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06.16.20

The ‘Stronger’ Patents Act (STRONGER Patents Act of 2019) Killed by Coronavirus

Posted in America, Law, Patents at 5:03 am by Dr. Roy Schestowitz

Long live the SCOTUS determination on Alice

EFF on STRONGER Patents Act of 2019

Summary: The STRONGER Patents Act of 2019 (or 2018, or even 2017) is nowhere to be seen this year; it’s safe to say that all momentum is gone now, along with the push to bring software patents back

THE situation in the US isn’t too encouraging when it comes to patents. It’s not so discouraging, either. Basically, the USPTO carries on granting many software patents in defiance of 35 U.S.C. § 101. Yesterday Patently-O said that “[i]t is a slow patent news day,” albeit we found quite a few items and put them in Daily Links. For instance, there was this bounty against a patent troll with a “patent [that] generally relates to a customer computer and vendor computer that are interconnected by means of a network.” (Abstract? Seems likely.)

“We just didn’t envision something like COVID-19 coming along, in effect ending all hope and suspending any remaining ‘progress’ that the lobbyists were claiming.”Due to our focus on the EPO we haven’t been covering American patent affairs lately (barely at all this year, except in Daily Links), but this is likely a positive thing. What we post is typically reactionary, i.e. a response to displeasing things such as falsehoods and injustices. From what we can gather, based on recent court outcomes, software patents aren’t coming back to the US any time soon. Remember how last summer there was an effort to make patents even weaker with a bill called “STRONGER”? Where is that now? After 3 consecutive summers, this time around nothing is even being tabled to that effect. It’s dead. It’s finished. Just as we predicted all along.

Does this surprise us? Not at all. We just didn’t envision something like COVID-19 coming along, in effect ending all hope and suspending any remaining ‘progress’ that the lobbyists were claiming. Big law firms reportedly cut salaries and lay people off. This means fewer lawsuits and it is likely also caused by fewer lawsuits being filed. As one site put it: “Major law firms have been attempting to manage their expenses by using the cost-cutting measures of salary cuts and benefits reductions, and some have even gone so far as to conduct furloughs and layoffs.”

05.22.20

How Surveillance Works: A Primer

Posted in America, Law, Security at 12:37 am by Guest Editorial Team

Article by figosdev

Echelon radar

Summary: “We are expected to carry around devices that violate our rights and deprive us of liberty, against our wishes and despite reasonable and valid protest. These devices take something sacred from us — they are an attack on our humanity, and they make us live more like livestock.”

First, there are years of protests against unfair treatment by governing bodies — kings, queens, dictators, corrupt legislatures, fascist landholders, slaveowners, whatever.

Then everybody with a stake in the corrupt system comes out to make excuses: they’re just doing their job, it isn’t easy to make everybody happy; the people are unreasonable and don’t know any better, it’s all for the better good of safety and being fair; it’s only because of these enemies of ours, etc.

Some details will differ of course, they always do. Some won’t.

For years, enough people are convinced to shut up by the media, and by friends and family. Someone always sides with the rulers — it feels safer. Others don’t have enough information or energy to say differently. Many are cautious, due to political pressure from whomever they have to answer to in life. Lots of people find their own ways to protest the injustice. Some lose all faith in government and become anarchists.

Over time, the government ratchets up surveillance more and more. This is how governments tend do to things — when something doesn’t work, do it more until it falls over. Increased surveillance leads to an increase of laws and an increase in prosecution.

It also leads to the realisation that no matter what laws and consequences you throw at people (even torture and death) that controlling them in theory (that’s the point of systems of control, after all) and controlling them in practice are different things. As in Chrichton’s “Jurassic Park”, chaos and unintended consequences increase until the system collapses or is significantly breached.

Sane systems reform, though “Power doesn’t listen”, and arrogance doesn’t listen either. Systems that are built on details without a bigger picture, judgement without sufficient mercy, and passion without any principles ultimately self-destruct, but they produce many people who are willing to help. Opposite systems, which are built on a big picture without sufficient details, mercy without judgement, or principles without passion, never quite get off the ground.

“Sane systems reform, though “Power doesn’t listen”, and arrogance doesn’t listen either.”Sustainability comes through the balance of these things — the Third Reich, as Mike Godwin’s favourite example, was bound to fall under its own unsustainable nature. But it did plenty of harm before that finally happened.

Eventually, a revolution takes place. The government becomes so overbearing or impoverished that the political squalor representing the best it has to offer is no longer worth living in, and people decide they would rather fight at all costs than continue in the same way. By now, the system has taken too much of everything, and only strained, fallacious benefits (“If you comply, we will beat you less!”) remain.

Revolutions either fail and postpone the next revolution, kill off everyone interested in fighting, or they succeed and put new people in charge of figuring out what the hell to do afterwards.

In a rare ideal, “The People” are put in charge to somehow “rule themselves”. Some details will differ of course, they always do. If the revolution was truly successful, then the next regime (assuming there is one) will be kinder to the rights of people than the previous. This is not always what happens, though it is in many ways an ideal.

Over the decades or even centuries, tragedies happen. Each tragedy causes everyone to regroup and try to figure out how they can minimise the current tragedy, or the next one like it.

Some plan whatever they’re able while doing their best to respect ideals and freedoms — others seem to invariably throw that out the window and blame “excess freedoms” for whatever disaster took place.

In light of the current disaster, I’ve already said that being free doesn’t need to negate responsibility or sanity. People can get together and decide that everybody would do better to stay indoors. How they go about enforcing it and other details make all the difference.

Whether the precautions are reasonable or not really is a matter for a debate. But if they get it wrong, more people die. (Most of us would like to minimise that). I haven’t come to any conclusions on the best course of action — freedom and safety both matter, and they are going to be in tension with each other at times. Freedom is lost when its importance is forgotten.

