: Testing Ubuntu 18.10 Release Candidates, KaOS 2018.10 Released

    Links for the day



  6. USPTO FEES Act/SUCCESS Act Gives More Powers to Director Iancu, Supplying Patents for Litigation 'Business' and Embargo (ITC)

    Corruption of the US patent system contributes to various issues which rely on the extrajudicial nature of some elements in this system; companies can literally have their products confiscated or imports blocked, based on wrongly-granted patents



  7. Court of Appeals for the Federal Circuit Decides That USPTO Wrongly Granted Patents to Roche

    Patent quality issues at the U.S. Patent and Trademark Office (USPTO) — motivated by money rather than common sense — continue to be highlighted by courts; the USPTO needs to raise the bar to improve the legal certainty associated with US patents



  8. Even Judge Gilstrap From Texas is Starting to Accept That Software Patents Are Invalid

    Amid new lawsuits from Texas (e.g. against Citrix) we’re pleased to see that even “reprehensible” Rodney Gilstrap (that’s what US politicians call him) is learning to accept SCOTUS on 35 U.S.C. § 101



  9. Federal Circuit Doubles Down on User Interface Patents, Helps Microsoft-Connected Patent Trolls Curtail the Prime Competitor of Microsoft Office

    Patent trolls that are connected to Microsoft continue to sue Microsoft rivals using old patents; this time, for a change, even the Federal Circuit lets them get away with it



  10. Let's Hope Apple Defeats All the Abstract Patents That Are Leveraged Against It

    Apple can be viewed as a strategic 'ally' against patents that threaten Android/Linux if one ignores all the patent battles the company started (and has since then settled) against Android OEMs



  11. EPO Insider/Märpel Says President Campinos Already Acts Like Battistelli

    Unitary Patent (UPC) is a step towards making the EPO an EU institution like the European Union Intellectual Property Office (EUIPO); but it's not making any progress and constitutional judges must realise that Campinos, chosen by Battistelli to succeed him, is just an empty mask



  12. Quality of Patents Granted by the EPO is Still Low and Nobody Will Benefit Except Lawyers, Jubilant Over Growing Lenience on Software Patents

    Deterioration of patent quality at the EPO — a serious problem which examiners themselves are complaining about — is becoming rather evident as new guidelines are very lenient on software patenting



  13. 100 Days Into the Term of Campinos There is Already an EPO Suicide

    A seventh known suicide at the EPO since the so-called 'reforms' began; the EPO continues to pretend that everything is changing for the better, but in reality it's yet more nepotism and despotism



  14. Links 13/10/2018: Ubuntu Touch OTA-5, MidnightBSD 1.0 Ready

    Links for the day



  15. Links 11/10/2018: PostgreSQL 11 RC1 Released, Librem 5 Loves GNOME 3.32

    Links for the day



  16. Friend Brings a Friend, Boss Becomes Subordinate: the EPO Under António Campinos is Starting to Look a Lot Like Team Battistelli 2.0

    The new President of the EPO contributes to the perception that the Office is a rogue institution. Governance is all in reverse at the Office because it still seems like the Office President bosses the Council rather than be bossed by it (as intended, as per the EPC)



  17. UPC Cowardice: Team UPC Uses Cloaks of Anonymity to Discredit Authors of Scholarly UPC Paper They Don't Like

    Team UPC has sunk to the bottom of the barrel; now it uses anonymous letters in an effort to discredit work of Max Planck Institute staff, in the same way (more or less) that ad hominem attacks were attempted against the filer of the constitutional complaint in Germany



  18. New EPO Guidelines: Granting European Patents on Business Methods, Algorithms, Mental Acts and Other Abstract Stuff

    Keeping so-called 'production' high and meeting so-called 'targets' (allegedly set by Battistelli), Campinos relaxes the rules for "computer-implemented inventions" (one among many misleading terms that mean software patents in Europe)



  19. Open Invention Network is a Proponent of Software Patents -- Just Like Microsoft -- and Microsoft Keeps Patents It Uses to Blackmail Linux Vendors

    OIN loves Microsoft; OIN loves software patents as well. So Microsoft's membership in OIN is hardly a surprise and it's not solving the main issue either, as Microsoft can indirectly sue and "Microsoft has not included any patents they might hold on exfat into the patent non-aggression pact," according to Bradley M. Kuhn



  20. Links 10/10/2018: Unreal Engine 4.21 Preview, Red Hat Openshift Container Platform 3.11

    Links for the day



  21. Links 9/10/2018: Plasma 5.14, Flatpak 1.2 Plan

    Links for the day



  22. Greg Reilly Inadvertently Makes a Case for Replacing/Improving the Patent System With a Wiki, Editable by All as Society Moves Forward

    Editable patents make a lot more sense in the age of the Internet and the World Wide Web; companies that rode the wave of the Net are themselves changing their patents on the go, sometimes because they simply attempt to dodge an evolving patenting criterion which nowadays looks down on software patents



  23. The USPTO's Principal Issue is Abstract Patents (or Patent Scope), Not Prior Art Searches

    In spite of the fact that US courts prolifically reject patents for being abstract (citing 35 U.S.C. § 101) Cisco, Google, MIT, and the USPTO go chasing better search facilities, addressing the lesser if not the wrong problem



  24. António Campinos Makes Excuses for Granting European Patents on Software in Spite of the EPC

    Continuing the horrid tradition of Battistelli, António Campinos sends patent quality -- the one aspect which the EPO was once renowned for -- down the drain (or down the shredder, for lack of a better and more timely metaphor)



  25. Antibody Patents Should Not be Allowed (Nor Should CRISPR Patents)

    The patent extremists are still trying to patent life (and/or nature) and their arguments typically boil down to, "there's money in it, so why the heck not?"



  26. Links 8/10/2018: Linux 4.19 RC7, Mageia 6.1, Calculate Linux 18

    Links for the day



  27. The Federal Circuit Continues to 'Lecture' the Patent Office on Patent Scope and Limits, But Iancu Isn't Listening

    Sadly, the district court have not fully caught up (at least not yet) with SCOTUS; they're more USPTO-friendly.



  28. U.S. Patent and Trademark Office Under Andrei Iancu Subjected to an Assault on Patent Quality

    Donald Trump has let the litigation industry 'govern' itself at the USPTO; all it has accomplished so far is even greater divergence between USPTO determinations and those of actual courts (which means that the USPTO does not follow the law, there’s a state of lawlessness)



  29. When It Comes to Patent Quality António Campinos Might be Even Worse Than Benoît Battistelli

    The lack of genuine interest in the quality of European Patents is perhaps a greater threat to the whole of Europe — if not the whole world — than well-documented human rights abuses and corruption inside the Office; António Campinos has shown no interest in improving patent quality as he denies such a problem even exists and he reduces transparency



  30. In Spite of Campaigns Against It, the Patent Trial and Appeal Board (PTAB) Squashes Software Patents by the Hundreds Per Month, Patent Maximalists Still Try to Stop It

    Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) achieve exactly what they were set out to do; those who view patent quality as a foe, however, aren't happy and they still try to undermine PTAB IPRs by any means possible (or at least slow them down considerably)


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts