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10.21.17

US Patents Appeal Board Attacked by the Patent ‘Industry’, Defended by Federal Courts, and Dodged by Patent Trolls

Posted in America, Courtroom, Patents at 2:05 pm by Dr. Roy Schestowitz

Bryson on IPRs
Judge Bryson on IPRs

Summary: PTAB, the branch or the ‘court’ responsible for eliminating bad patents, is coming under attacks from those who rely on poor patent quality and receives praises from everyone else, as usual

WHILE the EPO marginalises its very own appeal boards (BoA), the US is augmenting the role (and workload) of its appeal board, called PTAB (shorthand). We assume that readers of ours already know (more or less) what PTAB is and what it does because we wrote over 100 articles about it.

“In spite of all the anti-PTAB rhetoric, the courts certainly support its decisions.”The patent microcosm is not happy about PTAB. The patent microcosm wants to actively destroy PTAB while refraining from giving the impression that it’s really that crude and self-serving. They like to speak ‘on behalf’ of companies and so-called ‘inventors’ even though companies that actually make stuff strongly support PTAB. This cannot be stressed strongly enough. As we shall show in a moment, there’s an intentionally-misleading lobby which attempts to frame this as a power struggle between one industry and another (e.g. pharmaceutical versus technology), but it’s based on a fictional storyline. It’s clever, shrewd spin, but anyone who has followed these things for a number of years understands that it’s pure mythology.

Jason Rantanen, a patents booster, recently put some numbers together. Yesterday or the day before that he presented some figures, based on numbers that he had studied. These figures, by our interpretation, show very high affirmation rates from a Federal court. PTAB is widely supported by the highest court below the Supreme Court — a court which has confirmed low patent quality in US, essentially siding with PTAB about 80% of the time.

As if turns out, the forum for this presentation was “The Power of the PTAB” — an event we mentioned the other day. It was almost like an echo chamber and it’s not hard to guess who was absent from this event. To quote Rantanen:

I’m presenting some data from the Compendium of Federal Circuit Decisions later today at Chicago-Kent’s terrific conference on The Power of the PTAB. Below are a few of the graphs I’ll be showing, along with a bonus graph involving Federal Circuit review of inter partes review proceedings. All data is through October 17, 2017.

This first graph shows the distribution of dispute types in opinions and Rule 36 summary affirmances that arise from the USPTO. Unsurprisingly, most of the growth in these decisions comes from appeals in IPRs. More surprising to me was that a substantial chunk of the growth from 2014-16 came from appeals from inter partes reexamaminations. Those will drop off as the last reexaminations work through the system.

In spite of all the anti-PTAB rhetoric, the courts certainly support its decisions. It is, objectively speaking, doing an essential service. It also keeps the USPTO in check. Dennis Crouch, being the PTAB foe that he is (he makes no secret about it anymore), keeps looking for CAFC cases which can help embarrass PTAB. A few days ago he found a case where amendments were oddly enough permitted. If patent decisions or grants are “remanded to allow claim amendments,” then it sort of makes a mockery of the very concept of them. It’s like a moving target. To quote:

Since this case raised the same issues as Aqua, the Federal Circuit had been sitting on the en banc petition for the past year awaiting outcome of that case.

I’ll note here that the decision by the Federal Circuit was unanimous. Although many of the judges disagreed with the Aqua decision, they all now regard it as the law and binding precedent of the court.

The Aqua decision was covered here before. In simple terms, it does not mean anything too profound, but when one seeks to discredit PTAB it can become pretty handy.

“The patent ‘industry’ pretends that without lots of patents innovation would suddenly stop. It’s a lie.”A lot of support for PTAB is nowadays being expressed by Computer & Communications Industry Association (CCIA), which represents many technology firms. A couple of days ago CCIA helped show that the copyright monopoly (oligarchs who don’t make music but exploit musicians) had been lying. The monopoly often pressures technology companies (e.g. for censorship), claiming that their business will die otherwise and musicians will starve. In reality, however, there’s this:

A technology association-backed report released this week shows strong growth in revenues for the music industry over the past 5 to 10 years, driven by digital music. The data counters the current European copyright reform concern over a “value gap” for the music industry, the Computer & Communications Industry Association (CCIA) said.

This is about copyright, but we’re seeing a similar scenario in the patents domain. The patent ‘industry’ pretends that without lots of patents innovation would suddenly stop. It’s a lie.

“They are trying to claim that PTAB will obstruct access to medicine or something along those lines (we have seen similar propaganda — along those same lines — in relation to Lexmark).”As it turns out, even Josh Landau from the CCIA slams Rana Foroohar for her disgusting propaganda in the FT, which has received money from Battistelli. Such propaganda later on propagates and gets cited by patent fanatics like IAM as 'proof' of things that aren't true. They are trying to claim that PTAB will obstruct access to medicine or something along those lines (we have seen similar propaganda — along those same lines — in relation to Lexmark).

Here are some passages from Landau’s very detailed response (he is a good writer on these issues):

On Monday, the Financial Times published an article by Rana Foroohar. While there are a lot of flaws in the article, one particularly pernicious myth shows up—the myth that patent trolls aren’t really a problem. Purporting to look at patent reform as a battle between the tech industry and pharmaceutical manufacturers, the FT article gives the impression that patent trolls aren’t an issue.

Unfortunately, Ms. Foroohar relied on bad data in order to come to that conclusion.

The Trolls Under The Bridge Aren’t A Myth

In particular, Ms. Foroohar’s article focuses on three numbers. First, she states that the total number of defendants is largely unchanged before and after the America Invents Act (AIA). This is accurate. Second, she notes that a 2013 GAO report stated that patent trolls only filed 20% of lawsuits. This is also accurate.

She also quotes a 2013 report from the White House that states that patent trolls brought 66% of all patent lawsuits. She claims that this statistic is wrong and implies that it shows the tech industry had influenced the Obama Administration with fake statistics.

There’s only one problem. That 66% statistic? It’s also completely accurate.

I can hear you already—how could trolls only file 20% of lawsuits, and also file 66% of lawsuits? Those can’t both be right, can they?

[...]

The AIA Has Helped

While the number of patent defendants was approximately steady immediately before and after the AIA, and has remained roughly flat since then, this doesn’t mean the AIA didn’t have an impact. The fact that the number of patent defendants has remained roughly static or slightly declined since the AIA’s passage, despite the long-term trend of several decades of increase identified by Prof. Sag, shows that the AIA has helped reduce patent litigation. And the cost-effectiveness of the AIA’s IPR procedure has helped reduce the costs related to the litigation that does occur.

But Ms. Foroohar claims that the AIA wasn’t necessary in the first place. Based on her flawed analysis of statistics you can’t compare directly, Ms. Foroohar concludes that “patent trolls are an overblown issue.” She implies that the entire problem is a mythical narrative that tech companies have simply made up.

