Summary: Some analysis of the input from the Government Accountability Office (GAO) with focus on the EPO and software patents
Regarding the “EPO and USPTO,” one reader told us over the weekend, there is some curious text which is worth examining/scrutinising further. Just before the weekend we wrote about GAO's input, which mostly chastised the USPTO over patent quality. A closer look reveals even more about the subject.
“This helps highlight existing problems and there is a lot that the EPO can learn from this.”Here are direct links to the report/s [1, 2]. One reader asked us, “did you get these documents?” These were mentioned very quickly by good blogs like Patently-O, so we noticed them very promptly and commented on these based on concise coverage, not based on a thorough reading of the entire text. “The EPO had no comments on the draft,” our reader told us. “In GAO-16-490,” for example “see e.g. p.25-28 on quality / time, effect of “corridors” (high grades -> higher production), also GAO-16-479: see p.21-22…”
To quote from the text: “The Government Accountability Office has released two reports: one suggesting the USPTO should define quality, reassess incentives and improve clarity; the other suggesting the USPTO should strengthen search capabilities and better monitor examiners’ work…”
This helps highlight existing problems and there is a lot that the EPO can learn from this. To quote one new comment about the EPO: “Some weeks ago the Central Staff Committee [CSC] published a paper about overcapacity and reducing stocks, they also mentioned the contracts for examiners. I heard that a director in The Hague sent a mail to his examiners in which he disproved all the numbers as given by the CSC, showing that their publication was misleading. Does anyone have a copy of this mail? Some facts would be useful for this discussion!”
If anyone has a copy, please send it to us. There is a growing (and legitimate) concern about patent quality at the EPO, especially after Battistelli took over and derailed various processes, not just oversight, appeals, etc.
“With PTAB and Alice there has already been a turn for the better, but not every outcome is positive.”Based on WIPR‘s coverage of the GAO report, “most patent cases involve software-related inventions [...] that are easy to “unintentionally infringe” (this does not surprise us as we have been arguing this for years).
IAM too (an EPO mouthpiece) responded to these findings regarding USPTO patent quality being so low, reaffirming what we have said for a decade or more.
To quote IAM: “The recent report on USPTO patent quality by the Government Accountability Office (GAO) would not have made for easy reading at the agency. That said, its leadership presumably knew what was coming long before they saw a draft of the report prior to its general release. The office knows it has a problem with quality – raising the standard of grants wouldn’t have become such a banner issue of Director Michelle Lee’s time in charge if it didn’t.”
“They want to keep their cake (software patents) and eat it too.”With PTAB and Alice there has already been a turn for the better, but not every outcome is positive. Watch this new article by Ricardo Ochoa of PretiFlaherty. Weeks later, well after the Bascom case, patent law firms still exploit an exceptional case for software patents promotion. If they wish to be honest, they will admit that software patents are neither justified nor easy to defend in a court, as per evidence which exists everywhere.
WatchTroll, the most vocal proponent of software patents out there, wrote today about Alice. Here is a key sentence: “Those who have been involved in patent prosecution going back 12-15 years will recall that after the initial rush of business method patents began, in about 2002, the Patent Office instituted what they referred to as “second pair of eyes” review. Under no circumstances could a patent be issued on anything that related to a computer-implemented invention unless and until it had been approved by two separate patent examiners. It certainly sounds like that is what is happening once again.”
It’s about time too. They would not grant a “computer-implemented invention [CII is another term or euphemism for software patents] unless and until it had been approved by two separate patent examiners,” but still, what guidelines would these examiners follow? The USPTO has not been exactly enthusiastic about altering the rules in lieu with Alice. We wrote about the latest changes a week ago and these probably give too much weight to the Court of Appeals for the Federal Circuit (CAFC), which is where software patents came from in the first place.
As Benjamin Henrion (FFII) put it earlier today, “why should programmers respect patent law? we should benefit from free speech, not patent censorship.”
As Deb Nicholson from the Open Invention Network (OIN) put it not too long ago, as per this report about her talk (“The state of software patents after the Alice decision”):
Combating software patents—and other abuses of the patent system, like design patents—is a long-term process, Nicholson reminded the audience. OIN runs several programs it hopes will protect free-software developers from the ills of bad patents, such as its Linux patent pool, the License On Transfer Network, and Defensive Publications.
But Nicholson told the crowd there are other ways they can help improve the patent landscape in the long term, too. They can contribute to the campaigns run by non-profit organizations like the Electronic Frontier Foundation and the Free Software Foundation, she said. Both are working to oppose the software-oriented provisions in the TPP, for example, among their other activities.
Individuals can also be powerful advocates for change within their own companies, pushing them to embrace a defensive, rather than offensive, approach to patents. And they can support the pending patent-reform legislation to lawmakers. Finally, they can continue to advocate for free and open-source software. The more we collaborate together, Nicholson said, the less we’ll want to sue each other.
