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05.31.19

British Patent Courts Continue to Expose the Collapse in Quality of European Patents

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

Judges who are not controlled by the Office in Munich see things differently

Patent Courts

Summary: The UK Patent Court and the UK High Court are just some of the courts which continue to reject bogus European Patents (courts in other countries do so as well, but press coverage about it isn’t in English)

THE previous post noted that the EPO‘s President, António Campinos, may have already run out of time and out of favour. He won’t be trusted anymore.

Putting social aspects aside, Campinos has made it abundantly clear that he doesn’t care about patent quality (same problem at the USPTO) and he just wants to maximise revenue while pretending there’s financial urgency (or imperative) to do so.

“Putting social aspects aside, Campinos has made it abundantly clear that he doesn’t care about patent quality…”The patent extremists couldn’t be happier. We’d rather not link to Watchtroll’s “Mission Impossible? How US Drafters Can Minimize Support/Clarity Issues Under Article 84 EPC” and “Legal Entitlement To Priority – A European Perspective” (those are just their latest headlines, preceding articles that bash “European Patent Office opposition proceedings and in invalidity actions”). Remember that patent quality does not matter to those who just profit from a lot of litigation; fruitless litigation is a net loss to the plaintiff and defendant, but not to the law firm (so-called ‘representatives’).

Earlier this month we learned that the EPO had granted a patent on blood (plasma, or “blood separation patent”) until the highest British court ‘told’ it off (indirectly); why does this keep happening? This British court has recently done the same in other cases [1, 2, 3, 4] and as IPPro Magazine put it a few days ago:

The European Patent Office (EPO) has revoked a Regenlab patent related to platelet-rich plasma after finding it lacked both novelty and added matter.
Estar Medical filed an opposition to the European patent (2,073,862 B1) in 2017. It was revoked in April following an EPO hearing.

Estar was also successful in obtaining a revocation order from the UK High Court in January for the same Regenlab patent due to it lacking novelty and an inventive step.

An application to amend the UK patent from Regenlab was refused by the UK Patent Courts, which ruled that the amended patent would still be invalid.

The UK Patent Court also denied Regenlab permission to appeal that judgement and was forced to pay “extensive legal expenses” to Estar.

[...]

He commented: “It has been our position from the start that the Regenlab blood separation patent was false and should have never been granted and we are happy that the EPO shares the same view. Estar Medical has remained confident in its position since the opposition was filed in 2017.”

So now we have patents on life, water (dependent on quality of water), air (dependent on quality of air), nature, and mathematics. Great!

Sarah McFarlane (Powell Gillbert) has just published this piece which speaks of the British system compared to the EPC. To quote: “The key statute is the Patents Act 1977 (as amended), which sets out (among other things) the requirements for obtaining a patent, the resulting rights provided and the remedies for patent infringement in the United Kingdom. The Patents Act 1977 gives effect to the European Patent Convention 1973 (EPC) (as amended) in the United Kingdom.”

“So now we have patents on life, water (dependent on quality of water), air (dependent on quality of air), nature, and mathematics.”But the EPO no longer honours the EPC. We’ve covered so many examples of that. Earlier this week Mondaq carried this piece about software patents in Europe — patents that basically ought not exist at all!

Andrew Sunderland (Haseltine Lake LLP) wrote about the EPO having another chance to end such patents — something which we doubt can happen when the judges lack independence/autonomy. Quoting Sunderland:

Following the recent referral to the EPO’s Enlarged Board of Appeal, the EPO has issued a notice indicating that all pending proceedings before the examination and opposition divisions at the EPO, which depend entirely on the decision of the EBA, will be stayed until the decision is issued. Therefore, applicants and opponents should expect a long wait on some cases related to simulation technology.

[...]

If proceedings are stayed, the relevant division at the EPO will inform the relevant party. At the same time, any communications setting a time limit for a response will be withdrawn until the Enlarged Board has given its decision, after which the division will issue a communication concerning the resumption of proceedings.

This should be a trivial case to decide on; it has been made crystal clear by courts, by Parliament and even by the EPC that patents “as such” ought not be granted. Just because the EPO spent many years granting them doesn’t make it OK. Longterm deviation from the law does not render it an “acceptable” norm.

05.22.19

Quality of Patents is Going Down the Drain and Courts Have Certainly Noticed

Posted in America, Courtroom, Europe, Patents at 2:01 am by Dr. Roy Schestowitz

Judges don’t participate in this toxic agenda

Down

Summary: Uncertainty or lack of confidence in the patent system has reached appalling levels because heads of patent offices are just striving to grant as many patents as possible, irrespective of the underlying law

TECHRIGHTS was never against patents. It was for patent quality — something that slipped at the European Patent Office (EPO) over the past decade or so (we wrote about software patents in Europe as early as the Brimelow days) and at the U.S. Patent and Trademark Office (USPTO) as well. 35 U.S.C. § 101/Alice has meant that many granted US patents got thrown out by courts and sometimes by PTAB.

“It’s about legal firms, not about advancing science and technology.”Director Iancu in the US and António Campinos in Europe are both patent maximalists. They devalue patents by granting far too many of them, but what else should be expected considering their professional background? It’s about legal firms, not about advancing science and technology. It’s about litigation, not improvement of living standards.

