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08.31.19

The Judges of the Boards of Appeal Are Still Controlled by the European Patent Office and European Patent Quality is Therefore in a Freefall

Posted in Europe, Law, Patents at 1:39 pm by Dr. Roy Schestowitz

All the Boards are swinging off the Office, which they were supposed to govern by enforcing the EPC (instead of appeasing the debased President of the Office)

Canada's Wonderland

Summary: The lack of justice at the EPO is very much profound and “Munich is officially the new Eastern District of Texas—but on steroids,” according to Florian Müller

THE European Patent Office (EPO) is running out of time. António Campinos kept Team Battistelli in tact and he maintains all the same policies. This end-of-week tweet said they “modernise our [EPO's] IT systems,” but actually they’re wasting a quarter billion euros on a system that does not work, then canning it silently. Leaked details on CQI have revealed that today’s EPO is all about patent maximalism, nothing else! Grant, grant, grant! If in doubt, grant! It’s a credibility crisis. The EPO became like a ‘diploma mill’, with officials who are alleged to have faked their degrees.

“It’s a credibility crisis.”The EPO’s overzealous approach towards patenting (or patent policy/scope) has attracted growing levels — as well as severity — of scrutiny. German blogger Florian Müller wrote some blog posts about it this past week and also a bunch of "tweets" (not formal), including unprecedented rants (there are more, but less noteworthy, e.g. [1, 2, 3, 4]).

“Munich court will decide tomorrow at noon,” he said. “If this hearing ends the way the first hour went, Munich is officially the new Eastern District of Texas—but on steroids,” he added.

We’ve warned about it for years. And now it’s undeniably happening!

“The EPO’s overzealous approach towards patenting (or patent policy/scope) has attracted growing levels — as well as severity — of scrutiny.”“Pro-patentee extremism on full display at Munich I Regional Court,” he later heralded. “The Munich court appears extraordinarily eager to order a patent injunction against Daimler. They don’t want anything to get in the way. Gotta grant them one thing though: protectionists they are not,” he added. In another tweet he said: “The Munich court won’t adjudicate Nokia‘s anti-antisuit motion against Continental AG from the bench. They‘re going to decide after further deliberation.”

He later summarised everything in the blog posts [1,2,3] below. They’e more detailed than “tweets” and there are official documents there as well. These “tweets” were tucked into some of the articles, which is fine (it takes longer to write long-form articles than mere “tweets”). Müller generally shares our views on the EPO. The EPO isn’t good for Germany or for the German economy; it’s only good for some German or Germany-based (or with branches in Germany) law firms.

As long as the EPO keeps granting software patents in Europe we’ll continue to see the likes of Müller complaining. After all, actual software developers do not want and do not need such patents.

Before the weekend the EPO tweeted: “Germany is the established leader in self-driving vehicle innovation in Europe. But would you have predicted the second- and third-placed countries?”

“The EPO isn’t good for Germany or for the German economy; it’s only good for some German or Germany-based (or with branches in Germany) law firms.”These are mostly software patents on stuff like computer vision and geometry, i.e. maths. Fake patents and easily-debunked/easy-to-invalidate patents oughtn’t be granted in the first place, but the EPO keeps promoting a bunch of buzzwords like “SDV”. In Singapore they like to speak of “FinTech” and even accelerate patent applications that adopt this buzzword.

Days ago a bunch of Asian sites (AsiaOne, Viet Nam News and Business Insider in Malaysia) said that “[t]he European Patent Office (EPO) has seen a growing number of patent applications from Singapore” (all in all, patent applications are decreasing in number, so Christoph Ernst et al would rather cherry-pick nations for the appearance of ‘growth’).

All these sites have the same article, which is a puff piece in which Christoph Ernst reveals himself as ‘tool’ of patent maximalists. To quote a couple of portions:

Dr Christoph Ernst, Vice President of the EPO, Directorate General Legal and International Affairs, said: “Asia is a major centre of innovation worldwide and there is a rapidly growing number of patents from this region. It has become evident that the EOP has been receiving a rapidly growing number of patent applications from this (Asian) region.”

[...]

Dr Ernst said the collaboration between IPOS and EPO has strengthened over the years. About 53% of the 170,000 patent applications received in recent years originated from outside the EU member state system — mainly from the United States, Japan, China and Korea. “Particularly noteworthy is that patent applications originating from Singapore increased by 20% last year to now 523 applications,” he added.

Why would IPOS want to associate with corrupt EPO officials? How did this article come about? It’s pure marketing. It’s also somewhat misleading. But this is what we’ve come to expect from mainstream media; it ignores EPO corruption and only ever says good things about the EPO. So do most law firms.

One booster of the UPC has just promoted through Lexology its article about appeal procedures changing:

On 1 January 2020, the rules governing procedure in ‘Appeals of Decisions’ made by the European Patent Office (EPO) will be changed. The new rules will bring in a host of changes relating to the procedure for appeals. One of the most significant changes will see a restriction on arguments, requests, amendments and evidence that appellants can submit. Appellants involved in existing appeals proceedings (and indeed anyone involved in ongoing examination or opposition proceedings) may want to consider taking action before the new rules come into force to ensure they have the best chance of success in a current or future appeal.

Most appeals at the EPO are from decisions of the Examining Division or the Opposition Division. The Examining Division has primary responsibility for determining whether an invention covered by a patent application is new, inventive, and meets the other criteria of the European Patent Convention (EPC) required for grant of a patent. If the Examining Division refuses to grant an application with an acceptable scope an appeal can be filed by the applicant.

David Lewin, James Ward, David Brown, Robert Margue and David O’Connell (Haseltine Lake Kempner LLP) also wrote about it a few days ago and they’re missing the point — perhaps intentionally — that these Boards of Appeal have zero independence. From Mondaq:

The “convergent approach” has the potential to require patentees to formulate their best sets of claims as the Main and Auxiliary Requests during the first-instance procedure, possibly allowing only necessary adjustments (a) in reaction to the first-instance decision (first level), (b) following developments during the early part of the appeal procedure (second level), and (c) in final preparation for, and at, the appeal hearing (third level).

[...]

The general applicability of the second level of the “convergent approach” from 1 January 2020 urges all parties to EPO appeal proceedings to check that all necessary documents, particularly a patentee’s best claim requests and an opponent’s best attacks, have been provided, and to remedy any deficiencies before 31 December 2019.

Also in Mondaq their colleague (co-author of the above) published “Is A Prima Facie Inadmissible Appeal An Appeal? And If It Is, Where Is It?”

Robert Margue (Haseltine Lake Kempner LLP) belatedly weighed in on the notorious case that showed the Boards’ lack of independence and coverup that ensued.

The Enlarged Board of Appeal of the EPO recently had to decide (G 2/19) an intriguing question arising from the relocation of the Boards of Appeal to the municipality of Haar in the Munich district, which lies outside the boundaries of the city of Munich. The question arose on the back of an Appeal filed by a third party against the grant of a European patent, which had the aim of correcting the allegedly unjustified grant of unclear patent claims.

