EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

09.04.18

A Retreat From Patent Quality Means a Retreat of Patent Applicants

Posted in Australia, Europe, Patents at 7:54 am by Dr. Roy Schestowitz

They would not spend a fortune pursuing patents that courts would likely invalidate/reject for the same reason students would not apply for colleges and universities whose degrees aren’t respected by employers

Walking feet

Summary: Walking away from patent offices that grant patents too easily (even patents that have no legal standing) is an existential threat to these offices; by tarnishing a reputation of patents which they grant patent offices can soon thereafter perish, as the EPO demonstrates (ongoing ‘shadow’ layoffs)

EARLIER THIS WEEK Romania Insider published “Only five out of a million Romanians own European patents,” referring to European Patents (EPs) granted by the EPO. It’s not so crazy to argue that EPs just aren’t worth the money anymore because the EPO got corrupted by a bunch of self-serving crooks and as a result examination cannot be properly and thoroughly performed (as it ought to). There’s not enough time to do the work, as insiders keep telling us, and veteran examiners are quietly being laid off. They’re not even being replaced as there’s a longterm hiring freeze and those with greater experience are being pushed out. This is a major scandal like nothing we’ve ever seen at the USPTO (the EPO actually makes the USPTO look very, very good and ethical in comparison).

Jakob Pade Frederiksen’s new guest post at Managing Intellectual Property deals with “checking [of] patent text” by applicants. A poorly quality-controlled examination meant that a lot of work (such as researching prior art) had been offloaded to applicants; examination by the Office was killed by Battistelli anyway; he doesn’t seem to have had an interest in anything other than speed or pace (or P.A.C.E.) because it’s just ‘printing’ patents as fast as possible that counts as “success” based on his yardstick (so-called ‘productivity’). The article in question cites the European Patent Convention (EPC) — a fundamental document (like a Constitution) that long ago lost its relevance because the EPO stubbornly deviated and violated it ever so routinely. Battistelli treated it like toilet paper — something which never bothered Jesper Kongstad, who actively participated in violating the EPC until his government (based on rumours we heard) effectively fired him. To quote:

Pursuant to Rule 71(3) of the European Patent Convention (EPC), towards the termination of the examination proceedings, the Examining Division of the European Patent Office (EPO) shall inform the applicant of the text in which it intends to grant the European patent. Following Rule 71(5) EPC, if the applicant subsequently pays the grant and publishing fees and files the required translations of the claims, he shall be deemed to have approved the text intended for grant.

[...]

The applicant’s attempt to reinstate the missing parts of the claims did not thus succeed, despite the fact that it was the EPO’s Examining Division that included an incomplete set of claims in the text intended for grant.

Examiners barely have time to deal with underlying texts; they read the texts and some are experienced/qualified enough do more and go further (it gets worse over time due to brain drain).

“The European Patent Organization (EPO) has issued an “Intention to Grant” for Europharma’s SuperSmolt FeedOnly,” The Fish Site said yesterday. “EPO has reached its conclusion after an extremely thorough assessment process,” but we doubt that! Based on what insiders have told us and based on leaked material, there’s simply no time for an “extremely thorough assessment process” because one risks losing one’s job for doing the job properly (i.e. proper examination, which can take time and effort). From the article:

The European Patent Organization (EPO) has issued an “Intention to Grant” for Europharma’s SuperSmolt FeedOnly, which offers feed-based smoltification of salmon, eliminating the need for the growth-inhibiting winter photo period associated with traditional hatchery smoltification.

[...]

“The decision will not change much in terms of our daily work and focus but we are pleased to have achieved the recognition from the EPO for our innovation. We have worked on smoltification over many years and put significant resources into developing SuperSmolt FeedOnly. The EPO has reached its conclusion after an extremely thorough assessment process and its decision is an acknowledgment of the innovative qualities of this product.

They would be deeply disappointed if they took someone to court only to discover that this patent is void and thus worthless (e.g. due to prior art or the fact that they arguably patent nature — probably an impermissible thing in Europe).

Beata Khaidurova (FB Rice, i.e. the patent microcosm in Australia) is meanwhile whining and crying because it has gotten harder to get patents on life in Australia. Managing Intellectual Property gave her the platform to say that the “Change to Patent Examiners Manual creates uncertainty” (as readers may recall, Australia recently narrowed patent scope):

It is a long-standing principle of Australian patent law that determining whether or not a patent application is directed towards patentable subject matter should be done separately to determining issues of novelty and inventive step. However, amendments to the Australian Patent Examiners Manual late last year introduced a new practice, encouraging consideration of prior art when assessing subject matter eligibility, which in Australia includes the requirement that the invention be a manner of manufacture. A year on, it seems that this supposed clarification to the Manual has only resulted in confusion and uncertainty about what role prior art plays in determining the existence of patentable subject matter.

