06.29.19
Posted in GNU/Linux, Kernel, Microsoft, Novell at 2:00 pm by Dr. Roy Schestowitz
Microsoft would rather have its longtime friend, Greg (from Novell), in charge of Linux
Source with context (video)
Summary: Things aren’t too rosy at the ‘Linux’ Foundation where Linus Torvalds is increasingly being marginalised (thanks in part to Microsoft-friendly media) and propped up to replace him are those who worked on Hyper-V (proprietary software for Windows) and similar Microsoft-centric projects at the Microsoft-occupied Novell
FAMILIAR tactics necessitate familiar reactions and responses. The corporate media keeps shaming Torvalds for exercising free speech while ignoring much worse words from Microsoft executives including Bill Gates (who bribes the media to paint himself as a Saint). Is there a well-planned strategy here? Just earlier today we wrote about Microsoft ousting critics by embarrassing them in front of their employers (or blackmailing the employers into firing them).
“This is Greg K-H (Kroah-Hartman) almost inviting Microsoft. He has been attacking various GNU/Linux vendors but not Microsoft.”Over the past decade or more Slashdot hasn’t been a friend of Linux (it was partly composed by Microsoft boosters) and we’re noticing a pattern there. Yesterday it said something about a Microsoft move “which if approved would allow Microsoft to tap into private behind-the-scenes chatter about vulnerabilities, patches, and ongoing security issues with the open-source kernel and related code…”
This is Greg K-H (Kroah-Hartman) almost inviting Microsoft. He has been attacking various GNU/Linux vendors but not Microsoft. We’ve mentioned this in our daily links after several articles about the matter, notably The Register’s and Slashdot’s (which links to it). In the Fediverse someone told me: “A glance at the changelog for the 5.0.15 Linux kernel is peppered with his sign-offs, often along with Greg Kroah-Hartman, a fellow at the Linux Foundation. It was therefore not surprising to see Kroah-Hartman vouch for Levin. Kroah-Hartman pointed out that Levin has full write permissions to the stable kernel trees, and applauded Microsoft’s application to sign up.”
“So GKH has ‘non-existent tolerance for #ZFS’ (licensed under a free licence!) but he’ll clap for Microsoft?”
He worked for Novell on Microsoft stuff, such as Hyper-V (proprietary software for Windows). He’s potentially trouble for reasons that we last covered some days ago. As one comment put it [1, 2]: “You’re assuming Microsoft has good intentions. Instead, they’ve decided it’s easier to suck the marrow from the bones if they can sneak inside the host under a flag of truce, like many other common parasites.”
A quick Google search shows that coverage has been mostly limited to the above sites and some readers wrote to us about it (after we had filed it under openwashing and chose to move on rather than dwell on character assassinations).
This was discussed yesterday in our IRC channels, as well. To quote a portion:
<__martin__> greetings, do you dr. roy think it’s meant to be a warm-hearted effort or eee smear tactic?
<MinceR> why do people still expect anything microsoft ever does to be benign?
<MinceR> i guess words speak louder than actions after all
<XRevan86> MinceR: It’s big. Inate trust in the authority.
<MinceR> who made those criminals an authority?
<XRevan86> * innate
<schestowitz> anyway, see the comments in The Register
<__martin__> cite: Just more infiltration, entryism. They try to sell Windows and Azure. See comments on this article, e.g.: “You’re assuming #Microsoft has good intentions. Instead, they’ve decided it’s easier to suck the marrow from the bones if they can sneak inside the host under a flag of truce, like many other common parasites.”
<schestowitz> I saw some yesterday
<__martin__> thx I see now (=
<XRevan86> MinceR: Money, money, money; always sunny, in the rich man’s world.
<schestowitz> people aren’t stupid
<schestowitz> but companies like Red Hat and Canonical are controlled by Microsoft cash now
<schestowitz> Zemlin PAC also
<schestowitz> Azure money and all
Curiously enough Slashdot decided to cover ‘news’ from one week ago. Hours ago it published “Tech Press Rushes To Cover New Linus Torvalds Mailing List Outburst” (that’s exactly what Slashdot does here as well, it’s “by EditorDavid”). Torvalds publicly complained that his interviews are being nitpicked by the likes of Slashdot for something insulting or ‘scandalous’ that he said (because such headlines ‘sell’).
Is this part of the effort to remove Torvalds? Look who wrote the two cited articles (the only ones we saw); they’re Microsoft boosters. Are they trying to sanitise the Linux Foundation for corporations like Microsoft, getting rid of charismatic people who simply, after provocation, say that unwanted code (for technical reasons) is like cow’s feces?
If that’s the intention, this isn’t a new strategy; but now with the CoC there’s more ammo with which to shame and even scare Torvalds. They try to lower his impact.
