(Anti)Competitive advantage by unfair competition and outright exclusion?
Summary: Chinese patent policies are harming competition from abroad, e.g. Japan and the US, and US patent policy is being shaped by its higher courts, albeit not yet effectively combating the element that’s destroying productive companies (besieged by patent trolls)
Using legal aggression with patents — lots of patents which SIPO is granting sparingly these days — companies become ever more aggressive. China is becoming business-hostile (as we predicted) in some sense and IAM said earlier today that “Beijing IP Court slaps Sony Mobile with injunction based on SEP infringement” and “[a]ccording to Xinhua, the case was filed back in 2015, but negotiations between Sony and Iwncomm over the patent stretch back to at least 2009. The injunction is set to affect 35 Sony models, including the Xperia Z1 and Xperia Z2 in the country. China’s Lexfield Law Offices has helpfully translated the court’s reasoning for granting the injunction…”
One should note that, based on this from IAM
[PDF], Iwncomm was a delegate in its conference. Other new posts about it say that it’s about a “standard (required in China) known as WAPI.” (WLAN Authentication and Privacy Infrastructure)
“Whatever the motivation may be, it will probably harm China’s ability to compete in the international scene.”Now that SIPO is allowing software patents, which are about to become even more permissible on April 1st, the above is made possible. WAPI is said to be “designed to limit trade into China,” based on Wikipedia, which adds that it’s “requiring foreign companies to provide confidential trade secrets to Chinese corporations.”
Maybe that’s the thinking behind patent maximalism in China? Similarly to the country’s censorship policy, which is often criticised as means of embargoing foreign companies and thus propping up local (domestic) companies?
Whatever the motivation may be, it will probably harm China’s ability to compete in the international scene.
Over in the US, Trading Technologies with its notorious patent lawsuits is mentioned by a blog of a pro-software patents firm which is closely involved. It’s about patents on interfaces (in relation to user interfaces) and the firm explains that “the Federal Circuit issued an opinion in Trading Technologies Int’l., Inc. v. CQG, Inc., its first decision finding a user interface to be patent eligible subject matter. The court designated the opinion as non-precedential. On Monday SHzoom LLC filed a motion under Federal Circuit Rule 32.1(e), which allows any person to request that the court reissue a decision as precedential. The text of the motion is set forth below.”
“But not all is positive as TC Heartland is looming and for the time being the US trumps China when it comes to patent trolling.”Being non-precedential means, much to the regret of patent law firms, that CAFC remains a colossal barrier to software patents. Most of its decisions are against software patents and these decisions are precedential too, just like Alice.
But not all is positive as TC Heartland is looming and for the time being the US trumps China when it comes to patent trolling. Moreover, as EFF lawyers have just put it, the US Supreme Court won’t stand in the way of trolls, as we noted briefly last night in relation to SCA Hygiene v First Quality ruling. Here is an explanation:
In a ruling this week that will cheer up patent trolls, the Supreme Court said patent owners can lie in wait for years before suing. This will allow trolls to sit around while others independently develop and build technology. The troll can then jump out from under the bridge and demand payment for work it had nothing to do with.
The 7-1 decision arrives in a case called SCA Hygiene v. First Quality Baby Products. This case involves a patent on adult diapers but has a much broader reach. The court considered whether the legal doctrine of “laches” applies in patent cases. Laches is a principle that penalizes a rightsholder who “sleeps on their rights” by waiting a long time to file a lawsuit after learning of a possible infringement. It protects those that would be harmed by the assertion of rights after a lengthy delay. For example, laches would work against a patent owner that saw an infringing product emerge yet waited a decade to sue, after significant investment of time and resources had been put into the product.
The ruling in SCA follows a similar decision in Petrella v. MGM holding that laches is not available as a defense in copyright cases. The Supreme Court has generally rejected “patent exceptionalism” and has often reversed the Federal Circuit for creating special rules for patent law. So this week’s decision was not especially surprising. In our view, however, there were compelling historical and policy arguments for retaining a laches defense in patent law.
