02.19.20
Posted in Deception, Law at 3:17 am by Dr. Roy Schestowitz
Hard-working people who battle with a health crisis deserve sympathy/empathy, not scolding
Summary: The atmosphere of hate towards China — fuelled partly by a white supremacist in the White House — is unhelpful and insulting; dignity and understanding is the way to go
THE corporate media seems eager to humiliate those who suffer most from a pandemic while stigmatising them as “dirty” and “dangerous”. I myself am disgusted by it. The red-baiting tactics have long been leveraged by patent maximalists as well (we wrote about this about half a dozen times before) and the Chinese ‘threat’ is overplayed by those looking to change policies. The European Patent Office (EPO) has made allies with China, plus the obligatory photo-ops of António Campinos and his handler.
“The way I’ve long viewed the above conundrum, having read about this subject for years, is that China wants to get rid of this old image of “counterfeit” or “knockoff” country.” Our main concern about China is that it grants far too many low-quality patents — including perhaps millions of software patents — and it has become a lot more lenient than the U.S. Patent and Trademark Office (USPTO) even if judged by pre-35 U.S.C. § 101 days.
The way I’ve long viewed the above conundrum, having read about this subject for years, is that China wants to get rid of this old image of “counterfeit” or “knockoff” country. To China’s credit, its government contacted me about 4 times last year regarding a domain called Techrights that someone wanted to register in China. They eventually blocked that, foreseeing bad faith motivations. I communicated with a number of parties about this and the Chinese government resolved this possibly better than anything I’ve seen in the West.
“In my personal experience, Chinese law firms are sometimes more honest than people are led to believe.”Why is China embracing patent and copyright maximalism (the latter includes computer-generated works now)? Maybe they try to game the system by cheapening the concepts, granting far too many patents on every single bit of nonsense.
In my personal experience, Chinese law firms are sometimes more honest than people are led to believe. Last night we received a call from a Chinese-owned law firm, informing us that they had successfully settled my wife’s status (permanent residency). The law firm we took back in 2014 was terrible and rather displeasing. And no, it wasn’t Chinese-owned, so here’s an example where the Chinese do better, even for a vastly lower fee. Maybe that (fear that they are difficult to compete with) is the real motivation of all that China bashing, which nowadays extends far beyond Huawei (typically accusations that are immensely hypocritical). Dare we use the word “jealousy”? █
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Posted in Europe, Law, Patents at 2:14 am by Dr. Roy Schestowitz
Original here
Berlin, 19 feb 2020 — Germany cannot ratify the current Unitary Patent due to Brexit and the established AETR case-law. The ratification of the UPC (Unified Patent Court) by Germany would constitute a violation of the AETR case-law, which was used during the EPLA negotiations in 2006 to consider a deal with non-EU countries, such as Switzerland. FFII says that if Germany proceeds with the ratification, it will open up the possibility for a second constitutional complaint. The Unitary Patent signals the third attempt to validate and expand software patents in Europe.
Following Brexit, the UPC has become a different kind of agreement, whose validity passes now under the supranational jurisdiction and competence of the EU (Articles 216/218 TFEU). UK is now a “third state” within the meaning of AETR case-law, under the current transition period of the Withdrawal Agreement and, as such, the authoritative legal precedent of AETR applies now.
If Germany is misled by the patent industry and ratifies the UPC, this would be a serious breach of procedure under EU law by the German government, and a new constitutional complaint will be launched.
The “AETR” case-law (22/70) of the Court of Justice of the EU, makes clear that:
“Each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form they may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules or alter their scope.“
Accordingly, the EU has the competence to sign an agreement with the UK relating to the subject matter covered by the UPC. The fact that the UK has withdrawn from the EU, clearly brings the matter within the competence and supranational jurisdiction of the EU.
