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11.09.19

An Open Letter to Richard Stallman

Posted in FSF, GNU/Linux at 11:42 pm by Dr. Roy Schestowitz

By figosdev

Gear on neutral

Summary: “It’s past the time for the official cornerstones of the Free software movement to return to their full operational capacity, and to take the gear out of neutral.”

Hello again, we spoke a few weeks ago.

This is just a letter about the people willing to stand up for you, and for your inclusion in the very movement you started. We already know that you were treated unfairly. Some of us were actually warning people this could happen even before it did — the LibrePlanet letter was a pretty big hint to a few of us.

I’ve told people that you want them to stay with the FSF, and why you don’t want them to leave but that it’s better to make certain they continue to promote the core ideals of Free software. That’s what the FSF should be doing. Unfortunately, the FSF is not very good at listening to its members. The way it is structured, (according to someone who used to work for the FSF) an associate membership does not give anybody much influence or ability to hold the FSF accountable. I know this first hand, I was a member years ago.

For what it’s worth, I agree with you on people staying. I don’t believe the FSF is likely to get better if all the pro-Free software, pro-Stallman people leave. And if the FSF were ever to let members influence it more, it would be important for it to do that much differently than OSI did.

“We already know that you were treated unfairly. Some of us were actually warning people this could happen even before it did — the LibrePlanet letter was a pretty big hint to a few of us.”In the past 10 years, OSI became even more subservient to monopolies than it was to begin with. There was an effort to make OSI more open to members — I don’t think that’s a terrible idea, but I think there are a greater number of problematic ways to accomplish that task than beneficial ways. For the FSF to care what members think, to the point where they ever had the ability to change anything, would be perilous to Free software if it were done the wrong way.

More organisations are forming now, most of them with smaller missions than the FSF’s mission. There are things the FSF can’t afford to focus on, such as education, that other organisations can. There is one organisation, Free Software Force, whose primary mission appears to be defending you. I applaud this, but I will be pushing them to do more than just talk about you. I think they are most interested in promoting Free software along the lines that you did — I think that’s a good idea for an organisation.

I’m personally concerned about how many mainstream free projects are currently hosted on Github. Getting these projects away from the clutches of the most Free software-antagonistic company there is, seems like a good idea. This is a company that puts backdoors in its own software. Given their penchant for spyware (telemetry) and the precedent of SourceForge adding spyware to their repos, I don’t like thinking about the future of Github unless there are more people willing to move away from it. Along with the Linux Foundation, Github is bringing all sorts of projects closer to the Microsoft mothership. This doesn’t bode well.

“Along with the Linux Foundation, Github is bringing all sorts of projects closer to the Microsoft mothership. This doesn’t bode well.”The main reason I have for writing you however, is to tell you that in many different ways an unofficial Free software organisation is developing. I don’t mean any of the new organisations, I don’t necessarily even mean the “Free Software Federation” but there is a very broad community with supporters everywhere. I don’t expect you to find them all and talk to everyone, but I recommend you try talking to them. To some degree you do already.

With or without the FSF, and preferably with of course, I recommend you start talking with more of these people as soon as it’s possible to do so. Some of them can act as liaisons, or ambassadors, to help get things between you and everybody else.

This is an unofficial way of doing things, but the fact that this sort of meta-community welcomes you just as much now as before is relevant. Instead of one leader there are several, but what these people have in common is recognition of the fact that you founded the Free software movement, and thus are a key figure — one extremely important to what they do. I’ve spoken with several of these people and some of them are more supportive of you than I realised. Dyne.org for example, is one organisation that has put out an official statement in support of you.

“Dyne.org for example, is one organisation that has put out an official statement in support of you.”My feeling is that you do not wish to retire. If you do, you’re certainly entitled to it. But if you don’t, these are people who will help keep you informed and who you can help keep informed, and who you can rely on to carry your ideas even further. I realise you can do a lot of this on your own, and I realise (and I’m grateful) that you still have supporters in your own organisation. By no means is any of this exclusive or intended to stand in place of that.

I guess what I’m saying is, we won’t let you retire until you’re ready to do so. Most of us can’t afford to fly you around the world, but we do live around the world, and we are eager to continue helping Free software succeed.

Whatever you choose to do next, I hope you will consider this. And I hope we will all hear much more from you in the future.

The reasons for the silence from the FSF are publicly known, but it has stretched out too long. There is no benefit left to this ongoing silence, it is just as pointless for the FSF to keep the lights out like this as it is for them to have an Internet outage. It’s past the time for the official cornerstones of the Free software movement to return to their full operational capacity, and to take the gear out of neutral.

Long Live Stallman, and Happy Hacking.

Licence: Creative Commons CC0 1.0 (public domain)

Links 9/11/2019: Linux Journal Goes Dark (Offline), KStars 3.3.7, OpenSUSE Name Change Aborted

Posted in News Roundup at 12:11 pm by Dr. Roy Schestowitz

  • Leftovers

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    • New Mexico Postcard: The Call of the Sandhill Cranes

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    • John Pilger’s New Film In Cinemas And On Tv This December

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    • Science

      • 2020: The Incipient Bet

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      • Curfew Panda

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    • Hardware

      • AMD Unveils Ryzen 9 3950X CPU as World’s Most Powerful 16-Core Desktop Processor

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    • Health/Nutrition

    • Security (Confidentiality/Integrity/Availabilitiy)

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        If you’re looking for a way to honor veterans, here’s one: protect the U.S. Postal Service.

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        Pentagon officials asserted Thursday U.S. military authority over Syrian oil fields because U.S. forces are acting under the goal of “protecting Americans from terrorist activity” and would be within their rights to shoot a representative of the Syrian government who attempted to retake control over that country’s national resource.

      • American Vivisection

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      • They Are Racist; Some of Them Have Guns. Inside the White Supremacist Group Hiding in Plain Sight.

        In the hours after the slaughter in El Paso, Texas, on Aug. 3, a final toll emerged: 22 dead, most of them Latinos, some Mexican nationals. A portrait of the gunman accused of killing them soon took shape: a 21-year-old from a suburb of Dallas who had been radicalized as a white supremacist online and who saw immigrants as a threat to the future of white America.

        While much of the country reacted with a weary sense of sorrow and outrage, word of the mass killing was processed differently by members of Patriot Front, one of the more prominent white supremacist groups in the U.S.

      • Lebanon: Protect Protesters from Attacks

        Lebanese security forces have failed to stop attacks on peaceful demonstrators by men armed with sticks, metal rods, and sharp objects.

      • Princes at war in the Gulf

        In the past few years, a new generation of princes have come to power in the world’s richest oil-producing monarchies: Saudi Arabia, Qatar and the United Arab Emirates. While their predecessors maintained a cordial relationship between the three states, the princes have become bitter rivals, competing with each other over everything from sports and culture to armaments. Their ramped-up rivalry threatens a region already destabilised by years of conflict.

    • Environment

      • Toxin levels in Baltic herring drop significantly, spurring export hopes

        Figures released by the National Institute for Health and Welfare (THL) on Thursday show that concentrations of these environmental toxins have dropped by as much as 80 percent over the last 40 years.

        Crucially, even toxin levels in large herring of 19cm or more in length now fall below the maximum limit values for these toxins set by the EU for fish and fish products. Larger, older herring contain larger toxin concentrations.

      • Ignoring Climate Catastrophes

        The planet is coming apart at the seams right before the eyes of scientists at work in remote fringe areas of the North where permafrost crumbles and collapses. It’s abrupt climate change at work in real time, but the governing leaders of the world either don’t care or don’t know. If they did, there would already be a worldwide Climate Marshall Plan to save civilization from early warning signals of utter chaos.

      • Growing Ecological Civilization in China

        The Chinese Academy of Social Sciences invited me to an international ecological conference in Jinan, Shandong Province. The Academy gave the conference a provocative and insightful title: a Paradigm Shift: Towards Ecological Civilization: China and the World.

      • If Money is Tight, Climate Change is Your Issue

        If you’re poor in America, climate change is your issue.

      • Sierra Club Takes a Commendable Turn on Population, Climate Change, and Inequality

        The Sierra Club – long a retrograde proponent of saving the planet by driving a Tesla, eating wild caught salmon, and voting blue – took positive environmental leadership with their end of the year issue of the Sierra magazine. Stating it is “time to fix the population fixation,” they examine the interactions of population, climate change, and inequality. This commendable development from bourgeois lifestyle environmentalism to a more genuine red-green understanding, though, has a way to go.

      • Energy

      • Wildlife/Nature

        • Remove the Cows Not the Conifers

          There is much debate in the scientific community about whether conifer “encroachment” is unnatural or due to ordinary ecological succession after massive wildfires.

        • Eating the Amazon

          Catastrophic fires have been burning all over the world, not just in Amazonia, but also in Siberia, Indonesia, and the Congo basin. These fires are ecological weapons of mass destruction and displacement resulting in habitat destruction and extermination of other species, violent land grabs from Indigenous peoples, murder of forest protectors, and climate refugees. Most of the disastrous fires in the Amazon are the result of clearing forests for cattle pasture or for crops to feed the cattle. In response to the intentional conflagrations in the Amazon, the actor Leonardo DiCaprio was chided recently for daring to suggest a way to significantly deal with the destruction: People can simply stop eating cattle.

        • My Friend Was Murdered for Trying to Save the Amazon

          Paulo Paulino Guajajara, known as Kwahu, was shot dead following an ambush by loggers. He was a Guardian of the Amazon, a group of indigenous men from the Guajajara tribe who protect their territory from loggers.

        • Illegal Loggers Murder Indigenous Forest Guardian in Brazilian Amazon
        • The Politics of Denial, The Brazilian President, and The Fate of Amazonia

          With the murder of the Amerindian, Paulo Paulino Guajajara, on November 1st by Brazilian illegal-loggers, was clear evidence of genocidal practices against Brazil’s indigenous population continuing today. Paulino’s people, O Povo Guajajara, are some of the most numerous native peoples in Brazil, numbering nearly 30,000 and living in the Amazonian state of Maranhão in northeast Brazil. Paulo Paulino was also a member of the self-designated group, “Guardians of the Forest” (Guardiões da Floresta), who patrol their enormous indigenous reserve, Araribóia, some 1,595 square miles (4,130 square kilometers), almost twice the size of Rhode Island, in order to protect the forest against illegal loggers and illegal poachers.

