Summary: Lessons from US media, which focuses on the dire situation in Texas courts, and how these relate to the practice of granting patents on software (the patent trolls’ favourite weapon)
OUR primary concern about the EPO has always been the effort to expand the scope of patents to software (so as to make more money and help multinational oligopolies which constantly lobbied Europe for it).
“At the start of the 1980s, federal policy remained so hostile to patent monopolies that it refused even to grant patents for software. But then came a series of Supreme Court decisions and acts of Congress that vastly expanded the scope of patents and the monopoly power granted to patent holders.”
–The AtlanticIt has always been pointed out, on numerous occasions in fact, that patent trolls rely mostly on software patents. These trolls already knock on Europe's door, having been extremely damaging to the economy of the US, where they crushed a lot of small businesses. This new and very long article from The Atlantic recalls how things changed more than three decades ago, with so-called inventors like Martin Goetz. The article speaks of “dramatic changes in the treatment of what, in the 1980s, came to be known as “intellectual property,” combined with the general retreat from antitrust enforcement” (to benefit oligopolies).
The article says this “had the effect of vastly concentrating the geographical distribution of power in the technology sector. At the start of the 1980s, federal policy remained so hostile to patent monopolies that it refused even to grant patents for software. But then came a series of Supreme Court decisions and acts of Congress that vastly expanded the scope of patents and the monopoly power granted to patent holders. In 1991, Bill Gates reflected on the change and noted in a memo to his executives at Microsoft that “[i]f people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.””
Well, how ironic it must be that Microsoft is now the world’s biggest patent bully (in some respects) and it even managed to make the EPO more megacorporations-leaning.
“Well, how ironic it must be that Microsoft is now the world’s biggest patent bully (in some respects) and it even managed to make the EPO more megacorporations-leaning.”Public complaints in the US are mostly over patent trolls these days. The complaints rightly focus on East Texas, the trolls' docket. Another new article says: “East Texas is known for its Piney Woods, Caddo Lake, maybe for sweet potatoes. It’s also the patent lawsuit capitol of the country. More patent infringement cases are brought to Eastern District courts than anywhere else. There’s pressure to root out the so-called “patent trolls”.”
Published on the same day, this new article rightly observes that “software technology is becoming a treasure trove for Patent trolls.” To quote in context: “In furtherance to my recent post on Patent trolls or the Non Practicing Entities (NPEs), I would like to discuss here in this post about how software technology is becoming a treasure trove for Patent trolls. Cloud based business products are one of the major business fields today. Software-oriented platforms such as C (SaaS) providers are primary targets for the Patent trolls.”
It is vital to realise the strong correlation between software patents (patents on abstract concepts) and patent trolls in order to ensure that the failings seen in East Texas don’t reach Europe as well. █
“Americans learn only from catastrophe and not from experience.”
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There’s the belief that from destruction come profit opportunities
Summary: The plague which is widely known as patent trolls (non-practicing entities that prey on practicing companies) is being spread to Europe, owing in part to misguided policies and patent maximalists
MANY people are very much familiar already with the “Broken Window” fallacy. To quote this short article about it, “natural disasters, wars, and other destructive events can boost an economy’s production because they create demand for rebuilding work.”
“The US patent system, much like the Chinese one, strives to maximise the number of patents (a misguided goal).”Last month we pointed out that patent trolls were entering Europe. These are parasites. They are usually confined to operate within the borders of the US, but a poorly-implemented (to benefit the rich) ‘globalisation’ of patent systems means that more of them can expand their arsenal, extend their horizons, and unleash rage upon European businesses. We have covered many examples in recent years.
The US patent system, much like the Chinese one, strives to maximise the number of patents (a misguided goal). How else can such incredibly high approval rates be explained? It’s no wonder that a lot of domains like programming can now suffer from patent lawsuits in the US. According to this new decision: “Following jury and bench trials, the court found that plaintiff’s network security patent was not invalid for lack of patentable subject matter and found the claims were not directed toward an abstract idea. “Plaintiff contends that contrary to Defendant’s overgeneralization of claim 1 of the [patent-in-suit], claim 1 covers a specific technique of protecting computer networks.”
