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08.12.18

Software Patents, Secured by ‘Smart’ and ‘Intelligent’ Tricks, Help Microsoft and Others Bypass Alice/Section 101

Posted in Asia, Microsoft, Patents at 4:11 pm by Dr. Roy Schestowitz

Native American tribes (so-called ‘Indians’) are exploited by patent maximalists and India gets it right on software patents

Blue lagoon

Summary: A look at the use of fashionable trends and buzzwords to acquire and pass around dubious software patents, then attempting to guard these from much-needed post-Alice scrutiny

THE USPTO has limited somewhat the sorts of patents or number of patents it grants, partly owing to restrictions on abstract patents, which include software patents. This is the correct thing to do and software development powerhouses such as India got it right (there are almost no software patents in India).

Seeing the usual nonsense of LexOrbis (e.g. [1, 2]) the other day, we’re still meeting a familiar old pattern. Watch how Anil Kumar (LexOrbis) is promoting software patents under the guise of “mobile” (or “on a phone”). “In other words,” he said, “to be patent eligible, the mobile application should make the mobile device function in a certain way. The software code itself that achieves the function is not patent eligible. However, the functionality achieved by means of the software is patentable. On the other hand, the software code doing it can be protected under copyright.”

Copyright is the only thing software developers need and want. Looking at this other new article from India (one of a large bunch), it says that TCS wants to branch out a firm that “has more than 75 patents filed in the artificial intelligence (AI), machine-learning and intelligent-automation space..,”

These are abstract software patents that should not have been granted. India’s TCS somehow managed to get those. What would courts say? There is still lots of "AI" hype in patent boosting circles, trying to paint algorithms as “smart” or “intelligence” (“intelligent”) because of Section 101/Alice. Sometimes they mention “AI” in relation to prior art search (new example here; it’s the same old snake oil and this really does not deal with underlying understanding of antonyms etc.) and timetimes they basically allude to algorithms by calling them “AI” or “machine learning” or whatever.

Here is the patent trolls’ lobby (Timothy Au, IAM) writing about this in relation to Microsoft:

Microsoft and Alphabet currently own the most – and the highest quality – patents relating to machine learning, research commissioned by IAM has revealed. However, the data also shows that most companies are being outpaced by the technology’s rapid rate of development, and at this stage anyone could come from anywhere to claim a leadership position. Jointly produced by IP analytics platform PatentSight and ip-search, a commercial patent search service provider of the Swiss Federal Institute of Intellectual Property, the research provides a detailed look at the machine learning landscape from a patent perspective.

Those are software patents. I know because I worked in that area.

The patent trolls’ lobby (Richard Lloyd in this case) also wrote about Microsoft-connected patent trolls such as Intellectual Ventures (IV) using more proxies, e.g. Dominion Harbor, when he said: “This blog has closely followed the patent divestments that Intellectual Ventures has undertaken since the firm stopped buying for its most recent fund and looked to slim down its giant portfolio. Many of those assets have ended up in the hands of some familiar hands, with Dominion Harbor picking up the lion’s share and others going to entities linked to serial patent monetiser Leigh Rothschild. However, two recent assignments (seen here and here) recorded with the USPTO show the range of acquirers that have been looking to pick up what IV has on offer.”

“IV assignments to Native American tribe shows just how far it is casting sales net,” says the headline, but American tribes provide no protection from the Patent Trial and Appeal Board (PTAB), so what’s the point? An inter partes review (IPR) can still be filed against such patents. Earlier today Patent Docs advertised an upcoming “Webinar on Sovereign Immunity before the PTAB,” so basically they have a webinar on something that does not exist. Great! What a waste of time and money.

The general trend we’re seeing here is an attempt to sneak software patents through the system and then avoid reassessment of such patents. In effect they dodge justice itself.