Hundreds of millions of dollars spent defending against baseless NPE lawsuits doesn’t seem mythical. And 66% of all patent litigation coming from companies that make nothing and do nothing but file lawsuits doesn’t seem like an overblown problem at all.

Josh Landau later wrote this article for Law 360 and reposted it (without the paywall) in Patent Progress. CCIA has specifically tackled the absurdity which is Native Americans being used as a shield from PTAB, in order to clearly hurt poor people (limit access to medicine). To quote a portion:

While the tribe may succeed in their motion at the PTAB, Congress itself could weigh in and render this whole debate moot. Tribal sovereign immunity can be limited by congressional action. And Sen. Claire McCaskill, D-Mo., has introduced a bill (S. 1948) that would eliminate tribal sovereign immunity to inter partes review. As a result of her bill, the Saint Regis Mohawk Tribe has accused Sen. McCaskill of a double standard. Specifically, the tribe accuses her of targeting Native Americans and ignoring the universities that have claimed state sovereign immunity in order to obtain dismissal of IPRs.

The tribe’s criticism is either disingenuous or simply ill-informed. It’s well-understood that Congress can abrogate tribal sovereign immunity if it wishes to. But Congress can’t abrogate state sovereign immunity with respect to patents as a whole. They already tried. Congress’ attempt even remains in the statutes, codified at 35 U.S.C. § 271(h). But in a case called Florida Pre-Paid, the U.S. Supreme Court determined that Eleventh Amendment sovereign immunity, as possessed by the states, generally cannot be abrogated by Congress, and specifically not with respect to patent law. At most, they might be able to do something like conditioning future federal research funding on waiving sovereign immunity with respect to patent challenges.

But tribal immunity, the kind asserted by the Saint Regis Mohawk Tribe in the Allergan IPR, doesn’t stem from the Eleventh Amendment. Congress can (and should) act here, in order to avoid a world in which tribes sell their sovereignty to the highest bidder. And drug manufacturers should be seriously considering whether they want to adopt this kind of legal maneuver.

After all, it’s hard to hold yourself out as a respectable pharmaceutical manufacturer when you’re imitating the legal tactics of payday lenders.

Tribal sovereign immunity has actually received a lot more attention than we ever anticipated. We thought it would go under the radar. All this attention is obviously detrimental to Allergan, which preferred to keep it a secret. At the moment it only contributes to a great deal of negative publicity surrounding both Allergan and these tribes. A CAFC judge recently called it a "sham", many people call it a “scam”, and US Congress has stepped in to defend PTAB from this horrible loophole.

“Tribal sovereign immunity has actually received a lot more attention than we ever anticipated.”Even patent maximalists such as Managing IP have belatedly written about the judge’s decision, which was very long (almost 200 pages long). To quote the summary:

Judge Bryson in the Eastern District of Texas has noted “serious concerns” about Allergan transferring patents to the Saint Regis Mohawk Tribe to benefit from sovereign immunity but joined the tribe to litigation against Mylan and Teva – “Allergan’s tactic, if successful, could spell the end of the PTO’s IPR program”

Now that a Federal judge, Judge William Bryson, called it almost a “sham” (yes he actually said the word "sham") we need to consider whether this whole loophole is dead, at least as far as courtrooms are concerned. As Steven Seidenberg put it three days ago, “In US, New Legal Ploy May Protect Bad Patents” and this “new strategy will increase the power of patent owners, help patent trolls, and dramatically alter the US patent system.” Here is the opening paragraph:

It had been a bad three months for Allergan, Inc. The drug maker’s stock price had fallen over 20 percent, as the company faced two legal challenges to the patents on its blockbuster drug, Restasis. Then, on 16 October, Allergan lost one of those challenges. A US court found the patents invalid. Allergan vowed to appeal, thus maintaining its monopoly on the drug until a final court determination, which could be over a year away. But Allergan’s monopoly could collapse far sooner, if the company were to lose the second challenge to the patents, before the USPTO. Such a loss was probable, as the agency had already found a “reasonable likelihood” that prior art invalidated the patents on Restasis. So back in September, Allergan employed an innovative legal strategy: The company gave its patents to a Native American tribe, and the tribe claimed its sovereign immunity prevented the USPTO from reviewing the patents’ validity. If this strategy were to succeed, it will do far more than just boost Allergan’s bottom line. The new strategy will increase the power of patent owners, help patent trolls, and dramatically alter the US patent system.

It’s worth reminding ourselves that this strategy is already being used by actual trolls, not just Allergan. The US patent system risks losing its perceived legitimacy unless Congress can fix this quickly. As Ars Technica explained a few days ago:

The St. Regis Mohawk Tribe has filed patent lawsuits against Amazon (PDF) and Microsoft, using patents it acquired from a company called SRC Labs, according to reports in Reuters and CNBC.

SRC Labs, a holding company, is a co-plaintiff in today’s lawsuit. The lawsuits against Amazon and Microsoft are the second and third lawsuits filed by patent-holding companies working together with Native American tribes. Patent-holding companies, sometimes derided in the tech industry as “patent trolls,” produce no goods or services and make their revenue from filing lawsuits.

It didn’t take long for Mike Masnick to cover this as well. To quote:

In the meantime, though, some lawyers have come up with a truly sneaky, and truly awful “work around” that they’ve basically now productized. After a decision by the PTAB earlier this year to refuse to even hear an IPR request involving a patent held by the University of Florida after the University (a part of the state of Florida) argued “sovereign immunity”, lawyers realized that anyone could get out of the IPR process if they just “sold” their patent to a government entity who could claim sovereign immunity. From there is was only a few logical leaps to realize that Native American nations could claim such sovereign immunity. Hence, the deal to “sell” Allergan’s patents to the St. Regis Mohawk Tribe.

Basically everyone recognizes this is a sham sale. The St. Regis Mohawk Tribe has no interest in this patent. Or the other patents its now “buying.” It just gets some cash, which the original patent holder finds worth paying because it helps them avoid the IPR process. Everything gets “licensed” back to the original patent holder anyway, so the actual transaction is quite clear: patent holders paying Native American tribes solely to avoid a review by the patent office of their sketchy patents.

When the Allergan deal became public, lots of people grew concerned. It seemed like such a naked attempt to game the system. The House Oversight Committee began investigating the issue, noting its serious concerns with what was happening.

[...]

Of course, this is not stopping others from following in Allergan’s footsteps. Just days after that court ruling, the very same “Mohawk Tribe” had magically teamed up with a company called SRC Labs, and filed a patent infringement case against Amazon and Microsoft. SRC Labs, if you’re wondering, appears to be the estate of Seymour Cray, the founder of Cray Inc. (who was just involved in another important case unrelated to all of this). And, this is not the only such case.

