Summary: A roundup of the latest developments at the EPO combined with feedback from insiders, who are not tolerating their misguided and increasingly abusive management
THE thousands of EPO workers are concerned. The tens if not hundreds of thousands of EPO stakeholders are concerned too. Software developers like myself are growingly concerned about software patents in Europe, seeing what could soon become the European ‘Eastern District of Texas’ with Battistelli as its boss, having granted a lot of bogus patents. This article is an assorted mix of interrelated topics that we have sat on for a while, combined with the latest news. Readers might find these interesting.
“First We Take Munich then we take the Hague”
“Tu quoque mi fili“, one person wrote to us, “I just remembered this song,” tweaking Leonard Cohen’s First We Take Manhattan:
They sentenced me to twenty years of boredom
For trying to free the system from the plague
I’m coming now I’m coming now to reward them
First We Take Munich then we take the Hague.
The famous original lyrics said:
They sentenced me to twenty years of boredom
For trying to change the system from within
I’m coming now, I’m coming to reward them
First we take Manhattan, then we take Berlin
“With a bit of humour and philosophy,” our reader noted, “one would notice that history repeats and many don’t learn from the past mistakes. It is sad.”
“Battistelli is Playing With Death Not Only With the Suicides That He Has Directly or Indirectly Provoked”
Let’s talk about the “BBB effect,” wrote another reader, in reference to “Bikes brakes and Battistelli” (BBB).
thank you again for the excellent coverage of EPO matters. Your contributions are certainly a key toward the solution.
Allow to comment on one of the recent publications
About the brakes story (again!):
It is now clear for anyone that this incident was created by Team Battistelli in order to introduce additional security measures. However that was an insult to the staff (again) and an extremely dangerous move. It is an insult because the staff of the EPO are utterly pacifists and if they really wanted to “illegally” get rid of the tyrant they could do it and no one would find who did it. After all you have there more than 4000 scientists and engineers and I am pretty sure they could have Battistelli “disappeared” in a far more efficient way than cutting brakes. It was thus an insult to their competence.
The point that worries me is that by alluding that one may want to harm the boss, the management creates that perception that such things are possible and you know if there is a foolish thing to do, you will find a fool to do it. This is a recipe for a disaster. Mr. Battistelli is playing with death not only with the suicides that he has directly or indirectly provoked but also by orchestrating a, yet imaginary, plot against himself. Hence no wonder that he turns paranoid: his life must be a nightmare. He would be afraid to be in any public place, of traveling, taking a taxi, being in an airport, even being in the EPO basement carpark (which I would shut off as a precautionary measure because is is really a dangerous place), being in the lift or even shaking hands. All that is really dangerous, Monsieur le President, are you so tired of living? What about a stay in your beloved Haar nuthouse?
Brain Drain and Collapse of ‘Demand’ for Patents
“Brain drain,” another reader noted, is real, as “the figures the Euro Patent Office doesn’t want you to see” are as follows:
I have just heard this impressive figure: in 2016 over 60 persons retired at ages younger than 55, compared to 5 persons in 2015. Who says there is no brain drain?
We are sad to see the EPO failing so badly. The USPTO, by contrast, is improving. US applications for EPs have in fact just nosedived; even ‘artistic’ statistics by the EPO could not hide this.
EPO Patent Quality (or Scope) Now Worse Than USPTO
To clarify, as I did even a decade ago, I am not against patents (I never was), nor am I against patent offices. I just think that the US is improving patents-wide, whereas the EPO is a travesty that will damage Europe’s competitiveness. Patent quality sucks so badly under Battistelli that patents on life, which are rejected in the USPTO these days, are being accepted by the EPO. There was a new article about this yesterday at The Scientist. To quote the summary: “The European Patent Office will grant patent rights over the use of CRISPR in all cell types to a University of California team, contrasting with a recent decision in the U.S.” The confirmation goes one day earlier. To quote: “The European Patent Office (EPO) yesterday (March 23) announced its intention to award a broad-strokes patent for CRISPR gene-editing technology to the University of California, Berkeley, the University of Vienna, and the Helmholtz Centre for Infection Research. The claims include the use of CRISPR across prokaryotic and eukaryotic cells and organisms, hitting upon the point of contention in a recent patent interference decision in the United States. In that case, the US Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB) denied UC Berkeley the rights over the use of the technology in eukaryotes—the money-making application for CRISPR—leaving that intellectual property with the Broad Institute of MIT and Harvard.”
What a disaster. See our index about CSIRO and CRISPR. This will almost certainly bring patent trolls to Europe pretty soon.
Germany Already Attracts Patent Trolls
Speaking of CSIRO, see this new article from IAM (EPO and trolls proponent), which finally admits that patent trolls now infest Germany, attacking legitimate companies using patents. The Battistelli effect? Here is the relevant part:
Recent research from IP analytics firm Darts-ip has identified China and Germany as the two major patent jurisdictions in which NPEs enjoy the most success in infringement proceedings. However, the relatively low volume of cases being filed by NPEs in China suggests that significant monetisation activity is still some way off – though there are already signs that it is picking up.
The Darts-ip study looks at lawsuits filed by NPEs in several major jurisdictions outside of the United States from 2011 to 2016. The researchers pinpointed just over 250 non-US NPE cases over that period, compared to more than 12,000 US cases. While the number may seem “trivial”, as Darts-ip concedes, it is the trend over the five-year timeframe that is telling.