The collapse of software patents in the US leads to their collapse elsewhere; as noted by Daniel Law’s Rana Gosain in this article (under software patents in Brazil):

The aftermath of the decision in the aftermath of the US Supreme Court decision in Alice v CLS Bank has brought about uncertainty and at the moment it appears difficult to propose substantial changes to the Brazilian IP law.

Good. What else is good? Even Donald Trump supporters recognise that Trump just put a patent trolls and litigation ‘mole’ inside the USPTO. As one supporter of Trump put it on Monday:

The previous director of the United States Patent & Trademark Office, Michelle Lee, had previously worked at Google and was well respected by all major product- and service-focused tech companies for her understanding of the need for a balance in the patent system: a balance between the interests of right holders in valid and enforceable intellectual property rights as well as the interest of the general public in preventing overbroad patents and, particularly, the enforcement of patents that should never have been granted in the first place.

Mrs. Lee’s predecessor, David Kappos, came from IBM, a company that has for some time been known for rather aggressive patent monetization (though they rarely litigate) and has, since leaving the USPTO, been lobbying hard for broad and strong patents. That said, he respected legislative and judicial decisions without a doubt, and compared to the current USPTO director Andrei Iancu his actual decisions at the helm of the USPTO were the ones of a centrist, and clearly not those of an extremist. He had his views and beliefs, but a reasonable agenda.

Director Iancu used to be the managing partner of Irell & Manella, a renowned L.A. law firm with a particular focus on patent enforcement. Presuambly they also represent defendants, but interestingly, I’ve always heard of them only when they were counsel for plaintiffs.

There are various respects in which Director Iancu is trying hard to turn the legislative and judicial tide–which is an agenda that the executive branch of government shouldn’t have, but sometimes that’s unfortunately the way it is.

[...]

This is the mission statement of a patent radical and of someone who doesn’t appear to understand that he has a responsibility not only for patentees and for litigation firms like the one he used to chair, but also–in fact, even more so–for the economy and society at large.

The unspecified reference to “the public alike” doesn’t counterbalance his focus on “rights owners” and their interests.

The way Director Iancu modified the claim construction standard for post-grant reviews (by instructing PTAB judges to apply the narrower standard used in infringement proceedings) has nothing to do with greater predictability: decisions were equally predictable before, but it used to be harder to defend weak patents.

[...]

Those of us promoting a balanced patent system must keep a close eye on what’s going on at the USPTO under Director Iancu. I anticipate more posts on the USPTO, and especially on inter partes reviews, going forward.

There’s growing disdain and resistance against this. Earlier this month we wrote about the EPO using European Inventor Award to promote software patents and earlier this week Benjamin Henrion said: “The EPO’s spending on the “European Inventor Award” has no legal basis in the EPC. The EPO should better spend this money on something more useful. Furthermore, patents on computer programs are forbidden by art52.2 EPC.”

“Even Donald Trump supporters recognise that Trump just put a patent trolls and litigation ‘mole’ inside the USPTO.”These are, in effect, illegal patents. Why offer rewards for these?

Meanwhile, as it turns out based on a new press release, the EPO admits, yet again, that it granted (or nearly granted) a fake European Patent; why the change of heart? The UK High Court:

Estar Medical has been successful in revoking Regenlab’s original PRP patent in the European Patent Office (EPO) opposition proceedings. This ruling follows a recent judgment by the UK High Court which also found the Regenlab PRP patent invalid…

Courts are again stepping in, applying law unlike the Office. These courts do not measure their “success” in terms of revenue.

We’re disturbed to see the EPO granting patents on life, on nature, on maths…

These patents are not legal. Granting these patents would be a violation of the EPC. But the EPO’s management gives staff quite a dilemma: break the law or get fired.

“These patents are not legal. Granting these patents would be a violation of the EPC.”The management of the EPO is trying to trick examiners into thinking that what they do is compliant, but it’s not. They keep using all sorts of buzzwords and misleading semantics (which courts reject). Here’s a report from yesterday in which “Kazuhiko Ishimaru, general manager of licensing at the multinational electronics company [Panasonic, feeder of patent trolls], shares insights on IP strategies in an age of AI, IoT and big data” (to quote the summary).

Panasonic is a patent parasite and it promotes abstract patents under guise of buzzwords, “AI, IoT and big data…”

Why not add “4IR”, “blockchain” and “Industry 4.0″?

We’ve meanwhile noticed that Bardehle Pagenberg continues pushing the software patents agenda at the EPO (for profit regardless of the law). It’s doing that in paid-for ‘articles’ and many tweets like this one. It’s no secret that nowadays the EPO grants all sorts of dodgy patents (over 100,000 of them a year), so what is this company bragging about in this new press release? Presumption of invalidity is becoming reasonable as rates of validity have fallen sharply.