Conspiracy theorists love the Reichstag fire, because it was a situation where it’s historically accepted that authorities attacked their own “side” to justify extreme action. The fact that false flag attacks exist means that whenever there is a tragedy, some people are going to try to prove that it was deliberately caused by the same people charged with responding to it.

Other historical tragedies that led to changes in authority (or wartime status) include the Twin Tower attacks, Pearl Harbor and the Titanic disaster. I’ve personally heard people crediting the formation of the FCC with the Titanic sinking — the details differ slightly.

“A name you don’t hear as often as Assange, Manning or Snowden is William Binney. Binney is also an NSA whistleblower, but he has taken extra care to only speak out about things that he can legally get away with saying.”The FCC was a replacement for the Federal Radio Commission, itself established by the Radio Act of 1927, which succeeded the Radio Act of 1912, which brought the United States into greater accordance with other radio experts shortly after the Titanic disaster.

My hope is that people interested in history and standing against authority will continue to look for the real causes of authoritarian power grabs. As I’ve said before, the difference between journalism and conspiracy theory is usually how shallow or careful the methodology is.

Instead of getting too excited about finding mere connections, my hope is that people would then continue to test their theories, like science does. You can put your wild findings into a feedback loop, where plain noise gets louder and louder until it turns into a deafening but meaningless signal — or you can keep checking your findings to see if they really hold up to logic.

When science finds something strange or wonderful, it doesn’t stop there. It keeps checking, to be sure it’s right — not to “prove” it, but to be sure a mistake wasn’t made. To some extent, journalists do this as well. Academic historians are generally required to. People don’t always agree, because it is an ongoing process of discovering new evidence and putting it through the wringer.

Though tragedies and attacks are not likely all false flag events, the Reichstag fire was certainly not the only example of its kind. A quick trip to Wikipedia brings up the creation of the state of Manchukuo, after the seize of Manchuria was justified as a response to a pre-planned railway explosion.

Overreaching power grabs do happen, whether as a response to “faked” events or genuinely unexpected ones. While a false flag event certainly adds to the intrigue and the gall of those making the grab, overreaching power grabs and freedom are at odds regardless of the nature of a tragedy. The tragedy is the excuse, but the grab succeeds in part because people are too hasty to reconsider giving up their own rights in the middle of a disaster.

Invariably you will have historians, educators and activists, such as Richard Stallman speak out against such power plays. You’ll have whistleblowers like Julian Assange, Chelsea Manning, Edward Snowden or Reality Winner to expose the hypocrisy that often underlies the real nature of such power and corruption.

A name you don’t hear as often as Assange, Manning or Snowden is William Binney. Binney is also an NSA whistleblower, but he has taken extra care to only speak out about things that he can legally get away with saying.

Binney has spoken out against illegal, mass surveillance along three different lines of critique: it’s less effective, it’s more expensive (or more profitable for contractors) and it’s unconstitutional. The fact that it’s unconstitutional means that what they’re doing is illegal — but as many lament, in order to prove it’s illegal it has to be possible to prove it, and with everyone with sufficient authority to prove it with testimony being forbidden from talking about it, it’s nearly impossible to prove.

Nonetheless, when asked what the people should do, Binney has responded “I think we should indict them. What they’re doing is illegal.” When asked why they’re doing mass surveillance, Binney responded “Population control.” He could have meant the reduction of the population, as some will assume, or he could have meant controlling the population in the way a prison population is controlled. Either way, to borrow a phrase from a certain American president, it’s “Not nice”.

“When asked why they’re doing mass surveillance, Binney responded “Population control.” He could have meant the reduction of the population, as some will assume, or he could have meant controlling the population in the way a prison population is controlled.”So after a glimpse of how surveillance works politically, how does it work technically?

Traditionally, it comes from people watching targets and overhearing their conversations — and from learning about their routines. This can be done in person or electronically, using various types of microphones or tapped lines. Just like any creepy stalker, spies can learn a lot about a person’s routines from a simple pair of binoculars. But some people under state surveillance are followed closely enough that binoculars aren’t always necessary.

Some forms of line tapping can be heard, due to changes in current on the line. Today, most telecommunications go through either radio transmission or fiber optic transmission at some stage — which are less likely to produce an audible effect (especially when the transmission of such data is digital). Well over a decade ago, the USS Jimmy Carter was modified to tap undersea cables. I won’t ever do business with AT&T, because of how readily they assisted the government in illegally tapping American communications in room 641A.

Although you have to be important enough to have someone assigned to you, people still do surveillance the old-fashioned way, like the Stasi did in East Germany or the CIA or James Bond are known to do.

Although I strongly disagree with what’s being done to most of the population, I don’t have a problem with the fact that spying exists. I love James Bond. When it’s easy to tell who the bad guys are (the ones trying to kill us) and who the good guys are (the ones trying to stop them) it’s not hard to love a spy — especially a fictional, charming and amusing one like James Bond. When the “good” guys are doing all the things the bad guys are doing — and they’re doing it to all of us, then appreciating it becomes a lot more difficult. Richard Stallman adds this text to his emails:

    [[[To any NSA and FBI agents reading my email: please consider]]]
    [[[whether defending the US Constitution against all enemies,]]]
    [[[foreign or domestic, requires you to follow Snowden's example.]]]

Of note is that the NSA are not acting like James Bond — they’re acting more like the Stasi. This link claims you need JavaScript, but it’s lying.

“Perhaps we’ll need to zoom out a bit to get both buildings side by side in order to compare them properly and visually.”

“We obviously need to keep zooming out. The scale of what the NSA is doing compared to the “old, evil Stasi” is slowly starting to come across.”

“Zoomed out to cover large parts of the German countryside, and it’s still just NSA archives. How big is this thing anyway?”

“The way surveillance works, is by simply collecting random pieces of data. That’s it — random pieces of data. And the more you have, the more you can piece together.”Maybe comparing them to the Stasi is an understatement.