The problem is though, as we last noted just over week ago, OIN does virtually nothing to stop software patents. Given the companies that formed it and steer this massive aggregate, it’s not hard to see why. They want to keep their cake (software patents) and eat it too. █
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“The most dangerous moment for a bad government is when it begins to reform.”
–Alexis de Tocqueville
Summary: Highlighting some of the differences between the US patent system and other patent systems
THE most notable deficiency at the USPTO right now pertains to overly broad patent scope and poor patent quality (the same direction which the EPO takes under Battistelli) and this leads to a lot of litigation by patent trolls. Startups (sometimes known here as SMEs) suffer the most and we rarely hear their stories because they must settle in secret and pay ‘protection money’ to non-practising entities. This clearly does not promote innovation. A lot of this activity, perhaps more than 90% of it (on a global scale), happens in the United States.
“It says a lot about what the USPTO fosters and why the EPO must not follow the same footsteps.”As of days ago, Ericsson’s case (via a patent troll it increasing uses inside Europe) against Apple found momentum at the Court of Appeals for the Federal Circuit (CAFC), home of software patents, according to this short report and BlackBerry has just beaten Mobile Telecommunications LLC, after this apparent troll (whose whole public existence revolves around this lawsuit) started a high-profile patent case in the US (BlackBerry is Canadian, but it can be dragged down south).
Leading Android OEMs are also embroiled in a patent war in the far east (Asia) and there are lots of articles about it [1, 2, 3, 4] (many hundreds in English alone, so they should not be hard to find even several years down the line).
What’s worth noting here is that in Asia, where a lot of the world’s phones are actually being made, patent trolls are hardly even a topic, whereas in the US patent trolls have become an epidemic. They are sometimes proxies of large companies such as Ericsson. In the case of Nokia, Microsoft has already created or armed trolls using its patents.
It is important to realise the difference between two manufacturing Android giants like Samsung (Kroea’s domain leader) and Huawei (China’s domain leader) having patent disputes and some random LLC du jour trying to tax large companies as well as small ones (these latter cases rarely make any headlines). It says a lot about what the USPTO fosters and why the EPO must not follow the same footsteps. █
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“Patent monopolies are believed to drive innovation but they actually impede the pace of science and innovation, Stiglitz said. The current “patent thicket,” in which anyone who writes a successful software programme is sued for alleged patent infringement, highlights the current IP system’s failure to encourage innovation, he said.”
–IP Watch on Professor Joseph Stiglitz
Summary: Various bits and pieces of news regarding patents and their fast-changing nature in the United States nowadays
AS WE wish to resume our EPO coverage (there is a lot more material on the way), we have decided to lump together various bits of news from the (primarily US) patent system, subdivided below and split into themes.
BlackBerry Still Dangerous
When Canadian powerhouse BlackBerry introduced not only one but several Android-based phones were were rather relieved, as at one point several years ago it seemed like BlackBerry was slowly transforming to become a patent troll or preparing to sell its very many patents to notorious trolls (or patent assertion firms/entities, PAEs for short). BlackBerry, which is still struggling based on the number of sales, may somehow be bound to become like a patent troll, judging by this new report which makes the company (now run by a Turbolinux executive who previously sold out to Microsoft on the patent front) sound like a PAE. “He also hinted at a future based around brand and technology licensing,” says the summary. Watch out for BlackBerry because if Android doesn’t give it the success it is looking for, then BlackBerry might simply choose to sue Android OEMs (directly or indirectly, like Ericsson and Nokia). They can always try to blame such aggression on “shareholders!”
China Comes Knocking, Not Knockoffs
“Watch out for BlackBerry because if Android doesn’t give it the success it is looking for, then BlackBerry might simply choose to sue Android OEMs (directly or indirectly, like Ericsson and Nokia).”Yesterday my wife and I had lunch with a businessman who is a distributor of goods from Hong Kong, Taiwan and the Philippines. He warned about Chinese protectionism via SIPO and spoke about unusual restrictions, such as the imperative registration (can take about a year) in order to proceed to the simplest of enforcement inside China (even purely defensive enforcement in the face of counterfeiting or cheap imitations).
Put old stigmas aside for a moment. China is not stupid. China is also more than an imitator. It actually brings out some innovations these days and it is willing to go abroad to sue Western rivals. It’s not just on the defensive and increasingly it’s on the offensive. “Knocking out Chinese patents may be a lot harder than you think,” IAM wrote the other day and Dr. Glyn Moody, citing his colleague (article from 6 years ago), says “Just As We Warned: A Chinese Tech Giant Goes On The Patent Attack — In East Texas”. So, how is it working out for multinational US companies which relied so much on the USPTO and faithfully (or blindly) trusted it for protectionism? “Techdirt,” Moody explains, “has been warning for years that the West’s repeated demands for China to “respect” patents could backfire badly. In 2010 [before Moody wrote for Techdirt], Mike [Techdirt founder] pointed out that Chinese companies were starting to amass huge patent portfolios, which were soon used as weapons against foreign firms operating in China, most notably Apple.”
