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01.16.18

2018 Will be an Even Worse Year for Software Patents Because the US Supreme Court Shields Alice

Posted in America, Courtroom, Law, Patents at 9:15 am by Dr. Roy Schestowitz

Positive vision for the year ahead (if you develop software)

Eye vision

Summary: The latest picks (reviewed cases) of the Supreme Court of the United States signal another year with little or no hope for the software patents lobby; PTAB too is expected to endure after a record-breaking year, in which it invalidated a lot of software patents that had been erroneously granted

THE first year of Donald Trump (anniversary 4 days from now), surprisingly enough, did not have much impact on the patent world or the patent landscape in the United States*. Congress barely did anything. One thing Trump did was, he appointed a new Justice.

Prof. Timothy Holbrook of Emory Law wrote about the US Supreme Court‘s decision to look into WesternGeco. From his introduction:

Patent law remains hot at the Supreme Court. The Court on January 14, 2018, agreed to review WesternGeco LLC v. ION Geophysical Corp. WesternGeco joins two other patent cases at the Supreme Court (so far) for its October 2017 term.

We wrote about this very briefly towards the end of the weekend. The good news is, no case regarding software patents or anything remotely like it will be looked at. There won’t even be another Mayo. It means that we can expect no imminent changes/alterations in Section 101 and the USPTO, for the time being, has only an interim Director. He is actually the recipient of a lawsuit, Bosch v Matal, on which Kluwer remarked yesterday by saying: “The Board [PTAB] erred, however, in denying the patent owner’s request to substitute 16 amended claims for the original claims. The Board impermissibly assigned the burden of proof on patentability of the proposed amended claims to the patent owner.”

This is a CAFC case regarding PTAB. CAFC cases may have some significance, but they hardly set the law at the USPTO. However this ends, it won’t have any impact on PTAB. What can have impact is Oil States at the US Supreme Court (oral hearings already started). It looks, based on the proceedings so far, like all/most Justices will side with PTAB, which is widely supported (also in briefs from industry). Watchtroll’s daily PTAB bashing carries on unabated (not a day without it, even on Sundays, even yesterday on MLK day). They are propping up patent trolls’ agenda like a lobbying group, knowing quite well that Oil States is likely a losing game for them.

PTAB is important because — with or without a trial — it can invalidate any US patent at any time (if petitioned to do so). It has been a serial enforcer of the Alice test and this is why PTAB has been so scary to proponents of software patents. We still see some of these patents in the news**, but they pose a far lesser threat as long as Section 101 remains in tact and PTAB has the capacity to deal with thousands of petitions per year. Sometimes one can find another basis for thwarting litigation. In this new case, for instance, there was “future promise to assign patent rights” (“I hereby do assign” versus “I will assign”) and this meant that the whole lawsuit was baseless if not an act of misconduct (asserting or leveraging patents that aren’t even one’s own). Newman is standing out from the crowd and dissenting as usual. “Judge Newman dissented,” it says, “believing that the employment agreement was sufficient to transfer ownership of the invention to Ms. Hsiun’s employer.”

The bottom line is, the US Supreme Court (SCOTUS) will look only at WesternGeco and will thus not challenge Alice any time soon. We can therefore expect software patents to erode further and further, more so after TC Heartland (keeping litigation away from district courts that are software patents-friendly).
________
* According to IAM, Trump’s regressive tax policy, or tax ‘cuts’ (to billionaires), will help people who price medicine out of patients’ reach. “Analysts at Goldman Sachs predict a $160 billion windfall for the pharmaceuticals industry, with Abbott Laboratories, Johnson & Johnson, Amgen and Merck & Co named among those with most to gain,” it said.

** More software patents, which would be deemed invalid under Alice/Section 101, still make it into the news. This one is the “over the Internet” type:

Packets are the carriers of data on the internet; they consist of user data (a payload), and also of control information about where the data should go (a header). A packet identifies its sender and addressee by their IP addresses but (currently) does not include any information about the sender’s or addressee’s physical location (geolocation); while IP addresses may indicate, generally, a geographical location, they are not an exact and perfectly reliable determinant of the location – for reasons that include, among other things, the possibility of spoofing IP addresses.

Patent Trolls (Euphemised as “Public IP Companies”) Are Dying in the United States, But the Trouble Isn’t Over

Posted in America, Patents at 7:50 am by Dr. Roy Schestowitz

The infinite power

Summary: The demise of various types of patent trolls, including publicly-traded trolls, is good news; but we take stock of the latest developments in order to better assess the remaining threat

“Intellectual property [sic] is often the most valuable asset of a startup business,” says a site of lawyers. On Friday they actually published an article titled “What Startups With Lean Budgets Can Do to Protect Their IP”. They don’t quite specify if by “IP” they mean brands, copyrights (e.g. of code), or patents. There’s a paywall. Maybe patents of patent trolls is what they had in mind because virtually no startup actually relies on patents. Startups create compelling services and products.

