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09.18.18

Today’s European Patent Office (EPO) Works for Large, Foreign Pharmaceutical Companies in Pursuit of Patents on Nature, Life, and Essential/Basic Drugs

Posted in America, Europe, Patents at 5:58 am by Dr. Roy Schestowitz

A butterfly

Summary: The never-ending insanity which is patents on DNA/genome/genetics and all sorts of basic things that are put together like a recipe in a restaurant; patents are no longer covering actual machinery that accomplishes unique tasks in complicated ways, typically assembled from scratch by humans; some supposed ‘inventions’ are merely born into existence by the natural splitting of organisms or conception (e.g. pregnancy)

THE EPO used to be so much better than the USPTO. I personally used to like the EPO and was proud to say we had the best patent office in the world. It was strict, it was pedantic, and it assured limits on patent scope. That is no longer the case, however, as many EPO insiders can attest to as well. They too complain about the collapse in patent quality that we've just revisited.

“…billionaire drug lords are using patents to profit from the very disease which they themselves created (drug addiction).”Looking across the Atlantic, it’s not hard to see patent scope going (or already gone) insane. Some of the things being patented are outright laughable (we’ll deal with these in a separate post later on) and they would be funny/amusing if they didn’t cause so much agony/pain for legitimate, practicing companies. In the area of patents on natural things, how about this new “settlement”? Bausch Health blackmailed a rival until the rival gave up. They try to drive competitors out of business using patents alone. Is this good for the so-called ‘free market’? What would be the impact on people in need of medicine?

In other news that gained traction lately, billionaire drug lords are using patents to profit from the very disease which they themselves created (drug addiction). It is not even remotely ethical. These people should be in prison, but they are billionaires who are well connected. We mentioned this yesterday and it’s good to see that the public now scrutinises the USPTO over it.

Speaking of evil patents, how about the EPO’s decision to uphold a notorious patent last week? For those who haven’t been keeping abreast of it, read “António Campinos Needs to Listen to Doctors Without Borders (MSF) et al to Salvage What’s Left of Public Consent for the EPO” (published a few days ago).

Life Sciences Intellectual Property Review (LSIPR), a propaganda site of the patents-on-life lobby, wrote about the subject yesterday. It started as follows:

The European Patent Office (EPO) has upheld a patent covering Gilead’s hepatitis C medicine sofosbuvir, despite opposition from humanitarian organisation Médecins Sans Frontières (MSF).

Speaking to LSIPR, the EPO confirmed that it has “maintained in an amended form” European patent number 2,604,620 on Thursday, September 13.

The decision was announced following oral proceedings in Munich, Germany. The EPO advised that it will publish the full decision here once the Opposition Division has written its ruling.

We certainly hope that these people at the Opposition Division understand their impact on many lives, especially poor people. It’s a dark day for the EPO. It’s even darker for a lot of people with darker skin.

“Putting aside DuPont’s historic role in genocide, we’re rather concerned to see the trend of patenting organisms, genetics and so on.”Now, looking at the US, the Federal Circuit dealt with a Patent Trial and Appeal Board (PTAB) inter partes review (IPR) and patent maximalists responded as follows yesterday: “The new DuPont v. Synvina decision is important for its specific application obviousness of claim ranges. It also creates some amount of tension with prior cases — particularly Dynamic Drinkware and Magnum Oil – regarding burden shifting within Inter Partes Review proceedings. [...] On appeal, the Federal Circuit holds here that the traditional obviousness burden-shifting associated with ranges applies to IPR proceedings. To be clear, the patentee never has the burden of proving non-obviousness. But, once a prima facie case of obviousness is established, the claims will be cancelled unless the patentee provides evidence to support its position.”

Putting aside DuPont’s historic role in genocide, we’re rather concerned to see the trend of patenting organisms, genetics and so on. This should not be happening. Earlier this month Wired published this article titled “Crispr’s Epic Patent Fight Changed the Course of Biology” and as we noted earlier this year the EPO’s Opposition Division fought back against it. Making life “owned” using patents sure “Changed the Course of Biology”… for the worse. From the article, which names the role of the Federal Circuit:

After three bitter years and tens of millions of dollars in legal fees, the epic battle over who owns one of the most common methods for editing the DNA in any living thing is finally drawing to a close. On Monday, the US Court of Appeals for the Federal Circuit issued a decisive ruling on the rights to Crispr-Cas9 gene editing—awarding crucial intellectual property spoils to scientists at the Broad Institute of Cambridge, Massachusetts.

The fight for Crispr-Cas9—which divided the research community and triggered an uncomfortable discussion about science for personal profit versus public good—has dramatically shaped how biology research turns into real-world products. But its long-term legacy is not what happened in the courtroom, but what took place in the labs: A wealth of innovation that is now threatening to make Cas9 obsolete.

So they’ll be evergreening their patent portfolio if they get their way. The concept that all of life should be patented isn’t so controversial among patent law firms. Kevin Noonan, for example, constantly promotes this agenda and yesterday he wrote about another case of the Federal Circuit with an important outcome:

The varying appellate fortunes of patentees regarding the question of obviousness is illustrated nicely in the Federal Circuit decision in Orexo AB v. Actavis Elizabeth LLC handed down earlier this month. The statute, 35 U.S.C. § 103, was intended to tether the question of obviousness to the prior art (and untether it from judicial whim regarding “inventiveness” or “invention” as found in several Supreme Court decisions stating with Hotchkiss (and, to patent law’s detriment, resurrected under § 101 by Justice Breyer and in other recent decisions from the Court). Nevertheless, there cannot help to be a subjective aspect to the issue of obviousness, which is illustrated by this decision when placed in contrast, for example, with other recent obviousness determinations by the Federal Circuit (see, for example, “Acorda Therapeutics, Inc. v. Roxane Laboratories, Inc.”).

