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

04.20.19

Largest Patent Offices Try to Leave Courts in a State of Disarray to Enable the Granting of Fake Patents in the US and Europe

Posted in America, Europe, Law, Patents at 4:00 am by Dr. Roy Schestowitz

Nonsensical patent offices that put the litigation ‘industry’ ahead of the real industry. They’re not representative of the public at all.

French EPO

Summary: Like a monarchy that effectively runs all branches of government the management of the EPO is trying to work around the judiciary; the same is increasingly happening (or at least attempted) in the United States

THE SUBJECT of software patents in Europe goes a long way back. I had written about it before this site even existed, before Brimelow ran the EPO and back in the days another French President (not Battistelli and Campinos) was in charge. He, unlike the latter two, was actually a scientist and one whom the staff generally respected. We wrote a lot about him over the years and showed staff generally respected him (not everyone but many).

The main issue today is that there’s no separation of powers; virtually none. Europe’s patent system became a monstrosity, only limited in part by a court system that is federated and untouched by the EPO’s (and EU’s) clout.

“EPO is also not following the rule of law,” as Benjamin Henrion put it a couple of days ago, and “it is an administration shielded by diplomatic immunity, and cannot be sued for maladministration. And the Commission is supporting this kind of institution for the Unitary Patent, while not even compatible with the treaties…”

“The main issue today is that there’s no separation of powers; virtually none.”The European Patent Office (and Organisation) is just some island inside Europe and it does whatever it pleases, irrespective of the interests and opinions of actual Europeans. Who benefits? Law firms. Not necessarily European ones, either.

Recently we’ve seen lots and lots of ‘articles’ (ads by law firms) about patents on maths, nature, and life. Here in Lexology one can see Bardehle Pagenberg’s Bastian Best continuing his promotion of illegal software patents (as he has done for a decade). Best wrote much more about it a fortnight ago. His employer is probably the loudest proponent of software patents (and has been for quite some time). They even tweeted this before the weekend: “Software patents: How are they examined at the @EPOorg? Here’s our patent attorney @bastianbest explaining the legal framework with simple examples.”

They just look for loopholes and then promote these.

“They just look for loopholes and then promote these.”Kilburn & Strode LLP’s Paul Briscoe and Kristina Cornish meanwhile drool over patents on nature and life — granted illegally or in defiance of the EPC. Kilburn & Strode has also just published this rather crude call to “File! File! File!” So say patent agents who profit from lots of fake patents that are actually worthless but lead to legal bills. File applications, file lawsuits etc. Lexology is full of this nonsense every single day and it says “[t]he clarion call comes from patent attorneys and inventors alike” even though what we have here is lawyers speaking ‘for’ inventors without naming any.

The EPO has meanwhile retweeted this French front group of patent law firms. This year, for the first time, the EPO has been calling for "MedTech" patents — an intentionally misleading term. The EPO pretends software patents are “life-saving” and “for SMEs”, soon to be parroted by this front group which said “Medtech CII event to raise awareness among SMEs…”

It has nothing to do with SMEs, but the EPO and patent maximalists are nowadays cooperating in their shameless propaganda.

We’re meanwhile seeing similar moves in the US. Haynes and Boone LLP’s Chad Hammerlind, for example, has chosen a nonsensical and misleading headline by which to twist the reality surrounding the Federal Circuit. 35 U.S.C. § 101 continues to be followed by courts (see our daily links for the latest examples) and patent maximalists are desperate to find new ways to bypass the courts, in essence pursuing patents they know to be invalid (as per the law).

