Staff of the European Patent Office (EPO) has essentially become ‘collateral’
Summary: The European Patent Office has become a servant of the rich and powerful (including large foreign corporations) and even its own employees now pay the price associated with misguided new policies (or ‘reforms’ as Battistelli habitually refers to these)
THE race to the bottom at the USPTO famously resulted in a rather defunct system — a problem officially (if not belatedly) recognised by GAO. It is now famous for patent trolls and the systematic crushing of startups (euphemistically associated with innovation). The status quo may be reasonably OK and generally acceptable for large corporations with a dedicated legal department. It’s also perfectly fine for patent law firms because when more patents get granted and there is more litigation, more money will inevitably flow their way. They are, in essence, the tax in the system or those who pocket the majority of the damages (or collateral damage).
“The status quo may be reasonably OK and generally acceptable for large corporations with a dedicated legal department.”The EPO under Battistelli is marching down the same path. It wants us to believe that the more patents, the merrier (or the more innovation). In practice, rich countries like Switzerland can better pursue (or afford to pursue) more patent applications. The system is more accessible to them because its costs are less prohibitive compared to east Europe (where the per-person salary/capital is vastly lower). Sweden is another example of this and The Local plays along in this marketing plot/ploy. What are the writers thinking and why are they doing this? The EPO did it with them a few months back, repeatedly even (when the so-called ‘results’ came out). Now they are claiming that Swedish people are “stronger [for] score in patent families [and] drives its upward movement.”
“patents != innovation,” told us a Scandinavian reader. It’s the person who sent this to us. Why are we still seeing these myths spread so widely? And why are we supposed to totally ignore intentionally hidden correlations like cause and effect (in reverse), which suggest perpetuation of monopolies and domination by means of services that are priced out of reach (to most)? That’s a rather broad discussion we covered here many times in the past.
“In return for this ‘service’, much compensation/pension money is promised (not offered) and guess who foots the bill.”In reality, the EPO currently discriminates against smaller member states and increasingly favours large corporations from other nations/continents. In return for this ‘service’, much compensation/pension money is promised (not offered) and guess who foots the bill. As the comment below put it: “The member states have agreed to foot the bill for the pensions. But this is on paper, and for pensioners the only addressee is the EPO. If the EPO unilaterally lowers the pensions, what is the recourse: at the end the ILO AT. In other words a dead end. If the EPO claims it has no money, it cannot be condemned to print it.”
As we stated before, there is apparent clawback already. Here is the comment in its entirety — a comment which was posted in relation to a long discussion about the promise of benefits to EPO staff (past, present and future):
One should not become paranoiac and think that money could go some political party in France. This is going too far.
It is however not the first time that the shear value of the RFPSS has given some appetite to the AC. In drawing out money out of the fund, the procedural fees could be kept constant for quite a while, if not lowered drastically. Then, with more crap patents granted as suggested in Berlin, more annual fees would come in. Who would be the beneficiaries? The member states, especially those with a lot of patents validated. The only unknown, but not one to be neglected is that the attitude of the users. I doubt they need a European patent, unitary or not, which is of the same level of the US one.
On the other hand, if the fund is constantly under performing, then it might not be worth keeping it. And we are back on the thoughts above here, why not simply use it to compensate procedural fees. This could be the ball starting rolling.
The member states have agreed to foot the bill for the pensions. But this is on paper, and for pensioners the only addressee is the EPO. If the EPO unilaterally lowers the pensions, what is the recourse: at the end the ILO AT. In other words a dead end. If the EPO claims it has no money, it cannot be condemned to print it. Nobody would ever lift a finger for a cast of privileged employees of an international organisation. That is exactly the position taken by one of the President’s minions, the PD Personal, Mrs Bergot to name her. They profited for a long time of lots of niceties and it is time for them to bleed…
It might sound far fetched as well, but such a hidden agenda would not surprise me from the President and its advisers.
Battistelli’s history as a public [sic] servant [sic] suggests that as a Republican with no empathy he’ll promise anything to get his way and even lie for some “greater good” (in his own mind). As one recent example of Battistelli’s “greater good”, consider his lobbying for the UPC, crackdown on quality control (of patents), and sending away of the boards — a move which is now being confirmed by the local media in Munich. To quote this new translation from SUEPO [
PDF] with highlights in yellow (particularly where we are cited):
Munich’s European Patent Office may be planning a move to Haar
The European Patent Office in heart of Munich simply won’t settle down.
- According to SZ sources, the European Patent Office may be planning to transfer a department from Munich’s Inner City to Haar.
- The move to new premises, with a floor area of 11,000 square metres, would affect 200 personnel.
- A power struggle has long been raging within the Office, at the heart of which is the President Benoît Battistelli. Critics are concerned about his stringent reforms.
By Bernhard Lohr, Munich/Haar
Plans are clearly afoot at the European Patent Office in Munich to relocate the legal departments. The whole situation needs to be viewed in the context of a major reform of the legal structure, which the Member States of the European Patent Office Organization only decided on in June.
According to ZS sources, the Boards of Appeal, to which appeals can be lodged against decisions taken by the European Patent Court, are to be relocated to Haar. This will involve more than 200 employees, and an office surface area of 11,000 square metres.
Storm in the Glass House
The European Patent Office still will not settle down: New internal investigations aimed against staff representatives are causing concern – and upset. Because the Office’s own investigation department is overstretched, word has it that crisis specialists from London have been brought in to look into allegations of bullying. Katja Riedel has more …
No-one will officially confirm what is going on. Staff at the Real Estate Department of the Bavarian Insurance Chamber, which owns the office complex known as “8inOne” in Haar-Eglfing, standing empty now for a good two years, are keeping the name of the incoming tenants very much to themselves. The European Patent Office speaks of decisions which are
still pending. The local authorities will only refer to a well-known “non-profit organization” which will be coming to Haar. According to an internal E-mail, which is in the possession of the SZ, this is the European Patent Office.