        • Indigenous firefighters tackle Brazil’s blazes

          If the fires raging across the Amazon are controlled, much of the credit should go to the indigenous firefighters with intimate knowledge of the terrain.

        • How Do We Solve a Problem Like Wildlife Trade?
    • Finance

    • AstroTurf/Lobbying/Politics

      • Progressives Care More About Taking the Democratic Party Than Getting Rid of Trump

        Nothing, leading Democrats say, matters more than beating Donald Trump. 2020, they argue, is the most important election of our lifetimes (OK, they always say that).

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        Around the world people are marching, rallying, and demonstrating in huge numbers. Some of these countries are ruled by dictators or plutocratic regimes, others are considered democracies. Despite the peril of protest, people are seeking justice, freedom, and decent livelihoods.

      • Okay Kids Do Your Thing

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      • A Socialist Party in Our Time?

        Nearly two years ago, Eric Blanc wrote an article for Jacobin that justified socialists running on the Democratic Party primary ballot as a “dirty break” from the two-party system. Eugene V. Debs’s Socialist Party, to which Jacobin pays lip-service, instead supported a “clean break”, as did the Communist Party until Stalin ordered it to back FDR. Ultimately, the idea of a “dirty break” (or its close relative, an “inside-outside” orientation to the Democratic Party) has little to do with Marxism. It is instead old-fashioned pragmatism that has led liberals to support the Democratic Party for generations. When I was young, it was what led SDS to raise the slogan “Part of the Way with LBJ.” After I voted for him in 1964 and faced the draft not much later, I “parted ways” with the Democratic Party.

      • Pacifica’s WBAI Back on the Air But Fight for Non-Corporate Radio Continues

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      • With a Raid on Javier Smaldone, Argentinian Authorities Have Restarted Their Harassment of E-Voting Critics

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      • ‘The Business of Building Walls’: New Report Shows Companies Cashing In on Europe’s Expanding Anti-Migrant Barriers

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      • Schweitzer’s “Reverence for Life” in the Age of Trump and Modi

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        Republicans are less likely to win elections when voter turnout is high.

      • Why Does the New York Times Hate the Democratic Base?

        The New York Times’ Thomas Edsall has an axe to grind, and the paper loves to let him grind it. Edsall is convinced that the Democrats need to move to the center, in ways that will offend much of the party, in order to appeal to the moderate white “swing” voters he believes are the key to a Democratic victory in 2020.

      • Rob Richie on Ranked Choice Voting, Netfa Freeman on Police Militarization
      • As 2020 US presidential election nears, voter systems are still vulnerable

        Despite the progress, the country is heading into the election with “endless” vulnerable points in the election infrastructure, according to Norden.

        “American elections are very decentralized,” Norden said. “We have 8,000, at least, election jurisdictions in the US. In some ways, that means we’re running 8,000 different elections during a big federal election, like a presidential election. And one of the things that we saw in 2016 was that local election offices were clearly a target.”

        Norden says those local offices often have no IT support — and no cybersecurity staff.

      • Amazon’s electioneering in Seattle is more evidence that capitalism and democracy are incompatible

        Neoliberalism is an anti-democratic political position; it presupposes that the liberal capitalist democratic order maintains some stable state when the ruling class pulls the levers that govern society, and keeps the pesky masses barred from interfering in their accumulation of capital. “[Neoliberalism] means the dismantling of publicly owned industry and deregulation of capital, especially finance capital; the elimination of public provisions and the idea of public goods; and the most basic submission of everything to markets and to unregulated markets,” scholar Wendy Brown told Salon in 2016.

    • Censorship/Free Speech

      • Blizzard Confirms It Won’t Rescind Blitzchung’s Suspension

        We had just talked about the apology that Blizzard’s President J. Allen Brack issued at the opening of Blizzcon this past week. In that apology, Brack accepts responsibility for “moving too quickly” in banning Blitzchung for his mild statements of support for the ongoing protests in Hong Kong and states that Blizzard hadn’t “lived up to the high standards” that Brack apparently expects out of the company. Notably absent from the apology was any reference to altering Blitzchung’s six month ban from competition, or any changes to other bans over Hong Kong speech the company had handed out.

      • Countries are increasingly willing to censor speech online

        Many authoritarian governments already restrict what their citizens see online. China has heavily censored the internet since its early days; Twitter and Facebook are banned outright. Iran also outlaws Facebook. Saudi Arabia restricts access to information on everything from gay rights and evolution to Shia Islam. Attitudes are hardening in democracies, too. Rather than simply being blocked, big tech firms face a raft of new laws controlling what they can host on their platforms.

    • Privacy/Surveillance

      • Microsoft Should Not Fund Israeli Spying on Palestinians

        The act of Palestinian activists covering their faces during anti-Israeli occupation rallies is an old practice that spans decades. The masking of the face, often by Kufyias – traditional Palestinian scarves that grew to symbolize Palestinian resistance – is far from being a fashion statement. Instead, it is a survival technique, without it, activists are likely to be arrested in subsequent nightly raids; at times, even assassinated.

      • CBP Now Has Access To NSA, CIA Collections

        Welcome to the Intelligence Community, CBP!

      • Instagram to begin hiding ‘likes’ in US next week: report

        The experiment comes after the company tested hiding “like” counts in other places, including Australia, New Zealand, Canada, Japan, Italy, Ireland and Brazil, the outlet notes.

      • Democrats demand FCC act over leak of phone location data

        The committee members wrote that the cell phone carriers involved have stopped sharing location data with aggregators, but noted that this was done even though the FCC has not taken action.

      • Instagram Will Remove ‘Likes’ From Posts for Some U.S. Users
      • Mozilla: ISPs Are Lying About Encrypted DNS, Should Have Privacy Practices Investigated

        In a bid to avoid losing access to the cash cow that is your daily browsing data, ISPs like Comcast have been lying about Google and Mozilla’s quest to encrypt DNS data. The effort would effectively let Chrome and Mozilla users opt in to DNS encryption — making your browser data more secure from spying and monetization — assuming your DNS provider supports it. Needless to day, telecom giants that have made billions of dollars monetizing your every online behavior for decades now (and routinely lying about it) don’t much like that.

      • Health Minister Wants Full-Genome Sequencing Of Every Newborn Child In UK To Become Routine

        The cost of sequencing every DNA “letter” in a human genome has fallen faster than Moore’s Law, from around $100 million in 2001, to under $1,000 today (although some say the overall cost in a clinical context is higher). This brings with it the prospect of routinely carrying out full-genome sequencing for everyone.

      • Von der Leyen signals tough approach toward US tech giants

        Delivering a speech in honor of Shoshana Zuboff, a Harvard scholar best known for her book “The Age of Surveillance Capitalism,” von der Leyen made clear that she ascribes to Zuboff’s view that the U.S. tech industry “knows, decides and decides who decides.” Zuboff was the recipient of this year’s Axel Springer Award, an honor bestowed by German media group Axel Springer, one of the co-owners of POLITICO Europe.

        Reflecting on her own experience with major tech platforms, von der Leyen told a small audience at Springer headquarters in Berlin: “The platforms are less interested in what I did yesterday. Their interest lies in what I will do tomorrow and why I do that. It is all about predicting and influencing my behavior, your behavior.”

        Though EU citizens deliver such data voluntarily “click by click,” von der Leyen stressed that Europeans needed to “shape our own approach to the digital world,” signaling that the EU needed to build on measures such as the so-called right to be forgotten and data protection regulations like GDPR.

    • Freedom of Information / Freedom of the Press

      • Kushner allowed Saudis to arrest Khashoggi

        The newspaper report said that the US House Intelligence Committee, led by the opposition Democrat party, is aware of the claims and plans to use them as part of its impeachment process against the President. It also said that there are seven whistle-blowers from the intelligence agencies who are willing to give evidence in support of the accusations. They include Lieutenant Colonel Alexander Vindman and the National Security Council’s director for European and Russian Affairs, Tim Morrison, as well as an anonymous CIA officer.

        The newspaper report said that the US House Intelligence Committee, led by the opposition Democrat party, is aware of the claims and plans to use them as part of its impeachment process against the President. It also said that there are seven whistle-blowers from the intelligence agencies who are willing to give evidence in support of the accusations. They include Lieutenant Colonel Alexander Vindman and the National Security Council’s director for European and Russian Affairs, Tim Morrison, as well as an anonymous CIA officer.

      • The US trail of the man whose security firm spied on Julian Assange

        What was David Morales, owner of UC Global S. L., the Spanish company that spied on WikiLeaks founder Julian Assange during his stay at the Ecuadorian embassy in London, doing in Alexandria, Virginia?

        Located around 10 kilometers from Washington DC, Alexandria is home to the US federal court that has been investigating the Australian cyberactivist for years and has requested his extradition from the United Kingdom, where he remains in prison after he was expelled from the Ecuadorian embassy in April following a seven-year asylum.

    • Civil Rights/Policing

      • After accusing his senior officers of dealing drugs, this veteran Russian cop was fired and charged with two felonies

        Thirty-six-year-old Yuri Zaitsev grew up in a cop family and wore the badge himself for more than 15 years. Throughout this time, he served in counter-narcotics units, first in the Federal Drug Control Service and later in drug control for Khakassia’s Interior Ministry. Until recently, he led one of the units in this department.

      • ‘Yeah, Yeah, We Know’: Top Trump Defender Jim Jordan Under Renewed Fire for Dismissing Complaints of Sexual Molestation

        Jordan and another coach reportedly responded to credible claims of harassment with, “Yeah, yeah, we know.”

      • #HereToStay: Student Walkouts Across US to Demand Supreme Court Defend DACA

        The Supreme Court is set to hear the first oral arguments in a case regarding whether President Donald Trump broke the law when he rescinded DACA protections.

      • The Epstein Story Continues to Unravel

        Every generation is distinguished by a troubling incident, one that transcends its historical context.  John Brown’s raid against the federal armory at Harpers Ferry instigated the Civil War, defining an era; a century later, Pres. Truman’s decision (following Pres. Roosevelt’s lead) to drop atomic bombs on two residential Japanese cities culminated in U.S. control over much of the post-WW-II world, thus defining a very different era.

      • Black Farmers Say a Top Chicken Company Turned Them Away

        Once or twice every year since 2005, a black farmer in Philadelphia, Mississippi, reached out to one of the country’s largest chicken companies about starting to work with it. The company, Koch Foods, said that the farmer was too far away and that it wasn’t taking on new growers, the farmer said in a sworn statement.