The way surveillance works, is by simply collecting random pieces of data. That’s it — random pieces of data. And the more you have, the more you can piece together. Of course if this is your job and the purpose is to stop terrorists, you actually don’t want a dataset the size of a continent. You want it narrower than that. This is easier to work with, and nicest of all it’s more constitutional. But it’s also more cost effective, which means that somebody profits less.

Although I think the EFF has sold out, their older work with browser fingerprinting really helps you understand the bottom line of all this. You have little bits of data sloughing off everything you do, which traditionally nothing is done with — the reason you don’t have someone from the government trailing you all the time is that you aren’t worthwhile to them.

It’s nice when (like James Bond) they only intrude like this on the lives of the real bad guys. After all, surveillance routinely brings innocent civilians closer to the line of fire — and too often leads to raids where someone completely uninvolved is killed:

“The police in New York City
They chased a boy right through the park
In a case of mistaken identity
They put a bullet through his heart”

Rolling Stones, “Doo Doo Doo Doo Doo (Heartbreaker)” (1973)

But they don’t only do this to the bad guys — Hoover’s take on American “subversives” in the 1940s for example, greatly exaggerated the problem and coincided with excessive and illegal wiretapping. Much more recently, The Occupy movement was under enough government surveillance that it should not be considered entirely paranoid for an activist to think it’s possible they are being watched or followed (though I would imagine it’s more likely their phone conversations and GPS movements are being scrutinised). Martin Luther King, Jr. — not exactly a bad guy — was under surveillance, for his activism and also his anti-Vietnam-war stance.

But however ridiculous it may get, we already know the amount of surveillance already being used is unconstitutional. It’s a matter of fact — what is failing to happen is that it’s not ruled against.

While few people are important enough to be assigned their very own FBI buddy, the politics do change a bit when there are enough spies (like with the Stasi) or enough electronics, like with the NSA or Google. Even in the 1940s, you had Census tabulation machines being used by the Germans to sort through groups of people more efficiently than they could ever do going through all those files by hand.

“The data is in your hair colour, name, age, operating system, web browser, screen height, favourite pizza, GPS coordinates, Wi-fi signal strength, SIM card, IMSI number, MAC address, typing speed, habitual typos, mouse movements, sleep patterns, eye movements, breathing patterns, gait, CPU clock, installed plugins, contact lists, holiday schedule, knowledge set, music preferences, browser history, the time you spend on each page on Google books, router brand, open ports, heat signature, scent, radio fingerprint…”Today, we have privacy advocates and data-mining experts doing the actual math of how many variables it takes to narrow things down to a single person — maybe there’s location data, maybe it’s just gender and first name — here’s a fun game you can make up with your friends.

How many people do you know named Bill? Let’s say it’s five. Now suppose that something happens — let’s say Bill took a flag. It doesn’t matter whose flag it is, you’re just trying to narrow it down. You consider that one or two of them were asleep at the time. One was too far away, unless he took a rocket. You’re already close enough, but you can keep playing.

People assume this only works with names or faces — it doesn’t. The narrow-it-down game which turns “unidentifiable data” into a single person on earth works with literally all kinds of data — every person on earth has a unique fingerprint. Just like famous cryptologist Fred Rogers used to say: “You are the only one like you”.

The data is in your hair colour, name, age, operating system, web browser, screen height, favourite pizza, GPS coordinates, Wi-fi signal strength, SIM card, IMSI number, MAC address, typing speed, habitual typos, mouse movements, sleep patterns, eye movements, breathing patterns, gait, CPU clock, installed plugins, contact lists, holiday schedule, knowledge set, music preferences, browser history, the time you spend on each page on Google books, router brand, open ports, heat signature, scent, radio fingerprint:

“…each transmitter (cell phones are just one type of radio transmitter) has rise time signature when first keyed caused by the slight variations of component values during manufacture…”Wikipedia on radio fingerprinting

Whether remotely or (more easily) in person, everyone is unique along so many different lines, that if like Agent J in “Men in Black” we all had a single letter “name” and removed our (literal) fingerprints, there would still be a countless number of axes along which our identities could be determined. The precise speed and direction you begin a walk with can be fed into an algorithm to determine your destination with frightening accuracy.

We are fortunate, as a society striving to be free — that no matter how frighteningly good these algorithms are, they also fail frequently. But that fact can help or hurt us, like it hurt the guy whose bicycle went through the wrong area when a crime was being committed. People who use algorithms heavily tend to rely on them increasingly, and trust them excessively. This excessive reliance and trust in algorithms can lead to great injustices, no differently than racism or sexism can lead to accusing or convicting an innocent person.

“It’s better to work towards privacy, not away from it.”But as better informed (more expert) people will tell you, the idea of “unidentifiable data” or “metadata” is incredibly misleading. “Metadata” is data, and identification happens when various islands of two or more variables are cross referenced to first narrow the possibilities down to a few people or single person, and it finally comes in contact with a piece of real-world data like location, name or physical features. If you’re 195cm tall, people don’t need your name to narrow it down to you; they just look for the tall guy. But they will need to know your geographic region.

With enough databases, we can track more people than ever before. So why isn’t it perfect? That’s just math and luck. But it’s a problem, when people have less freedom than ever before. It’s a problem when spies violate the rights of hundreds of millions of people. And William Binney is right.

Things can be done to take some of the axes of identification out of the equation. There is debate about whether this helps, though from Stallman to Snowden to Binney, the near consensus among activists is that it’s better to not give away what you don’t need to. It’s better to work towards privacy, not away from it.

On the other hand, you have people like the owners of Google, Facebook and Microsoft. They tell you it’s better to give up — it helps society, it’s pointless to try.