“China is not stupid. China is also more than an imitator. It actually brings out some innovations these days and it is willing to go abroad to sue Western rivals.”Based on articles like this new one, not only Huawei is suing; it is also being sued, this time by Samsung (from Korea). Samsung and Huawei have become top Android OEMs and there is a lot of money at stake when people pay up to $1,000 per phone. IAM seems to have taken an interest in many east Asian markets recently; one new article is titled “Korea’s antitrust watchdog hints Qualcomm can expect another near $1b fine in patent probe” and another is titled “Transpacific denied Enfish lifeline as Taiwanese companies’ NPE experiment hangs in the balance”. These are IAM’s latest attempts to float software patents because of an old patent case involving Microsoft. To quote: “Sensing a glimmer of hope from the US Federal Circuit’s judgment in Enfish v Microsoft – which went some way towards clawing back patent eligibility for software inventions in the aftermath of the US Supreme Court’s ruling in Alice – Kinglite filed a motion asking that the Central California court to reconsider its decision on the invalidity of the ‘304 patent. However, this was rejected on the basis that Kinglite’s patent does not “disclose any of those mathematical algorithms that actually represent an application of the ‘abstract’ idea of securing the BIOS through authentication, nor a new concrete means of applying those algorithms… [unlike] the patent in Enfish which apparently disclosed a new method of building a database”.”
Enfish does not really change much, but IAM would use anything it can to promote the interests of its paymasters, often unproductive (or counterproductive) patent parasites like this one it has just written about.
USPTO Wants ‘Certainty’
“Samsung and Huawei have become top Android OEMs and there is a lot of money at stake when people pay up to $1,000 per phone.”Certainty (or contrariwise, uncertainty) has become one of those buzzwords that David Kappos and fellow patent maximalists (especially proponents of software patents) use to say that Alice is nasty and needs to be buried. Two more articles have been published about the efforts to trigger changes with a new memorandum [1, 2]. The latter says: “The extent to which these disparate analyses can be reconciled will depend, of course, on future case law, leaving the question of subject matter eligibility in its current state of uncertainty.”
When the author (patent maximalist who shamed even a SOCTUS Justice) says “leaving the question of subject matter eligibility in its current state of uncertainty” the simplest translation is “leaving the question of subject matter eligibility in its current state of denying software patents.”
This is a subject which was mentioned here the other day, especially in relation to IBM.
Dying Software Patents
“Certainty (or contrariwise, uncertainty) has become one of those buzzwords that David Kappos and fellow patent maximalists (especially proponents of software patents) use to say that Alice is nasty and needs to be buried.”Upon reassessment most software patents are invalidated these days. There are some exceptions like the BASCOM case and patent lawyers love latching onto those. An article from Jason Rantanen (Patently-O) is an example of this bias among professors as well. He wrote: “Since Alice v. CLS Bank, the Federal Circuit has issued four opinions rejecting a lack of patent eligible subject matter challenge: DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014); Enfish LLC v. Microsoft Corp., 2016 WL 2756255 (Fed. Cir. May 12, 2016); Rapid Litigation Management Ltd. v. Cellzdirect, Inc., 2016 WL 3606624 (Fed. Cir. 2016), and BASCOM v. AT&T, with the latter three coming the last few months.”
Well, still, those are clearly in the minority and they come from a crooked court which is responsible for bringing software patents to the US in the first place.
Another software patent has in fact just died, thanks to Alice again. Patent Buddy wrote that “PTAB Holds Lottery Patent Claims Invalid under 101/ Alice: http://assets.law360news.com/0819000/819445/cbm2015-00105_termination_decision_document_36.pdf …”
“Another software patent has in fact just died, thanks to Alice again.”PTAB is very much dedicated to elimination of such patents because it has no incentive to empower plaintiffs, unlike CAFC. The US needs a lot less of CAFC (or anything like CAFC) and more of PTAB. Don’t be misled by all those spinners who equate PTAB with “death squads”. Patent law firms, for instance, still conveniently cherry-pick cases that support software patents (see “Another Software Patent Survives an Alice Challenge” by Seyfarth Shaw LLP). They put “abstract idea” in quotes (probably scare quotes, depending on style) and even add the word “alleged”, certainly not hiding their bias too well. To quote this latest ‘analysis’ (marketing): “In a rather complex case, Yodlee again focused on the definition of the “abstract idea” by the defendant. Many times, defendants frame the alleged “abstract idea” too broadly to improve their 101 invalidity argument, and courts or the PTAB find the definition is too broad. Other times, defendants frame the abstract idea too narrowly and courts agree with the defendant on the definition of the invention, but find such a narrow definition to not be drawn to an abstract idea. Here, the defendant framed the abstract idea in a manner inconsistent with the claimed invention, and the court found no apples to apples comparison.”