“The way things stand, European courts will continue to reject a lot of European Patents, putting in doubt just about all the work done by the EPO since the Battistelli years (fake ‘production’).”The only way for the EPO to survive a ‘bloodbath’ is to change the law or get rid of courts. Complicit media like IAM has been paid to help with that agenda. Watch what IAM has just paid to promote (lawyers put patent monopoly/greed ahead of public safety) and this other IAM piece about patents on plants at the EPO. These malicious people are hoping to just bypass courts, expanding the scope of patents and miraculously rendering fake patents “valid”. Mind this latest UPC jingoism from Joff Wild and his paid-for (to promote UPC) colleagues. There’s another new example from IP Law Galli’s Cesare Galli, presumably what qualifies as “Team UPC”. There’s this new ‘article’ (actually lobbying by a law firm) titled “Unitary patent and UPC – Italy moves forward” [1, 2] and it’s about as laughable as this year’s necrophilia from Bristows. Italy Moves forward with a dead thing? Like Sam Gyimah did one year ago (just before resigning)? The UPC spin has taken new forms. Here’s the opening sentence:

The government recently adopted provisions to coordinate national legislation with the EU Unitary Patent Regulation and the Unified Patent Court (UPC)…

That’s the equivalent of marrying a dead partner posthumously because there’s no UPC and barriers to it have only piled up. The way things stand, European courts will continue to reject a lot of European Patents, putting in doubt just about all the work done by the EPO since the Battistelli years (fake ‘production’).

05.09.19

Lusting for a Unified Patent Court (UPC) That Respects Invalid European Patents, Including Software Patents

Posted in Courtroom, Europe, Patents at 6:48 am by Dr. Roy Schestowitz

EPO delivery

Summary: Judging by the comments in Kluwer Patent Blog (a Team UPC blog), there’s still a dangerous old fantasy about patents without justice, a mere rubber-stamping of dubious monopolies with a kangaroo court to acknowledge them

THE ILLUSION that today’s European Patent Office (EPO) helps justice through enforcement (by courts or outside them) is really just an illusion. Courts can see that. The EPO is rogue. It wasn’t always like that. António Campinos is just a natural extension of Battistelli, chosen by Battistelli himself.

Yesterday morning we wrote about the EPO lobbying to spread European software patents and later in the day the EPO wrote: “One of our initiatives for the future is to harmonise and simplify patent procedures and processes.”

What the EPO’s management means to say is that it’s exporting fake patents like software patents, even to the USPTO where 35 U.S.C. § 101 more or less forbids such patents (both offices now use similar buzzwords like “AI” to bypass these restrictions).

The EPO’s management also wants a UPC for software patents, in effect bypassing the EPC and national laws that explicitly ban software patents. This has thankfully not worked. As mentioned in our daily links (yesterday) and later SUEPO’s as well, Thorsten Bausch (Hoffmann Eitle) has this major new rant about delays in German courts’ judgments. He did not speak about the UPC, but comments in Kluwer Patent Blog (a Team UPC blog) are diverting all attention to UPC. There’s this first comment: “Why such modest demands? EPO Boards of Appeal manage around 10 decisions per Board member each year.”

“No doubt lawyers are loving it (this is enriching them), but what about the rest of us (who aren’t working in law firms)?”Followed by: “Also the Constitutional Complaint against the UPC takes ages…”

And then also: “In his list of things that take too long in Germany, the author forgot to mention rulings by the Bundesverfassungsgericht…”

Here’s another:

The Federal Constitutional Court’s list of “decisions envisaged for this year” is not without a reason nicked “Lügenliste” by the members of the German Rechtsanwaltskammern (German Regional Attorney’s Bar Association).

And that goes without saying, but the UPC/UPA-complaint before the BVerfG has no impact on legal certainty for cases under dispute, and a reference to that would just divert attention away from the main issue, being that most European states have neglected investments into their legal systems.

And one more about the UPC:

On a more controversial note, how about abandoning bifurcation in favour of a more UK-style system: where infringement and validity are considered together but there is a possibility of obtaining a preliminary injunction ahead of a full trial?

As I read the statistics presented above, bifurcation is systematically denying timely access to justice for those parties who merely wish to “clear the way”. So why not ditch it completely?

And why on earth set up the UPC so that it can also develop a fast track for infringement and a slow lane for validity proceedings? (Though it has to be said that, in my view, that is probably the least of the myriad of problems with the UPC … and so perhaps it is no bad thing if the BVerfG waits until the dust settles on Brexit, so that the facts surrounding the legality of the UPC system are known.)

There may be more comments to come (time remains before it’s closed) and the very latest one, from “Universal Hobo”, speaks of EPO examiners as follows:

“And given that it is easier to comply with applicant’s wishes than to write a decision of refusal, you can guess what this trend means for the average quality of the search and examination process.”

We should also not forget that since April 2018 (and with retroactive (!) effect as from 01 January 2018), the production points awarded to EPO examiners for refusal decisions has been reduced from previously 2 points to now only 1 point.

The previous counting of 2 points per refusal decision was done in recognition of the fact that a refusal decision requires significantly more work (typically a number of Art. 94(3) EPC communications, then summons, holding of oral proceedings, a lengthy decision on possibly multiple auxiliary requests to be written) than an intention to grant.

Hence, since this difference in workload between a proposal to grant and a refusal decision is no longer recognised, there is now absolutely no reason for a sane EPO examiner to burden herself or himself with the hassle of a refusal.

The reason given by senior EPO management (COO HBC) as to why refusals were now recognised identically to intentions to grant, she said that this was to harmonise award point counting with production counting.