In the Internet blog Techrights, contributors who are manifestly very well-informed about the inner life of the European Patent Office in Munich, are already engaged in intensive discussion about the move to the edge of the Bavarian capital.
Stringent reforms, suspensions, defamation: A power struggle is raging in the Patent Office
A power struggle has been raging for a long time within the Patent Office, with its 4000 employees in Munich alone, at the centre of which is the President, Benoît Battistelli. His opponents are opposing the stringent reforms he is seeking to introduce so as to streamline the Office. Battistelli recently suspended a patent judge, who according to the distribution of power should not have been subordinate to him, which in turn caused further upset in the Office. According to an internal investigation, the man is supposed to have used aliases in order to wage a defamation campaign against the President. The accused disputes the accusations.
A possible move to Haar is also being seen by staff members in this light. The word on Techrights is that this is a way of sending disgruntled personnel from the legal departments into “exile”; talk is of money being spent like water, and that personnel without much space should be taking priority.
According to insiders, the move is a done deal
Word has it, too, that staff in the departments affected, which are still sitting in the main building near the Isartor, have already been informed of the forthcoming move to Haar-Eglfing. The search for a suitable location for the Boards of Appeal is said to have involved eleven buildings in the general Munich area.
The closeness to the City and the airport, the actual fixtures and fittings of the building, and the easy access by public transport, are also supposed to have given the address at Richard-Reitzner-Allee 8 in Haar the edge in the search – “in the South-East of Munich”, as they say. According to the information on Techrights, the tenancy agreement is supposed to have already been signed as soon as the Finance Committee of the Patent Office approved the plan in October. The move is supposed to take place in July 2017.
Uprising against the Sun King
Staff at the European Patent Office in Munich are taking to the streets against their boss, Benoît Battistelli: He regards his people as of little consequence, and could even prevent
strikes. And that could mean that he is contravening European human rights. More from Katja Riedel and Christopher Schrader … Report
This matches up with what a spokesman from the Patent Office has been saying, who of course is not going to let anything slip about the move to Haar. Rainer Osterwalder says that the organization is “currently looking into possibilities for a new service building for its Boards of Appeal in Munich and the surroundings”. Once the “technical preparations” have been concluded, more formation will be forthcoming. The separate building is supposed to highlight the independence of the Boards of Appeal in the Patent Office Organization.
This issue is also said to have been discussed in the early part of the year with Bavarian Justice Minister Winfried Bausback. He is said to have been convinced that by having a separate building of their own for the Boards, the significance of Munich and Bavaria as focal points in Europe for patent legal procedures can be strengthened still further. On the other hand, it looks as if this positive view is not entirely shared by all the staff at headquarters.
Rainer Osterwalder refuses to just admit the obvious, but he begrudgingly acknowledges what the journalists were able to independently corroborate/confirm based on documents they saw. Where does that leave quality control, appeals, and oppositions? Well, far away from Battistelli, ‘sheltered’ in tighter offices with fewer members of staff and an uncertain future. A new article by Matthew Pinney from software patents proponents and lobbyists at Marks and Clerk (part of the patent microcosm that preys on EPO policies under Battistelli, including the UPC) was published in some of their media circles this week [1, 2]. It speaks of opposition procedures as follows:
The European Patent Office (EPO) opposition procedure allows any person to challenge the validity of a European patent within nine months of its grant. Oppositions are a commercially astute method for revoking others’ patents as an alternative or addition to court proceedings. However, the opposition procedure has historically taken up to three years after grant to reach a decision – even for ‘straightforward’ cases. Whilst a decision is pending, there is legal uncertainty for all parties.
On 1 July 2016, the EPO introduced a streamlined opposition procedure that simplifies the procedure so that opposition proceedings can be brought to a faster conclusion. The aim is that the Opposition Division will reach a decision within two years from grant. This is achieved by imposing reduced time limits on both the patent proprietor and the EPO.
Once an admissible opposition has been filed, the EPO invites the patent proprietor to respond with observations and any amendments to the patent. The streamlined procedure reduces the response time limit from six months to four months except in exceptional circumstances.
They are basically rushing things, which guarantees that quality will be further exacerbated/eroded/reduced and the service will prioritise profit over merit.
It’s sad to see the EPO repeating all those famous mistakes of the USPTO — mistakes that I spent over a decade writing about. Battistelli is certainly aware of the consequences of reduction in patent quality, but as we shall show in a later article, he denies it using his de facto think tanks.
“No amount of gloss can cover institutional rot and when the public discovers the rot, everyone suffers, including ordinary members of staff in the rotting institution.”Not only EPO staff is under attack from merciless and misguided management. Staff of WIPO too has been complaining and severely punished for that. Watch one who has just moved from human rights to WIPO, a serial violator of human rights. To quote IP Watch, “years ago Kwakwa also moved from UNHCR to WIPO, according to his bio. In the role of WIPO legal counsel, Kwakwa took a role once held by now-Director General Francis Gurry, and became known by some for his equanimity, knowledge, and an almost uncanny knack for navigating difficult situations that others could not.” With some very gross violations of human rights in there (under Gurry), one might wonder what Bontekoe is thinking here. It’s like the time the EPO hired Jana Mittermaier from Transparency International. No amount of gloss can cover institutional rot and when the public discovers the rot, everyone suffers, including ordinary members of staff in the rotting institution. Unless Battistelli is stopped, everyone at the EPO will suffer. This is why staff representatives are so sceptical of him. They too are eager to save the Office. █
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No more patent maximalism because US courts are tossing out a large proportion of granted patents (as do courts in Europe)
Credit: Matt Levy/CCIA
Summary: The United States is seeing the potency of patents — especially software patents (which make up much of the country’s troll cases) — challenged by courts and by the Patent Trial and Appeal Board (PTAB)
PATENTS (as originally conceived and foreseen) are not inherently evil, but if patents become applicable to everything under the Sun, then they serve no purpose other than to limit virtually every human activity, sometimes even natural activity (like patents on seeds, which increasingly limit reproduction).