From Slashdot (this afternoon):
“The thing is,” reports the Register, “crucially, Chinner was talking in the context of specific IO requests that just don’t cache well, and noted that these inefficiencies could become more obvious as the deployment of PCIe 4.0-connected non-volatile storage memory spreads.”
Here’s how Chinner responded to Torvalds on the mailing list. “You’ve taken one single statement I made from a huge email about complexities in dealing with IO concurrency, the page cache and architectural flaws in the existing code, quoted it out of context, fabricated a completely new context and started ranting about how I know nothing about how caches or the page cache work.”
The Register notes their conversation also illustrates a crucial difference from closed-source software development. “[D]ue to the open nature of the Linux kernel, Linus’s rows and spats play out in public for everyone to see, and vultures like us to write up about.”
It’s very much slanted against Torvalds and so are the comments. The cited articles are from Linux bashers (with history to that effect). So Torvalds is bad because he mentioned poo, unlike Microsoft putting “boobs” inside the kernel (yes, Linux) — not even a sackable offense by Microsoft's exceptionally sexist standards.
“The LF case is very important,” one person told us. “I think it has driven home the problem of entryism. However, while all that was/is happening, the various FOSS projects are tied up with CoC fiascos.”
We recently mentioned Richard Stallman being silenced similarly [1, 2]. █
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Posted in Europe, Patents at 11:58 am by Dr. Roy Schestowitz
They all know they’re being lied to in so-called ‘reports’ and ‘studies’
Summary: The realisation that the EPO isn’t performing well keeps spreading further and the EPO hasn’t evaded scrutiny even from past allies; something has got to change, but diplomatic immunity and lack of oversight from the Administrative Council (paid to turn a blind eye) may mean that in a lot of senses the EPO is already defunct or dead
THE latest daily links contain news about the U.S. Patent and Trademark Office (USPTO) and outcomes from American courts such as the Federal Circuit, sometimes appeals of Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs). We’ve left out all the rants from Watchtroll because they show borderline lunacy; those are attacks on the government, on judges, and on courts. 35 U.S.C. § 101 opponents are completely losing it. Nothing goes their way anymore. Almost nothing. Even their relatively recent (in Senate about a month ago) stacked ‘hearings’ aren’t having any effect, just as we expected all along, so sites like Watchtroll now lean on the far right, hoping that relatively radical elements can somehow dismantle the courts. We promised to no longer focus on the USPTO and instead focus on the European Patent Office (EPO), where things are a lot worse because António Campinos promotes software patents in Europe, just like Battistelli. As expected, the Administrative Council is absolutely fine with it. Campinos gives away EPO money to keep it that way. We shall get to that in a moment.
“The patent office that used to be about science (rather than piggybacking the reputation of actual scientists in some annual ‘festival’) is turning to marketing and buzzwords.”Longtime readers are aware that half a decade ago EPO management blocked access to Techrights (in all branches) and a year later sent me several threatening letters, realising that blocking staff from reading truthful information wasn’t enough and that it was worth trying to frighten me, too. They later did the same thing to IP Kat and it worked, as we shall note later on in this long article. The sociopaths who run the Office evidently forgot that in a sense they represent Europe as a whole, so these tactics of theirs, which might be expected in a country like China or Russia, damage the EU’s reputation. As a hardcore supporter of the EU myself, these experiences weakened but did not obliterate my support for the EU. I still support the EU (and I oppose Brexit), so the way I look at it, correcting the EPO is part of the effort of repairing the EU and appeasing its worst critics.
I am not an opponent of patents. I am certainly not an opponent of patent examination and I could probably be an examiner myself. I am a strong proponent of good patent examination and strict limits on patent scope. Last weekend we mentioned patents on air and water as examples of bad patents. Such patents would serve almost nobody; they’re outright tyranny or a form societal feudalism (charging people to just breathe or drink water, the element of life).
It has been saddening to see that 5 years down the line and nearly 4,000 articles later the EPO isn’t quite repairing itself. Sure, some people have left and high-profile people like Kongstad have reportedly been fired. But those who replace them aren’t much better. Moreover, the policies remain more or less the same. Patent scope isn’t improving but only getting worse. The patent office that used to be about science (rather than piggybacking the reputation of actual scientists in some annual ‘festival’) is turning to marketing and buzzwords. It’s run by utterly clueless people whose career track record has more connections (nepotism, past employers) than technical substance. “Tribalism” best describes the culture of today’s high-level EPO management. It’s a clique.