08.07.18

Racing to the Bottom, the António Campinos-Led EPO Continues to Promote Software Patents, Just Like China

Posted in Asia, Europe, Patents at 1:52 am by Dr. Roy Schestowitz

Shen (SIPO), Lutz, Battistelli, and Lamy at the end of 2016 in Saint-Germain-en-Laye

SIPO Lamy and Battistelli

Summary: The EPO is being transformed into ‘SIPO Europe’ [1, 2], a dangerous gamble which would leave European firms more susceptible to frivolous litigation and generally reduce the value of previously-much-coveted European Patents

THE number of patents granted by the USPTO is declining. That’s not a bad thing; what’s most important is the quality of granted patents. The opposite thing is happening at the EPO and based on the internal EPO communications/memos, António Campinos is perfectly happy to automate patent examination tasks and still increase so-called ‘production’, even by means that examiners warned about (it’s easy to work around or bypass algorithm-based prior art searches).

“Software patents in Europe were always our foremost concern and there’s no sign of them stopping.”This is a disaster in the making, but the Outsourcer in Chief Campinos doesn’t seem to mind. He’s copying China. Less than a day ago we saw recognition of the fact that China nowadays grants truly appalling patents. The EPO now goes down the same route…

“SIPO’s stats for the first half of 2018 highlight growth in patent filings but practitioners are concerned about quality,” Karry Lai wrote from Hong Kong in a patent maximalists’ site. Meanwhile, according to an ad from Watchtroll (posted yesterday), “USPTO Seeks Senior Counsel for China Intellectual Property Policy”.

Software patents in Europe were always our foremost concern and there’s no sign of them stopping. In fact, the EPO was promoting software patents less than a day ago when it wrote: “Régis Quélavoine, a director in Mobility and Mechatronics at the EPO, will discuss patenting computer-implemented inventions and artificial intelligence at the EPO at this event in Chicago…”

And then (on the same afternoon) the EPO 'dressed up' software patents as "artificial intelligence" when it wrote: “Over 350 experts from industry, academia, patent law firms and national patent offices attended the first-ever event on the impact of #artificialintelligence on the patent system.”

Worryingly enough, these sorts of tweets have become very frequent since Campinos took over (maybe more frequent than back in the Battistelli days).

07.27.18

The Patent Trolls’ Lobby, IAM, is Concerned That China is Now Treating Patent Trolls as the Criminals They Really Are (Extortion)

Posted in Asia, Patents at 1:22 am by Dr. Roy Schestowitz

Set of handcuffs

Summary: China is restrictive enough to actually crack down on patent trolls, but it fails to realise that these trolls are a symptom of its poorly thought-through patent policy, which even permits patents on algorithms

China belatedly does what the US should have all along done. It treats patent trolls as criminals. Having granted far too many patents (the EPO copies that strategy, unlike the USPTO), there is now a much-expected rise of patent trolls, which are also being compared to “cockroaches” in China. Yesterday IAM wrote this update:

Last weekend’s announcement of criminal extortion charges for a married couple engaged in patent troll activity against pre-IPO companies in China has caused quite a bit of discussion in the IP world. According to prosecutors in Shanghai, the two individuals had engaged in clearly fraudulent acts including fabricating a backdated licence agreement and using it as the basis for a lawsuit. On the other hand, the way investigators described the case suggested that it was also the overall pattern of opportunistic patent assertions that landed the couple in trouble. All the details we’re aware of are available here.

Those sorts of tricks aren’t unique to China; the difference is, in a country like the US people get away with it and even lionised posthumously. IAM would try to make it sound like the exception so as to not alarm its stakeholders which are patent trolls as well. Now, if only China realised that the above is a sort of “karma” (they believe in incarnation, don’t they?) for patent maximalism…

Suffice to say, patent extremists like Watchtroll still envy China; writing about a hearing which is not about patents, last night Watchtroll published “House Permanent Select Committee on Intelligence Holds Hearing on China’s Threat to U.S. Innovation Leadership”. Are they just counting patents again?