See? Software patents. An abstract thing. Patented! Welcome to the alternative universe where programs that are reducible to a sequence of numbers (to be fed into a processor or processed/solved using pen and paper) are covered by broad patents, not just copyrights. Where would that leave science and technology in the long run? It would just leave science and technology on the run.
“The largest publicly traded patent-holding company will have to pay online retailer Newegg $15,000 after bringing a frivolous appeal.”
–Joe MullinAccording to some new reports, e.g. [1,2], Unwired Planet (formerly Openwave Systems, which we mentioned in [1, 2, 3, 4]) now uses software patents pertaining to networks in order to troll Android (Linux-powered) players, namely Samsung and Huawei. Patent maximalists don’t seem to mind this. The significance of this is that it all happened in a UK court, not some distant district of Texas (the rocket docket for trolls).
Speaking of patent trolls, the Microsoft-connected troll Acacia (already attacked Red Hat several times over the years) is said to have lost again. As Joe Mullin put it: “The largest publicly traded patent-holding company will have to pay online retailer Newegg $15,000 after bringing a frivolous appeal.
“The order brings to a conclusion what was a once-classic example of sprawling “patent troll” litigation. In 2010, AdjustaCam LLC, a subsidiary of Acacia Research Corp., filed suit (PDF) in Eastern Texas against dozens of companies, saying that they infringed US Patent No. 5,855,343, which describes a type of movable camera clip. The list of defendants included camera makers like Gear Head and Creative Labs, as well as retailers like Amazon, Newegg, K-Mart, Overstock.com, and Wal-Mart.”
This happened in Eastern Texas, but now we see similar things happening in London. It’s not getting any better; it gets worse over time. People in Europe should watch these developments and trends with some concern.
Speaking of Eastern Texas, see this new article about trolls:
Texas Patent Law as If Roy Bean Were Still On the Bench: “Hang ‘Em First, Try ‘Em Later”
East Texas is really a very nice place. The people are friendly. Living is relatively easy amongst the “Piney Woods.” The region is more like the Old South, or the southeastern U.S., than the scrub brush and high plains that many usually think of when they think of Texas. Riddled with rivers, creeks and bayous the climate lends itself to the growth of Spanish moss and bald cypress. But recently it is another climate in East Texas that has attracted the most attention – its lawsuit climate.
The US Chamber’s Institute for Legal Reform recently released its annual lawsuit climate survey and Texas continues to fail, recently dropping again after some slight improvement in the last couple years. The Lone Star ranks an embarrassing 40th out of the 50 states.
Given the direction of the EPO’s management, Europe might soon become the same, little by little. The UPC would certainly contribute to this, for reasons we explained here many times before. █
Related/contextual items from the news:
In March 2014, Unwired Planet sued several smartphone makers over various patents it had “acquired” from Ericsson. Actually, “acquired” misses the key commercial point here. In April I took a closer look at the related arrangements and couldn’t help but conclude that this was just a pseudo-sale of patents and simply an act of what is commonly referred to as “privateering.”
Licensing company Unwired Planet has scored a double victory at the English High Court after it ruled that one of the company’s 4G standard-essential patents (SEPs) is valid and was infringed by Samsung and Huawei.
Mr Justice Birss handed down his judgment today, November 23.
The judgment is the conclusion of the first of five trials concerning the validity and any scope of infringement of Unwired’s five European SEPs, as well as a non-SEP, by Samsung and Huawei
Samsung and Huawei argue that the patents are invalid.
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Because Amazon, founded by Jeff Bezos, likes software patents
Summary: The Bezos-owned Washington Post continues to help those who wish to eliminate patent trolls (which bother Amazon amongst other large conglomerates) but remains void of any coverage about patent scope, including software patents that patent lawyers work so hard to defend
Days after the Washington Post, a generally well-regarded journal of record (with government connections and ownership by the CIA’s ‘Webmaster’), had published Bessen's and Meurer's piece (potentially targeting US politicians) it also published an article by Julie Samuels, whose general thesis is similar to that of Bessen. The headline was composed of two sentences and said: “Patents are supposed to encourage innovation. Without reform, they’ll do the opposite.”
“Patents are supposed to encourage innovation. Without reform, they’ll do the opposite.”