It’s very easy to tell which side respects your freedom, and which side profits from literally selling you out. You might be an anti-war activist like MLK or David Zucker, a digital rights activist like Richard Stallman or Mathieu Gauthier-Pilote, or you might just be some kid going to university that wants to be able to speak freely online without being threatened or harassed offline.

The lines between pro-privacy and anti-privacy are pretty clear. The importance of being pro-privacy should be as well. If we don’t stand for it, we lose too much of what belongs to us. And as people are saying, without privacy you begin to lose part of yourself.

Things will get worse, then people will get tired of it, and someday they will overthrow the oppression. But you don’t have to wait for that day, there are always some on the side of The People — from the easiest, less problematic times to the very darkest, most oppressive days. You get to choose who to support — and who you abandon. May we humbly suggest you stand against GIAFAM and mass surveillance?

We already know that most people aren’t going to yet. Look around, very few are resisting it. But it’s much more than no one.

“Robot surveillance will increase as well — not just from a room full of laser optics in an AT&T basement, but from the skies.”First, there are years of protests against unfair treatment by governing bodies — Then everybody with a stake in the corrupt system comes out to make excuses. Some details will differ of course, they always do.

Someone always sides with the rulers — it feels safer. Some lose all faith in government. Over time, the government ratchets up surveillance more and more. This is how governments tend do to things — when something doesn’t work, do it more until it falls over. Increased surveillance leads to an increase of laws and an increase in prosecution. Robot surveillance will increase as well — not just from a room full of laser optics in an AT&T basement, but from the skies.

The increases also lead to the realisation that no matter what laws and consequences you throw at people (even torture and death) that controlling them in theory (that’s the point of systems of control, after all) and controlling them in practice are different things. As in Chrichton’s Jurassic Park, chaos and unintended consequences increase until the system collapses or is significantly breached.

Some plan whatever they can while doing their best to respect ideals and freedoms. Freedom and safety both matter, and they are going to be in tension with each other at times.

Privacy is hard. Resisting surveillance is a little bit easier. Every step brings us closer to a culture of freedom, and every tiny bit of resistance takes us farther from a culture of mass surveillance. It’s not enough today — but if we keep trying anyway, it will help the world tomorrow.

This year we are still slaves — slaves of government surveillance, slaves of the people watching us, slaves of their ever-increasing expectations. We are expected to carry around devices that violate our rights and deprive us of liberty, against our wishes and despite reasonable and valid protest. These devices take something sacred from us — they are an attack on our humanity, and they make us live more like livestock. They are historical instruments of global war and international oppression, and they are not justifiable by any means. Next year, we hope that we will be truly free.

Long live rms, and happy hacking.

Licence: Creative Commons CC0 1.0 (public domain)

(Except for a few lines in quotes).

05.18.20

The Radicals Are the Patent Boosters, Not the Sceptics and Rationalists

Posted in America, Europe, Law, Patents at 8:05 pm by Dr. Roy Schestowitz

Do not fall for their projection tactics, reinforced through their propaganda sites that equate critics with “pirates” or “theft” (sometimes even leveraging the Red Scare)

Make Patents Great Again

Summary: Contrary to insulting old myths, the zealotry comes from the patent maximalists rather than antagonists of theirs (opposing monopolies on life, nature and mathematics, as per the underlying laws and rulings from the highest courts)

IN AN ARTICLE already mentioned last week in Daily Links (“Trump takes early edge over Biden on IP” [sic]) the psyche of patent zealots is made rather apparent. Political turmoil is OK as long as they get their way. That article was shelved behind a paywall, but now there’s more on that in the think tank known as “MIP” — a site that only ever speaks to (and for) patent zealots. “Fifty four in-house counsel took our survey on how the US patent pendulum has moved and how the courts and the USPTO have changed,” it says. As usual, they speak only to people who make a living from litigation (and preparation for it). “The 54 in-house lawyers who took our survey weighed in on Andrei Iancu’s appointment to director of the USPTO, the PTAB and where the patent pendulum is swinging,” it added.

“So maybe these so-called ‘IP’ counsels should put on a “MAGA” hat, join a “liberation” ‘protest’ to “reopen America” and “make patents great again” (some of these nuts already made red hats that say that).”The 35 U.S.C. § 101-hostile USPTO Donald Trump crony Iancu has been what we once called “American Battistelli” (and António Campinos is of course much of the same). These people never met a patent troll they did not like or a patent they didn’t approve of. They’re patent maximalists. Just like the people surveyed by MIP, which has just said: “In part one, more lawyers thought President Donald Trump’s views on IP were better for their business than those of the Democratic Party’s Joe Biden, but the majority of respondents said either that they ‘didn’t know’ whose IP views among the two men would be better for their businesses or that neither’s were. And while most counsel said the US is not too patent friendly, they were divided on how the pendulum is swinging.”

When the term “patent friendly” is thrown around they basically refer to leniency or deviation from the law. Granting lots of fake patents would be “patent friendly” whereas adherence to underlying laws/science would be a “patent-unfriendly” approach.

So maybe these so-called ‘IP’ counsels should put on a “MAGA” hat, join a “liberation” ‘protests’ to “reopen America” and “make patents great again” (some of these nuts already made red hats that say that or don cowboy hats).

In the meantime, to us at least, sites like MIP and the people they front for (like those counsels and patent trolls) will be seen as a major problem. Sadly, as we’ve been explaining for months if not years (even this past Sunday), the other site founded by a scholar (founder of MIP and IP Kat) is still boosting Battistelli’s CEIPI (as recently as yesterday) and all we’re left with for actual signal are the comments. Here’s a new one hypothetically quoting NGOs regarding the latest EBA (EPO Enlarged Board of Appeal) outcome “because there should be no patents on life”. It focuses on Rule 28(2):

Also, did anyone think about how Rule 28(2) is supposed to work in practice?