It’s hard to see this loophole lasting very long. Hopefully the IPR process survives the various challenges its facing, but on top of that, hopefully the PTAB and/or the courts, shut down this obvious gamesmanship for patent holders to avoid accountability.

We certainly hope that the likes of Bryson will squash these cases too. Such cases not only damage the reputation of Native Americans but also that of the patent system.

In the United States, the Patent ‘Industry’ is a Dying Breed and China Adopts This Destructive Force

Posted in America, Asia, Patents at 12:26 pm by Dr. Roy Schestowitz

This IMF chart shows that the US is still doing fine compared to China

IMF chart

Summary: The decaying patent microcosm, or the pipeline of low-quality patents and frivolous lawsuits these entail, loses its grip on the US; China, much to the astonishment of people who actually create things, is attempting to attract that ruinous microcosm (which preys on real, producing companies)

THE world changed a lot in recent years. Probably for the worse.

On the patent front, however, the world is improving, especially in the US. The only exception to this seems to be the emergence of ‘zombie’ patent portfolios, offloaded by the truckloads onto trolls. The concern about the fate of software patents in the US is very real. The patent microcosm is furious and there are staff cuts, too. They’re becoming increasingly redundant.

The EPO and the USPTO may still be granting software patents, but fewer of these will be deemed eligible in the courtroom; fewer people will even bother filing. The numbers already speak for themselves. Litigation is down sharply.

“We are growingly worried about and frequently confronted with buzzwords as means of patenting software, in essence misleading patent examiners into granting software patents (in defiance of Section 101).”From the patent maximalists who try to convince us that more patents mean more innovation (even computer-generated patents and other awful ideas) comes this latest suggestion of “Automated Analysis of 101 Eligibility” (Alice et cetera). This is pseudoscience and a waste of time, but for lawyers with no background in the sciences this may still seem worthwhile. We previously remarked on all sorts of proprietary software packages whose marketers vainly claim to be able to asses the value/worth of patent portfolios based on text alone. Facts don’t seem to matter to these people. They even compare patents to “assets”. That’s beyond laughable and it totally misinterprets the very essence of patents.

We are growingly worried about and frequently confronted with buzzwords as means of patenting software, in essence misleading patent examiners into granting software patents (in defiance of Section 101). These patents are disguised as “cloud”, “AI”, “IoT” and all sorts of other gobbledygook. Apparently, based on this new article from Nick Beckett and Matt Pollins in CMS (China), “cloud” gets used as a loophole even in China. “New patent examination guidelines are friendlier to software patent owners,” they explain and then there’s this (the opening paragraph alone uses the word “cloud” five times):

China is in the middle of a rapid shift towards cloud technologies. Execution of the 13th Five Year Plan will deliver substantial investment into cloud computing and the sector is undergoing unprecedented growth. Meanwhile, organisations operating in this digital economy face an increasingly complex intellectual property (IP) environment, as China becomes a global IP centre and scales up IP protection, enforcement and penalties for infringement. Indeed, the number of cloud-related IP lawsuits in China grew 158% between 2011 and 2016. Against this backdrop, organisations face an important question: how can they take advantage of the enormous opportunities presented by the cloud in a way that manages this complex IP landscape? In this post, Matt Pollins and Nick Beckett from CMS look at the practical steps organisations can take to protect themselves and succeed in the cloud.

It’s no secret that China is now very much open to software patents. It’s also open to patent trolls (which typically rely on software patents). It’s a terrible strategy and a doomsday scenario, yet one that SIPO gleefully sleepwalks into. Yesterday, for example, IAM said that the person in the business of patent Armageddon (SIPO official) urges universities give patents to patent trolls in order to ‘assert’ (i.e. sue). It’s unreal, but here it goes:

This week the Intellectual Property Department here in Hong Kong played host to the annual meeting focused on IP developments on the mainland and its two Special Administrative regions (Macao being the other). One of the main topics was university tech transfer issues, and it was in this area that SIPO officials most frankly acknowledged the need for significant reform. Based on their comments, there could be big changes ahead in the field.

Patent filings by Chinese universities took a major leap in 2016, reaching over 300,000 in total. Applications for invention patents, which are typically the highest quality and most valuable rights, grew by about 28% year-on-year. These impressive numbers reflect huge investment in research on a national scale, as well as recent reforms that give universities more autonomy to set their own patent strategies.

But Deng Yiyou, a deputy division director in SIPO’s Intellectual Property Development & Research Centre, says that the vast majority of these rights are not being utilised. As many as 96% of them are never commercialised, he said, meaning no product has been produced encompassing the protected technology.

[...]

Even as patent litigation has skyrocketed in China, we have not seen university assertions on a scale that has registered among industry players. The same is largely true for government-run research labs. A case filed earlier this year by the Chinese Academy of Sciences, the biggest such entity, against US LED maker Cree could prompt more IP managers in government and academia to consider a more aggressive approach. If that happens, the risk environment for all tech companies in China will shift significantly.

So basically, China seems eager to replicate the very horrible system which the US tries hard to get away from (with growing levels of success).

Watchtroll, which watches out for the trolls’ interests and promotes these interests, is obviously unhappy about where the US is going. It is still attacking TC Heartland (Supreme Court decision which hampers patent trolls) and it latched onto "China!" for the delusion of lost leadership (in trolling). Fake panic and fear-mongering again. The site is full of such garbage and almost every day one can find these rants.

“Watchtroll, which watches out for the trolls’ interests and promotes these interests, is obviously unhappy about where the US is going.”Watchtroll must be supremely envious, seeing how patent trolls are migrating to China and doing all their blackmail/mess over there. Good for litigation ‘industry’? Sure. But at whose expense? Watchtroll is basically celebrating rubbish patents where these directly harm the respective disciplines, e.g. programming/development of software.

“In direct contrast to the United States,” says Watchtroll, “innovators [sic] are finding that China is increasingly welcoming to business method and software innovations after it relaxed patent examination guidelines in those sectors earlier this year.”

They mean programmers, not innovators. They tend to frame programs as “inventions” in order to warp this debate. And yet, in spite of China’s lenient policy on software patents, there still aren’t many internationally-recognised software companies in China, are there? They’re mostly based in the US, in spite of (or because of) Section 101.

What’s probably even worse to come out of Watchtroll in recent days is this attack on the Supreme Court. So having already attacked judges and insulted PTAB staff, Watchtroll is now attacking the US Supreme Court, calling it “activist court when reviewing patent law…”

“Watchtroll must be supremely envious, seeing how patent trolls are migrating to China and doing all their blackmail/mess over there.”Disgusting!

This was published by Robert Stoll two days ago. Like David Kappos, he’s an official-turned-lobbyist and he is still lobbying for software patents, just like the former employer of Kappos (IBM). Watch what IBM’s patent chief is pushing at the moment. These are attacks on Section 101. Remember that IBM is close to Watchtroll and IBM also uses the IPO to water down Section 101 (they call it a “taskforce”).