Techrights opposes software patents because the discipline of software development cannot coexist with software patents. Just ask programmers about it. One programmer, Florian Müller, sent me a link this morning to an article I first saw last night. In it, Fenwick & West (which we cite a lot in relation to Alice) is claimed to have said 370 software patents have been invalidated by US courts (there’s much more of that in PTAB as well) after Alice. Here are the key parts:
Two years ago, when the U.S. Supreme Court invalidated Alice Corp.’s handful of patents on the concept of an electronic escrow arrangement, it ruled that taking abstract ideas—apparently including established methods of doing business like escrow—and implementing them on a computer doesn’t meet the standard of intellectual property. In its unanimous decision, written by Justice Clarence Thomas, the high court refused to precisely define what makes something an “abstract idea.” “We tread carefully,” Thomas wrote of the new standard for patents. Since then, however, lower courts, and the U.S. Patent and Trademark Office, have been using some pretty heavy boots.
Courts have invalidated more than 370 software patents under the new standard, according to data compiled by law firm Fenwick & West. District and appellate courts have thrown out two of three patents brought before them since Alice Corp. v. CLS Bank.
This means that there’s far lower an incentive to even bother suing with a software patent (or patents), never mind apply for one.
There have been lots of articles about Apple patents this week, mostly because of “iWatch”. Some articles mentioned software patents explicitly in that context. To give just one example, this new article states that “this latest [Apple] patent is more software orientated” and as longtime readers probably know, Apple has been using software patents against Linux since 2010 (in the courtroom; deterrence against Palm’s Linux-based operating system, using patents, predates that).
The good news is that reprieve is on the way and a lot of software patents are on their way out. The other day someone came to our main IRC channel and said, “the uspto is trying to stop my patent prosecution [...] I dont know what to do… who can help me? [...] i have a software patent that the uspto is trying to stop” (suffice to say, the USPTO has been the most pro-software patents among courts, boards and other ‘compartments’ in this profit-driven system).
The above story is not unusual. We have been hearing such stories for a while, but this one is a firsthand account. Here is a new very long rant from SightSound. “We’re the guys who invented the download music store, showed it all to Steve, and got rolled by Apple,” says the summary. Notice the use of the term “Death Squad for Patents” in the headline. “Death Squad” is a term popularised by the patent microcosm, which equates quality control/patent assessment with execution. It’s quite revealing, isn’t it? It’s rather likely that just as companies that sue Apple with software patents lose their case/s, so will Apple. Software patents are a dying breed. It’s easy to just file a patent lawsuit; winning one is another matter altogether, especially in this software patents-hostile atmosphere. That’s why the number of patent lawsuits fell sharply, based on firms that watch these figures closely.
Reaching out to the ITC (embargo using patents, even before the facts are known!), ResMed has just initiated “lawsuits in Germany and New Zealand, and to the US International Trade Commission against Fisher & Paykel Healthcare” [1, 2, 3, 4, 5, 6]. This particular case is not about software but about a device. Suffice to say, Germany does not (formally) have software patents altough in practice it’s most friendly towards them in Europe. As for New Zealand, it’s the latest battleground on this matter, probably along with India where this matter seems to be settled.
§ 101 in the US threatens to eliminate software patents in what is probably their last remaining home. Fish & Richardson PC has published this new analysis about the Court of Appeals for the Federal Circuit (CAFC), in which it says:
Patents that employ functional claiming even without using the words “means” will likely encounter greater scrutiny in the courts in light of this growing line of cases. That scrutiny is becoming more prominent under Section 112 jurisprudence, but is also apparent in the growing body Section 101 case law. The Court commented in the recentElectric Power Group, LLC v. Alstom S.A., No. 2015-1778 (Fed. Cir. Aug. 1, 2016) decision, in affirming a finding that a software patent is ineligible under § 101:
The district court phrased its point only by reference to claims so result-focused, so functional, as to effectively cover any solution to an identified problem…. Indeed, the essentially result-focused, functional character of claim language has been a frequent feature of claims held ineligible under § 101, especially in the area of using generic computer and network technology to carry out economic transactions.
Let’s face it, § 101 has changed everything. Matt Levy’s latest cartoon shows that he too now realises that patent scope, not just patent trolls, is a problem. In fact, patent trolls are often a symptom (or residue or side-effect) of patent scope gone awry, not to mention Texas courts openly bragging about pro-plaintiff bias. The cartoon from Levy is very much applicable to the EPO under Battistelli as well. Under pressure to grant patents all the time (the more, the merrier) they spoiled the whole system. “The GAO recently did a study on patent quality,” Levy explains. “It found that part of the reason so many patents are low quality is the pressures patent examiners are under to allow more patents.”
We already wrote about this study and explained how it relates to the EPO.
IP Watch has just published this guest post in which it’s suggested that number of unique patent assertions (e.g. lawsuits) is declining. AIA is cited as a possible cause. To quote:
Since AIA became effective in September of 2012, numerous studies have suggested the rise of patent litigation. While some surmised the post AIA joinder rule is causing the rise, many studies simply relied on just the number of cases filed per year to draw a conclusion about rising litigation.
We decided to take an additional step and look at another metric that may give us a better sense of the litigation landscape: the number of unique patent assertions per year. Essentially, this metric tells us how many unique patents are believed (by their owners) to be infringed in the US market.