The method of making a product (a plant) is now decisive for the patentability of that product, while at the same time this method of making the product has no direct impact on the features of the product.

A plant is patentable if the causal mutation was induced. The same plant is not patentable if the causal mutation was “merely” identified in an existing plant. In the latter case, the causal mutation could still originally have been the result of induced mutagenesis, since untargeted mutagenesis techniques have been common in plant breeding for decades and have induced countless background mutations.

Just to give a practical example: say I have identified a new and inventive trait in an existing plant. This plant is not patentable under Rule 28(2). I identify the causal mutation and file a patent application claiming the same plant and provide an enabling disclosure to obtain said plant by induced mutagenesis. Now, exactly the same plant claim is patentable under the EPC. There is no obligation to disclose how a given trait was originally obtained (provided that the plant is not regulated as a GMO). There is only an obligation to provide an enabling disclosure. The disclosure requirement is met by describing the mutagenesis method. The knowledge that a native trait exists which has the same effect as the man-made trait can be kept secret without further ado.

The blessing of Rule 28(2) by the Enlarged Board is a bad joke, which will only lead to creative patent drafting and subsequent outcries by NGOs that the agrochemical industry is still patenting plants that should not be patentable (“because there should be no patents on life”).

A requirement to disclaim plants exclusively obtained by an essentially biological method does not remove the fundamental flaws in Rule 28(2). A claim directed to a plant “with the proviso that the plant is not exclusively obtained by means of an essentially biological process” only disclaims plant that do not comprise any induced mutations. Who can realistically argue that a given domesticated plant does not comprise any induced mutations? (I refer to the decades-long use of untargeted mutagenesis techniques in plant breeding.)

And what about patent infringement? An assumed infringer can (and will) state to his or her defense that he/she did not use induced mutagenesis. He/she simply crossed plants (most likely obtained from the patent holder) and obtained a new plant variety exclusively by using an essentially biological method. It is simply not possible to determine whether a given mutation was originally induced or occurred spontaneously. Would this scenario be confirmed in infringement proceedings, all plant patents have become worthless even if the patented trait has been obtained by technical mutagenesis techniques like gene editing. I sometimes believe that this scenario is exactly the objective of certain supporters of Rule 28(2) since they truly believe that patents in general and particularly plant patents are bad for society.

Plant breeding has developed from an unreproducible process of chance to a technical process that is reproducible, and which can be described in such way that it can be reworked by a person skilled in the art. The proper IP [sic] right [sic] to protect technical processes and the products obtained by technical processes are patents. I do not see any valid reason why (bio)technology in plant breeding should be regarded differently than, let’s say, in medicine. Despite the fact that the development of plant breeding into a biotechnology process is regarded undesirable by many, this can neither be negated nor reversed. Certainly not by the implementation of Rule 28(2).

We already wrote about it 4 times in recent days [1, 2, 3, 4]. The very fact that blogs like Patent Docs constantly lobby for patents on life (maybe a quarter of the total posts there) says a lot. There are even dedicated sites for such lobbying, one of which being/acting as a ‘sister’ site of WIPR. They use nonsensical terms like “life science”…

All those litigation think tanks disguised as news sites (check their ownership!) sort of sicken us. They sicken society. And once we all get sick they hope to profit by selling us patented drugs at 1,000 times (or more) the price of manufacturing. Making prices “great again…”

05.09.20

EFF Should Also Speak About the EPO Granting Software Patents Against the Law

Posted in America, Courtroom, EFF, Europe, Law, Patents at 5:47 am by Dr. Roy Schestowitz

Related: USPTO and EPO Openly Brag About Breaking the (Case)Law to Grant Software Patents That Courts Would Reject, Even the Very Highest Courts

Software patents and AI patents

Summary: While it’s commendable and very much appreciated that the EFF opposes software patents in the US, it has truly missed the boat, which is the crossing of the Atlantic by EPO practices, reframing software patents as something they’re not (or mindless buzzwords)

THE ABOVE-MENTIONED article already took note of similiarities if not overlaps in the way the main system in Europe and in the sole one in the US generally bypass the law itself. We continue to worry that the EFF ignores European Patent Office (EPO) abuse by António Campinos and Benoît Battistelli — abuse which includes illegal granting of software patents in Europe. They only care about copyright policy in Europe while pocketing Google money. That money comes from surveillance — something the EFF proclaims to be against and which emboldens EFF critics. Inquisitive readers can find more rants about this in yesterday’s IRC logs.

“They only care about copyright policy in Europe while pocketing Google money.”We’re generally thankful for the EFF; it has just published, if not weeks belatedly, this blog post about misguided 35 U.S.C. § 101 guidance, designed to overcome Alice (SCOTUS) rather than integrate it into common practice. In the EFF’s own words: (it was included in Daily Links already)

In 2014, the Supreme Court decided the landmark Alice v. CLS Bank case. The Court held generic computers, performing generic computer functions, can’t make something eligible for patent protection. That shouldn’t be controversial, but it took Alice to make this important limitation on patent-eligibility crystal clear.

Last year, the Patent Office decided to work around that decision, so that the door to bogus software patents could swing open once again. The office issued new guidance telling its examiners how to avoid applying Alice. In response to that proposal, more than 1,500 of you told the Patent Office to re-consider its guidance to make sure that granted patents are limited to those that are eligible for protection under Alice. Unfortunately, the Patent Office wouldn’t do it. The office and its director, Andre Iancu, refused to adapt its guidance to match the law, even when so many members of the public demanded it.

As we said at the start of last year, this won’t change how courts deal with such patents, but how many people and companies can afford a legal battle? This especially harms individuals and small businesses. To them, spending millions of dollars on one single lawsuit makes no sense at all. So they might instead settle over patent threats which they know to be bogus, baseless, and outright frivolous.