07.25.18

As the Quality of European Patents Sinks António Campinos Must Heed China’s Warning, Not Copy SIPO/TIPO

Posted in Asia, Europe, Patents at 3:37 am by Dr. Roy Schestowitz

SIPO and Battistelli
References: Battistelli and China, 2016 [1, 2, 3]

Summary: This epidemic of the short-sighted mindset wherein more patents are more “success” needs to be ended; but the new President of the EPO shows no signs of deviating from Battistelli’s race to the bottom (along with China)

TECHRIGHTS has covered the USPTO more than it has covered the EPO lately. The EPO became very quiet; there are hardly even any tweets or announcements. Like we said earlier this week, the agenda is similar and as we noted yesterday, António Campinos may be just a quieter version of Battistelli. Software patents continue to be granted in Europe and there’s no intention to change that under Campinos. It’s just patent maximlism all the way.

SIPO is reorganising, IAM said yesterday, and it also published this placement which serves to show that TIPO (Taiwan) grants low-quality patents which courts then invalidate. To quote this one example:

Nichia’s invention patent TW156177 relates to a light-emitting diode (LED) comprising a light-emitting component and a phosphor capable of absorbing some of the light emitted, as well as producing light of a different wavelength.

Another thing we covered yesterday is the belated realisation in China that patent trolling is a real problem. When patent quality is lowered — as empirical analyses have repeatedly shown — patent trolls spread.

Yesterday Patently-O promoted this recent scholarly paper about patent “Quality vs. Quantity” in China. Composed by Ana Maria Santacreu and Heting Zhu (Federal Reserve Banks – Federal Reserve Bank of St. Louis), the abstract says this:

Using three measurements of patent quality, we argue that there is still room for China to improve its innovative activities. Comparing the number of patent applications and patent grants across countries, we see that although the United States and Japan have been global leaders in innovation for a long time, South Korea and China are catching up fast. If China sustains its large innovation investment and shifts its focus from quantity to quality, together with an improvement in intellectual property rights, the likelihood of becoming one of the next innovation leaders could be much higher.

China allows software patents; two years ago it made the rules on this matter even more lenient, which meant that patent quality did not really matter (broadening scope did). China is one of the very few countries in the world that formally permit software patents.

Last night Managing IP, a site of patent maximlists, published an article titled “What is driving China’s AI patent filing boom?”

“AI” just means “algorithm” these days. The term no longer means what it used to and more often than not it’s a loophole for patenting software. The Indian media also did this last night, framing software as “AI” (as in algorithms; plus the hype/buzzword).

This report from the Times of India soon morphed; “develops” becomes “patents” in the headline, changing the meaning of the original article.

So going back to the EPO, what is its stance on software patents? Well, it seems like one just need to calls these “ICT”, “CII”, “AI”, “4IR” and so on. Then the EPO is perfectly happy to issue a patent, awarding/granting a monopoly on algorithms.

Mind this week’s press release which celebrates nothing but a patent grant. To quote:

Immuron Limited (ASX:IMC) (NASDAQ:IMRN) is an Australian microbiome biopharmaceutical Company focused on developing and commercializing orally delivered targeted polyclonal antibodies for the treatment of inflammatory mediated and infectious diseases. The Company is pleased to announce that the European Patent Office (EPO) has decided to Grant a patent for the use of a composition for the treatment of Non-alcoholic steatohepatitis (NASH). This patent (EPO Grant No. 2424890) is entitled “Anti-LPS enriched immunoglobulin preparations for the treatment and/or prophylaxis of a pathologic disorder”). This patent is due to Expire in April 2030, with potential for supplementary protection and extension of this monopoly.

Do they know that the EPO‘s patent examination is besieged and many European Patents will later turn out to be bunk? Do they care? Well, they might start caring when their own patents (which they certainly view as “good” and “legitimate”) repeatedly perish in courts, costing them millions of euros. Low-quality patent grants cost dearly; both plaintiffs and defendants suffers, but only the lawyers benefit.