Quite frankly, all we have here is a bunch of panicking patent bullies and their lobbyists. They make a living out of telling people that they need more and more patents while suing these people over patents.

“As one can easily see, this underestimates the importance of patent quality and focuses instead on quantity (the mistake increasingly made by the EPO under Battistelli).”What worries us a great deal is that former USPTO officials such as Stoll and Kappos resort to this kind of cronyism. It’s like there’s no separation between industry and government; policies are just being ‘tailored’ for very rich people — a direct departure from proper functioning and decency.

“Putting Yourself in the Shoes of a Patent Examiner” is a new paper recommended by the patent microcosm yesterday. The abstract (with our emphasis) says: “The mission of the United States Patent and Trademark Office (USPTO) is to ensure that the Intellectual Property system contributes to a strong global economy, encourages investment in innovation, and fosters entrepreneurial spirit. In order to ensure that the large volume of newly filed patent applications are examined in a reasonable timeframe, the USPTO has a system for determining the average amount of time an examiner should spend examining a patent application. Under the current production system, productivity is assessed based on Production Units (“PUs”) achieved relative to the Examiner’s production goal. The production goal is calculated for each examiner based on the number of “Examining Hours” worked in the evaluation period and quantitative values assigned to examiner seniority and complexity of the technology examined. To quantify “Production Units”, a Patent Examiner receives different “counts” for different tasks performed at different stages in prosecution. Understanding this examiner production system – also known as “count” system – is important at least because it educates a patent applicant on the system in which Patent Examiners operate. For instance, the Examiner production system underscores the importance of the events conducted in the early stages of patent prosecution. The goal of this note is to provide an overview of the system in which Patent Examiners operate by summarizing important aspects of the system currently used to evaluate the performance of a Patent Examiner.”

“Wait and watch how China collapses under its own weight of patents.”As one can easily see, this underestimates the importance of patent quality and focuses instead on quantity (the mistake increasingly made by the EPO under Battistelli). Moreover, it fails to take into account the likely virtue of a patent or its expected effect on economics. If a patent is granted to just give some company a multi-billion dollar monopoly on a life-saving drug, then maybe it’s better off not granted at all.

Debates about patent scope will likely carry on like this. Sites like Watchtroll will approach anyone willing enough to bash the US patent system and insist that it needs to grant an infinite number of patents. If left unchallenged, these ludicrous theories of theirs might even be regarded as truthful.

Wait and watch how China collapses under its own weight of patents.

Microsoft and Nokia’s Patent Trolls by Proxy: First Conversant, Now Provenance Asset Group Holdings LLC

Posted in Apple, GNU/Linux, Google, Microsoft, Patents at 6:03 am by Dr. Roy Schestowitz

Provenance Asset Group Holdings has no presence on the Web; it’s only mentioned by IAM and this shady page

Rhode Island courtSummary: Microsoft’s shell game with patents (passing Android-hostile patents to trolls) carries on and publishers funded by these trolls offer the details, albeit vaguely and with obvious spin

FIVE years ago, after this long case which we had been covering for a long time, Uniloc was probably paid hundreds of millions of dollars by Microsoft (they never revealed the exact amount of money).

“Microsoft also fed Nokia’s patents to MOSAID (now known as Conversant, one of the funding sources of IAM) and Google complained that Microsoft was feeding this patent troll in order to extort Android OEMs.”This patent troll, Uniloc, does not make anything. It’s just suing a lot of companies and it is still going after Apple. This post from last night said:

After a brief hiatus, patent troll Uniloc is back and looking to milk Apple for claimed damages and fees related to allegedly infringed patents, this time involving Apple Watch GPS functionality.

At the same time we also see Nokia, not too long after it was hijacked by Microsoft (the Elop routine), shaking down Apple for a lot of money (possibly several billions of dollars) and BlackBerry is going down a similar route.

“Basically, Microsoft not only killed Nokia’s business but it is also making it a patent troll, sometimes by proxy (by passing Nokia’s patents to classic trolls).”As a reminder, Microsoft also fed Nokia’s patents to MOSAID (now known as Conversant, one of the funding sources of IAM) and Google complained that Microsoft was feeding this patent troll in order to extort Android OEMs. Basically, Microsoft not only killed Nokia’s business but it is also making it a patent troll, sometimes by proxy (by passing Nokia’s patents to classic trolls).

Yesterday this blog post from IAM revealed that yet more of Nokia’s patents are being scattered to trolls. Acacia, which is connected to Microsoft, got mentioned and also Conversant, which pays IAM for such bias. Here we go again:

In what looks like one of the biggest patent deals of the year so far, Nokia has transferred a portfolio of almost 4,000 US grants to an entity called Provenance Asset Group Holdings LLC. The deal was recorded on the USPTO assignment database in mid-September. Although full details of the deal and the team behind Provenance are not yet clear, former AST head and RPX executive Dan McCurdy lists on his LinkedIn page that he became CEO of Provenance in September 2017. Late last year McCurdy left RPX to team up with Tim Lynch and Laura Quatela’s IP advisory business which is now known as Quatela Lynch McCurdy. Quatela is currently the chief legal officer at Lenovo but previously served as vice president of IP at Alcatel Lucent where she was based at the time of Nokia’s initial bid for the company.

[...]

Ever since it started to re-order its operations including the sale of its devices business to Microsoft, the Finnish company has been a relatively active seller of patents including to the likes of Acacia and Conversant. In a tough assertion market those assets have been monetised with varying degrees of success, but it’s interesting that with this latest transfer the giant telco has opted to work with one entity rather than do a series of smaller deals. The portfolio currently being sold by AQUA has been made available to buy in whole or in part.

It will be interesting to see what happens with these patents next (if not behind closed doors then out in public). Never underestimate Microsoft’s hatred of Linux, Google, and Android (unless Microsoft can blackmail the OEMs into pre-loading Android with Microsoft software).

Anonymous Professionals Speak of Benoît Battistelli’s Destruction of the EPO, But Why Does the Media Turn a Blind Eye?

Posted in Europe, Patents at 3:20 am by Dr. Roy Schestowitz

It’s almost as though media owners have an agenda or get paid not to care

UIMP event and FTI Consulting

Summary: Everyone in the circles of EPO staff and EPO stakeholders knows that dysfunction has become the norm; European media, however, remains suspiciously silent about what otherwise would be a major European scandal (bigger than FIFA or Dieselgate)

THERE seems to be some happiness among EPO staff knowing that the UPC is going nowhere. Nobody really wants the UPC except the people who plotted the UPC (we refer to them collectively as “Team UPC”).

Last night we wrote about an additional 2 months delay and IAM, which is close to the EPO’s management and was paid to promote the UPC, said that the “German constitutional court delays the UPC until the second half of 2018 at the earliest, but quite possibly much later.”