–Julie Samuels“Patent reform,” explained Samuels, “isn’t the kind of topic you’d expect to get much attention. It’s really boring — and I mean deep in the weeds wonky and boring. But start-ups and small inventors are now so threatened by people exploiting loopholes in the patent system that Congress must now step in and take action.
“That’s why patent reform moved from the back halls of Congress to front and center of policy debates. It’s all thanks to the emergence of the “patent troll” — an entity that doesn’t produce things based on its patents but instead uses patents to sue (or threaten to sue) others for infringing them.”
As we noted the other day, the media and the politicians in the US hardly even mention patent reform anymore. Since returning from holidays/recess the subject has been largely buried. Patent lawyers in particular aren’t quite so interested in such change, which might only harm their parasitic business.
“Don’t think for a second that the corporate media is now favourable towards reformists.”Techrights has been generally supportive of Bessen, Meurer, and Samuels. They are well-meaning people and they aren’t necessarily going to gain (financially or otherwise) from the reform. They just want a functional patent system that rewards and encourages real innovation. A lot of patent systems, including today’s EPO and USPTO, view themselves as money-making machines. They don’t seem to care at all what their grants are causing both financially and technologically (embezzling the poor and retarding innovation). There are also ethical considerations, such as killing of the poor (because drugs are priced way out of reach, owing to patent monopolies and artificial price inflation by monopolists).
Don’t think for a second that the corporate media is now favourable towards reformists. As we have said here for years, patent lawyers are winning this battle by virtually flooding the media with their talking points, pressuring politicians with their lobbyists and so on. The owner of the Washington Post is himself a big part of this problem, so don’t expect the corporate media to speak for the people. It speaks for large corporations and the people who own these corporations. Some corporations want to stop trolls, and trolls only (usually the small ones, not themselves). They’re not interested in debates about patent scope, for instance (the owner of the Washington Post brings software patents even to Europe).
Speaking of software patents, Seyfarth Shaw LLP (i.e. patent lawyers) only ever covers Alice v. CLS Bank by cherry-picking cases where the case leaves software patents in tact. Here is the latest example of this pattern (article by Patrick T. Muffo).
“They are trying to work around the rules and maybe bamboozle/trick patent examiners, if not just offend their intelligence in order to get their way.”Jacek Wnuk from Lewis Roca Rothgerber (lawyers again) is again giving tips [1, 2] like “Strategies to Increase Probability of Obtaining a Software Patent”. They are trying to work around the rules and maybe bamboozle/trick patent examiners, if not just offend their intelligence in order to get their way. Joe Bird from Bradley Arant Boult Cummings LLP does the same thing and he has just reposted in another lawyers’ site some of his ‘tricks’.
To quote some examples of ‘tricks’: “First, any invention or patent claim that sounds like it might be interpreted as falling under one of the four categories of abstract ideas identified above should be approached by a patent practitioner with careful eye toward addition of inventive concepts to the claims.”
“…a patent practitioner can effectively boost his/her odds of obtaining and keeping an issued patent at the drafting, prosecution, and litigation stages.”
–Patent lawyerSo what they are saying is that it’s merely the art of misleading with words, not actually changing what you wish to be covered by a patent. In conclusion it says: “Successfully patenting processes and systems with software elements can often be difficult due to the continuing vagueness surrounding the “abstract idea” patentability exception and the newer “something more” inquiry, but can be very rewarding if the patent ultimately issues, paving the way for paid licensing agreements, cross-licensing agreements, and infringement protection. By keeping a close eye on cases decided by the Supreme Court and Federal Circuit, and on examples and guidance provided by the USPTO, a patent practitioner can effectively boost his/her odds of obtaining and keeping an issued patent at the drafting, prosecution, and litigation stages.”