A few days ago Isobel Finnie and Joanna Rowley (Haseltine Lake Kempner LLP) wrote about "hey hi", citing the UK-IPO and WIPO alongside the EPO (WIPR amplified them a lot throughout this conference, as did Bristows at IP Kat [1, 2]). To quote what Finnie and Rowley wrote in/through Mondaq:
On 1 February 2019 the UK IPO issued a notice that brings welcome news for biotech innovators wanting to use the services of the UK IPO. Searches on all UK initial patent filings in the biotech sector should be sped up, and for some applicants significant cost savings should be available in connection with subsequent European or PCT applications claiming priority from that UK patent filing.
[...]
Unfortunately, due to backlogs at the UK IPO, applicants in the field of biotech2023nology have had to wait longer than 6 months to receive the UK IPO’s search results. To tackle this backlog and to ensure that the UK IPO can continue to issue search reports quickly, the UK IPO announced on 1 February 2019 that they have signed a co operative searching agreement with the European Patent Office (EPO). Under this agreement, the EPO will perform 200-300 searches per year for UK applications relating to biotech inventions. The agreement will last for at least two years and is based on similar co-operation agreements which already exist between the EPO and other EPC contracting states including Cyprus, Greece, Italy, Latvia, Lithuania, Malta, Monaco and San Marino.
The EPO does not do the job it’s supposed to do (examination) properly, based on its own examiners, who are denied the time (or required capacity) because of corrupt management that’s cheating and faking ‘production’. Why would the UK-IPO want anything to do with this?
“The EPO does not do the job it’s supposed to do (examination) properly, based on its own examiners, who are denied the time (or required capacity) because of corrupt management that’s cheating and faking ‘production’.”A Haseltine Lake Kempner LLP colleague, Kirwin Lee, then wrote about “Blockchain Patentability In Europe And China” (spicing up patent applications with hype waves in order to get illegal software patents). To quote:
As blockchain is increasingly being recognised as a disruptive technology that could revolutionise a wide range of industries including finance, logistics, and data services, it continues to be one of the hottest topics in IP in 2019. Blockchain patenting is rapidly taking off in global economies such as China and the US, and the number of patent filings in this area is expected to grow at an exponential rate in the coming years.
To explore the implications of blockchain for patent applicants and stakeholders, the European Patent Office (EPO) held a blockchain patenting conference on 4 December 2018 at The Hague to discuss topics related to the challenges of searching blockchain and legal issues associated with blockchain, as well as how the EPO and other jurisdictions examine blockchain patent applications.
Having carefully read the above, as well as the IP Kat pieces (two parts from patent maximalists who took over the blog), we regret to say that things only get worse because 1) there’s an attempt to automate examination using inferior and unproven methods (marketed as “hey hi”); 2) qualified and experienced examiners aren’t being valued anymore and 3) abstract software patents are being disguised as “hey hi” or “blockchain” or whatever (many other hype waves and buzzwords). Yesterday in our daily links we showed a large law firm discussing how to twist software patents as “autonomous vehicles”. There are about a dozen such sound bites that the EPO nowadays uses to justify patents on algorithms; it just never uses the term “software patents” and the closest it gets to it is “computer-implemented”. They consciously avoid particular terms. As such…
Meanwhile we keep observing the pushback from European courts (nothing like the UPC because they’re national courts). Here’s Potter Clarkson LLP’s Sheena Linehan on the UK Supreme Court, which is rather strict about patents and has thrown out many European Patents lately. Does the EPO even pay attention to these decisions? Patent value or legal certainty will collapse if this goes on. It happened years ago in the US and as a result of that the number of lawsuits collapsed. Last year the number of granted US patents also decreased.
“Meanwhile we keep observing the pushback from European courts (nothing like the UPC because they’re national courts).”Sadly, the EPO isn’t interested in law, justice, and facts. Months ago the EPO only asked for feedback from patent maximalists (the form lacked an option for members of the public) and then, just before the weekend, it spreads this nonsense in relation to another survey: “Thank you to all who contributed! The European #Patent Register survey reveals a 93% satisfaction rate…”
That’s like a survey among wolves (regarding the rights of sheep). This was from Patent Information News (Issue 2 | 2019) (warning: epo.org link), which was first published about a week ago.
“That’s like a survey among wolves (regarding the rights of sheep).”Then came the so-called “four-year strategic plan”, which we mentioned the other day. The EPO’s plan was promoted by INPI and then retweeted by the EPO (“Le nouveau plan stratégique 2023 de l’ @EPOorg, récemment adopté, comprend 5 objectifs majeurs. Une présentation complète ici”). INPI and the EPO have many overlaps, including in their Twitter accounts. The same is true for EUIPO (for similar reasons).