As we know, after AIA, a single patent may now be asserted more than 100 times (e.g., Shipping and Transit LLC has filed more than 150 cases against many companies which, in most cases, only a single patent asserted (US7,400,970)). In our study, we counted this or similar cases once, because only a single patent was involved. As you can see in the above chart, the number of unique patents has been declining over the years.
2015 saw the highest number of filings. However, in terms of unique patents asserted, 2015 actually represented the lowest level since 2010. The number of unique patents asserted in 2015 had declined more than 23% from 2010.
It seems likely that AIA, together with PTAB that it brought, reduced confidence in all sorts of ludicrous software patents. The patent microcosm is obviously in denial about it, but the figures speak for themselves. here is Quinn Emanuel Urquhart & Sullivan LLP piggybacking or cherry-picking Enfish to pretend software patents are in tact (the tiring old spin). To quote their so-called ‘analysis’ (shameless self-promotion): “As two recent decisions from the Federal Circuit demonstrate, the law on patent-eligible subject matter, 35 U.S.C. § 101, remains largely unsettled. These decisions, Enfish and TLI Communications, represent some of the Federal Circuit’s most recent attempts to grapple with the appropriate application of § 101. Although these decisions are both software patent cases, they speak to issues that affect § 101 jurisprudence across a wide range of technologies, from software to diagnostic procedures to molecular biology protocols. In particular, Enfish and TLI Communications embody the recent judicial tendency to collapse the § 101 inquiry into the novelty inquiry under 35 U.S.C. §§ 102 and 103.”
But those are just two decisions among hundreds of others ruled in the opposite way. As we noted earlier this week, PTAB’s influence on CAFC (or vice versa) causes a certain panic in the patent microcosm. “For its part in the case,” wrote Patently-O about one case, “the Federal Circuit affirmed the PTAB determination without opinion” (there’s not much to argue about). “The patents at issue in the case are U.S. Patent No. 6,315,921 and U.S. Patent No. 6,395,195. They relate to an oxygen absorber used in meat packaging.”
PTAB is dealing not only with software patents, but when it deals with software patents they have very slim chance of survival because of § 101/Alice. Here is Patently-O remarking on PTAB again while citing Halo [1, 2]. To quote: “The Third Edition ads substantial coverage of managing litigation to deal with parallel proceedings at the PTAB, pleading standards, patentable subject matter, claim construction, enhanced damages following Halo, and reasonable royalty disputes. The treatise also covers recent developments in ANDA and biologics litigation, design and plant patent litigation, and litigation at the Federal Court of Claims. The appendices provide case management checklists and exemplars of patent management filings.”
MIP has also just mentioned Halo, noting that the “Federal Circuit and district court rulings since the Supreme Court’s Halo decision have made it clear a jury finding alone is enough for a judgment of willfulness. But an enhanced damages determination should ultimately be made by the judge weighing factors yet to be clarified.”
This case mostly impacts patent trolls that want to hop from one company to another and hoard money by shakedown. The following situation, as mentioned before by Patently-O, deals with scope of patents and how they’re self-limiting or self-invalidating (if the specified scope is too broad). It’s another case of patents that should not have been granted in the first place or are far too narrow to be useful. To quote the National Law Review: “This decision is an important reminder of the care that should be taken with all claim language, and indicates that extra caution may be warranted whenever any “consisting of” clause is used. It is not clear whether Multilayer could have modified the Markush clause with open-ended language, such as by reciting that “the inner layers comprise a resin selected from the group consisting of ….” Some examiners raise indefiniteness rejections when a claim uses both “comprising” and “consisting of ” language, but not all combinations of such “open” and “closed” language are improper.”
What this basically says is that you cannot get a patent to cover everything under the Sun or claim in an ad hoc fashion that it magically covers unspecified claims. Any patent system which places no restrictions on scope would be self-deprecating. To give two more examples of cases covered by Patently-O, in one case there was “key prior art in the obviousness case [...] Chinese patent publication that discloses minocycline…”
In another case the lawsuit got thrown out because the plaintiffs “waited a year to serve the motion. Courts hold that the motion should be served as soon as practicable. As a result, the court held the motion was properly denied as having been served in an untimely fashion.”
“Frivolous” is the word Patently-O uses to describe this lawsuit; another way might be SLAPP, as the intention is to discourage some activity, later (a year later) to be followed by a surprise motion. What is this, Mafia tactics? █
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“James Logan freely admits that he’s never made a podcast,” according to USA Today (source of the photo below)
Summary: Jim Logan of Personal Audio (a notorious Texas-based patent troll) is still fighting with his bogus patent, having already caused enormous damage with a single software patent that should never have been granted in the first place (due to prior art, not just Alice)
THE USPTO‘s examiners have been so eager to grant patents and perhaps so out of touch that they granted a patent on podcasting to some parasite, in spite of extensive evidence of prior art (even the Patent Office has acknowledged this by now). As a result, many innocent people with a podcast had been hit (extorted) until the EFF stepped in to help. We last wrote about this earlier in the month and it turns out that after years of disputes the patent troll (which is the patent holder) is still not giving up. Just look what a monumental mess just one single erroneous grant by the USPTO has caused!
“Just look what a monumental mess just one single erroneous grant by the USPTO has caused!”Joe Mullin says that the “[p]odcasting patent troll fights EFF on appeal, hoping to save itself” (this patent is pretty much its entire capital/existence*). To quote:
The owner of a patent on podcasting is hoping to snatch victory from the jaws of defeat.
Personal Audio and its owner, Jim Logan, lost their patent last year after lawyers from the Electronic Frontier Foundation showed the US Patent and Trademark Office that various types of Internet broadcasts pre-date the patent, which claims a 1996 priority date.
The podcasting patent became famous and received national media attention after it was used to sue several high-profile podcasters, including Adam Carolla, who raised $500,000 and fought back for a time before reaching a settlement in 2014. Personal Audio had also sued several big TV networks, and its case against CBS went to a jury in September 2014. The jury found the patent valid and awarded Personal Audio $1.3 million, a victory that Personal Audio’s lawyers have noted in their appeal arguments.