“Put another way,” I told them, “one must not assume that UPC is an inevitability and maintain this dangerous illusion…”

The situation at the EPO is pretty bad. We often refer back to this article from Dr. Glyn Moody, who wrote: “When asked by Ars, the EPO’s spokesperson mentioned the imminent arrival of the unitary patent system as an important reason for revising the EPO’s internal rules…”

“No appeals, no thorough examination, just lots and lots of lawsuits. This should be mortifying to anyone who understands the original (and true) purpose of patents.”Yes, a lot of what Benoît Battistelli has been doing is geared toward a litigation scenario; it’s not about patent quality anymore. No appeals, no thorough examination, just lots and lots of lawsuits. This should be mortifying to anyone who understands the original (and true) purpose of patents.

Earlier today we saw a couple of copies of a new press release [1, 2] regarding Professor Daryl Lim, who is described as an “IP Center Director”. Certainly he should know that Battistelli is a crook and the EPO is a rogue organisation, yet that doesn’t stop him from going to Munich. It says “EPO representatives will include President Benoît Battistelli and senior members of the EPO staff. Lim will also meet with members of the EPO Board of Appeals, and attend a dinner hosted by President Battistelli along with the U.S. delegation. As in past years, the agenda is expected to cover EPO initiatives and other issues of contemporary relevance to U.S. businesses and patent practice and end with a presentation of U.S. developments by the visiting delegates.”

Will these “members of the EPO Board of Appeals” have the courage to tell him what’s going on? Also, why does the US tell the EPO what to do? Who does the EPO work for or is attempting to serve?

“…why does the US tell the EPO what to do? Who does the EPO work for or is attempting to serve?”Sadly, as many people have already come to realise, Battistelli’s French successor is unlikely to turn things around. Sure, some people keep their hopes up (too optimistic in our view) and choose to believe that because the job description spoke of diplomacy António Campinos will somehow be very different and even friendly towards SUEPO. Never mind if management around Campinos will still be Team Battistelli (and historically close to Campinos), including people with criminal charges against them…

Yesterday, WIPR published this article titled “SUEPO offers olive branch to EPO management” (not that Campinos has extended anything in return; he’s totally silent on the matter and the same goes for his upcoming ‘boss’, Dr. Ernst). To quote WIPR:

A staff union at the European Patent Office (EPO) has written to António Campinos, the next president of the organisation, saying his appointment shows a desire to re-establish harmonious conditions with management.

The letter, from the Staff Union of the European Patent Office’s (SUEPO) Hague branch, was sent to all members of what is SUEPO’s second biggest unit. The Hague committee said it is “ready to embark on a road to fruitful cooperation”.

Such a cooperation is unlikely to bring back staff which was illegally dismissed or bring back to life people who were driven to suicide. Justice cannot be restored, there are no reparations anywhere over the horizon, and a lot of European media is still indebted to the EPO (which threw money its way), so it may never cover these issues properly.

“This should have been a massive scandal, but Dutch media is not covering it. The EPO dedicated a lot of money to influencing/controlling the Dutch media.”The “first steps undertaken by the current President was to remove any kind of independent oversight of the EPO’s financial dealings,” said the following comment from yesterday. We remind readers that Battistelli essentially (mis)used EPO budget to ‘bribe’ the media; some allege that he also used that money to ‘buy’ votes for himself. We may never know the true/full scale of it because there’s no financial transparency. It was also alleged that he used money destined for EPO contractors in the Netherlands in order to build himself a ‘penthouse’ in Munich [1, 2]. This should have been a massive scandal, but Dutch media is not covering it. The EPO dedicated a lot of money to influencing/controlling the Dutch media.

“Of course,” the following comment notes, “the disinterest of the media is not only unhelpful but also (especially in Germany) slightly suspicious.”

That’s an important point which is made once again later on in this thread. IP Kat is part of this problem now. Just look at the post this entire thread is attached to. It’s a puff piece for António Campinos and Benoît Battistelli. For all we know, the pseudonym “Merpel” might just be Stephen from CIPA right now. The old “Merpel” is a dead cat.

Anyway, here is the full comment:

Whilst things may look very dark indeed, I am of the opinion that perseverance will see us through. This is not based upon blind optimism but rather a recognition that, in the end, we are dealing with politicians. This means that generation and application of appropriate “political” pressure ought to be more than capable of leading to a satisfactory outcome.

The complete silence and disengagement of the UK and German delegations to the AC are obviously a barrier to generating the necessary political pressure. However, the UK and German associations of professional representatives ought to be able to do something about that. CIPA, PAK, epi: this means you! Where is your voice? Are you not obliged to defend the interests of your members here (in view of the threat to the integrity and reputation of the patent system, as well as to the business that your members do with SMEs)?

Of course, the disinterest of the media is not only unhelpful but also (especially in Germany) slightly suspicious. What is needed here is a “hook” for a story that the media can run. This is where it may help to recall that one of the first steps undertaken by the current President was to remove any kind of independent oversight of the EPO’s financial dealings. It therefore stands to reason that, if there is any “dirt” to be found, it will be uncovered by looking into in those dealings. We all know how certain sections of the media love stories about financial wrongdoing, especially within the privileged and elite world of Eurocrats.

None of this will be easy, especially for those inside of the EPO who are suffering right now (and who can be forgiven for giving up hope in the face of seemingly relentless and overwhelming force). But what we do at this critical time will determine the kind of European patent ecosphere that we will get for many decades. Do we want Europe-wide patent monopolies being handed out by an office whose governance has been completely corrupted, and where the concept of meaningful quality has been abandoned? What will happen to the economies of Europe if this continues? The stakes are simply too high to give up now.

The next comment says that the “EPO can be technically described as matching the description of a true authoritarian regime” and here’s the explanation of why (naming “Battistelli, VP4, VP5, Bergot and her management”):

your diagnostic is correct, factually what you present is right. All that happens at EPO can be technically described as matching the description of a true authoritarian regime under which violating the rights of individuals and acting rogue has become the norm. If this would happen in western EU countries the decision takers (Battistelli, VP4, VP5, Bergot and her management) would have been brought to courts and sentenced, no doubts.

This being said what will happen in the future at EPO is unknown. Nothing is carved in stone one way or another. It can be the same, better even worse.

Currently it seems that the public (IP media at least) seems to start realising that Germany (via the excellent Dr Ernst) is selling the EPO in exchange for a soon-to-become-available-VP5-position-at-epo (in which he will probably double his income).

Public interests some said in the room ? very drole.

What will Campinos do? perhaps follow the path of Battistelli perhaps also not. We should not charge him as guilty before he has even arrived at EPO. We know who he is and what he did but not what he will do.