07.24.18

China Belatedly Tackles Patent Trolls, Albeit After Giving Them the Green Light With Broad and Low-Quality Patents Such as Software Patents

Posted in Asia, Europe, Patents at 3:12 am by Dr. Roy Schestowitz

SIPO/EPO race to the bottom takes its toll

Paper cut

Summary: An epidemic of patent trolls outside the United States is a real problem and officials are able to recognise it; in Europe, however, the EPO is largely apathetic and actively helps pass legislation to further assist these trolls

THE EPO is a lost cause which grants software patents routinely and flagrantly breaks the rules, the law etc. In contrast, the USPTO has become tougher on software patents (see this local news site about “recent local patents awarded”) and the US courts more so. There aren’t so many patent cases involving software patents anymore. China has become pretty much the only large country to formally allow software patents and it’s hardly surprising that it’s being exploited by patent trolls.

“China has become pretty much the only large country to formally allow software patents and it’s hardly surprising that it’s being exploited by patent trolls.”IAM, for a change, uses the term “patent troll activity” in its headline, which is rare (they typically promote patent trolls who fund them and use euphemisms/PR terms/acronyms to describe these). The headline says “Husband and wife accused of patent troll activity face criminal extortion charges in Shanghai”. So, at least in some sense, if in China you’re a patent troll the government will see you for what you are: an extortionist. In the US, however, it’s just “business as usual”; it’s considered acceptable as trolls have lobbyists who ‘normalise’ it and some even receive eulogies when they die like their spiritual leader. From IAM:

Two people have been charged in what could be China’s first criminal prosecution of alleged patent trolls. On 21st July, prosecutors in Shanghai announced a criminal case against a married couple who had obtained patent settlements with a series of pre-IPO companies using litigation, reports to securities regulators and, in at least one case, forged documents. It’s a sign that criminal authorities are taking a close look at business practices around China’s fast-growing patent assertion environment. The couple, pseudonymously surnamed Li and Sun, are patent agents by profession, IAM understands.

What about Europe, where patent trolling has been on the rise? Well, some are still salivating over the UPC, falsely believing that it is about to come. Yesterday we saw this tweet which said: “Interesting @ para 151 of the White Paper, UK commits to remaining in the Unified Patent Court, which refers to the CJEU for preliminary rulings, binding on the UPC. Anyone noticed? ”

“It did not commit to it,” I’ve corrected her, as it’s untenable and there’s more spin about it. António Campinos actively participates in this spin and yesterday someone (from Klunker) also mentioned this patent troll in Europe:

In a joint effort with colleagues of @Preu_Bohlig we could nullify #monitoring #patent EP1196856B1 (goo.gl/dEeWpt) of #PatentTroll #PacketIntelligence thus endig their #litigation campaign against @HPE, @Sandvine and @HuaweiEU in Europe. Will surely have an impact on US pic.twitter.com/KLg9y3zYpr

It’s rather reassuring to see recognition of this problem in Europe and in China, not just in the US. Patent trolls offer nothing to society, to the economy etc. It’s just blackmail, pure and simple.

07.22.18

The World Has Moved on and Beyond Software Patents, But Buzzwords and Hype Provide Workarounds

Posted in America, Asia, Europe, Patents at 10:04 pm by Dr. Roy Schestowitz

Related: The ‘Blockchaining’ of Software Patents (to Dodge the Rules/Guidelines) Now Coming to Europe

What is the Difference Between a Blockchain and a Database?
Reference: What is the Difference Between a Blockchain and a Database?

Summary: A look at the status quo of software patents and some of the past week’s reports, which still disguise such patents as “financial”

Software patents in India aren’t allowed (not “per se” anyway). In the EPO it’s “as such” and in the USPTO there are now exclusions for “abstract” ideas, which many interpret as inclusive of computer algorithms.

As we reported last week, Australia had gone down the same route, as did New Zealand. South Africa also, so the English-speaking world is overwhelmingly against software patents now. The main exception to that global trend is China.

