01.14.20
Posted in GNU/Linux, Microsoft, Vista 7 at 7:58 pm by Dr. Roy Schestowitz
YouTube link
Summary: The window is closing (and Windows/Vista 7 closing down); the chance to use machines that the users actually control is still there
THE RELEASE of Vista 7 was over a decade ago and now it’s officially out of life. Today. After midnight.
But I won’t be using that as the primary reason to migrate to GNU/Linux or at least some BSD. A migration was well overdue for at least 2 decades. Yes, 2 decades. And I also realise most readers of this site aren’t GNU/Linux users. Many work for the European Patent Office (EPO), some are connected to the U.S. Patent and Trademark Office (USPTO) one way or another (e.g. attorneys), and I’m assuming many are examiners fed up with employers who measure everything in terms of money. To them, moneyflow is all that counts and 35 U.S.C. § 101 is seen as a barrier.
“You are a product to them and transactions take place.”So okay, I want to offer a different kind of perspective or advocacy style (than most). Forget about money. Forget about cost. I won’t be saying things like, “Linux is cheaper than Windows” or “Linux will save you money” (even if that’s true!) because that’s just not the point. Earlier this week I spent a long time explaining the notions of free and freedom. When you use Facebook or Slack it’s not “free”; you pay them. Maybe not with classic currency. But they’re paid. You might not see the payment. You are a product to them and transactions take place.
Nowadays, as more computers become de facto listening devices, it’s time to escape to something that treats you, the user, as the person in charge, in control. People tend to assume that machines they use still take instructions from them, but over time these machines actually take instructions from the real owners, the developers (Apple, Microsoft, Google) and subject the users (who hold these machines) to the will of those real owners. Do you want a machine you control or a machine that controls you? Make the choice today. Or this coming weekend. Or later this month. Or this year. But make that choice soon. Because time is running out as computing becomes more malicious over time. █
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Posted in Europe, Patents at 6:51 pm by Dr. Roy Schestowitz
The (dual) French-Portuguese national only exacerbated the nepotism stigma
Summary: The patent-granting extravaganza of what a reader and contributor of ours likes to call “Club Med” will result in great pain (not just for the Office but for Europe as a whole); pointing out who’s to blame (the culprits) is an exercise in practicality
THIS morning we quoted an anonymous comment that spoke of “hispanoportofrench friends” of the President of EPOnia. It was hardly racist or bigoted. It was a factual, accurate observation.
“When assessed outside the EPO (where judges are still being terrorised) all those abstract patent are void, null and bunk…”There’s lots to be criticised at EPOnia, even on purely technical grounds (what we did until 2014). Here’s one new example. Having highlighted this latest instance of advocacy for software patents in the European Patent Office (EPO), Benjamin Henrion said there’s a “WIPO deadline for comments [which is] c14 feb,” quoting the fragment “Computer-assisted inventions and their treatment under patent laws have been the subject of lengthy discussions in many countries around the world” from this document [PDF] that alludes to “computer-assisted inventions” (like computer-generated stuff or patents that are granted on such generative processes).
When assessed outside the EPO (where judges are still being terrorised) all those abstract patent are void, null and bunk; No honest law firm would advise clients to pursue any, knowing the EPC and 35 U.S.C. § 101 in US courts (the USPTO sees many of its recently-granted patents perishing there).
“It’s a money-grab. It’s a bubble. It will implode.”Team Campinos/Battistelli is a clueless bunch of non-scientists and all they seem to ‘understand’ is that they want as many patents to be granted as possible (and as quickly as possible because sooner or later stakeholders will realise the futility of European Patents). It’s a money-grab. It’s a bubble. It will implode. They won’t return their bonuses when that happens.