See what the EPO is doing to Europe? Same thing SIPO is doing to China. It’s destroying the domestic industry. Under Battistelli the EPO became just "SIPO Europe", as we dubbed it back in December.
The EPO moves from bad to worse while the USPTO is at least trying to improve. This new piece from Patently-O (also yesterday) speaks of “Regulatory Reform” using a new working group — like the sorts of groups that existed when Battistelli seized power and then proceeded to shutting down. “Under the direction of the White House,” Patently-O wrote, “the USPTO has formed a “Working Group on Regulatory Reform.” To implement the 2-for-1 regulatory agenda previously outlined on Patently-O. According to a release from Dir. Michelle Lee’s office…”
Lee has done a lot to improve the image of the USPTO. It became a lot saner and among the reforms was the suppression of software patent trolls.
Spain and the EPO
In Europe we are now receiving the exact opposite (see the news about Germany, to be further exacerbated and expand scope-wise with the UPC) and Barker Brettell LLP (mentioned before in relation to the EPO [1, 2] and its advocacy of software patents) insinuates that Spain becoming more like the EPO is desirable. To quote the relevant part from “Will the new Spanish patent law bring harmony in Europe?”
The changes will also alter the opposition process; this will move to a post-grant system like the EPO, except that the term for filing an opposition will be six months from grant rather than the EPO’s nine months. Harmony with the EPO is also achieved when it comes to ‘second medical use’ inventions; when patenting already known substances or compositions for use in new therapeutic applications the ‘Swiss type’ form of claim is no longer needed. Also mirroring the changes that EPC2000 brought in, there remains an exclusion from patent protection for surgical, therapeutic and diagnostic treatment methods but the legal fiction that these methods lack industrial application is removed.
The option will be available for post-grant limitation or revocation of the patent by the patentee. As with a central limitation or revocation at the EPO, a request can be made at any time during the life of the patent and will be retroactive in its effect.
“Since when are the Spanish people asking Franco for a comeback?”
That is what an EPO insider thought of it. As we noted yesterday, Spain continues to reject the UPC. Seeing what happens in Germany right now should be a strong defense of this decision. it’s possible that 4 days from now the UPC will be more or less officially dead in the water. █
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(Anti)Competitive advantage by unfair competition and outright exclusion?
Summary: Chinese patent policies are harming competition from abroad, e.g. Japan and the US, and US patent policy is being shaped by its higher courts, albeit not yet effectively combating the element that’s destroying productive companies (besieged by patent trolls)
Using legal aggression with patents — lots of patents which SIPO is granting sparingly these days — companies become ever more aggressive. China is becoming business-hostile (as we predicted) in some sense and IAM said earlier today that “Beijing IP Court slaps Sony Mobile with injunction based on SEP infringement” and “[a]ccording to Xinhua, the case was filed back in 2015, but negotiations between Sony and Iwncomm over the patent stretch back to at least 2009. The injunction is set to affect 35 Sony models, including the Xperia Z1 and Xperia Z2 in the country. China’s Lexfield Law Offices has helpfully translated the court’s reasoning for granting the injunction…”
One should note that, based on this from IAM
[PDF], Iwncomm was a delegate in its conference. Other new posts about it say that it’s about a “standard (required in China) known as WAPI.” (WLAN Authentication and Privacy Infrastructure)
“Whatever the motivation may be, it will probably harm China’s ability to compete in the international scene.”Now that SIPO is allowing software patents, which are about to become even more permissible on April 1st, the above is made possible. WAPI is said to be “designed to limit trade into China,” based on Wikipedia, which adds that it’s “requiring foreign companies to provide confidential trade secrets to Chinese corporations.”
Maybe that’s the thinking behind patent maximalism in China? Similarly to the country’s censorship policy, which is often criticised as means of embargoing foreign companies and thus propping up local (domestic) companies?
Whatever the motivation may be, it will probably harm China’s ability to compete in the international scene.
Over in the US, Trading Technologies with its notorious patent lawsuits is mentioned by a blog of a pro-software patents firm which is closely involved. It’s about patents on interfaces (in relation to user interfaces) and the firm explains that “the Federal Circuit issued an opinion in Trading Technologies Int’l., Inc. v. CQG, Inc., its first decision finding a user interface to be patent eligible subject matter. The court designated the opinion as non-precedential. On Monday SHzoom LLC filed a motion under Federal Circuit Rule 32.1(e), which allows any person to request that the court reissue a decision as precedential. The text of the motion is set forth below.”
“But not all is positive as TC Heartland is looming and for the time being the US trumps China when it comes to patent trolling.”Being non-precedential means, much to the regret of patent law firms, that CAFC remains a colossal barrier to software patents. Most of its decisions are against software patents and these decisions are precedential too, just like Alice.
But not all is positive as TC Heartland is looming and for the time being the US trumps China when it comes to patent trolling. Moreover, as EFF lawyers have just put it, the US Supreme Court won’t stand in the way of trolls, as we noted briefly last night in relation to SCA Hygiene v First Quality ruling. Here is an explanation:
In a ruling this week that will cheer up patent trolls, the Supreme Court said patent owners can lie in wait for years before suing. This will allow trolls to sit around while others independently develop and build technology. The troll can then jump out from under the bridge and demand payment for work it had nothing to do with.