Japan’s Sony, as in the above case in China, is currenly suffering embargoes due to patents (in China) and Japan’s Toyota is also in the patent headlines today. It uses Linux (or Android) in cars. It’s no longer a slave of Microsoft (like it used to be). So all that Microsoft can do, based on new articles from today, is demand payments for patents — undisclosed payments from Toyota [1, 2, 3, 4]. “The companies would not disclose the financial terms of the deal,” says one of the reports, but we can imagine that it means a flow of cash from Toyota to Microsoft. Days ago IAM complained about Japanese courts not being "friendly" to patent aggressors. Well, China’s courts certainly are, which makes one wonder what China has in mind with its extreme patent strategy (loosening control and attracting over a million patent applications in a single year). █
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Think tank for Battistelli and trolls, who dislike judges and would rather settle without them
Summary: Rebuttal or response to the latest pieces from IAM, which keeps promoting a culture of litigation rather than sharing, collaboration, negotiation, and open innovation
IAM’s writers have become — and clearly remained — mouthpieces of EPO/Battistelli, funded (their salaries) in part by the EPO's PR firm, which had received more than a million Euros from the EPO's budget in just one year (there is probably a continuation/expansion of that contract, which definitely needs leaking).
“At IAM, it’s just patent maximalism disguised as news.”Better headline for this morning’s nonsense from IAM would be “trolls-funded IAM is fuming at Japan for not being a vassal of patent maximalists,” but the current headline reads like their usual lobbying (they’re not really a news site) and says “data suggests that Japanese courts continue to be deeply unfriendly to patent owners” — mirroring/echoing the same sort of party line we see/hear whenever IAM covers the United States. At IAM, it’s just patent maximalism disguised as news. Anything goes, even notorious trolls such as Intellectual Ventures (habitually celebrated by IAM).
Recently, as the article at the top serves to show, IAM began promoting patent trolls in east Asia. Also see:
“Korea’s economic growth, which was very much real (its GDP surpassed even Russia’s), meant that companies such as Samsung and LG managed to accumulate capital and then pursued a lot of patents, even in the US and in Europe.”China’s patent hype and low quality of patents has led to a surge in patent applications, coming from various hopefuls who will successfully sneak in bogus patents through lazy/overworked/careless examiners (or in the case of SIPO, examiners whose job is to bolster the illusion of “China Rising” by just granting loads of patents, seeding a surge in patent lawsuits too).
Korea’s economic growth, which was very much real (its GDP surpassed even Russia’s), meant that companies such as Samsung and LG managed to accumulate capital and then pursued a lot of patents, even in the US and in Europe. Korea, however, is known for a reasonably non-aggressive patent culture (how often do Korean companies initiate legal action using patents, unless attacked/provoked first?) and it does not permit patents on software. A Korean patent troll (ish), Intellectual Discovery (ID), is now “facing a “crisis”, based on this new admission from it departing CEO: “Speaking with IAM on the day following his resignation as CEO, Kim described the organisation as facing a “crisis”. ID’s budget, he claimed, had been drastically slashed when responsibility for the organisation transferred from the Ministry of Trade, Industry and Energy to the Korean Intellectual Property Office (KIPO). Kim also suggested that working under KIPO made it difficult to pursue some business opportunities because many of the biggest potential licensees are also big patent filers. Overall he made clear his opinion that if ID were to have any future it would have to be as a private entity.”
He means a proper troll (“private entity”), not just a patent troll (ish). IAM would certainly like to see more patent aggression; that’s like the raison d’être of IAM, which is a pro-litigation site. Bear this in mind any time something is published by this think tank, which Battistelli likes to share (as he last did earlier this month, see below for a reminder). █
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Battistelli mimics China not just when it comes to the human rights angle (as if the EPO became a Chinese bureau immune from prosecution and located in several European sites)
Reference: Loose Patent Scope Becoming a Publicity Nightmare for the EPO and Battistelli Does a China Outreach (Worst/Most Notorious on Patent Quality)
Summary: A detailed explanation of some of the latest reports from China and the US, serving to show that one opens up to software patents whereas the other shuts the door on them (and guess whose lead the EPO is taking)
SOFTWARE patents started with the US patent office several decades ago, but these patents are going away, albeit China is eager to repeat the mistakes of the US. We worry that the same is true for the EPO, even in clear defiance of the EPC.
“We worry that the same is true for the EPO, even in clear defiance of the EPC.”A SUEPO-hostile and UPC-friendly new site (extension of the patent microcosm by all means, based on its short track record) calls a Qualcomm executive/lawyer who never wrote any code an “expert” (the headline is “Experts staunchly defend software patents”)
To quote: [via]
The quality of a software invention, rather than its mode of implementation, should be the litmus test for patent protection, according to two intellectual property consultants.
IP and innovation consultant Ania Jedrusik and former Qualcomm chief patent counsel Phil Wadsworth argued that patents are the strongest form of protection for the huge research and development expenditure associated with developing software-related inventions, in an article published in February’s edition of WIPO Magazine.
