Forum Selling Abroad [PDF]

THE U.S. Patent and Trademark Office (USPTO) must wrestle with -- or blatantly disregard -- 35 U.S.C. ۤ 101 in order to grant a software patent and even then, even if such a patent gets granted, it is likely that courts will throw it out. In this morning's Daily Links we included a number of new examples. There are court cases all the time and they always end up the same way. SCOTUS has in fact just rejected more attempts to revisit Alice, so patent litigators must be depressed.

"We've long argued that this underlines the urgency of passing UPCA and kicking off UPC. They hope to have crooked courts whose attitude towards these IPs/EPs would be very lenient."When it comes to software patents in Europe, they're also unlikely to withstand a court's scrutiny and we'll elaborate on that in a later post (later this morning). We sometimes refer to these as Invalid Patents (IPs) instead of European Patents (EPs). The European Patent Office (EPO) does not seem to care about patent validity anymore, based on its own actions.

We've long argued that this underlines the urgency of passing UPCA and kicking off UPC. They hope to have crooked courts whose attitude towards these IPs/EPs would be very lenient. They have control over judges' appointments and reappointments. Rumours say they want to put Battistelli at the top of it (instantaneously rendering it crooked).

"These people are looking to make themselves relevant with more litigation cashflow, that's all..."With only days until the Brexit deadline (I'm not in favour by the way) it should become apparent that the UPC isn't happening. So Team UPC has already shifted the debate to whether or not something similar to the UPC can be explored which excludes the UK (that would require redoing the whole ratification process, having already done a lot of rewriting, which can take years). Over at IAM, Battistelli's UPC propaganda mill (they're paid for this propaganda by Battistelli's PR agency), we learn that "Sir Robin Jacob says Unified Patent Court is still alive; other European countries still want UK to be part of it. He is going to the Hague on thursday to discuss #PharmaBioIP" (this is an IAM event and not a direct quote).

So they try to attract attendants based on what they want to hear. Benjamin Henrion meanwhile pointed out that "Software patent boosters at IAM conference on Biotech in London "He has significant expertise in artificial intelligence and deep learning based technologies, and is the lead for the firm’s AI practice group" https://www.vennershipley.co.uk/resources/events/pharma-biotech-ip-iam-event …"

Lying to himself and to others. These people are looking to make themselves relevant with more litigation cashflow, that's all...

It's not about constitutionality or science or public interest. It's pure greed. Their own.

"The typical proponent of software patents almost always misses the point that having more and more patents has nothing to do with innovation, only the number of restrictions (monopolies)."Henrion has also noted: "There might be UPC soon to the scalp list: "Et cela m’a par exemple permis de participer activement à la mise en échec d’une directive européenne sur les brevets logiciels ou à la censure constitutionnelle de la première loi Hadopi." https://pascontent.sedrati-dinet.net/index.php/post/2020/01/24/Un-systeme-de-retraite-cybernetique …" (it's all in French)

And right now in FOSDEM he distributes shirts that protest UPC, in particular its envisioned effect on software patents ("Looking for 30 people to wear a tshirt against Unitary Software Patents at FOSDEM. 20y ago, Stallman on software patents https://ajt.iki.fi/travel/osdem/ : "A big program always operates in the scope of several dozen patents, and it is impossible to keep track of them all").

The typical proponent of software patents almost always misses the point that having more and more patents has nothing to do with innovation, only the number of restrictions (monopolies). In the case of programming, it is exceptionally harmful.

It is meanwhile being pointed out that, as per this tweet and this paper [PDF], Germany is striving to be Europe's Eastern District of Texas, all at the EU's expense. This can only harm the image of the EU and of Germany (if people find out, as they did about Dieselgate or Emissionsgate). "Are German District Courts (Landgerichte) attracting #patent litigation by refusing to stay infringement proceedings pending invalidity challenges? So argues provocative article by Bechtold, Frankenreiter & Klerman, "Forum Selling Abroad", https://southerncalifornialawreview.com/wp-content/uploads/2019/07/92_3_Klerman_487.pdf …"

"They won't prosecute anyone if or as long as this is profitable and the public still tolerates it; it's like another Dieselgate in the making.""It's a racket," I responded. "And to break this racket one must first understand EPO corruption in Munich and [the UPC's] assault on the Constitution."

Henrion quoted: "With the UPC agreement in Europe, Düsseldorf is reaching for the crown among the patent court venues in the world. The patent chambers of the regional court and the court of appeals of Düsseldorf have more patent cases than all other courts in Europe [...] Germany's pro-patent litigation agenda has even drawn unprecedented public criticism from Switzerland's Federal Patent Court on Twitter, raising the question of whether German regional courts are engaging in "forum-selling"..."

"The EPO likes to boast/brag about Switzerland being most innovative, based on number of patents per capita, but what proportion of these applicants possess Swiss nationality (unlike the company)?"So the German government in Berlin looks the other way while EPO management commits crimes in Munich and it ultimately harms the general image of Germany. They won't prosecute anyone if or as long as this is profitable and the public still tolerates it; it's like another Dieselgate in the making.

One attorney who is habitually critical of the UPC wrote: "The map shows the residence of the #patent applicants versus the residence of the inventors and, basically, tells us what we already knew: Switzerland attracts companies (tax heaven) which, in turn, employ educated foreigners, expecially in Pharma (see Basel), who are commuters..."

The EPO likes to boast/brag about Switzerland being most innovative, based on number of patents per capita, but what proportion of these applicants possess Swiss nationality (unlike the company)? These tough questions may help reveal that things aren't the same as what superficially meets the eye. ⬆