Future will tell, soon. Do not forget that Campinos will also have to live with Battistelli’s toxic legacy and it is likely that more social casualties happen when he arrives since the camel’s back is close to broken and the number of strained staff far too high for too long (do not forget that suicide nr 7th was avoided 3 weeks ago in The Hague).

At some point (suicide nr 8, 9, 15 perhaps) they will have to do something. The terrible thing is both the apathy of EPO staff most of whom live in denial (maybe as a form of protection but still) and that of middle management (always prone to follow orders no matter how noxious HR policies may be).

As as to the quality of patent: well no one cares so why should you !

“Also,” says the next comment, “the disappearing presumption of validity of EPO grants is something that suits Big Corp.”

This is about patent quality (or lack thereof) and what it means for SMEs:

The itinerant (citizen of nowhere) and sociopathic volume users of the EPO, the multi-national corporations, the Global Titans, they pay virtually no taxes anywhere. So, of course, the EPC Member States tax them through EPO fees.

Big Corp is happy to pay. Those outrageous EPO fees deter the pesky SME’s from filing.

Also the disappearing presumption of validity of EPO grants is something that suits Big Corp. It renders it all but impossible for an SME to use a patent against a volume user.

Also labour rights at the EPO. Sociopaths don’t give a fig about any abuses.

So what to expect from the AC, the new Chair and the new EPO President? More of the same, as you surmise. Proud to be European? Not so much, these days. Will nobody in a position of responsibility defend any longer human rights and the Rule of Law? Or do we have to lose these precious things before we realise what we have squandered?

“I am proud to be member of SUEPO,” the next comment says in relation to SUEPO’s approach to Campinos:

Article about the official position of SUEPO on the election of Mr Campinos

http://patentblog.kluweriplaw.com/2017/10/19/heavy-task-lies-ahead-of-antonio-campinos-as-future-epo-president/

As one will see the Battistelli’s legacy Mr Campinos will have to deal with is heavy and toxic. This being as a professional social partner SUEPO shows here what can be qualified as a pragmatic and reasonable approach: first pose a diagnosis, then indicate possible ways to mitigate and most of all give Campinos the benefit of the doubt as to his intentions and future actions.

Thanks for having had the guts to take such position under the current circumstances. I am proud to be member of SUEPO.

Again the media gets brought up: “disinterest of the media is more than slightly suspicious. Journalists who wrote about the EPO were changed posts.”

This is partly true and we know of examples. We know of people who used to cover EPO scandals and got in trouble with the publisher/editor (they told us about it).

Here is the full comment:

The disinterest of the media is more than slightly suspicious. Journalists who wrote about the EPO were changed posts.

As to what will happen to the economies of Europe, we know from what happened to the economy of the USA 10-15 years ago. Small and medium enterprises disappeared, the economy concentrated into an ever dwindling number of hands and production of goods moved to China. Then they elected Trump. Patents are only a little part of that story of course and yes, it is worth fighting for, but how? And what are we exactly fighting against?

Battistelli is a freemason, just look at the ring he wears. Did you know that Campinos is a freemason as well?

We don’t want to entertain that sort of aspect. Some anonymous commenters say that the next President of the EPO is “a freemason as well” as Battistelli, but all we know about Battistelli is that he’s ENA — by insiders’ estimation a vastly more powerful network than “freemasonry” or whatever (the French President, for example, is also from ENA). We were told about this several years ago. This sort of angle was further entertained in the next comment:

It is perhaps possible that the involvement of freemasonry can provide an explanation for some of the curious things that have happened in (or in connection with) the EPO. However, that is no reason to get disheartened. There is a difficulty faced by any organisation that tries (covertly) to manipulate events against the public interest. That is, there are more of “us” than there are of “them”… meaning that, ultimately, “they” cannot keep a determined “us” down.

Then came a sobering pinch of salt:

I realise, Pink, one must be cautious about “conspiracy theories” but on the subject of the USA you have to wonder about some of the provisions implemented in the AIA, and whether they benefit Big Corp or the SME’s.

Consider for example what constitutes the prior art.

Everything unpublished at the date of the claim, but filed earlier, anywhere in the world, in whatever language, is available for both novelty and obviousness attacks on that claim. Everything, that is, except your own earlier filings. They are exempt.

Thus, bulk filers, the Goliaths of the patent world, can build up impenetrable thickets of overlapping patent rights.

And Little David? Everything he files gets whacked as obvious by all the stuff the volume filers filed already, right up to one day before.

How long before the EPC Member States change the EPC in the same way, at the behest of the lobbyists?

Has it not started already. Consider: Prof Dr Willem Hoyng, that very prominent patent litigator, is saying that Art 54(3) has to be strengthened, its scope widened, to embrace more than strict novelty.

The above speaks of AIA — a subject we intend to cover later this weekend.

All in all, we urge readers to spot the sharp difference/contrast between this IP Kat post and the comments. It’s like the media simply does not care about what’s true anymore; it was almost always the case as far as UPC goes. Now it’s the same when it comes to the EPO.

10.20.17

The Darker Past of the Next President of the EPO – Part III: More Details About Caixa Geral de Depósitos, Former Employer of Campinos

Posted in Europe, Finance, Patents at 3:58 pm by Dr. Roy Schestowitz

Logo Caixa

Summary: The side of Campinos which he prefers to conceal, or rather his association with a rather notorious Portuguese bank

In part 1 and in part 2 we spoke about the next President of the EPO and his past as a banker (something which he does not advertise). Today we go deeper.


Further research into the recent economic events in Portugal and problems surrounding the state-owned bank Caixa Geral de Depósitos has uncovered a lot of interesting information which may help to explain why Mr. Campinos might not be too keen to publicise his earlier professional connections with this financial institution which has fallen into disrepute.

Portugal has not been as badly afflicted as Greece by the Eurozone financial crisis. Nevertheless it is known as one of the economically weaker members of the EU’s unitary currency system which led to it contributing the “P” to the derogatory “PIGS” acronym.

In 2011 Portugal joined the casualty list of Europe’s sovereign debtors after its prime minister, José Sócrates, requested a European Union bailout. See “Portugal’s PM calls on EU for bailout” (among similar article).

Although there were major problems festering below the surface in Portugal’s banks, these did not become publicly visible until some time later.

The first serious signs of a crisis in the financial sector came in May 2014 with a scathing audit issued by the Portuguese central bank which questioned the financial stability and transparency of the Banco Espirito Santo (BES) which at that time was the second largest private financial institution in Portugal in terms of net assets.

Soon afterwards BES collapsed under the weight of bad debts to companies held by the family-controlled Espirito Santo Group and had to be rescued by the Portuguese central bank’s Resolution Fund in a 4.9 billion-euro bailout on 3 August 2014.