It is a big problem when startups, even ones which used to have real products, turn into something like PersonalWeb (borderline patent troll, a pseudo-practising entity). PersonalWeb, which we wrote about 6 years ago, is at it again; it’s just suing everyone and Law 360 had a repord about the latest lawsuit a few days ago. To quote:

FanDuel Inc. on Thursday became the latest company hit with a cloud computing patent suit by software developer PersonalWeb Technologies LLC, which in recent days has sued dozens of others, including Airbnb Inc., Blue Apron Inc., Venmo and Reddit.

The developer’s New York federal lawsuit alleges that the way the fantasy sports giant populates its website in real time infringes five different PersonalWeb patents related to cloud computing. Its patented technology, PersonalWeb alleges, allows internet users to have the most up-to-date data at their fingertips.

Sadly, there’s a growing ‘industry’ of litigation; it creates nothing but pain. Those who dare speak about it are immediately attacked by people like Nick Gross, who is groomed by the patent troll Dominion Harbor. On the same day we wrote about him he also joined these trolls on a show [1, 2] (they are habitually defaming me on their show). It certainly seem like they have nothing left but hate mail and defamation. They’re accustomed to bullying.

The patent trolls’ lobby (IAM) now complains that it’s getting harder to be a troll in the US. Dominion Harbor agrees.

“In what remains a tough market for PIPCOs,” IAM said, “Inventergy is well and truly back in the assertion game as it launches a new #patent infringement suit in California”

IAM also said that “Inventergy has just agreed a debt refinancing structured with interest rates of between 8% & 17%, plus profit share. Ouch. Says a lot about PIPCO market these days.”

Let’s hope that patent trolls will all go extinct rather soon. Their “business model” needs to be crushed. Here is what IAM wrote in its blog the other day:

It looks like the public IP company (PIPCO) Inventergy, which went through a recent major restructuring that saw it hand control of a huge portfolio to debt provider Fortress, has reappeared on the assertion scene, filing a suit in the Central District of California against a company called GPS Monitoring Solutions. The patent at the centre of the case was part of a June 2016 deal which saw Inventergy obtain the exclusive rights to license or sell three assets owned by a company called GTX Corp. The PIPCO, headed by former senior HP IP executive Joe Beyers, announced a year ago that it had launched a licensing campaign for the patents, which relate to GPS tracking.

They will attempt to lobby the government. They can afford lobbying. McKool Smith, which represents patent trolls, has just hired (i.e. will pay a salary to) the former ITC Commissioner. Revolving doors much?

Meanwhile, CNBC is writing puff pieces for a notorious patent troll (several of these lately). This week it does one for Amazon. The patent troll in question is stockpiling blockchain patents (and sending me death wishes). IAM says that “Bank of America and IBM lead on blockchain patents” (remember that IBM is a patent bully and trolls harvest these patents). To quote a portion:

As the fluctuating bitcoin market has everyone talking, new research has thrown light on which companies are the leading filers of patents related to blockchain, the technology which underpins the world’s best known cryptocurrency, but whose application could extend to multiple different sectors. Among the leaders are the giant financial institutions Bank of America (which takes the top spot with 43 patents) and Fidelity (which boasts 14 grants), payments leader Mastercard (joint second with 27) and, by far the leading tech player, IBM (another sharing second with 27 patents).

It’s perhaps not surprising that the biggest financial institutions dominate the list of largest blockchain patent owners, but according to the research by Envision IP it is start-ups and other companies focused on developing applications for the technology that have the edge on Wall Street and the largest tech players. Envision claims that these specialists own 59% of the US patents and published applications in the sector, comfortably ahead of financial institutions which have 20% of grants and filings and up on the traditional technology sector which owns around 13%. The digital currency exchange Coinbase leads the way among the specialists with 13 patents followed by the likes of Monegraph, Digital Asset Holdings and SKUChain Inc.

More and more of these patents will likely have no ‘muscle’; They would be deemed invalid under Alice/Section 101 if tested in courts. If used in bulk, however, invaliding all of them would prove more costly than settling.

EPO Management and Team UPC Carry on Lying About Unified Patent Court, Sinking to New Lows in the Process

Posted in Deception, Europe, Patents at 7:13 am by Dr. Roy Schestowitz

It can never sink low enough

UPC boat

Summary: At a loss for words over the loss of the Unitary Patent, Team UPC and Team Battistelli now blatantly lie and even get together with professional liars such as Watchtroll

THE EPO races to the bottom. The management quit giving a damn about the EPO’s reputation and it is now lying so routinely that staff is left embarrassed (or staff’s intelligence insulted). There are many sectors where lying to staff is easy and management can get away with it. But not patent examiners (scientists). They are hard to mislead and they don’t like being managed by people far less intelligent than them — people who get their job owing to nepotism and submissiveness to authority. Intelligence is no longer being rewarded at the EPO; instead, it’s blind loyalty and lack of scrutiny of patent applications (for the sake of ‘production’). It’s alarming because it means that the EPO won’t be able to attract — and at the same time lose — its most valuable asset, which is smart people. This is how organisations prosper and perish; it’s all about who they’re able to recruit.