Improving Patent Quality
In our previous post we praised the USPTO (or PTAB by extension) for at least working to improve patent quality somewhat. Professor Crouch says that a new U.S. Government Accountability Office (U.S. GAO) report alluded to patent quality. “Patent Office Must Define and Improve Patent Quality” says the headline and the body of the short article says: “Regarding patent quality, the GAO suggested that the USPTO’s standard of patent quality should focus solely on the basics: defining “a quality patent as one that would meet the statutory requirements for novelty and clarity, among others, and would be upheld if challenged in a lawsuit or other proceeding.” However, patent clarity must be an important element of that definition.”
“For those who don’t know it yet, when IAM precedes something with “REPORT” it’s actually a euphemism for “SPONSORED CONTENT” or “ADVERTISING” (disguised as analysis by some particular firm).”This is good news. Compare that to propaganda sites like IAM where there is a new “REPORT” (i.e. paid-for marketing placement for a firm) titled “International report – Federal Circuit distinguishes between tests for obviousness and patent-eligible subject matter”. For those who don’t know it yet, when IAM precedes something with “REPORT” it’s actually a euphemism for “SPONSORED CONTENT” or “ADVERTISING” (disguised as analysis by some particular firm).
GAO’s input basically says that the Office must tighten patent scope, whereas the latter (propaganda/marketing) offers ‘tricks’ for getting around scope restrictions.
Using Taxpayers’ Money for Patent Stockpiling
“GAO’s input basically says that the Office must tighten patent scope, whereas the latter (propaganda/marketing) offers ‘tricks’ for getting around scope restrictions.”We quite liked IP Watch‘s article “Patenting By Universities Unhelpful, Paper Says; WIPO Programme To Be Reviewed” . It was published a few days ago, just in time for IAM’s ‘report’ on Harvard University’s use of patents (granted using public money) to sue the private sector. IAM wrote: “Late last month Harvard University took the very unusual step of filing two infringement lawsuits against semiconductor manufacturers Micron and Global Foundries over their alleged infringement of two patents that are owned by the Ivy League institution. That in itself is a pretty rare occurrence – combing the Lex Machina database I found that Harvard has been a co-plaintiff on just one other patent suit since 2011, so it seems that this is the only case in at least the last five years that it has been the sole plaintiff in an action.”
This isn’t the first time that we write about universities getting aggressive with patents, not just selling patents to trolls who become aggressive with these (like Intellectual Ventures). What they do here is extremely unethical and should be grounds or basis for revocation of government grants. When universities are becoming like patent trolls (not producing but suing) it’s worse than classic patent trolls because taxpayers fund it and get punished for it, usually for the enrichment of some shady people.
“When universities are becoming like patent trolls (not producing but suing) it’s worse than classic patent trolls because taxpayers fund it and get punished for it, usually for the enrichment of some shady people.”In other IAM propaganda this week, watch this spin on patent litigation decline in the US. So patent trolls, which rely on software patents more than most (and pay IAM), lose momentum. A cause for celebration or for sobbing? Probably for sobbing at IAM. Bezos-owned news site Washington Post meanwhile reports, somewhat contradictorily (in light of the latest figures from Lex Machina), that “Patent lawsuits swell and watchdog says the government is to blame” (they actually decreased year-to-year in the past few months). To quote:
Inventors are filing an exploding number of lawsuits against companies that appropriate their products illegally — and a new report puts the blame for these costly disputes squarely at the feet of the federal government.
The U.S. Patent and Trademark Office is so focused on rewarding its employees for the number of applications they review that the quality of patents they give out is in jeopardy, according to the Government Accountability Office.
The result is that licenses conferring someone’s sole right to an invention are “unclear and overly broad” and vulnerable to infringement by competitors.
“Software patents are not legal in Europe, but the likes of Battistelli don’t obey the rules anyway and more attempts to interject software patents into Europe are made by those who could not care less.”Here again we have GAO saying what it has been saying for quite some time. Will anyone listen? Will the advice be taken seriously? See what happened after an Australian (almost) equivalent had said something to the same effect. Local patent law firms got rather aggressive.
Software Patenting in Europe Still Being Attempted
Software patents are not legal in Europe, but the likes of Battistelli don’t obey the rules anyway and more attempts to interject software patents into Europe are made by those who could not care less. According to this article, there’s a Dutch dispute over a patented “superformula” (i.e. algorithm). As the author correctly notes: “Despite the noise being made by Genicap, there’s some question as to whether the company’s patent actually applies to No Man’s Sky. The European Patent Convention says directly that “discoveries, scientific theories, and mathematical methods” are not directly patentable, and US patent law also excepts “disembodied mathematical algorithms and formula” from patentability.”