        But an investigator with the U.S. Department of Agriculture found that Koch Foods had contracts with 10 farmers who were farther away and that it proceeded to recruit 165 other farmers since 2005, all of them white.

      • Is ‘OK Boomer’ the ‘New N-Word,’ or Are Millennials Still Destroying Everything?

        In recent times, media have taken a great interest in highlighting and even generating intergenerational fighting. One example is the focus on the “OK boomer” meme, a witty two-word comeback gaining popularity on the internet. “OK boomer” is a pithy, cutting retort millennials (those born between 1981–96) and Generation Z (those “Zoomers” born even later than 1996) give to those born during the baby boom (1946–64). The digital equivalent of an eye roll, it conveys that the speaker considers the person being addressed to be obtuse, stubborn and out of date.

      • French Paper: French Woman Claims Rape by Polanski in 1975

        PARIS — A French woman in her early 60s claims she was violently raped at age 18 by Oscar-winning filmmaker Roman Polanski, a fugitive from the U.S. for more than four decades since pleading guilty to a sex offense with a minor, a French newspaper reported Friday.

      • Why I’m Fighting for Menstrual Equity in Prison
      • NPR Illinois Journalists Can’t Report Freely on University of Illinois Sexual Misconduct. These Organizations Want that to Change.

        In August, NPR Illinois and ProPublica published an investigation into how the University of Illinois at Urbana-Champaign protected the reputations of faculty accused of sexual misconduct.

        Afterward, university officials told NPR Illinois that the station could not promise confidentiality to students, employees, faculty or others who contacted the newsroom to share experiences of sexual misconduct at the University of Illinois.

      • Disability Discrimination May Tarnish Spain’s Electoral Reforms

        People with disabilities may experience discrimination as they vote in Spain’s general election this weekend, despite a law which guarantees equal voting rights. 

      • Mauritania: University Age Cutoff Suspended

        The government of Mauritania on November 6, 2019 retracted a discriminatory regulation limiting college enrollment that had led to weeks of protests, Human Rights Watch said today. The 2018 rule limited enrollment by new students in the country’s public universities to students age 24 or under, which was seen to disproportionately affect low-income students.

      • Nigeria Releases 86 More Children and Youth from Military Prison

        Several months ago, we traveled to northeast Nigeria to interview children who had been imprisoned on suspicion of being members of the extremist armed group Boko Haram. Yesterday the Nigerian military released 86 children and youth from a military prison. This is great news.

    • Digital Restrictions (DRM)

      • Too Many Streaming Exclusives Is Already Starting To Piss Users Off

        So we’ve noted a few times now that the rise of streaming video competitors is indisputably a good thing. Numerous new streaming alternatives have driven competition to an antiquated cable TV sector that has long been plagued by apathy, high rates, and comically-bad customer service. That’s long overdue and a positive thing overall, as streaming customer satisfaction scores suggest.

      • Netflix: We’re Not In The Truth To Power Business, We’re In The Entertainment Business

        You may recall that back in January Netflix took something of a public pounding for pulling an episode of Hasan Minhaj’s Patriot Act, after Minhaj went hard at Mohammad bin Salman. Netflix pulled the episode inside of Saudi Arabia when the country claimed the episode violated the kingdom’s internet laws, which mostly revolve around keeping any criticism of the Saudi royal family off of the internet. Critics in America and elsewhere slammed Netflix for kissing the Saudi family’s ring, while still others pointed out that the episode was still available on Netflix’s YouTube page, including in Saudi Arabia. Some even argued that Netflix knew that all of this would be Streisanded, actually getting the episode more attention in Saudi Arabia that way.

    • Monopolies

      • Patents and Software Patents

        • Cloudflare Explains What It Takes To Slay A Patent Troll

          A couple years back we wrote about the patent trolling operation Blackbird Technologies, which was a law firm that pretended it wasn’t a law firm, and seemed to focus on buying up patents to shake down companies for cash. It had threatened many and sued a few, but definitely picked the wrong target when it decided to go after Cloudflare. Like Newegg before it, the team at Cloudflare decided that even if it was cheaper to settle, it would set a bad precedent and would likely lead to more trollish threats landing on its doorstep. So, instead, Cloudflare decided to fight back. And it went a step or two beyond Newegg, who would just fight the trolls in court. Cloudflare decided to not just fight in court, but then to seek to destroy Blackbird Technologies entirely. It launched a crowdsourced contest to search out prior art not just on the patent at issue in its own case, but on all Blackbird patents. It also went after the lawyers at Blackbird, filing bar complaints against the company for violating attorney ethics rules (mainly in holding itself out as not a law firm, but then acting as a law firm). There was also the issue of the firm appearing to purchase the bare right to sue, the same issue that brought down copyright trolling operation Righthaven. The issue there is that if you purchase the rights to a patent or a copyright, you have to actually purchase all of the associated rights, not do a convoluted thing where you pretend to buy the rights, but the original copyright or patent holder gets some of the proceeds of your trolling.

        • The New NAFTA Won’t Protect Workers’ Rights

          Besides the economic immiseration of two generations of Mexican workers, the original NAFTA also failed at one of its other purported goals, to improve working conditions for workers across North America. Both the old and the new agreements require the United States, Canada, and Mexico to enforce their own labor laws. But for over a quarter-century NAFTA abjectly failed to do this. Mexico’s laws guarantee workers the right to form independent unions, but throughout NAFTA’s reign workers’ attempts to organize were met with firings, beatings, and broken strikes. NAFTA’s side agreement on labor failed to reinstate even a single fired worker or force the signing of a single union contract.

        • Inventors per patent application

          The chart above shows that the trend is continuing — more inventors per patent application. The rising series are applications with 3 or more listed inventors and the declining series are those applications with only 1 listed inventor. The percentage of applications with 2 listed inventors is remaining fairly constant over the past 15 years. I’ll do a follow-up showing that more-inventors correlates with higher allowance rate.

        • Lawyers react as Federal Circuit takes on constitutional conundrum

          The US Court of Appeals for the Federal Circuit’s decision in Arthrex v Smith & Nephew will result in some Patent Trial and Appeal Board cases being remanded, according to lawyers.

        • When a Library Holding is not Meaningfully Indexed

          The PTAB sided with TCL — finding the challenged claims of Ericsson’s US Patent 6,029,052 unpatentable as obvious. Only claim 18 is on appeal, which claims a method for filtering an inbound signal, including “band-pass filtering” (12); then amplifying the signal (34); then mixing (40) the signal with “inphase and quadrature oscillator signals” that were derived from a frequency-divided first oscillator signal (36) (resulting in two separate signals); then low-pass filtering both signals (42).

          [...]

          As to the merits, Ericsson argued that public shelving is insufficient to show public accessibility. Although the article/magazine were apparently not meaningfully indexed, the magazine had been published for the past thirty years. As such, “[t]his case is unlike cases in which a single dissertation or thesis was housed in a library.”

          Note here, that the appellate panel again does not provide a full analysis of its reasoning here. Since the article/magazine was not meaningfully indexed, what were the additional features to let the court know that it was sufficiently publicly accessible? What would have connected the dots here would be (1) some showing that the publication was well known to persons interested in the subject matter; (2) that the publication was known to be in the library in-question (perhaps proven by showing that the library had a subscription for several years); and (3) that the article in question is one that would be expected to find in the magazine.

          Obviousness Affirmed.

        • Athena v. Mayo: Strong Amicus Support

          In Athena Diagnostics, Inc. v. Mayo Collaborative Services, LLC, the Federal Circuit reaffirmed its general ruling that newly invented diagnostic methods will generally be seen as directed toward unpatentable natural laws absent some new machinery for performing the method. Athena’s patented method is a three-step process for identifying MuSK antibodies in body fluid (such as blood): Mixing labelled MuSK with the body fluid; immunoprecipitating any antibody/MuSK complex from the fluid; and monitoring for the label in the left-over precipitate. The test is important because the existence of MuSK helps diagnose a particular form of Myasthenia gravis (MG).

          In its decision, the Federal Circuit found that the core discovery here is the relationship between MuSK antibodies in the body and MG. That relationship though is a natural law. The court then looked to the particular steps in the method and found no inventive concept. Even though the claims required specific chemical reactions, the specification also made clear that development of the particular steps would be within reach of one skilled in the art — once they understand that MuSK is important. The Federal Circuit decision was penned by Judge Lourie and joined by Judge Stoll. Judge Newman wrote in dissent. A 7-5 court then denied Athena’s petition for en banc rehearing — writing effectively that its hands were tied by Mayo & Alice. The Athena denial is interesting because it includes eight opinions (seven substantive) that generally lament the current situation.

        • Federal Circuit’s Quirky (and Incorrect) Doctrine of Retroactive Preclusion

          This case raises important Federal Courts questions that have had a major impact on patent law. Chrimar has petitioned for en banc rehearing and five amici briefs have been filed in support — all focusing on “the rules of finality that attach to an Article III judgment, when a later PTAB decision conflicts with that judgment.”

          [...]

          Meanwhile, in 2018 the same claims at issue were all found unpatentable by the PTAB in an IPR brought by a separate party. ALE appealed that PTAB case that was affirmed without opinion (R.36 Judgment). Chrimar II. Relying on that R.36 Judgment, the Federal Circuit then vacated the jury verdict and district court damage award. Chrimar III. It is this final vacatur – Chrimar III – that is the subject of the en banc petition. Chrimar argues that the Federal Circuit was wrong to use the PTAB decision to collaterally and retroactively undermine the already final determination of the district court.

        • Wyeth v. Stone: Art or Principle in the Abstract

          In ChargePoint, the Federal Circuit discussed the 19th Century patent case of Wyeth v. Stone, 30 F. Cas. 723 (C.C.D. Mass. 1840) (Justice Story).

          The case involved a patented ice-cutting invention created by Nat Wyeth who was known to have invented “practically every implement and device used in the ice business.” The disputed patent in the case issued in 1929 and is now identified as No. X5,405. The drawings appear to be lost to history, probably in the 1936 Patent Office Fire. By 1940, Joseph Story had been on the Supreme Court for almost 30 years. At that time, however, the Justices “rode circuit” to hear local cases such as this one.

          [...]

          In addition to the abstract principle claim, the patent document further claims the “particular method of the application of the principle” described in the specification. Applying the latin maxim “ut res magis valeat, quam pereat,” Justice Story interpreted the patent to more narrowly cover the machines described (the cutter and saw). “Although inartificial”, the specification could be “reasonably interpreted” so in a court of equity (although not upon the principles of common law).