“They redefined “certainty” in the same way EPO redefined “quality” (to mean the opposite of it).”We’ve thankfully seen some supportive feedback about the EFF’s post. The CCIA said: “The Patent Office is promoting certainty in getting patents at the expense of making issued patents far less certain, with negative impacts on manufacturers and patent owners alike.”

There’s also a blog post about it (among several others) in our Daily Links.

The EFF tweeted that USPTO “should follow Supreme Court rulings, but the office’s own data show that it’s avoiding them to issue more patents.”

They redefined “certainty” in the same way EPO redefined “quality” (to mean the opposite of it).

Why does the USPTO do this?

“The EFF does get involved in European politics and even Latin-American politics when the EFF’s paymasters request that. How many times did it write about copyright law in Europe? Like a hundred times? Yet nothing (ever) about patents…”“Because it can,” said Jan Wildeboer from Red Hat/IBM (he was a campaigner against software patents in Europe before Red Hat hired him). “The USPTO and other patent offices around the world have granted patents on a lot of things that shouldn’t deserve a 20 year monopoly.”

“USPTO is ignoring Alice, Iancu has reopened the floodgates of software patents,” Benjamin Henrion said before shaming Wildeboer into leaving IBM in protest, noting that IBM played a big if not the biggest role in lobbying for what Iancu did. Our general position is that Wildeboer can perhaps persuade the former Red Hat CEO, now a President at IBM, to change IBM’s patent policy. Time will tell if that can happen…

From what we’ve heard from Wildeboer, he is at least trying.

It would be counterproductive to shame the EFF and Wildeboer, knowing that they’re generally on our side. But we shall continue asking — as we have politely done for a long time — why the EFF refuses to comment on EPO matters. The EFF does get involved in European politics and even Latin-American politics when the EFF’s paymasters request that. How many times did it write about copyright law in Europe? Like a hundred times? Yet nothing (ever) about patents…

04.25.20

USPTO and EPO Openly Brag About Breaking the (Case)Law to Grant Software Patents That Courts Would Reject, Even the Very Highest Courts

Posted in America, Europe, Law, Patents at 7:02 am by Dr. Roy Schestowitz

Just like the EPO, the USPTO nowadays gloats and openly celebrates abandonment of patent quality (with a so-called ‘Chief Economist’ spinning that as a positive thing)

Patents, patents for everybody! Fill up the trolley!

Summary: The American (US) patent office, the world’s most important patent office, admits that it grants loads of junk patents by devising a way (unlawful guidelines) for undermining caselaw and allowing patents courts would almost certainly reject (if it came to that)

THE LONG BATTLE against software patents carries on. Progress was made over the years, good news came our way on occasions, but amid some won battles there’s still a lost war. The EPO and USPTO continue granting loads of software patents and many accused parties (defendants or those subjected to threats without an actual lawsuit) cannot afford lengthy legal battles and appeals. It can cost a couple million dollars for just one single patent if one considers the appeal routes in the US. When it comes to patents granted by the European Patent Office, the cost depends on the country or countries of enforcement.

“We’ve moved from professors of science to a bunch of so-called civil ‘servants’ who serve nobody but law firms, helping them hijack every aspect of a system originally envisioned as promoter of science.”António Campinos and his appointer lack scientific background and they never created anything, not even code. They’re just what they seem on the surface; they’re cheap and dishonest politicians. They’re manipulators.

Compared to them, the 35 U.S.C. § 101-hostile Andrei Iancu is ‘class act’. Sure, he got the job because of Donald Trump and his constant promotion of software patents (even before he netted this job) helped him. But at least he has some background in science. The same can be said about some past EPO presidents and past USPTO Directors, including Iancu’s predecessors.

“What good are patent offices that boast incredible ‘production’ where that production is basically a production of rubbish?”What happened in Europe is rather sad. We’ve moved from professors of science to a bunch of so-called civil ‘servants’ who serve nobody but law firms, helping them hijack every aspect of a system originally envisioned as promoter of science. With the UPC dead the EPO now realises that it cannot fool justice or spit in Justices’ faces. Sooner or later it spits down on them. It all comes crashing down, just like a growing number of European Patents (we’re adding some new examples of these to Daily Links).

What good are patent offices that boast incredible ‘production’ where that production is basically a production of rubbish? What good are a million patents half or more of which are of dubious quality and likely not valid (formal invalidation takes a pricey process, which must be initiated by someone).

“Obviously the law firms love it; it’s not “their problem” per se when a client gets fake patents, which turn out to be worthless.”Earlier this week we saw Janal Kalis and others mentioning the latest nonsense from the USPTO, boasting what it really ought not boast about. Instead of demonstrating that courts increasingly affirm its decisions the USPTO brags about ignoring SCOTUS and the Federal Circuit, which is a really dumb thing to do. The USPTO is telling stakeholders and applicants that it will be easier to get bogus patents, no matter their toothlessness in actual courts. They actively reduce confidence or certainly, then misuse the concept of “predictability”.

Obviously the law firms love it; it’s not “their problem” per se when a client gets fake patents, which turn out to be worthless. We know who pays the price for such a fluke; it’s not the law firms, which charge hourly…

A post by Charles Bieneman, a dedicated proponent of software patents (his whole blog is about that), said this:

According to a recent report by the USPTO’s Chief Economist, the Federal Circuit’s 2018 Berkheimer decision and the USPTO’s January 2019 patent-eligibility guidance have reduced both the frequency and uncertainty of examiners’ patent-eligibility rejections under and 35 U.S.C. § 101 and the Alice/Mayo test.

Anecdotally, for a number of months it has seemed that examiners were making fewer patent-eligibility rejections than they had been in the years following Alice. The January 2019 guidance in particular, as I wrote at the time, seemed designed to reduce Alice rejections. As this graph illustrates, that has proven to be true. Alice rejections peaked prior to Berkheimer; the USPTO points to its April 2018 memorandum modifying § 101 examination procedure in light of Berkheimer as accelerating the downward trend. But again, the dramatic downturn in patent-eligibility rejections occurred after the January 2019 guidance.