This practically means that the ratification procedure for the Agreement on the Unified Patent Court (UPCA) must now come to an end, as that Agreement no longer applies due to the current significant changes (i.e. Brexit) in the membership requirements of its own ratification rules. In addition, according to the Common Rules of Procedure of the German Federal Ministries (Gemeinsame Geschäftsordnung der Bundesministerien), section 43 (1) number 8, calls for the presentation of the connections to and the compatibility of German legislative initiatives with the EU law.
It follows that the German Government must examine first whether or not the UPCA can still be compatible with EU law, and in particular, now that the UK has withdrawn from the EU. In view of the established case-law in “AETR” and the exit of the UK from the EU, the UPCA is clearly no longer compatible with EU law.
In this respect, as the question of compatibility of UPCA with EU law has already been addressed to the highest court in Germany, the German Constitutional Court is now required to refer the matter to the CJEU for a preliminary ruling under the provisions of Article 267 TFEU, before the German judges reach a decision.
The Unitary Patent is a highly controversial and extreme issue, as it allows new international patent courts to have the last word on the development and application of patent law and industrial property monopolies including, more seriously, the validation and expansion of software patents, that is the key sector on which whole industries and markets depend. It also leaves the Court of Justice of the EU in the weakest position to have only a say in few limited tech matters. Such an unprecedented takeover of the EU’s institutional powers by external, international organizations, of which the Unitary Patent system consists, is dangerous and can undermine permanently democratic governance and with it, economic development and sustainability in entire states in Europe.
Links
- AETR caselaw on EUR-Lex: Judgment of the Court of 31 March 1971 – European Agreement on Road Transport – Case 22-70: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61970CJ0022
- Council document on ‘Institutional aspects of the EC’s accession to the European Patent Convention’: https://data.consilium.europa.eu/doc/document/ST-13742-2001-INIT/en/pdf
- Council document on ‘Request for an opinion by the European Court of Justice on the compatibility under the EC Treaty of the envisaged Agreement creating a Unified Patent Litigation System (UPLS)’: “IV. COMMUNITY COMPETENCE […] (32) As regards European patents, the aim and content of the measure consisting in the establishment and organisation of a specialised jurisdiction of an international nature for cases concerning patents, are essentially a matter that falls within Member States’ competence. However, some of the provisions of the envisaged Agreement relate to matters for which the Community has already exercised its internal competence by laying down common rules. In the light of the case law of the Court of Justice, Member States no longer have the right, acting individually or collectively, to enter into obligations with third countries which may affect these rules or alter their scope (ref19 AETR)” https://data.consilium.europa.eu/doc/document/ST-10571-2009-INIT/en/pdf
- Unitary patent protection systems in Europe, Masahiko Matsunaka: ” Since the EPLA establishes the European Patent Court and confers jurisdiction to the court, it obviously affects the Brussels Regulation. Moreover, the states participating in the EPLA negotiation are not only EU member states, but also include non-EU states (e.g., Switzerland). Therefore, the EU member states would have no powers to institutionalize the EPLA based on the AETR doctrine” http://www.iip.or.jp/e/summary/pdf/detail2004/e16_20.pdf
- Oshaliang: Why Does the U.S. Supreme Court Keep Reversing the Federal Circuit? “the Federal Circuit was perceived by some as too pro-patent, with concerns that this favored weak patents and patent trolls. Whether or not this was a concern of the Court, recent decisions of the high court have mostly cut back on patent protections that had been upheld by the Federal Circuit.” https://oshaliang.com/newsletter/why-does-the-u-s-supreme-court-keep-reversing-the-federal-circuit/
- Permanent link to this press release: http://blog.ffii.org/germany-cannot-ratify-the-unitary-patent-with-brexit-and-aetr-caselaw-says-ffii/
Contact
Benjamin Henrion
FFII Brussels
Tel: +32-484-56 61 09 (mobile)
Email: zoobab@gmail.com
(French/English)
About FFII
The FFII is a not-for-profit association registered in twenty European countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, open standards. More than 850 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights (intellectual property) in data processing.
Licensed under a Creative Commons Attribution 4.0 International License.