          The Federal Circuit has written about Wyeth in a number of cases — focusing upon the “results oriented” claims that end up encompassing an abstract principle. Interval Licensing LLC v. AOL, Inc., 896 F.3d 1335 (Fed. Cir. 2018); ChargePoint, Inc. v. SemaConnect, Inc., 920 F.3d 759 (Fed. Cir. 2019).

        • U.S. Could Make Millions in Gilead HIV Prevention Drug Suit

          The U.S. government could get millions from Gilead Sciences Inc. as the result of a recently filed lawsuit that alleges the company infringed government-owned patents for the HIV-prevention drug PrEP.

          The Department of Health and Human Services is asserting that Gilead refused to license its patents and has “willfully and deliberatively induced infringement” on the department’s patents, according to the complaint.

          The government is seeking retrospective damages and ongoing royalties from the company. The complaint alleges the company has made billions from sales of the drug. The pills can cost as much as $1,700 a bottle and earned the company $2.6 billion in U.S. sales in 2018, according to Bloomberg data.

          The Centers for Disease Control and Prevention was the first to demonstrate that the combination of drugs that make up PrEP—emtricitabine and tenofovir disoproxil fumarate—are effective as HIV prevention. The only two approved HIV prevention drugs, Truvada and Descovy, are both made by Gilead.

          The conflict over the HIV prevention drug patents has become more prominent since President Donald Trump announced a plan to reduce new instances of HIV by 90% in the next decade. There are about 40,000 new cases of HIV each year, according to the CDC.

        • Hong Kong, PRC Launches New Patent System Effective December 19, 2019

          Effective December 19, 2019, Hong Kong will launch a new patent system that includes a new “original grant patent” (OGP), substantive examination for short term patents (STPs), and maintains the current re-registration system based on patents from China (CN), the United Kingdom (UK) and the European Patent Office (EPO) that designate the United Kingdom. The new patent system is based on the Patents (Amendment) Ordinance 2016 passed on June 10, 2016 and Patents (General) (Amendment) Rules 2019 issued on March 12, 2019.

          [...]

          The current re-registration system will run in parallel with the new OGP system. Accordingly, patent applicants can still apply for a standard patent using a two-step process based off of a Chinese patent application, a UK application or a EPO application designating the UK. In the first step, an applicant must file a request to record with the Hong Kong Patents Registry based upon a pending application within 6 months of publication of the CN, EPO or UK patent application. Once the CN, EPO or UK patent application has granted, the applicant must file an application for registration and grant in Hong Kong within 6 months.

          The new patent system provides a more cost-effective route for patent applicants that are not seeking a European, UK or CN patent. However, as Hong Kong itself is a relatively small market, it is unclear if many applicants will take advantage of the new system and instead may continue to use the re-registration system.

          More information about the new patent system can be found here.

          1 Formalities includes a determination if the application contains (i) an indication that a standard patent under the OGP route is sought; (ii) information identifying the applicant; and (iii) something that appears to be a description of an invention, or a reference to a previously filed application of the invention.

          2. A STP patent term is 8 years from the filing date subject to renewal at the end of the 4th year from filing.

          3. STP substantive examination will be similar to substantive examination of OGPs including providing applicants with an opportunity to amend an STP and provide arguments in defense of the novelty, inventiveness and industrial applicability of the STP.

      • Trademarks

        • U.S. Supreme Court to consider blocking Booking.com trademark

          The U.S. Supreme Court on Friday agreed to consider a bid by a federal agency to prevent the popular hotel reservation website Booking.com, a unit of Booking Holdings Inc BKNG.O, from trademarking the site’s name, contending that it is too generic to deserve legal protection.

          The justices will hear an appeal by the U.S. Patent and Trademark Office of lower court decision allowing the trademark because by adding “.com” to the generic word “booking” it became eligible for a trademark.

      • Copyrights

        • Allen v. Cooper: Suing States for IP Infringement

          In this copyright case, the Supreme Court is wrestling with the question of sovereign immunity. Does the 11th Amendment shelter States (North Carolina in this case) from copyright infringement lawsuits. The plaintiff — Frederick Allen — documented the 1998 salvage of the Pirate Blackbeard’s ship Queen Anne’s Revenge that sank near the North Carolina coast in 1718. North Carolina wanted to use Allen’s copyrighted material, but didn’t want to pay. The state legislature stepped in with “Blackbeard’s Law” — designating all photos, videos, and other documentary materials of shipwrecks to be public records. Allen then sued N.C. for infringement (Cooper is N.C. Governor).

          [...]

          Due Process and Takings are not expressly raised in this case are interesting. Even without CRCA, a copyright holder may be able to bring a Federal Due Process or Takings case against a state who infringes the copyright. A major difference here is that copyright damage and injunction statutes go far beyond what is required for a due process violation or taking. Mr. Park explained for the State how the copyright-owner friendly damage regime is one reason to protect sovereign immunity (and taxpayer money).

        • Supreme Court Hears Oral Argument in Copyright Sovereign Immunity Case

          This post, from guest author Jonathan Band, first appeared on the Disruptive Competition Project. While the case addresses sovereign immunity with respect to copyright claims, it directly implicates the Florida Prepaid decision which applied sovereign immunity to states who infringe patents. Later cases interpreted Florida Prepaid to bar actions by defendants seeking to invalidate state patents in federal court. Given the large number of lawsuits by state entity patent owners, this represents a serious issue in patent law.

          On Tuesday, November 5, 2019, the U.S. Supreme Court heard oral arguments in Allen v. Cooper, a case considering the constitutionality of a statute limiting state sovereign immunity against claims for copyright infringement.

          As a general matter, states have immunity from claims for violations of federal law unless they waive their immunity or Congress abrogates that immunity in a constitutionally permissible manner. In 1990, Congress passed the Copyright Remedy Clarification Act (“CRCA”), which sought to abrogate state sovereign immunity from copyright claims. In 1992, Congress passed similar statutes with respect to patent claims and trademark claims. The Supreme Court found the patent and trademark statutes unconstitutional in 1999 in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank and a related case. Thereafter, lower courts have repeatedly found that the CRCA is also unconstitutional, relying on Florida Prepaid.

          In this case, Allen, a photographer, alleges that the state of North Carolina infringed his copyright by uploading his photographs onto a state website. The Fourth Circuit dismissed the case, finding that the CRCA was unconstitutional under Florida Prepaid. The Supreme Court granted certiorari. The central issue in the case is whether the CRCA can be sufficiently distinguished from the Patent Remedy Act at issue in Florida Prepaid.

          [...]

          The Software and Information Industry Association (“SIIA”) filed an amicus brief in support of Allen. SIIA claimed that after Florida Prepaid, “the amount of reported state infringements increased substantially.” SIIA and its members have not pursued copyright infringement actions in the twenty years since Florida Prepaid, but “given the ease and scale at which copyright infringement was and is committed in the digital environment, Amicus is quite sure that the reported infringements represented just a fraction of existing intentional infringement.” SIIA noted that due to sovereign immunity, states compete in the intellectual property marketplace under two different sets of rules: “they may take full advantage of their own intellectual property rights, earning millions in revenue from those protections, while refusing any consequences when they deprive other authors and innovators of their constitutionally protected rights.”

          SIIA conceded that negligent acts of infringement by states do not constitute due process violations. However, because Allen’s complaint alleged that North Carolina deliberately infringed his copyright, SIIA argued that the Court could find the CRCA constitutional as applied to this case.

        • Tech Companies Warn U.S. Against Harmful Copyright Laws Worldwide

          Major tech companies including Google, Facebook and Twitter are concerned about harmful copyright legislation being created around the world. Industry groups warn that these developments, including the EU Copyright Directive, harm the interests of US companies, while conflicting with various free trade agreements.

        • Police Shut Down Thailand’s Most Popular Pirate Site Following Hollywood Request

          Thailand’s Department of Special Investigation has confirmed the shutdown of the country’s most popular pirate site, Movie2free.com. The streaming portal was shut down following a request from the Motion Picture Association. The site’s operator, a 22-year-old man, was arrested earlier in the week and has yet to be charged.

        • Japan Pirate Site Traffic Collapsed 50% in Four Months, With a Little Help From Cloudflare

          A report published by the Motion Picture Association reveals that traffic to pirate sites focused on Japan halved between March and June 2018. A significant part of the collapse is attributed to the closure of giant manga site Mangamura and two similar platforms. Interestingly, especially considering criticism elsewhere on the piracy front, information provided by Cloudflare reportedly uncovered the identity of Mangamura’s operator.

Think Tanks, Bristows, ‘Simmons’ and ‘Birds’ Can Only Ever Lie to Us About the Dead Unified Patent Court (UPC)

Posted in Deception, Europe, Patents at 11:46 am by Dr. Roy Schestowitz

Don’t listen to the likes of Bird & Bird and Simmons & Simmons; they’re the very reason this abomination exists in the first place

A clump of feathersSummary: The UPC is a dead bird, but lobbyists of the litigation giants would have us believe otherwise, in “In-depth Analysis” which is anything but (it’s just propaganda with the veneer of officialism)

THE Unified Patent Court Agreement (UPCA) is doomed. It has been doomed for a while. Nothing has changed. Some words from groups that call themselves “think tanks” have no concrete bearing. It’s just about perception-shaping. PR stunts, to put it bluntly…

“Team UPC’s pleadings border or verge on the comical.”But OK, we get it… Team UPC got a little excited some days ago. Can it use such “think tanks” to bamboozle the general public? Maybe even some high-profile judges in Germany? Maybe politicians across Europe? The opposition to the UPC only grew over time (at least five European governments now oppose it at one level or several levels).

Team UPC’s pleadings border or verge on the comical. They lie so often and so recklessly and when called out on it they run away! Don’t expect them to actually debate their position as they very well know their arguments are weak/invalid.

We’re rather disappointed that someone invited them (Bristows LLP at least) to a pro-FRAND event — an invitation they used for perceived legitimacy by tweeting: “Should component makers receive exhaustive licenses? Pat Treacy joins a panel discussion at @FOSSpatents conference in #Brussels – 12 Nov…”

That’s in a few days. @FOSSpatents retweeted this only because he had been mentioned. I already spoke to him about why inviting these people is bad karma. He pro-actively tried to defend this decision. They’re always lying at IP Kat and they’ve turned that blog into a pro-FRAND, pro-patent trolls farce. Here’s her colleague, Edward Nodder, with the UPC propaganda — the first blog post in a very long time; he is again pushing the malicious UPC, with help from IAM’s parent/patent company.