[...]

While the recommendation remains in place, it seems that the issue of patentable subject matter for software-related inventions in Australia has become more problematic than ever for patent applicants. There is a glimmer of hope, however, in the form of a number of appeals currently afoot in the Australian courts, which seek to overturn some recent Patent Office decisions regarding patentable subject matter, and hopefully steer the law in a more reasonable direction. With many members of the Australian patent attorney profession being in agreement as to the lack of legal support for the Manual’s recommendation, the outcomes of the appeals are eagerly awaited.

What Khaidurova calls a “reasonable direction” is actually lawyers’ direction. They want more and more patents; it is, after all, their bread and butter. They’d probably want bread and butter patented as well! Patent Docs, another site of patent maximalists, has meanwhile published another “Life Sciences Court Report” (the term "Life Sciences" is misleading for reasons we've named before). Bryan Helwig reiterated: “We will periodically report on recently filed biotech and pharma litigation.”

They typically just promote patents on life and nature — something which Australia grapples with. How can life and nature be considered "inventions"?

08.19.18

From the Eastern District of Texas (US) to Australia Patent Quality Remains a Problem

Posted in America, Australia, Patents at 6:45 pm by Dr. Roy Schestowitz

Patents of all colours of the rainbow

Appeal to swatches

Summary: Patents on anything from thoughts to nature/life (in the US and in Australia, respectively) demonstrate the wildly wide range (or spectrum) of patents nowadays granted irrespective of their impact on innovation

A FEW HOURS ago Eibhlin Vardy published this post (part of a series) celebrating patent maximalism at the USPTO, whose ten millionth patent may ironically enough be bunk.

“We might already be in the midst of such a decline, i.e. a restoration of patent quality.”What if patent grants started to decline in terms of number, e.g. each year that goes by (rather than the opposite)? We might already be in the midst of such a decline, i.e. a restoration of patent quality.

Well, a system which strives to grant as many patents as possible isn’t one that necessarily encourages innovation and in many cases it actually prioritises monopolisation at innovation’s expense for numbers’ sake; that would practically discourage innovation.

A few days ago we saw this news report about a patent on “[s]ystem and method for data management,” i.e. a software patent and hence bunk patent. The US District Court for the Eastern District of Texas is a national and international laughing stock because of stuff like this:

Papa John’s International and its subsidiary Star Papa have been sued over the US-based pizza franchise’s mobile app.

Oklahoma-based Fall Line Patents filed its patent infringement complaint yesterday, August 15, at the US District Court for the Eastern District of Texas.

Fall Line Patents is the owner of US patent number 9,454,748, called “System and method for data management”.

According to the complaint, the patent “teaches methods for managing and collecting data from a remote computing device” by gathering location-specific information on different hardware and software platforms on one device.

This is a relatively new patent, judging by its number. This ought to go to the Patent Trial and Appeal Board (PTAB) through an inter partes review (IPR); if needed, the Federal Circuit would likely affirm an invalidation; Papa John’s can afford this. Such is the high cost of sloppy patent grants pertaining to abstract ideas. Watch who got the patent; it’s an entity outside Texas (Oklahoma is far away) and it’s called “Fall Line Patents”. We wrote about it last year and a few months ago when Unified Patents implicitly called it a patent troll. Why are these patents still around? Moreover, why are such patents still being granted after Alice?

Are patents being granted for the sake of numbers or for the sake of innovation? Judging by this new press release [1, 2], the repository is nowadays treated like some kind of literature. “This new section provides easy access to historical patent and exclusivity data for FDA-approved drugs,” it says. They’re typically just evergreening their patents in order to ensure drug exclusivity persists (perpetuity). It’s neither beneficial to innovation nor is this healthy for patients.

Lately we have been writing a great deal about how patents get granted on software owing to a bunch of hype and/or buzzwords. Yet more bunk patents, for example, came from Walmart (it labels some “Blockchain”). Days ago, based on media reports [1, 2, 3], Walmart was shown to be riding the “VR” wave, exploiting buzz when a patent (or application) at hand has absolutely nothing to do with VR innovation/s but merely utilisation thereof from the software side. Here is what Matthew Boyle wrote about it:

The world’s biggest retailer wants to find out, according to filings with the U.S. Patent and Trademark Office.