When will media like the Washington Post begin a serious debate about patent scope? When will it stop pushing the agenda of large tax-dodging corporations that not only patent software in the US but also in Europe? When will people realise that the corporate media isn’t actually interested in a real patent reform but just like Les Échos would rather protect those in power? █
“Amazon Chief’s Deal [to buy Washington Post for $250 million] Doesn’t Involve Online Retailer but Shows Media Power Shift [to incredibly rich people]“
–Wall Street Journal, owned by another billionaire, Rupert Murdoch
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Patent systems without boundaries become utterly meaningless, ripe for abuse
Summary: Software patentability and other undesirable patents in the US (as viewed by various Web sites), plus some timely commentary about the lessons the EPO must learn from the mistakes of the US, where patent trolls are now a massive epidemic
THE wrath of patent lawyers is rather telling. They are upset that Alice is ruining their so-called ‘business’ and they attempt to find workarounds, urging fellow patent lawyers to do the same. Gene Quinn, one of the loudest proponents of software patents, is still quite loud about it. These patent lawyers and boosters of software patents openly express their sheer worry about where things are going for software patents (hence their parasitic business) after Alice. It’s expected. “One might think,” Quinn writes, “that just about everything that can be said about Alice has already been said, but that is unfortunately not the case.”
“They are striving to change the status quo by changing perceptions.”Actually, what we appear to be seeing since the ruling (nearly a year and a half ago) is thousands of patent lawyers babbling about it and saturating the media with spin. They are striving to change the status quo by changing perceptions. Watch Quinn speaking to other boosters of software patents so as to spread yet more pro-software patents views in the media, just like IAM does.
No doubt the USPTO still allows patents on some software, including some in my research area, imaging technology. To quote this one new blog post, “USPTO Awards Additional Patent to E-ImageData Relating to its Digital Microform Imaging Technology. In a new development in the patent and trademark world, the United States Patent and Trademark Office issued an additional U.S. Patent to E-ImageData relating to its digital microform imaging technology (U.S. Patent No. 9,179,019). E-ImageData is a renowned name in the field of Imaging Data Technology which is powering most prestigious libraries and private companies across the globe.”
“What does the presence of so many patent trolls tell us about the US patent system?”Notice how quickly the patent numbers are rising (approaching 10 million). It’s not bizarre given that around 92% of patent applications in the US are eventually accepted. This just serves to show how ludicrous it has become and the EPO under Battistelli goes down a similar route right now (patents on life too are being accepted, not to mention software patents).
There are new debates about patents’ impact on or correlation to the US economy. These will be focused on patent trolls. What does the presence of so many patent trolls tell us about the US patent system? This new blog post says that “Texas Emerges as the Favorite Place for Patent Trolls this Year” (as usual). To quote: “Texas Emerges as the Favorite Place for Patent Trolls this Year. Patent trolling is common but emergence of nearly half of all patent case filings from a single federal court district in a remote part of the country is something that is uncommon and unusual. But, same is the case with East Texas which has emerged as the single largest battle ground for most of the patent infringement lawsuits filed by various players and companies in the United States. According to reports around 44 percent of patent lawsuits have been filed in the Eastern District of Texas Court alone in this financial year which is a point to consider.”
“We are going to say a lot more about patent scope in Europe and its impact.”The sad thing is that there is hardly any talk anymore about US patent reform and the SCOTUS has just formally sided with patent monopolies by rejecting an appeal. To quote yesterday’s report from Reuters: “The U.S. Supreme Court on Monday rejected an appeal filed by manufacturers of liquid crystal displays that are contesting claims that they infringe on a patent held by Eidos Display.”
Where does it all leave us? Well, we spoke to a former EPO patent examiner, who told us it had become a big issue. This examiner wanted to send us a scanned version of Chapter 3 from the following recent book, which he thinks should generally interest us. “The title says it all,” said this person, “Exclusions from Patentability — How Far Has the European Patent Office Eroded Boundaries?”
We are going to say a lot more about patent scope in Europe and its impact. We shall do so some time in the near future. There are currently more urgent articles about the EPO in our pipeline. █
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Photo source: Brian J. Love’s official page
Summary: Analysis regarding patent trolls explains why Europe is so different from the United States and shows that academics think differently from patent lawyers, who basically monetise patent chaos
A new paper, titled “Patent Assertion Entities in Europe”, is about to be published and presented by Brian J. Love from Santa Clara University School of Law, Christian Helmers, Fabian Gaessler, and Maximilian Ernicke (the latter are associated with European universities or other institutions). It has already been mentioned by James Bessen (prolific and influential writer in this area [1, 2, 3, 4]) and opponents of software patents and patent trolls in Europe (to whom the EPO is increasingly helping). The paper’s asbstract is as follows: “This book chapter presents the findings of an empirical study of U.K. and German patent litigation involving patent assertion entities (PAEs). Overall, we find that PAEs account for roughly ten percent of patent suits filed in these countries during the time periods covered by our study: 2000-2013 for the UK and 2000-2008 for Germany. We also present a variety of additional data on the characteristics of European PAE suits and PAE-asserted patents and, finally, consider what our findings suggest are the most important reasons PAEs tend to avoid European courts. We conclude that, while many factors likely contribute to the relative scarcity of PAEs in Europe, the continent’s fee-shifting regimes stand out as a key deterrent to patent monetization.”