The 7-1 decision arrives in a case called SCA Hygiene v. First Quality Baby Products. This case involves a patent on adult diapers but has a much broader reach. The court considered whether the legal doctrine of “laches” applies in patent cases. Laches is a principle that penalizes a rightsholder who “sleeps on their rights” by waiting a long time to file a lawsuit after learning of a possible infringement. It protects those that would be harmed by the assertion of rights after a lengthy delay. For example, laches would work against a patent owner that saw an infringing product emerge yet waited a decade to sue, after significant investment of time and resources had been put into the product.
The ruling in SCA follows a similar decision in Petrella v. MGM holding that laches is not available as a defense in copyright cases. The Supreme Court has generally rejected “patent exceptionalism” and has often reversed the Federal Circuit for creating special rules for patent law. So this week’s decision was not especially surprising. In our view, however, there were compelling historical and policy arguments for retaining a laches defense in patent law.
Japan’s Sony, as in the above case in China, is currenly suffering embargoes due to patents (in China) and Japan’s Toyota is also in the patent headlines today. It uses Linux (or Android) in cars. It’s no longer a slave of Microsoft (like it used to be). So all that Microsoft can do, based on new articles from today, is demand payments for patents — undisclosed payments from Toyota [1, 2, 3, 4]. “The companies would not disclose the financial terms of the deal,” says one of the reports, but we can imagine that it means a flow of cash from Toyota to Microsoft. Days ago IAM complained about Japanese courts not being "friendly" to patent aggressors. Well, China’s courts certainly are, which makes one wonder what China has in mind with its extreme patent strategy (loosening control and attracting over a million patent applications in a single year). █
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Finding balance between restrictions and collectively-beneficial liberalism
“The copyright laws attempt to strike a balance between protecting original works and stifling further creativity.” Bridgeport Music, Inc. v Dimension Films, opinion of the court (2004)
Summary: As the US Supreme Court (SCOTUS) starts delivering some decisions we take stock of what’s to come regarding patents
AS EXPECTED, the Justices at SCOTUS bring forth some new output for law firms to comb through before analyses/interpretations get published by the hundreds/thousands. First there was today’s decision on uniform copyrights (just covered in our latest daily links, under the copyright section, with three reports we’ve found within hours).
“To summarise, in the area of copyright the Justices sidle with the maximalisms, whereas in the area of patents it’s not quite as depressing.”Professor Crouch took note of the Lexmark case, which is still ongoing (orally). To quote a portion: “Truthfully, most of the oral arguments involve Justice Breyer explaining to other members of the court that Lexmark’s approach violate’s Lord Coke’s 300 year old maxims – “that’s been the kind of basic legal principle for an awfully long time.” Lexmark’s primary answer: “the common law changed a lot after Lord Coke.” In the two most recent IP Decisions by the Court – Star Athletica and SCA Hygiene – the majority ruled in favor of the IP rights-holder over Justice Breyer dissents in both cases.”
We’ve already covered this case before. MIP, in the mean time, takes note of the laches defence, writing this afternoon that “The Supreme Court rejected wholesale the Federal Circuit’s stance that laches be an available defence in patent law, in its SCA Hygiene v First Quality ruling” (we wrote about this last night).
“We certainly hope that in the coming days, weeks and months the Justices will recognise that for patent law to be respected and be seen as legitimate it needs to adhere to public interests and be limited to what is reasonable.”To summarise, in the area of copyright the Justices sidle with the copyright maximalisms, whereas in the area of patents it’s not quite as depressing. The likes of IAM and Watchtroll will no doubt write about that soon; IAM has just published this rant from a law firm, asserting that “Patent Trial and Appeal Board, state anti-troll laws and anti-patent Supreme Court and Federal Circuit decisions have eroded patent protection.”
No, these have improved patent quality — something we should all celebrate unless we make money by peddling patent feuds. We certainly hope that in the coming days, weeks and months the Justices will recognise that for patent law to be respected and be seen as legitimate it needs to adhere to public interests and be limited to what is reasonable. This means, among other things, that the ruling on TC Heartland (last update a couple of days ago) should be made against patent trolls infesting the Eastern District of Texas. █
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Summary: A roundup of news about patents in the US and how the patent microcosm attempts to patent software in spite of Alice (high-impact SCOTUS decision from 2014)
THE EPO has been so full of scandals and lies lately that we have, at times, lost sight of news from the US, including improvements at the USPTO. Tonight, for a change, here is something positive.
“As one can expect, patent law firms promote software patents under the guise of “AI”…”This bit of news suggests that Sony wants a patent on wireless charging — not a new concept in its own right, but we certainly remember that Sony ‘innovated’ devices that almost literally explode, owing to their splendid battery. This happened several times over the years and 3 years ago there were still recalls of products (it also happened a decade ago, and not for the first time).
Putting aside patents on hardware, there are silly new patents on software being assigned. “Interfacing to cloud storage” they call it — the cloudwashing of patents as we called it this month and last month (a fairly recent trend of pseudo-’innovation’ using buzzwords). Someone in Twitter sent a “BS software patent alert” about it. Will courts ever uphold such a patent? probably not after Alice (§101).