Max Walters, a person who understands many of these matters, did a good piece about it and it was entitled “Lawyers urge EPO for quality as new plan branded “propaganda”” (even they aren’t buying it). To quote:
Lawyers who have regular dealings with the EPO are sceptical about the office’s four-year strategic plan – given its alleged focus on speed over quality – and call for more clarity over staff relations
The EPO says that granting patents in a timely manner and placing an increased focus on staff engagement will be its major policies for the next four years, though regular users of the system are unconvinced …
“Reportedly,” Kluwer Patent Blog said yesterday, “part of the AC meeting 26 and 27 June 2019 in Munich was dedicated to a discussion of the Staff Engagement Survey carried out by Willis Towers Watson, which was very negative for the EPO management. The communiqué of the AC meeting hasn’t yet been published. That will probably happen soon here.”
A commenter in Kluwer Patent Blog has meanwhile looked at the so-called ‘strategy’ and shared his/her findings:
The EPO’s Strategic Plan makes for grim reading. (https://www.epo.org/about-us/office/strategy.html)
Despite the attempts to obscure the true meaning of objectives with excessive use of “management speak”, certain points stand out even at a glance, as illustrated below.
STATEMENT: “Development plans will gradually increase the capabilities of staff under the new employment framework, by defining a policy to also enhance staff competencies and performance over the first ten years of their employment (five year contract + five year contract), with tailored training and development. Both contract renewal and a permanent employment offer will be subject to the application of transparent and objective criteria, such as individual performance, operational needs and long-term financial sustainability”.
TRANSLATION: In the future, the EPO will offer few, if any permanent contracts to examiners. It will also reduce overheads by minimising the number of experienced (for which read “expensive”) examiners.
STATEMENT: Staff members are represented at the EPO by staff representatives directly elected at local and central levels. In order to facilitate collective bargaining and build consensus, the framework in which the EPO management and these staff representatives interact will be reviewed to ensure efficiency and avoid the duplication of efforts.
TRANSLATION: We will pick a structure for interacting with staff representatives that makes it even harder for collective bargaining to have any perceivable impact upon our policies.
STATEMENT: The topics subject to discussion will be identified before the start of each calendar year to allow for sufficient preparation and increase the likelihood of achieving constructive outcomes that are acceptable to all stakeholders.
TRANSLATION: We want to be able to delay discussion of new policies until those policies have already become firmly established.
STATEMENT: The unions enjoy a significant level of recognition at the Office, which covers freedom of association, the right to call strikes, the right to call for a general assembly that can also be organised on Office premises, and access to communication channels such as in the intranet, noticeboards and leaflet distribution. To formalise the framework of relations between the Office and the unions, a memorandum of understanding will be discussed based on national and international best practices. Among other things, the right to strike will be revisited as part of the discussion.
TRANSLATION: We don’t like strikes and will try to further limit the circumstances under which they can be called.
STATEMENT: Finally, the Office aims to ensure that internal means of redress are a last resort, to avoid a proliferation of proceedings on the same topic, to encourage the withdrawal of appeals which have become irrelevant and to promote respect for the scope of the internal appeals system. The effectiveness of internal mechanisms of redress is an important condition for the Office’s immunity from jurisdiction and its operational independence.
TRANSLATION: We cannot believe that we actually lost some important cases at the ILO. To stop this happening again, we intend to pressure complainants into giving up before the ILO hears their cases.
STATEMENT: As the Office brings its backlog under control, the EPO will be more exposed to variations in demand. This calls for a more dynamic business model to ensure increased productivity and more effective management of incoming work.
Greater adaptability and flexibility among examiners and formalities officers will constitute a major element of this dynamic business model. It will therefore be crucial to identify emerging trends early, so that if a staff member needs to change technical field, proper training can be offered well in advance.
TRANSLATION: Short term contracts will become essential to making our workforce more flexible. Oh, and that old-fashioned idea of ensuring that applicants get their cases examined by someone who might understand the technology involved? Yeah, we’re not really too bothered about that any more. Allocation of examiners will be based more upon who happens to have spare capacity at the time.
I could go on … at great length. But the general message seems to be reduce overheads, pay lip service to quality, continue to turn a deaf ear to both internal and external complaints, and ensure that there are plenty of opportunities for jollies for management (and for tame regulators). Grim reading indeed!
Some of the latest comments here are revealing, yet European media refuses to debunk these lies of the EPO (refuted by the EPO’s own staff). Here’s another: “A step forward after forcing examiners to sit together in open space offices would be to have a lector of novels, like in Cuban cigar factories. Even better, in order to save money by removing the human reader, one could introduce modified radios which can only tune in on approved frequencies (like in North Korea): channel 1: Battistelli speeches, channel 2: Campinos speeches. Oh, we have such great times before us!”
“Some of the latest comments here are revealing, yet European media refuses to debunk these lies of the EPO (refuted by the EPO’s own staff).”Based on coverage from World Intellectual Property Review, it looks like the Battistelli methods are still in place. Will the EPO keep bribing nations and their NPOs (or NPO heads) to play along/participate in the illegal agenda of EPO management? Seems so.