“We conclude that, while many factors likely contribute to the relative scarcity of PAEs in Europe, the continent’s fee-shifting regimes stand out as a key deterrent to patent monetization.”
–Brian J. Love et alWe hope that decision-making politicians will pay attention to this; the patent maximalists from IAM (profiting from anarchic wars over patents) call the European patent troll Sisvel [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12] an “NPE”. Why are they calling a troll “NPE”? Because they try to legitimise the status quo and make what they profit a lot from seem acceptable. Sisvel is an Italian patent troll which we previously called the "European Patent Mafia" and a “German court awards injunction to [this troll] in first post-Huawei v ZTE standard essential patent decision,” according to this article. It’s based on a new announcement and it says: “A press release sent out this afternoon by German law firm Arnold Ruess reveals that its client Sisvel, the Italian patent licensing business, has secured a significant victory in the German courts. In the country’s first decision relating to FRAND and standards essential patents (SEPs) since the European Court of Justice’s judgment in the Huawei v ZTE case, Sisvel has been granted injunctions after the Düsseldorf Regional Court found that its patents had been infringed by Chinese company Haier.”
Meanwhile, other patent lawyers also try to defend patent trolls (or NPEs as the lawyers call them). Here is one who will be “speaking at the upcoming IAM Patent Law and Policy event on November 17, 2015, in Washington, DC.” She dismisses the labeling/stereotyping of many notorious entities, insisting that they are not patent trolls. To quote:
The “patent troll” narrative — fueled by anecdotal tales of mom-and-pop operations snared by fraudulent patent suits and the image of ugly green trolls paraded from the House floor to the White House – became the conventional wisdom on patents almost overnight. As readers of IPWatchdog know well, the only “data” offered to support the narrative were compiled from surveys with unscientific methodologies, nonrandomized survey bases and ill-defined notions of a “troll” that swept in universities, small inventors and anyone who owned a patent but didn’t manufacture, market and distribute the related product.
Well, that is by definition a patent troll. We have seen patent lawyers and trolls’ apologists insisting that even world’s largest patent troll (Intellectual Ventures) is not a patent troll. That was some days ago in Twitter; it happened as a result of this article of ours. Software patents boosters (profiteers or proponents who are patent lawyers) define “trolls” the way that suits their financial agenda and if terminology was left for them to decide on, no patent sharks and patent trolls would exist at all. They already distort popular languages and legal terminology with a lot of their euphemisms. Should we continue to let them have their way? Brian J. Love refers to patent trolls as “PAEs”, but why not use familiar (and popular) terms like “patent trolls”? Do these not sound professional enough? Will a peer review process suppress these?
“Software patents boosters (profiteers or proponents who are patent lawyers) define “trolls” the way that suits their financial agenda and if terminology was left for them to decide on, no patent sharks and patent trolls would exist at all.”The US has a very serious patent trolls problem. Public discourse including politicians and a top judge use the term “patent trolls”. Let’s insist on the use of this term. “Lawyers rank East Texas as worst jurisdiction in US,” wrote a patent trolls opposition group, “based on judges’ low impartiality scores.” The EFF hopes to shut it down, but patent lawyers just keep pretending that no such problem exist. They refuse to even use the term “patent trolls”.
GOP-centric sites are meanwhile trying to frame patent aggressors like Apple as the victims of patent trolls, with narratives like this one which says: “Remember how one small business spent $100,000 to tackle a single frivolous patent lawsuit? Imagine being Apple, which has to deal with over 800 of them every year. That means that if Apple fought every single one of those and won, it’d still spend close to $80 million. In fact, even paying a lowball settlement cost for such lawsuits would still end up costing millions. That’s millions of dollars that could be spent on jobs or research and development every year.”