The controversy is now in the hands of the US Court of Appeals for the Federal Circuit, the court that handles all patent appeals. A three-judge panel heard arguments over the matter earlier this month.
Let this become a famous example of why software patents are a great menace to everyone, not just to developers. Sites of patent lawyers continue to advocate for software patents under the guise of ‘analysis’ (cherry-picking by patent lawyers who still resort to Enfish, despite admitting that it changed little or nothing at all) and WatchTroll, a vocal proponent of software patents, asks a loaded question in his latest headline, “Would Monopoly® be patent ineligible under Alice?”
“There should be absolutely no software patents in Europe (no matter what Battistelli does to ruin the EPO and crush the EPC these days), especially now that the USPTO demotes these.”Here again is the regression/resort/retreat to Enfish and BASCOM hype, as if two decisions among many hundreds will somehow salvage software patents as a whole. To quote WatchTroll: “The application of the Supreme Court’s decision in Alice v. CLS Bank by the Federal Circuit has been disappointing, to say the least. There have been some rays of hope for innovators with decisions in DDR Holdings, Enfish and BASCOM, but these bright spots shine so radiantly because they are scattered in a sea of despair.”
Despair to who? To patent law firms, i.e. not to actual development powerhouses and/or programmers.
We regret to see the Battistelli-run EPO being lured into software patenting in spite of the EPC. There are already misplaced priorities which favour large US-based companies at the EPO and the EPO increasingly uses the term “ICT”, which some can interpret as a vague insinuation/synonym of software patenting. See this pair of new tweets [1, 2] that ask: “Know how US & European practice differs for ICT applications?”
There should be absolutely no software patents in Europe (no matter what Battistelli does to ruin the EPO and crush the EPC these days), especially now that the USPTO demotes these. “Ever been to EPOPIC? Here are this year’s topics,” the EPO now writes in relation to an upcoming event. Looking at the sidebar under “key events” we see “ICT seminar 2016″ and “Indo-European conference on ICT-related patents 2016″, so there’s clearly some kind of a trend developing. The UPC threatened to bring software patents to Europe (so said multiple domain experts) and also bring patent trolls like Jim Logan. It’s a true danger when people like Battistelli race to the bottom in the name of “production” (even if it’s faked). █
* Wikipedia says the firm, which is a “Texas-based company,” was “formed to enforce two patents applied to podcasting.” It’s described as a “patent holding company” (euphemism for troll).
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Hoping for a post-Alice software patents rebound/resurgence, obviously
Summary: Now that the actions of the Patent Trial and Appeal Board (PTAB), which have been consistently upheld by the CAFC in precedential decisions, are suddenly being questioned the patent microcosm gets all giddy and tries to undermine PTAB (again)
SEVERAL decades ago the Court of Appeals for the Federal Circuit (CAFC) officially brought software patents to the USPTO. Things have been getting a great deal worse since then, as lots of very fundamental programming ideas turned into a monopoly, potentially enforceable against anybody with a computer and low-cost keyboard (and some rudimentary coding skills or access to the Internet, e.g. BBS for source code).
Well, as we noted the other day, based on early birds like Patently-O (typically ahead of the curve), PTAB (which is hostile towards software patents) is now being challenged by CAFC. WIPR has just published an article about it:
The US Court of Appeals for the Federal Circuit has agreed to hear a dispute surrounding the rules for amending patents in Patent Trial and Appeal Board (PTAB) reviews before its full panel of judges.
In a decision handed down on Friday, August 12, the Federal Circuit decided to hear en banc a case involving a pool-cleaning product owned by Aqua Products, vacating its previous opinion.
This was then mentioned also by MIP and bigger Web sites for and by patent lawyers. “In a rare grant of a petition for rehearing en banc,” one author said, “the court decided that an appeal “warrants en banc consideration” of who bears what burden when amending in an IPR. In re: Aqua Products, No. 15-1177, slip op. at 2 (Fed. Cir. August 12, 2016). From the very beginning of IPRs, the Patent Trial and Appeal Board has required the patent owner to bear the burden on a motion to amend.”
This is an important case for defenders of the de facto ban on most software patents, especially in light of Alice. As another new article from MIP put it this morning, “The Federal Circuit has issued a rare reversal of the Patent Trial and Appeal Board” (PTAB’s use of common sense reversed in Arendi v Apple). The legitimate concern here is that CAFC, which is not exactly known for integrity (contrariwise, it’s known for mischief and abuse in recent years), will interfere in the operation of PTAB, dominated by scientists rather than lawyers or judges with a law degree and not the faintest clue about programming. Here is another lawyers’ site stating that the “Federal Circuit [is] Going En Banc on IPR Standards for Amending”. Given that many patent lawyers now equate PTAB with “death squads” (what will they call it next? Stalin? Hitler?), we’re not terribly surprised to see this kind of bias or patent jingoism. A lot of patents news sites are hard for people to comprehend, probably by design/intention (jargon and reference to sections/cases rather than explicit concepts). This way the patent microcosm can ‘monopolise’ analysis and coverage, eventually misleading the readers and making it seem as though everything is rosy for software patents.
“A lot of people who promote software patents also wrongly equate patents with innovation.”In my personal view, the patent systems per se are not the problem; the problem is patent maximalism and limitless scope, as advocated by those who profit from that (notably patent law firms). They have cheapened/diluted patents/innovation to the point where many patents, once scrutinised in a court of law, simply get discarded. Increasingly, with PTAB around, some or these are discarded before they even reach the court (only after USPTO ‘examiners’ rubberstamp these). Notably, unassertible patents (because these patents are crap and their assignee/owner knows it) are not safe anymore.