Notice this “catalogue of cooperation projects”:
The European Patent Office (EPO) is to seek closer alignment with its member states, as well as other European and international institutions.
Yesterday, June 27, the EPO set out its Strategic Plan 2023 in which it identified strengthened cooperation with other patent bodies as a key objective.
The report said the EPO would put forward a new “catalogue of cooperation projects” with member states, aimed at simplifying IT infrastructure and promoting the convergence of practices between patent offices.
In the report, the EPO said it would propose a new funding structure for co-operation initiatives with member patent offices, whereby the EPO would provide 80% of the funding for such schemes. The remaining 20%, to be borne by the member states, could take the form of a “contribution in kind”.
[...]
EPO president António Campinos said the plan was a “clear vision of how we want our office to look in the future, and how we plan to achieve it”.
“We intend to be a more adaptable and agile organisation that can support inventors everywhere with improved and more responsive services,” he added.
The vision of the EPO (that its management has) is an illegal one; it involves lots of unqualified examiners, illegal and fake patents, as well as bonuses to those responsible for the corruption (cuts for the rest). To make matters worse, the EPO hopes to bypass courts and judges, in effect making a leapfrogging pipeline for litigation, not innovation.
“Small Software companies cannot afford to go to court or pay damages. Who is this software patent system for?”
“It makes the EPO come across as an enemy of science. Such an impression would not be incorrect.”This is Marco Schulze (Nightlabs Gmbh) quoted by Benjamin Henrion before the weekend because it was World SME Day. The EPO just doesn’t seem to care about SMEs; instead it exists to serve small- and medium-sized trolls. As we noted some months ago, the EPO made arrangements to collaborate with LESI. No kidding! The EPO is working with front groups of patent trolls and retweeted by EPO before the weekend were these three tweets [1, 2, 3] which congratulate trolls’ agenda. This was retweeted by EPO: “EBTC team attending a training session organised by the EPO @EPOorg and LES @LESIntl on “Succeeding at Technology Commercialisation and Negotiation” on 27th June 2019 in Basel, Switzerland…”
Also retweeted by EPO: “It is often a good idea to shift perspectives to get the full image. @EPOorg and @LESIntl workshop for tech commercialization for #SME .”
Not SMEs but trolls. Why does the EPO make it so obvious that it’s attacking Europe’s interests and liaising with patent trolls of the whole world? Does the EU need an EPO like this? No. It makes the EPO come across as an enemy of science. Such an impression would not be incorrect. █
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Posted in Europe, Patents at 2:05 am by Dr. Roy Schestowitz
With people like these in charge…
Summary: If the EPO is an examination office for patents, then it’s failing quite badly; the sole priority at the moment is prosecution, even if unsuccessful, resulting in extraordinary legal costs and not any innovation whatsoever (i.e. what the US patent system suffered from until AIA)
PATENT scope is being narrowed by the courts, but it’s being broadened by patent offices, which knowingly reduce legal certainty. They know that many patents will never be tested in courts, only outside courts (pre-settlements and cross-licensing). There’s lots more about US cases and laws in our latest daily links and it’s more of the same, i.e. courts throwing out lawsuits that involve US patents. Sometimes these patents don’t even reach the courts because they’re invalidated before a lawsuit can even be filed. Sometimes the plaintiff is forced to compensate the defendant. Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) are still being targeted by patent extremists, who habitually try to impede patent justice, i.e. invalidation of bogus ones. “On Monday, the U.S. Supreme Court granted a petition for writ of certiorari to take up Dex Media Inc. v. Click-to-Call Technologies,” Steve Brachmann (Watchtroll) wrote, “on appeal from the Court of Appeals for the Federal Circuit. The case will ask the nation’s highest court to determine whether 35 U.S.C. § 314(d), which states that decisions to institute inter partes review (IPR) proceedings at the Patent Trial and Appeal Board (PTAB) are final and non-appealable…” (e.g. to the Federal Circuit or even SCOTUS)
“Germany’s constitutional considerations are being assessed by the FCC, which is heckled and manipulated, as usual, by Team UPC.”Europe is a different story although similarities exist, e.g. appeals coming under attack by sending judges to Haar and limiting their authority. Can they put an end to European Patents being granted in defiance of the EPC? The EPO has already tried to replace them all with the UPC, but it isn’t happening. Germany’s constitutional considerations are being assessed by the FCC, which is heckled and manipulated, as usual, by Team UPC. Lies are being told about it every month. It has become rather sick.
