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

12.19.18

EPO: Adherence to the Law at the Office Postponed Indefinitely, ‘Reform’ Going Ahead (Divergence From the Law)

Posted in Europe, Patents at 11:17 pm by Dr. Roy Schestowitz

The year 2018 marked the end of Battistelli’s 8-year reign, but his legacy moved and still moves ahead (full steam)

“It`s not the voting that`s democracy; it`s the counting.”

Tom Stoppard

Summary: The subject of patent quality is completely off the table and the rights of staff are still being violated, with representatives being gagged in the process; one primary/foremost concern is that regulatory powers that could in theory ensure adherence to the EPC are no longer there

THIS year will soon end and we’re witnessing an improvement in docility among the media, which seems unwilling or incapable of seeing and reporting about the European Patent Office (EPO). Learned helplessness or a culture of fear suppressed further protests and strikes; staff cuts make people a lot more reluctant to speak out. This means that things can continue to exacerbate without much resistance from the media and the staff. It’s a communications vacuum and it in no way represents an improrevment; no more than lack of open dissent in China represents an improvement, except in terms of repression. It’s not about reputation building but about gagging one’s critics*. By critics we mean people who simply point out corruption, which is apparently the biggest ‘crime’ one can commit at the EPO and WIPO.

“The EPO focuses on speed, not quality, as usual.”The EPO keeps trying to present itself as more open and receptive to feedback (e.g. meeting with some staff and law firms). But in many ways, as we explained earlier this year, the Office becomes more opaque or secretive.

As recently as Friday they asked for feeback [sic] (fee back?): “We look forward to receiving your feeback [sic] on the possible introduction of an option to postpone substantive examination: https://bit.ly/2Blsb6E ”

The anonymous “Kluwer Patent blogger”wrote about this the following day again:

The European Patent Office has opened an online consultation on the possibility of allowing more flexibility in the timing of the examination process by offering means to postpone the examination of European patent applications.

The EPO focuses on speed, not quality, as usual. It distributes software patents; it gives patents (monopolies) on computer vision, too (algorithms). It just uses terms like "SDV" patents, making them seem like patents on “cars” (physical). Last week it wrote: “Europe and the USA leading the way in self-driving vehicle innovation” (they meant patents, which are not synonymous with innovation as measured by one patent office). There’s also that "Blockchain" patents hype; Knowing that the EPO grants such abstract software patents (not valid in court), Samsung now wants one and sites that are focused on digital currencies say:

The South Korean Tech giant, Samsung, has filed for a patent for its upcoming Samsung Blockchain Phone technology. The filing was submitted earlier in the week to the European Patent Office (EPO) in the German City of Munich.

The entry of Samsung into the Blockchain space marks the beginning of the globalization of Blockchain technology that is currently drawing mixed reactions following the Crypto markets bear cycle that has been ongoing from November 24th. This is because Blockchain technology and Cryptocurrencies are deemed to be one and the same in the contemporary world as Cryptos are native to Distributed Ledger Technology platforms.

So even the EPO is being approached/targeted with such applications now. It’s gererally viewed as a software patents-friendly office.

Patent Docsweekend ads carried on and this time they included this upcoming ‘webinar’, relying on lack of court challenges (it’s expensive) by which to invalidate software patents in Europe. Strafford promotes the act of pursuing bogus software patents at the EPO while encouraging the framing of algorithms as “AI” (the usual nonsense) — something that António Campinos has been ever so eager to do.

Strafford will be offering a webinar entitled “New EU Guidelines for Patenting AI and Machine Learning Technologies: Comparison With U.S. Approach — Navigating EPO and USPTO Rules to Maximize Patent Protection” on January 8, 2019 from 1:00 to 2:30 pm (EST).

Strafford will ‘debate’ “Maximizing Patent Prosecution Opportunities in Europe”; words like “Maximizing”, “Prosecution” and “Opportunities” sound rather promising to the target audience. How about “Blackmail” or “Trolling” instead?

From the summary/outline:

Strafford will be offering a webinar entitled “Maximizing Patent Prosecution Opportunities in Europe: Tactics for Counsel When Drafting U.S.-Origin Applications — Navigating Differing USPTO and EPO Legal Standards While Maintaining U.S. Patent Strategy” on January 10, 2019 from 1:00 to 2:30 pm (EST). Rebecca M. McNeill of McNeill Baur and Jens Viktor Nørgaard of HØIBERG will guide patent counsel in drafting U.S.-origin patent applications to maximize prosecution opportunities in both the U.S. and Europe, and offer best practices for U.S. patent application drafters to protect inventions in Europe without sacrificing U.S. strategy.

This is all about suing someone, not defending against a lawsuit. When extortion of rivals using dubious/bogus patents is publicly celebrated by opportunists who charge about $300/hour those who are already poor will suffer the most.
_____
* A lot of the same managers are still in charge, including one whose background brought endless disgrace to the Office. His ‘tenure’ (term) ends shortly. He is being replaced. We will see what we can do to tactfully report the issue when it’s back in court after half a decade of EPO immunity. Željko Topić, the person in question, could be spotted in Banja Luka in October. As per this page: (offline at the moment, seemingly due to server downtime, but there’s Google cache)

Banja Luka, October 30, 2018 – Seminar entitled “Technology Transfer and Impact of Intellectual Property Rights to National Economy” was held on October 30, 2018 at the premises of the Rectorate of the University of Banja Luka (UNIBL).

The organizer of this seminar was the Entrepreneurship and Technology Transfer Center of the University of Banja Luka, in cooperation with the Institute for Intellectual Property of Bosnia and Herzegovina and the European Patent Office (EPO).