The company has applied for two patents that detail a “virtual show room” and fulfillment system that would connect shoppers clad in VR headsets and sensor-packed gloves to a three-dimensional representation of a Walmart store. Customers could wander digital aisles from home and “grab” items, which would be immediately picked and shipped from a fully automated distribution center.

The supposed invention involves no improvement to the hardware; it’s ridiculous and it’s what we have come to expect.

Earlier today Patent Docs mentioned a “Webinar on Blockchain and IP,” once again invoking that hype about blockchains, which most lawyers are unable to even explain. “Blockchain”- and “Bitcoin”-washing have become popular because they can make everything sound novel and cutting-edge. It’s especially necessary in the US, unlike China for example. Anything goes in China, including software patents, because SIPO — to the chagrin of WIPO — doesn’t give a damn about patent quality. Shouldn’t the US care more? Coinbase is now attempting to get a US patent on a “new bitcoin payment system” [1, 2, 3, 4, 5, 6, 7], relying perhaps on the examiners not understanding that it’s pure software and thus not patent-eligible. Can the lawyers find a way to manipulate/fool the examiner? That’s perfectly possible and they can retry until they get the ‘right’ examiner.

Days ago in Mondaq and in Lexology we saw this new article from Aird & Berlis LLP | Aird & McBurney LP’s Tony Sabeta. He starts with a Big Lie, insinuating that “blockchain applications are patent-eligible” even though they’re not. They're software patents. Bunk, waste of paper. They may eventually get granted, but no high court would tolerate these. The USPTO advertises and brags about these, which actually says a lot about the USPTO and its attitude. To quote Sabeta:

As a patent practitioner, one of the questions I often get asked is whether distributed ledger technology (DLT), such as blockchain, is patentable. I naturally respond in the affirmative (with some qualifiers of course), and inevitably there is a deluge of follow-up questions and statements such as: “That can’t be! Blockchain is just software, and isn’t it nearly impossible to get patents for software these days? or “This technology has been around for almost 10 years, there is nothing new to patent here,” and so forth.

It’s not even about novelty; it’s about it being an abstract concept and therefore patent-ineligible.

We live in crazy times, however, so to examiners who are rewarded for granting more patents rules will be convenient to bend. That’s how we ended up with so many patents on algorithms, life, and nature (even though the rules forbade all of them). Over at Watchtroll two days ago Ted Mathias, Stacie Ropka, and Rebecca Clegg published “The CRISPR Tug of War” — yet another one of those promotions of ‘life monopolies’ (or monopolies on life itself). That was around the same time Merck was awarded a CRISPR patent in Australia:

Merck has been awarded a patent for CRISPR nickases by the Australian Patent Office.

The application covers a foundational CRISPR strategy in which two CRISPR nickases are targeted to a common gene target and work together by nicking or cleaving opposite strands of chromosomal sequence to create a double-stranded break.

Merck said in a statement that these paired nickases will “improve CRISPR’s ability to fix diseased genes while not affecting healthy ones”.

In addition to allowing a patent application on paired nickases, the Australian Patent Office also announced the formal grant of Merck’s 2017 CRISPR integration patent, following withdrawal of four independent, anonymously filed oppositions.

Australia grants such ridiculous patents on life because of CSIRO and the influence of lawyers. There’s an ongoing fight over the matter at the EPO because the authorities say no to such patents whereas EPO management actively flouts the rules. As it always does…

08.02.18

Shelston IP and Its “Conspiracy Theories”

Posted in Australia, Patents at 3:44 am by Dr. Roy Schestowitz

Truth police?

Australian police

Summary: Shelston IP continues to belittle those who don’t agree with it (or its financial agenda, which revolves around litigation)

THE ban on software patents in New Zealand was recently more or less expanded to Australia (not just the USPTO). In fact, IP Australia is being sued over it.

“Shelston IP has, in our experience, become a sworn foe of software developers both in Australia and in New Zealand.”Shelston IP’s Gareth Dixon and Jessica Chadbourne have just published this article amid restrictions on patent scope. As a reminder, Shelston IP Pty Ltd has been pushing software patents agenda and also patents on life (they are patent maximalists, as we noted here many times before) and they’re meddling even in New Zealand (in spite of being an Australian firm). We previously showed how it was maligning developers who had successfully opposed software patents. Now here they are belittling their opposition as usual. To quote: “Conspiracy theories outlining coordinated parliamentary schedules tend not to hold much water. However, if it’s mere coincidence that sees second-tier patents regimes being considered simultaneously across Australia and New Zealand, then, as proponents of such regimes, we’ll take it.”