Not too long ago “MaxDrei” could be seen responding to an apparent EPO insider who is sick and tired of EPO nepotism, kakistocracy, and lies. He said:
I regret the reference in that last contribution to “hispanoportofrench friends”. Reflect on the point that the poster known as “Attentive Observer”, perhaps the most vociferous critic ever of the (French) immediate past President, might also be from that part of the world. Please don’t imply that there is one bucket in which all “hispanoportofrench” people fit. The distress is when an admirable, expert and socially valuable institution (such as a large hospital or Patent Office) becomes victim of a coup by a self-serving and incompetent managerial class that is interested only in pleasing its “make hay while the sun shines” ignorant, blinkered and greedy investor employers.
That said, I seriously regret a loss of balance in the EU, resulting from the withdrawal of the UK from Europe. An OD or a TBA composed of three active members is perhaps the safest way to get to sound decisions. Any “rogue elephant” can be guided onto the right path, but only if there is an elephant one on each side of the rogue.
In the EU, the Big Three were, until recently, DE, FR, GB. With the departure of GB, there is increased likelihood of the EU taking a succession of wrong turns, thereby bringing about the demise of the whole thing
Then there’s this response: “You are so right Maxdrei. All hispanportofrenchs do not belong to the same bucket. By the way I am and EPF too. Unfortunately (luckily?) most of us are not among his ‘friends’ saving the world. We are rather easy to spot: you can find us in front of a PC, trying somehow to make the EPO functioning, against all odds. Good luck everyone!”
“One reader and contributor of ours likes to call the collective “Club Med”.”That stigma about Mediterranean counties is an extension of what used to be a stain on France’s reputation (by admission from several French politicians on the record). One can debate if Iberian Portugal counts as Mediterranean (it faces the Pacific Ocean) and whether Corsican Battistelli is Mediterranean as he lives and works up north (Paris area and now Strasbourg). One reader and contributor of ours likes to call the collective “Club Med”. The term “hispanportofrenchs” seems to have combined some of the familiar faces in top EPO management, more so than ever after Campinos brought lots of buddies. █
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Posted in Europe, Patents at 5:41 pm by Dr. Roy Schestowitz
Summary: Team UPC’s delusions continue to unmask UPC proponents (in 2020) as totally and entirely detached from reality
THE people at the top floors of the European Patent Office’s (EPO) building in Munich must be getting a little nervous. Battistelli‘s career is practically over, António Campinos sees patent quality plunging, and he is meanwhile lobbying for software patents in Europe, seeing that — as per reports from JUVE — demand for European Patents is decreasing. By ignoring the law and kicking aside 35 U.S.C. § 101 the U.S. Patent and Trademark Office managed to fabricate ‘production’ (more monopolies granted), but as per this week’s news (more in Daily Links), SCOTUS continues throwing all these patents to the curb, as do Federal Circuit judges and the Patent Trial and Appeal Board (PTAB). The trend has been rather clear; a very small proportion of patents tested in courts manage to withstand factual scrutiny (witnesses, experts, testimonies etc.). It’s considered a crisis of confidence (in patents) and certainty (in litigation).
“It’s considered a crisis of confidence (in patents) and certainty (in litigation).”Patent law firms see the writings on the wall, so they’ve attempted a sort of entryism in the courts system (people like Judge Rader). But it won’t work, it only serves to alienate people and Rader’s court was consistently overturned by SCOTUS. As Benjamin Henrion put it earlier today, “if Boris [Johnson] has the CJEU as a redline, he will have a hard time defending UK staying in UPC. Cameron was heavily lobbied by GSK to remove the CJEU as having the last word on patent law. In the US, the match SCOTUS vs CAFC shows those patent courts are deviant: 8-0 !”
CJEU would be a key part of UPC, as envisioned/codified in UPCA. Cameron’s UK stance on that matter may be revisited in the future (we’ve heard stories).
So in a matter of about a fortnight the UPC might be squashed for good. But never mind facts; the EPO certainly doesn't let facts get in its way. We find it unsurprising but still absolutely hilarious that Bristows‘ Richard Pinckney has just published “EPO confirms it is ready to grant unitary patents” (I can also confirm I am ready to receive a trillion dollars. I confirm, so…)
“Berlin would not go ahead, irrespective of the BVerfG’s decision, if there’s Brexit. It looks like imminently there will be.”No words can describe how those posts from Bristows make the firm look. Even Team UPC ridicules Bristows. These people are beyond delusional; they’re mentally defunct.