Introductory speeches were held by Josip Merdžo, director of the Institute for Intellectual Property of Bosnia and Herzegovina, representatives of the Entrepreneurship and Technology Transfer Center and vice-president of EPO Željko Topić, who also held a lecture within the first theme of the seminar titled “EPO and European Patent System”. The seminar was attended by Prof. Dr. Strain Posavljak, vice-rector for teaching and student affairs at UNIBL.

“A report on the seminar can also be found on the Web site of the University of Banja Luka,” a source told us. Whether he stays in Munich or returns to Zagreb matters a lot to some people because of upcoming trials. How much longer can this man escape justice? It’s a major liability to his country’s reputation, not just the EPO’s reputation.

UPC Would Mean Patent Scope Gone Out of Control and Beyond/Above the Law

Posted in Europe, Law, Patents at 10:04 pm by Dr. Roy Schestowitz

Plants, algorithms and other patent-ineligible things should never become monopolies

“The European Patent Office is an executive organisation, it deals especially with patent applicants, as such, its view of the world may be biased. As an executive organisation, its interpretative powers are very limited. The European Patent Convention excludes computer programs, it is outside the EPO’s power to change this.”

Ante Wessels, FFII

Summary: Debates about the EPO’s inability to respect the law and to maintain modest/reasonable patent quality are a reminder of why the UPC is, in effect, a dead end

THE staff of the European Patent Office (EPO), especially staff which deals with examination, can’t be very proud of the devaluation of European Patents. People whose job performance is assessed by a bunch of numbers/figures like patent grants or “products” may feel victorious, but to turn the EPO into another USPTO would be a low goal; it would even be an own goal.

“The EPO does a very fine job discrediting itself if it grants such patents, finishing what’s left of its already-harmed reputation and especially the credibility of European Patents.”The perils associated with quality of European Patents were brought up again early in December. A surprising new decision represented a threat to farmers and to the EPO's own reputation. Barbara Rigby from Dehns (Team UPC) more recently wrote about that awful decision to grant patents against the EU and against the EPC as if the EPO is above the law and can just make up the rules.

“In a surprising turn of events,” she said, “on 5 December 2018 a Technical Board of Appeal of the European Patent Office (EPO) decided that plants which are the products of essentially biological processes are not excluded from patentability. The decision (T 1063/18) is a twist in a long-running saga, but may well not be the final word on the matter.”

The EPO does a very fine job discrediting itself if it grants such patents, finishing what’s left of its already-harmed reputation and especially the credibility of European Patents.

“It is interesting,” Rigby added, “that the Technical Board of Appeal did not consider it necessary to refer this matter to the Enlarged Board of Appeal. However, the patentability of plants is a controversial topic and many stakeholders on both sides of the debate hold strong views. It would therefore perhaps be premature to think that decision T1063/18 signals the end of this saga. A future referral to the Enlarged Board of Appeal (in connection with a separate appeal) is not inconceivable, so for now, legal uncertainty remains. It remains to be seen if and when the EPO amends Rule 28(2) EPC. We will provide updates as and when new developments arise.”

This may very well become a new/latest major scandal, maybe not among patent law firms. David Brown (Haseltine Lake LLP) wrote about this awful decision: “It is reported that, at a hearing on Wednesday 5 December 2018, the EPO Technical Board of Appeal 3.3.04 in the case T1063/18 (Syngenta’s Pepper Plant Application No. EP-A-2753168) decided that Rule 28(2) of the European Patent Convention (EPC) is incompatible…”

We have already started to see coverage not from law firms. The Courier, for example, writing under the “Farming” section, went with the headline “Patent ruling puts plant variety breeding at risk” and then explained further:

EU farming leaders have warned that plant breeders could lose vital access to natural genetic resources as a result of a highly contentious ruling by the European Patent Office (EPO).

Copa-Cogeca, who represent Europe’s farmers and farm cooperatives, have expressed “shock” over a recent EPO ruling relating to new pepper plants, which they say could make the breeding of new plant varieties from ”natural traits” subject to patents.

This is in contrast to the current exclusion of “natural traits” from the patent process, an approach which has left the protection of new plant varieties to be governed by a licensing system, which Copa-Cogeca argues is working perfectly well.

Thor Kofoed, chairman of Copa-Cogeca’s Working Party on Seeds said: “We don’t need a patent system for plant breeding in Europe as we already have Community Plant Variety Rights, which has been the most efficient system worldwide for the past 50 years.”

Staying with plant variety licensing is also the preferred choice of Professor Colin Campbell, chief executive of the James Hutton Institute, home of countless plant variety developments over the years.

“The institute has produced many successful new crop varieties via conventional breeding methods and are famous for their Glen raspberry and Ben blackcurrant varieties,” said Prof. Campbell.

This is the kind of thing that harms condfidence in the EPO’s ability to decide on patent scope or patent validity; it’s not even complying with the EU’s own rules. They’re not even in agreement on this very fundamental question which is patents on seeds.

Just before the weekend a comment was posted in IP Kat to say:

You consider that “The EPO is being entrusted with the Unitary Patent”. This is not completely correct. It is entrusted with keeping a register of UP and to collect the annual fees for UP. It is difficult to see in those two points the full responsibility of the EPO for UP.

Getting to decide which are and which aren’t valid patents is a very big deal, including opposition proceedings. That gives the EPO enormous power over patent scope — a power it has repeatedly and patently misused.

On the other hand, you put the finger on one of the big drawbacks when it comes to the UPC.