So… they’re basically encouraged to ignore the highest US court and grant bogus patents anyway.

How is that a good thing?

“How is that a good thing?”We pointed this out earlier this year after the USPTO had reported its so-called ‘results’, which showed growth in low-quality patents.

Sounds familiar? Yes, the EPO.

Eileen McDermott of Watchtroll has just published “A Look at the Data: USPTO Chief Economist Analyzes Effects of Section 101 Guidance on Predictability in New Report”

Predictability in courts?

No.

The opposite.

“Predictability in courts? No. The opposite.”Apart from parroting the talking points of Andrei Iancu, what these people do is celebrate violation of and deviation from the law.

Dennis Crouch wrote: “The chart above comes from the USPTO Chief Economist’s office and is explained in the USPTO’s new report on Post-Alice Examination of Eligibility.”

That never names this Chief Economist. In the EPO it seems to be some prop of Battistelli, whom we wrote about many times before. They’re docile and obedient to a particular agenda; neither independent nor objective. The whole thing is just a marketing charade. Their message is, send us more applications and we’ll grant lots of them!

In Twitter the USPTO wrote: “Supreme Court’s 2014 decision in Alice Corp. led to a rise in patent application rejections in certain tech areas (software). Our report shows how this trend was significantly reduced after issuance of revised patent examination guidelines in 2018 and 2019…”

“What are they hoping to accomplish here? They say nothing about the affirmation rates (as per US courts or even PTAB).”They have included a PR/marketing-type animation. Translation or meaning of it? Well, a Trump appointee is breaking the law to grant many illegal patents and fake ‘growth’…

What are they hoping to accomplish here? They say nothing about the affirmation rates (as per US courts or even PTAB). The USPTO now mimics illegal behaviour of EPO management and hardly even hides this agenda. As this response to the USPTO put it: “Your illegal guidelines are not in line with Alice. Someone should submit them to Court for a legal challenge.”

The original page says:

A new USPTO study finds that the 2014 U.S. Supreme Court decision in Alice Corp. v. CLS Bank International significantly increased the percentage of Section 101 rejections in first office actions received by patent applicants and, importantly, increased the degree of uncertainty facing applicants in the examination process. In two subsequence examiner guidance documents, the USPTO largely reversed these effects. Read more about the image below.

So basically Iancu said, ignore all those court decisions that we don’t like and only pay attention to ones that make it easy to allow software patents. How is that a good thing? This is in line with Trump era lawlessness. It’s good for trolls who prey on poor and vulnerable companies/people — a free ticket to the racket.

04.07.20

Software Patents Remain Junk Patents in the United States (Not Enforceable), Whereas the EPO Keeps Granting Them and Promoting Them

Posted in America, Courtroom, Europe, Patents at 2:37 am by Dr. Roy Schestowitz

When it comes to abstract patents, the EPO has become worse than its American counterpart because there’s no oversight

A demolition sign

Summary: We take note of the positive outcomes in the US, where courts continue to reject software patents, but in Europe the largest patent office, which sought to replace all the courts, still acts as if patent law does not exist and patents can be endlessly printed irrespective of their merit (or validity as judged by actual courts)

THE latest Daily Links (published yesterday with more to come later today) contain yet more new examples of 35 U.S.C. § 101 ‘taking out’ bad (invalid) patents granted by the U.S. Patent and Trademark Office (USPTO). Courts at all levels are rejecting such patents. District courts, the Federal Circuit, even the USPTO’s own Patent Trial and Appeal Board (PTAB), which processes inter partes reviews (IPRs) without interference from SCOTUS (this highest of all courts defended IPRs).

Alice, which soon turns 6, isn’t being challenged by SCOTUS. Yesterday someone also wrote that “SCOTUS denies cert. in INO Therapeutics v. Praxair Distribution, 19-1103, re whether a method of treatment is patent eligible.”

Alice, which soon turns 6, isn’t being challenged by SCOTUS.”“SCOTUS is not controlled by patent maximalists,” I’ve told him, “and the same goes for the Federal Circuit under Judge Sharon Prost, so there’s not much to correct…”

This kind of trend is why we almost stopped covering US patent cases around December of 2018. It was a conscious decision to focus more on the EPO, instead.

Yesterday the EPO wrote about “Videogaming” again. This is how the EPO is recklessly and shamelessly promoting illegal software patents in Europe these days [1, 2]. The EPO tweeted: “#Videogaming and IP: what are the challenges and how can you overcome them? The recording of our expert #webinar on just that is now available.”

“Next month we turn 13.5 years (we started in November 2006) and it’s clear that we have not prevented the EPO from granting illegal patents on software.”The webinar very clearly spoke about software patents, with the EU too in the mix.

The EPO then tweeted: “Which countries are innovating the most in the field of computer technology? Find out in this analysis of our latest patent statistics: https://bit.ly/DigitalisationIndex … #EPOPatentIndex”

Terms like “computer technology” or “digital technology” — in the context of patents at least — nowadays mean illegal monopolies on algorithms (more often than not or just typically). Also see this additional EPO tweet (from yesterday as well). The categories are misleading by design. Many of these are just bogus software patents that courts would toss out. This is how the EPO fakes ‘growth’; it even admits that this is the main or sole ‘growth’ area.

Next month we turn 13.5 years (we started in November 2006) and it’s clear that we have not prevented the EPO from granting illegal patents on software. They just keep changing the language they use, but the practice remains the same. So in case anyone still wonders why we focus so much on the EPO, this is why. The EPO keeps gloating about exporting these practices to other continents as well.