[...]

The opinion illustrates the District Court’s error in accepting as evidence supporting obviousness testimony that, if selected, citric acid as a carrier particle would have been expected to work, citing In re Gordon, 733 F.2d 900, 902 (Fed. Cir. 1984) (“The mere fact that the prior art could be so modified would not have made the modification obvious unless the prior art suggested the desirability of the modification.”). A similar error arose regarding the District Court’s dismissal of Orexo’s argument regarding preserving the 4:1 ratio of buprenorphine to naloxone, the panel stating the error to be the District Court’s finding that “there is nothing in the prior art which would have discouraged a person of ordinary skill from following the path set out in the various references” instead of recognizing that “no reference or combination of references proposes the path of the ’330 Patent.” Put more succinctly the opinion states “[t]he question is not whether the various references separately taught components of the ’330 Patent formulation, but whether the prior art suggested the selection and combination achieved by the ’330 inventors.”

Finally, the opinion turns to the objective indicia, which “guide the analysis of obviousness,” citing Leo Pharm. Prods., Ltd. v. Rea, 726 F.3d 1346, 1357–58 (Fed. Cir. 2013). Without expressly stating it, the Court here finds clear error in the District Court’s discounting these factors, for example, stating that a 66% increase in buprenorphine bioavailability was “more than a trivial ‘degree.’”

Well, it is our view that any patent on life should be regarded as obvious and fail the obviousness test, as well as prior art test. Life is, after all, not an invention but something that always existed or evolved on its own (an act of nature). When laws are drawn up by lobbyists of law firms and pushed by politicians bribed by big pharmaceutical firms, however, laws make no sense. It’s like companies are basically buying laws. Those laws are designed for nothing except boosting their profits and eliminating competition, including competition in the form of disruptive (to their cash cows) research.

09.17.18

The Patent Trial and Appeal Board (PTAB) Helps Prevent Frivolous Software Patent Lawsuits

Posted in America, Patents at 3:44 am by Dr. Roy Schestowitz

…it is therefore opposed by those who profit (hundreds of dollars per hour) from these frivolous lawsuits

Coins

Summary: PTAB with its quality-improving inter partes reviews (IPRs) is enraging patent maximalists; but by looking to work around it or weaken it they will simply reduce the confidence associated with US patents

THE reputation of the USPTO will depend on its patents. A few days ago we learned, based on an article from Brittany Shoot (Fortune), that OxyContin “drugs lords” make billions getting you addicted to drugs (with the state’s approval) and then they want a patent monopoly on getting you off these drugs. This is outrageous, yet the USPTO sees no “scandalous” thing here; it only sees “scandals” in particular trademark applications because these might seem rude.

It also looks like another bogus software patent has just been wrongly granted by the Office. Aquiire published a press release about it. How about this other press release, this time from MKThink, which speaks of “technologies for analyzing business intelligence applied to physical assets, environmental factors, and cultural dimensions.” Not abstract? Talari Networks also pushed out a press release [1, 2] and this one is almost certainly about software patents. Last among this bunch we have a press release [1, 2] from a firm that’s suing over patents on “Virtual SIM (vSIM) technology,” i.e. probably software-implemented and thus invalid under Section 101 (35 U.S.C. § 101). To quote:

The holding company of Skyroam, Inc. (www.skyroam.com), SIMO Holdings Inc., has filed a lawsuit on June 15, 2018 against UCloudLink Network Technology Limited America, brand-named GlocalMe, in the United States District Court for the Southern District of New York. The lawsuit alleges that UCloudLink is violating SIMO’s intellectual property by selling its infringing WiFi hotspot devices. The lawsuit cites unauthorized use of patented technology, which is prohibited by law, and is intended to protect SIMO’s significant investment in Virtual SIM (vSIM) technology.

Why does the Office keep granting such patents? They breed pointless lawsuits that often end when the underlying patents get invalidated, eroding confidence in US patents as a whole.

Will the USPTO raise the patent bar? It doesn’t look like it. Iancu is making a mess of the Office and patent maximalists rally to get a patent maximalist in charge of PTAB. “Like other members of the PTAB, the Chief Judge is appointed by the Secretary of Commerce in consultation with the USPTO Director,” they note, recommending/urging patent maximalists that this site targets to apply for the job.

They’re being rather shallow; maybe they can get Rodney Gilstrap to apply for the job. Wouldn’t that be funny? No other judge has earned anywhere near the same level of notoriety. Even politicians have called him names. Rodney Gilstrap was named in this new article a few days ago. To quote: “An unprecedented hearing took place in Marshall’s federal court, Wednesday, as two Chief Judges — Barbara Lynn and Rodney Gilstrap — sat at the bench together, simultaneously…”

Judge Gilstrap again in the news; he’s a friend of patent trolls in his district and he justifies that by saying that it’s good for his town. Never mind justice itself.