Shelston IP has, in our experience, become a sworn foe of software developers both in Australia and in New Zealand. With derogatory terms, too.

07.19.18

Australia Says No to Software Patents

Posted in Australia, Law, Patents at 9:24 am by Dr. Roy Schestowitz

Australian flag

Summary: Rokt is now fighting the Australian patent office over its decision to reject software patents; Shelston IP, an Australian patent law firm (originally from Melbourne), already meddles a great deal in such policies/decisions, hoping to overturn them

LEAVING aside the EPO and USPTO, two of the world’s largest English-speaking patent offices, there has been some news from Australia, where IP Australia (the Australian patent office) told stakeholders that software isn’t really patent-eligible anymore. We’ve seen several articles about this lately (we mentioned some a week ago) and Lawyerly is the latest to spread the news and shed light on it. “Rokt’s software innovative but not patentable, IP Australia tells court” is the headline. Here’s the key part: “An invention that simply puts “a business method or scheme into a computer” is not patentable, the Commissioner of Patents told a court Wednesday on the first day of a highly anticipated trial over a rejected software patent application by marketing tech startup Rokt.”

“This was achieved in the face of great pressure and constant lobbying from law firms.”Fantastic! Well done, Australia!

This was achieved in the face of great pressure and constant lobbying from law firms. We wrote about it dozens of times over the years and named some of the culprits. In Australia we’ve seen Shelston IP quite a lot recently, attacking the policy and smearing officials for doing the right thing. Shelston IP went further than this and attempted the same thing in New Zealand, where software patents have never been allowed.

Earlier this week we saw Shelston IP rearing its ugly head again in Mondaq and in Lexology (we presume paid placements). Shelston IP (Shelston IP Pty Ltd being its full name), the loudest bunch of lobbyists for software patents down under (Australia and New Zealand), are clearly still meddling in New Zealand’s policies (but they’re Australian!). They’re targeting the Intellectual Property Office of New Zealand (IPONZ). Here’s what they wrote:

As seasoned patent scribes, who have between us covered almost everything of significance coming out of New Zealand over the past 15 years, the manner in which a recent article resonated was somewhat unexpected. The article didn’t cover the new Patents Act 2013, poisonous divisionals, the TPP, or even Eminem supposedly suing the NZ Government for copyright infringement – rather, it related to the proposed “Advancement” patent. On reflection, recent goings-on in Australia regarding the will they/won’t they nature of the “Innovation” patent cull probably served to bring the notion of Australasian second-tier patents more into the global IP focus than it might otherwise be. Nonetheless, given that we’ve fielded a few recent questions of the “what’s happening?” variety, this seems like an opportune time for a quick update.

[...]

Pre-history of the Advancement Patents Bill

New Zealand’s new Patents Act 2013 took effect from 13 September 2014. Any complete application filed in the Intellectual Property Office of New Zealand (IPONZ) following commencement of the new legislation is subject to patentability standards substantially aligned with international norms. Such standards include examination for inventive step and represent a perceptible increase with respect to those prescribed under the outgoing Patents Act 1953, under which a second-tier patents regime was never needed.

Why the impression that New Zealand never “needed” a second-tier patents regime?

Under the outgoing Patents Act 1953, inventive step was not examined, which in effect, meant that one could often obtain a New Zealand standard (20 year) patent for the same “low level” invention that if pursued before the Australian Patent Office may only have been worthy of an Innovation (8 year) patent. With the advent of the Patents Act 2013, this was no longer true. Indeed, the balance had been effectively reversed.

[...]

Under New Zealand’s 1953 Act, one could essentially take an invention/innovation worthy only of an Australian Innovation patent (8-year term) and use it to obtain a New Zealand standard patent (20 year term); this facility has been removed with the advent of the Patents Act 2013. However, in so doing, a New Zealand patent applicant having only a low-level invention is left with no fallback position, for there is currently no second-tier patent system.

Whereas the legislative space for a New Zealand second-tier patent system and the economic drivers for its adoption have been well known and publicised, Dr Parmar now provides a political impetus that had previously been lacking.