“The Dutch people don’t need software patents; they’re usually just victims of such patents.”Well, such patents oughtn’t exist in the first place. The last time we heard of software patents in relation to the Netherlands it was Microsoft’s lawsuit against TomTom (Dutch company) and a Dutch developer who had his work killed [1, 2, 3] by a patent aggressor, Shazam. The Dutch people don’t need software patents; they’re usually just victims of such patents. █
Related/contextual items from the news:
A new publication analysing the relationship between intellectual property and access to science explores ways countries have developed to counter the potential barriers created by IP rights, and says patenting by universities is counterproductive.
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The pendency at the USPTO stands at around five years, as scrutiny has been increased
Image credit: Professor Dennis Crouch, Patently-O
Summary: While the EPO reportedly strives to eliminate pendency and appeal windows altogether (rubberstamping being optimal performance as per the yardstick du jour), the USPTO introduces changes that would strengthen the system and shield innovation, not protect the business model of serial litigants
PATENT systems across the world vary, but they’re streamlined/unified by various programs which enable litigation across nations and entire continents. We’ve covered some of these programs here before and half a decade ago we wrote numerous articles about the vision of a global patent system, at times citing leaked diplomatic cables that had been published by Wikileaks. ‘National’ patent offices are actually not so national and the ‘European’ Patent Office isn’t really about Europe (some of its member states, for example, are not in Europe). The same is true in the UK-IPO, which is going ‘to bed’ with Facebook right now (surveillance, censorship and propaganda site from another continent). Here is a new MIP article on patent litigation trends in Russia. It’s not often that we hear about Russian plaintiffs in European, Australian or American courts; domestic policy there probably does not incentivise pursuing patents in other countries (especially NATO members), either. As we shall show in a later article, China is increasingly going abroad for litigation, albeit it wasn’t traditionally the case (the West wrongly assumed all China could do was knockoffs or ‘piracy’ [sic] as the think tanks label it).
“It’s not hard to envision the beneficiaries of a global patent system and their actions.”Days ago IP Kat wrote about the Rhodia v Molycorp “patent jurisdiction tussle,” to quote the author’s headline. Here is some background for the uninitiated: “Rhodia is the exclusive licensee of the UK and German designations of a European patent entitled “Ceric Oxide and method for production thereof, and catalyst for exhaust gas clarification”. Rhodia commenced infringement proceedings in the English High Court alleging that the English domiciled Defendant, Molycorp, had infringed the UK and German designations of the patent.” Here we have a reminder of the unifying patent factor which does not even necessitate a so-called ‘unitary’ patent. Do we really need a ‘globalisation’ of patent systems? That is a rhetorical question of course. It’s not hard to envision the beneficiaries of a global patent system and their actions.
One country dominates the world’s patent systems (including the EPO where it’s ranked number one) and that country is not China, albeit it’s by far the largest population in the world. “In today’s free-trade environment, the USITC’s role is somewhat counter — protecting of U.S. industry,” Patently-O wrote the other day about the ITC, guardian of large US corporations, a nationalist body which has the word “international” in its name/acronym. To quote Patently-O, the “USITC Procedure sets up the USITC as the party prosecuting the case rather than the patentee. As such, the agency is the named respondent and will be represented by the Solicitor’s Office. I expect that the patentee BriarTek will also weigh-in. The patent at issue is U.S. Patent No. 7,991,380 and covers an emergency satellite communication system. The asserted claims were found invalid as anticipated and/or obvious. That holding was then affirmed on appeal by the Federal Circuit.”
“Suffice to say, calls to abolish CAFC altogether increased in recent years.”Well, the Court of Appeals for the Federal Circuit (CAFC), as we noted here repeatedly, is an exceptionally abusive court which not only bypasses constitutional issues but also works for large corporations and for patent lawyers rather than the public (or justice). Simply put, it’s corruptible. Suffice to say, calls to abolish CAFC altogether increased in recent years. And speaking of CAFC, MIP says: “The Federal Circuit has provided some guidance on the issue of 180 days’ notice of launch in a recent biosimilars ruling, in Amgen v Apotex, but practitioners say there will be a lot more litigation before the patent dance is fully clarified” (we are not optimistic).
About the USPTO Patently-O wrote that “Patent Filings Rising Slowly,” according to figures plotted by Professor Dennis Crouch. Is this a case of the more, the merrier? Well, for patent lawyers surely it is merrier (more profitable). Here is what Crouch wrote about it:
The chart above shows USPTO application filings for non-provisional patent applications as well as RCE’s. Both have been on the rise for many years. The filing numbers appear to have continued to rise since implementation of the America Invents Act, although at a slower rate (acceleration has slowed). The USPTO expects that applications filed today will receive a first action within 16 months.