Bristows amplifies some blog post entitled “European Parliament publishes research paper on how Brexit may affect UPC” and of course Bristows just twists whatever came out of there. It’s a think tank, not the European Parliament, which merely published it. In their words: “The European Parliament (EP) published on 5 November 2019 a research [sic] paper EU Patent and Brexit, an “In-depth Analysis” which considers how Brexit may affect the proposed unitary patent and Unified Patent Court (UPC) system. It was requested by the EP’s Committee on Legal Affairs (JURI) and commissioned, overseen and published by the EP’s Policy Department for Citizens’ Rights and Constitutional Affairs.”

It’s more JURI than European Parliament per se. “Not very deep,” Benjamin Henrion rightly called it. “They barely scratched the surface.”

It’s short and shallow. “EPO have their lobbyists in Brussels,” Henrion reminded me, so we view this ‘study’ as lobbying disguised as “research”. We have legitimate reasons to view and to treat it that way. Thankfully, some people have already responded to it. Critics find lots of issues.

“JURI outsourced a report on Unitary Patent status,” Henrion wrote, “while they should have looked at the actual constitutional complaints. Parliament said in 2012 “(i) the Contracting Member States can only be Member States of the EU” which solves the UK Brexit question https://www.europarl.europa.eu/RegData/etudes/IDAN/2019/596800/IPOL_IDA(2019)596800_EN.pdf …”

Later they get worried about more 'brexits'. Why have they outsourced and to who exactly? Take a wild guess!

In reality, the Parliament needs to arrest people (some of the people in the EPO’s management committed actual crimes), not push illegal treaties.

As Henrion added: “New European Parliament report written for JURI, which does not address any of the legal questions, just trying to push it through. Cost of litigation will be higher for defending SMEs, in an already expensive system #upc https://www.europarl.europa.eu/RegData/etudes/IDAN/2019/596800/IPOL_IDA(2019)596800_EN.pdf …”

Obviously.

Even some people in the litigation sector don’t disagree. One of them said [1, 2]: “The problem, and I agree with you on this, is that the UPC might be used by large firms to threat or crush SMEs, regardless of the merits of the case, just playing on the costs. It is a risk. In my opinon the schedule of court fees needs a revision. [...] 1st instance ruling, Italy: average total costs according to my experience 25k-35k / peak 30k-40k. Thus, considering the high court fees of the UPC, the UPC system would be ok only in comparison with the case of multiple litigations in multiple jurisdictions. Otherwise not…”

He spoke to me as well; he’s relatively reasonable and it’s not the first time he admits those things; he doesn’t parrot the general Team UPC ‘bible’…

The UPC is clearly an attack on SMEs, just like the EPO is. At times even Team UPC admitted this (that it had lied about SMEs).

“They need to scrap the whole thing because it was written for, and by, litigation firms and their lobbyists whose largest clients aren’t even European and are monopolists,” I told the person above (not named in respect to him; he might receive flak from Team UPC).

Bristows perhaps decided that the above wasn’t sufficient propaganda for the zombie UPCA. So within hours it also published “Dutch parliament approves amendment of national patent law to implement UPC system” and apparently paid to buy some more audience (almost nobody reads their blog, which is technically broken a lot of the time). “The Netherlands has ratified the UPC Agreement (depositing its instrument of ratification in September 2016),” they admit. So this is hardly news but, as they recently admitted to the Financial Times, an attempt to give an illusion of “progress”.

Typical Bristows!

Later they wonder why they’re being ridiculed. WIPR, boosted by Team UPC and quoting Team UPC (e.g. Simmons & Simmons), soon followed with propaganda in its site and in Twitter. Team UPC then quoted Team UPC from this ‘report’: “Kevin Mooney, partner at Simmons & Simmons in London, said that the UK government’s message on the UPC has been consistent. “I don’t think there are mixed messages at all,” Mooney said.”

Liar! Liar liar!

If one examines actual comments from people who aren’t in Team UPC and haven’t crafted this monster, the lies very soon become evident. But they’re suppressing comments, as we pointed out over the years. They’re rigging the public debate by outright censorship.

WIPR is only quoting Team UPC but not actual people impacted by UPC because this site is trashy propaganda that spikes real journalism! (I’ve heard stories about them)

Team UPC is also linking to Bristows, so it’s basically an echo chamber [1, 2] like this: “The paper „notes that the UK’s ratification of the UPCA [..|] sends a <somewhat mixed message>; eg, the UPCA provides for respect of EU law’s primacy & reference to the CJEU [...], yet the UK has stated that it wishes to leave the EU’s single market and the CJEU’s jurisdiction.“ …”

One prominent proponent of the UPC wrote: “The same reasoning applies to Germany as well. UPC system can be expected to be rather complex and expensive, in particular for SME‘s.”

“SMEs were at no point involved,” I responded to him and Henrion said: “German government and its Ministry of Justice also had to provide a study on the impact of UPC on SMEs. It is still time to request it, on last page: “There is no compliance burden for the economy, especially for small and medium-sized enterprises.” https://stjerna.de/files/Unipat_BMJV&GG.pdf” (citing the recent paper from Stjerna).

Another UPC watcher responded: “Are you sure about that, @EP_ThinkTank? If the EPO refuses an application, no european patent is granted, no unitary patent can be born and the UPC has no review power over the EPO refusal.”

There’s a screenshot in there. I reminded him that the EPO breaks its own laws; it would be insane to trust it with courts. “Kluwer Patent blogger” (probably Bristows) then did another propaganda piece that said:

The jurisprudence of the Court of Justice for the European Union is not excluding the possibility to allow a non-EU Member State forming part of the UPCA. This is one of the conclusions in ‘EU Patent and Brexit’, a research paper which was requested by the European Parliament’s Committee on Legal Affairs and commissioned, overseen and published by the Policy Department for Citizens’ Rights and Constitutional Affairs. The report was published on 5 November 2019.

All the comments refute this piece, which is little but so-called ‘unitary’ (whose?) patent propaganda.

Also, as usual, the signal is only in the comments, not the (likely-by-Bristows) original ‘article’, which would be self-promotional spin that resembles what Bristows’ posts elsewhere. Notice that first comment, which made it past the strict moderation (they often censor UPC critics):

Astonishing! Despite representing by far the most lightweight analysis that I have ever seen of the impact of Brexit upon the UPC, the report is presented as an “in-depth” analysis.

It adds nothing to the discussion to state that “the jurisprudence of the CJEU is not EXPRESSLY excluding the possibility to allow a non-EU Member State forming part of the UPCA”. This merely reflects the fact that the CJEU has never been asked to opine on that point. Therefore, at a very minimum, any serious legal analysis would have gone on to consider whether there are any other reasons (such as the sections of Opinion 1/09 dedicated to discussion of the Principle of Sincere Cooperation) to interpret Opinion 1/09 as IMPLICITLY excluding the participation of a non-EU Member State.

The absence of any such discussion means that a more appropriate description of the report is a representation of currently prevailing POLITICAL (as opposed to legal) views within the European Parliament. Nevertheless, I have no doubt that the conclusions in the report will be relied upon by supporters of the UPC as representing some sort of conclusive evidence of the absence of barriers to the UK’s continued participation. Forgive me if I remain unconvinced.

What other comments were posted there and possibly censored? It’s hard for UPC critics to have voice themselves, except perhaps in orphaned “tweets”. The litigation team of Big Pharma (Rose Hughes) posted a loaded and misleading headline (phrased as a question, to which the answer would characteristically be “no”).

So what we have here is an outsourced “European Parliament Think Tank” and the EPO/litigation think tank IP Kat. Team UPC is seemingly everywhere, rigging the debate or pushing to ruin Europe for lawsuit euros and patent trolls. Hughes wrote:

The European Parliament Think Tank has issued a paper on the question of whether the UK can remain a member of the Unitary Patent Court (UPC) in a post-Brexit world. The cautious conclusion of the paper is that “it seems not per se legally impossible that the UK can stay within the UPCA [UPC agreement], even when not an EU Member State”. The problem of the UK’s continued membership of the UPCA arises from the fact that, when the UPC was conceived, nobody envisaged the UK unilaterally deciding to leave the EU.

The EU paper outlines the issues contributing to the uncertain future of the UPC and the potential involvement (or not) of the UK in the UPC project going forward. These include the reluctance of Germany to ratify the agreement before Brexit and the unclear position of the UK Government on whether the UK still wishes to be a member of the UPC (and thereby subject to the jurisdiction of the CJEU).

[...]

The UK Government’s position is that the UK wants to “take back control” of its laws by leaving the jurisdiction of the CJEU. However, the UK Government has also ratified the UPC agreement (UPCA). According to the UPCA, the UPC will apply EU law and decisions of the CJEU will be binding on the UPC. Therefore, as things stand, if the UK continues to be a member of the UPC post-Brexit the UK will continue to be under the jurisdiction of the CJEU.

No comments when we first checked. Were some deleted? We’ve already proven that they delete UPC-hostile comments. Got to control the narrative, right? For the “greater good” (of litigation).

Later on two comments showed up; one said: “The paper does not mention that under Art. 1 UPCA only EU member states can be part of the UPC!
Moreover, the paper confuses the origin of the European patents with their validation states: in Italy there are twice more European patents in force than in the Netherlands…”

Another comment said: “The Lexico dictionary gives the following meaning for esoteric: “Intended for or likely to be understood by only a small number of people with a specialized knowledge or interest”. I find it difficult to see how Ms. Hughes’ use of the word can be criticized.”

So comments aren’t buying what Hughes is saying; remember who she works for.

Anyway, not much to see here, except another charm offensive from Team UPC and a think tank grossly overselling a ‘study’.

The EPO’s Management is Trying Really Hard to Distract the Media From EPO Unrest (and It Has Been Partly Successful)

Posted in Deception, Europe, Patents at 10:15 am by Dr. Roy Schestowitz

We’ve only seen two media reports and both are in Dutch (which not many people can see and read)

Hague EPO protest

Summary: We take a look at the profoundly bad situation at the EPO (examiners unable to do their job properly because of rogue leadership); we also reexamine how media covered — or rather refused to cover — this urgent issue

OUR previous post ended by citing Léon Dijkman’s question about patent quality with emphasis on the USPTO and EPO (we have more on that in our daily links; other publishers have covered that but they only focused on the US).