How convenient for WIPO.
WIPO, as we mentioned here the other day, misleads with Chinese figures, obviously in order to make it seem like there’s a huge surge in patents. IP Watch put this story in perspective (“China Soon To Overtake US In Patent Filings”), as SIPO basically lost a grip on patent quality (the EPO is going along the same trajectory). WIPO is just a patent maximalist — one that shares many of the problems we encounter in Battistelli’s EPO (in addition to human rights aspects).
“WIPO is just a patent maximalist — one that shares many of the problems we encounter in Battistelli’s EPO (in addition to human rights aspects).”As we noted here the other day, if not over the past few months, SIPO now grants software patents while litigation in China soars, as one might expect (companies destroying each others, lawyers get rich). Here is another new article on the subject. To quote the relevant section:
In the past, patent protection for software related inventions was rather limited; their claims were commonly drafted a process claim, or an apparatus claim based on the computer program flow wherein each component is regarded as a function module required to realize each step in the said computer program flow or each step in the said method. Such apparatus claims are regarded as the function module architecture of the computer program described in the description, rather than entity devices needed to realize the said solution mainly through hardware.
Under the revised Guidelines, software claims may now include a computer program product, a machine-readable medium, or a Beauregard type of claim, which focuses on “an apparatus comprising a processor configured to execute instructions on a computer-readable medium to perform steps of ….”
An applicant should pursue all new possibilities and include as many claim types as needed in the patent application; among other things, it will to make it easier to enforce software patents once they are granted.
It’s sad to see that while the US recognises that it made an error with software patents — an error realised only decades too late because patent trolls accounted for the lion’s share of litigation — Europe and China imitate these same mistakes. There was a short exchange last week between IBM and Henrion (FFII) [1, 2, 3], who less than a decade ago took note of IBM’s lobbying for software patents in Europe. IBM’s patent chief wrote: “How many years does the #patent community have to wait to learn precisely what abstract means?”
“It’s sad to see that while the US recognises that it made an error with software patents — an error realised only decades too late because patent trolls accounted for the lion’s share of litigation — Europe and China imitate these same mistakes.”He’s just complaining about Alice, as usual, and he was soon joined by Europe’s loudest pro-software patents attorney, who wrote: “I’m afraid there is no clear definition of “abstract idea”. The USPTO should just copy the EPO” (on providing loopholes).
Henrion said, “just read art52: mental acts, programs for computers, math algos, presentations of information, rules for games.”
Software patents should not be allowed in Europe. Period. Each software patent granted by the EPO is a travesty and an insult to the EPC. As Henrion later added, “it should be copy the EPC, not the EPO practice, which goes around it, especially in fields where there is money” (all that matters under Battistelli is short-term profit, even if that ultimately kills the cash cow).
“Software patents should not be allowed in Europe. Period.”“Given the rate of Alice destruction in the courts,” “wrote a patent maximalist, the USPTO “should be absolutely embarrassed for ripping off patent owners. Fraudulent?”
See how angry they are? Another firm of patent maximalists, i.e. attorneys who were filling their pockets thanks to software patents (Fenwick & West staff), adds to that sort of shaming of the US patent office. What this law firm means by “best news” and “sunshine in the land of the dark” is software patents. To quote the conclusion below their detailed statistics: “Here we see that recently, the PTAB reversed 16 Section 101 rejections in a row beginning in October, 2016—and 14 of these were from the Business Method art units. This is perhaps the best news I’ve seen in months, a bit of sunshine in the land of the dark.”
They look at a level of granularity that suits them. In the same period of time the number of IPRs handled by PTAB grew. PTAB still eliminates a lot of software patents, maybe more than even before.
“PTAB still eliminates a lot of software patents, maybe more than even before.”This (the above) is good news for software developers. Suffice to say, those who have been taxing software developers aren’t too happy about it. See this new article titled “Patents [on software] harder to obtain now, attorney say”. A more suitable headline would be, “patent quality is improving in the US.”
To quote the key part: “Challenges have resulted in a pushback from the U.S. Patent Office that makes it harder to get patents, particularly on software, Woodral said. Many objectors claim the sought-after patent is not prior art, that someone has done it or it is a variation on something done earlier.”
How is that a bad thing, unless one is patent law firm?
This was responded to by Henrion with “value should not be created out of thin air, like with patents.”
He also argued, “if you run the code with your brain, do you allow or reject the application?”