When asked whether harmonisation was the relevant factor to consider, when what was at stake was a difference in workload, a silent smile but no answer was given.

When then asked whether the reduced recognition of refusal decisions meant that less effort was now expected to be put into these decisions (such as by providing less reasoning, or no reasoning at all), she refused to answer the question.

Now there is some surprise at management level that a recent staff survey at the EPO has revealed sub-zero confidence levels of the examiners in their senior management…

The above too mentions “harmonisation”; The matter of fact is, the EPO nowadays grants so many fake European Patents that it would be insane to let these have an effect in countries based on judgments in courts external to them (and courts that use a foreign language — a major disadvantage for small defendants). Earlier this week Unilin issued a statement to say that EPO “confirmed the validity of European patent No. 2 588 311,” but the EPO is not an actual court and even judges lack independence there. To quote:

Wielsbeke, Belgium, May 8, 2019-On May 6, the European Patent Office (EPO) confirmed the validity of European patent No. 2 588 311 (EP 311) owned by Unilin BVBA in opposition proceedings filed by Windmöller GmbH; Windmöller will appeal the EPO decision, believing it has strong non-infringement arguments against this patent.

How much are these disputes costing? No doubt lawyers are loving it (this is enriching them), but what about the rest of us (who aren’t working in law firms)?

05.02.19

Even EPO Patent ‘Justice’ is Now Measured in Industrial Terms Like ‘Production’ Rather Than Accuracy

Posted in Courtroom, Europe, Patents at 10:50 am by Dr. Roy Schestowitz

Strip on too many software patents in Europe

Summary: Europe is being flooded with loads of invalid (as per the EPC) patents that are enshrined as European Patents while judges are unable to stop that (there’s a risk to their job if they dare try)

THE concept of justice ceased to exist at the European Patent Office (EPO), both inwards and outwards, i.e. towards employees and the public/stakeholders. Criminals who loot the Office are not being held accountable and innocent, law-abiding staff which insists on basic rights being respected gets punished — or worse — led to illness, sometimes suicide.

“If justice at the EPO wasn’t already sufficiently destroyed, with annual reports from judges bemoaning (out in the open) their loss of independence, now comes another report.”Remember what Battistelli has done even to judges. There was collective punishment (for all colleagues) and António Campinos has not brought them back to Munich after they were illegally sent to exile. This confirmed many people’s fears that Campinos would cover up for his ‘master’, who had rigged the process to secure this job for him (a fellow Frenchman and old friend).

If justice at the EPO wasn’t already sufficiently destroyed, with annual reports from judges bemoaning (out in the open) their loss of independence, now comes another report. “The 2018 Annual Report of the Boards of Appeal is out. Have a look here,” the EPO wrote some hours ago, linking to an annual report page (warning: epo.org link). It has been mentioned by WIPR (and cited by us in passing as recently as this morning) before the EPO announced it, which makes one wonder if the EPO’s PR people coordinated a puff piece with WIPR (whose staff told us there’s a degree of coordination between the two). To quote the EPO:

The Annual report of the Boards of Appeal provides detailed statistics on proceedings before the Boards. It also describes general developments in the Boards during the preceding year.

These statistics don’t tell the full story. It’s not the full picture. They’re quantitative rather than qualitative. They also overlook factors such as judges’ fear of reprisal/retribution (if they rule the ‘wrong’ way, where wrong refers to the Office management’s preferences). How many bogus software patents are being accepted?

The EPO has just used two meaningless buzzwords for illegal software patents being granted in Europe (two in one tweet even!). To quote today’s tweet: “Experience the EPO first-hand by joining our next study visit. The focus will be on AI, the 4th industrial revolution and #patents …”

No more “CII”? How about “ICT”? “This one made my day,” Benjamin Henrion wrote this morning. “When you don’t like something, just rebrand it! Just like Trump proposed to rebrand the Boeing MAX737 with another name. Forbidden software patents being rebranded as AI, 4th industrial revolution, and others.”

Can the Board throw out all this “AI” nonsense? It’s the kind of rubbish SUEPO was alluding to some weeks back.

Regarding the above report, IPPro Magazine’s Barney Dixon and Ben Wodecki (the former speaks with staff, the latter usually just repeats PR from EPO management) have just published this article with a positive headline (as usual, especially for Wodecki). But also as usual, the key bits are further down at the bottom (probably added by Mr. Dixon, based on his source/s). To quote:

The report states that a total of 3,032 technical appeals were received in 2018, an 8.4 percent increase on the previous year. In 2018 2,733 technical appeal cases were settled, a 19.7 percent increase compared with the same period in 2017.

[...]

Timings of examinations are of increasing concern to EPO users, with a majority of users requesting greater flexibility in the timing of examination.

The EPO has faced criticism in recent years over its approach to tackling its backlog. Some of these measures have been linked to an increase in production targets for staff and a drop in overall patent quality.

The EPO has faced both protests and petitions against the perceived quality drop.

[...]

The Boards of Appeal is also undertaking a “comprehensive” revision of its rules. The report states that the aims of these revisions are intended to increase efficiency by reducing the number of issues to be treated, predictability for the parties, and harmonisation.