When the European Patent Office becomes even worse than the US Patent (and Trademark) Office you know something is amiss. Law firms say that it’s nowadays easier to get software patents in Europe than in the US (after 35 U.S.C. § 101); this was said when Battistelli was in charge and nothing has improved under António Campinos. Examiners are well aware. Examiners complain. They’re rightly concerned about it. The EPO is becoming the patent equivalent of so-called ‘diploma mills’. Those are ticking time bombs.

Some examiners were courageous enough to put their job at risk just so that Dutch (and hopefully international) media will pay attention to EPO affairs. One small publisher covered the protect, as we mentioned two days ago (see protest photo above). Found via SUEPO was also this article from Rijswijks Dagblad. To quote the Dutch text: “Rond de 600 medewerkers van het Europees Octrooi Bureau in Rijswijk hebben bij de Portugese ambassade in Den Haag gedemonstreerd tegen de president van hun werkgever. Dat meldt Omroep West op haar website. De Portugese president António Campinos, wordt verweten dat hij ondanks toezeggingen niet met het personeel in gesprek wilt.”

There will probably be translations available soon.

Almost half of EPO workers (in that site) went to protest against their employer. Brave people! Campinos will hopefully start getting ‘the picture’; the staff doesn’t want him. Soon afterwards came this anonymous blog post about the protest (we can only guess who wrote it because it’s quite detailed and fair). Here are some portions from “Protest in The Hague against deteriorating working conditions at the European Patent Office”:

Back to sad old days at the European Patent Office. Last Thursday, hundreds of EPO staff members protested outside the Portuguese Embassy in The Hague against the lack of justice and deteriorating working conditions at the EPO. They are also concerned about the way the management is pushing for reforms without proper consultation of staff representatives.

It was the first time a protest was held in The Hague under the presidency of EPO president António Campinos, who has the Portuguese nationality. Last month, a demonstration was organized in Munich around the meeting of the Budget and Finance Committee.

[...]

Protesters in The Hague told the regional public broadcaster Omroep West that Campinos has failed to restore the social dialogue with staff members. One of them said: ‘This is because the team around the president is still the same. So even with a new president nothing changes.’ He or she only wanted to speak on condition of anonymity with Omroep West: ‘There is a culture of fear at the EPO. Even giving this interview makes me feel uncomfortable. If I am recognized on photos, this will surely have consequences at work. So we don’t want such photos to be published.’

Staff are particularly concerned about plans of the EPO to cut costs which, according to the Office, is inevitable for the long-term financial sustainability. This conclusion is based on the 2019 Financial Study, carried out by Mercer and Oliver Wyman. The aim of the study was ‘to identify to what extent funded and unfunded benefits in 2038 are covered by pension assets or available cash surplus’. The conclusion: the ‘Financial Study 2019 indicates a coverage gap in all but the Optimistic scenario in 2038 (…). As a crucial next step, potential measures should be identified which the EPO management can consider to close the gap and ensure financial sustainability of the Office. Suitable measures are required to reduce the benefit funding gap, increase the available cash surplus or deliver on a combination of both’.

[...]

Despite the criticism, the management seems determined to go ahead as planned, and has reportedly found an innovative way to hear what staff members think should be the way ahead. Instead of discussing measures with staff representatives in the CSC or the SUEPO, as would seem the most logical way in this highly complex issue, all staff members have received individual requests to tell the team managers which of the ten proposed measures to cut costs they would prefer. They can file their answers to their managers next week at the latest. It is only after this exercise that four representatives nominated from amongst elected LSC and CSC members are invited to discuss the proposals with four members of the senior management team.

“On board of the Titanic,” the first person to comment, dropped in the following shocking figure:

Just heard that a huge number of newcomers joined the EPO Academy for examiners in October in The Hague: FIVE.

For youngsters working at EPO makes no sense: a repetitive work to be performed under very unhealthy time/production pressure and no attention to quality, a career with no perspective of personal development, under 5 years’ contracts with no guarantee of permanent employment and all this with the risk of being fired within a click of fingers at HR’s discretion: what a surprise that this does not the masses any longer.

Some of the work is being outsourced to private companies. Also, the salaries have become so appalling that one can barely pay the rent with them! We covered one such job in The Netherlands back in autumn.

“SPatel,” the next commenter, said that the European Patent “Office is a monopolist”:

Management has no interest in consulting Staff Representatives.
As SRs work hard to understand the topics thrown at them within the short time given to them (reading the “Financial Study” requires a bit more than a week, understanding it, the methods used, where the numbers came from,… a lotlonger, yet Staff Representatives have done an excellent job in dissecting the “study” within such a short time), but the president wants to confront SR with “faits accomplis”. Budget and Finance Committee has already given the go ahead. The president already started telling staff members that now his hands are bound, as the member states representatives have voted yes on the set of measures. And he wants to divide staff, by telling staff representatives that staff has voted in favour…

There is no gap!

The EPOffice is a monopolist, the “concurrents” mentioned in the financial study as reason why fees cannot be increased cannot issue European Patents, they issue National Patents. To get the same coverage, the fees via the national routes would exceed the route via the EPOffice by far, without any assurance that you would get the same coverage in all of the states you’d actually choose to request a National Patent….

These are the real voices of real people, not corporate media or a bunch of law firms in the EPO’s pockets (or vice versa). There’s lots more of that in IP Kat comments right now. The subject? Patent quality. Seeing how the IP Kat moderators sometimes nuke comments (individual or entire threads) when these comments upset EPO management, we’ve decided to reproduce these and highlight some bits. Some of these comments are posted by attorneys (based on their posting history) and the general consensus is that quality is a real and growing issue. Here’s one comment:

There is no doubt that EPO Examiners are presently under more productivity pressure than 10 years ago, and that has led to increased impatience with applicants, whilst at the same time Boards of appeal are less likely to reconsider the entire case de novo to give the applicant a fair second opportunity. In my experience Examiners are less helpful in explaining what scope of claim could be allowed, and they often adopt quite a negative mindset which is difficult to change. Sometimes it is clear that EPO Examiners are learning the sorts of tricks that opponents use in formulating very imaginative objections. Sometimes I think Examiners see it as some sort of argument, especially when they start refusing to allow amendments or raise entirely new unsearched matter objections for new amendments. That did not happen 10 years ago where things were much more friendly and cooperative, and Examiners did not use their discretion in such a forceful way. I would therefore say that the EPO has become a less friendly and more legalistic. In my experience it rarely grants claims which are too broad, but it does struggle with complicated cases which would require more depth of understanding and necessarily more Examiner time. However I suspect Examiners just don’t have that extra time to give, and so in this respect standards have slipped.

By “Quality, what do you expect” the following comment was posted:

It would be interesting to see how many patents are revoked or severely limited in oppositions before the EPO on the basis of documents which were not found during the initial search. No need to wait to see what happens in national courts. The latency time of those results is much too long.

That some examiners have after 10+ years never or very rarely refused an application does not show that quality is their prime concern. It is easier to grant by closing both eyes than to write a refusal. The points are all what matters!

When the former president boasts about the fact that under his tenure 82% more patents have been granted, and that the present one wants an increase of production of 20% any discussion about quality is quite rhetoric.

Given the time/action which is allowed to examiners, you cannot expect wonders. The new recruitment policy, and the departure at a more and more young age of experienced examiners will certainly not improve quality. But the rules of modern management are merciless, and the pseudo managers of the EPO are proud of their ideas.

The problem is that management dwells in so-called positive user satisfaction surveys, whereas the audit figures tell a different story, see the quality report above. Simply dwelling on past glory is not enough. If in the past, the EPO was renowned for its quality, present management is satisfied if the quality is considered better than that of the USPTO.

And in order to gain support from the AC, the present management gives a quite apocalyptic picture of the financial situation! That the premises underlying the new financial study are anything but reasoned or reasonable is a matter of fact. What do you expect?

MaxDrei (attorney) said, “EPO Quality Managers? Presumably they decree that no patent ever issued by the EPO should ever be revoked by a court, post-issue, for added matter.”

Read the whole thing:

What is “quality” depends on who you ask. Consider, for example, the “quality” of management, within the EPO, of amendments made after filing of a patent application.

An Opponent would say that the EPO is right to be ultra-strict. An Applicant would say that in being so strict, the EPO is wrong.

So what about a “neutral” observer, say, a judge who hears consolidated infringement/validity cases. That judge would presumably say that the EPO is at an optimal level of quality under Art 83, 84 and 123(2) when it accurately mediates between “fair” protection for Applicant and “reasonable” certainty for everybody else.

And EPO Quality Managers? Presumably they decree that no patent ever issued by the EPO should ever be revoked by a court, post-issue, for added matter. Which presumably dictates, in consequence, a FAILURE of quality standards at the EPO, through the loss of any balance between fair protection and reasonable legal certainty.

Or, to put it another way, how can it happen that the established case law of the EPO requires Applicant to prove a negative, and to a “beyond any doubt” level of proof, namely that the requested prosecution amendment does NOT add matter. What sort of “quality” does that case law force?

Derek Freyberg then said the following (highlight) falsehood:

1. In my general experience, both US PTO and EPO examiners are competent, motivated, and helpful.

But the EPO system has a major advantage over the US system when an applicant encounters an intransigent examiner. If the US examiner is a primary examiner, there is essentially no review of that one person’s action short of appeal unless that action is so outrageous that management can be persuaded to intervene. In the EPO, examination is by a three-person panel, so that even if the lead examiner is difficult, his/her colleagues may well keep extremes in check.

Also, it’s possible to compare allowance rates for US examiners, through websites such as BigPatentData (though that is a subscription site) or the now no-longer-updated Examiner Ninja. If you look at a particular art unit (examining area), you may well see allowance rates varying by a factor of two between examiners. This should not be the case – these examiners are, more or less by definition, handling highly similar applications, randomly assigned, and the allowance rates should be similar. The US PTO has been very poor in dealing with this. The EPO examining division system seems to avoid this again by the use of three-examiner panels.

I’d like to see the US PTO make a concerted effort to review examiner statistics and try to “level the playing field” for applicants, so that your chances of allowance are not so dependent on the examiner you get. Three-person panels are almost certainly a non-starter, though.