The reality of the matter is, the principal victims of patent trolls are small businesses and groups of software developers, to whom an attack by one single troll can be the cause of bankruptcy. We shouldn’t let patent lawyers dominate the media and claim that patent trolls don’t exist and aren’t a problem of high severity. They most certainty are, and their weapon of choice is software patents. █
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How far can patents go?
Summary: A quick look at some news regarding the US patent system, where the quality of patents is notoriously low and patent aggression is exceedingly common
“Qualcomm’s stock drops 15% on earnings forecast,” said this headline a few days ago. The reason? “Qualcomm’s shares dropped 15 percent Thursday after the San Diego wireless chipmaker lowered its profit forecast for next year because of problems collecting patent royalties in China.”
When and if a company is so dependent on patents, maybe there is something wrong with the company. Qualcomm became internationally notorious for its practices with patents (we wrote a great deal about it), so this is just the latest example of patent-created bubbles.
“When and if a company is so dependent on patents, maybe there is something wrong with the company.”Another new article, authored by Glyn Moody, was titled “Will Molecular Biology’s Most Important Discovery In Years Be Ruined By Patents?”
Moody, a former Cambridge mathematician, already wrote a whole book on this subject. Moody’s piece says that “[a]s the Boston Review rightly points out, the Broad Institute patent is problematic for several reasons. It is very general, and lays claim to using CRISPR-Cas to edit all animal and plant DNA. The Broad Institute has granted an exclusive license for therapeutic applications, which means that the company concerned has a monopoly on what is expected to be one of the most important areas for CRISPR-Cas. Any other company wanting to use the technique, even for non-therapeutic work, must pay for a license.”
Sadly, even in the EPO things like these are increasingly being viewed as patentable, in defiance of the premise of the patent system. Europe could soon end up adopting all the same decisions that the US did, including those decisions which now bring patent trolls to Europe.
As one Twitter account citing Patent Buddy put it, “patent examiners are not obligated to check if an invention already exists.”
“This defies logic,” it rightly added, linking to this video from the Web site of the USPTO itself. Google and Dropbox, in the mean time, “plea to end patent suit ‘forum shopping’,” according to patent lawyers’ media. This plea “includes many of the largest US tech companies” and it is “aiming to end patent suit ‘forum shopping’ at the Eastern District of Texas.”
Others large companies in this group are Adobe, ASUS, and eBay. They are evidently not happy with how things are going, especially in the Eastern District of Texas, which the EFF is trying to put an end to. █
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Summary: A call for USPTO staff to blow the whistle if misconduct is known and the public needs to know about it
ANY system which maximises profit by granting ‘weapons’ typically wants more conflict. Just like it’s true for the war/defence/arms industry, it is true for the patents industry. Legal wars are a form of war and some people become incredibly rich in the process, irrespective of the outcome.
Patent systems tend to be restrained by a system that is independent from them and decides what is patentable (based on public interest), but what happens when this restraint is removed, corrupted, or made complicit with (or dependent on) the subject of restraint?
“Legal wars are a form of war and some people become incredibly rich in the process, irrespective of the outcome.”A war between Apple and Android continues to rage, as covered by Florian Müller the other day. It was also covered in the media, based on the original opinion
[PDF]. “Goes to show,” one person wrote, “the USPTO is broken (check it out: The USPTO is Broken: New Evidence by Dr. Roy Schestowitz).”
As longtime readers may know, the USPTO is no friend of ours because it’s where many of the world’s patent trolls (and software patents) come from. It’s also easily corruptible by large corporations, which are often running it (worse in that regard than the EPO). A noteworthy fact: USPTO search is powered by Microsoft (is Google not good enough?), which makes one wonder if the USPTO in bed with Microsoft just like EPO.
A source wrote to us regarding what this source called “USPTO corruption”, citing this older article of ours.
Amidst all these exposés of the EPO we don’t want readers to just assume that the USPTO is much better; perhaps it just needs more whistleblowers. We wrote about USPTO corruption just earlier this year and as we wrote at the time, the USPTO’s “attempted cover-up attempts show that rather than deal with the abuses the USPTO became very much complicit.”