America Invents Act (AIA), with PTAB in particular, has served to introduce some new quality control (potential slowdown and greater pendency to be expected), albeit at too slow a pace as PTAB needs to be expanded to be able to deal with more than just a couple of thousands of patents per year (such workload keeps growing fast).
Patently-O wrote another article exclusively about AIA in which it’s said:
Although more than three years have passed since the changeover date, most new patents still fall under the old-rule. This long transition period is explained by the reality that most patents that issue claim priority to a prior patent filing document such as a foreign priority filing, international PCT application, US provisional application or parent non-provisional US filing. Once the non-provisional application is filed, patent prosecution process still that typically takes around three years. This results in an average pendency from priority filing to issuance of around five years.
The chart there shows that, even though there's a patent litigation slowdown (we’ll expand on that in a later article), problems are far from over. There’s a capacity problem and there’s growing demand. An article by Zachary Kinnaird (posted on his behalf by Professor Jason Rantanen), a patent attorney with International IP Law Group, looks at the number of patent practitioners. He shows some fancy charts and notes: “The number of practitioners removed from the USPTO database reveals a practitioner percentage removal trend that can be seen as a retirement estimate for patent practitioners. This trend shows that the longer a practitioner has had a registration number, the more likely they are to have retired, or otherwise been removed, from the roster.
“The health of the patent system worldwide is oftentimes improving, except at the EPO where patent quality declines* (more on that later today) and human rights are routinely violated.”“The chart below shows the percentage of patent practitioners who still remain registered on the USPTO roster as a function of each practitioner’s year of registration. The further to the right, the more recently the practitioner earned their registration number.”
Not much can be deduced from this (the way it’s presented is not too helpful), unless one is interested in a sob story which serves the party line of the patent microcosm, or the industry associated with patent activity as opposed to production of merchandise, software, etc.
The health of the patent system worldwide is oftentimes improving, except at the EPO where patent quality declines (more on that later today) and human rights are routinely violated. As a European national I am sad and ashamed to see what was once the best patent system in the world becoming one of the worst and most notorious (unless one asks the EPO's mouthpieces). Battistelli tramples everyone and everything. █
* Pressured examiners, unskilled (new) examiners and expensive appeals (short duration, very high fees) in an already-understaffed department make the entire process applicants-friendly at the expense of long-term reputation (which made the EPO appealing and worth the exceptionally high prices).
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The sort of ‘journalism’ software patents proponents would stoop down to
Summary: Attacking the enforcer of Alice v CLS because it’s doing harm to his source of income, which makes him angry
AS EVERY reader probably knows by now, software patents are dying in the US and PTAB helps end them without even trials, based on technical reassessments [1, 2].
Technology Center 3600 has become the scapegoat of Gene Quinn (and his chums). That was earlier today. Watch this “WatchTroll” (as we’ve called him for a number of years) as he attacks PTAB, which merely does its job. It invalidates a lot of software patents, but WatchTroll uses sexual dysfunction connotation and picture of marionettes to imply misconduct, malpractice or incapacity. “What is happening in TC 3600,” he said, “is prosecution is being re-opened for the purpose of issuing Alice rejections.”
“WatchTroll, like Kappos, is trying to shame the USPTO or pressure political figures/officials to put an end to Alice (or those enforcing it).”Yes, what’s wrong with that?
“Of course,” he adds, “Alice v. CLS Bank was decided in June 2014, so this is not a new development.”
So what? So suddenly it’s “too late” to do justice? Better late than never. The EPO could take a lesson from this.
WatchTroll, like Kappos, is trying to shame the USPTO or pressure political figures/officials to put an end to Alice (or those enforcing it). They show no respect for the Supreme Court.
“Maybe the problem here isn’t Technology Center 3600 but the greedy WatchTroll (and the likes of him).”WatchTroll’s closing words are harsh and they urge the Patent Office to punish people who are doing their job. He wrote: “Re-opening these cases was an abuse of power plain and simple. Will the Patent Office do anything about what is going on in Technology Center 3600? Time will tell, but it is becoming increasingly impossible to believe that senior management of the Office is not well aware of the fundamental unfairness applicants in TC 3600 face. It is also becoming increasingly difficult to believe they do not at least tacitly authorize the behavior.”
Maybe the problem here isn’t Technology Center 3600 but the greedy WatchTroll (and the likes of him). It’s no secret that they are patent maximalists who pursue patents on algorithms without even understanding the concept of algorithms (WatchTroll said he had written code but could not name a single example when I asked him to, whereupon he ran away).