CGD-I

From 4 August 2014: “Portugal in 4.9 billion euro rescue of Banco Espirito Santo”

The problems at BES were exacerbated by its involvement in shady dealings in Angola.

From 9 August 2014: “Banco Espírito Santo: The Angolan Story”

Following the collapse of BES, serious problems became apparent in 2016 in the case of Caixa Geral de Depósitos (CGD) which holds nearly a third of all deposits in Portugal’s banking system.

CGD’s troubles were initially reported in May 2016 with fears that the deteriorating situation could lead to financial collapse in Portugal.

From 29 May 2016: “Caixa Geral’s €4 billion refinancing demand may trigger Portugal’s financial collapse”

By June 2016 CGD’s liabilities were estimated at €5 billion or higher.

From 23 June 2016: “CGD’s liabilities now pegged at €5 billion and rising”

In August 2016, a 5 billion euro recapitalization package for CGD was agreed between Portugal and the EU.

From 24 August 2016: “EU, Portugal agree on 5 billion euro recapitalization for ailing bank CGD”

From 25 August 2016: “Portugal to bail out its biggest bank”

CGD II

The situation at CGD was referred to a parliamentary commission of inquiry and management practices at the bank also came under scrutiny from the public prosecutor with the opening of an investigation into what national tabloid Correio da Manhã called “suspicions of the crime of ruinous management”.

From 23 September 2016: “CGD’s “ruinous management” now officially under DCIAP investigation”

In July 2017 it was confirmed that the public prosecutor suspected that management practices at CGD had involved breaches of criminal law.

From 11 July 2017: “Prosecutor suspects harmful management crimes in CGD”

Operation Marques

Meanwhile investigations into allegations of corruption surrounding the former Socialist prime minister, José Sócrates, which were conducted under the code-name of “Operation Marquês”, have led to findings which suggest that CGD played a key role in some of the financial irregularities in which Sócrates has been implicated.

Recently, on 11 October 2017, the public prosecutor finally released its accusations in the “Operation Marquês” case according to which Sócrates was accused of 31 separate crimes of corruption, involving the accumulation of €24 million in bank accounts in Switzerland.

From 11 October 2017: “Operation Marquês charges announced – Sócrates controlled €24 million in Swiss bank accounts”

Also from 11 October 2017: “Operação Marquês: Former PM Sócrates, Salgado and Bava charged with corruption”

Another one: “Sócrates accused of 31 crimes, “accumulating” €24 million in Switzerland”

According to the public prosecutor’s charge sheet, the role of Sócrates’ chief corruptor is the former Banco Espirito Santo patriarch Ricardo Salgado, accused of 21 crimes – one of active corruption of a holder of political office, two of active corruption, nine crimes of money-laundering, three of abuse of confidence, three of document falsification and a further three of qualified fiscal fraud.

A further key figure is Armando Vara (below), a Portuguese politician and member of the Portuguese Socialist Party, who was previously a senior executive at the Caixa Geral de Depósitos. Vara was already sentenced to five years in prison on corruption charges in 2014 in connection with the co-called “Face Oculta” case. This was a nationwide political corruption, money-laundering and corporate tax evasion scandal which originally came to light in October 2009 and resulted in charges being brought against 36 defendants: 34 people and two companies. 11 prison terms were handed out in September 2014.

armando-vara

From 5 September 2014: “Face Oculta sentences handed out – Godinho gets 17 years in prison”

According to the pending charges brought against Sócrates under “Operation Marquês”, he is alleged to have favored the company which controls the Algarve tourist resort Vale de Lobo by means of a government plan in collusion with Vara who at the time was a Director of CGD which was the bank responsible for financing the enterprise.

In all, CGD conceded loans to Vale do Lobo amounting to more than €200 million as well as buying a 25% share in Vale do Lobo’s capital. Sócrates and Vara are accused of having received “kickbacks” for their part in the deal. In the meantime, Vale de Lobo’s outstanding debt to CGD has been estimated at around €300 million including default penalties and interest.

From 23 March 2017: “Vara pulls ‘senior moment’ when grilled over “how many times he discussed CGD with Sócrates””

From 18 June 2015: “Vale do Lobo now a “key link” in Operation Marquês corruption investigation”

Article in Portuguese dated 9 February 2017: “Comissões de 200 mil recebidas por gestores envolvidos no caso Sócrates”

CGD III

In the next part we shall look at links between CGD and the INPI.

UPC Looks Like More of a Distant Dream (or Nightmare) as Germany Adds Another Two Months’ Delay

Posted in Europe, Patents at 12:38 pm by Dr. Roy Schestowitz

Bristows EPO

Summary: The likelihood that the UPC will be altogether scuttled is growing as delays keep piling up and more complaints are being filed by public interest groups (as opposed to Team UPC, which hoped to shove the UPCA down everyone's throats behind closed doors)

THE EPO has said nothing about the UPC for at least a week. Nothing!

Silence too means something.

“The delays keep piling up and the UPC is dead. It’s at least dying. Nothing is advancing.”One UPC booster has just cited a tweet about this short post from Bristows’ Richard Pinckney. He said: “The latest news in the challenge in the Federal Constitutional Court of Germany (Bundesverfassungsgericht, BVerfG) to the constitutionality of the German legislation enabling the ratification of the Agreement on a Unified Patent Court (UPC) is that the BVerfG has extended the deadline for comments from 31 October to 31 December 2017.”

The remark from the UPC booster was inane: “BVerfG has extended the deadline for comments on German UPC constitutional complaint to New Year’s Eve. Getting ready for the fireworks?!”

The deadline isn’t a deadline for a decision but only a deadline for comment. So it’s just in forever limbo. Another 2 months’ pushback. The delays keep piling up and the UPC is dead. It’s at least dying. Nothing is advancing.

There are no fireworks any time soon for Team UPC. They didn’t even envision this process taking so long — almost half a year just for comments.

Patent Trolls Roundup: BlackBerry, Dominion Harbor, IPNav, IP Bridge

Posted in America, Asia, Patents at 12:08 pm by Dr. Roy Schestowitz

Summary: A quick review of recent news regarding patent trolls or entities which resemble (and sometimes feed) these

THE plague of patent trolls may be going away. We shall say more about it in the weekend.

BlackBerry is, quite unfortunately, becoming little more than a patent troll these days. That strategy isn’t even going too well anymore. The person behind it has left (maybe got fired). Having filed some lawsuits in Texas, BlackBerry may be affected by TC Heartland and this new report says it’s “At Risk Of Losing Its Recurring BLU Royalty” (covered here recently).

“It was not clear if that payment was included in that quarter’s earnings,” it says, “which beat analysts’ forecast on a jump in licensing fees that includes patent payouts and royalties on BlackBerry-branded devices and software sold by others.”