What if, in matter of validity, the case law of the UPC will differ with the case law of the BA and more with that of the EBA. This is a fundamental uncertainty, and I would say flaw of the UPC system. At least between the EFTA court and the CJEU there has been an agreement to exchange information. Between the UPC and the EBA/BA nope. This must have a reason. May be the aim behind this is the end of the EBA/BA?

On the other hand, why should 10 states, some of them having also a strong economic holding, but outside the EU, accept judgements of a court only acting within the EU?

These courts aren’t even discussing the case in the defendants’ language/s. But there are even greater and more blatant infringements — more of which were discussed here before.

There would have been one solution that is for the UPC only to deal with infringement, and let the EBA/BA decide on validity. A kind of general bifurcation to use a naughty word.

Given the abuse of power by the Office, which attacked the appeal boards time after time, and considering the Office’s violation of the EPC (e.g. on patent scope), this is just unacceptable. If the Office President gets to decide what is and isn’t valid, even when national courts do not agree, that’s an incredible amount of leverage to exercise over the decisions of the court.

This would mean that the opposition period would have to be extended to the life time of the patent, and not merely limited to 9 months. After all, a proprietor may amend its EP during its whole life, thus why limit the possibility to challenge the patent centrally only for 9 months after grant?

This could have been good for unification of law within Europe, and would have avoided any clash of case law. This solution would certainly not be to the liking of all the lobbies who absolutely wanted the UPC, for whatever reason.

In this system, validity could be assessed in a consistent way by a court systematically composed of technical judges, and not just by technical judges which are all in a pool, and can be called or not at the discretion of the judges sitting in the local or regional courts of first instance of the UPC.

When it comes to infringement, then the UPC could act, but only on this point.

By deciding both on infringement and validity, clashes are necessarily programmed. Just look at the way added subject-matter is dealt with at the EPO. It is not a secret that the way added matter is looked at by the BA/EBA, is very strict, and for good reasons, but to the dislike of plenty of users. By doing so, they actually forget that the added-matter and novelty are the two sides of the same coin: what you lose on on side you gain on the other.

The way things stand at present, validity decisions are improperly dealt with, e.g. with growing burden on challengers because the Office tries to mask the decline in patent quality. Having the EPO at any phase/part of the legal process is therefore a problem.

Let’s take the example of the German Federal Court (BGH): if an independent claim comprises a feature extending over the original disclosure, the unallowable feature is merely to be disregarded when assessing patentability, cf. X ZR 161/12 (Wundbehandlungsvorrichtung=Wound treatment device). This means that the application is refused and the patent revoked.

Before the EPO G 1/93 (the inescapable trap) is valid. When it comes to added subject-matter during examination, then the position of the BGH is the same as the BA/EBA. See BGH X ZB 5/16 (Phosphatidylcholine).

Imagine we end up with a similar situation when it comes to the UPC. Is such a difference in legal approach, on actually the same legal text (Art 100-Art 138 EPC) in the interest of European Industry, and especially SMEs? I have some doubts.

The whole UPC system has been rushed into place following an intense lobbying whereby the apparent interests for SMEs has been used as a fig leaf. Politicians have not been aware of what was coming on. A last point: filings at the EPO stemming from EU member states count for at most for a third. That means that two thirds come from outside the EU. As the number of grants more or less follow the same distribution, I have not yet met anybody capable of explaining, how this can be profitable for European Industry and especially the SMEs.

These are some rhetorical statements. Of course the UPC would be bad for Europe, bad for SMEs, and mostly the result of intense lobbying by patent trolls and firms that represent them. All they want is lots of patents — questionable ones included — and more leeway for litigation. Businesses are expected to just supply mountains of money to Team UPC or the litigation ‘industry’; it is unequivocally a tax on innovation.

The bottom line is, the discrepancies between EU law and what the EPO does is a real problem; it shows that an international institution positioned above the law (and routinely exploiting that) cannot be trusted with something like the UPC.

Concerns associated with European patent law, especially scope, are nothing too new. These concerns are some among several that exist.

Software Patents Are Very Weak in the United States

Posted in America, OIN, Patents at 9:14 pm by Dr. Roy Schestowitz

Undoing decades of profoundly misguided policy

Summary: The U.S. Patent and Trademark Office (USPTO) continues along the same path — an encouraging path wherein Section 101 is generally accepted, albeit not by the Director, and the Patent Trial and Appeal Board (PTAB) typically approves/affirms Section 101 rejections; failing that, the courts do the job

THE Open Invention Network (OIN), which has just been described as a “patent protection group”, is perhaps just that. It’s protecting software patents from people like us. Our stance on OIN changed some years back because of Alice, which OIN fails to exploit and IBM actively fights against. IBM is still the most influential player in OIN and it’s not interested in the end of software patents; quite the contrary in fact.

Here are Steven J. Vaughan-Nichols’ views on the latest additions or the latest news from OIN, namely or notably Alibaba. He even uses propaganda terms like ‘IP’ — a term which no doubt this publisher is happy to promote. To quote the opening paragraph:

The American and Chinese trade war is near to boiling. The American attempt to extradite Huawei CFO Meng Wanzhou has failed; China might be behind the Marriott data breach; and China might’ve caused a massive internet disruption. But one perpetual sore point between the US and China — intellectual property (IP) abuse — is taking a step for the better. Alibaba and its affiliate Ant Financial are joining the Open Invention Network (OIN), the pro-open source and Linux patent-protection group.

This adoption of cross-licensing-type attitudes rather than abolishing software patents (i.e. not PTAB-like methods) or eliminating them one by one at PTAB isn’t a good sign. Why not work towards elimination? It shouldn’t be so hard anymore.