A few days ago a patent law firm from India (one that we mentioned here before) noted that:

A software by itself or computer program per se is not considered as an invention as per Section 3(k) of the Patents Act, 1970. Section 3(k) stipulates that a mathematical or business method or a computer programe per se or algorithm are not invention within the meaning of this Act.

None of that has changed. Over the years we’ve been keeping track of many efforts to change that. But India stood firm in the face of lobbyists.

“Cryptocurrency”, “AI”, “cloud” and other hype has meanwhile been exploited in the US and Europe to bypass restrictions and patent software. We’ve written many articles about that and here’s a new example:

Ernst & Young LLP (EY) announced on Thursday it has acquired technology assets and related patents from Elevated Consciousness, Inc., a U.S. startup focused on developing unique solutions for the crypto-asset ecosystem. EY reported that the acquisition is part of its strategy to expand blockchain-related capabilities and services worldwide.

Well, such patents are bunk, even ifthey ‘dress them up’ as “blockchain” or “cryptocurrency”. Those are software patents. Here is another new example, this one about Walmart:

Is blockchain technology the answer to fighting porch pirates and ensuring safe delivery of items from online retailers to customers’ homes? Walmart seems to be at least exploring the possibility, according to a patent application that the company recently filed.

The application , dated July 5, describes a system of “locker docking stations” that could be “located at a user’s home, at public locations such as transportation hubs, public venues, or the like, or other desired locations.” The stations would coordinate “directly with one or more delivery systems” to organize the delivery of items.

This isn't the first time we see Walmart dabbling in it; if tested in US courts, however, such patents would likely be rendered invalid under Section 101.

News has been relatively slow this past week (normal for summertime), but we carry on watching trends and milestones in the fight against software patents.

07.15.18

IAM/Joff Wild May Have Become a de Facto Media Partner of the Patent Troll iPEL

Posted in America, Asia, Patents at 8:53 pm by Dr. Roy Schestowitz

Now producing a puff piece every week

Some pig

Summary: Invitation to trolls in China, courtesy of the patent trolls’ lobby called “IAM”; this shows no signs of stopping and has become rather blatant

THE legal terrain in the US has become trolls-hostile, as we last noted yesterday. Having run short of opportunities in the gradually-reformed US (especially the courts, not the USPTO), some patent trolls now look at China for litigation opportunities. That includes iPEL, an unethical troll which calls itself “ethical” and even trademarked this term (“ethical NPE”).

“That includes iPEL, an unethical troll which calls itself “ethical” and even trademarked this term (“ethical NPE”).”Joff Wild and his colleagues/writers/lobbying team have been doing puff pieces for iPEL, e.g. [1, 2]; the matter of fact is that almost nobody else writes about it and they speak directly to the troll, issuing puff pieces (and threats) every week or so. Yesterday’s latest puff piece was about “game-changing patent case” and by “game” they mean “trolling”. To quote:

After all, $100 million of damages from one company indicates that there is considerable further upside in the wider industry or sector the patents cover. To hand over the ability to tap that amount of revenue for anything other than a huge sum of money would be extremely careless – to say the least. From what I know of the likes of Huawei, ZTE and others that iPEL has bought from, such as Panasonic, it’s hard to see them doing such a thing.

Although Yates has been a long-time player in the US monetisation [trolling] market – and filed over 500 suits during 2015 and 2016, before falling foul of Judge Gilstrap in the Eastern District of Texas last year – he does not seem to have done much work in China up to now. It is likely, though, that he has done plenty of research and spoken to a lot of people. They would surely have told him that discretion is the better part of valour in a jurisdiction that, although it generally treats plaintiffs well, is increasingly complex and political.

Yeah, trolls are “increasingly complex and political.” So are extortion rackets.

We suppose many of our readers already know what IAM stands for (e.g. lies for Battistelli and EPO revisionism). But one must understand that these people are shown in “news” feeds and apparently pay other sites to reprint this tosh.