A lot of people who promote software patents also wrongly equate patents with innovation. They have never implemented a single computer program in their entire life; they’re just armchair marketing people (shameless self-promotion) harping about “protection” or “innovation”, as if patents are not a two-edged sword that impedes and discourages development, usually impacting the smallest developers most profoundly because these developers cannot afford going to court. █
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A growing sense of panic among those who profit from software patents bureaucracy
Summary: A look at recent developments in the software patents scene in the United States, with increased focus on (or fear of) the Patent Trial and Appeal Board
THE USPTO has been coming under greater scrutiny for patent scope as of late. Even branches of the government [1, 2] have chastised the Office for abandoning patent quality in favour of greater profits — the same error which many patent offices are tempted to make for short-term gains. David Kappos was a terrible Director at the Office and now he is a corporate lobbyist for software patents in the US because Alice, which came to the Supreme Court after he had departed, effectively ended a lot of software patenting. This post is an outline of several of the latest developments in this area, gathered over the past week as part of our ongoing 10-year (almost decade-long) research.
We start this outline with several pointers to articles from Patently-O, a site which in spite of the long summer vacation has been very active this past week. Watch Professor Dennis Crouch ranting about PTAB, the large (and growing) group of people who trash software patents. He wrote: “Decisions by the Patent Trial & Appeal Board are rarely overturned on appeal. I expect that result is largely due to the fact that the Patent Office has staffed the Board with highly trained and skilled patent law experts. The other important factor though, is the standard of review. Factual findings made by the Board are reviewed for “substantial evidence” — meaning that the findings need not be “correct” but rather rather merely supported by “more than a mere scintilla of evidence.” Thus, patentees are hard-pressed to get a reversal based upon erroneous factual conclusions.”
Considering the utterly bad quality of patents granted by the USPTO in recent years, it oughtn’t take much for the PTAB to correctly and justifiably invalidate these. PTAB is just cleaning up the mess left behind by Kappos et al. It’s well overdue. In reference to Cuozzo [1, 2, 3] and PTAB Patently-O says:
Following Cuozzo, I largely wrote-off GEA Process (“GPNA”) v. Steuben as having any chance for certiorari. However, the petitioner’s newly filed reply brief offers an opportunity for revival.
In its decision on an IPR appeal, the Federal Circuit held that it lacked jurisdiction to review claims that the PTAB exceeded the PTO’s statutory authority by “terminating and vacating ﬁve instituted and near-ﬁnal IPR proceedings, without determining patentability vel non as Congress had intended.”
In another (probably last) article in this series about PTAB and IPRs, Patently-O said that “[i]n a timely motion, Aqua moved to amend three of the claims to include the limitations found in the non-instituted claims. (In particular, the patentee asked to substitute claims 1, 8, and 20 with claims 22-24 respectively. The PTAB agreed that these new claims satisfied the formal requirements of Section 316(d), but refused to enter the amendment – finding that the patentee’s motion had failed to show that the substitute claims were distinguishable over the prior art.”
Good. So the PTAB staff has a backbone and unlike the examiners of the USPTO, there’s no overt bias in favour of granting (even if in doubt). Strictness would serve the USPTO in the long run as it can help enforce/reintroduce the perception of patent quality, suggesting that it is being improved and things are being tightened or cleaned up retroactively as well.
According to this new article titled “Has Rochester lost its patents edge?” — an article which was published a couple of days ago — “patents granted to Rochester-area inventors fell by 21 percent last year, from 1,537 to 1,217.”
It sounds like patent quality is improving then. The number of patents is a very poor indicator of innovation. Now, see the part where patent lawyers interject their bias:
“The law in this area swings back and forth,” said Justin Petruzzelli, a patent lawyer and partner with the Rochester firm Rossi, Kimms and McDowell. He points to a 2014 case, Alice Corporation v. CLS Banking, where the Supreme Court laid out the criteria for computer-related inventions to be considered patent eligible.
“Some of the drop we’ve seen is from uncertainty created by the Alice decision,” Perruzzelli said, “and perhaps an overreaction on applying for patents related to software and business methods.”
It is not an “overreaction”, Mr. Petruzzelli, but you would rather mislead people so that you get more business, right? This is just propaganda/marketing interjected into a so-called ‘article’. People have got common sense and they know that being granted software patents is nowadays very hard. That’s why Petruzzelli is a little nervous. That’s why he wants articles like these.
The statement from Petruzzelli is overshadowed by facts and we see similar statements from others who are in the patent microcosm. Mind a patent attorney who says “Patent for Recording and Indexing Images Survives Alice: http://assets.law360news.com/0825000/825427/show_temp%20(53).pdf” (this is the case between Iron Gate and Lowe’s Companies in a District Court, which is a relatively low and Alice-hostile level; Alice is mentioned a lot in this 31-page decision). Also mind the most vocal pro-software patents site out there. It says:
Electric Power Group LLC v. Alstom S.A., 2015-1778 is a precedential case from the U.S. Court of Appeals for the Federal Circuit that holds that claims directed to collecting and presenting information from a power grid, though “lengthy and numerous,” “do not go beyond requiring the collection, analysis, and display of available information in a particular field.” Rather, the claims state “those functions in general terms, without limiting them to technical means for performing the functions that are arguably an advance over conventional computer and network technology. The claims, defining a desirable information-based result and not limited to inventive means of achieving the result, fail under §101.”
§ 101 is scary to these people. The likes of Petruzzelli know that if the public knew about it, there would not be much more business left for their firms. Here is another new article on this topic [via]. It’s titled “Section 101 Blocks Caller ID Patent” and it says that “Judge Seeborg’s decision offers some examples of considerations that will support a successful § 101 challenge—not least of which is a patentee’s allegations making a patent sound less inventive rather than more.”
So here again we have a reminder of the strength of § 101 and why software patents quickly lose their luster even in the United States.