Patent boosters and proponents of software patents (such as “Patent Buddy”) like to mostly ignore the bad news and instead promote cases such as this § 101 case:
Following a jury trial, the court denied defendant’s motion for partial judgment that plaintiff’s malware monitoring patent encompassed unpatentable subject matter because the asserted claims did not lack an inventive concept.
The higher up this goes (in the US court system), the less likely this patent is to survive, based on the latest figures from Fenwick & West (see the underlying invalidation rates). No matter what patent lawyers are trying to tell us, they know that they have lost the battle (or still losing the battle), which means that software developers regain their freedom to write code without fear of being sued or threatened by trolls.
“Patently-O is with the maximalists, not with the rationalists, hence its popularity among the patent microcosm.”Writing about software patents (ish) at CAFC the other day, Patently-O says that the “appeal here is somewhat complicated – as reflected by the Federal Circuit’s 42-page opinion. The complications begin with the founding of EVE, and emulation software company founded by folks who invented emulation software at Mentor.”
Being a CAFC-level case, one should expect the patent to be thrown away. Patently-O hardly makes it a secret whose side it is on. Patently-O is with the maximalists, not with the rationalists, hence its popularity among the patent microcosm.
Last night Patently-O published this “Guest Post By Prof. Jonathan Barnett, University of Southern California School of Law & Prof. Ted Sichelman, University of San Diego School of Law” (because it suited Crouch’s convictions).
“People who haven’t money in this game don’t think with their wallet but rather with their brains.”Some patent maximalist professors support the evil side in this SCOTUS case regarding Lexmark, so Crouch just ignores the lion’s share of professors and places the outlier. As the authors themselves confess: “Drawing from this paper and other economically oriented analysis, we recently co-authored an amicus brief in Impression Products, which argues in favor of a presumptive understanding of the exhaustion doctrine. (Interestingly, although academics are usually pegged as strongly in favor of mandatory exhaustion, our brief garnered 44 signatures—significantly more than the brief filed by professors arguing in favor of mandatory exhaustion.)”
Whose signatures though? Well, maybe if not probably signed by the maximalists, not the professors. People who haven’t money in this game don’t think with their wallet but rather with their brains. █
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China’s growth in patents is superficial and misleading; In Europe there is negative growth, but ‘infographics’ like the one below try to paint the opposite picture
Poland missing from the map as it’s part of what the EPO is trying hard to hide
Summary: The European Patent Office continues to insult nations and also insult science, essentially by spreading lies and deleting from the map particular nations in order to legitimise these lies
WE have decided to leave aside USPTO articles until the weekend because the frequency of lies from the EPO is increasing again and if these lies are not confronted with facts there is risk that even some EPO employees will believe them.
We previously explained that application numbers at the EPO are declining in Europe. Prior to that we showed how the EPO had been lying. See for example the following:
2 days ago we wrote about unscientific (if not antiscientific) and rather offensive maps from the EPO, serving as a sort of propaganda or misinfographics for the lazy. They have already mentioned Belgium (highest growth), so now it’s Italy’s turn (second highest), as the screenshot of this tweet (above) shows. In spite of criticism, knowing that they are being bashed for it, the EPO’s PR team has decided to tweet, yet again, this offensive, antiscientific map. Later they wrote: “Patent applications from Poland dropped after increases in 2015″ (screenshot above, as they recently removed such tweets and we caught the deletion).
“Has the EPO removed Poland from the map just for king Battistelli and his desperate need for brainwash throughout this week? Is Poland no longer part of Europe?”Notice how, for obvious reasons, they are not even showing the map because Poland was conveniently removed from it! Has the EPO removed Poland from the map just for king Battistelli and his desperate need for brainwash throughout this week? Is Poland no longer part of Europe? Mind the fact that they also make excuses for this decline, as if to say, “yes, it’s down, but it’s actually up!”
This is the kind of “alternative facts” that we are seeing more and more of, courtesy of an Office that has become a disgrace to science itself.
Where is the EPO seen as a growth opportunity? The land of patent gold rush, where patent quality thresholds/barriers are so low that last year alone there were over a million patent applications (at SIPO). We have been writing a lot about it, irrespective of our EPO coverage. See yesterday’s article “Brighter prospects for business method and software related patents in China” (alternative headline: SIPO lowers quality of Chinese patents to zero).