European Patent EP 2 378 735 B1 was granted on 8th February 2017. During examination proceedings prior to grant of the patent, 3rd party observations had been filed on several occasions by European Patent Attorney P in accordance with Art. 115 EPC. According to the second sentence of this Article, any person who files 3rd party observations does not become party to the proceedings. The only party in the examination proceedings is the sole applicant.

We wrote a whole bunch of posts about the composition of the Board. It refused to even deal with the key question!

“…inverting narratives means that a defender/defendant is framed as an “attacker”.”Going back to Lexology, the other day it promoted this misleading post that frames challenges to weak/bogus patents as “attacks”. It’s that same old propagandistic spin; challenging likely fake patents is not an “attack”; the attacks are these patents being used for lawsuits; inverting narratives means that a defender/defendant is framed as an “attacker”. Here they go again:

On 30 July, the Court of Appeal of The Hague ruled on the formal entitlement to priority following from a US provisional patent application (judgment in Dutch here). The attack on priority in this case is part of a recent trend by parties in patent litigation which aims to challenge entitlement to invoke priority under the Paris Convention and the European Patent Convention.

We’ve meanwhile noticed the same inversion of roles in Bloomberg’s patent maximalists’ section. It wrote about the Patent Trial and Appeal Board (PTAB) that it’s a “Patent Attack” (actually, PTAB helps prevent frivolous attacks). To quote:

New Patent and Trademark Office guidance discouraging simultaneous attacks on the same patent has left practitioners uncertain about using that strategy to seek administrative reviews.

The agency in July said parties filing more than one validity challenge against a patent “at or about the same time” for a Patent Trial and Appeal Board review should explain the differences between and rank them in order of importance. Filing a single petition “should be sufficient” in most situations, the agency said.

Some practitioners are worried that the PTAB may start dismissing some legitimate challenges just because parties file several petitions.

“The European Patent Office (EPO) is not supposed to control any Boards of Appeal, but right now it controls all of them. It even ‘made an example’ of Patrick Corcoran.”Müller bragged that he had been mentioned in this article. “Quotes me as saying there’s no hard evidence of widespread #PTAB abuse,” he tweeted, “new rules to reward those who manage to weak patent claims granted by #USPTO, doesn’t incentivize innovation…”

Going back to the EPO, its PTAB equivalent (BoA) is not functioning. The EPO is certainly granting far too many fake patents and it’s being noticed, albeit not by the Boards. The European Patent Office (EPO) is not supposed to control any Boards of Appeal, but right now it controls all of them. It even ‘made an example’ of Patrick Corcoran. So there’s an actual bite, not just barking.

Three days ago Inventiva bragged about a new European Patent [1, 2]. But does Inventiva know that many European Patents are fake and not legal? Does it realise that many of these patents aren’t usable in court?

On the same day Bart van Wezenbeek wrote in Kluwer Patent Blog about Forschungszentrum Jülich GmbH vs Advanced Neuromodulation Systems, Inc.

Here’s what happened:

The European patent was opposed by the appellant on the basis of lack of novelty and inventive step. Although the opposition division raised of its own volition an objection under Art. 53(c) EPC they decided to reject the opposition. The opponent appealed and argued that the invention would not be patentable on the basis of the aforementioned grounds. In the summons to the oral proceedings the Board of Appeal mentioned a possible new ground based on lack of industrial applicability. On the basis of the preliminary opinion the patentee filed 4 auxiliary requests. During oral proceedings the Board mentioned that it might change its opinion on the basis of the case law (T 775/97), whereupon a new auxiliary request was filed.

Had examiners been given more time to assess such patents, there wouldn’t be a backlog of about 10,000 (no kidding!) appeals. This just isn’t sustainable.

Physician’s Weekly has just reposted Reuters. Likely fake (bogus) patents are being assessed: “Alexion also awaits an impending European Patent Office (EPO) decision on its patent applications for Soliris, to extend the drug’s PNH market exclusivity in the European Union to 2027.”

“If Europe fails to maintain the high patent quality it was once renowned for, it won’t serve science and innovation. Instead it’ll serve law firms and litigation.”What we’re seeing right now in Europe is a bunch of errors being repeated. They replicate the US patent system and American chaos as it were a decade back when patent trolls were thriving and patent justice was too expensive and thus a rarity (no IPRs, no PTAB). The inter partes reviews (IPRs) help eliminate bad patents more trivially and quickly, on the cheap…

Patent maximalists are losing everything in the US. Watch them at an extremist site, Watchtroll. Greedy law firms that hate science write there (latest headlines are “Alice: Benevolent Despot or Tyrant? Analyzing Five Years of Case Law Since Alice v. CLS Bank”, “Latest Federal Circuit Ruling on 101 Strikes Down Mallinckrodt Method of Treatment Claims; Newman Dissents” and “Have Federal Circuit Judges Summarily Affirmed Your Patent Appeal Without Explaining Why? Tell SCOTUS”). Robert Sachs has let the mask slip; his hatred of Alice/Section 101 he now unleashes openly at Watchtroll, Nathan Lewin is using Watchtroll to attack the Federal Circuit and that third one is familiar. Agenda such as this was brought back by Dennis Crouch the other day (he had been doing it for years). They try to reduce patent quality again.

If Europe fails to maintain the high patent quality it was once renowned for, it won’t serve science and innovation. Instead it’ll serve law firms and litigation.

Related/contextual items from the news:

  1. Munich court hell-bent on pre-emptive strike against Judge Koh’s jurisdiction over Continental antisuit injunction motion against Nokia

    While I doubt rather strongly that the Avanci patent pool firm’s U.S. venue transfer motion (from San Jose to Dallas) will succeed, Avanci contributor Nokia may help that entire group of patent holders (including, inter alia, Qualcomm) avoid the October 2021 FRAND/antitrust trial in the Northern District of California altogether. Nokia currently has the upper hand in Germany over both Daimler and one of its key suppliers of telematics control units, Continental, and may get decisive leverage from patent injunctions–probably in Munich before it does anywhere else–long before the end of the two long years, plus two months, that the build-up to the trial in the Northern District of California is still going to take.

    [...]

    The panel of three judges will announce a decision at noon (Central European Summer Time) tomorrow. As I’ll explain further below, the court hasn’t changed its mind about the appropriateness of the existing anti-antisuit-injunction injunction (“AAII”) against CAS, but the fate of Nokia’ severed pursuit of the same kind of AAII against Continental AG now turns on the question of whether the group parent, though it would undoubtedly be considered a real party in interest by U.S. standards, can actually be enjoined with respect to a motion brought by an indirect (like six degrees removed) subsidiary.

  2. Continental seeks to keep Avanci case in San Jose, says it “will have immediate and lasting effects on the whole IoT industry [...] around the world”

    In a few hours the Munich I Regional Court will finally hear oral argument regarding Nokia’s motion for an anti-antisuit-injunction injunction (“AAII”) against automotive industry supplier Continental. In the post I just linked to, I stated the correct weekday (Thursday) but missed the correct date by one day (meanwhile fixed).