Anyway, going back to PTAB, days ago we saw the exception rather than the norm when it comes to software patents; such patents typically perish at PTAB, but this time around PTAB permits software patents on “toolbars” and patent maximalists rejoice:

MyMail Ltd. beat a challenge to a patent related to computer toolbars at the Patent Trial and Appeal Board on Tuesday, a win that comes as MyMail seeks to overturn a court ruling that the patent is invalid under the U.S. Supreme Court’s Alice test.

The board said in a final inter partes review decision that it was not convinced the disputed patent claims were anticipated or obvious. The IPR was brought by Unified Patents Inc.

Watchtroll has also found the exception, taking stock of another rare decision 3 days ago:

On Monday, September 10th, the Patent Trial and Appeal Board (PTAB) issued a final decision in an inter partes review (IPR) proceeding petitioned by telecommunications conglomerate Comcast Corporation to challenge a patent held by electronic program guide developer Rovi Guides, a subsidiary of TiVo. The panel of administrative patent judges (APJs) in the case issued a mixed claim finding which nixed 20 of 24 challenged claims but upheld claims covering a buffering feature which Rovi is seeking to license with Comcast.

Watchtroll hasn’t changed its tune. It’s still lobbying against IPRs and looking for scandals/dissent. Basically anything that can lower patent quality. The same goes for Patent Docs, which yesterday advertised the webinar of the litigation ‘industry’ with bulletpoints like: “What guidance do Federal Circuit and PTAB decisions give patent counsel on the application of BRI?”

And in Chicago it advertised another webinar with bulletpoints like “Staying on Top of Recent Developments at the PTAB” and “PTAB Strategy in a Changing Environment: Claim Construction, Amendments and Section 112(6)…”

Also in Chicago: The Federal Circuit Bar Association (FCBA) — not quite what it sounds.

The Intellectual Property Law Association of Chicago (IPLAC) is among those involved in other events advertised yesterday (some are not quite related). And while we’re on the subject of Chicago, Brian Leiter from University of Chicago Law School took stock of most cited authors in this domain, showing that Mark Lemley is by far the most influential scholar in this area (this is why Mr. Gross keeps smearing him; Lemley is ‘problematic’ to all the anti-PTAB campaigning).

The bottom line is, the USPTO is still granting patents that oughtn’t be granted while its new Director seems to be trying to scuttle PTAB. This is a recipe for disaster and that can only further reduce the certainty associated with US patents.

Abstract Patents (Things One Can Do With Pen and Paper, Sometimes an Abacus) Are a Waste of Money as Courts Disregard Them

Posted in America, Courtroom, Patents at 2:28 am by Dr. Roy Schestowitz

An abacus

Summary: A quick roundup of patents and lawsuits at the heart of which there’s little or no substance; 35 U.S.C. § 101 renders these moot

THIS almost final post (for today) is also the longest. It covers new examples in which the patent system — notably the USPTO in this case — presents recklessness or disregards for patent quality, legal certainty and so on. What good are patents if their legitimacy isn’t being assured and whose underlying economics are misunderstood (or worse — ignored)? Mere ideas aren’t inventions. Thoughts aren’t inventions, either. Nature is not an invention and merely discovering things which always existed in nature can’t be considered an invention (at best a discovery). The patent systems oughtn’t be misused or endlessly stretched to cover just about every conceivable thing because that would hold science as well as free thought back. Those who care about patents should shun the patent maximalists and aim to restrict the scope of patents. The same goes for copyrights and trademarks.

We start our journey with this bizarre new article that uses the term “IP”, probably conflating trade secrets, copyrights and trademarks with patents. Proactive Investors UK speaks of “patent licensing,” but this case appears to concern something like copyrights (which they vaguely allude to as “IP”). GAN must be extremely misguided if it thinks that it can win a patent lawsuit over software in the US, so on the face of it it boils down to bad reporting or bad communication (misleading on purpose) from Irwin IP LLP. What does the following mean by “technology”? Code? Mere ideas? Secrets? It doesn’t say clearly. To quote:

GAN claims that some internet gambling operators have been using its technology without permission, and it is now seeking “commercial settlements” for these alleged infringements

[...]

But it appears others have been using the software without permission, and the company said the offending firms had been “substantially and progressively placed on notice” of GAN’s patents.

Chicago-based law firm Irwin IP LLP will now seek “commercial settlements” for any infringements, which, along with patent licensing, represent a “potentially high-margin incremental income stream for GAN”.

We’ll come back to Chicago in a moment. The next and final post will deal with it.

Here is another baffling new article. They speak of a new stationary bike, but they actually describe software, not a bike. In their own words:

Last May, in-studio cycling business Flywheel Sports announced plans for a new stationary bike called the FLY Anywhere that would allow users to stream both live and archived cycling classes into the comfort of their homes, all while tracking performance and letting users compete with other riders.

To the folks at Peloton, it sounded familiar. A little too familiar. So on Wednesday, the company filed a lawsuit against its cycling rival, alleging that Flywheel had willfully infringed on Peloton’s patents in the development of its new toy. But the story Peloton spins about how that infringement took place is the most stunning part of all.

They’re preparing for a patent fight. One thing we know for sure: the law firms will win. They will get richer. At both ends.

Also mind Christopher Wood’s new article, which is actually marketing by law firms. It resorts to intimidation and scare-mongering tactics like this:

Harris related a story of a company making a pitch for investment at a Rockies Venture Club event, with the entrepreneur including a patent number in their slide deck. An investor at the event looked up that number, only to discover that the patent didn’t exist.