We were a little shocked (but not entirely surprised) yesterday when the EPO’s official account wound up retweeting Watchtroll. How low will they stoop to promote the UPC lunacy? Watchtroll is notorious among the online communities that care about science and facts. Here is what the tweet said:

Join me on Thursday 1/18 at 12pm ET for a free webinar on the #UnitaryPatent. Will have a guest from @EPOorg and a European Patent Attorney. Register at http://bit.ly/2CWKtwr . Sponsored by @MorningsideIP pic.twitter.com/VYnpTLHPiY

Incredible. So the EPO is now getting together with these dishonest bullies who promote patent trolls. What next? EPO on Breitbart? Oh wait, that already happened; they look to recruit Breitbart readers.

Either way, what we are gradually witnessing more and more of is departure from science and truth at the EPO. When the EPO gets together with academics it actually pays them to disseminate lies about the UPC [1, 2]. There are always some dishonest academics (lacking integrity) looking to make a quick buck.

Watch what the EPO tweeted yesterday. Again, it’s embarrassing. This is a bunch of lies. The EPO is structuring itself to make accountability weaker, operations worse, and even a study warned them against it. But this helps promote Battistelli’s buddies in DG1, so what’s not to like? These misleading tweets about misleading old ‘news’ from Team Battistelli will not fool EPO employees. They’re too smart for Team UPC’s lies as well.

What now? Well, they’re spreading lies again and it’s working; it enters the media.

“DAV is not the official German Bar Association but nothing more than a private association with voluntary Membership,” one EPO insider wrote. But of course the media doesn’t care about such ‘pesky’ facts, which came directly from Team UPC (later, upon challenge, admitting that it lied).

Some media (all the media that we’ve seen so far!) repeated these claims from Team UPC, calling a submission to the court a significant step towards dismissal of the complaint and attributing it to “German Bar Association”. The headlines spreak for themselves (there have been only two): 1) “German Bar Association says Nein to patent court block effort”; 2) “UPC complaint “inadmissible” says German Bar Association” (both sites are British).

As one can immediately see, these headlines can mislead (most people read just the headlines). This is why Team UPC was spreading the lie that DAV is ‘the’ “German Bar Association” (that isn’t what it really is). The latter keeps citing groups like litigators, so it’s obviously interested only in the views of hardcore litigation lobbies. To quote the exception (IP2Innovate, which we wrote about before [1, 2]):

Advocacy coalition, IP2Innovate, whose members include Google, Spotify and Intel, claimed that trolls already make up a “staggering 20 percent of all patent lawsuits in Germany”.

Patrick Oliver, executive director of IP2Innovate, said that the UPC was a cause for concern and could prove an “attractive venue for patent abuses”.

A spokesperson for the coalition added that “the threat of an EU-wide injunction is a powerful weapon, and the UPC hands PAEs exactly such a weapon.”

Some of the more interesting stuff is happening in the comments at The Register

For starters, Team UPC’s Alex Robinson admits that he lied about DAV being what he claimed it to be (comment #4). To quote:

It’s been drawn to my attention (via comments on Kluwer and correspondence on Twitter) that the DAV is not the official German Bar Association, but instead is a voluntary association. The German Federal Bar Association (of which membership is compulsory) is the Bundesrechtsanwaltskammer (BRAK). This, too, was invited to file observations, but as yet they have not been made public, if such observations were indeed submitted.

An important thing to bear in mind here is that the decision on admissibility ultimately falls to the German Federal Constitutional Court. Thus, while the DAV opinion certainly provides one set of arguments in favour of inadmissibility, this is not a foregone conclusion. Many other organisations have also been invited to comment, but most German practitioners I’ve spoken to expect those organisations to take more or less the same line as the DAV.

My understanding is that the Federal Constitutional Court now has a range of options ranging from a straightforward written finding of inadmissibility at one end, all the way through to – at the other end of the scale – an oral hearing at which both the admissibility and the substance of the complaint are argued in detail. We will probably not know which option the Court will go for until it makes an announcement informing us. This could depend on how persuasive the judges find the arguments for admissibility/inadmissibility from either side.

The lack of transparency in this procedure overall is really quite striking. (If anyone can confirm that this is a general feature of German legal proceedings, do let me know!) The DAV is, in my opinion, to be commended for publicising its position even though many readers of this blog and others may well be in disagreement with the idea of the UPC.

Well, maybe the headline needs to be corrected; Robinson’s headline, The Register‘s headline and the rest. But don’t expect them to do it. To Robinson, such lies are “valuable” or “useful”, so why bother correcting the error?