“Thankfully, PTAB is working at an accelerated pace to undo the damage, much to the fear of the patent microcosm which dubbed PTAB “death squads” (as if patent quality assessment is the moral equivalent of mortal execution).”In Patently-O, another new article (this one by Jason Rantanen for a change) speaks about the Court of Appeals for the Federal Circuit (CAFC), which brought software patents to the US in the first place. Patently-O also refers to Halo [1, 2, 3] and reminds us that one possible takeaway from Halo v Pulse (not a CAFC case but a SCOTUS case) is that we should never read patents as more damages would be incurred as a result of that (article by Dennis Crouch). “On remand,” he notes, “the district court will be hard-pressed to find that the infringement was not willful – based upon the apparently unchallenged verdict. Still, it will be within the district court’s discretion to decide whether the willfulness warrants enhanced damages under Section 284. If enhanced damages are warranted, the district court must then determine how much to award (with an upper limit of treble damages).”
If one embraced a policy of not reading any patents, then proving lower liabilities and compellingly demonstrating this (by citing the policy) would be simple. Here is MIP’s new article about Halo v Pulse. “The Federal Circuit directs district court to decide whether “an enhancement of the damages award is warranted” in Halo v Pulse,” the summary says. Had they not bothered with reading any patents at all, they would be better off for sure.
Another last Patently-O article speaks of indefinteness and notes that “the Federal Circuit has affirmed that Icon’s asserted patent claims are invalid because they “fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention.” Although indefiniteness is a question of law subject to de novo review, the starting point of that review is almost always the district court opinion – thus the court here looked for errors in the district court decision. That is especially true here where the district court decision was based in part on underlying factual conclusions that receive deference under Teva.”
Putting it in simpler terms, scope of a particular patent (how much it covers, breadth of coverage) plays an important role, not just patent scope in its own right. It sure looks like poor quality control at the USPTO left a horrible legacy where many patents are simply unfit for purpose (too broad or too abstract, even not novel). Thankfully, PTAB is working at an accelerated pace to undo the damage, much to the fear of the patent microcosm which dubbed PTAB “death squads” (as if patent quality assessment is the moral equivalent of mortal execution). █
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How long before all lawsuits are filed by purely litigation firms?
Summary: A look at the high proportion of patent lawsuits that are filed by entities that make nothing at all and thus serve no role whatsoever in innovation
TROLLS in the United States are a real problem because the USPTO sparingly grants software patents, unlike the EPO (for now).
Matt Levy, an opposer of patent trolls (for a front group, CCIA), has published in his own blog an article which was mentioned here before and refers to this trolls-friendly letter. Meanwhile, another front against trolls says: “Of the 27 patent lawsuits filed today, 22 were filed by patent trolls — 81%. It’s time for Congress to take action to #fixpatents!”
“If software patents were officially made and openly declared verboten in the US, a lot of patent trolls would vanish almost overnight as they depend nearly 100% on software patenting.”We recently saw reliable statistics which suggest that nearly 90% of technology patent lawyers are filed by patent trolls, or NPEs. One such firm (more like PAE or patent pool), RPX, made the news last week [1, 2] and turned out to be involved in patent shakedowns. To quote: “Under the terms of the agreement, RPX will receive the right to sublicense a limited number of companies to Kudelski Group patents. Kudelski will receive an upfront payment, mutual patent risk clearance, and a future transfer of patents from RPX.”
It is worth noting that much of the above is about software patents, i.e. dubious patents that may no longer be valid (because of Alice). If software patents were officially made and openly declared verboten in the US, a lot of patent trolls would vanish almost overnight as they depend nearly 100% on software patenting. █
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Speaking for their wallets (profit motive), misleading the public
Like the military-industrial complex and surveillance/enforcement in the age of drug wars, patent lawyers profit from endless feuds
Summary: How patent law firms are distorting the debate about software patents in hope of attracting business from gullible people who misunderstand the harsh (and worsening) reality of software patenting
Software patents should not exist in the EPO and the USPTO too is gradually cracking down on these, especially because of the US Supreme Court. It does not mean that patent law firms will take this defeat without a fightback.
Elaine Bergenthuin, “owner and managing partner of De Beer Attorneys” by her own description, has just got published this self-promotional puff piece in the South African media. It appeared there this morning and it’s not a good article, it’s more like marketing. “You cannot generally obtain patents for software in South Africa,” the article correctly states (see our Wiki page “Software Patents in South Africa”), but Bergenthuin is then finding some loopholes and promoting these, as if to say, “come to me, I’ll help you get software patents by working around the law.”
“Software developers don’t bother trying to get software patents in India, but patent law firms mislead them.”This is very typical. The press is full of this marketing spam. The local press all over the world has been reduced to advertisements in ‘article’ form.
Here is an example from India which is only days old. Software developers don’t bother trying to get software patents in India, but patent law firms mislead them. They have nothing to lose; the lawyers always get paid (irrespective of success rate), and it’s clear at whose expense.
Watch another new example that we found in the Indian press a couple of days ago. It speaks of some who “hold only a handful of patents and that too on software related to audio and keyboards.” So these are software patents. Why bother?
A site that’s preoccupied with promotion of software patents published one week ago an article titled “Hop on the Patent Prosecution Highway (PPH) via Australia”. One can guess who wrote it and it says: “While Australia isn’t usually considered a very important market since its population is so small and its manufacturing base is limited, it is our experience that there are a few US companies realising that prosecuting in Australia to use the PPH back into the US makes sense. There is always the option of filing in Australia first and using an Australian patent application as the priority application. However, one would need a foreign filing license from the US before doing so. A strategy could be to file a provisional in the US, receive the foreign filing license, and then file a standard (utility) application in Australia to take advantage of the expedited examination process at IP Australia to hop onto the Patent Prosecution Highway via Australia.”