Bristows admits that “[a]lthough the EPO’s report of the meeting refers to hope that the BVerfG’s decision will allow Germany to ratify the UPC Agreement and calls for the speedy implementation of the UPC system, it does not refer to the potential effect of Brexit on the system.”
Berlin would not go ahead, irrespective of the BVerfG’s decision, if there’s Brexit. It looks like imminently there will be Brexit.
Funnily enough even a loud Team UPC proponent has just tweeted: “DE Constitutional Court: Acc to the Court, of the 37 cases listed to be dealt with by the 2nd Senate in 2019, 10 were resolved. #UPC #ListOfLies Bundesverfassungsgericht – Jahresvorausschau 2019 https://www.bundesverfassungsgericht.de/DE/Verfahren/Jahresvorausschau/vs_2019/vorausschau_2019_node.html …”
“Team UPC needs to screw its head back on if it wants to have any credibility left when nobody even mentions the UPC anymore.”Yes, “ListOfLies”…
Way to alienate the court…
“Don’t despair,” I responded. “UPC is “Ready to Roll” because Team Campinos bought some wine and stored it at the top floor’s cellar. Bristows says “EPO confirms it is ready to grant unitary patents”…”
Team UPC needs to screw its head back on if it wants to have any credibility left when nobody even mentions the UPC anymore. In 2020, saying “UPC is coming” is like saying that “Saddam has weapons of mass destruction” (in hindsight it was a massive liability to claim so). Several law firms will have their reputation tarnished and clients upset (over false promises) when all this UPC jingoism turns out to have been a lie, orchestrated principally to make “sales” (based upon wrong assumptions). █
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Posted in Europe, Law, Patents at 7:07 am by Dr. Roy Schestowitz
Summary: The ‘constitution’ or the convention upon which the EPO is based (known as EPC) is routinely violated and nobody seems to care anymore; the EPO governs itself and conducts itself without as much as a fundamental legal text
European Patent Office (EPO) President António Campinos has done absolutely nothing to undo Battistelli‘s attacks on the autonomy of EPO judges. Nothing! To make matters worse, Campinos is already meddling in upcoming/ongoing cases, including one that shapes EPO policy on software patents in Europe. So one might say that Campinos is no different — or potentially worse — than Battistelli.
Isn’t it fascinating that EPC experts aren’t saying a darn thing anymore? Does that seem normal to them? In the age of Donald Trump have we buried the fundamental tenants of “separation of powers”?
In the blog of a company that pays him, the famous Derk Visser (author of a famous book) and the EPI (they like to make it all lowercase) push for more patent maximalism through the besieged boards that are illegally bullied by the Office (an EPC violation). Yesterday he published “When is a sub-range novel?”
The December issue 4|2019 of the journal epi Information contains four interesting contributions to the discussion on the novelty test for sub-ranges as used by the EPO.
The EPO has a special novelty test to determine whether a claimed numerical sub-range of a known broad range is novel over the known range. A sub-range must comply with each of the three criteria of the test. The criteria are, that the sub-range (i) must be narrow compared to the broad range, (ii) be far removed from known examples within the broad range, and (iii) is not an arbitrary specimen of the prior art but another invention (purposive selection, new technical teaching).
The test was formulated in 1985 by the technical board of appeal in decision T198/84 and subsequently used broadly within the EPO. Recently, several articles have criticized the test. In 2013 Thomas Leber of the EPO regarded compliance of the three criteria with the EPC questionable (see JIPLP, vol. 8, issue 7, July 2013, pages 561-565). More recently, I argued that the three criteria are incompatible with recent EPO case law on novelty (epi Information, issue 4|2019, page 27-33).