Check out the next comment about DAV (Tilmann et al):

The DAV’s comments should not be taken at face value. The most recent comments on another Kluwer post illustrate why the DAV’s submissions “amount to nothing more that smoke and mirrors, together with desperate attempts to gloss over gaping holes in the legal arguments”:

http://patentblog.kluweriplaw.com/2017/12/12/prof-tilmann-fcc-several-reasons-reject-inadmissible-complaint-upca/

Whilst the EPO might be an international organisation that is afforded various privileges and immunities, this does not mean that it can operate without any thought to the constraints imposed by EU law. For example, the EPO’s assessment of patentability must respect the provisions of the Biotech Directive. If this does not happen, then there could be serious consequences for the EU Member States. The failure of the DAV’s submissions to acknowledge such complexities therefore provides yet another reason to take their views with a pinch of salt.

As we put it yesterday, UPC is built on political mischief and misconduct, it’s basically just a lie, and Team UPC are greedy liars. Just like the EPO management right now… they belong together. Team UPC and Team Battistelli (EPO management) tell us whatever lies promote the illusion that the UPC is desirable (they like talking about “SMEs”). They want us to think that they ‘unify’ Europe (hence an acronym with “unified” or “unitary”, after the latest rename of “EU” and “community”). It’s all about profits of litigating entities and it harms SMEs the most (they rarely even operate outside their home country).

Finally, just to show the sheer dishonesty of Team UPC, check out what Herbert Smith Freehills LLP’s Rachel Montagnon published yesterday. This is the headline: “The Unified Patent Court (UPC) – Open for Business in 2018?”

Pushing lies with a question mark at the end still makes these lies. They’re clearly getting desperate and they ignore every fact which does not suit them, pretending all barriers are gone, including some of the biggest ones, for example:

German ratification is dependent on the outcome of the challenge being mounted in the German Federal Constitutional Court (FCC) regarding the constitutionality of the law passed by German Parliament on the UPC’s implementation. The German court has asked for observations on the case and had previously set a deadline for any comment by end of October 2017 – though it has been reported that this has now been extended to the end of the year. The FCC will then determine whether or not to dismiss the complaint, a process which is expected to take until at least April 2018. If the complaint is dismissed, Germany will be able to ratify the UPCA soon after. There has, however, been talk of the possibility of the case being referred to the Court of Justice of the EU (CJEU), which would cause substantial delay to the case being decided and ultimately to Germany’s ratification.

See? Not a problem! The complaint in Germany? It’s gone. Poof!

Just because they want barriers to vanish doesn’t mean they will. The author feels comfortable leaning on Jo Johnson, at no point bothering to point out that both he and his predecessors are gone!

China Tightens Its Knot of Restrictive Rules and Patents

Posted in Asia, Patents at 1:22 am by Dr. Roy Schestowitz

Recent: China’s Self-Destructive Patent Policy Will Replace Assembly Lines of Products With Assembly Lines of Low-Quality Patents and Lawsuits

China's trolls
Almost everything is “made in China”, but usually not by Chinese brands

Summary: Overzealous patent aggressors and patent trolls in China, in addition to an explosion in low-quality patents, may simply discourage companies from doing production/manufacturing there

THE world is changing as economic shifts become irreversible. Karry Lai, writing from Hong Kong this week, says that “China’s anti-unfair competition law amendments became effective January 1″ (2 weeks ago).

“It is becoming increasingly dangerous to operate in China because the risk of lawsuits grows exponentially (with the pace of patenting at truly astronomical levels that defeat the purpose of patent systems).”In addition, China now engages in mass patenting of just about anything, with nearly 1.5 million patent applications per year. “It’s a sign of the times,” IAM said in relation to the latest legal actions (covered in yesterday morning's roundup) and IAM wrote this article about it (as did Lisa Wang in Taiwan, among others). China has become somewhat of a ‘darling’ to IAM because IAM promotes litigation and aggression, which is something that’s soaring in China these days (IAM has just published this self-promotional piece for the patent ‘industry’ in China).

It is becoming increasingly dangerous to operate in China because the risk of lawsuits grows exponentially (with the pace of patenting at truly astronomical levels that defeat the purpose of patent systems). “A month after finding itself on the receiving end of a trade secret lawsuit from Micron,” IAM wrote, “Taiwan’s UMC has asserted patents in China against the US chip major. This latest litigation means another US semiconductor company finds itself staring down the barrel of a patent lawsuit in Fujian, a hub of China’s domestic memory sector.”

China seems so tactlessly eager to drive out companies that manufacture in China. Even companies from Korea, Japan, and maybe Taiwan or Hong Kong (which China attempts to assert complete sovereignty over). This new article by Jean-Pierre Chigne is one among many — most of them published last week — about the Chinese state-connected giant bulldozing Samsung (of South Korea) in a Chinese court. To quote:

As a result of the ruling, Samsung will also have to pay a small court fee. The court also dismissed Huawei’s other claims, and Samsung will be able to appeal the decision.