Janal Kalis keeps looking for the relatively rare cases where PTAB reverses a decision to grant or reverses a rejection; there’s an effort to demonstrate a disparity and a sort of ‘controversy’, then alleging that the underlying assessment, usually based on Section 101, is problematic. Some days ago he found out that “PTAB [had] Reversed an Examiner’s [Section] 101 Rejection of Claims for a Navigation System in a Patent Application Owned [sic] by Honeywell: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2018000027-11-27-2018-1 …”

So a monopoly got assigned as those above the examiner considered it valid based on Section 101. What would courts say? It’s not likely to ever get that far.

It is rather pathetic that Anticipat, an overzealous opponent of PTAB (no longer so vocal either, so one wonders if it’s a failed/failing business), now resorts to nitpicking — namely selecting one of those relatively rare reversals of an examiner’s decision — to make it sound like an encouraging development which merits “hope” (for patent maximalists). These people generally understand that software patents and business method patents are a waste of time and money, especially in courts. To quote:

There has been much energy focused on the flawed nature of the current Alice/Mayo framework for evaluating patent-eligibility. Even the well-intentioned [sic] desires of USPTO director Andrei Iancu’s to move away from this framework has its limits.

In a recent decision, Ex Parte Pasupulati et al, the Board reversed an abstract idea rejection to a claim directed to integrating an API-based mechanism to a merchant’s website without the merchant having to understand the API or having to know how to code in a language specific to the API. The Board rebuffed the Examiner’s position for both steps.

So it’s a similar situation to the above from Kalis, but it is rare. Ankur Parekh asked Kalis: “Do you have an intuitive sense of reversal and affirmance percentages for 101 at PTAB the last couple of months? Thanks.”

“The latest post on Bilski blog reports that examiners have been affirmed in 92% of 101 appeals recently decided by the PTAB,” Kalis responded. “I think the % of 101 reversals peaked last summer.”

This means that only about 1 in 13 would be reversed. That’s very low actually and we used to write about those things quite routinely early in the year and last year. Courts are even stricter than this, but not many cases get that far because it’s expensive and thus financially risky. But what about lower courts? Welcome to the universe where a nontechnical jury sometimes gets to decide on technical matters. In the following recent example the jury ignored the technical PTAB (its ruling that a patent was invalid). Just like that they got to decide on a case with tens of millions of dollars on the line.

A Delaware jury finds Edwards Lifesciences infringed a transcatheter heart valve technology patent, which was ruled invalid by the PTAB earlier this year

A District of Delaware jury has awarded Boston Scientific $35 million against Edwards Lifesciences in a case involving multiple patents related to transcatheter heart valve technology.

The way things stand, however, abstract patents would rarely get past PTAB and result in any ‘damages’ payment.

Brittany Knight and Anthony Sabatelli wrote for Patent Docs a typical kind of article (for that site), insinuating that a law they do not like needs to “evolve” (i.e. get watered down). Patent maximalists, usually trolls and law firms, still moan about the demise of software patents because of 35 U.S.C. § 101; what they keep saying about Berkheimer is rather meaningless because it has not statistically changed much, especially when one takes into account decreased interest in litigation with software patents, seeing the lack of success in such cases.

Knight and Sabatelli start by explaining things as follows:

Software is a generic term to refer to a collection of data or executing code used by a computer to implement arithmetic operations or logical operations. Back in 1936, Allen Turing, in his landmark paper On Computable Numbers proposed the capable use of instructions (i.e., software) to execute functions through his Turing Machine, an early precursor of the general purpose computer[1]. Today the modern computer is instrumental for complex computations, data analytics, high-powered graphing, simulations, and so on. Although, the development and use of software for these computer functions has become mainstream, determining the patent eligibility of software inventions under 35 U.S.C. § 101 has been less intuitive.

In the wake of the now famous Mayo and Alice decisions, patent subject eligibility is determined through a 2-step inquiry. The first step asks whether, the patent claim is directed to a natural phenomenon, biological process, or abstract idea. Software is generally categorized as being “abstract” because it does not fulfill the more concrete criteria for being a “thing”: i.e., a process, machine, manufacture, or composition of matter. Because software claims often fail the first step of the Mayo/Alice inquiry, the inquiry is next directed to the second part, which determines whether the patent claims add “significantly more” to bring them back within the fold of eligibility. However, meeting this second step has proven challenging in the court of law when it comes to determining patent eligibility of modern computational tools.

Back in the very old days (maybe a decade ago) we still wrote a lot of articles about why software patents are something that should never have been patentable in the first place because it’s more like a rendition and hence it’s suitably covered by copyright law, economically too (no need to undergo a registration process).

Staying on Patent Docs, Michael Borella also wrote about SAP America, Inc. v InvestPic, LLC. The moral of the story? Dare sue a rival with software patents and you’ll end up having to compensate your rival for your false accusation and your fake patent (which is now invalid, too):

We wrote about this case six months ago, regarding InvestPic’s appeal to the Federal Circuit over having its patent invalided under 35 U.S.C. § 101 in the Northern District of Texas. InvestPic did not get the outcome it was looking for. Here, the case is back in the District Court to consider SAP’s motion for recovery of attorney’s fees. As we will see, InvestPic ended up not only with its patent invalidated, but also owing a large chunk of money to SAP.

SAP was originally granted attorney’s fees in 2017, after the District Court ruled, on the pleadings, that InvestPic’s U.S. Patent No. 6,349,291 was invalid under § 101. As noted above, InvestPic appealed and lost.

[...]

This proceeding, however, was put on hold by the Federal Circuit appeal. Now back in the District Court, an order granting much of what SAP requested was issued on December 4, 2018.