“It has nothing to do with SMEs, but the EPO and patent maximalists are nowadays cooperating in their shameless propaganda.”Contrary to what these maximalists keep saying in recent days, none of that is changing. The US Congress isn’t bringing software patents back; some readers sent us headsups about it (for Techrights to cover). See the comments at the bottom of this post with a misleading headline from Kevin E. Noonan. These are just a handful of bribed politicians, the usual suspects (the same old ones), trying to push through software patents for their sponsors. They tried and failed. Trying again because it’s spring? There are several more articles like these, e.g. this from Ropes & Gray LLP’s Scott McKeown and several from Watchtroll. Eileen McDermott of Watchtroll says “Change May Be Coming: Members of Congress Release Framework to Fix Patent Eligibility Law,” but they have been saying it for years (around the same time). Each time it makes some headlines it only lasts a few days or weeks but nothing happens at the end; it never happens. It dies after summer recess every time. Each year. What we have here is just a handful of people with ties to the litigation industry who cannot quite tell US Congress what to do on software patents and Eileen McDermott is smart enough to know it. They have tried it for years and failed. As a journalist she should know this. She wrote: “Senators Thom Tillis (R-NC) and Chris Coons (D-DE)—respectively, Chair and Ranking Member of the Senate Judiciary Subcommittee on Intellectual Property—and Representatives Doug Collins (R-GA-9), Ranking Member of the House Judiciary Committee; Hank Johnson (D-GA-4), Chair of the House Judiciary…”

She later wrote another piece titled “Reactions Roll in On Congress’s Proposed 101 Framework: ‘The Right Approach’ or ‘A Swing and a Miss’?”

As if the U.S. Patent and Trademark Office (USPTO) sets the rules for Congress or some people who profit from patent maximalism get to decide on the law which governs them.

Surely McDermott can see what’s happening here, partly in light of comments such as: “As is evident from these comments, reasonable people can differ. Unfortunately the Supreme Court will have the last word (absent amending the Constitution, which won’t happen over a patent question). The Court is not final because it is infallible but rather it is infallible because it is final. And I don’t ever see getting a bunch of patent lawyers on the Court, which may be the only way to bring sanity to this area of the law.”

Dennis Crouch joins the ‘fun’. Yesterday he was trying hard (yet again) to promote this software patents’ alleged ‘revival’ in the US. All these patent maximalists never in their entire life wrote a single line of code. And here they are lending a voice to the politicians who suit their agenda (while demonising the rest). To quote Crouch:

Basics of the framework are to create a defined, closed list of subject matter category exclusions: Fundamental scientific principles; Products that exist solely and exclusively in nature; Pure mathematical formulas; Economic or commercial principles; Mental activities. Under the framework, a patent would not be eligible based upon “simply reciting generic technical language or generic functional language.” At the same time, the framework suggests that “practical applications” should be patent eligible. Finally, the framework calls for a divide-and-conquer approach — making clear “that eligibility is determined by considering each and every element of the claim as a whole and without regard to considerations properly addressed by 102, 103 and 112.”

Surely these patent maximalists’ ‘blogs’ know that it isn’t “new” or “news” at all. Days ago Crouch’s site linked to this article from Malathi Nayak dated March 26th, 2019. It says “Sens. Thom Tillis and Chris Coons have outlined four principles for new patent eligibility legislation in a message to technology and pharmaceutical company representatives and others in advance of a fourth closed-door meeting on their effort.”

“They have been doing this for years (especially Coons) and it never got anywhere.”Their latest press release is dated April 17th, 2019. It involved nontechnical politicians, funded by corporations, working as fronts for law firms. But they call it “bipartisan” (misdirection).

Suffice to say, the patent trolls’ lobby (IAM) participated in this push, but kept it behind paywall (out of critics’ sight). To quote the tweet: “At a well-attended meeting in Washington DC on Wednesday attempts to frame legislation for the reform of the Section 101 patent eligibility regime in the US ran into familiar problems.”

They have been doing this for years (especially Coons) and it never got anywhere. We’ve meanwhile noticed that Gene Quinn came back the other day, only to attack PTAB i.e. the usual. Attacking judges. Watchtroll’s specialty. That there’s a USPTO revolving doors problem isn’t surprising and it’s a shame that Watchtroll does not disclose who it works for, either. That would kind of give away the hypocrisy (“A Story of Ethics and Optics: Former PTAB Judge Matt Clements Now Works for Apple”).

Speaking of nepotism, Iancu has come under fire again.