Both companies have been filing lawsuits against each other in both the United States and China. Huawei also filed a lawsuit against Samsung in the United States for violating patents on cellular technology and software.

It’s no secret that a lot of the world’s manufacturing is done in China, but it’s often done at the behest of (with orders/invoices) corporations from the US, Europe, Japan, Korea and so on. By becoming so legally aggressive China now puts that at danger. These companies could, instead, set up plants in places like Thailand or Cambodia (some already do just that), where the perceived risk of litigation seems lower.

Microsoft’s Patent Racket Has Just Been Broadened to Threaten GNU/Linux Users Who Don’t Pay Microsoft ‘Rents’

Posted in GNU/Linux, Microsoft, Patents at 12:51 am by Dr. Roy Schestowitz

Racket“We’ll defend you from the very same patent trolls whom we feed”

“I’ve heard from Novell sales representatives that Microsoft sales executives have started calling the Suse Linux Enterprise Server coupons “royalty payments”…”

Matt Asay

Summary: Microsoft revisits its aggressive patent strategy which it failed to properly implement 12 years ago with Novell; it wants to ‘collect’ a patent tax on GNU/Linux and it uses patent trolls to make that easier

THE CONNECTION of Microsoft to patent trolls is very obvious. The world’s largest troll (Intellectual Ventures) came from Microsoft, Acacia (patent troll which habitually sues GNU/Linux vendors) has former Microsoft staff, MOSAID (another patent troll) received Nokia’s patents at Microsoft’s instructions, Microsoft’s co-founder has a patent troll (Interval Research Corporation) and Bill Gates himself is directly connected to several patent trolls (some of which he funds).

“What Microsoft’s patent strategists are doing these days is incredibly similar to what they did with Novell in 2006 and similarly called “Advantage”…”About a year ago Microsoft came up with a new plan [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12]. We wrote many articles about it (nearly 20 in total) and we last wrote about it a month ago in relation to the Provenance Asset Group [1, 2]. What Microsoft’s patent strategists are doing these days is incredibly similar to what they did with Novell in 2006 and similarly called “Advantage” (as in buy SUSE, pay Microsoft, and lower risk of lawsuits from Microsoft and/or its proxies at the time).

Do not be misled by patent propaganda from Microsoft in tweets and in article form (examples from this week alone). Also do not be misled by shallow, poor coverage like this from a few hours ago. The headline euphemistically states “Microsoft extends patent protection shield on-premises,” but what really happens here is a lot simpler: Microsoft extends patent ‘protection’ racket, sends patents to patent trolls and then says, “come to us, we’re safe!”

From the article:

The company hoped that those efforts would let developers do what they do best in Azure, without having to worry about patent trolls popping up from under a bridge. Redmond didn’t offer the service as a perfect shield, but claimed the service was at least better than similar programs from other clouds.

In the pages of The Register lawyer Barry Sookman’s analysis of the program suggested the program’s real purpose may have been to make it hard for patent trolls to open up a new front against Microsoft by suing its customers for patent infringement. Sookman also said the protections offered aren’t super-useful to end-users.

And yet the author missed the whole point! He clearly did not seek to explore the commonly-understood interpretation of Microsoft’s strategy (already covered in various Web sites). So let’s look at the comments, shall we?

“So other people too are ‘getting’ it; they ‘get’ Microsoft’s thinking, unlike some journalists who overlook the real plot and portray this as some sort of goodwill gesture from Microsoft (which claims that it ‘hates’ trolls while actually passing loads of patents to them).”“Protection shield or racket,” says the sole comment on this article. “”It’d be really bad if something bad happened to you so consider joining our platform” says MS.”

So other people too are ‘getting’ it; they ‘get’ Microsoft’s thinking, unlike some journalists who overlook the real plot and portray this as some sort of goodwill gesture from Microsoft (which claims that it ‘hates’ trolls while actually passing loads of patents to them).

01.15.18

EPO Scandals Played a Considerable Role in Sinking the Unified Patent Court (UPC)

Posted in America, Europe, Patents at 5:14 am by Dr. Roy Schestowitz

Inability to maintain the reputation and perception of justice at the EPO is proving fatal


“Dialogue” like telling the Appeal Boards to sack their colleague, a judge called Patrick Corcoran?
Original: Presidential candidates set out their vision for the EPO | full article (copy)

Summary: Today’s press coverage about the UPC reinforces the idea that the EPO saga, culminating in despicable attacks on Patrick Corcoran (a judge), may doom the UPC once and for all (unless one believes Team UPC)

THE UPC isn’t going ahead, no matter what media may be trying to tell us. Some of that media is literally paid for UPC advocacy. It has been promising or heralding the UPC for a number of years, but it was wrong every time. They are trying to sell outcomes, not information.