2. One should use caution when comparing invalidation statistics between the US and Europe (or essentially anywhere else).
In the US courts, patents are statutorily presumed valid and invalidation requires proof of invalidity by the “clear and convincing” standard. CAVEAT: the Patent Trial and Appeal Board in inter partes reexaminations applies the looser preponderance of the evidence standard.
But, as I understand it, almost everywhere else, there is no presumption of validity, and so a patent can be more easily invalidated.
So a higher invalidation rate in Germany, say, than in the US does not to me necessarily imply that EPO patents are getting weaker.

Such EPO apologists quickly received a response: “I do not want to take your illusions away, but the notional three men examining division only exists on the paper.”

This response is a lot better:

Dear Derek,

I do not want to take your illusions away, but the notional three men examining division only exists on the paper. Once the first examiner has signed, and there was no oral proceedings, there is little chance that the second member or the chairman will say anything against the decision taken by the primary examiner. If they would do so, they could be faced by retaliation by the primary examiner in their own cases. It is a sort of equilibrium between the various interests, the prime interest of each and every examiner being that the production targets are achieved.

Under ISO 2000 there has been a procedure called “CASE” in which divergences between the members of the division have to be recorded. There is no surprise that the result of CASE is that nearly 100% of the files are considered showing no defect whatsoever. Some directors/team managers have asked not to reach the level of 100% and to record some divergences, as it is not plausible that there are barely any problems, when the audit shows that conformity has reached a low level of ¾ of the “products”.

The new VP1 is pushing the introduction of a “Collaborative Quality Improvement” scheme, with the aim to force the divisions to discuss and record the discussions between the members of the divisions before granting a patent. As such the aim is to be fostered, but the downside is that the time and efforts spent on those discussions will not be rewarded at all. At the EPO the pilots work always very fine, but after roll-out, reality hits and the results are far from the expectations. This was the case with CASE (sorry for the pun).The “Collaborative Quality Improvement” scheme will be rolled out office wide. The result is foreseeable like for CASE.

In case of oppositions and of oral proceedings in examination, there is a better chance of collaboration between the members of the division. But there is no guarantee. In principle, all members see the annex to the summons, but it is not infrequent, that on the day of the oral proceedings the division has, after careful examination, a different opinion. This is not bad as such, and to be encouraged, but the work should not be done on the day of the oral proceeding, but well in advance. Reward for this preliminary, but important work, nil! This way of doing is legal, but goes to the detriment of the parties.

In the early days of the EPO, the aim was “Applicant friendliness”. With the present production pressure, this aim has become obsolete. What matters now is “Production friendliness” so that the nth plan of the upper management is fulfilled so that they obtain the bonus they think they deserve.

The media in Europe and elsewhere did not mention “Collaborative Quality Improvement”; we were probably the first to write about “Collaborative Quality Improvement”, which is an Orwellian misnomer.

Derek Freyberg also mentioned “invalidation rate” and people were quick to respond; As mentioned in previous articles (based on staff representatives) and in the following comment: “The most compelling evidence is the EPO’s own quality report from 2018.”

The EPO's response was to scuttle those responsible for that. Now read the following comment:

The most compelling evidence is the EPO’s own quality report from 2018. Once you have delved through the extensive timeliness and user satisfaction data you find the following:

Figure 36: Percentage of patent grants found compliant by quality audits (page 41)
2016 – 85.4%
2017 – 84.7%
2018 – 76.6%

This shows that in 2018 there was a startling drop in the quality of patents granted by the EPO. According to the EPO’s own data almost one in four patents that it granted in 2018 were not of suitable quality. That is astounding. The EPO seems almost to gloss over this data despite it being, to my mind, the most important aspect of patent examination. It prefers to focus on customer satisfaction and timeliness as measures of quality.

http://documents.epo.org/projects/babylon/eponet.nsf/0/79B3608B5B4D3F71C125842D0040675A/$File/quality_report_2018_en.pdf

Notice that massive collapse during Campinos’ first year in Office? On Friday the EPO tweeted: “Some of the initiatives we will be working on in the upcoming years focus on expanding the choices available to applicants when it comes to the timing of the patent grant process.”

As if timeliness is what applicants are after; what good is a patent that’s invalid and bogus? Irrespective of timeliness?

Here’s a new comment from Peter Smith (maybe a fake, generic name):

Bad patents that are wrongly granted always attract the most attention. However, to get a rounded view of the quality of examination, you also need to consider good patent applications that are wrongly refused. I find this is a particular problem in US prosecution, where some intransigent examiners seem to see it as their role to come back with successively less plausible objections until the applicant runs out of patience or money.

One way to iron out individual inconsistencies would be to compare rates of grant / refusal / number of examination reports between different examiners working in the same technical field, if that is not already done.

That would not account for potentially worse applications coming in, conjoined with buzzwords like “hey hi” (AI); the EPO nowadays openly invites and welcomes bad applications. We wrote about that before. The EPO follows the ‘Chinese model’ (check how many patent applications are filed there each year!).

European media should be absolutely ashamed of itself for the way it covers — or does not cover — EPO failures and corruption. I’m through getting upset about it, at least personally, having become accustomed to it by now. It is, to my knowledge or in my mind, a form of complicity. It totally destroyed my perception of media’s ability to hold corrupt officials accountable. They keep telling us how in countries like China the press is controlled by the government or won’t criticise authority. As if here in Europe’s we’re so much better off…

Guess what?

Over the past days we’ve reviewed press coverage very closely. We wanted to see who (if anyone) writes about the above issues and the protest. The findings weren’t out of the ordinary.

Days ago the EPO was retweeting puff pieces from its propaganda partner IAM, spreading lies EPO paid for. “Study released by the @EPOorg sheds light on the growing sophistication of smaller businesses seeking protection for their inventions,” said the tweet. They more or less copy-pasted what the EPO paid for. The truth is that they intentionally harm SMEs, but as recently as Friday (yesterday) we saw “SME” tweets from the EPO along with the #IPforSMEs hashtag. Responding to the EPO’s Friday “SME” tweets, Benjamin Henrion wrote: “When you are hit by a patent troll, investment is threatened, and you face the risk to see your product ban from the market. Your propaganda is always going in the same direction…” (with #IPforSMEs at the end)

The EPO writes those junk #IPforSMEs tweets every day or every other day for at least a year if not a couple of years. The mere volume of this nonsense makes it too overwhelming to confront. The old saying goes, repeat the lie or keep flinging crap at the wall; eventually something might ‘stick’.

The above propaganda from IAM (cited by the EPO itself, having dealt with the EPO, so it’s a back-rubbing exercise) was soon followed by more promotion by IAM’s parent company. These want to broaden this propaganda’s reach and there’s more of the same on the same week. Then, shortly afterwards, World Intellectual Property Review (WIPR) again unmasked itself as an EPO mouthpiece, just like IAM. It’s truly ridiculous, but we’ll quote from it in a bit…

They’re taking EPO-sponsored words at face value. It’s grotesque; it is a form of journalistic misconduct and WIPR wasn’t always like that, but staff changed and objectives are restored (the site exists to serve patent maximalists).

Of course, as usual these days, no investigation is needed. No fact-checking. Nothing…

As noted twice on Thursday morning and afternoon, the EPO overwhelmed the media with puff pieces. This, we believe, is how it prevented media from paying enough attention to EPO protests (2 protests in two weeks). 5 press releases were issued in 2 days, resulting in puff pieces from press outlets such as the Khmer Times, copy-pasting the EPO’s text and the photos it supplied. It was hard to find anything about protests. A day after the protest this thing was published (warning: epo.org link). In respect to the dead we won’t name the person, but the EPO is an opportunistic liar, as its managers are claiming to ‘own’ people whom they merely reward (i.e. give EPO money to, for PR stunts!), like a Nobel price winner and now this dead scientist. They actually use an old lady as some kind of trophy! Disgusting! It’s almost like they dance on her grave to say, “look over here! Look away from protests! We own this dead lady because months ago we gave her gifts!”

Now, doing back to WIPR, its piece was terrible for a lot of reasons. It was even worse than IAM’s. It cites Licensing Executives Society International (LESI) — a front group of patent trolls — as a source. That was days after the EPO’s press release entitled “EPO and LESI hold first conference on the importance of IP to high-growth firms”; at the Web Summit Campinos pushed the famous lie; countries that are rich have ‘strong IP’. Reversal of cause and effect? Didn’t bother him to think that maybe countries that are already rich have this ‘IP’ thing. The press release was entitled “EPO underlines importance of IP protection at Web Summit”.

If we set up a thousand law firms in Kenya, would the country suddenly become affluent?

Of course not.

This is all that WIPR had to say about the EPO this week:

European SMEs are reliant on the European patent system and have used it to successfully commercialise two-thirds of their patented inventions, a new report has said.

The report, compiled by the European Patent Office (EPO), was presented to SMEs and tech company representatives at a conference held in Dublin on November 4 and 5.

The conference, organised in conjunction with the Licensing Executives Society International (LESI), focused on the value of IP to high-growth firms.

According to the EPO, it drew 300 “high-level” participants, mostly from tech companies, start-ups, and SMEs.

And that’s it! That’s all WIPR had to say! A megaphone of lies from EPO management and their trolling allies, LESI!

Congrats to SUEPO on managing to get any press coverage at all (even if just in Dutch). The EPO’s budget has clearly been exploited to bribe the media, hire lawyers to bully the media (including myself, several times in fact), and push an agenda explosively detrimental to Europe. We’ll touch on that in our next post.

Microsoft’s ‘Safe Spaces’

Posted in Microsoft at 8:56 am by Dr. Roy Schestowitz

Look, son, it's the 'new Microsoft' and it works for ICE and the Pentagon. So the 'new Microsoft' helps build detention camps where kids die and helps the Army bomb hospitals?

Summary: The ‘new’ and ‘ethical’ Microsoft that offers us all a ‘safe space’

‘Artificial Intelligence’ (AI) Will Only Doom Patent Offices If It’s Used to Stamp Millions of Invalid Patents (IPs)

Posted in Europe, Patents at 8:46 am by Dr. Roy Schestowitz

The real threat to patent systems isn’t computerised application and examination but lowering of the patent bar below what’s permissible

Artificial Intelligence: When the office tells you you've been granted an 'Artificial Intelligence' patent. And then you realise it's just another bogus software patent court will reject.

