12.02.18

Patent Trolls, USPTO Director Andrei Iancu and Section 101

Posted in America, Europe, Patents at 1:55 pm by Dr. Roy Schestowitz

Recent: António Campinos is Working for Patent Trolls at the Expense of Science and Technology

Trump and Iancu

Summary: The world’s most important patent office is now run by a courts-hostile person (an 'American Battistelli') who is happy to ignore the courts’ caselaw and listen to patent trolls instead; this means that science and technology, not to mention the law itself, will suffer

THE DEMISE of patentability of software in the United States is mostly being ignored by the USPTO, which prefers to ignore what courts are saying and carry on issuing software patents. The same thing has been happening at the European Patent Office (EPO) and we shall get to that in a moment. There’s a bit of a “shared struggle” on both sides of the Atlantic, impacting software developers in Europe and the United States. If the U.S. Patent and Trademark Office carries issuing all those abstract patents — as does the EPO — what will be the impact on presumption of validity of US and European Patents (EPs)? This is a key question which is increasingly being raised by technology-centric groups.

“Iancu, the current Director of the USPTO, has been acting like the patent trolls’ mole or at least their apologist.”“Try the Newly Upgraded Anticipat to Complement Your Patent Prosecution Practice,” Anticipat wrote a few days ago, ousting itself for what it really is other than an anti-PTAB ‘tank’ (or propaganda mill); it just targets trolls and prosecutors looking for people to blackmail. They know that their chances in courts or in the Patent Trial and Appeal Board (PTAB) are rather slim and therefore they try to assess risk and cost (an appeal to the Federal Circuit can be rather expensive, perhaps requiring millions of dollars set aside for legal bills). “Harness the power of patent analytics to make better-informed decisions using the power of aggregate appeals data,” they said. They’re not alone in this ‘business’ (of litigation). Sadly, however, today’s leadership at the USPTO sympathises with them.

Neil Wilkof has just published something titled “The IP term (thus far) of the millennium: the curious story of the adoption of ‘patent troll’ and ‘internet trolling’” in which he cites the father of patent trolling. Well, first of all, there's no such thing as "IP"; Wilkof could at least correct this misleading terminology and speak of patents instead. The only thing a “patent troll” and “internet trolling” have in common is that they engage in nothing constructive, just harassment.

Iancu, the current Director of the USPTO, has been acting like the patent trolls’ mole or at least their apologist. He has attracted some negative comments for this attitude of his and a few days ago Steven Seidenberg from IP Watch echoed the rhetoric of Iancu with a headline like, “Do Patent Trolls Exist?”

That’s the “teach the controversy” propaganda line; if a patent troll is defined as a firm which practices nothing but lawsuits, then the existence of it is not disputable; it is measurable, too. The name used to describe it may vary (used to be “shark”), but this phenomenon is very much real and it is extremely problematic.

From Seidenberg’s introductory paragraph:

They are called many things. Patent Assertion Entities (PAEs), Non-Practicing Entities (NPEs), Patent Trolls, and on occasion, names not suitable in polite company. They often are accused of harming innovation and the economy, while providing nothing useful in return. They, less often, are said to promote innovation, in part by helping small inventors monetize their discoveries. Two recent academic studies attempt to shed light on this dispute, but their findings seem contradictory – at least at first.

With words like “inventors”, “discoveries” and “monetize” it is hard to take this discussion seriously; most patent trolls use software patents, so we’re speaking of algorithms (programming, not inventions) and much of the ‘research’ that favours trolls is sponsored by the usual suspects.

For about a decade now we’ve been arguing that one effective way to combat patent trolls is to eliminate patents on software. At the moment such patents are being granted, still; they’re not of much/any use in court, but they’re being granted in order to fake production and bring more revenue to the patent offices. Let’s start with the EPO as our case of point.

As Poland turns 100 the “EPO congratulates Polish patent office on its 100th anniversary” (the EPO published this (warning: epo.org link) on Friday just to peddle some fluff/puff pieces); at the same time EPO corruption ruins ILO/ILOAT which are about 100 years old.