So what? Unless they’ll looking to invest in a patent troll, it’s rather improbable that a startup can pick on a large rival in court. Such legal fights favour the wealthier party.

Speaking or legal action, a law firm closely connected to Microsoft (Shook, Hardy & Bacon LLP) took note of a lawsuit in which bogus software patents are being used to “assault” (their word) a rival:

In a recent development set against the backdrop of ever-increasing cloud competitor lawsuits, longtime provider of Unified Communications-as-a-Service (UCaaS) and cloud-based Voice over IP (VoIP) solutions RingCentral filed a patent infringement suit last month against competitor Dialpad in the U.S. District Court for the Northern District of California. In its 22-page Complaint filed on August 27, 2018, RingCentral alleges direct and indirect infringement of four of its patents granted between 2010 and 2017 by several of its competitor’s VoIP offerings, namely Dialpad Standard, Dialpad Pro, Dialpad Enterprise, Dialpad Free, UberConference Free, and UberConference Business. RingCentral has been on the receiving end of its fair share of patent infringement suits over the last several years, but this appears to be the first case in which RingCentral has gone on offense as a patent plaintiff.

[...]

While RingCentral appears to have dominated the UCaaS space for some time, Dialpad—a relatively young San Francisco-based company co-founded as Firespotter in 2011 by Craig Walker (creator of Yahoo! Voice and Google Voice) and adopting its current namesake in 2016—has also amassed its share of accolades during its young existence. Along with RingCentral, Dialpad boasts its appearance on Deloitte’s 2017 Technology Fast 500 list, and was also a recipient of TMC’s 2017 WebRTC Product of the Year Award. Additionally, in 2016, TMC Labs awarded Dialpad a winner of its IT Innovations Award for their advancements in VoIP solutions.

It seems pretty clear to us that these are abstract software patents — the sort of thing Microsoft accumulates and leverages in bulk to thereafter blackmail large firms. On the tax evasion aspects of this, Reuters weighed in last week when it wrote: “The GILTI provision, meant to discourage multinational corporations from avoiding U.S. taxes by holding intangible assets such as software patents abroad in low-tax countries, imposes an effective 10.5 percent tax rate on income from tax havens.”

We covered this scam many times before. It’s a side ‘perk’ of accumulating many bogus software patents.

Notable over the past week was actually the number of such patents being heralded to the world. This press release spoke of patents on “cloud computing, machine learning and IoT connectivity for HVAC optimization,” i.e. just buzzwords for software patents (bunk patents, worthless in US courts) . Here are some more patents on utter rubbish (technology giants like Google just striving to stockpile garbage for the numbers, presumably to cross-license without even assessing the patents individually).

Aaron Gin and Michael Krasniansky from McDonnell Boehnen Hulbert & Berghoff LLP wrote about bogus software patents that get ‘dressed up’ as “AI” (as almost any algorithm can be). We wrote a great deal about so-called ‘AI’ patents and here come more of these clueless pieces with “AI” in the headline. “Machine bias is difficult to identify and eliminate,” say patent maximalists. One cannot patent algorithms, however, or at least not enforce them in courts. Bunk patents cannot be made any less bunk by adding buzzwords like “AI” to them. Lawyers know this, but they still try to convince us otherwise. From the paywalled article:

Vincent Violago and Nikko Quevada discuss [...] They also discuss patents and directed to bias mitigation, as well as the reasons machine bias is difficult to identify and eliminate

Another site of patent maximalists then said (with “AI” in the headline) that “[t]he emergence of artificial intelligence has coincided with uncertainty of the patentability framework for protecting such innovations.”

So they know that these are bunk, but they go along with it anyway. There was no “emergence of artificial intelligence,” just reemergence of it as a buzzword about a year ago. It’s a marketing strategy, much like “cloud”. They give new labels to old things. The buzzword just means algorithms in this context; “AI” can be just about anything, e.g. algorithm, which does something “clever” (however one defines that). There’s a new paper [PDF] titled “Ethics of Using Artificial Intelligence to Augment Drafting Legal Documents,” but that’s inherently different because it’s about using algorithms to manage and author patents. Even patent lawyers often conflate or confuse these things.

Law firms ought to stop assuming that US courts will respect software/algorithm patents because they won’t. See their track record. How about this from Jessica Zimmer? It’s about Hedera Hashgraph:

Hedera Hashgraph began life as an algorithm. But over the years since 2015 it morphed into a leviathan, raising around $100M on a $6bn valuation from institutional and accredited investors. After launch, it will be almost entirely independent from founding parent Swirlds, which is now one of the members of the Hedera Council and will have the same voting rights as other members.

The algorithm is probably not patentable, but that does not prevent the company from moving ahead and beyond that. Companies which stop innovating and depend only on a pile of patents may end up like Blackberry, which is nowadays behaving like a patent troll. This is the kind of headlines it has earned so far this month and its patents aren’t even legitimate. “BlackBerry’s patent 8,745,149 is invalid, Patent Trial and Appeal Board says in opinions posted on its electronic docket,” as was covered at the time (end of last month). This is what happens when one tries to leverage software patents against large firms; they don’t fold as they can afford to fight back and win.

A Microsoft-connected news site (“Motley Fool”) is meanwhile mischaracterising this Microsoft-like patent trolling. Leo Sun wrote:

Over the past five years, BlackBerry (NYSE:BB) has phased out its smartphone business and expanded its enterprise software portfolio. That turnaround strategy was painful, but it resulted in shallower revenue declines and rising non-GAAP profits.