As we wrote earlier this summer, these so-called ‘free’ ‘trade’ ‘agreements’ are being used to shoehorn law changes that would harm the general public for multinational corporations’ gain. We definitely need to watch out for the possibility that they’ll pull something off in the same sense (and means) Team UPC strives to in Europe. The above too uses the term “unitary” and it’s not a coincidence.

07.10.18

The Demise of East Texan Courts and the Ascent of PTAB, Alice and a SCOTUS-Compliant CAFC May Mean That US Software Patents Are Officially ‘Dead’

Posted in America, Australia, Patents at 5:08 am by Dr. Roy Schestowitz

In the US and in Australia we’re seeing signs that software patents have been left behind, whereas SIPO (China) and the EPO remain stuck in the past

Sam Houston
Sam Houston, going back to away from Houston?

Summary: Companies come to grips with the need to divest and distance themselves from abstract patents; such patents are simply not tolerated by courts anymore (even if patent offices continue granting many such patents for the sake of profit)

THE USPTO is the world’s most influential patent office, so it’s hardly a surprise that we dedicate so much time (and words) to it. We watch it very closely.

“Courts in East Texas (the Eastern District of Texas, abbreviated TXED/EDTX) aren’t getting anywhere near the filings they used to get.”Yesterday we saw this article about patents on cars — surely a physical thing. What about software patents? As we wrote yesterday, some continue to be granted. But do courts accept them? If so, which courts? After TC Heartland we’ve been seeing different district courts getting involved (before the Federal Circuit is even invoked).

“The inventive concept appears to be based almost exclusively in the software. That is, the invention is a system in which software is used to do something different with signal generators than what was done before – the software enables the clinician to program the signal generator to send high-frequency signals, whereas in prior systems the software enabled the clinician to program the signal generator to send lower-frequency signals.”
      –New Judgment
Courts in East Texas (the Eastern District of Texas, abbreviated TXED/EDTX) aren't getting anywhere near the filings they used to get. We mean lawsuit filings in the docket, not patent applications or Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs). Here’s yesterday’s example from the Eastern District of Texas, one wherein:

The court denied plaintiff’s motion for summary judgment that its wireless communication patent was not invalid for improper inventorship on the grounds that defendant could not identify a purported inventor.

With some double negation there it may be hard to digest, but ever since TC Heartland (summer of 2017) the number of lawsuits collapsed even further; there’s not much assurance of positive results for the plaintiffs, who are often classic patent trolls.

“…ever since TC Heartland (summer of 2017) the number of lawsuits collapsed even further; there’s not much assurance of positive results for the plaintiffs, who are often classic patent trolls.”The Australian Financial Review has meanwhile published this article about Rokt’s highly misguided lawsuit. Bruce Buchanan is angry at IP Australia (Australia’s patent office) because Australia correctly rejects software patents (it should!). From the article:

Former Jetstar chief executive and current CEO of fast-growing Australian marketing technology start-up Rokt Bruce Buchanan has hit out at IP Australia for discouraging innovation through its approach to software patents, saying the government agency doesn’t properly understand the tech industry.

Rokt is considered to be one of the country’s next potential tech unicorns, having raised $34.5 million in venture funding last year, but is heading to a court battle with IP Australia over a patent it attempted to lodge to protect a method it has developed to sequence messaging between retailers and shoppers in e-commerce transactions.

So in Australia — like in the US — software patents are hopeless. They’re not even worth pursing. We recently wrote several dozens of articles about court decisions and legislation in Australia. They’re moving well away from software patents — a fact that only upsets those who bet their ‘farm’ on patent litigation (with software patents).

“They’re moving well away from software patents — a fact that only upsets those who bet their ‘farm’ on patent litigation (with software patents).”We have meanwhile found this new article from Mass Device. It’s about “Nevro’s patent spat with Boston Scientific” — a spat which seems to involve nothing but software patents. “The inventive concept appears to be based almost exclusively in the software,” the Judge rightly asserted, rejecting the claims. Here’s the relevant part, in the judge’s own words:

“The inventive concept appears to be based almost exclusively in the software. That is, the invention is a system in which software is used to do something different with signal generators than what was done before – the software enables the clinician to program the signal generator to send high-frequency signals, whereas in prior systems the software enabled the clinician to program the signal generator to send lower-frequency signals. Yet, in most of the asserted system claims, there is no mention of the programming function – no mention of the one aspect of the system that is actually inventive,” he wrote.