“WIPO does not want to tell the full story, but the devil is in the detail.”At the EPO, the only region of growth is China (US demand for EPs is down very sharply). But then again, the same is true for other patent offices across the world. It’s not just an EPO phenomenon, it’s a Chinese phenomenon. According to Korean media (e.g. the Korea Herald, which is published in English), patent lawsuits are totally out of control in China, exactly as we predicted (it’s up 37% in just a short period of time). China is now destroying its own leadership and wrecks its own industry with litigation, making only a bunch of law firms richer. They didn’t learn from the mistakes of the US, did they? Another Korean publication stresses the ramifications for Korean companies operating in China. The patent maximalism encouraged by SIPO is destructive and suicidal (in the commercial sense). This is why companies won’t want to operate in China, or will be reluctant to expand to China. According to a lot of reports from yesterday [1, 2, 3, 4, 5, 6], patents are down except in China (with few exceptions here and there). WIPO does not want to tell the full story, but the devil is in the detail. WIPO wrote: “International #patent applications grow by 7.3% to a record 233,000 in 2016: http://ow.ly/l87S309VSfu”
Francisco Moreno looked at the underlying figures and wrote (in Spanish, but obvious to non-Spanish speakers):
Solicitudes internacionales de patente (PCT) en 2016:
Totales 233.000 +7,3%
*de origen chino: 43168 +45%
*de origen español: 1503 -1,7%
WIPO does not show this breakdown to a wider audience. No word about the role played by China (+45%) just patenting everything under the Sun. Spain (-1.7%) is absent from the EPO’s map, for obvious reasons. Now, watch this new tweet from the EPO. Yesterday is said: “Philips remains no. 1 patent applicant at the EPO in 2016 – 2nd year in a row. http://buzz.mw/b1wxh_f”
“In today’s EPO, it’s garbage in, garbage out (applications, granted patents).”But Philips is the only European company at the top. 60% of the top 5 are east Asian, and only one is European. So much for “European” Patent Office… “90 per cent of patents in Australia are foreign owned,” someone pointed out to me last night, but Europe is not a population as small as Australia’s. There are similar numbers in India, where software patents are not permitted.
Whose interests are served? In today’s EPO, it’s garbage in, garbage out (applications, granted patents). The GIGO Office is what Battistelli is after.
“It doesn’t matter to them what it means to innovation, as long as there is a lot of litigation and money keeps flowing into the pockets of middlemen (including robber barons like Team Battistelli).”Last year, shortly after the so-called ‘results’, we spent some time explaining that patents from China aren’t quite what they seem. Many are just in Mandarin. It’s faked growth and the quality of this ‘growth’ is low.
Pro-litigation (or pro-trolls) sites like IAM are obviously infatuated with east Asia these days, as we noted here before. They see this is a growth (profit) opportunity, at least for those who make money — at professionals’ expense — by suing and settling. Baker McKenzie, a legal firm, has just written about Thailand and IAM relayed this placement/ad for a firm from Taiwan. It doesn’t matter to them what it means to innovation, as long as there is a lot of litigation and money keeps flowing into the pockets of middlemen (including robber barons like Team Battistelli). █
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“The Chinese Are Coming!” (British Empire’s national broadcaster on the weak — and obviously hypocritical — narrative of Chinese ‘imperialism’)
Summary: Patents on algorithms are promoted in all sorts of misleading (but familiar) ways, which include bias by omission (cherry-picking), fake economics, distortion of statistics, and possibly xenophobia too (fear of China)
China seems to have become almost a role model or a poster child to Battistelli’s EPO (it wants applications from China at the expense of anything). Quality of patents does not matter to them. Public interests or service don’t matter either, just the profit of some tiny niche of people who make a living out of patents alone. Patent maximalists in the US, likewise, regularly use "China!" as their argument for patent maximalism (Watchtoll, IAM, David Kappos and IBM can’t stop talking about “China!”). It’s troubling because it’s incredibly dishonest and what they are doing is clearly destructive to their nations (not that they are patriots, they are just greedy and self-serving).
Their argument in a nutshell is, if we don’t allow algorithms be to patented, China will “win” — a loose term for simple-minded and careless people like Donald Trump (there are many reports like “Donald Trump stokes foreign policy fears in China”).
“It’s troubling because it’s incredibly dishonest and what they are doing is clearly destructive to their nations (not that they are patriots, they are just greedy and self-serving).”“Good to see that SIPO aligns with the EPO’s “any hardware approach” when it comes to patent-eligibility,” said Bastian Best (very vocal proponent of software patents but not a software developer) the other day. That’s the same man who had also linked to Steve Lundberg’s “patents4software” blog (non-developer speaking ‘on behalf’ of developers [1, 2]). Lundberg says “Kudos to China on Software Patents,” alluding to news which we covered in [1, 2]. They are trying to argue that just because China permits software patenting so should the US, which scales back if not eliminates them.