Another pillar of BlackBerry’s turnaround is its effort to monetize its portfolio of over 44,000 patents through royalties and licensing fees. Some companies willingly paid those fees, but many others didn’t.

That barely helped cover any of the lost revenue. The person behind this strategy is no longer at BlackBerry. The bottom line is, those who pursue software patents and assume these to be worthwhile in court will be rather disappointed. Unless of course they wish to become patent trolls, preying on those opting for a quick settlement without fighting back in court.

“Blockchain” Hype and “FinTech”-Like Buzzwords Usher in Software Patents Everywhere, Even Where Such Patents Are Obviously Bunk

Posted in America, Asia, Patents at 1:02 am by Dr. Roy Schestowitz

“On a computer” patents (lacking physical, concrete components and usually lacking novelty)

Singapore marina

Summary: Not only the U.S. Patent and Trademark Office (USPTO) embraces the “blockchain” hype; business methods and algorithms are being granted patent ‘protection’ (exclusivity) which would likely be disputed by the courts (if that ever reaches the courts)

THE EPO grants software patents even though it’s not supposed to. So does the USPTO in spite of 35 U.S.C. § 101/Alice. Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) would certainly invalidate these with the Federal Circuit affirming these decisions.

“All of these patents are bogus, bunk software patents”We’ve already expressed many criticisms of the Intellectual Property Office of Singapore (IPOS), where patent maximalists and even software patents are being tolerated. The same goes for SIPO in China, but not quite the JPO and KIPO in Japan and South Korea, respectively.

Singapore is basically racing to the bottom with software patents, as confirmed only hours ago (“How Singapore Is Fast-Tracking FinTech Patent Applications”). A FinTech patent is just a software patent with a buzzword, yet apparently IPOS is happy to glorify such patents:

The box-office smash hit, “Crazy Rich Asians”, is on everyone’s lips (and social media feeds) nowadays. The Singapore-set Hollywood movie, featuring an all-Asian cast, comically peers into the lives of the one-percenters strutting their stuff in famously up-market Singapore. Love it or hate it, the movie nails one thing for sure: Singapore is a playground for the financially savvy; a haven for financial technology (commonly known as “FinTech”).

In this spirit, the Intellectual Property Office of Singapore (“IPOS”) has launched a fast-track patent scheme determined to accelerate innovation for finance sector inventions. This one-year scheme, dubbed the FinTech Fast Track (“FTFT”) initiative, began in April and will end on 26 April 2019. Essentially, FTFT provides for expedited prosecution of FinTech patent applications – a much welcomed initiative for the sector.

[...]

As for the general question, a 2013 Working Paper by the Grantham Research Institute on Climate Change and the Environment found that while participation was low, the priority given did speed processes up. As such, the initiative did succeed in accelerating development of clean technologies during the first years after the publication of the patents. As for Singapore, this blogger spoke with several FinTech patent examiners, who noted that to prevent abuse, priority for genuine Fintech patents is protected by trained examiners, who detect patent applications unrelated to FinTech but that are (mis)applied for under FTFT.

There’s no good reason to do this. The same goes for many other digital advancements in the area of finance, including Bitcoin and blockchains. Any “blockchain” patent is just another software patent, yet we keep seeing reports about such patents being pursued and sometimes awarded. Days ago we saw “Hedera Hashgraph, A Blockchain Distributed Ledger Tech Rival, Wants Patent Law Protection” and “Blockchain Market Continues to Grow as Record Number of Patents Were Filed in 2017″ (we covered the subject before).

All of these patents are bogus, bunk software patents. They’re a waste of time and paper. NBC Right Now is responsible for the latter article which says this:

According to a research report published by Global Market Insights, the blockchain market size is expected to surpass USD 16 Billion by 2024. The blockchain technology builds a secure record of transactions between two parties, eliminating the need for a third-party intermediary. The technology was first applied in cryptocurrency and now, it is widely used in various industry. The market is expected to witness rapid growth as the technology can significantly reduce the cost of operation and enhance efficiency for businesses. As a result, the financial sector is expected to benefit the most from the development of the technology. Victory Square Technologies Inc. (OTC: VSQTF), Pareteum Corporation (NYSE: TEUM), Seven Stars Cloud Group, Inc. (NASDAQ: SSC), Appian Corporation (NASDAQ: APPN), Banco Bilbao Vizcaya Argentaria, S.A. (NYSE: BBVA).

Well, measuring adoption of something in terms of patent applications is lying. It’s hype.

Separately, an article was published to say that “China Accelerates Blockchain Patent Activity” — merely a reminder that China is the only large economy in the world which officially permits — at its own peril — patents on software. To quote the nonsensical sentences which precede it all:

In tech, innovation is everything. In innovation, intellectual property is, well, almost everything — it can be the hardware, the software, the processes that comes from the creative endeavor. You might consider patents a form of competitive advantage.

News came last week that, when it comes to patents tied to the blockchain landscape, Thomson Reuters has found that China, and Alibaba, have had an outsized showing, and seem to be accelerating their patent filing activity.