“Patent examiners should watch out for these silly workaround attempts; just because some software is described as “on a device”, “over the Internet”, “on a phone”, “in the cloud”, or “for AI” doesn’t mean it’s any less abstract.”Speaking of cloudwashing of patents, we have mentioned “AI” as another buzzword commonly used these days to patent old stuff. As one can expect, patent law firms promote software patents under the guise of “AI” and Barker Brettell LLP, which we mentioned here before in relation to the EPO [1, 2], has no qualms about it (here is another new article along those lines). Patent examiners should watch out for these silly workaround attempts; just because some software is described as “on a device”, “over the Internet”, “on a phone”, “in the cloud”, or “for AI” doesn’t mean it’s any less abstract. The same goes for “machine learning”, “IoT”, “DevOps”, “smart”, “wearable” and other trendy terms that mean too little (if anything at all). These are still software patents, just like that Baxter patent application which Judge Corcoran ruled against in T1508/12-3.5.05.
Over at Watchtroll, the strident proponent of software patents (where actual software engineers never write about it), someone from a law firm (Harrity & Harrity) decided to market some tricks for patenting business methods in spite of Alice. Here’s an except:
These examples seem to indicate that the power of §101 to restrict patentability has been whittled down since Alice and that the USPTO would like to reduce the number of §101 rejections for technological claims in light of court decisions post-Alice. Below, we describe each example provided by the USPTO and explain the USPTO guidance for each example to assist practitioners with reducing and overcoming §101 rejections.
As often happens, they try to sort of reverse-engineer the USPTO’s guidelines in order to defy the rules and sneak bogus patents past the examiners. Once granted, any defendant would have to spend a fortune in court to prove invalidity (with burden of proof and fees enough to make a settlement more attractive an option). As long as the victims are kept isolated and unaware of one another (NDAs can accomplish this), they won’t pool together the financial resources required to fight back against the serial aggressor (taking away the ‘weapon’).
“Once granted, any defendant would have to spend a fortune in court to prove invalidity (with burden of proof and fees enough to make a settlement more attractive an option).”§101 has been worrying the patent microcosm and media of this microcosm keeps trying to scrape some good news from the bottom of the barrel. The other day, for example, MIP’s Michael Loney went along with a rather misleading headline, based on some figures from the patent microcosm itself (Fenwick & West). We’ve already mentioned this analysis; Loney could say that CAFC MAINTAINS high §101 invalidity rates, but instead he went along with “US district court 101 invalidity rates down slightly in 2017″ and left much of the rest behind a paywall. “The Federal Circuit,” he noted before the paywall kicked in, “maintains its high invalidity rate on Section 101 decisions so far this year but the district court rate has fallen, according to new figures from Fenwick & West’s Robert Sachs. One interesting recent trend is the PTAB has reversed all 16 ex parte appeals of Section 101 rejections since October…”
PTAB maintains and even increases its workload, though Loney recently compared non-corresponding months to make it look otherwise. They’re using all sorts of tricks in an effort to give their readers, the patent microcosm, some good news and ‘tricks’ for fooling examiners, judges, etc.
“They’re using all sorts of tricks in an effort to give their readers, the patent microcosm, some good news and ‘tricks’ for fooling examiners, judges, etc.”Speaking of CAFC, Patently-O wrote about this new verdict, noting that a “California jury held that TVIIM’s U.S. Patent No. 6,889,168 was both invalid as anticipated and not infringed. On appeal, the Federal Circuit affirmed. [...] The result here is that a potentially inconsistent verdict is not improper so long as any possible resolution of the inconsistency reaches the same outcome (here, that the patentee loses). In this case, any proposed construction of the claim terms resulted in either the patent being invalid or being not infringed.”
This is a good example of tricks used in vivo — so to speak — once the patents are already in a process; the same sorts of tricks have been attempted at PTAB, in desperate efforts to save patents by editing their contents (as if patents are something dynamic that should have versions and revisions even after a grant). It’s like evergreening of patents ‘on the go’. The whole thing is laughable and it contradicts the very premise/basis of patenting!
“…it seems clear that there is growing backlash against patent maximalism, which has become more like a religion than a science, and is practiced by firms that engage neither in science nor in any form of production.”Incidentally, recently in Techrights we have covered several examples of frauds and charlatans extorting with patents; Some patently unethical frauds out there blackmail small companies by the thousands (of companies) using patents they haven’t got or patents which they know are bogus. Classic protection racket! Many examples were recently given of it and this new article (behind paywall) says that “Patent Owners Face Increased Fraud Liability Risk”. To quote the open access summary/outline: “New legislative and court-driven developments in patent law have increased the risk of securities fraud liability for public company patent owners. Such patent owners and their securities counsel are therefore best advised to understand these developments, their intersection with securities law, and how they may affect some public disclosures.”
As access to the article is restricted, as is normal for that site, it’s hard to say if any of this alludes to frauds and charlatans who claim to have patent leverages that they haven’t (in order to extract fees from a lot of companies), but either way, it seems clear that there is growing backlash against patent maximalism, which has become more like a religion than a science, and is practiced by firms that engage neither in science nor in any form of production. █
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Insulting Justices/judges, like hitting them under the belt
Justice Breyer was pro-Alice or in favour of what’s now known as the Alice test that eliminates many software patents
Summary: The US Supreme Court (SCOTUS) is preparing to deliver some important decisions on cases with broad ramifications, e.g. for patent scope, and those who make money from patent feuds are attempting to alter the outcome (which would likely restrict patent scope even further, based on these Justices’ track record)
SOME of our earliest articles about SCOTUS were quite critical of it; the same goes for the USPTO. But nearly a decade has passed and the United States is nicely reforming the patent system, led by key decisions from SCOTUS (decisions such as Alice and Mayo).