They are trying to pass off algorithms as “medical” (we gave several examples over the past month alone). I’ve seen these tricks in my profession, I saw that in Patrick Corcoran's last decision 4 years ago and it’s a trick that all patent examiners need to become familiar with. US patent number 10,000,000 uses a similar trick and should therefore be invalidated, based on Alice/Section 101. If all one does is pick some signals/inputs from some “devices” and then processes that using a computer program, this program is then still abstract; the “devices” (which the program is oblivious to) do not add a “physical” element to the patent. In fact, they’re irrelevant to it because they’re not at all part of the supposed “innovation” or “inventive step”.

“If one is unable to demonstrate that the skin itself is a human invention (it’s not, it’s just part of life/nature), then we’re likely dealing here with that same old loophole and judges won’t fall for it (not in higher courts anyway).”2 patents of ARANZ Medical have just been bragged about [1, 2] in yesterday’s press release, perhaps attempting to conflate programs with “skin” (or “skin surface”).

If one is unable to demonstrate that the skin itself is a human invention (it’s not, it’s just part of life/nature), then we’re likely dealing here with that same old loophole and judges won’t fall for it (not in higher courts anyway).

06.09.18

Patents on Nature, Life and the Environment: Lessons From EPO and Australian Courts

Posted in Australia, Europe, Patents at 6:35 am by Dr. Roy Schestowitz

Monopoly does not solve issues; especially when granted on things that always existed

Iguazu Falls

Summary: The subject of patent scope revisited in light of news and views about patents “on life” (typically DNA, genetics, plants, seeds, animals); we focus on Europe and on Australia, which is known for CSIRO’s controversial patent-related activities

THERE are different types of people in the patent “profession” (or domain), ranging from examiners to litigators. There are also different mindsets, ranging from patent rationalists to patent extremists, where the extreme views pertain to patent scope, litigation zeal, and sometimes boil down to fundamental hatred of science and technology (that’s what sites such as Watchtroll stand for).

“It’s important that — in order to avoid protest if not revolt from the public — patent law should be restricted or confined to public interest.”We don’t want to generalise and we also recognise that many people read this site because they want to read alternative viewpoints, recognising that Techrights is not against patents but pro-patent reason. It’s important that — in order to avoid protest if not revolt from the public — patent law should be restricted or confined to public interest. It should adhere to common sense, economic models, and scientists’ interests, not law firms’ interests. Lawyers should ideally be there to help the scientists, not just to help themselves. In practice, however, this rarely happens, as we shall explain in our next post (about UPC).

“Lawyers should ideally be there to help the scientists, not just to help themselves.”Hogwash from Joanna Rowley (Haseltine Lake, LLP) came just before the weekend, both in their Web site and others (throwing copies elsewhere), titled “World Environment Day – How patents are saving our environment”.

They’re piggypacking “World Environment Day” for self promotion. Giving people a monopoly on how to improve things actually harms, prevents solutions from being implemented. We wrote this many times before in response to greenwashing of patents by EPO management. There’s also the class of patents which pertains to nature and life; those are even more problematic.

EPO insiders are generally aware of the limits of patenting and why these limits are needed. “Stop patents on life,” one of them told us the other day, is something we “might be interested in.” The insider linked to “Patente auf Leben stoppen!” (in German). We wrote about this subject many times before, since more than a decade ago. So did many patent critics like Kinsella, whose latest episode is titled “Nothing Exempt”. Kinsella is one of those former and disgruntled insiders, who nowadays advocates even abolition of so-called ‘IP’. He’s pretty high-profile a voice and we assume many of our readers are already familiar with his work (we covered that many years ago).

“This was a subject of much/great debate earlier this year when oppositions folks at the EPO denied a CRISPR patent, overturning some prior decisions (by extension at least).”That brings us to some news from Australia’s top court. As should be obvious, at the very least based on the “Australia” section of our “Software Patents Around the World” page, we are mostly interested in Australia because of its software patents stance/policy. On few occasions we wrote about Australian patents on life itself, as ‘championed’ by CSIRO in Australia. This was a subject of much/great debate earlier this year when oppositions folks at the EPO denied a CRISPR patent, overturning some prior decisions (by extension at least). People and firms have begun questioning whether it’s even worth pursuing patents on DNA/genetics in Europe anymore.