The said Reuters article was covered here last weekend. What it arguably shows is a bunch of large firms — including banks — looking to guard themselves from competition and therefore creating a patent thicket. How does this contribute to innovation? Moreover, how are such patents not abstract? Many of these firms just stockpile lots of these patents, knowing that if leveraged inside or outside the court ‘in bulk’ they would be hard (and expensive) to invalidate/disprove exhaustively. It’s troubling to see patent offices playing along. We’ve been talking about this for a very long time.

Qualcomm’s Patent Aggression Threatens Rationality of Patent Scope in Europe and Elsewhere

Posted in America, Europe, Patents at 12:09 am by Dr. Roy Schestowitz

Qualcomm’s European Patent (EP) 2954737

EP2954737

Summary: Qualcomm’s dependence on patent taxes (so-called ‘royalties’ associated with physical devices which it doesn’t even make) highlights the dangers now known; the patent thicket has grown too “thick”

THE EPO and USPTO have both granted software patents to hardware giants which disguised these as “physical”. We covered some examples earlier this year (including Qualcomm's, as above).

Here is the latest article (among many recently, specifically about Qualcomm) by Florian Müller, who told me he “talks about a dangerous precedent Qualcomm is trying to set in a German software patent case against Apple. On that basis, thin air would infringe a patent on a coffee filter if filtered coffee was poured in.”

This deals with “software patent claim limitations,” Müller explains, with a “dangerous precedent possible” for the following reasons:

The name of the game is the claim. There’s no German equivalent, at least none that rhymes, but I vividly remember Quinn Emanuel’s Dr. Marcus Grosch stressing this point when he was defending Motorola Mobility against Microsoft, particularly in the Munich appeals court. Now, as counsel for Qualcomm in a German lawsuit against Apple that will be tried on Thursday and involves the iPhone’s built-in Spotlight search technology, he’s espousing the very opposite position. The former anti-software-patent campaigner in me dreads and hates the notion of software patents being given overbroad scope in litigation–way beyond any reaonable claim construction.

Whatever may come out of that Munich case (technically, a host of cases asserting different members of the same patent family and targeting different Apple entities) is rather unlikely to move the needle in the intercontinental Qualcomm v. Apple dispute. Based on how a first hearing held went in May, even an infringement finding wouldn’t result in an immediate injunction: the case(s) would most likely be stayed over validity concerns. But Munich is one of Europe’s most important–and fastest–patent litigation venues, and Presiding Judge Dr. Matthias Zigann one of Europe’s influential patent judges (among other things, he’s a contributor to a leading reference on patent law). An infringement holding could set a dangerous precedent affecting many other cases before the Spotlight matter, if ever (since the patents-in-suit might all die anyway), would be appealed.

[...]

The word “only” is key here. Qualcomm’s counsel says: if a user only has usable communication channels (suzch as only one usable channel per user) in an address book, the search result will be limited to only usable communication channels. Unfortunately, there’s no Markman proceeding in Germany, where claim construction would be determined first and where disputed claim limitations would have to be interpreted by the court in writing. Otherwise I have no doubt–no doubt whatsoever–that this claim element here would have been deemed a filter (a word that, therefore, appeared multiple times in my May post on this matter).

“The former anti-software-patent campaigner in me dreads and hates the notion of software patents being given overbroad scope in litigation–way beyond any reaonable claim construction,” he said, having done a lot of advocacy against software patents in Europe more than a decade ago. As we’ve been emphasising since last year, Qualcomm is nowadays a leading voice for software patents; Qualcomm also leverages many such patents ‘in bulk’, doing what Müller called “Qualcomm’s double-dipping practice” just earlier this month (we lacked the time to cover it in isolation at the time; he also wrote about the massive buybacks that strive to shield the company from market collapse).

“When large companies leverage patents in such lawsuits they know that it would be too costly (and time-consuming) to challenge all underlying patents.”We’re sadly seeing — again and again — how Qualcomm and the likes it frame software as “hardware” or “physical”. Quality (lack thereof) is disguised by quantity. Müller said: “It wouldn’t be practical to have one or more courts make this determination for thousands of patents. And a motion for partial summary judgment is subject to rather strict page limits–the whole idea of summary judgment is that you raise an issue that the court can easily decide. Apple and the likes of Foxconn therefore picked three exemplary patents (from the ones Apple and the contract manufacturers tackled before).”

When large companies leverage patents in such lawsuits they know that it would be too costly (and time-consuming) to challenge all underlying patents. Examiners must remember that. Don’t give them ‘ammo’ so easily.

09.16.18

Months After Oil States the Patent Maximalists Are Still Desperate to Crush PTAB in the Courts, Not Just in Congress and the Office

Posted in America, Law, Patents at 11:03 pm by Dr. Roy Schestowitz

Patent Lawyers' Tears

Summary: Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) improve patent quality and are therefore a threat to those who profit from spurious feuding and litigation; they try anything they can to turn things around

THE new U.S. Patent and Trademark Office’s (USPTO) Director is no friend of PTAB, unlike his predecessor. The Congress, as we noted some hours ago, is being approached by those looking to undermine PTAB. 35 U.S.C. § 101 has a lot to do with it, sometimes because of drug companies.

“There’s an attempt there to make life harder for filers, reducing the overall number of IPRs.”If the patent ‘industry’ cannot get PTAB and the Federal Circuit on its side, then it typically resorts to attacking both. Not a clever strategy

Days ago we saw RPX‘s press release titled “RPX Corporation Completes Transaction with Realtime Data” [1, 2]. The patent maximalist Matthew Bultman (Law360) then recalled a case which patent maximalists hoped would help friction, eroding access to PTAB and degrading productivity. To quote:

Defensive patent group RPX Corp. is asking the full Federal Circuit to reconsider a ruling that instructed the Patent Trial and Appeal Board to use a broader test when looking for unnamed beneficiaries in patent reviews, warning the ruling has “massive implications.”