“…nearly a decade has passed and the United States is nicely reforming the patent system, led by key decisions from SCOTUS (decisions such as Alice and Mayo).”There are some important and relevant (to us) cases coming from SCOTUS, possibly with new Justices joining quite soon (following the death of Scalia and the change of political party in power). A loosely-closeted patent maximalist (disguised as academic) seemed rather bothered about the upcoming decisions. He wrote a lot about them recently, noting for instance that “Justice Breyer dissented – arguing that “for more than a century courts with virtual unanimity have applied laches in patent damages cases” in order to fill an important gap in the statutory regime.” (regarding SCA Hygiene Prods. v First Quality Baby Prods)
He also wrote regarding the Lexmark case which we recently wrote about in light of the attacks on Justice Breyer. The patent maximalist quotes from this SCOTUS oral arguments
[PDF]: “If you look it the Alice case, for example, that obviously had tremendous implications…”
“There are some important and relevant (to us) cases coming from SCOTUS, possibly with new Justices joining quite soon (following the death of Scalia and the change of political party in power).”Yes, fantastic implications to software developers, albeit negative for patent trolls, patent lawyers etc. (in other words, people who produce nothing of use)
SCOTUS will likely rule for common sense yet again, as it so persistently did in the patents domain (the composition of Justices is still very similar). Here is Watchtroll attempting to influence the outcome by giving the platform to “an associate in Womble Carlyle’s Intellectual Property Transactions Group.” (i.e. patent microcosm).
No doubt there will be a lot of lobbying to that effect in the coming days, weeks, and beyond.
A great headline that we found earlier today said, “In Apple v. Samsung, SCOTUS Sided With Reason Over Rounded Corners”
“No doubt there will be a lot of lobbying to that effect in the coming days, weeks, and beyond.”There may be more such decisions (regarding Apple and Samsung) heading into SCOTUS, with nearly billions of dollars hanging in the balance (for this case alone, irrespective of impact it would have on other, future cases). To quote the article: “After almost five years of legal volleying, the U.S. Supreme Court finally issued a decision in the highly anticipated Apple v. Samsung design patent case late last year. On Tuesday, Dec. 5, the court delivered a unanimous decision in favor of Samsung, finding that damages for design patent infringement may be limited to revenues attributable to a component of an article of manufacture rather than profits from the entire article. While this is an important victory for startups and innovators—from global corporations to inventors toiling in garages—courts must still work to provide the guidance and clarity necessary to prevent bad actors from abusing the patent system to the detriment of innovation. And they have a new opportunity to do so: On Feb. 7, the U.S. Court of Appeals for the Federal Circuit took a significant step in that direction by remanding the Apple v. Samsung case to the Northern District of California court.”
We have been trying to figure out where a Justice Gorsuch (if appointed, not just nominated) would stand on patents, but it’s still too much of a mystery [1, 2]. We have not yet seen any indication — except perhaps this — that Trump is going change course and attempt to reverse/undo the progress made. █
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Battistelli mimics China not just when it comes to the human rights angle (as if the EPO became a Chinese bureau immune from prosecution and located in several European sites)
Reference: Loose Patent Scope Becoming a Publicity Nightmare for the EPO and Battistelli Does a China Outreach (Worst/Most Notorious on Patent Quality)
Summary: A detailed explanation of some of the latest reports from China and the US, serving to show that one opens up to software patents whereas the other shuts the door on them (and guess whose lead the EPO is taking)
SOFTWARE patents started with the US patent office several decades ago, but these patents are going away, albeit China is eager to repeat the mistakes of the US. We worry that the same is true for the EPO, even in clear defiance of the EPC.
“We worry that the same is true for the EPO, even in clear defiance of the EPC.”A SUEPO-hostile and UPC-friendly new site (extension of the patent microcosm by all means, based on its short track record) calls a Qualcomm executive/lawyer who never wrote any code an “expert” (the headline is “Experts staunchly defend software patents”)
To quote: [via]
The quality of a software invention, rather than its mode of implementation, should be the litmus test for patent protection, according to two intellectual property consultants.
IP and innovation consultant Ania Jedrusik and former Qualcomm chief patent counsel Phil Wadsworth argued that patents are the strongest form of protection for the huge research and development expenditure associated with developing software-related inventions, in an article published in February’s edition of WIPO Magazine.
How convenient for WIPO.
WIPO, as we mentioned here the other day, misleads with Chinese figures, obviously in order to make it seem like there’s a huge surge in patents. IP Watch put this story in perspective (“China Soon To Overtake US In Patent Filings”), as SIPO basically lost a grip on patent quality (the EPO is going along the same trajectory). WIPO is just a patent maximalist — one that shares many of the problems we encounter in Battistelli’s EPO (in addition to human rights aspects).
“WIPO is just a patent maximalist — one that shares many of the problems we encounter in Battistelli’s EPO (in addition to human rights aspects).”As we noted here the other day, if not over the past few months, SIPO now grants software patents while litigation in China soars, as one might expect (companies destroying each others, lawyers get rich). Here is another new article on the subject. To quote the relevant section:
In the past, patent protection for software related inventions was rather limited; their claims were commonly drafted a process claim, or an apparatus claim based on the computer program flow wherein each component is regarded as a function module required to realize each step in the said computer program flow or each step in the said method. Such apparatus claims are regarded as the function module architecture of the computer program described in the description, rather than entity devices needed to realize the said solution mainly through hardware.