The EPO is meanwhile proceeding with its suicide plan. Decline in patent quality (and more fake patents granted based on algorithms) is covered up while veteran examiners leave or get pushed out. The EPO has tweeted a link to this (warning: epo.org link) “vision of sustainability,” adding: “The EPO Strategic Plan 2023 has been unanimously adopted! Have a look at what we, together with the EPO’s stakeholders, envisage for the coming years…”
It’s “unanimously adopted” by patent maximalists; as we noted before, the EPO disregarded input in most European languages and from most stakeholders that include the public. The EPO only listens to the patenting and litigation ‘industry’, including the foreign one.
Microsoft and IBM, as expected, have decided to basically reclassify a lot of things to bypass 35 U.S.C. § 101 at the U.S. Patent and Trademark Office (USPTO). Team Campinos/Battistelli at the European Patent Office (EPO) actively encourages violating the EPC and their media ally, the patent trolls’ front group IAM, helps promote software patents in Europe using the “HEY HI” magic wand as recently as this week. To quote:
The UK’s IPO recently released a report on worldwide AI patenting activity, which it combined with a deep dive into the local landscape and how it compares to other countries. The study complements WIPO’s Technology Trends paper which we analysed to produce a top 10 takeaways piece earlier in the year.
The data analysed for the UKIPO report was pulled from the EPO’s PATSTAT product. The dataset consists of over 160,000 patent applications and 85,000 patent families.
[...]
IBM has the largest AI portfolio, trailed by Microsoft
Globally, IBM has the largest AI portfolio (by patent families). Although American companies take the top two spots, Asian businesses are highly represented in this list.
Those are just software patents. They’re still stockpiling these utterly invalid patents (would not withstand a court’s scrutiny) and patent offices profit from it.
Nutter McClennen & Fish LLP’s Alex Nagorniy [1, 2] recalled Supernus again — a subject revisited quite a few times recently. To quote the relevant part: “Supernus, the owner and assignee of the patent-at-issue, filed a Request for Continued Examination (“RCE”) on February 22, 2011 to remove the finality of a rejection during prosecution of U.S. Patent Application No 11/412,100 (“the ‘100 application”) and for consideration of additional information. On August 21, 2012, the EPO notified Supernus’ European Counsel that a Notice of Opposition was filed by Sandoz in an international application that claimed priority to the ‘100 application, and Supernus’ European Counsel informed Supernus of the EPO notification on September 11, 2012. On November 29, 2012—seventy-nine days after being informed or 100 days after the EPO notification of the Sandoz Opposition—Supernus submitted a supplemental IDS to the USPTO to inform them of the opposition and the documents submitted therein. After another round of prosecution, the USPTO issued a Notice of Allowance on February 4, 2014, and the ‘100 application issued as U.S. Patent No. 8,747,897 (“the ‘897 patent”) with a Patent Term Adjustment of 1,260 days.”
So they start the prosecution before the patents are even available.
Kristina Cornish and James Beal make money from litigation (at Kilburn & Strode LLP), so they won’t mind if EPO grants lots of fake patents, leading to frivolous lawsuits against innocent poor people. In the midst of this push for patents on buzzwords (from IAM’s party) there’s also advocacy of PACE (“accelerated prosecution of European patent applications” as they put it). Their opening presumption:
Accelerating the prosecution of a patent application can be useful.
To who?
Do we actually care about justice? It cannot be rushed.
James Ward and David Lewin (Haseltine Lake Kempner LLP) are meanwhile amplifying the EPO’s bundle of lies, which overlooks the fact that the Office grants lots of fake patents in order to fake ‘production’ figures. “According to the EPO Annual Report & Statistics for 2018, and earlier reports,” they wrote, “the median duration of first instance opposition procedures (months from expiry of the nine-month opposition term to the issue of the first instance decision) has fallen, particularly from 2016 to 2018.”
The EPO has been trying hard to discourage and suppress oppositions, as we’ve been showing for years. We’ve heard stories wherein Apple received European Patents despite examiners finding prior art. The EPO is in trouble because it won’t even listen to its own examiners. Here’s World Intellectual Property Review reporting on an obviously bogus Apple patent getting thrown out, for a change:
The European Patent Office (EPO) has dismissed an appeal from Apple, ruling that one of its applied-for patents is unpatentable…
Shades of that infamous patent on progress bars. We wrote about it several times (albeit many years ago).
It’s saddening to see the demise of science at the EPO. It’s like a bunch of clueless, nonscientific politicians and under-qualified career-climbing sociopaths have taken over. All they strive to do is to silence their critics; they’ve blocked Techrights since 2014. They later tried to do the same to IP Kat (until it stopped writing about the EPO’s abuses). The gag was a success.