Jack Ellis, another lobbyist like Lundberg (they are disguised as professionals, but all they do is lobby), has just published this post titled “China relaxes rules on software patentability – and the United States loses more ground”.
Front groups like IAM are using shame tactics against the USPTO. It’s part of that push which we have been writing quite a lot about recently. They also do this in India quite frequently (at least twice in the past week alone).
“Front groups like IAM are using shame tactics against the USPTO.”Ellis says “United States loses more ground,” as if it’s a bad thing to control quality. Ar they really losing by improving their system? IAM’s lobbyists just can’t help but show what they really are. It’s not a news site and it’s just as biased as Techrights, except we in Techrights are not funded by anyone and certainly not selling influence under the guise of ‘journalism’.
Watchtroll was of course all over this too, pushing for software patents under the headline “China relaxing barriers to software, business method patents with revised patent guidelines,” which added business methods to it.
IAM didn’t stop there. The lobbying, which characteristically came out just before the weekend started, intensified even further with gross misinterpretation of data from a group antagonistic towards patent trolls, Lex Machina. See this IAM post titled “Software patents fight back in the US as Federal Circuit decisions begin to influence lower courts” and examine it closely enough. This is mostly fiction from the think tank known as IAM, which misinterprets data for the sake of promoting software patents, as usual.
“IAM is lying/distorting things again, but that’s just its business model.”The core of their argument is CAFC, where it says: “The fall in 101 invalidations at the end of 2016, though, may indicate that a series of decisions last summer by the Court of Appeals for the Federal Circuit (CAFC) including Enfish, Bascom and McRo is beginning to have an effect.”
There were far fewer patent lawsuits in 2016, and fewer people bothered even bringing software patent to courts (after Alice, for obvious reasons). IAM is lying/distorting things again, but that’s just its business model. That’s what many firms are paying it for. It’s their propaganda mill, it’s tasked with perception management, e.g. softening the image of patent trolls.
Writing about the same data as above — albeit without the lobbying (or pseudo-activist) slant — Law 360 said that Lex Machina “tallied the number of patents that courts have invalidated under Alice.” To quote the opening paragraph (most of it is behind paywall anyway):
The national law firms that handled the most patent cases in 2016 includes several big names that were also among the busiest in 2015, according to a new report by Lex Machina, which also tallied the number of patents that courts have invalidated under Alice.
We have repeatedly made the (hopefully compelling) argument that many software patents are now de facto invalid and their holders no longer even bother suing, as they can see the high (and growing) likelihood that legal action would officially turn their patents to dust, leaving these holders with nothing but legal bills. IAM’s conclusion, as put in the headline (to make it into news aggregators) is highly misleading, but that’s what their subscribers pay for. They deposit a small proportion of their income and withdraw influence and warped public perceptions. Some of the misguided clients might be lured into lawsuits that would be lost; only the lawyers would profit.
“We have repeatedly made the (hopefully compelling) argument that many software patents are now de facto invalid and their holders no longer even bother suing, as they can see the high (and growing) likelihood that legal action would officially turn their patents to dust, leaving these holders with nothing but legal bills.”Looking closely at what CAFC has been doing, in 2016 it agreed with PTAB invalidations almost 80% of the time and the same trend continues this year, based on figures that we recently shared here. Law films keep cherry-picking CAFC cases (even old ones, as IAM did above) in order to make it seem as though software patents still have ‘teeth’. Published in a few domains of patent lawyers and other lawyers [1, 2], one such law firm explained “Federal Circuit Rules Software Patent for a User Interface is Patentable Subject Matter,” but if one looks at all the other CAFC cases, then it’s abundantly clear to see that they are just cherry-picking cases and nitpicking reality. Later on we will write about some new cases where software patents are invalided en masse — not something that IAM would touch even with a 5-foot bargepole (bias by omission). █
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By granting patents even on abstract concepts such as algorithms, China and Japan (but not Korea, which forbids software patents) leave India all the liberty to develop software without fear of ruinous lawsuits
“The day that the software sector forms a clear front against software patents, as pharma does for a unitary patent system… will be the day our cause comes close to winning.”