“Things work a lot better at present than they did before; unless you’re a patent lawyer…”United for Patent Reform wrote: “EFF states that @USPTO’s eligibility guidance “effectively instructs examiners on how to narrow the #Alice v. CLS Bank decision instead of how to apply it correctly,” and calls it “contrary to law.” Read their full comments…”

The EFF has moved on since. In the latest “Stupid Patent of the Month” (titled “How Landmark Technology’s Terrible Patent Has Survived” and composed by Joe Mullin because Daniel Nazer left to join Mozilla) the EFF slams circus clown Iancu whom Donald Trump gave a job after his firm had worked for him. To quote Mullin:

There’s an increasing insistence from the highest echelons of the patent world that patent abuse just isn’t a thing anymore. The Director of the U.S. Patent Office, Andre Iancu, has called patent trolls—a term for companies that do nothing but collect patents and sue others—mere “monster stories,” and suggested in a recent oversight hearing that it was simply name-calling.

But whatever you call them—trolls, non-practicing entities, or patent assertion entities—their business model, which involves stockpiling patents to sue productive companies rather than making goods or services, continues to thrive. It’s not hard to find examples of abusive patent litigation that make clear the threat posed by wrongly-issued patents is very real.

Take, for instance, the patents that Lawrence Lockwood owns. These patents have been used to sue companies, large and small, for nearly 20 years now. Through his company Landmark Technologies and his earlier company PanIP, more than 100 lawsuits have been filed against businesses—candy companies, an educational toy maker, and an organic farm, to name a few. Because these companies engage in “sales and distribution via electronic transactions,” or use an automated system “for processing business and financial transactions,” Landmark says they infringe one of its patents.

Those lawsuits don’t account for the other companies that have received licensing demands, but have not been sued in court. The numerous threats made with Lockwood’s patents are made clear both by news accounts of Lockwood’s activity, as well as the several small business owners that have reached out to EFF after being targeted by Lockwood’s patents.

If the patent microcosm thinks that a handful of not-so-familiar politicians will miraculously change patent law, then the patent microcosm refused to learn from the past. Technical people will stand in their way and 2019 will be yet another year of failed ‘reform’ attempts. Things work a lot better at present than they did before; unless you’re a patent lawyer…

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 22/10/2019: MX-19, Tails 4, Mesa 19.1.8 Released

    Links for the day



  2. “Stallman Was Right” is Not Just a Meme as It's Usually True

    The track record of Stallman isn't immaculate, but it's exceptionally good if not impressive



  3. EPO Diplomatic Immunity

    What people can get away with at the European Patent Office (EPO) if their name is Battistelli or António Campinos



  4. Dr. Ingve Björn Stjerna Reveals How the German Government Actively Ignored SMEs to Push the Notorious 'Unitary Patent' Sham

    Turning European Patents (which are no longer good patents but expensive or overpriced patent monopolies — patents which European courts will likely reject) into “unitary” ones (i.e. enforceable EU-wide with one legal action) would harm wrongly-accused parties that mostly or only operate in one single country, overriding the authority of those parties’ national laws and courts



  5. Links 22/10/2019: Pacman 5.2, Shame of Disney+ DRM, Microsoft's DRM Scheme, Microsoft Reprimanded for Privacy Abuses

    Links for the day



  6. Patents Need to Exist Only to Pass Information Around and Keep Good Ideas Alive, Not to Feed Litigation Firms and Litigation 'Enthusiasts'

    The current situation or the status quo where legal professionals are advised not to even look at patents means that patents aren’t for “information” and “innovation” anymore; moreover, calling them “intellectual property rights” (or IPRs) is spreading a malicious lie



  7. IRC Proceedings: Monday, October 21, 2019

    IRC logs for Monday, October 21, 2019



  8. SUEPO Protest Tomorrow. All EPO Staff in Munich Ought to Attend and Prepare to Strike Too.

    Tomorrow’s planned protest should be a bridge towards a full strike, which takes more time to plan for and get authorisation for (because of increasingly strict restrictions)



  9. Looking for Explanations About Samsung's DeX and Other FOSS Initiatives Being Canned

    DeX was primarily a threat to the desktop/laptop monopoly of Microsoft, so its sudden abandonment — without even an explanation — continues to attract speculations



  10. EPO Will Need a Lot More Than Photo Ops and Hoax 'Studies' to Restore the Perception of Lawfulness

    Battistelli‘s illegal attacks on European Patent Office (EPO) judges have tarnished any impression that the EPO serves justice and the current regime torpedoes an assessment of these attacks; EPO workers understand that to follow guidelines from the management may be a breach of the EPC