    In the antisuit context, I’ve previously expressed some disappointment that Continental didn’t make it structurally easier for Judge Koh (such as by choosing the ideal plaintiffs and movants from that large corporate group) to grant the U.S. antisuit motion. The motion and the related reply brief made some valid points, but also contained nonsensical parts. And, quite frankly, I don’t understand why they didn’t counter Nokia’s denial of functional identity of the parties by pointing to Nokia’s own argument in the German AAII case, where Nokia essentially tells the court that Continental AG, the Germany-based group parent, controls all Continental entities at any rate–in which case functional identity (between the parties in Continental v. Avanci et al. in San Jose and the German Nokia v. Daimler–as well as recently-filed Sharp v. Daimler–cases) becomes a matter of merely applying the logic of the U.S. customer suit exception here.

    But I must give Continental’s U.S. lawyers credit for now having filed the strongest and most thoroughly researched opposition brief to a venue transfer motion that I’ve seen in almost a decade of watching these kinds of cases. It’s roughly three times as fact-rich as the average opposition brief of this kind that I’ve seen in high-profile cases. While Continental’s filings in the antisuit context contain passages that attempt to substitute words for facts, the opposition brief to Avanci’s motion to transfer the case out of Judge Lucy H. Koh’s court in San Jose (Northern District of California) and to the Northern District of Texas excels with a record density of relevant facts…

  3. Nokia wins again: Munich court issues additional anti-antisuit injunction against Continental’s German parent company to stop pursuit of U.S. antisuit injunction

    Yesterday I attended and reported in detail on the Munich I Regional Court’s preliminary-injunction hearing in Nokia v. Continental AG. Last month Nokia had already obtained an against Continental Automotive Systems, Inc. (“CAS”; not to be confused for the international sports tribunal) of Auburn Hills, MI, the plaintiff in the Northern District of California FRAND/antitrust lawsuit against the Avanci patent pool firm, whose contributors include Nokia, Continental, and various other patent holders. Today the court doubled down on Continental by additionally granting Nokia an AAII against Continental AG, the Hanover, Germany-based parent company of the entire Continental group.

    This is a very significant victory for Nokia’s litigation team, particularly its European head of litigation, Dr. Clemens-August Heusch, and the Finnish mobile company’s outside counsel from the Arnold & Ruess firm: lead counsel Dr. Cordula Schumacher; Dr. Arno Risse (“Riße” in German), the mastermind behind the AAII initiative; and Tim Smentkowski.

    Today’s AAII, which Judge Dr. Hubertus Schacht announced in his chambers (with only one other person than me listening), requires the German parent company to use its influence over its indirect U.S. subsidiary in order to cause it to comply with the AAII already in place against CAS. This means Continental AG must tell a direct subsidiary to tell an indirect subsidiary to tell another indirect subsidiary–and so forth–until at the end of that enforcement chain CAS is directed to withdraw the fully-briefed U.S. motion for an antisuit injunction.

The Admission Phase/Stage: Even Team UPC is Coming to Grips With the UPC’s Demise

Posted in Europe, Patents at 8:50 am by Dr. Roy Schestowitz

Months ago (acceptance): Even Joff Wild and the Patent Trolls’ Lobby Finally Admit Unitary Patent (UPC) is Dead

Admission

Summary: With a growing number of barriers to ratification and loss of enthusiasm alike, pro-UPC AstroTurfing has been diminished to almost nothing but deliberate lies, or at least silence

TEAM UPC had long faked ‘momentum’; it even admitted so last month.

The European Patent Office (EPO) quit talking about the UPC, Battistelli went ‘undercover’ at CEIPI (some believe he ‘stationed’ himself there for a UPC role), and António Campinos barely mentioned the ‘unitary’ anything this year (he did mention it a few times last year). The EPO has basically quit promoting the UPC. Is Team UPC close to giving up as well?

“The UK has said that the UPC cannot come into operation before Brexit in October, as industry experts warn that the long-held plan risks losing momentum altogether,” Max Walters tweeted. That UKIPO is unmasked as a moderate UPC booster is a disgrace, but more interesting in the Walters article is the improvement over his colleague's one-sided puff pieces, which are loudspeakers for Team UPC. This article is better because at least it quotes a couple of moderate UPC sceptics this time around, unlike the last time.

“Is Team UPC close to giving up as well?”The main issue we have is that it makes the UPC sound like a “matter of time”, but it’s dead. Managing IP won’t say it because of its business model. Managing IP has just bragged about being the “official Congress News publisher” at a lobbying platform of patent extremists and it did the same with UPC events. Same issue in IP Kat.

“Alex Robinson, partner at patent attorney firm Mathys & Squire in London” is quoted towards the end (that’s Team UPC itself!) and he too admits what other Team UPC fanatics continue to deny; the UPC complaint isn’t the sole barrier anymore because the German government too has lost interest, irrespective of the FCC. Here are some portions from the article:

The UK has said that the UPC cannot come into operation before Brexit in October, as industry experts warn that the long-held plan risks losing momentum altogether

Sources say a UPC featuring the UK is now unlikely given the UK’s pursuit of a ‘hard Brexit’.

Luke McDonagh, senior lecturer at City University in London – and who has been following UPC matters closely – says if there is a ‘no deal’ then there is “very little chance the UK will remain in the UPC”.

Thorsten Bausch, partner at Hoffman Eitle in Munich, agrees and says that the UK’s participation will be “extremely difficult – if not impossible – for political and legal reasons”.

[...]

McDonagh adds: “Meanwhile, the German Constitutional challenge to the UPC has yet to be resolved. There is a danger that the UPC project has lost crucial momentum.”

Alex Robinson, partner at patent attorney firm Mathys & Squire in London, points out that even if the October 31 date is extended and the Constitutional complaint resolved, the German government has confirmed that it won’t ratify the UPC Agreement until the effects of Brexit are known.

When even Team UPC admits the issue (impasse) it is becoming ever more apparent that the UPC is basically doomed. Even its loudest cheerleaders are belatedly digesting this thing called… facts.

Linux is Not Free/Libre If DRM is Adopted and Open Source is Meaningless in the Age of Openwashing

Posted in Deception, DRM, Free/Libre Software, GNU/Linux, Google, Kernel, Microsoft, Red Hat, Vista, Windows at 7:33 am by Dr. Roy Schestowitz

Welcome to ‘Linux Vista’ and Open-for-business Source (for some parts, for the openwashing factor)

HDCP

Summary: Free/Open Source software (FOSS) and (GNU/)Linux don’t quite change the world as much as they’re being changed by monopolies (software, hardware and entertainment) to suit their agenda and eliminate any remnants of freedom

WHEN we say that Software Freedom is under attack we mean exactly that. We’re under attack; our rights and our dignity are under a heavy assault. We’re gradually losing control of everything digital. We become enslaved by technology, which rather than emancipate people devolves into a tool of oppression and imprisonment. Surveillance is one among many aspects of this.