Under the revised Guidelines, software claims may now include a computer program product, a machine-readable medium, or a Beauregard type of claim, which focuses on “an apparatus comprising a processor configured to execute instructions on a computer-readable medium to perform steps of ….”
An applicant should pursue all new possibilities and include as many claim types as needed in the patent application; among other things, it will to make it easier to enforce software patents once they are granted.
It’s sad to see that while the US recognises that it made an error with software patents — an error realised only decades too late because patent trolls accounted for the lion’s share of litigation — Europe and China imitate these same mistakes. There was a short exchange last week between IBM and Henrion (FFII) [1, 2, 3], who less than a decade ago took note of IBM’s lobbying for software patents in Europe. IBM’s patent chief wrote: “How many years does the #patent community have to wait to learn precisely what abstract means?”
“It’s sad to see that while the US recognises that it made an error with software patents — an error realised only decades too late because patent trolls accounted for the lion’s share of litigation — Europe and China imitate these same mistakes.”He’s just complaining about Alice, as usual, and he was soon joined by Europe’s loudest pro-software patents attorney, who wrote: “I’m afraid there is no clear definition of “abstract idea”. The USPTO should just copy the EPO” (on providing loopholes).
Henrion said, “just read art52: mental acts, programs for computers, math algos, presentations of information, rules for games.”
Software patents should not be allowed in Europe. Period. Each software patent granted by the EPO is a travesty and an insult to the EPC. As Henrion later added, “it should be copy the EPC, not the EPO practice, which goes around it, especially in fields where there is money” (all that matters under Battistelli is short-term profit, even if that ultimately kills the cash cow).
“Software patents should not be allowed in Europe. Period.”“Given the rate of Alice destruction in the courts,” “wrote a patent maximalist, the USPTO “should be absolutely embarrassed for ripping off patent owners. Fraudulent?”
See how angry they are? Another firm of patent maximalists, i.e. attorneys who were filling their pockets thanks to software patents (Fenwick & West staff), adds to that sort of shaming of the US patent office. What this law firm means by “best news” and “sunshine in the land of the dark” is software patents. To quote the conclusion below their detailed statistics: “Here we see that recently, the PTAB reversed 16 Section 101 rejections in a row beginning in October, 2016—and 14 of these were from the Business Method art units. This is perhaps the best news I’ve seen in months, a bit of sunshine in the land of the dark.”
They look at a level of granularity that suits them. In the same period of time the number of IPRs handled by PTAB grew. PTAB still eliminates a lot of software patents, maybe more than even before.
“PTAB still eliminates a lot of software patents, maybe more than even before.”This (the above) is good news for software developers. Suffice to say, those who have been taxing software developers aren’t too happy about it. See this new article titled “Patents [on software] harder to obtain now, attorney say”. A more suitable headline would be, “patent quality is improving in the US.”
To quote the key part: “Challenges have resulted in a pushback from the U.S. Patent Office that makes it harder to get patents, particularly on software, Woodral said. Many objectors claim the sought-after patent is not prior art, that someone has done it or it is a variation on something done earlier.”
How is that a bad thing, unless one is patent law firm?
This was responded to by Henrion with “value should not be created out of thin air, like with patents.”
He also argued, “if you run the code with your brain, do you allow or reject the application?”
Patent boosters and proponents of software patents (such as “Patent Buddy”) like to mostly ignore the bad news and instead promote cases such as this § 101 case:
Following a jury trial, the court denied defendant’s motion for partial judgment that plaintiff’s malware monitoring patent encompassed unpatentable subject matter because the asserted claims did not lack an inventive concept.
The higher up this goes (in the US court system), the less likely this patent is to survive, based on the latest figures from Fenwick & West (see the underlying invalidation rates). No matter what patent lawyers are trying to tell us, they know that they have lost the battle (or still losing the battle), which means that software developers regain their freedom to write code without fear of being sued or threatened by trolls.
“Patently-O is with the maximalists, not with the rationalists, hence its popularity among the patent microcosm.”Writing about software patents (ish) at CAFC the other day, Patently-O says that the “appeal here is somewhat complicated – as reflected by the Federal Circuit’s 42-page opinion. The complications begin with the founding of EVE, and emulation software company founded by folks who invented emulation software at Mentor.”
Being a CAFC-level case, one should expect the patent to be thrown away. Patently-O hardly makes it a secret whose side it is on. Patently-O is with the maximalists, not with the rationalists, hence its popularity among the patent microcosm.
Last night Patently-O published this “Guest Post By Prof. Jonathan Barnett, University of Southern California School of Law & Prof. Ted Sichelman, University of San Diego School of Law” (because it suited Crouch’s convictions).
“People who haven’t money in this game don’t think with their wallet but rather with their brains.”Some patent maximalist professors support the evil side in this SCOTUS case regarding Lexmark, so Crouch just ignores the lion’s share of professors and places the outlier. As the authors themselves confess: “Drawing from this paper and other economically oriented analysis, we recently co-authored an amicus brief in Impression Products, which argues in favor of a presumptive understanding of the exhaustion doctrine. (Interestingly, although academics are usually pegged as strongly in favor of mandatory exhaustion, our brief garnered 44 signatures—significantly more than the brief filed by professors arguing in favor of mandatory exhaustion.)”