RPX filed a petition for en banc rehearing on Friday, nearly two months after a three-judge panel ordered the PTAB to reconsider whether Salesforce.com Inc. should have been named an interested party in inter partes reviews that RPX requested in 2015 challenging two regulatory…

This would have implications for Unified Patents as well. There’s an attempt there to make life harder for filers, reducing the overall number of IPRs. That’s what SAS proponents sought to accomplish while ‘hiding’ the decision on Oil States a few months ago. SCOTUS still stubbornly defends PTAB. SAS was no exception to this; it was just something for the USPTO to exploit (Iancu in particular) if the goal is to slow down PTAB, if not by fee hikes and 'decapitation' then additional workload per IPR.

“Such a mindset is a dangerous mindset and surrogate of institutional corruption.”Recently we saw the Smartflash petition being promoted by sites like Patently-O. A petition to SCOTUS isn’t so extraordinary a thing; not many are successful, but the patent maximalists view this one as a threat to PTAB, so obviously Watchtroll has just promoted it as well, preceded by the usual propaganda:

In early August, patent owner Smartflash filed a petition for a writ of certiorari with the U.S. Supreme Court to appeal a case stemming from covered business method (CBM) review proceedings carried out at the Patent Trial and Appeal Board (PTAB). Smartflash is asking the Supreme Court to decide whether PTAB administrative patent judges (APJs) are principal officers of the United States who are subject to the terms of the Appointment Clause, whether CBM review of patents disclosed prior to passage of the America Invents Act (AIA) violates the Fifth Amendment’s Due Process Clause, and whether undisputed evidence that an invention is not unduly preemptive is relevant to answer questions of patent eligibility under 35 U.S.C. § 101.

At issue in this petition are a total of 30 CBM reviews petitioned by Apple, Samsung and Google against Smartflash, which were instituted by APJ panels at the PTAB. Although the APJ panels in these cases found that petitioners did not establish a likelihood that Smartflash’s patent claims were invalid under on 35 U.S.C. § 102 grounds for novelty or 35 U.S.C. § 103 grounds for obviousness, they did find a likelihood that the patent claims were invalid on Section 101 grounds for being directed to patent-ineligible subject matter. In the CBM reviews, the PTAB panels applied the two-part Alice test to determine first that the claims were directed to the abstract idea of conditioning and controlling access to content based upon payment, and then second that the additional elements of the claims did not contain an inventive step, thus rendering the claims invalid under Section 101. Smartflash appealed the PTAB’s final written decisions and the Federal Circuit issued a Rule 36 affirmance upholding the PTAB’s decisions without an opinion.

These “decisions without an opinion” aren’t so unusual and less than a day ago we wrote about Patently-O‘s long-going lobby on the matter.

At the moment we generally see the patent maximalists working hard to shut down or at least weaken PTAB at the legislative, judicial, and executive levels. They also hope that Iancu, a Trump appointee from the patent microcosm (Trump had paid his firm), will simply disregard courts' decisions. Such a mindset is a dangerous mindset and surrogate of institutional corruption.

IAM, Watchtroll and the EPO Still Spread the Mentality of Patent Maximalism

Posted in America, Deception, Europe, Patents at 10:10 pm by Dr. Roy Schestowitz

Joff Wild and BattistelliSummary: The misguided idea that the objective (overall) should be to grant as many monopolies as possible (to spur a lot of litigation) isn’t being challenged in echo chamber ‘events’, set up and sponsored by think tanks and pressure groups of the litigation ‘industry’

TODAY we shall write a lot about patent scope, software patents in Europe and in the US in particular. It is generally a symptom of the patent system getting hijacked by those who were originally meant to service scientists. Roles have been reversed and scientists are now expected to provide “demand” (or cash flow) for lawyers, who sometimes just sue scientists without prior provocation (many patent trolls are just lawyers).

According to this hours-old blog post from Satoshi Watanabe, the patent trolls’ think tank (IAM), which is also a Battistelli mouthpiece (he’s an author and keynote speaker to them), is nowadays in Japan spreading the ‘religion’ (litigation ‘industry’ psyche). The think tank entertains accompanying ‘studies’ etc. “The chart compares the number and ratio of patent applications filed to Japan by US, Korean, and German companies,” Watanabe says, “respectively compared between a period of 2002-2006 and 2012-2016. The JPO studies all the patent applications which are filed both to US and Europe. The yellow bar in the chart indicates the number and ratio of patent applications whose counterparts were not filed to Japan, while the blue bar indicates those whose counterparts were filed to Japan. They obviously reduced patent application filings to Japan.”

So what? So there may be fewer monopolies. Is that a bad thing? It’s only necessarily a bad thing for the litigation ‘industry’. The USPTO is currently paying the price for over-granting for a number of decades.

Hours ago also came Watchtroll’s promotion of the EPO‘s charade with IPO, in which they promote software patents under the guise of ‘automobiles’ (as we last noted yesterday). It’s all about inflating the number of patents, irrespective of patent quality, merit, necessity etc. “The impetus for this interview,” Watchtroll admits upfront, “is the upcoming EPO Automotive and Mobility Seminar, which will be held in Chicago, IL, immediately after the Intellectual Property Owners Association (IPO) 2018 Annual Meeting, on September 26-27, 2018. Romano-Götsch will be participating in this EPO program, providing a landscape and overview on the morning of September 26, as well as participating on a panel and providing closing remarks on September 27.”