03.22.20

USPTO’s and EPO’s Leaderships Have Similar Technical and Ethical Problems

Posted in America, Patents at 9:25 am by Dr. Roy Schestowitz

Watchdogs speak out about it, based on information insiders have (and pass around)

A Techeye

Summary: Patent office whistleblower says that the “hey hi” (AI) hype we’ve become so accustomed to at the European Patent Office (EPO) has been misused as money gets overspent on things that don’t work (like at the EPO) and there are persistent issues like nepotism (like at the EPO)

IT was noted a few years ago that a whistleblower (ish) from the U.S. Patent and Trademark Office (USPTO) had created a Twitter account (USPTO CIO Watchdog on Twitter) and tweeted a bunch of information about nepotism and corruption at the Office. In past years we wrote a number of articles about that (including the latest appointment). The claims can be affirmed by checking the professional background of the named individuals and their spouses, in-laws etc.

One can, moreover, check downtime duration/frequency to assess the degree to which misconduct, corruption and nepotism lead to failure. Technical incompetence leads to technical issues, low morale, and bad coordination. One’s technical and professional background gives much of that away.

“It’s important to know who’s doing what.”The Twitter account doesn’t make things impersonal; it always names the culprits irrespective of gender, race etc. It’s important to know who’s doing what.

A few days ago we mentioned one nugget of information, which was soon followed by another that says CIO of “USPTO always thinks changing the process is the key to success, but, like the corporate world, results are the real measure. Debbie has no experience delivering anything, except process. CIO, after a one year road trip, what you got?”

“Notice how far this whole “hey hi” (AI) nonsense has traveled. The media brought it back to life a few years ago — seemingly out of nowhere!”This refers to a puff piece interview and there’s another from the Office’s “Marketing and Communications” person. It’s one which the Office back then mentioned as follows: “In the latest #blog, Acting Deputy CIO Debbie Stephens discusses her career as a tech executive and upcoming USPTO projects such as using artificial intelligence to fuel efficiencies in patent search…”

The whistleblower said: “We find this laughable? Tech Exec? She is one of the main reason the previous CIOs efforts failed. Millions of fee money spent with nothing to show. What new as come out since the new Dep and CIO have come aboard. AI is pipe dream, they cant write basic working apps…”

“Hey hi,”I responded, “is a rather meaningless and resurrected buzzword that the USPTO misuses to grant illegal software patents” (invalidated by 35 U.S.C. § 101). Notice how far this whole “hey hi” (AI) nonsense has traveled. The media brought it back to life a few years ago — seemingly out of nowhere!

01.02.20

Invalid Patents ‘Great Again’?

Posted in America, Patents at 10:54 am by Dr. Roy Schestowitz

Andrei Iancu putting his longtime advocacy of software patents into practice (even if it's illegal)

Disappointed

Summary: Disappointed patent recipients to come? The USPTO has apparently resumed mass allowance of bogus patents which are abstract and would therefore fail 35 U.S.C. § 101 tests in American courts

TWO blog posts caught our attention yesterday and we’ve already mentioned these in Daily Links. But these merit futher debate. They show that the U.S. Patent and Trademark Office (USPTO) disregards 35 U.S.C. § 101, dis-empowers the Patent Trial and Appeal Board (PTAB) where inter partes reviews (IPRs) remove fake patents, and leaves the Federal Circuit — an actual court — to clean up the mess.

“It’s an attack on the legal mechanisms — similar to what we’ve been witnessing at the EPO.”Shades of António Campinos (and prior to him Battistelli) at the European Patent Office (EPO). They’re using the “hey hi” (AI) hype to justify abstract software patents [1], the judges are being besieged [2], and as a result more patents are being granted [3] — irrespective of underlying legitimacy.

As we put it yesterday in Daily Links, the USPTO “lowered patent quality again (by granting loads of illegal patents such as abstract ones, using ridiculous loopholes)” and “software patents booster Michael Borella (no, he’s no coder) [wrote about] the Office cherry-picking PTAB cases so as to continue granting illegal, fake, bogus, laughable patents…”

According to Unified Patents, PTAB proceedings were down by a quarter last year, just as Iancu had planned and hoped. It’s an attack on the legal mechanisms — similar to what we’ve been witnessing at the EPO.

Related/contextual items from the news:

  1. USPTO Makes Ex Parte Linden An Informative PTAB Decision

    Moreover, the Examiner found that the claim also fails under the second step of Alice. To that point, the Examiner wrote that the claimed invention “[d]oes not amount to significantly more since it is just decoding a transcription using a mathematical formula or relationship.”

    [...]

    This case is of note because it is one of the first in which the PTAB has confirmed that a machine learning invention can be non-abstract. While the USPTO’s example 39 has suggested that one can claim a machine learning procedure without reciting any of the underlying mathematics, a mental process, or a method of organizing human activity, this decision affirms that is the case. The PTAB also seemed persuaded, based on statements made in the specification, that the claimed invention entails an improvement over previous techniques used to address the problem domain.

    Of course, a district court or the Federal Circuit might agree or disagree. But, at the very least, the reasoning herein provides a roadmap for claim drafting and prosecution that may situate an invention to pass § 101 muster in the USPTO.

  2. 2019 Patent Dispute Report – Year in Review

    Keeping with the trend of previous years, the volume of new patent disputes decreased yet again in 2019. However, the number of patent disputes involving Non-Practicing Entities (NPEs) increased by 4% compared to 2018, perhaps fueled in part by the sharp decrease in new PTAB petitions and low institution rates.

    Highlights:

    - The number of new PTAB proceedings (IPRs, CBMs, and PGRs) is down 23% compared to 2018. Meanwhile, the PTAB’s institution rate in IPRs has remained steady with trial being instituted in 62% of proceedings in 2019.

  3. How Many Patents Issued in 2019?

    New Record – 354,507 Utility Patents issued by the USPTO in 2019. The decade (2010s) also outstripped any other decade by leaps and bounds.

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