“We cannot stress strongly enough that media covering patent issues is in an appalling state. It’s almost entirely PR; there’s barely any investigative, critical journalism in this domain.”Patent Docs is another mouthpiece of patent maximalists’ agenda. Webinars from the Intellectual Property Owners Association (IPO) and other proponents of software patents are still being advertised there this weekend (coming soon). It’s quite fitting that patent lawyers nowadays use the term “unclean hands” (brought up a lot recently). Webinars like this upcoming one deal with questions such as: “How will Supplemental Examination effect both unclean hands and inequitiable conduct?”

We cannot stress strongly enough that media covering patent issues is in an appalling state. It’s almost entirely PR; there’s barely any investigative, critical journalism in this domain. In the case of IAM, it’s borderline lobbying, pure and simple.

07.14.18

From East Asia to the Eastern District of Texas: XYZ Printing, Maxell, and X2Y Attenuators

Posted in America, Asia, Patents at 10:31 pm by Dr. Roy Schestowitz

XYZ Printing
Permanent/archived copy

Summary: The patent aggression, which relies on improper litigation venues, harms innocent parties a great deal; only their lawyers benefit from all this mess

THIS WEEKEND we shall focus on USPTO news, then release some new material about the EPO. But before we get around to it all, we’d like to highlight the above post, which someone brought to our attention yesterday. It’s an attack on Open Source and it’s happening in China, courtesy of XYZ Printing, an entity we’ve never mentioned before. What is it exactly? Is XYZ Printing just another patent troll as alleged above?

“As it turns out, it’s yet another patent lawsuit in the Eastern District of Texas. And against Chinese companies!”Speaking of which, Bing Zhao, who typically writes about China for the patent trolls’ lobby (IAM), wrote about Maxell a few days ago (it’s a Japanese company that manufactures consumer electronics). As it turns out, it’s yet another patent lawsuit in the Eastern District of Texas. And against Chinese companies! It shows that for companies to operate anywhere near there is a major liability/risk. More so after TC Heartland (although the applicability to foreign companies is limited, as per recent Federal Circuit decisions). It has become very unwise for any company — US-based or foreign — to have any sorts of operations in Texas, whose patent agenda has clearly backfired.

“Yes, the patent trolls’ lobby (IAM) is always eager to give publicity to, i.e. amplify, the aggressors, not the defendants. This is what IAM exists for.”“Earlier this month,” Zhao wrote, “Maxell won a $43.3 million damages award against ZTE in the Eastern District of Texas. It was the first jury decision for the Japanese electronics company, formerly a unit of Hitachi, since it began a US patent enforcement campaign back in 2016, with Huawei and ZTE as its initial targets. The company still has pending US patent suits against companies including Huawei, Asus and BlackBerry. IAM had an exclusive sit-down interview in Tokyo with Tatsuya Yamamoto, senior manager, IP licensing and legal at Maxell, to hear his insights into the company’s current enforcement campaign and its overall patent strategy.”

Yes, the patent trolls’ lobby (IAM) is always eager to give publicity to, i.e. amplify, the aggressors, not the defendants. This is what IAM exists for. See who’s funding it.

“These sorts of issues need to be tackled because when entities simply wrestle with (or twist) patent law justice itself is the principal casualty.”It has meanwhile been noted that patent thugs try to find artistic new ways for venue shifting (after TC Heartland). Citing X2Y Attenuators, LLC v Intel Corporation as a new example, Docket Navigator writes: “The court granted defendant’s motion to dismiss for improper venue because defendant did not have a regular and established place of business by placing four employees at a university lab in the district.”

In spite of the “LLC” and a similar mame to “XYZ Printing” at the top, X2Y Attenuators is not a troll. It’s also not about software patents. But it seemingly looks for the big bucks from Intel, even in an improper venue.

These sorts of issues need to be tackled because when entities simply wrestle with (or twist) patent law justice itself is the principal casualty.

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