“We become enslaved by technology, which rather than emancipate people devolves into a tool of oppression and imprisonment.”The harms of DRM are well documented, as are the effects of the DMCA. In the distant past (Windows Vista era) Microsoft colluded with hardware companies to put DRM in Windows and nowadays Google does the same to Linux (having already done the same to the WWW along with Microsoft and Neflix for the most part). It’s the evil DRM, not Direct Rendering (same acronym), which is mostly benign. According to this new post from Phoronix, AMD is doing the 'Intel thing' (which has done that with Vista/Microsoft and ChromeOS/Google). First the back doors (ME), now this…

To quote:

AMD developers have sent out their latest open-source Linux patches doing their kernel driver share for enabling High-bandwidth Digital Content Protection (HDCP) support for version 1.4 and newer.

While seeing HDCP support patches for open-source graphics drivers does irritate many in the community, similar to other open-source drivers supporting HDCP, this is only one part of the content protection puzzle. These patches alone do not impose any restrictions on users or other impairments, but mainly comes down to such proprietary software wanting to make use of HDCP capabilities on Linux. Open-source video players and the like can continue to enjoy GPU-based video acceleration uninterrupted.

[...]

Intel’s open-source Linux graphics driver only began seeing HDCP work relatively recently when Google engineers were interested with the Intel support in the context of Chromebook support.

All the news sites are still busy writing puff pieces about exFAT (at this stage we just skip these repetitive articles); no attention has been paid (or will be paid) to the issue above — an issue we investigated by analysing the kernel some months ago.

“The harms of DRM are well documented, as are the effects of the DMCA.”Make no mistake about it; Google surely spreads Linux, but at the same time it changes it in troubling ways. Yesterday/earlier today opensource.com promoted Google’s openwashing of its surveillance code — a subject that we covered in our previous Openwashing Report or two. To quote:

Developers at search engine giant Google have been busy on the open source front lately. In the last two weeks, they’ve released two very different systems as open source.

The first of those is the speech engine for Live Transcribe, a speech recognition and transcription tool for Android, which “uses machine learning algorithms to turn audio into real-time captions” on mobile devices. Google’s announcement states it is making Live Transcribe open source to “let any developer deliver captions for long-form conversations.”

Google is using this for surveillance, but we’re supposed to be all cheerful and gleeful because “open!”

“Red Hat’s opensource.com (above) actively participates in openwashing and Red Hat as a whole seem to have hired too many people from Microsoft, including managers.”We’ll do another Openwashing Report later this weekend. It’s a growing problem. It’s telling us that “open source” has “won”; what they mean by “won”, however, is co-opted by proprietary frameworks such as AWS, Azure, various spying devices that are dubbed “smart” and even totally meaningless mumbo-jumbo like "serverless". Some of our readers keep insisting that it’s time for the FSF to fight back.

Red Hat’s opensource.com (above) actively participates in openwashing and Red Hat as a whole seem to have hired too many people from Microsoft, including managers. It nearly sold itself to Microsoft and it promoted an Azure thing just before the weekend (we mentioned this in our daily links and it's not the first time).

What is going on? Have we lost sight of the fact that some companies strive to destroy Software Freedom?

“How long before we can call it “exterminate” or “extinguish”?”opensource.com has just published this article from Karl Fogel and James Vasile (we assume one of them is from Microsoft, but the bio was left empty). Microsoft executives — i.e. those who attack Open Source more than anyone — now try to hijack the narrative around its competition (speaking ‘for’ what it’s attacking). See paragraph 4: “Now we have a chance to have this discussion in a more regular and complete way: Microsoft has asked us to do a series of blog posts about open source, and the request was essentially “help organizations get better at open source” (not a direct quote, but a reasonable summary). They were very clear about the series being independent; they did not want editorial control and specifically did not want to be involved in any pre-approval before we publish a post. It goes without saying, but we’ll say it anyway, just so there’s no doubt, that the views we express in the series may or may not be shared by Microsoft.”

So a site called opensource.com is now being composed by/for Microsoft. How long before we can call it “exterminate” or “extinguish”? When will Microsoft ‘own’ Linux as much as it ‘owns’ the Linux Foundation? The Foundation has just outsourced some more projects to GitHub, i.e. to Microsoft. We put links about that in our daily roundup.

We’re being told that FOSS “won”; actually, software monopolies have “won” (read: dominate) FOSS. Who’s in control?

Links 31/8/2019: etcd 3.4, ACRN 1.2, Wine 4.15

Posted in News Roundup at 5:23 am by Dr. Roy Schestowitz

  • GNU/Linux

    • Desktop

      • Best Linux Distributions For Everyone in 2019

        There are a lot of Linux distributions. I can’t even think of coming up with an exact number because you would find loads of Linux distros that differ from one another in one way or the other.

        Some of them just turn out to be a clone of one another while some of them tend to be unique. So, it’s kind of a mess – but that is the beauty of Linux.

        Fret not, even though there are thousands of distributions around, in this article, I have compiled a list of the best Linux distros available right now. Of course, the list can be subjective. But, here, we try to categorize the distros – so there’s something for everyone.

    • Server

      • Announcing etcd 3.4

        etcd v3.4 includes a number of performance improvements for large scale Kubernetes workloads.

        In particular, etcd experienced performance issues with a large number of concurrent read transactions even when there is no write (e.g. “read-only range request … took too long to execute”). Previously, the storage backend commit operation on pending writes blocks incoming read transactions, even when there was no pending write. Now, the commit does not block reads which improve long-running read transaction performance.

        We further made backend read transactions fully concurrent. Previously, ongoing long-running read transactions block writes and upcoming reads. With this change, write throughput is increased by 70% and P99 write latency is reduced by 90% in the presence of long-running reads. We also ran Kubernetes 5000-node scalability test on GCE with this change and observed similar improvements. For example, in the very beginning of the test where there are a lot of long-running “LIST pods”, the P99 latency of “POST clusterrolebindings” is reduced by 97.4%. This non-blocking read transaction is now used for compaction, which, combined with the reduced compaction batch size, reduces the P99 server request latency during compaction.

        More improvements have been made to lease storage. We enhanced lease expire/revoke performance by storing lease objects more efficiently, and made lease look-up operation non-blocking with current lease grant/revoke operation. And etcd v3.4 introduces lease checkpoint as an experimental feature to persist remaining time-to-live values through consensus. This ensures short-lived lease objects are not auto-renewed after leadership election. This also prevents lease object pile-up when the time-to-live value is relatively large (e.g. 1-hour TTL never expired in Kubernetes use case).

      • 5 questions everyone should ask about microservices

        The basis of the question is uncertainty in what’s going to happen once they start decomposing existing monolithic applications in favor of microservices where possible. What we need to understand is that the goal of splitting out these services is to favor deployment speed over API invocation speed.

        The main reason to split off microservices out of an existing monolith should be to isolate the development of the service within a team, completely separate from the application development team. The service engineering team can now operate at their own intervals, deploying changes weekly, daily, or even hourly if a noteworthy Common Vulnerabilities and Exposures (CVE) is applicable.

        The penalty for unknown network invocations is the trade-off to your monolith’s highly regimented deployment requirements that cause it to move at two- to three-month deployment intervals. Now, with microservice teams, you can react quicker to the business, competition, and security demands with faster delivery intervals. Equally critical for network invocations is to look closely at how course-grained your network calls become in this new distributed architecture.