To get an idea of what patent professionals think, look at comments. Right now, for example, virtually all the comments about it in Kluwer Patent Blog are negative (13 comments so far, with the author trying to contain the damage after his late Friday 'Molotov'). That speaks for itself really. So do the comments (so far) in this morning’s coverage from The Register. “Good news for UPC advocates, bad news for EPO staff,” says the summary. Well, “UPC advocates” being Team UPC and “good news” being an odd term because the views of Tilmann at el were so predictable that it’s not even news (he already expressed these same views in Kluwer Patent Blog, only to be promptly slammed in the comments). The article is noteworthy for the parts which cover EPO scandals and their relevance to the perception of justice. Quoting the author who is very much familiar with these matters:

To date, it appears that there are three main issues: that it was not properly voted on; that Brexit changes things; and that “reforms” at the European Patent Office (EPO) have undermined the independence of the system.

[...]

That will be a bitter pill for many critics of the EPO who have been outraged in recent weeks that one of those independent judges – Patrick Corcoran – was not reappointed to the EPO’s Boards of Appeal even after he successful won his case against EPO management.

[...]

The bad news is that there appears to be no larger constraint on the EPO’s appalling behavior towards its employees. In fact, the decision may even embolden EPO management to continue its campaign of harassment against staff knowing that there is no organ that can hold it to account, or even punish it for its actions.

The ethical abyss at the EPO has cost UPC its viability. What kind of court, seeing what goes on at the EPO, would give the EPO ‘unitary’ scope (or effect)? That would be irresponsible and reckless. There are ethical issues at play, not just legal or technical.

Over at Patently-O, which has a section on ethics (run by David Hricik*), a new blog post has been published about patent scams. As Hricik put it some days ago:

I love this case because it has lessons for ethics, drafting, and civil procedure.

The holding is pretty simple: an inventor who signs an employment agreement that provides (a) she “will assign” rights to inventions doesn’t then assign them; (b) that she “holds in trust” those rights doesn’t mean she assigns them; and (c) that she “quit claims” those rights doesn’t mean she assigns them. Two judges so held (O’Malley and Reyna), and Judge Newman dissented relying on the “intent” of the contract. The case is Advanced Video Tech. LLC v. HTC Corp. (Fed. Cir. Jan. 11, 2018), here.

We have covered several examples of this over the years. It’s misconduct, yet it’s rarely punishable. There are variants to this kind of misconduct and it always serves to discredit the USPTO. When patent offices fail to maintain their reputation and adjunct courts tolerate it (or cannot challenge the offices), there’s a high cost. The UPC is Europe’s example of it.
______
* Hricik’s blog posts, unlike Crouch’s, are typically OK. He now has this new paper (PDF; via) about the US Supreme Court (SCOTUS) — a paper in which he asserts that “patent rights have been weakened through changes in the law [which] effectively eliminates the presumption of validity. Other changes including heightened pleading requirements and state statutes also reduce the coercive benefit that patents confer.”

J Nicholas Gross Thinks Professors Stop Being Professors If They’re Not Patent Extremists Like Him

Posted in America, Deception, Patents at 4:18 am by Dr. Roy Schestowitz

Summary: The below-the-belt tactics of patent trolls and their allies show no signs of abatement and their tone reveals growing irritation and frustration (inability to sue and extort companies as easily as they used to)

THE INTERNET is not a pleasant place when it comes to discussions about patents. We may seem confrontational/abrasive at times, but nowhere near as much as trolls and their defenders. They describe people who invalidate patents as “killers” or “death squads”. Watchtroll even called them a “cartel” earlier this month.

J Nicholas GrossThis theme of death or “kills” isn’t too uncommon. Here is one patent maximalist stating: “In a Rule 36, Fed. Cir. Affirmed 101/Alice Kill of ZKey Patent Asserted against Facebook” (he always, without exception, uses the word “kill” in such scenarios, otherwise “survives” i.e. the language of militarism).

These people are habitually attacking CAFC judges, not just PTAB panels and SCOTUS Justices (as well as the EFF, as J Nicholas Gross repeatedly did when he wrote for the Web site of a patent troll last year). According to him, based on this tweet, professors stop being professors when he doesn’t agree with them on patents. These are his words: “Anti-patent troll “Professor” (RIGHT!) Lemley reversed today: cafc.uscourts.gov/sites/default/… CAFC says his serial infringer client loses on 101 bc SOFTWARE-BASED ‘innovations can make “non-abstract improvements to computer technology”’ here security profile enabled bette [sic] virus filtering…”

J Nicholas Gross must be suffering from inferiority complex; he’s not a professor like Lemley (heck, he is not even a doctor), so he’s attacking Lemley’s credentials. Some patent trolls did this to me as well, defaming me as having fabricated my Ph.D. and even resorting to literally below-the-belt insults (like speaking about my genitals in their public podcasts). He appeared to have developed quite a reputation for these things and he is connected online (maybe professionally) to these trolls, too. Here he is, only days ago, attacking PTAB’s decision: “Another typical day at PTAB: Facebook inventor has novel, non-obvious invention that distinguishes over prior art, so Examiner overruled; but random application of 101 results in no patent: e-foia.uspto.gov/Foia/RetrieveP…”