SAP requested a total of $939,306.61, which did not include any time from attorneys and staff that worked less than 10 hours on the case. But this amount included time that SAP’s attorney spent on a petition for covered business method review which was never filed. The District Court declined to award fees for the petition.

Also, the District Court found that the rates charged by SAP’s attorneys (“$745.00 – $1,175.00 per hour for partners to $405.00 – $650.00 per hour for associates”) were excessive. In particular, the majority of the partner’s rates were above the 90th percentile for Texas, and the District Court found no evidence to justify the rates being so high. Accordingly, the District Court reduced all partner rates by 35% and all associate rates by 15%. Based on these adjustments, the total amount actually awarded was $679,420.46.

[...]

To further drive home this point, not even the federal courts have been able to crack the § 101 egg. It is well-known that multiple federal judges have commented on the record that Alice was hard to apply in practice. Judge Wu of the United States District Court for the Central District of California criticized Alice for setting forth an “I know it when I see it” test. Judge Pfaelzer, a colleague of Judge Wu, wrote that the Supreme Court’s patent-eligibility cases “often confuse more than they clarify [and] appear to contradict each other on important issues.” More recently, the Federal Circuit’s Judge Plager, wrote that the post-Alice §101 inquiry “renders it near impossible to know with any certainty whether the invention is or is not patent eligible.” And these are just a few examples of judicial confusion. There are more.

Just a few months ago, the Federal Circuit ruled 2-1 that § 101 jurisprudence was too murky to be used as the basis of an attorney’s fees award. While the facts between that case and this one differ, the law does not.

Looking at another site of software patents proponents, Charles Bieneman comes to grip with the fact that his profession, patent litigation, will become rather hard now that software patents are worthless in the US and typically drain plaintiffs’ pockets. To quote:

Patent claims directed to establishing online chat sessions are not patent-eligible under 35 U.S.C. §101 and the Alice/Mayo test, said Federal Circuit Judge Bryson, sitting in the District of Delaware, in granting a defendant’s motion to dismiss. Epic IP LLC v. Backblaze, Inc., C.A. No. 1:18-141-WCB (D. Del. Nov. 21, 2018).

Remember when law firms advised people to paint algorithms as “GUI” to get software patents and other patents that are abstract? Well, forget it. That too doesn’t work. Bieneman’s blog colleague Peter Keros wrote about a patent on “remotely monitoring and controlling irrigation equipment”:

Patent claims directed to a remote user interface displaying a plurality graphical user interfaces (GUIs) were held not patent eligible under 35 U.S.C. § 101 in Valmont Industries, Inc. v. Lindsay Corporation, No. 15-42-LPS (D. Del. Nov. 14, 2018). The Court found that the claims of U.S. Pat. No. 7,003,357 were directed to the abstract idea of “remotely monitoring and controlling irrigation equipment” without an inventive concept, granting a motion to dismiss under F.R.C.P. 12(b)(6).

Here’s Bieneman on 35 U.S.C. § 112:

Claims in a patent directed to medical diagnostics were indefinite under 35 U.S.C. §112(b) and Nautilus, Inc. v. Biosign Instruments, Inc. (S. Ct. 2014), said a court in granting summary judgment of invalidity. Lecat’s Ventriloscope v. MT Tool and Manufacturing, No. 1-16-cv-05298 (N.D. Ill. Nov. 20, 2018).

Last but not least, Bieneman writes about 35 U.S.C. § 112 and “a patent examiner’s rejections under 35 U.S.C. § 101 for lack of patent-eligibility”. It’s abundantly clear that software patents are very weak in US litigation (courts). To quote:

The Federal’s circuit has affirmed a Patent Trial and Appeal Board (PTAB) decision in turn affirming a patent examiner’s rejections under 35 U.S.C. § 101 for lack of patent-eligibility, and under 35 U.S.C. § 112 for lack of written description and indefiniteness, of a product-by-process claim directed to “a resource planning forecast product.” In re Downing, No. 2018-1795 (Fed. Cir. Dec. 7, 2018) (non-presidential).

[...]

Finally, and probably of absolutely no solace to the applicant, the court agreed that the recitation of “the end user” was not indefinite for lack of antecedent basis. Even though the term “the end user” was introduced “without an antecedent basis,” the claim only referenced one and user and it was clear who the end user would be. Therefore, the lack of antecedent basis for this term did not render the claim indefinite.

Even district courts, such as the Northern District of California’s court in this particular case, learned to say “no” to abstract, bogus, fake patents or software patents. Bieneman’s blog colleague Nathan Smith wrote about patent claims on “analyzing and automatically categorizing digital images”:

The Northern District of California recently granted a motion to dismiss based on lack of patent-eligible subject matter, under 35 U.S.C. § 101 and the Alice/Mayo test, in claims of U.S. Patent No. 8,350,928, directed to “a system and method for the automatic analysis and categorization of images in an electronic imaging device.” Secure Cam, LLC v. Tend Insights, Inc., No. CV 18-02750-EJD (N.D. Cal. Nov. 14, 2018). The claims of the ‘928 patent were ineligible because, like In re TLI Communications LLC Patent Litigation, 823 F.3d 607, 613 (Fed. Cir. 2016), the claims were directed to the abstract idea of analyzing and automatically categorizing digital images. Further, like TLI, the claims include physical components, such as a digital camera, “but the physical components ‘merely provide a generic environment in which to carry out the abstract idea.’”