      • Stackrox Launches Kubernetes Security Platform Version 2.0

        StackRox, the security for holders and Kubernetes company, declared the general accessibility of form 2.5 of the StackRox Kubernetes Security Platform. The new form incorporates upgraded arrangement and runtime controls that empower organizations to flawlessly authorize security controls to improve use cases, including threat detection, network segmentation, configuration management, and vulnerability management.

      • Pete Zaitcev: Docker Block Storage… say what again?

        Okay. Since they talk about consistency and replication together, this thing probably provides actual service, in addition to the necessary orchestration. Kind of the ill-fated Sheepdog. They may under-estimate the amount of work necesary, sure. Look no further than Ceph RBD. Remember how much work it took for a genius like Sage? But a certain arrogance is essential in a start-up, and Rancher only employs 150 people.

        Also, nobody is dumb enough to write orchestration in Go, right? So this probably is not just a layer on top of Ceph or whatever.

        Well, it’s still possible that it’s merely an in-house equivalent of OpenStack Cinder, and they want it in Go because they are a Go house and if you have a hammer everything looks like a nail.

        Either way, here’s the main question: what does block storage have to do with Docker?

      • Changing the face of computing: UNIX turns 50

        In the late 1960s, a small team of programmers was aspiring to write a multi-tasking, multi-user operating system. Then in August 1969 Ken Thompson, a programmer at AT&T Bell Laboratories, started development of the first-ever version of the UNIX operating system (OS).

        Over the next few years, he and his colleagues Dennis Ritchie, Brian Kernighan, and others developed both this and the C-programming language. As the UNIX OS celebrates its 50th birthday, let’s take a moment to reflect on its impact on the world we live in today.

      • The Legendary OS once kicked by many big companies turns 50. The Story.

        Maybe its pervasiveness has long obscured its roots. But Unix, the OS which proves to be legendary and, in one derivative or another, powers nearly all smartphones sold worldwide, came 50 years ago from the failure of an ambitious project involving titans like GE, Bell Labs, and MIT.

        [...]

        Still, it was something to work on, and as long as Bell Labs was working on Multics, they would also have a $7 million mainframe computer to play around with in their spare time. Dennis Ritchie, one of the programmers working on Multics, later said they all felt some stake in the victory of the project, even though they knew the odds of that success were exceedingly remote.

        Cancellation of Multics meant the end of the only project that the programmers in the Computer science department had to work on—and it also meant the loss of the only computer in the Computer science department. After the GE 645 mainframe was taken apart and hauled off, the computer science department’s resources were reduced to little more than office supplies and a few terminals.

    • Audiocasts/Shows

    • Kernel Space

      • Petty gripes about kernel versioning and tarballs

        Today in gripes that about 5 people including me will have: it’s really difficult to find a unified way to get a tarball from something on kernel.org to the Fedora dist-git in a way that meets the Fedora packaging guidelines.

        Let’s start with my pettiest gripe: the lack of a trailing 0 on official releases. Official kernel releases are usually versioned like 5.1, 5.2. Note the lack of a trailing 0 there. Stable updates are 5.2.3, 5.2.3 etc. This would be okay except for if you look at the Makefile for stable releases, there’s still a 0 in the SUBLEVEL filed where stable updates come from. “But Laura, there’s macros to take care of that” yes, in the kernel itself. I’m working on going from the kernel to dist-git so this means I’m writing scripts which have to re-do this work and think about this when generating a version string. If I wanted to be really petty, I’d start a conversation about changing the kernel versioning completely. The 5.0 numbering means nothing. The bump from 4.x to 5.x was because the second number was getting to high. The numbers mean nothing at this point except they keep getting larger. I’d love to see the numbers correspond to a date since the kernel is basically on a time base release at this point anyway.

        Fedora has packaging guidelines describing how packages should work. It’s to the benefit of everyone to follow these guidelines. The guidelines for Source recommend using tarballs and give a few other suggestions for how to set Source0 appropriately.

        The Fedora kernel generates 3 types of kernel releases: official releases (v5.2, v5.2.1), rc releases (v5.3-rc6), and snapshots that don’t correspond to an official tag. Currently, the way we generate all these is starting with the base (e.g. 5.2) and then applying a patch on top of it (patch-5.3-rc6, patch-5.2.10). We do this by grabbing the individual tarballs and patches from kernel.org.

      • Microsoft Will Publish exFAT Spec, but Linux Devs Aren’t Happy

        Greg Kroah-Hartman, who maintains the Linux -stable branch, defended the decision to take the code into staging, despite its current condition, writing: “I know the code is horrible, but I will gladly take horrible code into staging. If it bothers you, just please ignore it.”

        Stephen J. Vaughan-Nichols writes that the move could be read as a partial answer to a request made by Bradley Kuhn when Microsoft joined the Open Invention Network (OIN)’s patent non-aggression pact last year. After noting that Microsoft had specifically shaken down Linux product vendors for licensing fees related to exFAT in the past, he called on Microsoft to “submit to upstream the exfat code themselves under GPLv2-or-later.” Microsoft has not taken this step. Instead, it is publishing the specification and supports the work to create a Linux driver that will add exFAT support to the kernel at a future time. While Microsoft is supporting this effort, it expects the actual code submission to be performed by others.

      • The Initial exFAT Driver Queued For Introduction With The Linux 5.4 Kernel
      • VirtIO-FS File-System Driver Being Added For Linux 5.4

        In addition to the initial exFAT driver landing for Linux 5.4, also slated to land for this next kernel cycle is the VirtIO-FS file-system driver.

        The VirtIO-FS driver is a FUSE-based file-system implementation designed for guest to/from host file-system sharing for VIRTIO para-virtualized devices. VirtIO-FS aims to provide easier host to/from guest file sharing without requiring a network file-system and other configuration steps.

      • Linux Foundation

        • ACRN Project Releases Version 1.2

          We are pleased to announce the release of ACRN™ Hypervisor version 1.2 which introduces a number of new features.

        • ACRN 1.2 Hypervisor Released With Kata Containers Support, Secure Boot Capability

          The ACRN hypervisor that was open-sourced by Intel last year as a small footprint virtualization hypervisor focused on real-time computing and safety-critical applications for IoT and related embedded use-cases is up to version 1.2.

          ACRN, which continues to function as a Linux Foundation project, reached version 1.2 yesterday with new capabilities. Perhaps most notably, UEFI Secure Boot is now supported by ACRN 1.2 as part of its new OVMF support for serving as a virtual boot-loader to launch Clear Linux / VxWorks / Windows. There is also support for Kata Containers, another innovation originally out of Intel’s open-source group.

      • Graphics Stack

        • Waypipe Is Successfully Working For This Network-Transparent Wayland Apps/Games Proxy

          Waypipe is off to the races as the newest network transparency effort in the Wayland space. Waypipe provides a network transparent Wayland proxy for running native Wayland programs/games over a network similar to X11′s capabilities and forwarding X over an SSH connection.