And on he goes:

Today’s CAFC decision proves categorically that their 101 jurisprudence is disastrously panel-specific, and your only hope as patent owner is that you are fortunated to get udges who actually understand how software works: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2520.Opinion.1-8-2018.1.PDF …

From what I can gather, virtually none of these proponents of software patent (and vocal PTAB bashers) even wrote a computer program. Ever. The above rant comes from a person (attorney) whose online profile suggests to be “[c]urrently marketing and soliciting offers for license or purchase of certain key patent assets in the area of e-commerce…”

Sounds like the patent ‘assertion’ types (borderline trolling). That explains it then.

The US Supreme Court Has Just Denied Another Chance to Deal With a Case Similar to Alice (Potentially Impacting § 101)

Posted in America, Courtroom, Deception, Patents at 3:40 am by Dr. Roy Schestowitz

§ 101 will carry on invaliding abstract patents

Section

Summary: There is no sign that software patents will be rendered worthwhile any time in the near future, but proponents of software patents don’t give up

THE departure from software patenting (more so post-Alice) isn’t to be taken for granted. It needs to be guarded. There are many attempts to undermine Alice, e.g. overriding the decision with another (more recent one), changing Section 101 (§ 101), and passing new laws in Congress. The USPTO probably couldn’t care any less because it profits from patents (academics say it explains low patent quality), but at the same time it needs to respect the law, especially the Supreme Court.

Do not expect the Supreme Court to override (or ‘overturn’ so to speak) Alice any time soon. As a matter of fact, a case which a patent maximalist claims to an “Alice 101 case” will remain buried as far as the Justices are concerned.

“As a matter of fact, a case which a patent maximalist claims to an “Alice 101 case” will remain buried as far as the Justices are concerned.”“Yesterday,” the maximalist wrote, “the Supreme Court Denied Cert. in RecogniCorp v Nintendo—an Alice 101 case.” He also said that “the Supreme Court Denied Cert. in the UMass Gene Case—an Eleventh Amendment State Immunity Case.” He then added that “the Supreme Court Denied Cert in the Smartflash v Apple case, where &533M verdict was reversed.” And finally: “The S.Ct. granted cert. today in Western Ge. co LLC v. Ion Geophysical Corp., case number 16-1011. This is a damages case.” Patently-O cared enough about that last one to write a blog post about it. “The Supreme Court has granted writ of certiorari in the international-patent-damages case WesternGeco LLC (Schlumberger) v. ION Geophysical Corp., Docket No. 16-1011,” it said. This has zero relevance to Alice. It’s here to stay and that’s just fine.

This very long new article from Josh Landau explains that it’s not the ‘disaster’ or the ‘avalanche’ the patent microcosm tries to call it. Here are some numbers to put things in perspective:

This search shows that, from Bilski’s opinion through mid-July 2017, there have been a total of 22,047 patent applications which have ultimately been abandoned after receiving a § 101 rejection under any of Bilski, Alice, Mayo, or Myriad. (For comparison, the USPTO issues approximately 300,000 patents every year.)

This doesn’t mean that these applications were abandoned because of the § 101 rejection—for example, a number were abandoned even though they were allowed because the applicant failed to pay the issue fee. It doesn’t even mean that the § 101 rejection wasn’t overcome—in some cases, the § 101 rejection is overcome and rejections over prior art lead to abandonment. All it means is that at some point a § 101 rejection was received, and the application was ultimately abandoned.

Still, this is the highest possible number of applications that could even arguably be considered to be abandoned for a reason that is in some way related to a § 101 rejection.

Let’s take a look at the opposite question—how many patent applicants overcome a § 101 rejection?

In an effort to ‘scandalise’ § 101 the lobbying ‘media’ keeps on going. The patent microcosm, as one ought to expect, is all over this. It refuses to let go and this article from 3 days ago said: “Patents protect inventions that are new, useful and nonobvious. The three main categories of patents are utility patents, design patents, and business method/software patents.”

“In an effort to ‘scandalise’ § 101 the lobbying ‘media’ keeps on going.”But what kind of law firm would honestly promote business method/software patents in 2018?

Here’s another new example, this one titled “Patent Eligibility and Obviousness in a Covered Business Method Patent Review” (also from the patent microcosm). “The limits of patent eligibility continue to be a major hurtle,” it says, but for who? For those who pursue litigation, not creation. But that’s not how the law firm puts it. To quote:

The limits of patent eligibility continue to be a major hurtle for patent owners whose patents are subject to Covered Business Method Patent Review (CBM) at the USPTO’s Patent Trial and Appeal Board (PTAB). In IBG LLC v. Trading Tech. Int. Inc., Case CMB2016-00090 (PTAB December 7, 2017) the PTAB issued a Final Written Decision holding that US Patent 7,725,382 was not directed to patent eligible subject matter under 35 U.S.C. §101. In addition to the §101 holding, the PTAB held that the Petitioner failed to meet their burden to show that the ‘382 Patent was obvious over certain prior art under 35 U.S.C. §103.