The latest edition of the Guidelines for Examination in the EPO, which entered into force on 1 November 2019, has removed the purposive selection criterion from the test (see section G-VI, 8(ii)). However, the latest edition of the book Case Law of the Boards of Appeal of the European Patent Office, 9th edition, published July 2019, still mentions the three criteria of the test (see chapter I.C.6.3.1). In addition, the book mentions a large body of contradictory case law about the purposive selection. Roel van Woudenberg argues in his recent article, that the purposive selection criterion should be kept in the test, as being consistent with the disclosure test used for novelty (see epi Information, issue 4|2019, page 34-39).
[...]
The above course of events shows that only because the President of the epi had written a letter to the EPO, did users of the EPC learn about the development of the case law and the adoption of the two-part test by most boards of appeal. If the President of the epi had not submitted his request, the users of the EPC would still be unaware of the development of the case law and, as a consequence, would still be uncertain about what test for novelty of a sub-range to use in appeal cases.
“The latest edition of the Guidelines for Examination in the EPO,” as Derk Visser calls it, contains serious violations of the EPC, e.g. allowing illegal software patents under the guise of “HEY HI” (AI). Derk Visser should understand this better than anyone, but maybe he’d rather look away. It helps sell more copies of his book.
These patent maximalists aren’t honest. They’re profit-driven and they know what kind of system brings them more money. For instance, they like to tell us all that rich countries are rich because of patents but in practice they reverse cause and effect. It’s because they’re rich they come up with protectionism and monopoly mechanisms (to maintain inequality, imperil competition). The EPO does so-called ‘studies’ to perpetuate these lies. They (mis)use words like “property”, “assets”, “right” and “invention”…
Now, citing the famous Derk Visser, whom we recently mentioned here (like a month earlier and past years), IP Kat‘s patent maximalist Rose Hughes (there are a few of them who 'took over' the feline blog in recent years) does a “me too”. It is mere repetition. Does the European Patent Institute (EPI), a front group of litigation companies, control the EPO’s decision-making process nowadays? This is insane. But the connections between EPI and EPO go quite a long way back (like exposing whisleblowers and quelling dissent).
Here’s what the AstraZeneca attorney wrote:
According to the European Patent Institute (EPI), the law on the novelty of selection inventions is unclear, given the diverging opinions of the Boards of Appeal. In view of this purported lack of clarity, the EPI president (Francis Leyder) wrote a letter to the President of the EPO requesting the President to refer the issue to the EBA. The President of EPI cited a number of recent Boards of Appeal decisions that did not apply the “purposive selection” criteria (including T 1233/05, T 1131/06, T 230/07, T 1130/09, T 2041/09, T 378/12 and T 1404/14) and a two recent decisions that did (T 66/12 and T 673/12). In the view of EPI “[i]t is clear from the above that there are clearly two incompatible lines of Board of Appeal decision as to what are the criteria to be used in deciding whether a sub-range is novel”. The President of EPI therefore suggested a referral from the EPO President to the EBA, that might ask the following question:
“What are the criteria to be used in assessing the novelty of a claim where the allegedly distinguishing feature of the claim relative to a prior art document is a sub-range of a broader range disclosed in that prior art document”.
[...]
It seems that proponents of a referral with respect to selection inventions can now only hope for a referral by a Board of Appeal (Article 112(1) EPC). Indeed, EPI urges parties in appeal proceedings who find themselves involved in a case where the use or not of the “purposive selection” criteria is influential to the case, to request the Board to refer the issue to the EBA. The opposing view is that a referral is not necessary, as the Boards of Appeal do seem to be following the approach now set out by the guidelines. Indeed, Roel van Woudenberg could be said to be pushing the issue merely because he disagrees with the removal of the purposive selection criteria (as argued his article cited by EPI).
Selection inventions have always been a hotly debated issue. In another article cited by EPI, authored by Derk Visser, it is argued that all three criteria listed in the guidelines are inconsistent with recent case law on novelty. As with second medical use inventions (another form of selection invention), critics are keen that an inventor should not “get something for nothing” by salami slicing (or as some-would have it, “sashimi slicing”) the prior art. The boarder question surrounding the EPI recent request for a referral on sub-ranges is whether the EPO is currently striking the right balance on selection inventions. What do readers think?