As we have been showing lately, BlackBerry’s income nosedived. It cannot survive by just suing and threatening to sue companies. Eventually, perhaps inevitably, BlackBerry will go bankrupt and its patents be sold to classic patent trolls like Dominion Harbor, which is connected to the world’s largest troll, having bought Kodak’s patents from it. What we did not know until yesterday is that Dominion Harbor, which publicly defames me, is also connected to IPNav in the following way. To quote IAM:

Korean sovereign patent fund Intellectual Discovery (ID) has continued its recent trend of selling assets to US licensing entities, with the disposal of a package of 15 US patents to a company called Compact Lens Technologies LLC. The transaction was recorded on the USPTO assignment database earlier this month.

The buyer appears to be controlled by IP Valuation Partners, a Texas-based IP advisory business led by a group of former IPNav and Dominion Harbor executives. Jonathan Szarzynski, whose name is listed on the assignment document is, according to this site, the manager of Compact Lens Technologies. The portfolio of assets relates to camera lens technology.

[...]

That has led to the emergence of companies like Dominion Harbor, which was formed in 2013 by a group of former IPNav execs and in February was involved in one of the biggest deals of the year so far when it acquired a portfolio of around 4000 former Kodak assets from Intellectual Ventures. With several large patent owners like ID and IV looking to dispose of assets the new breed of private NPEs are certainly not struggling for buying opportunities.

So basically, Koreans have collected a lot of patents in vain and now they just give these to patent trolls in the US. These patents will go to a very nasty blackmail and extortion firm.

Japan is meanwhile learning to recognise this profound issue with trolls (already a growing problem in China, as we shall explain in the weekend) and is tackling the SEP trap, which is basically a patent thicket that’s anticompetitive by design. IAM’s puff piece isn’t too happy about it (law firms in Japan), but it’s clear that such a move would benefit the economy and the interests of Japanese people.

IAM’s blog is meanwhile celebrating a patent bully from Japan which targets S.E.A. and notably Malaysia. They are pursuing a patent tax on "IoT" and other such things (software patents in disguise). To quote:

Japanese patent fund IP Bridge today announced plans to launch a $50 million “Intellectual property and innovation” fund with Malaysian partners. The new entity will invest in national and regional enterprises in Malaysia that are “IP rich or to-be-rich”, with a particular focus on technology areas including IoT. The fund’s goals echo those of another major investment vehicle founded in Singapore earlier this year, suggesting that we may yet see more money poured into the region’s IP ecosystem.

[...]

On the patent side of its business, IP Bridge recently announced a new assignment to its IP fund by an unnamed Japanese corporate. Recent USPTO assignment records show that the source of the patents – which are related to the H.264/AVC and H.265/HEVC standards – was Seiko Epson, which transferred at least six granted US assets to IP Bridge in late August. Another recent recordal indicates that the fund received 10 US patents from Avago (now known as Broadcom), possibly as part of the two parties’ recent settlement after US and China assertions by the NPE.

“NPE” is just a euphemism for troll. The US is full of patent trolls and many are moving to or emerging in China these days. Japan is hopefully wise enough to combat this issue before it even surfaces.

Battistelli’s Destruction of the EPO is Bad for Everyone, Even Patent Attorneys

Posted in Europe, Patents at 6:21 am by Dr. Roy Schestowitz

Destruction

Summary: The collapse of the European patent system, owing primarily to Battistelli’s totalitarian style and deemphasis on patent quality, means that “the war is lost,” as one professional puts it

THE FOLLOWING new comment (from earlier this morning) is worth quoting. It comes from someone who saw that now-infamous lecture from Christoph Ernst, the new boss of the EPO (supposed to be on top of Battistelli).

“Gentlemen,” it says, “I think it is time to realize that the war is lost” at the EPO. Here is the explanation (with highlights for those who want to read more quickly):

I was at the lecture given by Christoph Ernst at the Max Plank Institute. In effect, he explained to the assembled representative of German applicants and attorneys that he did not care about their concerns and that he will do nothing.

Mr. Campinos track record at EUIPO makes it crystal clear that he is in the same boat as Battistelli. Don’t expect any change in policy. Actually, expect the situation to become much worse.

In the administrative council, the following delegations have tried to oppose Battistelli’s system: France (voted against policies and tried to pressure Battistelli), Switzerland (initiated the open letter from the Council), Denmark (removed Kongstadt), Italy (presented another candidate), Netherlands (court cases and questions in the Hague). and a few I forgot (mainly in northern Europe, I think). Basically, all major Patent countries opposed Battistelli at some point, with the notable exception of the UK (Brexit did not help) and of course Germany. Correct me if I am wrong.

This achieved exactly nothing. The newly elected people are the same policy under a different name. The war is lost, there is no battle left to be fought.

What does this mean for the applicants? It means that for the same price as usual, you get a shoddy search and a language check. You get a piece of paper that is probably trivial to invalidate in court. And your only choice, is either this kind of patent or no patent at all. It may take a few years, but SMEs will start to realize that it is not worth the effort, so expect patent attorneys to feel a dearth of customers at that point. Unless they work for large applicants, maybe.

What this also means is that now, right at the center of Europe, we have a place where nobody needs to respect employment laws. People, including elected representatives and managers, can be harassed and fired at will without any consequences. Salaries can be halved, benefits can be cut and public holidays need not be granted. Independence of the judicial sends one next to a mad house, literally. Permanent contracts are revoked. Maybe demonstrating that this kind of “modernisation” of employment laws is possible right in the center of Europe was also part of the plan, I do not know.

The UPC, as we explained before, would make things even worse, especially for SMEs.

The UPC would be good for nobody except patent trolls, patent law firms, and maybe some massive multinational pharmaceutical companies. We mentioned this before, in yesterday's article about Bristows UPC brainwash and the European Commission’s stance on SPCs. Bristows is, as expected, trying to solicit lobbying for UPC again in light of these developments. These people just won’t give up as long as lying brings them business. This was covered by IP Watch and then in this blog post from Bristows. They wants the so-called ‘unitary SPC’:

On 12 October 2017, the European Commission launched a public consultation on supplementary protection certificates (SPCs) and patent research exemptions in the pharmaceutical sector (and other sectors with regulatory market authorisations). This consultation is within the framework of the Single Market Strategy (adopted in 2015), one aim of which is to improve the patent system in Europe for such sectors. Proposals include the creation of a European SPC title (a ‘unitary SPC’), an update of the EU patent research exemptions (e.g. the EU ‘Bolar’ exemption, whose implementation in national law is not consistent), and the introduction of an SPC ‘manufacturing waiver’ (to allow manufacture during SPC term for export to countries with no SPC protection).

We often wonder if, had it not been for Battistelli’s mad desire for the UPC, judges would not be abused in defiance of the EPC and patent examination would not be rushed to the point where European Patents (EPs) are so bad. If Battistelli and his French successor do nothing to correct this, there will be neither UPC nor a EPO.

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