No doubt some patent attorneys support software patents (I debated one of them earlier today), but shouldn’t the will of software developers count when it comes to their own discipline? Why is it that media which covers patents is so saturated or stuffed with people who aren’t in fact developing software but are happy to encourage software patenting because they profit from it? █
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Corporate lobbyists, think tanks (like the Coalition for 21st Century Patent ‘Reform’), bogus news sites and patents lawyers antagonise change which is well overdue
Summary: Many professors suggest a method of stopping patent trolls (restrictions on venue shifting), so patent trolls-funded propaganda sites and think tanks strike back and distract even further, putting forth a wish list or a ‘reform’ that’s designed to give them more money and incredibly protectionist power
EARLIER this year we wrote a bunch of posts about the VENUE Act [1, 2]. The EFF had done a lot of work in the area, but after it made some headlines we haven’t been hearing much about it. At its core, the VENUE Act suggests moving patent trolls away from Texas (where they enjoy plaintiff-friendly courts).
“At its core, the VENUE Act suggests moving patent trolls away from Texas (where they enjoy plaintiff-friendly courts).”Professor Crouch’s site mentioned this strategy again a few days ago, noting: “A group of 45 professors sent the following letter to Congress arguing for statutory reforms to limit venue in patent infringement cases. One focus of this move is to direct intention toward a focused and limited action rather than another round of comprehensive patent reforms. This type of limited reform could come as part of a late-session omnibus package.”
This was later mentioned again in part 2 that said: “While law professors call for venue patent reform, the TC Heartland venue and personal jurisdiction challenge appears to still have legs. In April 2016, the Federal Circuit rejected the mandamus action, but the Supreme Court recently granted TC Heartland’s delay petition – allowing its petition for writ of certiorari to be filed by September 12, 2016. In the case, TC Heartland argues that the statute itself (28 U.S.C. § 1400(b)) limits where patent claims can be brought and that the Federal Circuit has unduly broadened venue in ways that harm the system.”
“So basically, IAM and its chums want to protect trolls and also go further by protecting software patents and other forms of nuisance.”Academics understandably wish to discourage patent trolls. Some made a career (or many high-profile papers) out of it, e.g. Professor James Bessen. Don’t expect patent lawyers-funded publications to join these professors. IAM (funded by the likes of MOSAID, a patent troll now known as Conservant) wrote a sort of rebuttal rather than coverage: “In a statement to this blog the advocacy group underlined its position: ‘21C does not favor a venue-only bill as it does not address the other abuses in the system, in particular with IPR/PGR. A policy fix is especially needed given the Supreme Court’s ruling that the PTO was legally entitled to adopt BRI.” That ruling from the Court came in Cuozzo v Lee which left the IPR regime intact.”
Cuozzo was good news [1, 2, 3, 4], but not for patent lawyers. IPR/PTAB is also a good thing, but not for patent lawyers. So basically, IAM and its chums want to protect trolls and also go further by protecting software patents and other forms of nuisance.
“The situation in the United States is flaky when it comes to software patents right now.”To quote the concluding words: “The professors’ letter may well place venue reform even further in the spotlight but without 21C on board it’s still hard to see how standalone legislation makes it to the President’s desk.”
“21C” is the Coalition for 21st Century Patent Reform, which is more like a think tank, supported by large corporations such as AstraZeneca, BP, Eli Lilly, patent lawyers (American Intellectual Property Law Association), Ericsson (with patent trolls), and Siemens (software patents proponent).
Speaking of software patents, they seem to be going away or fading away. More of those dead software patents, having just died from Alice (as per the Supreme Court‘s decision), are reported on or mentioned at the court which is the originator of software patents. To quote a patent attorney: “Shortridge v. Foundation Construction–CAFC Held Claims Invalid under 101/Alice: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1898.Opinion.7-11-2016.1.PDF …”
Also from this court (CAFC) we have the following news: “The Federal Circuit sitting en banc ruled in its The Medicines Company v Hospira opinion that MedCo’s purchase of manufacturer Ben Venue’s services to produce its anticoagulant drug Angiomax, which contains blood thinner bivalirudin, did not trigger the on-sale bar, as Hospira claimed.”
The situation in the United States is flaky when it comes to software patents right now. They’re dropping like flies, which is good for quality at the USPTO but not so good for patent lawyers and attorneys who are accustomed to making business out of software patenting (at the expense of software developers). █
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The following paper conflates patent strength/quality with patent maximalism (i.e. ease of patenting and suing)
Summary: Strong patents rather than strong patent enforcement (i.e. ease of legal abuse) help discern the difference between successful economies and self-destructive economies
THE Open Invention Network (OIN), which we covered in the last post, is closely connected to (even overlapping at places) IBM. An entity called RPX, which we wrote about many times before (see Wikipedia article), was set up or propped up with help from IBM to counter Microsoft’s patent troll, Intellectual Ventures. “In an interview,” said a Microsoft-friendly site 8 years ago, “RPX founders John Amster and Geoffrey Barker said they left Intellectual Ventures on good terms but had philosophical differences with the firm’s approach. Neither of the co-CEOs would elaborate on those differences, instead highlighting how RPX plans to make inroads in the murky area of patent acquisition.” So one might say that they’re poison from the same pool.