  11. Links 21/10/2019: More on DeX, Disney DRM and Linux 5.4 RC4

    Links for the day



  12. GNU/Linux is Bigger Than Ever (Used More Than Ever Before), But Communication Means and Brands Have Changed

    The GNU/Linux market is alive and healthy; it's how we measure its health that ought to adapt because things are constantly changing, more rapidly in the realm of technology than anywhere else



  13. IRC Proceedings: Sunday, October 20, 2019

    IRC logs for Sunday, October 20, 2019



  14. Samsung Does Not Say Why It's Dropping DeX, But the ASUS EEE Story Might Offer Clues

    It's not at all outlandish or unreasonable to suggest that Microsoft used patents or bribes or kickbacks as incentives for Samsung to abandon GNU/Linux as a desktop platform



  15. EPO: It's Only Getting Worse

    Inhaling Seagull meme for EPO presidents



  16. It Has Begun: EPO Staff Protests Against António Campinos (Starting Wednesday)

    Wednesday marks the resumption of EPO protests; it’s happening for the first time under Campinos and only a year after he took Office. Even Battistelli, the notorious thug, lasted longer before such escalations/actions or — put another way — he did better than that (if one checks the timeline of his presidency)



  17. Links 20/10/2019: GNU/Linux at Penn Manor School District, Wine-Staging 4.18, Xfce 4.16 Development, FreeBSD 12.1 RC2

    Links for the day



  18. Guest Post: Understanding Autism for More Complete Inclusion

    "...assuming that autistic people are all the same isn't only technically wrong, it is misleading and leads to harmful and needless misunderstandings."



  19. Guest Post: Free Software Freedom is Not a Freedom of Choice

    The concept of "Freedom of Choice" and how the ruling class uses it to give a false impression of "Freedom"



  20. Guest Post: Free Software Developers and Pursuing 'Market Share'

    "The only people interested in software freedom are (almost always) free software developers. And users are interested in freedom to a very limited extent: the "free beer" side. Even many free software developers are only interested in the "free beer" part of free software."



  21. The Assertion That Microsoft Uses Communist Tactics Against GNU/Linux and Free/Libre Software

    A study of Taistoism might help understand how Free/libre software is being undermined



  22. European Patent Office and US Patent and Trademark Office Cranks Discovered Buzzwords, Stopped Worrying, Started Granting Patents They Know to be Fake

    The world's patent repositories are being saturated with loads of junk patents or patents that have no legal bearing but can still be leveraged for extortion purposes; the EPO is resorting to lies and artificially-elevated buzzwords to justify granting such fake (yet ruinous) patents



  23. IRC Proceedings: Saturday, October 19, 2019

    IRC logs for Saturday, October 19, 2019



  24. “The True Hypocrite is the One Who Ceases to Perceive His Deception, the One Who Lies With Sincerity,” Said André Paul Guillaume Gide (Nobel Prize in Literature)

    Lies flow like water in the realm of EPO and its publishers, whose sole role is dissemination of deliberate falsehoods, misnomers and misinformation



  25. The EPO Cannot Guard Fake European Patents From Scrutiny (in the Long Run)

    Legal certainty associated with newly-granted European Patents is already pretty low and as long as the EPO refuses to acknowledge that its courts (or boards) lack autonomy the EPO merely brushes a growing problem under the rug



  26. Links 19/10/2019: DeX Discontinued, DXVK 1.4.3 and Wine 4.18 Released

    Links for the day



  27. 'Corporate Linux' Will Not Protect Software Freedom

    The corporate model is inherently not compatible with software that users themselves fully control (or Software Freedom in general), so we must rely on another model of sovereignty over code and compiled code (binaries)



  28. IRC Proceedings: Friday, October 18, 2019

    IRC logs for Friday, October 18, 2019



  29. 26,000 Posts

    We want to thank those who help spread the word; it gives us moral support and morale.



  30. The Myth of 'Analysts'

    People with exaggerated roles (exaggerated by corporate media and corporations that control them) distort public perceptions about their clients; they're in effect just elevated marketing or Public Relations (PR) operatives


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

Recent Posts