          Waypipe development was successful this summer by student developer Manuel Stoeckl who was working on the effort as part of this year’s Google Summer of Code (GSoC). Waypipe is successfully working now for running Wayland games/applications over the network using this proxy mechanism and supports features like compression, multi-threading optimizations, and hardware-accelerated VA-API for video encode/decode across the network.

    • Benchmarks/Hardware

      • SSD vs. HDD

        The chart is interesting but I think Rakers estimate of 5x as the tipping point is too optimistic, for several reasons: [...]

      • How long before SSDs replace nearline disk drives?

        So when will the wholesale switch from nearline HDD to SSDs begin? We don’t have a clear picture yet but a chart of $/TB costs for enterprise SSDs and nearline disk drives shows how much closer the two storage mediums have come in the past 18 months.

        It is unwise to extrapolate too much but it is clear the general trend direction is that Enterprise SSD cost per terabyte is falling faster than nearline disk drive cost/TB. Our chart below shows the price premium for enterprise SSDs has dropped from 18x in the fourth 2017 quarter to 9x in the second 2019 quarter.

      • AMD Ryzen 9 3900X Power Usage Is Running Measurably Higher On Linux Than Windows

        Frequently brought up following our various Ryzen 3000 “Zen 2″ benchmarks like the Ryzen 9 3900X vs. Core i9 9900K gaming benchmarks is how the Ryzen 9 3900X is pulling considerably more power than the similarly equipped Intel Core i9 system and those numbers are higher than what is often cited by Windows reviewers as the difference. I’ve begun investigating that power difference and indeed quite quickly could see Linux power usage being higher than Windows 10.

    • Applications

      • Bitcoin wallets for Linux

        For veteran Linux users, trading or using bitcoin really isn’t a big deal, but if you haven’t been around Linux for very long, you might like to know about the various Linux based bitcoin wallets available to get you buying or trading in bitcoin. Note that some of these clients also support other blockchain currencies such as Etherium or Ripple.

    • Instructionals/Technical

    • Wine or Emulation

      • Wine Announcement
        The Wine development release 4.15 is now available.
        
        What's new in this release (see below for details):
          - Initial implementation of the HTTP service.
          - Stack unwinding support on ARM64.
          - Better multi-monitor support on macOS.
          - RichEdit control optimizations.
          - Various bug fixes.
        
        
      • Wine 4.15 Brings Initial HTTP Service Implementation (HTTP.sys)

        Wine 4.15 is out for testing this US holiday weekend. With Wine 4.15 it brings an initial implementation of Windows’ HTTP.sys as the HTTP protocol stack that is a kernel-mode driver that lists for HTTP requests and passes it onto Microsoft’s IIS.

        An initial implementation of this HTTP.sys service is now in place as one of the major features to Wine 4.15. HTTP.sys has been the replacement to the Winsock API by IIS and is geared to provide better performance than the Windows Sockets API and other features. This big round of HTTP.sys work was led by Wine developer Zebediah Figura.

      • The Wine 4.15 development release is out now

        What’s a Friday without a little Wine? Thankfully today we don’t have to find out as the Wine 4.15 development release is now out.

    • Games

    • Desktop Environments/WMs

      • K Desktop Environment/KDE SC/Qt

        • Plasma session weirdness in FreeBSD

          We – the KDE-FreeBSD team – have been puzzling over sessions management for a bit when running a Plasma desktop (plain X11) on FreeBSD.

        • A short report on Krita Sprint 2019

          This Krita Sprint was bigger than ever, or so I’ve heard, as this is only my second one, and because of the amount of things that happend deciding on what to write about was not easy. The Sprint did a lot to create stronger bonds between the different Krita actors: developers and artists. Dicussions between the groups allowed us to set effective development goals for the upcoming Krita version as well as showing there were some processes in need of polishing in order to be truly effective –quality control and testing timeframes come to mind–.

          I focused mainly in knowing how other artists used Krita, which varies significantly between them. Most artists seem to work on a fixed way, but they do it in controlled environment so results are always consistent. This makes it very important to make all features discoverable in not only one way, sine once an artists find a confortable workflow they will rarely get out of it and will never get to know some tools they need but they never stumble upon. This might be the case for artists coming from other applications as tools could be placed were they do not expect them to be. For example, one artist suggested we should have a liquify tool, unknowinly that the “tool” was already there, but contrary to what they expected the tool was not a filter but rather a suboption in the transformation tool.

        • GSoC’19 Project : Milestone 3

          The third milestone or my Google Summer of Code 2019’s project porting KDE Connect to Windows involves porting the remaining plugins of the linux build so they work similarly on the Windows build. Cool stuff!

          There are a lot of plugins in KDE Connect that tend to improve the user experience by providing various features. The project team keeps working hard (in their free time only as a volunteer service) to maintain and create new plugins that comprise the usability of KDE Connect.

    • Distributions

      • Screenshots/Screencasts

      • Fedora Family

        • Fedora Community Blog: Stories from the amazing world of release-monitoring.org #7

          The view from the top of the tower was amazing. With few exceptions most of the things worked as they should. I had one hand on my wizard hat to protect it from wind. It’s too windy in this height. As I was looking from the tower, door behind me opened and traveler came in.

          “I’m glad to see you. It was a while till we met. There was plenty of things that happened in the meantime and needed my attention. I even spent some time in the world of Bodhi and I must say it is complicated and noisy world. Too different from this one. But this is the story for another time.” I stepped back from the railing and moved to part of the balcony that was shielded from the wind. There was table and two chairs. I sat on one and traveler followed me. “You probably want to hear some news. So relax and listen, this will take some time.”

        • Fedora Community Blog: FPgM report: 2019-35

          Here’s your report of what has happened in Fedora Program Management this week. The Beta freeze is underway.

          I have weekly office hours in #fedora-meeting-1. Drop by if you have any questions or comments about the schedule, Changes, elections, or anything else.

      • Debian Family

        • Chris Lamb: Free software activities in August 2019

          I was extremely proud to be announce I will be joining the folks at Software in the Public Interest to assist its many umbrella projects and free software in General. You can read the official announcement here.

          [...]

          I attended this year’s Debian Party in Cambridge, UK. Better known as the “OMGWTFBBQ”, I had a great time despite the remarkable heat. A special thanks to Steve for hosting the event and all others who helpedand organise this, as well as Mythic Beasts, Collabora and Codethink for sponsoring the event. For my part I made some souvenir beer mats commemorating the event, offering them gratis with a nudge towards becoming a supporter of the Software Freedom Conservancy:

    • Devices/Embedded

    • Free, Libre, and Open Source Software

      • SD Times Open-Source Project of the Week: Coreboot

        This week’s open source project of the week is coreboot (previously LinuxBIOS), an extended firmware platform that is aimed at replacing proprietary firmware (BIOS or UEFI) found in many computers.

      • AMD Is Hiring For Coreboot Development, Sponsoring Open-Source Firmware Conference

        That’s exciting itself and certainly noteworthy, but also notable is AMD is now sponsoring next week’s Open-Source Firmware Conference. AMD has joined the likes of Amazon AWS, Arm, System76, TrustedFirmware.org, and other companies in sponsoring this conference about Coreboot, LinuxBoot, and related open-source firmware projects.