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Posted in DRM at 2:06 am by Dr. Roy Schestowitz
So Brendan Eich was right about DRM? (2014): New Claims That Brendan Eich Got Abused and Pushed Out for Opposing DRM, Not for Opposing Gay Marriage Some Time in the Past
Scrambled bits aren’t the way the Web is supposed to function (except for security)
Summary: More people are beginning to realise that Mozilla resorted to self-harming DRM and self-inflicted damage that impacts Firefox; can Mozilla (re)join the anti-DRM coalitions?
THE FAMOUS fork of Firefox, Waterfox, days ago turned out to have sold out to a surveillance company, just like Startpage (they admitted this only after they had been exposed; it was mentioned here in passing and people start noticing) and I distanced myself from the *Foxes and the Chrom* of the world. I trust neither ‘camp’. I use Konqueror as my main browser on one computer and Qupzilla on the other (they’re KDE browsers that don’t ‘phone home’). There’s much to be said about privacy violations, not just DRM and other aspects.
As reported earlier this week [1,2] (already in our Daily Links), Firefox is breaking because of DRM/EME and this hardly surprises us. It was foretold and foreseen. It was a terrible idea all along and it might get yet worse. █
Related/contextual items from the news:
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Firefox 73.0.1 arrives a week after the launch of Firefox 73.0 to address a few issues reported by users. These include fixes for a bug that made Firefox to crash on some Linux users when playing encrypted content and an issue which forced Firefox to close unexpectedly when the user exits the Print Preview mode.
Some users also reported intermittent blank page issues when attempting to log in to the RBC Royal Bank website, so this is now fixed as well in the Firefox 73.0.1 release. Also addressed are a couple of issues reported by users on Windows systems, which shouldn’t affect Linux users.
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Mozilla has released Firefox 73.0.1 today, February 18th, 2020, to the Stable desktop channel for Windows, macOS, and Linux with crash fixes for users of Windows and Linux devices.
This release also fixes a loss of browser functionality in certain circumstances and RBC Royal Bank website connectivity problems.
Windows, Mac, and Linux desktop users can upgrade to Firefox 73.0.1 by going to Options -> Help -> About Firefox and the browser will automatically check for the new update and install it when available.
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Posted in Europe, Patents at 1:17 am by Dr. Roy Schestowitz
Summary: Site syndication (over RSS feeds or XML/Atom) is vastly better than what became popular in recent years (censored, centralised, discriminatory "Social Control Media"); here are some feeds of interest
WE recently wrote about why RSS needs to rise from the ashes again. “Social Control Media” just doesn’t cut it for a lot of reasons and many people nowadays advertise “Twitter accounts to follow” or something inane along those lines. To make it easier to follow European Patent Office (EPO) affairs and to a lesser degree U.S. Patent and Trademark Office (USPTO) affairs (or new examples of 35 U.S.C. § 101 thwarting bad patents) here are some RSS feeds one can subscribe to. Notice that those are not recommendations and we monitor some of these to merely understand what the opposition says (not living in a bubble, surrounded only by those who agree just like in Social Control Media — a polarising force).
We’ve split these into two groups:
Patents news (general)
More EPO-specific
Hopefully someone will find at least some of the above handy. █
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Posted in Deception, Europe, Patents at 12:07 am by Dr. Roy Schestowitz
Summary: The Unified Patent Court and Unitary Patent (UPC and UP, respectively) reinforce the old saying about lawyers being liars, doing anything to attract clients (to take their money); the UPC is basically dead, but fiction, falsehoods and outrageous fantasies still find their way into Web sites of law firms
YESTERDAY we were told that “tomorrow [there would be an] important PR to nuke the UPC as it is…”
So that’s later today.