A new article by Michael Zammit and Scott Philp (from the software patents booster, Shelston IP) speaks of “strategic use and management in the resources sector” (in relation to patents). Another new article by Kazumasa Watanabe, Anthony Muratore and Stephanie W. Wang (Jones Day) has just been plugged into Mondaq, taking note of a new case at the High Court of Australia. Background and conclusion/outcome/closing words below:

Pfizer manufactures and supplies the biological medicine Enbrel (etanercept), used in the treatment of autoimmune diseases. Pfizer brought an application pursuant to rule 7.23 of the Federal Court Rules 2011 for preliminary discovery of certain SB confidential documents that Pfizer believed would enable it to decide whether or not to commence proceedings for patent infringement against SB. The patents in suit concerned processes relating to one of the phases in the development of biological medicines.

[...]

On appeal, the Full Court allowed Pfizer’s appeal: Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193, holding that preliminary discovery applications are not intended to be mini-trials. The essence of rule 7.23 focuses on what “may” be the position. The foundation of any application is that the prospective applicant reasonably believes that it may have a right to relief; that is, the belief must be reasonable and about something that “may be”, not “is”, the case.

In practice, to defeat such a claim, it will be necessary either to show that the subjectively held belief does not exist or, if it does, there is no reasonable basis for thinking that there may be such a case. Showing that some aspect of the material on which the belief is based is contestable, or even arguably wrong, will rarely come close to making good such a contention. Many views may be held with which others disagree, but that does not make the views necessarily unreasonably held.

Therefore, the relevant question was not whether one scientific view was more or less persuasive than another but, rather, whether Dr Ibarra’s views so lacked foundation that Mr Silvestri’s reliance on them did not demonstrate that he reasonably believed that Pfizer may have a right to obtain relief. As Dr Ibarra’s views were not criticised as ones that could not reasonably be held by anyone in her position, this question was answered in the negative.

In its special leave application to the High Court, SB argued, inter alia, that the Full Court shifted focus away from an objective assessment of the facts as to whether a reasonable basis was provided for the prospective applicant believing it may have the right to relief to an assessment of the subjective state of mind of the particular deponents who asserted the relevant belief. However, the High Court was not persuaded to grant special leave to appeal.

The Australian system (especially the legal system) follows the structures and standards of the old English system and is heavily inspired by the US. When it comes to patents, there’s not much difference either. We are glad to see that software patents are on their death throes in Australia and hope that the same will happen to patents on nature/life. Those aren’t the sorts of ‘inventions’ the patent system’s founders had in mind at this system’s inception time.

05.31.18

Software Patents Are a Dying Breed of Patents Except in China (and Maybe EPO)

Posted in America, Asia, Australia, Europe, Patents at 11:04 pm 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 patent maximalists would like us to believe otherwise, but software patents are generally going away; even if they get granted by patent offices (to fake ‘production’ or game the numbers) the courts typically reject these

WHILE the EPO emulates China on human rights (or lack thereof) it also emulates China on patent maximalism, openly promoting software patents while the USPTO gradually moves away from these.

It’s important to recognise that with the exception of China and the EPO (we don’t say Europe because pertinent national patent offices across the European continent don’t apply) IP5 is not so interested in software patents.

There’s a new interview at Managing IP, a patent maximalists’ site. “Karry Lai talks with Michael Ding, ABB’s head of IP operations for Asia, the Middle East and Africa, about trends in software patents and trade secret protection in China,” says the summary. “From IP [sic] assets generation, extraction to risk mitigation, Michael Ding works with an IP team of more than 10 people to ensure that IP rights at ABB are well protected.” [sic]

Karry Lai, who is based in Hong Kong, published this behind a paywall, so we cannot see what’s said about software patents (the headline is “ABB’s Asia IP head on software patents and trade secrets”). We routinely emphasise that China is just about the only country that allows software patents these days (without even hiding that it’s about algorithms). The EPO still tries to mask this using buzzwords, maintaining some thinly-veiled perception of compliance with the law.

“The EPO still tries to mask this using buzzwords, maintaining some thinly-veiled perception of compliance with the law.”Software patents in Australia, as this new post serves to reveal (cross-posted elsewhere, e.g. Lexology), are also going away. Australia too has become rather intolerant of software patents, even before applying or taking into full effect recommendations from the Productivity Commission (it opposes software patents). Look below the somewhat misleading headline from the patent microcosm in Australia (Sam Mickan and Mattia Pagani from Davies Collison Cave). The court rejected software patents; not just once:

In Encompass Corporation Pty Ltd v InfoTrack Pty Ltd [2018] FCA 421, Justice Perram of the Federal Court of Australia found two innovation patents to be invalid for not involving a manner of manufacture, thus failing the Australian test for patentable subject matter.