Last but not least, over at Watchtroll Robert Levy weighed in on licensing (fancier term for “paying for”) bogus patents, i.e. patents that are not likely to withstand a challenge in a court, e.g. because of 35 U.S.C. § 101/Alice. Levy cites the Alphacap case (covered here at the time):

All too often, the prospective licensee/purported infringer usually doesn’t begin its efforts to acquire the patent(s) until after making disparaging statements about them during negotiations. As an example, consider the time line discussed in the case of Gust, Inc. v. Alphacap Ventures, LLC, No. 2017-2414 (Fed. Cir. September 28, 2018) in which Alphacap Ventures, the purported infringer, demanded re-assignment of the patent owner’s patents as part of a settlement offer, but only after arguing for the invalidity of such patents under 35 U.S.C. § 101.

Eventually a lot of cases come down to this. The underlying patents don’t pass muster and are therefore not worth pursuing in the first place. In the coming days if not weeks we’ll give some more examples like these. It has gotten a tad tiring/dull because the outcomes are mostly the same.

Links 19/12/2018: VirtualBox 6.0, RawTherapee 5.5, Mir 1.1.0, LibreOffice 6.1.4 Released

Posted in News Roundup at 5:45 am by Dr. Roy Schestowitz

GNOME bluefish

Contents

GNU/Linux

Free Software/Open Source

  • Events

    • Event Report: g0v Summit 2018 — Taipei

      Gov zero summit is a decentralized, grass-roots civic tech community based in Taiwan. Built on the spirits of open source and activism, g0v aims to use technology in the interest of the public good, advocate information transparency and build tech solutions to promote civic engagement. I was lucky my talk got selected and got an opportunity to speak at the event.

  • Web Browsers

    • Mozilla

      • BBN challenge resolution: Getting the flag from a browser extension

        My so far last BugBountyNotes challenge is called Can you get the flag from this browser extension?. Unlike the previous one, this isn’t about exploiting logical errors but the more straightforward Remote Code Execution. The goal is running your code in the context of the extension’s background page in order to extract the flag variable stored there.

        If you haven’t looked at this challenge yet, feel free to stop reading at this point and go try it out. Mind you, this one is hard and only two people managed to solve it so far. Note also that I won’t look at any answers submitted at this point any more. Of course, you can also participate in any of the ongoing challenges as well.

  • LibreOffice

    • LibreOffice 6.1.4 Office Suite Released with More Than 125 Bug Fixes, Update Now

      LibreOffice 6.1.4 comes one and a half months after version 6.1.3 with yet another layer of bug fixes across all the components of the office suite, including Writer, Calc, Draw, Impress, Base, and Math. However, it remains the choice of bleeding-edge users and early adopters until the LibreOffice 6.1 series matures enough to be offered to enterprises. A total of 126 changes are included, as detailed here and here.

    • LibreOffice 6.1.4 announced

      The Document Foundation announces LibreOffice 6.1.4, the 4th minor release of the LibreOffice 6.1 family, targeted at tech savvy individuals: early adopters, technology enthusiasts and power users.

  • Openness/Sharing/Collaboration

    • Open Hardware/Modding

      • MIPS Processor ISA To Be Open-Sourced In 2019

        Months after MIPS Technologies was acquired by Wave Computing, the company announced it’s working on open-sourcing the MIPS processor instruction set architecture.

        The MIPS ISA will be open-sourced with both the 32-bit and 64-bit versions opening up and will be free of any licensing or royalty fees as well as access to existing MIPS patents.

  • Programming/Development

Leftovers

  • Security

    • How Shopify Avoided a Data Breach, Thanks to a Bug Bounty

      At KubeCon + CloudNativeCon NA 2018, Shopify and Google detail a Kubernetes security incident reported by a bug bounty security researcher that was quickly remediated before any harm was done.

    • Logitech Options App Plagued By PID Exploit, Security Vulnerability Fixed With New Update

      Logitech Options is an app that controls all of Logitech’s mice and keyboards. It offers several different configurations like Changing function key shortcuts, Customizing mouse buttons, Adjusting point and scroll behavior and etc. This app contained a huge security flaw that was discovered by Tavis Ormandy who is a Google security researcher. It was found that Logitech Options was opening a WebSocket server on each individual computer Logitech Options was run on. This WebSocket server would open on port 10134 on which any website could connect and send several various commands which would be JSON-encoded.

    • pwnedkeys: who has the keys to *your* kingdom?

      I am extremely pleased to announce the public release of pwnedkeys.com – a database of compromised asymmetric encryption keys. I hope this will become the go-to resource for anyone interested in avoiding the re-use of known-insecure keys. If you have a need, or a desire, to check whether a key you’re using, or being asked to accept, is potentially in the hands of an adversary, I would encourage you to take a look.

    • “123456” Tops The List Of Worst Passwords For 5th Consecutive Year
  • Defence/Aggression

    • Peoples Vote in Danger of Becoming War Criminal Rehabilitation

      Regular readers know I have largely steered clear of discussing Brexit for the three years its possibility then prospect has dominated the UK political agenda. I used to be enthusiastically pro-EU, as part of my general outlook of supporting international law and organisations. I was however shocked, deeply, by the enthusiastic support of all three institutional strands – council, commission and parliament – for the appalling Francoist paramilitary violence in Catalonia, and decided that the EU is no longer an institution I can support.

      The increasingly illiberal developments of the EU’s Third Pillar – including the abuse of arrest warrant procedure against Julian Assange and the internationalising of “Prevent” style Islamophobia – had already increasingly been worrying me. My reservations about the EU are therefore different to those of many. I particularly bemoan the loss of Freedom of Movement which I believe to have been one of the greatest achievements of civilisation in my lifetime. I remain incensed at the success of the elite in conning the deprived that their poverty is caused by immigrants, whereas it is caused by massive inequality of wealth.