“People deserve realistic expectations; UPC propaganda may help “sales”, but at whose expense?”Readers may have noticed a slight decrease in our coverage of European Patent Office (EPO) affairs. But we’re still watching it very closely and our latest Daily Links (published minutes ago) included a report about EPO-granted patent being found invalid, more patents granted on nature/life, and hearing delays due to the infamous pandemic (this affects EUIPO and EPO alike). This does not concern Team Campinos/Battistelli and it’s not about software patents , so we don’t have much to say about that.
On the other hand, yesterday we found this promotion of an article by Rachel Bradley (Penningtons Manches Cooper LLP). She either does not understand how deep in trouble UPC is or she is simply lying to clients for patent revenue (legal bills) to be secured, based on unhelpful delusions. Here’s what she wrote in the firm’s site (with our corrections added):
How will it affect patent portfolios?
Currently patents within the European Patent Convention (EPC) countries are taken to grant through the European Patent Office (EPO). The EPC is not an EU instrument but an international convention and the EPO itself is not a European institution. As such, the procedure and mechanisms for granting classic European Patents will remain unchanged for the UK.
The big question is, how will the proposed Unitary Patent system be affected by Brexit?
The UK intends to stay [Ed: you cannot stay in something that does even exist] in the Unitary Patent system, and indeed it ratified the Unitary Patent Court Agreement in April 2018 [Ed: and the person who was responsible for that stunt resigned, then replaced twice or thrice more]. The Unified Patent Court and Unitary Patent will [Ed: "will" or "would"? Well, the word "will" implies certainty] take effect three months after the UPC Agreement has been ratified by thirteen countries including all three of France, Germany and the UK [Ed: we know the UK cannot participate, Germany is not ratifying and France has self-interest because of positions being reserved to it; also, constitutional challenges -- of which there have been several -- can annul some of the other ratifications]. France has also already ratified it [Ed: see EPO scandals and our coverage for associated scandals; INPI is now under fire as well] along with a further 14 countries [Ed: there have been court cases standing in the way though], meaning there are now 16 ratifications in total [Ed: of which several are invalid, including critical ones]. Although Germany has passed all the laws that are needed to bring the UPC into effect in Germany [Ed: meaningless bureaucracy, also unconstitutional], ratification is still outstanding [Ed: outstanding implies almost "impending"; not true] and is dependent on the outcome of a complaint pending before the German Constitutional Court [Ed: no, Berlin has already said that due to Brexit there are additional barriers and reservations]. It is possible, if the Court dismisses the complaint, enabling Germany to ratify the UPC Agreement [Ed: no, there's also Brexit], that the UPC system will take effect during the transition period up until December 2020 [Ed: completely unrealistic nonsense, probably a copy-paste from some Team UPC site like the Preparatory Committee], with the UK as a participating member [Ed: no, it cannot participate as it's an EU system].
As currently drafted, the UPC Agreement can only take effect in EU member states and the UPC cannot be based in a non-EU member state [Ed: to change that they need to rewrite the whole thing and start a round of ratifications all over again, which can take years and become unattractive without London]. There has been much debate on the question of whether legally the UK could continue to participate in the UP and UPC [Ed: it cannot, they need to restart to have a chance], and the weight of opinion is that it could [Ed: whose opinion? The Preparatory Committee's?], if the political will is there [Ed: no, they mean lobbying, bribery and so on]. Continued participation in the UPC and UP would require a new international agreement between the UK and the participating EU member states, and would require the UK to submit to EU law, and the supervisory jurisdiction of the European Court of Justice (CJEU), in relation to proceedings before the UPC [Ed: then, still, the UPC needs to be redone, rewritten, ratified all over again; It won't even be "UPC" anymore but something else]. The UK would also have to sign up to an appropriate jurisdiction and enforcement regime, such as the Lugano Convention. [Ed: This is unlikely given recent statements from Number 10]
As can be seen above, almost every sentence is a distortion, a lie, or semi-truth at best. Why would anyone pay hundreds of euros per hour for such bad ‘advice’? People deserve realistic expectations; UPC propaganda may help “sales”, but at whose expense? As a side note, is there an exodus at Bristows? █
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