The revised rules won’t enter into force until 2020, but the report highlights that active case management by the boards will be a central element to the changes.

[...]

A source close to the Staff Union of the EPO said that the Boards of Appeal have already increased their productivity by 18 percent since 2017 and that production/productivity figures are now the “predominant criterion for evaluation” in the Boards of Appeal.

That says nothing about accuracy and quality. One could just assign decisions to a computer and reach decisions within milliseconds, based on so-called ‘AI’ (which doesn’t guarantee anything).

When they’re “increas[ing] their productivity by 18 percent” (read: cutting corners) it doesn’t mean improved justice, only rushed ‘justice’; the same issue that affects examination. You can never deliver a baby in 4.5 months by using two ladies in tandem. Proper work takes time and research, sometimes a lot of effort and contemplation.

Suffice to say, there’s an effort by the EPO to introduce ludicrous courts where judges can be thrown out (limited tenures) and might not even speak the language of defendants! The EPO and the patent zealots thought of altogether replacing or deprecating these boards (even before they lost their independence) and earlier today UDL Intellectual [sic] Property’s [sic] Garry Stuttard was trying to resurrect this zombie. The boards are under attack from many directions; that being the case, no justice can be assured in the EPO, only illusion thereof. It’s a monarchic system of patents where patent maximalism is “God”. God bless “productivity” and “efficiency” (i.e. the granting of as many patents as possible, as fast as possible!).

EPO in 2019: Pushing (and Bribing) for Buzzwords to Bypass/Cheat the Law Whilst Abolishing the Court System

Posted in Courtroom, Deception, Europe, Patents at 3:32 am by Dr. Roy Schestowitz

Turmoil in the litigation ‘industry’ and a complicit EPO that’s pushing the litigation agenda at the expense of public interests

AI hype at EPO

Summary: The disturbing push for abstract patents on mathematics and algorithms continues unabated in Europe; scholars and journalists are being paid (EPO budget) to play along while judges and courts get muzzled and marginalised as they’re the public’s last line of defense from corporate greed

BOTH THE European Patent Office (EPO) and U.S. Patent and Trademark Office (USPTO) nowadays use buzzwords aplenty. The buzzwords are sometimes identical. The EPO intentionally misinterprets the EPC (courts have already said so), whereas the USPTO tries hard to dodge 35 U.S.C. § 101 (SCOTUS precedents). Isn’t it incredible? Patent offices that we’re constantly being told exist to serve the public ever so shamelessly break the law and harm the public.

“Patent offices that we’re constantly being told exist to serve the public ever so shamelessly break the law and harm the public.”We no longer focus on the USPTO (a strategic choice, seeing that patents on software are still perishing there, especially in courts), so let’s look at the latest from the EPO. The management of the EPO keeps calling fake patents on software “AI” and “4IR” (among other things). It tells applicants to use these misleading terms (a bunch of buzzwords promoted by EPO to advance illegal patents on algorithms under the guise of “novelty” or “miracles”). It gets even worse! The EPO literally paid the mainstream media for ‘studies’, in order to promote these buzzwords in relation to software patents in Europe. We covered this before. Some very big publishers in the UK and in Germany were among the recipients of this money. Good use of stakeholders’ money? Bribing media and academicw? It is still being done by António Campinos (it actually started under Battistelli) and the EPO’s Twitter account promotes this kind of bribery almost every single day (it did yesterday as well). Here is a tweet which was retweeted by the EPO this week: “Mr Gerard Owens of the European Patent Office @EPOorg giving the #standardays participants an insight of new trends in the European #patents system #4IR …”

Yes, “4IR”. Ask the EPO’s ‘economist’ what that even means…

The EPO then tweeted: “The next opportunity to visit the EPO will be in Munich. If you want to know more about the EPO’s approach to #artificialintelligence …”

Yes, “AI”. Nowadays a synonym for “computer” or “machine” or “algorithm” (provided it has some “logic” like if/else statements).

We’ve decided to add the above modified cartoon. It’s not only us who are mocking the hype wave. When I write about it online I typically call it “HEY HI!” (AI). Because it’s everywhere, ascribed even to things that have no statistics or anything sophisticated in them. Much of the same can be said about “IoT”, “blockchain”, “cloud”, “smart” and so on…

The EPO has also just said: “We welcome your input. Submit your feedback on our goal of delivering high-quality products and services efficiently here…”

The EPO is not “delivering high-quality” anything. Neither “products” nor “services”. Its own staff union, SUEPO, refuted this lie as recently as weeks ago. The EPO is very well aware of what’s going on, yet it keeps misleading (lying to) the public about it. How long or how much longer can this carry on?

“How do you find out if your idea is novel? You do it by searching for prior art,” the EPO wrote this week. Does the EPO give examiners sufficient time to search for prior art? No. And to make matters worse, the EPO actually blocks technical sites such as Techrights, artificially limiting examiners’ ability to find/identify prior art. We have about 25,200 articles in Techrights and some of these are technical. Some shed light on old works in the areas of hardware and software. There are also like a million links in the blog and IRC logs (pointing to other sites).

Currently, the EPO is counting on being able to mask the collapse of patent quality. It’s attacking the judges and the courts. That’s an assault on justice itself. It’s going to get really ugly.