As usual, comments are a tad better (for the few who still comment there or have their comments approved). MaxDrei would be better off pointing out that EBA at EPO lacks independence now, by its own admission. It’s compelled to allow violations of the EPC by the Office. But he tackled this from another angle:
Robin Jacob has been known to advise audiences that “We can learn a lot from the Americans. Watch carefully what they do. And then make sure not to make the same mistake that they did.”
Observing what the Supreme Court of the USA does to patent law, one might think that, over here, a reference to the EBA can sometimes be premature.
As here, I think. The case law of the EPO emerges like Darwinian evolution. I mean, survival of the “fittest” line of legal logic. Is that not how the best EBA case law has emerged, over the last 40 years? It will do so here, I would think.
Sometimes patience is called for. Given time, things will all work out for the best. Meanwhile, our advocacy skills will decide which of the rival lines will prevail. For me, the “seriously contemplate” test can be reconciled with the Gold Standard, and makes a lot of sense.
The EBA and the other boards (BoAs) still lack their independence. Even with the UPC in its deathbed we remain stuck with courts that don’t have the ability to properly enforce the EPC and nobody talks about it anymore (IP Kat in 2020 has no connection to IP Kat of 2015. Different people!), so we ought to change that.
The next comment, “In reply to MaxDrei,” says, “I think that the proponents of a referral have a different conceptual view of law, namely as a system where there is some correct answer “out there” to any legal question (that just needs to be divulged by the judges, the Enlarged Board in this case). This correct answer is then not affected by the pleadings of the parties or our advocacy skills, such that there is also no such thing as a premature referral. Any delay just increases legal uncertainty for parties (and EQE candidates, perhaps), in this view. The epi President indeed uses “lack of clarity” a few times in his letter. Perhaps the proponents of a referral have a somewhat Dworkian view, whereas the wait-and-see attitude of the EPO fits with the Hartian view.”
This “lack of clarity” nonsense is used routinely by the anti-35 U.S.C. § 101 lobbyists in the US. So-called Section 101 ‘reform’ is a joke. Coons et al took bribes/money from litigation firms and have attempted since 2017 — always in vain — to sell laws for those who bribed them. It’s corruption. EPI just does more of the same thing here.
There are a couple more follow-ups there this morning, including mentions of evergreening:
Thanks to egna for that suggestion of a contest between Dworkian and Hartian schools of thought. I must say, that had not occurred to me but I daresay he has his finger on the point.
egna also flags up the difficulties faced by EQE candidates. Quite right too. But in the greater scheme of things, we are talking about the rather short 18 month period covered by Art 54(3) and industry uncertainty about prior art generated within that brief period. That’s not the largest source of legal uncertainty in patent law in EPC land, is it?
Personally, I think the bigger mischief lies in deciding obviousness according to a rubric written differently in the Supreme Court of each separate national jurisdiction of the 38 EPC Member States. Why can’t they all accept the established case law of the Boards of Appeal of the EPO, as they do (more or less) already on other repercussions that derive, directly and unambiguously, from acceptance the EPO’s “Gold Standard”.
Well that’s indeed the thing, isn’t it, Attentive. Consider the skilled person, interested in the “disclosure” of a document, wanting to milk it for everything derivable from it. The Gold Standard limits the “disclosure” to that which is “derivable” directly and unambiguously, from the document. But the imaginary addressee has at its disposal, to assist in the task of deriving stuff, all the common general knowledge that can be imputed to the hypothetical skilled person. Under those conditions, what the skilled person is deemed to seriously contemplate during the contemplation of the document can be seen as within the ambit of that which the skilled person derives, directly and unambiguously, from the document.
Or, to put it another way, when one deems the skilled person to be the possessor of an enormous reservoir of common general knowledge, one necessarily imputes to that imaginary being subject matter that it cannot help but “contemplate” seriously and inevitably, when performing the task of deriving disclosure from the document.