[...]

Justice Perram, when considering the issue of patentability, acknowledged that the implementation by a computer of the combination of steps of the invention constitutes a new use of the computer, capable of enhancing the experience of a user. However, what the inventions failed to do, in his Honour’s view, was to cause an improvement in the computer itself.

Justice Perram noted that, in principle, any software could be said to cause an improvement in a computer, because without it, the computer would not be able to perform a certain task. The requisite improvement however was considered to be one that provides the computer with some new ability, previously unattainable. A case in point of the necessary improvement was IBM’s software for drawing curves without using floating point arithmetic.

[...]

This judgment by a single judge of the Federal Court represents a strict interpretation of the principles established by the Full Federal Court in Research Affiliates and RPL Central. It will be interesting to see whether the same strict interpretation is maintained on appeal.

This case demonstrates that it may be beneficial to link a discussion of innovative step (or inventive step) to that of a technical contribution (e.g., new functionality in a computer) despite the Australian requirements for inventive/innovative step and manner of manufacture being formally separate.

On this note, following a recommendation by the Productivity Commission in its Inquiry Report on IP Arrangements that “IP Australia should reform its patent filing processes to require applicants to identify the technical features of the invention in the set of claims”, there has been a public consultation by IP Australia, in which three options were put forward to improve the information available to Examiners when assessing inventive step. You can read more about that public consultation here. In response to that consultation, IP Australia has indicated that they propose to adopt a requirement that Examiners assess technical features through the inventive step requirements, and that this change will be implemented through changes to the Patent Manual of Practice and Procedure.

The above words, terms like “innovative step” (or “inventive step”) as well as “technical contribution,” are commonly (mis)used at the EPO. At the end, however, it’s for national courts to decide (there’s no UPC) and experience suggests they’re not particularly friendly towards such patents.

We look forward to the day the world as a whole can leave software patents behind, putting them deep inside the ashtray of “bad ideas we’ve abandoned.”

05.17.18

In Australia the Productivity Commission Decides/Guides Patent Law

Posted in Australia, Law, Patents at 5:09 pm by Dr. Roy Schestowitz

Facts- or evidence-based policy

Australian road sign

Summary: IP Australia, the patent office of Australia, considers abolishing “innovation patents” but has not done so yet (pending consultation)

THE “IP5″ (three east Asian patent offices along with the EPO and USPTO) accounts for the lion’s share of patents, at least based on how WIPO adds up the numbers. But that does not mean that we can simply ignore other (much smaller and/or less significant) patent offices.

“Their CMS suffers not only many downtimes but glitches or human errors as well.”A few weeks ago we wrote about Shelston IP's latest lobbying/push to change Australia’s patent policy in favour of software patents (same in New Zealand, which we last mentioned last month). A couple of days ago Kluwer Patent Blog wrote about the legal status as follows:

In its response to public submissions with respect to abolishing innovation patents, IP Australia reaffirmed its support for this course of action and noted that “[n]o significant new evidence on the value of the innovation patent system was presented by the submissions that had not already been considered by the Productivity Commission and the Government in reaching that decision“.

IP Australia was also of the view that the amendments in the exposure draft struck the right balance to phase out the innovation patent system without affecting existing rights. The amendments in the exposure draft allowed for innovation patents that would have a priority date prior to the commencement of the amendments.

However, the Government appears to want to consider the matter further. IP Australia’s policy release states that it has “decided to undertake further industry consultation targeted at better understanding the needs of SMEs before the phase out of the innovation patent occurs“.

John Collins and Sumer Dayal posted this update/duplicate the following day, but it has been deleted since. Their CMS suffers not only many downtimes but glitches or human errors as well. Sometimes the site goes offline for as much as a day. They basically say that “a mechanism to phase out the innovation patent system and repeal certain data requirements relating to pharmaceutical patents with an extended term” was included but omitted. “Innovation patents appear to have survived the guillotine this time around,” they conclude. We expect it to vanish some time soon (maybe not this year) and the impact on software patenting was discussed here last year (see below).

Previously (last year) on so-called “innovation patents”:

« Previous entries Next Page » Next Page »

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channels: Come and chat with us in real time

New to This Site? Here Are Some Introductory Resources

No

Mono

ODF

Samba logo






We support

End software patents

GPLv3

GNU project

BLAG

EFF bloggers

Comcast is Blocktastic? SavetheInternet.com



Recent Posts