Today’s EPO (Team Campinos) is trying to bypass the courts themselves, sending the Boards of Appeal to ‘exile’ (as punishment and/or threat) and visiting ILO officials as if justice for staff isn’t the goal, only some fake ‘peace’. The judges internal to the EPO cannot function and World Intellectual Property Review has just cited their report, summarising with:

The number of cases settled by the Boards of Appeal at the European Patent Office increased by 22% last year, a new report shows.

Settlement. The new justice?

See the new comment by “Haar is not Munich” (approved last night by IP Kat, which censors some EPO criticism). It’s about the ‘exile’ of the Boards of Appeal at the European Patent Organisation/Office:

It does not really help to start splitting hairs. The city of Munich and the Munich Landkreis are two different legal entities. They have their own, different administration units.

If you are resident in the Landkreis, and let’s say you need a driving license or a passport, if you go to the city of Munich administrative unit, the so-called Kreisverwaltungsreferat, you will be send away. This is a reality which does not compare with London and its 32 boroughs.

Another comparison comes to light. At the well-known Oktoberfest, only breweries from Munich are allowed to sell their beer. If a brewery would relocate outside the boundaries of the city of Munich, i.e. in the Landkreis, they would be excluded from the Oktoberfest. Lots of breweries have moved partly from the centre of the city, but they always took great care not to move one inch over the boundary, exactly for this reason!

You may want to interpret the EPC, but nowhere in the mind of its fathers, had they ever envisaged to send part of the EPO outside the boundaries of the city of Munich. The decision was to locate the EPO next to the German Patent Office, in the so-called Isar building. There even used to be an underground passageway between the two buildings!

When the original EPO building became too small to take into account its growth, it has never been envisaged to lease or build anywhere else than within the boundaries of the city of Munich. You find nowadays the bulk of examiners in the vicinity of the main station. The mechanics principal directorate was temporarily relocated in a suburb, Neu-Perlach, but still within the boundaries of the city of Munich.

There would have been plenty of other buildings within the boundaries of Munich to relocate the Boards of Appeal, should the Isar building proved to be too small. It was pure retaliation to send the Boards of Appeal away to Haar, and in order to add insult to injury to claim that the move would increase the perception of their independence.

The EPO is meanwhile attempting to also replace the Boards of Appeal, basically putting them out of work. Illegal? Surely. Will the Constitutional folks realise this? The Federal Constitutional Court (FCC) in Germany still assesses a complaint about it; there are no signs of progress, but Team UPC can always make something up (as it has done for years). Yesterday we saw a chronically-lying UPC account pretending UPC is still on, citing a blog post by Team UPC (Bristows), adding: “[Asked about the future of the UPC] “According to Robin [Jacob] “it is still on at the moment. Unless it becomes impossible, it will happen.” Robin further stated “I predict you will have it on the program next year. It is this year or not at all.”

“We’ll all be raptured before UPC happens,” I replied to him jokingly. He’s a Munich-based patent parasite, looking to profit from UPC litigation galore. Benjamin Henrion, who took note of the above, added this quote from Team UPC: “Klaus Grabinski (Federal Court of Justice) noted that he is “still confident that the UPC is going to happen.” He expects a decision about the complaint launched at the Federal Constitutional Court to be rendered this year…”

Now trace it back to the source. He spoke at an event of patent maximalists, telling the crowd what it wanted to hear. That’s also citing a blog post by Team UPC (Bristows), relaying words from Alexander de Leeuw (Brinkhof). Here’s the whole portion:

After congratulating Sir Robin Jacob (former Lord of Justice of Appeal of the Court of Appeal, London) on his birthday – and after Robin Jacob informed Hugh that a collection of judges is known as “a wisdom’ – Hugh asked him about the future of the UPC. According to Robin “it is still on at the moment. Unless it becomes impossible, it will happen.” Robin further stated “I predict you will have it on the program next year. It is this year or not at all.” During a later part of the session Klaus Grabinski (Federal Court of Justice) noted that he is “still confident that the UPC is going to happen.” He expects a decision about the complaint launched at the Federal Constitutional Court to be rendered this year.

Well, but the Federal Constitutional Court isn’t his court. If there’s true separation between courts, how would he know? The same sort of guesswork and false rumours that promised a decision by last Christmas? Probably. On another note, what the heck are judges doing in a corporations-funded think tank of patent extremists? It makes it looks like the courts are ‘in bed’ with industry and aren’t working for the public. The previous chief judge of the Federal Circuit lost his job over it.

04.25.19

American Patent Courts Keep Narrowing Patent Scope, No Matter What Few Politicians Are Doing on Behalf of Litigation Firms and Patent Trolls

Posted in America, Courtroom, Patents at 8:13 am by Dr. Roy Schestowitz

Ray Niro dies
Reference: Death of the father of patent trolling, Ray Niro

Summary: Acts of desperation in the patent microcosm of the United States, where judges now overwhelmingly reject software patents at all levels (tribunals, lower courts, higher courts)

AT THE TURN/START of the year we said we would focus on the European Patent Office (EPO), even at the expense of USPTO and American patent cases (especially the latter). But every now and then we see something important enough in the US and it is worth noting.