Or, to put it another way, is not the “implicit” disclosure and what the reader will “seriously contemplate” two ways of expressing much the same thought?
After all, we here in Europe do need a pragmatic solution to the “Art 54(3) art” problem which balances the need for fair protection, as between the earlier and the later Applicant, with reasonable legal certainty for the public. The AIA solution in the USA, in making all 54(3) art available for obviousness attacks, fails that test by giving too much power to the first filer. Rendering nugatory any 54(3) attacks on later filings awards too much protection to the later filer, and enables anti-social evergreening by bulk filers. A golden middle way is needed.
Going back to the whole “lack of clarity” nonsense, we’ve just seen more of that from Bloomberg’s Decker. It’s that latest spin by the patent maximalists, in relation to this new article about SCOTUS not wasting time on fake patents such as software patents. Decker decided to spin it like this: “Solicitor General in both Berkheimer and Hikma v Vanda (a method of treatment case) had said SCOTUS had created confusion over 101 but neither was good venue, perhaps because CAFC had upheld some claims in each case. Athena was suggested as an alternative.”
The Solicitor General advised against SCOTUS revisiting the issue. We covered this before. Benjamin Henrion’s response was: “SCOTUS Justices on Monday also rejected appeals to clarify the rules regarding software patents. The Supreme Court’s action leaves it to Congress to resolve an issue that’s created a legal gray area for such discoveries…”
No, that has nothing to do with Congress, but on goes Decker by tweeting: “The three software cases are HP v Berkheimer (scotus had asked for SG a year ago; SG said perhaps Athena a better area); Garmin v Cellspin and Power Analytics v. Operation Technology.
The Solicitor General (SG) actually took an OK position. And nothing is going to change. Coons et al haven’t made progress since 2017. Coons et al are hardly even mentioned by the media anymore.
Going back to Europe, nothing has changed at the EU/EP since summer. They made a statement on European Patents which pertain to and cover life/nature. They oppose these.
Recently, the EPO entertained the possibility of allowing automatically-generated patents, but perhaps foreseeing the chaos this would entail it ‘bailed out’ (albeit there’s an appeal on its way, based on press reports).
Earlier this week SS Rana & Co said:
In a landmark ruling, the European Patent Office (EPO) has rejected two patent applications[1] wherein request was lodged with the EPO for designating machine (Artificial Intelligence) as an “inventor”[2].
The ground cited for rejecting the aforementioned patent applications is that the patent applications did not meet the requisite requirement as enumerated under the EPC that an inventor designated in the application should be a human being, not a machine.
The above artificial intelligence inventor namely, “DABUS” has been in news ever since patent applications were filed with the EPO on behalf of DABUS. DABUS has been invented by Dr Stephen Thaler, Founder & Board Chairman at Imagitron, LLC.
But the EPO still allows illegal (as per the EPC) patents on software provided they’re wrapped up as “HEY HI” and that’s a very serious problem. As recently as this week KEI explained this whole “HEY HI” thing to the USPTO when it said: “In Europe the Court of Justice of the European Union (CJEU) has also declared on various occasions, particularly in its landmark Infopaq decision (C-5/08 Infopaq International A/S v Danske Dagbaldes Forening), that copyright only applies to original works, and that originality must reflect the “author’s own intellectual creation.” This is usually understood as meaning that an original work must reflect the author’s personality, which clearly means that a human author is necessary for a copyright work to exist. The second option, that of giving authorship to the programmer, is evident in a few countries such as the Hong Kong (SAR), India, Ireland, New Zealand and the UK. This approach is best encapsulated in UK copyright law, section 9(3) of the Copyright, Designs and Patents Act (CDPA), which states: “In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.” Furthermore, section 178 of the CDPA defines a computer-generated work as one that “is generated by computer in circumstances such that there is no human author of the work”. The idea behind such a provision is to create an exception to all human authorship requirements by recognizing the work that goes into creating a program capable of generating works, even if the creative spark is undertaken by the machine.” (more on that in the upcoming installment of Daily Links). █
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