“My invention,” told us our source, “was publicly disclosed on a website/book/video [but then] was stolen and a bunch of guys got a patent on them in less than a year. How can the patent examiner [have] missed these prior arts? The examiner allowed the patent to be expedited because USPTO got paid extra money. Also USPTO is corrupt because it easily allows patent to get approved without doing a thorough search on prior art. USPTO wants people to file for reexamination to invalidate patents that cost on average $16,000. Or even worse they want people to go on litigation for the sake of profit.”
We have been covering similar abuses recently, in relation to the EPO, where there is a fast track for special 'partners' (inevitably with no proper prior art search). Leaked evidence (in the form of a documents) makes it unmistakably the case rather than suspicion alone.
We would very much like to start a similar series about abuses by the USPTO, but we have been waiting for people with information like the above to come forward.
People are invited to anonymously provide us any additional details (including documents if any) to allow us to write more about this topic. The unfairness of these systems ought to end. A lot of patent lawyers have been very interested in finding out what the EPO does wrong; perhaps the USPTO too has a lot of ‘dirty laundry’. █
“Software patents have been nothing but trouble for innovation. We the software engineers know this, yet we actually have full-blown posters in our break-room showcasing the individual engineers who came up with something we were able to push through the USPTO. Individually, we pretty much all consider the software-patent showcase poster to be a colossal joke.” —Kelledin, PLI: State Street Overruled… PERIOD
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Summary: The Electronic Frontier Foundation (EFF) asks the Court of Appeals for the Federal Circuit (CAFC) to do something about the capital of patent trolls, which have become symptomatic of the problems with the US patent system
THE USPTO has become notorious for many reasons, one of which is its role in producing a plethora of patent trolls, equipped with software patents. Texas too has become notorious for many reasons (education quality, police brutality, gun crime etc.) but one that is relevant to us pertains to patent trolls as well. The Eastern District of Texas is unique in this regard because it’s now known as the capital of patent trolls and very little apart from that. There is already an international reputation for this.
According to this recent article, the EFF asks for a shutdown of this trolls’ docket because almost nothing but patent trolls comes from/to there anyway. To quote one of the earliest articles on this subject:
The Electronic Frontier Foundation and Public Knowledge have asked a federal appeals court to make big changes to the rules governing venue in patent cases. The two public interest groups are seeking to file an amicus brief (PDF) which attacks the Eastern District of Texas as being one of the “most notorious situations of forum shopping in recent history.”
The opportunity came up in a case where an Indiana company called TC Heartland was sued by Kraft Foods for infringing three Kraft patents on “liquid water enhancers.” Kraft sued TC Heartland in Delaware; TC Heartland asked the judge for a transfer to Indiana, but was shot down.
TC Heartland has appealed the venue decision to the US Court of Appeals for the Federal Circuit, which handles all patent appeals. It’s asking the court to overturn entirely a 1990 case that has made it easy for patent holders to sue in just about any district they choose.
The US Court of Appeals for the Federal Circuit is itself part of the problem. Asking it to remark on or reform the Eastern District of Texas is perhaps wishful thinking.
Mike from TechDirt remarked as follows: “It’s been nearly ten years since we first wrote about the East Texas district court, based in Marshall, Texas, (and Tyler, Texas) and the fact that patent trolls have been flooding that court with cases. The trolls claimed they liked East Texas because the judges worked quickly and because they “understood” patent issues. The reality, of course, is that East Texas became notorious for a few judges who were insanely pro-patent troll, and ran their cases in a manner that helped out trolls immensely. It’s become a cottage industry, leading to some weird situations, such as the time that Tivo (involved in a patent lawsuit at the time) literally bought a bull right in Marshall, Texas. Perhaps no company has “invested” more in winning over folks in Marshall than Samsung, which not only sponsored the local ice rink, but also gives scholarships to high schoolers there, donates to local schools and takes kids on semiconductor factory tours — all out of the kindness of its corporate heart, no doubt.”
Whether the EFF succeeds here or not, it sure helps raise awareness of a problem that cannot and will not be ignored. Here in Europe, where the EPO already perturbs patent laws, patent trolls gradually nest and even attack. █
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