–Pieter Hintjens, Fosdem07 Interview
Summary: China’s and Japan’s patent systems continue to be liberal on software patents, but this is actually a very bad thing which in no way favours software developers; it actively harms their work
“China’s IP office has released new guidelines that include a reduction in restrictions on software patents. Observers say it is not clear how big an effect it will have in practice,” Shaun Tan wrote from Hong Kong for MIP just hours ago. Hours earlier we had noted that China cannot help shooting itself in the foot with this policy. China’s interests are not served but harmed by this. Can they not see it? Who is advising them on these matters? Probably not software engineers but lawyers…
Published over a week ago, on February 21st to be precise, Adriana L. Burgy from Finnegan (Finnegan, Henderson, Farabow, Garrett & Dunner, LLP) wrote this piece that mentions China’s patent policy. Prosecutors from Finnegan obviously try to maximise the damage caused by patents because to them it means profit. Who cares about coexistence and open cooperation (like sharing of code) anyway?
Here is a portion from Burgy’s article:
Excess claim fees are not new and are used in many patent offices worldwide. For example, the European Patent Office varies their claim fees for the 16th to the 50th claim and then, again for the 51st and each subsequent claim; when filing a request for examination, the Japanese Patent Office fee is directly proportional to the number of claims; and the Chinese Patent Office charges for claims in excess of ten. Here in the U.S., the basic filing fee includes three independent claims and a total of twenty claims. Today in our post-grant proceeding world, do we need to rethink the number of claims we use to cover an invention?
Another new article, this one about chemical patents, explains how it works in China. We read that with interest as we are trying to better grasp the differences between patent offices rather than rely on lawyers who have their own selfish agenda and belief (like faith, or religion) that more patents are always more desirable.
Here is IAM, part of the the litigation lobby, moaning that “[f]oreign patent owners face big hurdles when seeking to get damage awards and licence fees out of China”. To quote:
One consequence is that for foreign companies that win a court case in China, it has reportedly become very difficult to remit any damages they’re awarded back to headquarters. Normally, Chinese courts collect damage money from defendants and turn it over to the plaintiff’s lawyers. But if the winner is based overseas, its lawyers are going to have a very tough time exchanging the RMB award into a convertible currency. Chinese courts can also give damages directly to plaintiffs – if they are foreign companies, this involves asking currency authorities to convert the judgment into, say, Euros. The problem? “Very few courts are willing to risk gaining a reputation for readily sending money overseas,” says one China-based lawyer with first-hand experience of the issue. “Nobody wants to step out of line, and very soon infringers will be aware of that.”
So perhaps they should quit wasting time with the SIPO, where patent quality is so low that it will become impossible to distinguish between potent patents and waste of paper.
Japan, based on another new article, still grapples with the situation where employers take credit (and ‘ownership’) of employees’ ideas. Changes effective from the first of April 2016 (i.e. exactly one year before the above-mentioned changes in China) address that conundrum and the article explains the scenario as follows: “The Patent Law prescribed that a right to obtain a patent for an invention, which occurs when the invention is made by the inventor, is inherently vested in the inventor, on the grounds that only a natural person (not an artificial person such as a business entity) is eligible as an inventor.”
“That’s just happens when lawyers (or liars) use terms like “Intellectual Property”, lumping together copyrights, trademarks, patents, and even trade secrets.”So basically, there’s not much for mere employees, i.e. technical people, to gain from patents. It’s the lawyers and managers who seem to have an insatiable appetite for plenty of patents. They think differently. They, especially the management, probably don’t even know exactly what patents are and how they work; as for lawyers, they don’t comprehend the process of research and development. They never did any of that stuff!
“Can I protect my trademark through a patent?”
That’s an actual question from this article. That’s just happens when lawyers (or liars) use terms like “Intellectual Property”, lumping together copyrights, trademarks, patents, and even trade secrets. As long as politicians are mostly lawyers (not scientists) change and honest debates are merely a distant dream. Patent lawyers are to debates about innovation what oil companies are to debates about climate. █
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By lawyers, for lawyers, but carefully and shrewdly disguised as news/journalism
Summary: China’s patent office, SIPO, maintains its misguided policy that software is patentable and India, which antagonises these policies in the face of a never-ending shaming campaign, comes under attack from IAM ‘magazine’ twice in a single week
SIPO is one of the world’s worst patent offices, if not the worst among prominent nations with a high-tech industry. We previously wrote about misguided new guidelines from SIPO and also used SIPO as an insult to the EPO, which seems eager to emulate SIPO’s mistakes. See the following posts for example:
SIPO examiners are now working against their national interest, for the appearance of “progress” (by artificially-inflated numbers). Trolls are already infesting China, which damages their economy. Sadly, over time, the same is becoming true in Europe and examiners from the EPO seem to be realising this. They didn’t join the EPO to get enlisted into an assembly line but in order to work like researchers who carefully study prior art — something akin to peer review.