According to Managing IP (MIP), “PTAB grants attorneys fees for first time, to RPX”. To quote:
The Patent Trial and Appeal Board has awarded attorneys fees for the first time, ruling that Applications in Internet Time violated a protective order in its handling of RPX’s confidential information
Sanctions in Patent Trial and Appeal Board (PTAB) proceedings have been rare. But on July 1 the Board awarded attorneys fees for the first time.
This is a reason for concern because there are many people and companies out there that wish to demolish PTAB by any means possible. PTAB invalidates a lot of software patents these days. “The Patent Trial and Appeal Board has granted a rare motion to amend, in a covered business method review that focused on the construction of the term “meta-rights”,” MIP wrote in a later article.
“Battistelli lowered patent quality at the Office (to make bogus claims about so-called ‘production’), so the last thing he needs is independent oversight/scrutiny over patent quality.”One might choose to think of PTAB as the US equivalent of the appeal boards of the EPO, which Battistelli fights so viciously against. Battistelli lowered patent quality at the Office (to make bogus claims about so-called ‘production’), so the last thing he needs is independent oversight/scrutiny over patent quality.
Patent quality control, or “strong patents” as some might call it, helps determine economic strength in some cases. Regarding this very recent article titled “How Strong Patents Make Wealthy Nations” (actually more like patent maximalism, not quality control) Benjamin Henrion just joked. The article is actually academic (unlike the paper, which is self-serving as one might expect from CPIP) and it comes from George Mason University, more specifically the Antonin Scalia Law School. Scalia, as we noted here before, was not too crazy when it comes to patents (unlike in many other areas) and the article quotes Professor Stephen Haber of Stanford University as saying “there is a causal relationship between strong patents and innovation.” The article itself says in the conclusion: “Given the copious evidence showing that strong patents make wealthy nations, the IP critics have their work cut out for them” (see corresponding PDF).
“That is more or less what happens in China and it has created a patent bubble (false evaluation of patents based on their number, not quality).”It would be easy to just grant a patent for every application and never properly assess or reassess triviality, prior art etc. That is more or less what happens in China and it has created a patent bubble (false evaluation of patents based on their number, not quality). In order for the USPTO to redeem its reputation it will need more of PTAB (hiring of more staff to cope with the growing load/demand) and the same goes for the EPO, which must hire more technical judges rather than drive them to exile and leave a lot of vacant positions while raising costs so as to lower demand). █
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The higher, the worse (for USPTO patent quality control)
Summary: New data from the United States demonstrates that the number of allegedly bogus patents (which should never have been granted in the first place) is in the thousands per year, and those are just the patents that actually come under challenge/reassessment/scrutiny
THE USPTO begrudgingly moves towards a post-software patents era. Where the examiners fail PTAB staff (scientists) step in and typically invalidate bogus patents on abstract ideas. They don’t have a financial incentive to be rubberstampers.
“What is worth noting is that if USPTO actually did its job properly, PTAB would not be necessary.”Michael Loney of MIP has taken some data from Docket Navigator and posted the chart above. This basically shows a certain slowdown in terms of the number of PTAB filings. “Petition filing at the Patent Trial and Appeal Board (PTAB) in the first half of 2016 is down on the pace set last year,” he explained. “However,” he added, “filing in the second quarter of the year was up on the first quarter, and the highest since the second quarter of last year.”
What is worth noting is that if USPTO actually did its job properly, PTAB would not be necessary. But systemic malpractice, or the practice of granting patents to about 92% of applicants, led to this chaos which only now gets corrected somewhat. Under Battistelli, the EPO follows the same path.
Meanwhile, looking at this new article about “Subject Matter Jurisdiction”, the author says: “Like I said at the start, there are critical differences between the USPTO rules and many state rules and often those differences tell us whether Bob keeps his license, or not. More often, choice of law becomes an issue in disqualification motions and in legal malpractice cases. Ethical rules like state bar rules and then USPTO rules are are applied in disqualification and malpractice cases. If something is ethical under the USPTO rules, but unethical under state law, choice of law may provide the answer to what’s right — whether a client has a malpractice claim, or a lawyer is subject to disqualification.”
Unless or until USPTO demonstrates that it’s no longer run by a bunch of self-serving corporate lobbyists for rubberstamping of applications from large corporations (see how Battistelli's EPO does this), we’ll just continue to safely assume that the USPTO is central to many of the problems (like patent trolls) and PTAB is part of the solution. The USPTO isn’t breaking any laws and probably not even its internal rules; it sure looks like the rules would be something like, “if in doubt, grant” or “if it’s from a large applicant, grant in bulk” (because that’s what keeps money flowing in). █
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