Whose signatures though? Well, maybe if not probably signed by the maximalists, not the professors. People who haven’t money in this game don’t think with their wallet but rather with their brains. █
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The court system versus a self-justifying patent ‘industry’, which tries to guard and expand its power by broadening patent scope ad infinitum
“But each proposal must be weighed in the light of a broader consideration: the need to maintain balance in and among national programs — balance between the private and the public economy, balance between cost and hoped for advantage — balance between the clearly necessary and the comfortably desirable; balance between our essential requirements as a nation and the duties imposed by the nation upon the individual; balance between actions of the moment and the national welfare of the future. Good judgment seeks balance and progress; lack of it eventually finds imbalance and frustration. “
–Dwight D. Eisenhower
Summary: The latest developments in the United States, which is now attempting to undo the damage caused by overpatenting — a trap which the EPO and SIPO are currently being lured into
FOLLOWING the SCOTUS ruling on Alice — a ruling which was embraced by the Court of Appeals for the Federal Circuit (CAFC) after corrupt people like Randall Rader had left (he is still trying to return to positions of power) — software patents have been invalidated centre, right and left. It’s actually pretty major news, typically celebrated by the patent microcosm, when a software patent is upheld by a high court as valid. Whatever the USPTO grants, it doesn’t matter much until the patent is actually put up to the test at a court of law. More often than not we find out that the USPTO granted patents in error (worryingly enough a trend which will grow in Europe now that patents are flying off the EPO‘s shelves, including software patents that are by principle invalid).
“More often than not we find out that the USPTO granted patents in error (worryingly enough a trend which will grow in Europe now that patents are flying off the EPO’s shelves, including software patents that are by principle invalid).”The US patent system became notorious for granting patents on all sorts of things provided it says “over the Internet”, “on a computer”, and more recently “on a phone”. We saw one such example in yesterday’s ‘news’, namely “Patent for smartphone connectable scanner published in USA” (it’s about exactly what it sounds like, nothing novel here). One of the most notorious patent trolls in the US was going systematically after every conceivable business that could cough up money and used a scanner (we wrote about that many times before). It’s something akin to business methods if not software patents.
It is in light of this that the arrival of PTAB is very much welcomed and needed. According to this new article, a “Versata Patent [is] Targeted By Ford Ineligible For CBM Review” by PTAB:
The Patent Trial and Appeal Board declined Wednesday to institute an America Invents Act covered business method review of a Versata Development Group Inc. software patent that was challenged by Ford Motor Co., finding the patent was not eligible for the review program.
The AIA states that the CBM program — which allows the PTAB to review patents on grounds not available in inter partes reviews, including that it is directed to an abstract idea — is designed for patents that are related to financial products…
Another new PTAB article from the a trolls-friendly publisher (IAM) bemoans these reviews and sobs for a firm that produces nothing at all. To quote:
According to Lex Machina, during the period between 17th January and 17th February, IP Bridge was on the receiving end of 18 IPRs filed by GlobalFoundries, 4 filed by Xilinx and one each from Taiwan Semiconductor Manufacturing Company (TSMC) and ARM.
The Xilinx petitions came on the same day that the US chip company made a complaint for declaratory judgment of patent non-infringement covering 12 patents. The San Jose-based company also challenged the validity of four of those patents. IP Bridge had earlier sued Xilinx in the Eastern District of Texas over two separate rights, neither of which is being challenged at the PTAB.
We wrote about this quite recently, after IAM had published another sob story for the aggressor.
It certainly looks as though PTAB is gradually becoming a force for good, whose workload is also increasing. It deserves expansion, i.e. more staff (the same goes for the EPO’s appeal boards). People like Dennis Crouch try to slow PTAB down and yesterday he wrote about the term “technical”, which itself is somewhat of an abstract term. He looked closely at Clarilogic v FormFree Holdings. He said: “The principle that patent prosecutors are following today is in the headline: Get Technical or Get Denied.”
“It certainly looks as though PTAB is gradually becoming a force for good, whose workload is also increasing.”MIP, another patent maximalist, wrote about a case against the US government and Elbit (covered here over the weekend). This was not the usual case outcome, so they like to bring attention to it (drawing attention to the 20% or so of cases that are ruled in favour of the patent microcosm).
What we ought to note here is that none of this is new; people who are in the business of patents just want more and more of them. They’ll never have “enough”.
“The patenting of living organisms remains controversial, despite decades of debate. Sirena Rubinoff provides a guide to the arguments,” MIP wrote in a separate news article.
“The problem boils down to granting of patents based on greedy people’s guidelines — those who quantify the “success” of a granting authority (patent office) by the number of patents granted rather than the quality of patents granted (which is a much harder thing to objectively measure).”These patents are outrageous and unacceptable; it isn’t patent-eligible in most places. Even the EPO was forced, at least temporarily, to stop doing it (after it had repeatedly failed to comply with directives).
Such patents are not just abstract but pertaining to naturally-recurring (reproducible in nature) things. How long will it take for people to recognise that sites like IAM or MIP describe as a victim anyone whose supposed patents are not respected by courts? The problem boils down to granting of patents based on greedy people’s guidelines — those who quantify the “success” of a granting authority (patent office) by the number of patents granted rather than the quality of patents granted (which is a much harder thing to objectively measure). █
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Something positive for a change
Summary: A quick roundup of patent cases in the US and what these mean to growing optimism about the practicing industry, not a bunch of parasitic firms that prey on and tax the practicing industry
TECHRIGHTS has been emphasising for nearly a decade now that low patent quality leads to patent trolls or gives them greater strength. If one removes software patents, that will immediately knock out a large majority of patent troll lawsuits. To a certain degree, in the US at least, this is already happening, thanks largely to Alice.