These are the usual rants about § 101, PTAB and so on. It has gotten rather tiring. The same site is absolutely paranoid over Alice/Mayo (§ 101). See the last paragraph here:

The answer to the question posed by the title is no, the Federal Circuit’s recent decision in Inventor Holdings, LLC v. Bed Bath & Beyond Inc., No. 2016-2442 (Fed. Cir. Dec. 8 2017) notwithstanding (reported on by this blog in “Attorney Fees Awarded for Post-Alice Patent Litigation”). Two recent district court patent cases in which the validity under 35 USC §101 of the asserted patents was in question yielded different results on the award of attorney fees under 35 USC § 285 (Opal Run LLC, Plaintiff v. C & A Marketing, Inc., Defendant, No. 2:16-CV-00024-JRG-RSP (Eastern District of Texas, Marshall Division) (November 29, 2017) (“Opal Run v. C&A”) and Product Association Technologies v. Clique Media Group, No. CV 17-5463-GW (PJWx), (Central District of California) (November 30, 2017) (“PAT v. Clique Media”)). Both cases slightly predate the Federal Circuit’s Inventor Holdings decision.

[...]

Lessons for Practice

Think twice before asserting claims that may be vulnerable to a §101 challenge.

Prior to asserting a claim that may be vulnerable to a §101 challenge, decide if saving the claim from a §101 review is worth the risk of paying attorney fees.

When seeking attorney’s fees for a defendant, dig as deep as possible to find evidence of the plaintiff’s motives in asserting the infringement claims.

They just try hard to bypass § 101 in order to dodge challenges, seeing perhaps press releases like this new one which speaks of “patents [on] understanding personality” (using algorithms).

“…not every time § 101 gets brought up it’s instantaneously applicable.”These are clearly software patents. They just avoid this term.

The same site posted another such rant a few some days ago (regarding Alice) and this time it was looking to exploit Finjan (a troll case which we covered the other day and Watchtroll belatedly mentioned on Sunday). They’re latching onto this case for Alice-bashing purposes, even though there’s no basis for it, as we explained some days ago. To quote:

Broad patent claims directed to computer virus screening have survived an Alice/35 U.S.C. § 101 patent-eligibility challenge at the Federal Circuit. Finjan, Inc., v. Blue Coat Systems Inc., No. 2016-2520 (January 10, 2018) (precedential). As reported here, the District Court had denied a post-trial motion seeking to set aside a finding of infringement on the grounds that claims of the ’844 patent were patent-ineligible. Addressing patent-eligibility along with other issues (not addressed in this post) related to several patents in suit, the Federal Circuit affirmed the district court’s holding that claims of U.S. Patent No. 6,154,844, entitled “System and method for attaching a downloadable security profile to a downloadable,” are not directed to a patent-ineligible abstract idea.

As we said before, not every time § 101 gets brought up it’s instantaneously applicable. The very fact that it’s not a catch-all defense actually lends legitimacy to § 101. But don’t expect sites like Watchtroll to acknowledge that. They’re lobbying and selling their services, that’s all. A couple of days ago the founder posted his marketing spam (selling the ‘industry’ which rips inventors off). In his own words: “For competent, thorough US patent searches alone you would pay at least $400 for something that is relatively simple and up to $800 to $1,000 for a search alone on something complex, or deals with software. This cost is for the professional patent search alone, and does not include the cost of an attorney to review the search and offer an opinion about patentability.”

The bottom like is, who pays? The other day fee deference was brought up after the “the district court dismissed the case on summary judgment after finding the claims barred under 35 U.S.C. § 102.”

“Watchtroll also runs sponsored press releases.”Whoever pays does not matter much to the law firms; it’s always them who eventually net that money.

Watchtroll also runs sponsored press releases. Truth does not seem to matter to these people and authors in TechDirt generally regard that site to be lacking integrity (they told me so). Watchtroll now boils down to § 101 lobbying, PTAB bashing and sometimes even CAFC bashing (Robert Schaffer and Joseph Robinson wrote two articles to that effect on Friday [1, 2]). From the latest PTAB rant of theirs: “The Federal Circuit affirmed the rejection of several claims in a patent owned by Monsanto. The patent is directed to a two-step process for crossing two parent soybean lines to produce soybean seeds with a modified fatty acid profile. The Board affirmed the examiner’s rejection, during inter partes reexamination, that the claims are anticipated by, or obvious over, a prior art patent to Booth.”

Monsanto has long used patents to bully just about everyone. Its patents are, unsurprisingly, some of the most notorious out there as they claim ‘ownership’ of particular bits of nature. These are ethical issues. Bilski, Alice, Mayo, and Myriad are very much necessary.

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