“A delegation from the European Patent Office led by EPO President António Campinos participated to the 100th anniversary,” it says and notice how the EPO’s press releases aren’t about the EPO. They’re making the publicity all about António Campinos — the hallmark of Battistelli (who sought to personify the European Patent Office to promote his personal “brand”). Like Donald Trump does…

Campinos frequently promotes software patents in Europe (under the guise of “AI” and other buzzwords). “The Official Journal 11/2018 is now available online,” the EPO wrote in Twitter on Friday; it has mentioned (warning: epo.org link) the EPC, which is routinely violated by the EPO. Who benefits from this?

It is worth noting that Kate Gaudry and Samuel Hayim wrote in Watchtroll a few days ago that “[t]he stark reality appears to be that artificial intelligence technologies are likely to be more heavily scrutinized under 35 U.S.C. § 101 and less likely to be allowed.” (the article’s headline is “Artificial Intelligence Technologies Facing Heavy Scrutiny at the USPTO”).

This is what we have been saying all along, namely that “AI” patents are software patents and are thus fake patents, connected to the “AI” bubble/hype. The EPO wrote on Friday: “Experts discussed how the EPO deals with the challenges of AI in patent applications at this recent conference: http://bit.ly/AIpatents”

They call them “AIpatents”; that in its own right is quite a buzzword. Corporate media nowadays calls just about everything “AI” (even hardware that’s marketed this way); Nowadays everything is being labeled “AI” provided it does something ‘clever’; sometimes it’s exploited to get bogus patents that are software patents and associate them with “health”; Sometimes the patent law firms can just be replaced with some piece of software, whereupon this buzzword is again invoked; how about this financial context? These are all examples pertaining to patents and they’re all from the past week alone.

Campinos is not so unique in that regard however. Iancu and the rest of the Trump-assembled 'swamp' destroy the agenda set forth by Michelle Lee; The CCIA’s Josh Landau doesn’t seem too please and before the weekend he wrote:

The USPTO released the final version of its 2018-2022 Strategic Plan today. I previously wrote about the flaws in the draft strategic plan. The draft plan did, however, at least note the importance of stakeholder engagement. To assist in this goal, the Office asked for comments on the draft.

[...]

The problem is that a detailed comparison of the draft and final plans reveals that a total of two substantive changes were made to the text provided for comment. In one, the final plan notes that ensuring trademark validity is important and announces plans to regularly audit and “de-clutter” the trademark registry. The other change recognizes that user interface is important when rolling out new tools to examiners.

Watchtroll, contrasting CCIA as usual, keeps publishing press releases for the USPTO. This encourages the perception of a strategic link between these judge-bashing extremists and the Office. Some patent boosters who promote this new Watchtroll article (“Iancu Proposes Overcoming 101 ‘Morass’ by Strictly Following Supreme Court Precedent”) don’t want to deal with Section 101 but rather to work around it to get the Iancu-led USPTO (another patent maximalist) to grant fake patents that courts would, without a doubt, reject. In Watchtroll’s own words:

Earlier this week, on Monday, November 26, 2018, Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, delivered remarks to the 10th Annual Patent law & Policy Conference at Georgetown University law School. In his remarks Director Iancu again said what he has been saying for some time — the USPTO is working on fresh guidance relating to patent eligibility for computer implemented innovations (i.e., software related inventions). Director Iancu’s remarks gave a first look at what his reforms will look like, and by all indications these changes will be extremely innovator friendly.

Iancu likes patent trolls, having himself come from a law firm, and sites that groom trolls (and are sponsored by them) keep doing interviews with him. He never seems to speak to any site or publication which focuses on science and technology. He doesn’t even go to their forums, which is rather revealing. Some days ago the USPTO wrote: “USPTO Dir. Andrei Iancu recently spoke on judicial exceptions to Section 101 at @GtownTechLaw’s conference on the role of the courts in patent law and policy.”

These are lawyers, who are eager to water down Section 101; Iancu acts like their ‘mole’ — more and more each day (like Ajit Pai at the FCC). He’s an insider of the litigation industry, including patent trolls, working to harm technology and science for the sake of legal bills. As we shall show later tonight, Section 101 caselaw continues to pile up, consistently against Iancu’s agenda.

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