All those CNIPA and SIPO (same thing, low patent quality) pieces in today’s IP Kat reveal the low levels and standards this kitten sank to. They/the blog used to actually care about quality and justice, but nowadays it’s run by extremists foaming at the mouth for lawsuits (their business model). The likes of Bristows (Annsley Merelle Ward) have been dominating the ‘Kat’, IP Kat , in this case reposting Alexander de Leeuw (Brinkhof). Well, as noted the other day European Patents are already being leveraged by foreign (US) giants, which claim to be worth hundreds of billions of dollars based on exploitative monopolies, to bully generics out of the market. Courts decide the lawsuits are baseless, frivolous. To quote:
“On 19 June 2019 the Dutch District Court of The Hague – the Court with exclusive jurisdiction over patent matters in the Netherlands – issued a decision in merits proceedings between Eli Lilly & Company and Fresenius Kabi regarding Fresenius’ pemetrexed product (a machine translation as published by Mattie de Koning of Simmons is found here).
The product ‘Pemetrexed Fresenius Kabi’ is practically identical to Lilly’s pemetrexed product Alimta, apart from the fact that it contains the tromethamine salt instead of the disodium salt of pemetrexed. The question in many of the pemetrexed proceedings has been whether a pemetrexed product with a different salt falls within the scope of Lilly’s patent, which specifically claims disodium as the salt to be used in a combination therapy with vitamin B12 or a derivative thereof.
Other than in almost all preceding decisions, the Dutch Court ruled that there is no infringement of Lilly’s patent because tromethamine cannot be considered equivalent to disodium. A copy of the Dutch decision can be found here.
Patents that are granted in Europe based on guesswork just to meet “targets” (or “production”) are doing great harm. Judges are not amused (another new case). It’s hardly surprising that Bristows tries hard to just replace the courts with kangaroo ones. Alan Johnson has just said [1, 2] that:
The BVerfG has today announced here that its Second Senate will hold an oral hearing in that first case (“ECB bond purchase program”) on 30 and 31 July 2019.
Nothing to do with the UPC; the title remains misleading, but it’s intended to make it seem as though a decision is imminent — a lie they have been telling for years.
Rose Hughes keeps writing about the EPO but never about scandals, corruption and crimes. IP Kat will never say anything negative about the EPO (as writers who did so have left; the pseudonym “Merpel” is hardly even used anymore). Never do they mention that this Board of Appeal lacks autonomy:
What do European patent attorneys have nightmares about? Trying to achieve re-establishment of rights at the EPO must be among the list. A decision of the Legal Board of Appeal (J 05/18), published this week, is a reminder that even with the best systems in place, an isolated error by any representative involved in the case may be catastrophic.
In some jurisdictions, the test for reinstating an application following refusal due to a missed deadline can be relatively low. At the UK IPO, for example, it is merely necessary to demonstrate that the failure to meet the deadline was “unintentional” (UKPA Section 20A). At the EPO, the test is considerably higher. The applicant must show that the deadline was missed despite “all due care” having been taken.
[...]
The board of appeal (BA) identified the misreading of the email regarding the applicants “interest in further processing” as the critical mistake leading to the missed deadline. The BA was of the view that the presence of a “well-functioning system” was therefore not decisive in this case. In the BA’s view, the letter checked by the US representative, did not give “the slightest indication that the EP representative had already been instructed to request further processing. Quite the contrary, this document clearly demonstrated that no action had been taken at that stage” (r.1.2.3). Furthermore, whilst such an obvious mistake by an assistant may have been excusable, the BA could not excuse a representative for making such a mistake (r.1.2.5).
Therefore, the isolated mistake on behalf of the US attorney in misreading the letter was considered to demonstrate lack of all due care, regardless of any systems that may have been in place. The appeal was dismissed.
Those who wonder why the above blog is full of UPC promotion and void of criticism (of union-busting, attacks on the Boards of Appeal etc.) are urged to see who left the blog and who joined it. This isn’t the same blog that it used to be. █
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Posted in Europe, Patents at 8:57 am by Dr. Roy Schestowitz
In April: The Staff Union of the European Patent Office (SUEPO) Warns About the Granting of Tens of Thousands of Invalid European Patents Every Year
Summary: “The European Patent Office helps your company to invent,” joke EPO insiders in relation to the dubious CQI programme; “We informed some of the major European patent applicants about a new project,” they said, “which is a diversionary tactic of the EPO management and now possibly a hobby horse of President António Campinos.”
Seeing how Battistelli ‘normalised’ Brimelow’s software patents “as such” (the predecessor’s mistake, which we criticised the most), and seeing how his successor calls everything "hey hi" (AI) or similar buzzwords, we were curious to see how such patent applications would be handled by examiners. Some told us that they loathed granting such patents but were under enormous pressure to allow them. We published several articles to that effect. What would happen if the applicants participated in examination? Or contrariwise, if examiners took the applicants’ side and helped them ‘trick’ the system (or violate the EPC)? One begins to wonder if the EPO is even a patent office any longer…
“Did you know? The European Patent Office helps companies to invent,” said examiners at the EPO, who circulated the following text among EPO stakeholders. We reproduce the text below.