“The talk about Congressional intervention isn’t particularly new. Coons, for example, has been trying and failing for years. He’s trying again.”35 U.S.C. § 101 is not going away. USPTO management may try to ignore it, but SCOTUS isn’t doing anything to change it. Earlier this week we saw additional appeals from Watchtroll to compel SCOTUS to revisit the matter, but it’s just not happening. In the meantime or meanwhile the Federal Circuit rejects Iancu’s notorious guidance and inter partes reviews (IPRs), not ex, carry on as usual.

Yesterday we noticed that Steve Brachmann from Watchtroll demonises the Patent Trial and Appeal Board (PTAB) by going after “big tech” (the site hates technology, but it loves lawsuits over technology). It’s the second time this week; he’s just following up his boss. Months ago he attacked Zoe Lofgren for her pro-science/technology stance. This is how desperate these people have become. They attack judges, they attack politicians who aren’t in the pockets of law firms, and somehow they expect to be taken seriously? We’ve also just noticed some of them citing Koch-funded 'research' on patents. They try anything they can to weaken § 101, but it’s not getting anywhere. In fact, they’re losing even more.

We’re already seeing these patent maximalists irked by the fact that the Federal Circuit now (belatedly) views GUI patents as abstract and thus bogus, fake, invalid — a reversal of this court’s position from about a year ago (we wrote quite a lot about it back then). We’ve included links about that in our daily links (Patently-O, Watchtroll and others). The gist of it is that courts only get tougher, not more lenient, and technology companies step in to defend the courts/caselaw. Based on this tweet, the majority of patent lawsuits still get filed by patent trolls, so any pretense that innovation is at stake should be laughed off. The patent maximalists told us that their ‘religion’ would encourage innovation, but these days — even after reforms — these systems mostly embolden those whose career involves blackmail and extortion with software patents.

The talk about Congressional intervention isn’t particularly new. Coons, for example, has been trying and failing for years. He’s trying again. This time too he will fail. It already loses momentum because nobody talks about it this week, except the EFF’s Alex Moss, who has just published “The Tillis-Coons patent bill will be a disaster for innovation” (we’ve mentioned it several times recently).

To quote:

In recent years, we’ve made major progress getting courts to give full effect to Section 101 of the U.S. Patent Act. That’s the section that defines, and limits, what can get a patent. Section 101 is critical in making sure that only inventions—technological advances attributable to human efforts—can be patented.

Now, key Senators are looking to undo all of that progress and drive the patent system into uncharted territory. Senators Tillis (R-NC) and Coons (D-DE) are pushing ahead with a proposal that will upend more than a century of case law and make the patent system far worse for small innovators and ordinary consumers in the software and health care industries.

Who will benefit most from the proposal? Companies that make money from aggressively licensing and litigating patents, especially in the fast-growing fields of artificial intelligence and medical diagnostics. And, of course, the patent lawyers and law firms who make money representing them.

Not to mention, patent trolls. With Section 101 broken, defendants will have lost a powerful tool for fighting bad patents. Most of the small businesses we profiled in our “Saved by Alice” project would have likely been pushed toward lengthy and expensive trials, rather than fast and fair resolutions, in order to defend against false infringement charges.

We find it extremely unlikely that this will get anywhere (just like the UPC, which maximalists said was “imminent” every year for about half a decade). And besides, it’s not a matter for Congress to decide on. It’s the courts’ job to interpret law.

04.24.19

Supreme Court of the UK, Which Habitually Throws Out European Patents, May Overturn Troublesome Unwired Planet v Huawei Decision

Posted in Courtroom, Europe, Patents at 2:07 am by Dr. Roy Schestowitz

Bad news for patent trolls and their legal representatives (the likes of Bristows/Team UPC)

A jungle
“But they’re GREEN monopolies! They’re GREEN!!!”

Summary: A lot of European Patents are facing growing scrutiny from courts (Team UPC, including Bristows, publicly complains about it this month) and “greenwashing” of the Office won’t be enough to paint/frame these patents as “ethical”

HAVING just covered the German Federal patent court's take on SPCs, weakening/limiting the breadth of some European Patents, let’s also consider the fact that Mayo may cause the USPTO to reject similar patents in the US (patents on food). Today’s EPO, under the leadership of António Campinos, is arguably more lenient than the USPTO. Some people from Team UPC have said that software patents are now easier to get in Europe than in the United States (where such patents originally came from, due to the Federal Circuit‘s decision/stance about half a century back). Owing to 35 U.S.C. § 101/Alice (US Supreme Court), software patents are pretty much worthless in American courts nowadays; the same goes for patents on nature, owing for the most part to Mayo (there’s also Myriad). Weeks ago we saw the UK Supreme Court (highest British court) knocking down a European Patent on natural compounds (where the supposed innovation was a recipe).

Are we indeed seeing the Alpine avalanche of European Patents? Is it the beginning of the collapse? The rumbling of snow? Sooner or later it will come down and it will cover everything in its path.