“Another example of the value of Alice in improving patent quality & protecting businesses from trolls,” United for Patent Reform wrote this week about this article, which was mentioned here before. To quote a portion again, it’s about Microsoft’s patent troll which was a ticking time bomb until several years back:
After staying quiescent for years, IV [Intellectual Ventures] opened up a barrage of lawsuits to enforce its patents in 2010. But the companies that decided to stand up to IV rather than buckle under have been faring well, as judges have found the patents that IV has chosen to enforce in court less than impressive. It’s a telling sign about the giant patent-holder’s collection. Given the opportunity to pull just about any patent out of its huge collection, one would assume the company would choose the best of the lot. But much of it appears to be exactly the kind of easy handouts from the dot-com boom era that have been called out by critics of “patent trolls.”
Never forget Intellectual Ventures’ very strong ties to Microsoft, and to Bill Gates at a personal capacity. A lot of people choose to forget this or simply don’t know. Intellectual Ventures also has literally thousands of satellite firms, based on numerous reliable reports. This is very relevant in light of our previous post. Microsoft runs an expensive and extensive trolling operation which is being used to coerce (or exercise control over) a lot of companies out there. It’s a form of blackmail: do as we tell you or someone out there will come and burn your house/business (e.g. patent trolls). Microsoft now offers the equivalent of ‘protection’ money, in the form of “Azure IP Advantage”, equivalent to “peace of mind” back in the Novell days (one decade ago).
Thankfully, as the above report shows, Intellectual Ventures is not so successful (so far) and there have been both layoffs (since about 3 years ago) and departures of top executives. Intellectual Ventures is basically rotting. It wouldn’t have rotten if it weren’t for decisions like Alice, which some fear the Trump administration has a financial incentive to overturn (Trump’s family business). IP Watch has just caught up with the ‘news’ about Michelle Lee (it’s not really news that she keeps her jobs; Nobody ever said otherwise, except the patent maximalists’ propaganda mill, which had been hoping and trying to oust her in favour of trolls-friendly candidates). To quote IP Watch:
A letter made public only by a United States Freedom of Information Act (FOIA) request confirms that Michelle Lee remains the director of the US Patent and Trademark Office (USPTO), ending a mystery that has been curiously kept secret since President Trump took office over 50 days ago.
One might ask, why do we care so much about Michelle Lee? Well, we have written more than a dozen posts about her since Trump’s inauguration because we noticed a malicious lobbying campaign to remove her, primarily because she did not tolerate trolls and was reasonably OK with the demise of software patents. For those who may be wondering where we stand right now, it’s still looking good. As of this week, software patents proponents take note of software patent being invalidated, with holders relying on wasteful/futile appeals. To quote this one example: “Patent Owner Brief Appealing Invalidation of Email Patent under Alice/101: https://dlbjbjzgnk95t.cloudfront.net/0901000/901132/document%20(27).pdf”
That’s unlikely to change. See this new article titled “Fed. Circ. Affirms Nixing Of Email Patent Under Alice,” which says a “district court had found the asserted claims of Network Apparel Group LP’s patent to be invalid…”
Even a district court found the patent to be invalid. District courts are typically more tolerant of software patents than the Court of Appeals for the Federal Circuit (CAFC). Here is another new report from the same site:
Fed. Circ. Affirms Medical Billing Patent Invalid Under Alice
The Federal Circuit on Monday affirmed the Patent Trial and Appeal Board’s rejection of an application for a patent on a method of electronically transferring patient medical records over a network, saying the concept is abstract and therefore not patent-eligible under Alice.
In a per curiam opinion, the three-judge panel said the claims of inventor Angadbir Singh Salwan’s U.S. Patent Application Number 12/587,101 are unpatentable because they cover the abstract idea of billing insurance companies and organizing patient health information.
See the trend? The Patent Trial and Appeal Board (PTAB) is crushing software patents and, as happens about 80% of the time, CAFC reaffirms its judgment. Dennis Crouch is trying to put an end to that or at least slow that down as it makes him increasingly redundant/obsolete. Yesterday he chose to cover a particular CAFC/PTAB case because challenged patents were not invalidated, for a change (as happens only about 20% of the time). Here’s an except:
That suggests to me that the case is over with the patentee winning the IPR.
Claim Scope: I’m still somewhat confused about whether the claim structure used here is proper under the law. 35 USC 112 states that “A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.” In my mind, one element of claim 12 is that it is a “method” and claim 21 is a “machine . . . configured to perform the method.” As such, claim 21 cannot itself meet the method limitation of claim 12.
Well, there are far, far more such cases where CAFC agrees with PTAB and invalidates patents; we suspect that Crouch just doesn’t want to highlight such cases; maybe he picks edge cases or exceptional scenarios for the purposes of open inquiry. Whatever it is, let it be clear that software patents are in an unprecedented crisis in the US and this is hurting firms which choose to just sue rather than innovate.
“In the more than two years since the Alice decision,” Industry Week wrote yesterday, “courts have held many software patents invalid as claiming nothing more than an abstract idea.”
Let it stay that way. █
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