The European Patent Office helps your company to invent
24.06.2019
Dear Sirs,
Is your company’s business model based on innovation but your employees (unfortunately) don’t have any inventive skills? Don’t worry. The European Patent Office (EPO) will help you out.
The latest creative “business idea” of the EPO’s top management can indeed turn (almost) any company into a high tech forge: EPO examiners are currently being trained to invent – for you!
You possibly belong to the large group of (old-fashioned) patent applicants who think that a patent examiner’s job is to assess whether somebody has made an invention or not. If so, you may expect a patent examiner to do an in-depth prior art search for a patent application, and then, after thorough examination of the technical matter, to either deliver a patent for an invention or refuse the application for the lack of it. But these days nothing could be further from the truth.
The EPO President and top managers enjoy immunity from jurisdiction and execution. These people are above the law, including national law and … patent law. Being one of these people – and knowing that you are above the law – you are free to do a lot of illegal and unethical things without taking any risk.
A current EPO pilot project is called “Collaborative Quality Improvements” (CQI). While users of the European patent system have become used to well sounding buzzwords whose true meaning is almost the exact opposite of what they appear to mean, they nevertheless seem to be buying the EPO’s we continue improving patent quality story. The CQI pilot was originally called “Team Collaboration Project” but later renamed. Its original aim was to boost productivity by at least 20%.
Several groups of examiners are currently working under the CQI umbrella, many against their will. The alleged objective of CQI is the improvement of patent quality by teamwork and knowledge sharing. This shall be achieved by more discussions within the three member examining divisions and regular CQI team meetings. But the unspoken objective of CQI is to increase the patent grant output. Examiners shall stop investing precious time in doing in-depth prior art searches. Instead, their managers expect them to base examination on the first potentially relevant document they come across. It is sufficient if that document, mainly its figures and some keywords, resembles a bit (just a little bit will be good enough these days) the patent application on the examiner’s desk. Ideally the examiner simply picks a document from a list generated by the EPO’s fully automated prior art search algorithm. That takes only a few minutes. The chosen document is then called the “closest prior art”.
In particular the COOs are pushing this new way of working. The first results of the CQI pilot were so promising that the EPO President mentioned them in an announcement to the staff earlier this year. VP1 presented the pilot to the Administrative Council in March 2019. The project is also mentioned in the (Draft) Strategic Plan 2023 (goal 3, key initiative 4) and shall be expanded to all EPO patent grant units.
Depending on the complexity of the technical field, a highly qualified, trained and specialized examiner needs in average 1 ½ to 2 ½ days to study a patent application and draft a search report and a detailed first reasoned assessment of the invention. But much of this effort shall in future be avoided. Prior art searching skills will no longer be required. Future EPO search reports may only contain some automatically retrieved documents. While the EPO’s automatic search algorithms are surely better than random number generators, the results they produce come rarely close to the truly relevant subject-matter, the genuine “closest prior art”.
Search reports will continue being published as usual, without any hint that the search process has been “streamlined”. The EPO’s obligation towards the other stakeholders, including your competitors and the public, are then formally met. The EPO will nevertheless charge you the full search fee.
But you will get something in return: instead of examining the patent application in the light of the prior art indicated in the search report (which can be rather irrelevant prior art, as explained above), the examiner will, during the examination phase, quickly read through the patent application and create your invention. This is sometimes achieved through collaborative brainstorming in pairs consisting of the examiner and the chairman of the examining division (that’s where the term “Team Collaboration Project” comes from). The aim of the exercise is to reach a horse deal for an “EPO invention”. When agreement is reached, you will receive a phone call from the examiner with a text proposal for a patent. The examiner will try to talk you into his proposal. All you need to do is to accept it. The proposal will then turn into your horse deal. But you won’t be aware of it since the examiner is not supposed to tell you that your patent application is being treated under the new work scheme. Of course, your competitors won’t know either.
When an automatically retrieved and rather irrelevant document is used as the “closest prior art”, the result of the consecutive patent examination will of course be arbitrary. The patents granted on such insecure basis will not provide legal certainty. But the EPO’s new business model is based on output (and bonuses for top managers) instead of honest work for the public. And why should you bother about carefully examining patent applications if you run a patent office being free to ignore the patent law?
We wish you a fruitful future cooperation with your business partner, the European Patent Office.
Yours faithfully,
Patent Examiners at the European Patent Office
Contact: https://www.epo.org/service-support/contact-us.html
So there you have it. The EPO is in gross violation of the EPC. Who’s going to hold anyone accountable here? █
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