      So I am conflicted on Brexit, but on balance would prefer to leave but stay part of the single market, thus retaining freedom of movement. My personal preferences aside, there is plainly a huge majority against leaving the EU in Scotland, so for Scotland to leave the EU at all at present would be wrong. It is my profound hope that the SNP will find the courage shortly to move on towards Independence.

    • No One’s Asking the Right Questions About Police Drones

      Police drones are expanding, but are the media asking questions?

      The NYPD, the nation’s largest police force, announced this week that they had purchased over a dozen flying robots to fly over Gotham, while promising that the new technology wouldn’t be used for any of the illegal spying shenanigans the police department has been caught up in time and time again. The announcement, however, was awkwardly timed, as the police department had already purchased drones—last December.

      Instead of asking the kinds of questions one might expect for a scandal-plagued agency obtaining expansive new surveillance powers—Why did you wait a year to announce the move? Was the public consulted? Are there oversight mechanisms to guard against misuse?—most media outlets questioned nothing, quoted generously from police officials and (at best) sprinkled in few concerns from legal organizations.

    • He Said He’d Be Murdered If Deported. He Was.

      Nearly a year after a judge rejected Santos Chirino’s case for asylum, his 18-year-old daughter and 19-year-old son returned to the very same courtroom to plead their own.

      “Your honor, this is a difficult case,” their father’s lawyer, Benjamin Osorio, told Judge John Bryant. “I represented their father, Santos Chirino Cruz. … I lost the case in this courtroom. … He was murdered in April.”

      As Maria Sacchetti described for The Washington Post, “Osorio paused, and the judge blanched and stammered.”

      “You said their father’s case — did I understand I heard [it]?” Bryant asked, eyes wide.

      “No,” Osorio said. “In this court. Not before your honor.”

      “Well good, because — all right, my blood pressure can go down now,” Bryant said. “Yeah. I mean. Okay.”

  • Transparency/Investigative Reporting

    • Everyone hates Julian Assange, except for when you used to love him

      It’s not hard to find people in Washington with strong opinions about Wikileaks and its founder, Julian Assange. But good luck finding someone with an opinion about Assange that hasn’t flipped 180 degrees (and maybe back again) over the past ten years.
      Assange has managed the rare feat of becoming a pariah to both the left and the right, politicians and the press, “the masses” and their elected leaders. Foreign and domestic, coastal and “flyover,” red and blue—everyone seems to hate Assange (except for that time when they used to love him).
      As a result, Assange has become a poster boy for the importance of First Amendment protections. At its core, the First Amendment is an expression of “anti-majoritarian” rights—it is meant to protect social pariahs from persecution by political majorities. Popular people and popular ideas generally don’t need constitutional protection. Haters and lunatics and radicals? Their speech needs protection for the very reason that strong majorities reject it—it is so far outside the norm that ordinary politics will almost certainly persecute it.

    • Roger Stone says he pushed false statements on Infowars
    • Twenty-One Thoughts On The Persecution Of Julian Assange

      1. I write a lot about the plight of Julian Assange for the same reason I write a lot about the Iraq invasion: his persecution, when sincerely examined, exposes undeniable proof that we are ruled by a transnational power establishment which is immoral and dishonest to its core.

      2. Assange started a leak outlet on the premise that corrupt and unaccountable power is a problem in our world, and that the problem can be fought with the light of truth. Corrupt and unaccountable power has responded by detaining, silencing and smearing him. The persecution of Assange has proved his thesis about the world absolutely correct.

      3. Anyone who offends the US-centralized empire will find themselves subject to a trial by media, and the media are owned by the same plutocratic class which owns the empire. To believe what mass media news outlets tell you about those who stand up to imperial power is to ignore reality.

      4. Corrupt and unaccountable power uses its political and media influence to smear Assange because, as far as the interests of corrupt and unaccountable power are concerned, killing his reputation is as good as killing him. If everyone can be paced into viewing him with hatred and revulsion, they’ll be far less likely to take WikiLeaks publications seriously, and they’ll be far more likely to consent to Assange’s silencing and imprisonment. Someone can be speaking 100 percent truth to you, but if you’re suspicious of him you won’t believe anything he’s saying. If they can manufacture that suspicion with total or near-total credence, then as far as our rulers are concerned it’s as good as putting a bullet in his head.

  • Privacy/Surveillance

    • PSA: Fake App Store Receipts Are Tricking People Into Providing All Their Personal Details

      A fascinating new phishing attempt it making the rounds disguising itself as a receipt from the App Store, tricking unsuspecting users into coughing up all of their personal details. Here’s what you need to know and how to stay safe.

    • At The CIA, A Fix To Communications System That Left Trail Of Dead Agents Remains Elusive

      Between around 2009 and 2013, the CIA’s online method of communicating with its human sources on the ground all over the world was tragically compromised — leading to the exfiltration, imprisonment or death of dozens of people spying for the agency, according to a November investigation by Yahoo News.

      The failure started when Iranian officials used a double agent to trace back a series of websites the CIA was using to communicate with its sources. Iran then located, detained and in some instances executed CIA sources it identified using this system. The problem then spread to China, where roughly 30 CIA sources were eventually executed. Once Iran and China were able to locate users of these covert CIA platforms in their own countries, sources told Yahoo News, they were very likely able to discover a large number of CIA sources using similar systems worldwide.

      But the fallout from that disaster, including internal battles at the CIA and struggles to replace and fix a complex web of interlocking technical systems, continues to rage on to this day, according to five former intelligence community sources familiar with the matter.