It’s somewhat of an inner/insider joke at the EPO that those who get rewarded or promoted are those who suck up to Battistelli and Bergot. That makes one wonder about Romano-Götsch’s motivations. To participate alongside zealots like IPO says a lot about oneself.

Watchtroll and Other Proponents of Patent Trolls Are Trying to Change the Law Outside the Courts in Order to Bypass Patent Justice

Posted in America, Law, Microsoft, Open XML, Patents at 11:02 am by Dr. Roy Schestowitz

Court's steps

Summary: 35 U.S.C. § 101 (Section 101) voids almost every software patent — a reality that even the most zealous patent professionals have come to grips with and their way of tackling this ‘problem’ is legislative, albeit nowhere near successful (so far)

TWO years ago we still wrote some articles about the EPO‘s relationship with Microsoft — a subject we had covered in years prior to that and got us some threats from the EPO’s lawyers. A few weeks ago we wrote about the USPTO in relation to "Changing Rules to Punish PTAB Petitioners and Reward Microsoft for Corruption at ISO" — a subject which was later discussed by the U.S. Patent and Trademark Office’s Patent Public Advisory Committee (PPAC), as scheduled earlier this month. Based on Watchtroll’s report on this: “The USPTO is also looking to encourage patent applicants to file their applications in the DOCX format by introducing a new surcharge for utility non-provisional applications that are filed in formats other than DOCX. This would introduce a new $400 fee for such applications. According to Hourigan, the decision to encourage DOCX-format filings is intended to simplify the sharing of application data as DOCX files are XML-based. Other formats, such as PDFs, must be converted to XML using optical character recognition (OCR), a technology which is a source of potential errors.”

“Related to this is a bill that deals with fee-setting authority, as covered by CCIA three days ago.”So they basically decided that proprietary Microsoft formats are the gold standard? This is ridiculous. What about ODF (Open Document Format) or XML-based formats that do not contain blobs and Microsoft-specific directives like OOXML?

Related to this is a bill that deals with fee-setting authority, as covered by CCIA three days ago. Josh Landau (CCIA’s main patent matters person) said:

Today, the House Judiciary Committee is scheduled to markup Rep. Chabot’s newly-introduced SUCCESS Act, which is itself a combination of portions of two other bills Patent Progress has covered: Reps. Comstock and Adams’ SUCCESS Act, and the fee-setting authority contained within Rep. Chabot’s BIG DATA for IP bill.

Each bill is individually worthwhile. The SUCCESS Act attempts to address the relatively low number of patent applications filed by underrepresented groups. And fee-setting authority is important to help prevent marginal patents from being issued.

At the same time, Rep. Chabot’s bill does not currently incorporate any of the suggested improvements to the SUCCESS Act designed to study the impacts of patents that never should have been granted when they’re used to threaten innovative companies founded by underrepresented minorities. Without these improvements, the SUCCESS Act can only study a portion of the barriers to innovation faced by underrepresented minorities.

The problem with many of these bills is that they’re promoted by bribed politicians. They try to shape the law depending on which millionaires and billionaires sponsor them.

Going back to Watchtroll, a site that promotes several anti-PTAB bills (but hasn’t done so recently), on the same day (as the above) it published complete nonsense, pretending that patents are necessary for startups and whatnot (they’re not). In “Can I hold on long enough until the madness stops?” (also published on the same day) Watchtroll gives Jeffrey Killian a platform in which to frame patent quality as “madness”. These people are laughable. Here’s the portion which bemoans Section 101: “This anti-patent bias toward software is illustrated in many ways. The Supreme Court of the United States added the words “abstract” and “significantly more” to 35 U.S. Code § 101 and did not define such terms. Previously 35 U.S. Code § 101 granted patents in the past and now 35 U.S. Code § 101 has become a provision to deny software patents on a wholesale basis. The added judicial exceptions were not approved by Congress, the law still reads the same, the added and undefined terms were legislated from the judicial bench. Something is inherently wrong with this situation from a common person’s viewpoint.”

SCOTUS decided on Alice and patent maximalists like Watchtroll and Patently-O try hard to get US Congress to intervene, counterbalanced by the likes of HTIA, CCIA, EFF etc.

Patently-O meanwhile says that the “House [is] Considering [a] Bill that Would Preclude Enforcement of Injunctions Against Non-Parties,” interjecting the author’s views as follows: “I am trying to envision the problems this creates for patents, and happen to be writing a book on Remedies right now. Problems?”

Injunctions are basically something like an embargo, imposed by the ITC typically. We have already seen how the ITC simply disregards judgments made by the Patent Trial and Appeal Board (PTAB) on inter partes reviews (IPRs), before or after the Federal Circuit gets involved. This means thar they disregard and totally disreprect the principle of due process — something which certainly makes the U.S. Patent and Trademark Office (USPTO) seem rather aloof or detached from the rule of law.

Courts aren’t entirely “pure”, but high courts a lot less impure than politicians with “campaign contributions” and a patent office that measures “success” by number of patents rather than justice. So we’d rather rely on Justices than on a bunch of politicians.

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