      • Events

        • What To Expect At The Cloud Foundry Summit In The Hague?

          At the Open Source Summit, 2019, we sat down with Chip Childers, CTO of the Cloud Foundry Foundation to talk about these topics:

          00:20:09 What To Expect At The Cloud Foundry Summit In Hague?
          00:02:28 Chip?s comments on Service Mesh
          00:06:15 How Cloud Foundry evaded the hype cycle
          00:13:40 What are the new technologies you Chip is excited about

      • Web Browsers

        • Mozilla

          • Firefox 69 new contributors

            With the release of Firefox 69, we are pleased to welcome the 50 developers who contributed their first code change to Firefox in this release, 39 of whom were brand new volunteers!

          • Hacks.Mozilla.Org: The Baseline Interpreter: a faster JS interpreter in Firefox 70

            Modern web applications load and execute a lot more JavaScript code than they did just a few years ago. While JIT (just-in-time) compilers have been very successful in making JavaScript performant, we needed a better solution to deal with these new workloads.

            To address this, we’ve added a new, generated JavaScript bytecode interpreter to the JavaScript engine in Firefox 70. The interpreter is available now in the Firefox Nightly channel, and will go to general release in October. Instead of writing or generating a new interpreter from scratch, we found a way to do this by sharing most code with our existing Baseline JIT.

          • Firefox Nightly: These Weeks in Firefox: Issue 63

            The about:addons shortcut management view is now notifying users when there extensions are using the same shortcuts. Thanks to Trishul for contributing this enhancement.

      • Databases

        • Open source databases: Today’s viable alternative for enterprise computing

          There was a time when proprietary solutions from well-capitalized software companies could be expected to provide superior solutions to those produced by a community of dedicated and talented developers. Just as Linux destroyed the market for expensive UNIX versions, open source database management systems like EDB Postgres are forcing Oracle, Microsoft, SAP, and other premium database management products to justify their pricing. With so many large, critical applications running reliably on open source products, it’s a hard case to make.

      • Productivity Software/LibreOffice/Calligra

        • TDF Annual Report 2018

          The Annual Report of The Document Foundation for the year 2018 is now available in PDF format from TDF Nextcloud in two different versions: low resolution (6.4MB) and high resolution (53.2MB). The annual report is based on the German version presented to the authorities in April.

          The 52 page document has been entirely created with free open source software: written contents have obviously been developed with LibreOffice Writer (desktop) and collaboratively modified with LibreOffice Writer (online), charts have been created with LibreOffice Calc and prepared for publishing with LibreOffice Draw, drawings and tables have been developed or modified (from legacy PDF originals) with LibreOffice Draw, images have been prepared for publishing with GIMP, and the layout has been created with Scribus based on the existing templates.

      • Public Services/Government

      • Licensing/Legal

        • CUPS 2.3 Printing System Finally Released With Licensing Change & Other Additions

          CUPS 2.3 is an important update due to a licensing change and important for Linux users now that there is an issue being resolved from earlier in the development cycle. Apple, which has been under the control of CUPS for the past decade, decided to relicense this printing server to the Apache 2.0 license. But due to various non-Apple Linux CUPS utilities like cups-filters being GPLv2, that presents a problem. Apple lawyers ended up adding an exception to their Apache 2.0 license to allow linking the software with GPLv2 software, which takes care of the issue while still satisfying them with their re-license. This seems to be part of the reason why the CUPS 2.3 release took so long to materialize.

      • Programming/Development

  • Leftovers

    • Security (Confidentiality/Integrity/Availability)

      • A very deep dive into iOS Exploit chains found in the wild

        Project Zero’s mission is to make 0-day hard. We often work with other companies to find and report security vulnerabilities, with the ultimate goal of advocating for structural security improvements in popular systems to help protect people everywhere.

        Earlier this year Google’s Threat Analysis Group (TAG) discovered a small collection of hacked websites. The hacked sites were being used in indiscriminate watering hole attacks against their visitors, using iPhone 0-day.

        There was no target discrimination; simply visiting the hacked site was enough for the exploit server to attack your device, and if it was successful, install a monitoring implant. We estimate that these sites receive thousands of visitors per week.

        TAG was able to collect five separate, complete and unique iPhone exploit chains, covering almost every version from iOS 10 through to the latest version of iOS 12. This indicated a group making a sustained effort to hack the users of iPhones in certain communities over a period of at least two years.

      • Coin-mining malware jumps from Arm IoT gear to Intel servers

        A coin-mining malware infection previously only seen on Arm-powered IoT devices has made the jump to Intel systems.

        Akamai senior security researcher Larry Cashdollar says one of his honeypot systems recently turned up what appears to be an IoT malware that targets Intel machines running Linux.

        “I suspect it’s probably a derivate of other IoT crypto mining botnets,” Cashdollar told The Register. “This one seems to target enterprise systems.”

        In addition to being fine-tuned for Intel x86 and 686 processors, the malware looks to establish an SSH Port 22 connection and deliver itself as a gzip archive. From there, the malware checks to see if the machine has already been infected (at which point the installation stops) or if an earlier version is running and needs to be terminated. From there, three different directories are created with different versions of the same files.

        “Each directory contains a variation of the XMrig v2.14.1 cryptocurrency miner in either x86 32bit or 64bit format,” the Akamai security ace explained. “Some of the binaries are named after common Unix utilities, like ps, in an attempt to blend into a normal process list.”

    • Environment

      • Florida preps for an ‘absolute monster’: Hurricane Dorian
      • Energy

        • Pipeline Permit Scandal Highlights Confusion Amid Push to Build Plastics Plants

          For the past 42 years, the Beaver County Conservation District in western Pennsylvania has hosted their Maple Syrup Festival, an annual all-you-can-eat pancake breakfast featuring syrup made from maple trees in a park in Beaver Falls.

          It’s a huge event in this county, population 164,742; organizers expected up to 40,000 attendees at last year’s festival, which included a Civil War re-enactment, pony rides, and craft demonstrations like bobbin lace making.

          But with the arrival of Shell and its $6 billion plastics manufacturing plant, currently under construction in Beaver County, the conservation district assumed more serious responsibilities than throwing a maple syrup festival — including permitting the fossil fuel pipelines feeding the massive plastics complex.

        • Bernie Sanders’ Plan to Phase out Nuclear Power Draws Attacks — Here’s Why They’re Wrong

          Senator and Democratic presidential hopeful Bernie Sanders has released an ambitious climate proposal, one which champions of the status quo were quick to criticize. One line of attack, coming from many different sources, focuses on Sanders’ plan to phase out nuclear power, but the arguments, and who is behind them, deserve a closer look.

    • Internet Policy/Net Neutrality

      • Hey, it’s 2019. Quit making battery-draining webpages – say makers of webpage-displaying battery-powered kit

        Apple WebKit engineers Benjamin Poulain and Simon Fraser have offered advice to web developers about how to design power-efficient web pages, to preserve the life of mobile device batteries and give users more time interacting with web content.

        “Web developers rarely think about power usage, but they really should,” said Fraser, via Twitter.