  • Civil Rights/Policing

    • No State Accountability for North Carolina Contractor Who Helped CIA Torture

      On December 9, 2014, the Senate Intelligence Committee released a 500-page executive summary of its 6,000-page report on the history of the CIA’s detention and interrogation program. The report exposed just how brutal and ineffective the torture was, and the lengths to which the CIA went to hide that truth from the public.

      Four years have passed since the report was released—yet only three copies of the full report exist outside Senate Intelligence Committee’s vault, and what is available for public scrutiny is less than 10 percent of the report. The Committee voted only to release a heavily redacted executive summary and, since then, the CIA and its allies in Congress have sought to limit who has access to the report and who can read it in its entirety. The U.S. public, in other words, is still in the dark when it comes to this crucial chapter of its own recent history.

      To be sure, the ACLU has been doing heroic work filing Freedom of Information Act requests. And citizen-led groups—like my own organization, the North Carolina Commission of Inquiry on Torture—work hard to use what’s available in the public record to piece together details on the CIA’s rendition, detention, and interrogation program and inform the public. Nonetheless, the vast majority of what the Senate Intelligence Committee discovered in their investigation remains shielded from public inquiry.

    • CIA created ‘remote controlled dogs’ using brain surgery in secret experiments

      America’s Central Intelligence Agency conducted grisly experiments to create ‘remote controlled dogs’, with electrodes planted in their brains to ‘receive orders’.

    • GEORGE H.W. BUSH (1924-2018), AMERICAN WAR CRIMINAL

      THE UNITED STATES is now in the midst of a grotesque canonization of one of its imperial saints, George Herbert Walker Bush. This week on Intercepted: an honest memorial service for an unrepentant warmonger who dedicated his life to militarism, war, coups, regime change, and the lies of “American exceptionalism.” Jeremy Scahill details the crimes of Bush, the sick propaganda of the corporate media memorials, and the trail of blood, death, and tears Bush leaves behind. Independent journalist Arun Gupta covers decades of Bush, from his time at the helm of the CIA to the presidency. Gupta discusses Bush’s support for Manuel Noriega and his eventual invasion of Panama, the pardoning of Iran-Contra criminals, the dirty wars in Central America, the support for Saddam Hussein, and the launch of the Gulf War. Acclaimed Iraqi poet and scholar Sinan Antoon describes his life under the U.S.-backed dictatorship of Saddam, the horrors of the Gulf War, and how Bush’s destruction of Iraqi civilian society led to the rise of ISIS.

    • George H.W. Bush, the CIA and a Case of State-Sponsored Terrorism

      In early fall of 1976, after a Chilean government assassin had killed a Chilean dissident and an American woman with a car bomb in Washington, D.C., George H.W. Bush’s CIA leaked a false report clearing Chile’s military dictatorship and pointing the FBI in the wrong direction.

      The bogus CIA assessment, spread through Newsweek magazine and other U.S. media outlets, was planted despite CIA’s now admitted awareness at the time that Chile was participating in Operation Condor, a cross-border campaign targeting political dissidents, and the CIA’s own suspicions that the Chilean junta was behind the terrorist bombing in Washington.

      In a 21-page report to Congress on Sept. 18, 2000, the CIA officially acknowledged for the first time that the mastermind of the terrorist attack, Chilean intelligence chief Manuel Contreras, was a paid asset of the CIA.

      The CIA report was issued almost 24 years to the day after the murders of former Chilean diplomat Orlando Letelier and American co-worker Ronni Moffitt, who died on Sept. 21, 1976, when a remote-controlled bomb ripped apart Letelier’s car as they drove down Massachusetts Avenue, a stately section of Washington known as Embassy Row.

    • CIA used mind control experiments on dogs and humans during the 1960s
    • CIA once secretly implanted mind-control devices in dogs’ brains

      The CIA created remote-controlled dogs by operating on their brains during a bizarre mind-control experiment, according to freshly declassified documents.

      During the top-secret 1963 project, researchers implanted a device inside six canines’ skulls and guided them through an open field, according to documents posted on The Black Vault, a website specializing in declassified government records.

    • Trailer for ‘Drugs as Weapons Against Us’ Doc About CIA’s Experiments

      “Much of it remains classified for ‘national security’ reasons.” Gravitas Ventures has released a trailer for an indie documentary titled Drugs as Weapons Against Us, made by first-time filmmaker John Potash. The full title is actually Drugs as Weapons Against Us: The CIA War on Musicians and Activists, and it’s an examination of the CIA’s nefarious past when they manipulated musicians & activists to promote drugs for social control, particularly with the Civil Rights and anti-war movements. Some musicians that resisted these manipulations were killed. We’ve all heard these stories, and while some of it is true, some of it seems like they are drifting into conspiracy theory territory. Based on Potash’s book “Drugs as Weapons Against Us”, the film looks at evidence that the CIA targeted SDS, Black Panthers, Hendrix, Lennon, Cobain, Tupac, and other leftists. The footage in this trailer isn’t that impressive, I wish it looked better than it does.

  • Intellectual Monopolies

    • Patent case: Sprint Communications Co., L.P. v. Time Warner Cable, Inc., USA

      The U.S. Court of Appeals for the Federal Circuit has affirmed a $139.8 million jury verdict in favor of Sprint Communications against Time Warner for infringement of five Sprint patents related to VoIP technology. The appeals court concluded that the district properly admitted evidence relating to the jury verdict in an earlier, related case brought by Sprint against Vonage, another carrier offering VoIP service.

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 Channels: Come and chat with us in real time

New to This Site? Here Are Some Introductory Resources

No

Mono

ODF

Samba logo






We support

End software patents

GPLv3

GNU project

BLAG

EFF bloggers

Comcast is Blocktastic? SavetheInternet.com



Recent Posts