“The press is full of this marketing spam. The local press all over the world has been reduced to advertisements in ‘article’ form.”Well, “prosecuting in Australia to use the PPH back into the US makes sense” only if software patents were actually potent there. They’re not. So once again we can see bad advice being given by the patent microcosm. What happened to journalism? Well, this isn’t journalism, it’s marketing. We recently wrote about the Patent Prosecution Highway (PPH) in relation to Australia, noting that the EPO — not just the USPTO — embraces these under Battistelli (even in rather dubious places with hardly any patents). The EPO is totally out of control when it comes to patent scope and it probably breaks the rules of the EPC when it comes to that. There is still a discussion about how this has been made possible in the first place. One person asks: “Has anything in the PPI, which must be done by the EPOff or the EPOrg, ever been done? I am thinking of the relations with the work-rules regulating organs of the host countries (Arbeitsinspectie, Gewerbeaufsicht,…)”
Well, Battistelli is “instructing the staff to sidestep part of the EPC,” one person responded. Here is the comment in full: “Yes, but what would the dispute be? According to 23(1) above, doesn’t it only arise if immunity has been claimed? Not sure that BB instructing the staff to sidestep part of the EPC would fall within that. He wouldn’t claim immunity (from what?) – he’s just doing his job.”
We worry that the EPO, especially under Battistelli, is now cooperating with the patent microcosm and just abandoning patent quality control (improving the “success” rate of patent law firms). See this new ‘article’ titled “Patents in Denmark”. “In general,” it says, “software as such is not patentable (Section 1(2) of the Patents Act). However, it is possible to patent software as part of a patent whose subject matter is a process. Further, software is patentable if it has the potential to bring about, when run on a computer, a further technical effect which goes beyond the normal physical interactions between the program and the computer.”
“There are only (formally) software patents in the US (maybe in Japan as well), but they’re being used by foreign entities outside the United States.”Actually, these are dubious claims that rely on Brimelow sidestepping the EPC. Things have become even worse in German courts and the German patent office. Here is a new example of software patents for German company in the United States. These patents have been weaponised and “[a]ccording to the complaint, the asserted patents generally relate to industrial control systems that employ advanced software to program, run, and visualize industrial control processes. In particular, the ‘226 patent relates to interfaces for connecting a computer to devices on multiple industrial control networks so that data may be communicated across the different industrial control networks to and from an application program running on the computer.”
These are software patents from the US. There are only (formally) software patents in the US (maybe in Japan as well), but they’re being used by foreign entities outside the United States. We sure hope that people will come to grips with the corrupting influence of patent law firms in this debate and also acknowledge that software patents bring nothing but negatives to society; they’re good only to patent lawyers and patent offices where the goal is to increase so-called ‘production’ as measured in terms of the number of granted patents. █
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Judge Raymond Chen has a track record of resisting § 101
Summary: The perception of correlation between the Court of Appeals for the Federal Circuit (CAFC) judge that is assigned to a software patent/s case and the outcome of the case gives room for speculation
THERE is a lot to be celebrated now that the USPTO hardly accepts (abstract) software patent applications and even when it does, boards or courts will overrule it down the road. We fought for this for over a decade and after Alice it gradually became a reality, lowering the overall number of patent lawsuits and patent trolls, as expected. The EPO currently moves in the opposite direction, due to its misguided President. As Benjamin Henrion put it yesterday, in relation to the UPC with its bogus 'expert' teams, “software dev[elopment] does not need patents. UPC is a back door.”
The US Supreme Court has not dealt with the subject of software patenting for several years, but the Court of Appeals for the Federal Circuit (CAFC) deals with it all the time and usually, in about 90% of cases, accepts the Alice ruling and tosses away software patents. It is worth keeping track of who inside CAFC has a track record of not obeying Alice and in fact defying/rejecting it. This subject is hardly explored anywhere. In his latest article about CAFC, for example, Professor Crouch focuses on Halo, Pulse, and Seagate in relation to willful infringement claims, which is another subject altogether, namely damages.
“In order to keep software patents at bay (and away) we need to at least name the judges.”Daniel Cole, a patent attorney with Bold IP, worries about Alice and says that “Removing Section 101 Won’t be Enough” (to restore software patenting). This was published yesterday (as in every Sunday) in the pro-software patents site of Watchtroll. Well, software patent proponents want it all and they know how they can get it, if only opponents of software patents don’t remain vigilant. “If section 101 of the patent act,” he explains, “is removed the Supreme Court is extremely likely to simply continue to rely on those two precedents and continue to find abstract ideas and natural phenomena unpatentable. As the “broad language” of section 101 would also be removed the Supreme Court might even assume congress is giving it broad authority to enact further limitations on patentability.”
Brian Watkins, in the mean time tells me that “[i]n real life, on the other hand, the CAFC—especially J Chen—is halfway to overturning Alice.” He added [1, 2] “DDR Holdings: copying color code out of HTML file is patent-eligible. Bascom: running IPtables on remote host eligible. The two biggest steps on the road to overturning Alice and Bilski and returning to State Street Bank, both by Chen.”
The Enfish judgment, by contrast, he says is “[b]y Hughes w/ Moore, Taranto on panel.”
Citing Watchtroll, a vocal proponent of software patents, he says the article “lays out exactly how the trolls are overturning Alice step by step.”
This is worth noting perhaps, and better late than never, as we never really bothered checking who issued which CAFC ruling/s and what the patterns of outcomes were. In order to keep software patents at bay (and away) we need to at least name the judges. In the past, specifically inside CAFC, some judges were crooked and were working closely with outside interests. Randall Ray Rader is a recent example which we mentioned here many times before. Watchtroll already has a ‘thing’ for Mr. Chen (4 out of the top 6 search results are Watchtroll articles; see for example Google images search). █
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