“So they are promoting software patents under the guise of “clarity” — the same propaganda that is used in the US by lobbyist David Kappos and his large corporate clients, such as Microsoft and IBM.”A few months ago we noted that India and China were moving in opposite directions; India had created a massive software (development and services) industry, whereas China is known for making billions of devices, so India rejects software patents, whereas China adopts them to give the impression of ‘leadership’ (as measured with a Battistellite yardstick).
According to this new post, SIPO wants to become even more of a joke or an insult. On April 1st (an interesting choice of date) it will officially allow software patents, i.e. patents on mathematics… (what next? Patents on clean air and clean water?)
In an effort to further enhance protection of Intellectual Property Rights (IPRs) and to promote implementation of the innovation-driven development strategy, the State Intellectual Property Office (SIPO) of China has revised its Examination Guidelines for Patents, which will come into force as of April 1, 2017.
The revised Guidelines include the patent eligibility of computer softwareand business method, the acceptability of post-filing experimental data for chemistry inventions, the rules of claim amendments during patent invalidation procedures, and the availability of public access to patent documentations. Notably, the revisions may lift the long standing curbs on software patents.
Meanwhile, IAM is up to its usual business, which seems to be lobbying.
Only two days have passed since IAM last attacked India's policy for banning or excluding software patent. It does this again today, quoting somewhat of a Microsoft proxy (Wipro) as follows:
Faiz ur Rahman, head of intellectual property for Wipro, pointed to the agency’s flip flop on software patents over the last couple of years as an egregious example. The patent office has issued guidelines for examining computer-related inventions in 2013, 2015 and 2016. While the 2015 rules seemed to move more in the direction of making software-related inventions patentable, the latest edition swung back in the opposite direction. For an IT services company like Wipro, that makes it very difficult to plot out a strategy for IP and innovation. “We need finality and quicker clarity over whether software is patentable in India”, Rahman said. “The uncertainty is really killing innovation”.
So they are promoting software patents under the guise of “clarity” — the same propaganda that is used in the US by lobbyist David Kappos and his large corporate clients, such as Microsoft and IBM. When is IAM officially recognised (and perhaps registered) as a lobbyist/think [sic] tank, e.g. of the EPO, USPTO maximaists, and the patent trolls? Just watch IAM's pattern on India alone… █
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Summary: The shaming tactics against India, which come from many directions (notably front groups in the West), still try hard to convince Indians to shoot themselves in the foot and allow foreign companies to privatise algorithms
IT HAS barely been two months since IAM last did this and here they go again, pushing for patent maximalism in India as if a bunch of writers in London area (lawyers’ capital) can offer sound advice to Indians who were, for a long time, colonised by the British Empire.
“As a reminder, India does not permit software patenting and it should keep it that way to combat digital colonialism.”The latest approach of this IAM lobbying is already familiar. Microsoft’s ‘puppet’ Tata (TCS) is obsessed with — and lobbies for — software patents [1, 2], so IAM now uses it as a poster child, as if the number of patents assigned to oneself is an indicator of “success” in its own right. The lobbyists (in “writer” or “journalist” clothing) from IAM basically try to shame Indian companies that don’t waste their time and money on software patents. Such is the case with Infosys, so IAM frames it like this in the headline: “It’s clear that Tata gets the importance of IP, but it is one of the few Indian businesses which does” (how loaded a headline, “importance of IP”).
Putting aside the fact that patents and “IP” are not the same thing (trademarks, for example, are entirely separable), watch what they say:
Even more notable, though, is the absence of Indian companies among the lists of big patent filers, not only in key foreign markets, but also at home. Clearly, Tata does see the benefits that patents and other forms of IP bring, but right now it is one of the few Indian entities that does. If the Americans appreciate the resources that India can bring to the table, surely business leaders based in the country – as well as its government and other decision-making authorities – must too. A talent drain may suit Silicon Valley, but it cannot be in India’s best interests. It’s hard to believe that persuading the country’s brightest scientific, engineering and computing stars that they are best off working at home for local businesses will not bear substantial fruit further down the line. Just ask Tata and its CTO.
It means that the patent system in India now exists mostly for foreigners — a fact which we remarked on before. This also mentions IBM, which keeps lobbying for software patents in India in order to better occupy/control/dominate India.
As a reminder, India does not permit software patenting and it should keep it that way to combat digital colonialism. When it comes to software, India can do just fine on its own. It has some of the world’s brightest developers and it employs many millions of software professionals. █
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