Summary: The Artificial Intelligence (AI) craze is being used as an excuse or as a pretext for granting loads of patents on mathematics and statistics (maths and stats aren’t permissible or eligible for patent coverage); by calling just about everything “Artificial Intelligence” (or AI, or “hey hi!”) they hope to mislead examiners, who are also being presented with new guidelines full of these buzzwords

THE European Patent Office (EPO) and its biggest American ‘counterpart’ (they serve the same large corporations) keep granting software patents without qualm. It doesn’t seem to bother the judge-hostile Battistelli and his ‘lapdog’ António Campinos that courts keep rejecting such patents. After all, patent compliance or patents’ validity/compliance/adherence with respect to the law only serves to impede ‘productivity’ (when defined in terms from the manufacturing sector — surely an inadequate yardstick).

“After all, patent compliance or patents’ validity/compliance/adherence with respect to the law only serves to impede ‘productivity’ (when defined in terms from the manufacturing sector — surely an inadequate yardstick).”We remain concerned seeing how corporate media has hyped up “AI” (hey hi!) in recent years — a discipline which goes back almost to the dawn of computer science and whose name is often misused to mean anything from automation to computers. “AI” is nowadays a junk marketing term (or acronym).

Max Walters, writing for patent maximalists or law firms in London (as usual), has just published this piece about “AI” as “inventor” (yes, everything is “AI” now). To quote a portion:

In-house counsel have expressed surprise at an “under the radar” update by the UKIPO on whether AI can be named as an inventor – though they say the practical implications will be limited at this stage.

Counsel in the optical products, automobile and pharma industries say they are some distance away from patenting AI-led inventions but have questioned the UKIPO’s decision to publish the update now.

The update also throws open the debate of who should be named as an ‘inventor’ under patent law and how businesses should react, they say.

When they say things like “AI-led inventions” they just mean to say that discovery was aided by some computer, using for example statistical analysis, and now they want a monopoly on it. It’s that new sort of ‘moral’ panic, framed in the context of patents being granted to “machines” instead of dealing with the real underlying issue: should patents on maths or data analysis be granted at all? This too they call “AI” and here’s a new (and newly-granted) example (via) of “HEY HI”-washing fake patents. “The claims are directed to the computer-implemented method of utilizing artificial intelligence for adaptive decision-making, or reduced to its basic form, problem solving.”

“When they say things like “AI-led inventions” they just mean to say that discovery was aided by some computer, using for example statistical analysis, and now they want a monopoly on it.”More patents on maths and stats! Hurray! Now good luck with that in courts. If that patent ever gets there…

There’s meanwhile this new conference named after buzzwords and lies, not only “HEY HI” but also the “property” canard. Rachel Platts (via Neil Wilkof) throws in more buzzwords and hype, including “big data” and “blockchain”. The introduction says: “On 17 and 18 October 2019, the Academy of European Law (ERA) hosted a conference in Brussels on “Artificial Intelligence: Challenges for Intellectual Property Law”. The conference focused on how Artificial Intelligence is, or will impact, on various aspects of IP law.”

Notice how many times they say “AI”; a lot of the time it has nothing to do with it and even the term “IP” gets misused. Here’s a sample of this buzzwords salad:

This session, presented by Doris Thums from the European Patent Office, focused on the patentability of AI inventions. Thums raised issues that pose challenges to the patentability of AI inventions, such as obviousness (it may be difficult to define the skilled person). It was suggested that the skilled person can be part of a team, so an AI program could be one of these persons. Further, when considering inventions created by AI, at present the human is not completely removed from the inventive process, such as the inputting data, setting parameters, or combining the results.

In considering whether the EPC and the EPO are equipped to handle the changes which AI and AI-generated inventions may bring, Thums was optimistic. She noted that existing legal norms and their interpretation are adaptable and case law reflects this. The results of case law has a direct impact on practice manuals and examination methods.

Also included in this session was brief input from Taliah Walklett from Nokia (who was quick to dispel common belief that Nokia were no longer around, they simply no longer make mobile phones anymore!), providing an industry perspective on patentability issues. In Walklett’s experience, since AI inventions continue to have a reasonable degree of human input, ownership issues have not arisen in practice. Further, challenges were currently being faced in searching the prior art and how to future-proof patents are being filed now.

After lunch, Vincent Cassiers (Lecturer, UC Louvain) discussed trade secrets in relation to AI under EU law. Discussion centered on the Trade Secrets Directive and how this has impacted on AI inventions, concluding that trying to control the input of AI and the algorithms seemed impractical in the face of the pace of the evolving technology. Instead, the focus should be on an obligation to explain how the processing works and how the decision is taken by the AI to allow transparency.

Benjamin Henrion has meanwhile noticed this other new nonsense — a session entitled “The European patent system: What role for patents in times of Artificial Intelligence, climate change and other global challenges?”

“More patents on maths and stats!”Well, in times of Artificial Intelligence hype wouldn’t we want to be lectured by a lawyer from Düsseldorf?

As Henrion told me that day: “Düsseldorf is the European capital of patent trolling. Worked there for a year, lots of people working in the patent industry.”

Watch the litigation nonsense plus the buzzwords:

14.00 – 15:15
Patents
Statements & panel discussion

Topic:

The European patent system: What role for patents in times of Artificial Intelligence, climate change and other global challenges?

Chair:
Dr Frank-Erich Hufnagel, LL.M., Lawyer, Düsseldorf

Speakers/Panelists:
Prof. Dr Christian Heinze, LL.M., Chairholder, Chair of Civil Law and Intellectual Property Law, especially Patent and Trademark Law, Leibniz University of Hannover
Prof. Dr Lea Tochtermann, Juniorprofessorship for Civil Law and European Patent Law, University of Mannheim
N.N., EU Representative, Unit F.3, DG GROW, European Commission, tbc

They even added “climate change” to it; as did the EPO just before the weekend. It gives a monopoly on what it calls “mitigation technology inventions” so those wanting or trying to tackle climate change will be sued, or terrified to even begin. This EPO greenwash will backfire.

“This EPO greenwash will backfire.”Meanwhile, across the Atlantic, this whole AI-wash is also a big problem. The USPTO hopes to use stupid buzzwords like “hey hi” to justify granting illegal patents that are very clearly abstract!

Aaron Gin, a longtime proponent of such patents (check his occupation for an explanation), has just revisited this subject and said:

In August, the USPTO previously requested comments on AI inventions with respect to patent law and policy. The questions from the first Notice covered a variety of patent-related topics, including whether revisions to patent laws may be needed. The current Notice extends similar inquiries to ask how AI may affect non-patent areas of IP (e.g., copyright, trademark, and other intellectual property rights). Notably, some of the questions could even foreshadow how examination procedures might evolve at the USPTO to include AI-based trademark searches. The Notice stated that public comments in these areas would aid the USPTO to evaluate whether further guidance to the Examining Corps is needed and to assist in the development of any such guidance with respect to intellectual property policy and its relationship with AI.

The USPTO has clearly made understanding the benefits/drawbacks of AI an action item for itself in the near future, on the policy front, and possibly in its own examination practice. The Notice itself pledges that “[t]he USPTO is committed to keeping pace with this critical technology in order to accelerate American innovation.” Furthermore, the Patent Office has an open job posting for a “Senior Level Artificial Intelligence Technical Expert” whose responsibilities may include “operational implementation of Artificial Intelligence (AI) infrastructure/architecture throughout the enterprise.” Going forward, it will be interesting to see how AI impacts existing patent and non-patent IP law and policy, as well as how AI-based innovations will be incorporated into the operation of the USPTO.

Read that carefully; those are obviously just software patents.

“The staff is well aware of the decline in patent quality and the collapse of patent validity rates.”The USPTO has little to gain from this in the long run as credibility of US patents as a whole will erode. Courts will throw them out at astounding rates (in our Daily Links for the weekend we’re including some reports about record-breaking invalidations, with low rates of rejections being overturned by PTAB).

Going back to the European patent system, Prof. Chien (US), who wrote some papers about 35 U.S.C. § 101, is paraphrased as saying that “key difference is the early availability, before the EPO, of a search report that allows applicants to make decisions on continuation of the application…”

Has she paid attention to what the EPO does nowadays? Chien is a very talented scholar and we cite her work a lot. But the EPO isn’t what it was half a decade ago — a subject we’ll expand on in our next post. Here’s how Léon Dijkman put it:

Last week, the Intellectual Property subcommittee to the U.S. Senate Committee on the Judiciary held a hearing to inquiry how the U.S. Congress can prevent the issuance of poor quality patents . The hearing was part of a series to educate the subcommittee on the current state of U.S. patent law in light of the proposed STRONGER Patents Act of 2019.

[...]

After the testimonies, the senators posed questions to the witnesses. Professor Wagner explained his view that Congress should be careful about instituting sweeping reforms because they will affect different industries differently and changes might well work to the detriment of smaller companies and individual inventors .

Senator Blumenthal expressed concern about perceived abuse of the patent system by pharmaceutical companies. He asked the panel (i) if there was agreement among them that pharmaceutical companies sometimes use patents in an anti-competitive manner and (ii) whether this is an issue of patent quality . Several panel members seemed to agree that there is indeed potential for “strategic behaviour” by pharmaceutical companies, but it was pointed out that more than anything such behaviour arises out of the interaction between the patent system and the regulatory framework (or lack thereof). Professor Wasserman made the interesting suggestion to let the patent office spend more time on applications that are likely to be listed in the Orange Book, i.e. the list of drugs approved for marketing .

Professor Chien compared practices and quality between the USPTO and the European Patent Office (EPO) . According to Professor Chien, the key difference is the early availability, before the EPO, of a search report that allows applicants to make decisions on continuation of the application at a very early stage of the process.

The blog post as a whole isn’t bad (for IP Kat standards), but the comments are better. Yes, the far more interesting part of this debate is in comments, of which there are plenty (the blog has long suppressed critical comments regarding EPO affairs, but patent quality deals with more technical aspects). We’ll continue this discussion in our next post, which revolves around EPO unrest. The staff is well aware of the decline in patent quality and the collapse of patent validity rates.

Need More Questions

Posted in Bill Gates at 3:38 am by Dr. Roy Schestowitz

Mr. Gates has repeatedly been caught lying about his relations with Mr. Epstein

I don't always fancy childhood. When I do, I hang around my best friend J. Epstein.

Summary: Pedophilia-centric scandals associated with Bill Gates or people working for Bill Gates don’t interest the media anymore; people shy away from the possibility of ‘embarrassing’ the so-called ‘philanthropist’, celebrated by the media he is sponsoring

Pedophile working for Bill Gates

Pedophile working for Bill Gates

IRC Proceedings: Friday, November 08, 2019

Posted in IRC Logs at 3:22 am by Needs Sunlight

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