        WebKit is the browser rendering engine at the heart of Apple’s mobile and desktop Safari browsers, but the tips presented by its programmers apply to web pages presented in any browser, for the most part.

    • Digital Restrictions (DRM)

      • AMD Prepping Their HDCP 1.4 Content Protection Support For Raven Ridge & Newer

        AMD developers have sent out their latest open-source Linux patches doing their kernel driver share for enabling High-bandwidth Digital Content Protection (HDCP) support for version 1.4 and newer.

        While seeing HDCP support patches for open-source graphics drivers does irritate many in the community, similar to other open-source drivers supporting HDCP, this is only one part of the content protection puzzle. These patches alone do not impose any restrictions on users or other impairments, but mainly comes down to such proprietary software wanting to make use of HDCP capabilities on Linux. Open-source video players and the like can continue to enjoy GPU-based video acceleration uninterrupted.

        [...]

        Intel’s open-source Linux graphics driver only began seeing HDCP work relatively recently when Google engineers were interested with the Intel support in the context of Chromebook support.

    • Monopolies

      • On economic analysis of IP law: an interview with professor Tom Cotter

        This Kat just returned from vacationing in beautiful Minnesota where he enjoyed open water swimming, fried cheese curds and … a conversation on the law & economics of IP with Professor Tom Cotter. Cotter’s recent books include Comparative Patent Remedies (2013) and Patent Wars: How Patents Impact our Daily Lives (2018). He runs the Comparative Patent Remedies blog and has authored dozens of articles on, particularly, the economic analysis of patent remedies.

      • Patents and Software Patents

        • Patent court to review Alexion’s Soliris patents on Amgen challenge

          The U.S. patent office will review patents on Alexion Pharmaceuticals Inc’s blood disorder treatment Soliris, after Amgen Inc challenged them, court filings showed on Friday.

          The move deals a blow to Alexion’s efforts to ward off competition for its top-selling drug, which accounted for nearly 82% of the drugmaker’s total revenue in the latest quarter.

          Alexion’s shares fell 10.4% to $100.51, while Amgen’s were marginally higher at $208.21.

          Amgen is contesting the U.S. patents to Soliris that extend the drug’s market exclusivity to 2027 from 2022.

          The Patent Trial and Appeal Board, an administrative court run by the U.S. patent office, said on Friday it was instituting an inter partes review (IPR) on the patents.

          [...]

          Alexion also awaits an impending European Patent Office (EPO) decision on its patent applications for Soliris, to extend the drug’s PNH market exclusivity in the European Union to 2027.

        • Nokia wins again: Munich court issues additional anti-antisuit injunction against Continental’s German parent company to stop pursuit of U.S. antisuit injunction

          Yesterday I attended and reported in detail on the Munich I Regional Court’s preliminary-injunction hearing in Nokia v. Continental AG. Last month Nokia had already obtained an against Continental Automotive Systems, Inc. (“CAS”; not to be confused for the international sports tribunal) of Auburn Hills, MI, the plaintiff in the Northern District of California FRAND/antitrust lawsuit against the Avanci patent pool firm, whose contributors include Nokia, Continental, and various other patent holders. Today the court doubled down on Continental by additionally granting Nokia an AAII against Continental AG, the Hanover, Germany-based parent company of the entire Continental group.

          This is a very significant victory for Nokia’s litigation team, particularly its European head of litigation, Dr. Clemens-August Heusch, and the Finnish mobile company’s outside counsel from the Arnold & Ruess firm: lead counsel Dr. Cordula Schumacher; Dr. Arno Risse (“Riße” in German), the mastermind behind the AAII initiative; and Tim Smentkowski.

          Today’s AAII, which Judge Dr. Hubertus Schacht announced in his chambers (with only one other person than me listening), requires the German parent company to use its influence over its indirect U.S. subsidiary in order to cause it to comply with the AAII already in place against CAS. This means Continental AG must tell a direct subsidiary to tell an indirect subsidiary to tell another indirect subsidiary–and so forth–until at the end of that enforcement chain CAS is directed to withdraw the fully-briefed U.S. motion for an antisuit injunction.

        • Nartron IPRs a Touchstone For Understanding PTAB Discretion

          Nartron claims that it “is credited with inventing the electronic touch screen in 1995.” (The electronic touch screen is generally recognized as having been first invented by E.A. Johnson in 1965, with various refinements such as multitouch and capacitive multitouch displays made over the intervening three decades by many other innovators. Nartron is not part of any of those histories.) The ‘183 patent was filed in 1996 and expired in 2016. For much of its life it sat there, apparently ignored.1 by lawsuit and thousands of dollars in attorney fees”.] But in 2012, Nartron began to prepare for assertion.2

          First, Nartron filed a pair of requests for its own patent to be reexamined. This allowed Nartron to put relevant prior art on record and amend its claims—claims that they had had, unchanged, for 15 years—to avoid being invalidated by that prior art when asserted. These reexaminations also resulted in the addition of more than 80 claims to the original patent, resulting in a patent with 114 total claims.

          And then Nartron began filing lawsuits.

        • Final and Nonappealable: Means “may be reconsidered” and not reviewable in “at least some circumstances.”

          In 2014, BioDelivery filed three separate IPR petitions against Aquestive’s U.S. Patent 8,765,167. The USPTO partially-instituted the proceedings (on some, but not all grounds) but then sided with the patentee — finding that the claims had not been proven unpatentable. BioDelivery then appealed to the Federal Circuit who vacated the final written decision on SAS grounds — holding that the USPTO cannot partially institute an IPR.

          Back on remand, the PTAB essentially restarted the whole case at institution and eventually decided not to institute the case at all (terminating all three IPR petitions). BioDelivery then appealed again — arguing that the appeal should have remained instituted and that the PTAB should not have reconsidered that decision.

          Back on appeal, the Federal Circuit reconstituted the same panel of Judges Newman, Reyna and Lourie.

          Not Final Final: In its decision, the Federal Circuit first held that the “final” aspect of an institution decision does not mean that it cannot be reconsidered. Rather, “administrative agencies possess inherent authority to reconsider their decisions, subject to certain limitations, regardless of whether they possess explicit statutory authority to do so.” Medtronic, Inc. v. Barry, 891 F.3d 1368 (Fed. Cir. 2018). Without interpreting the statutory meaning of “final,” the Board simply concluded that it does not clearly deprive the Board of its “inherent default authority.” (Note a minor problem with the decision in how it conflates statutory authority given to the Board with statutory authority given to the Director who then administrative delegated that authority to the Board).

      • Copyrights

        • Planet Art v Photobox passing off: no compunction when refusing injunction

          Planet Art and Photobox are commercial rivals. Both offer online printing, particularly of photographs. Planet Art launched in the UK in 2014 and operates exclusively through mobile applications; its main app is called “FREEPRINTS”. For many years Photobox has offered a certain number of free prints to attract potential customers. In late 2017 or early 2018 Photobox concluded that this offer was undermining its paid-for business model. Photobox therefore decided to launch a standalone app (with a limited allowance of free prints) to combat the surprising trend of customers finding ways to use the same free “introductory” offer multiple times, which was – of course – impossible to foresee.

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