Yesterday we caught this important new blog post from Florian, who we knew back then would be followed by a lot of ‘press’ coverage (authored and published by law firms, not actual journalists, i.e. the usual). It’s about the most infamous patent troll of Ericsson, whose legal wars in London posed a great threat to British software companies. The name of this troll keeps changing — pretty normal practice among trolls looking to dodge the negative past publicity. It’s currently known as “Unwired Planet” and we included articles about this latest development in yesterday’s (afternoon) daily links alongside this coverage by Rose Hughes for Richard Vary (Bird & Bird, Team UPC, FRAND zealots). We prefer not to link to it (published 35 minutes after Florian’s blog post) because that tends to promote lies of the FRAND lobby. This blog typically pushes such coverage (on this case and this topic in general) from “AmeriKat” (Bristows), but this time it’s their ‘sibling’ Bird & Bird. Expect Bristows to say much more (and complain) in blogs such as IP Kat and Kluwer Patent Blog in the coming days. To quote Bird & Bird: “As discussed on IPKat here, the Court of Appeal decisions in Unwired Planet and Conversant were significant. The Court found that the English courts have jurisdiction in considering and determining the terms of a global FRAND licence. The courts could not force Huawei to enter into a global licence. However, the court could prevent Huawei from using the technology to which the SEPs relate, unless they entered into a global licence.”

It would not at all surprise us if these patent trolls are Bird & Bird clients (without disclosure), i.e. they represent these parasitic, villainous trolls. The case in question relates to a patent troll of Microsoft, albeit indirectly. This troll is currently called “Conversant” (formerly MOSAID) and maybe it will rename again in the future. Their names are a dime a dozen and they don’t have any real operations. They don’t need a brand; they sell nothing.

The above case may serve to overturn a dangerous decision that threatens Free/libre software among many other things (including fair competition). When shifting to courts outside the UK, as they sometimes do, trolls want decisions that are more favourable to them (e.g. in Eastern Texas and its German equivalents). Thankfully, the UPC(A) seems to be permanently dead. More dead than ever. We’re past Easter now and there’s no sign of progress. Seeing the judges’ persistent ‘exile’ in Haar, the FCC in Germany won’t be impressed. The EPO cannot be trusted with anything. “The Convention watchdog” left this comment some days ago and hours ago it was belatedly (almost a week late) approved. It says:

As to geography:

To make it quite clear, the Landkreis München is not a broader area than the City of Munich but a different area. It comprises municipalities outside Munich but not Munich itself.

In this respect, the referring decision addresses an interesting point at Reasons, pt. 3.3. The Headquarters Agreement between the European Patent Organisation and Germany, concluded implementing Art. 25 of the Protocol on Privileges and Immunities, contains in its Articles 11 and 12 provisions on the premises of the Organisation in Munich and of the Berlin sub-office. The Berlin sub-office has its legal basis in Section I, Article 3 a) of the Protocol on Centralisation which is part of the Convention pursuant to Art. 164 (1) EPC. The case of Rijswijk is governed by the corresponding Agreement with the Netherlands, defining in its Article 1: “branch” means the branch of the European Patent Office at The Hague (Rijswijk), in order to make clear that the existing premises of the IIB are covered by the Agreement and the Protocol on Privileges and Immunities. In any case this shows that the legal situation for Berlin and Rijswijk is different from the situation for Haar. The competence in Article 7 EPC to create further sub-offices does not cover sub-offices for the departments of the EPO entrusted with procedural functions under the Convention.

Another person then wrote: “Why does the possible interpretation of “Munich” as “Landkreis München” have to be *exclusive* of the City of Munich? Would it not also be in keeping with the Vienna Convention to interpret “Munich” in Art. 6 EPC as meaning “a location within either of the City of Munich and Landkreis München”?”

Imagine what would happen if all patent cases were decided by the same system that kicked out these judges to Haar, probably in direct violation of the EPC. As an act of retaliation (or scare tactics) from Office management…

Today’s EPO lacks legitimacy and Campinos has done absolutely nothing to change that. It’s like “greenwashing” of the Office, a man with a smile who stabs you as soon as you turn around.

Speaking of greenwash, there’s this new article about the EPO’s PATSTAT. It’s about patent monopolies on “sustainable innovation”, i.e. things you are not allowed to do in order to combat climate issues. Here they go again with epic greenwash:

Green Tech DB uses patents in order to provide a database that offers a comprehensive overview of the developments of Green Technologies worldwide.

Researches use the PATSTAT 2016a database as their patent source; which is produced by the European Patent Office (EPO). “The main advantage of using PATSTAT, a database produced by the European Patent Office, is to have information about patent applications that covers more than 80 different countries. As a patent is a legal object, information available in different patent databases is similar, what differs is the coverage across time and countries, and PATSTAT has one of the best coverage.”

The EPO’s database of patents used to be a source of envy, but nowadays it is polluted by loads of bogus patents which would cost a fortune to invalidate.

04.18.19

The US Supreme Court (SCOTUS) Once Again Pours Cold Water on Patent Maximalists

Posted in Antitrust, Courtroom, Patents at 3:32 am by Dr. Roy Schestowitz

Small waterfall

Summary: Any hopes of a rebound or turnaround have just been shattered because a bizarre attack on the appeal process (misusing tribal immunity) fell on deaf ears and software patents definitely don’t interest the highest court, which already deemed them invalid half a decade ago

THERE is a lot of entertainment value — more so than actual importance or urgency — in watching American patent news these days. First of all, bad people get punished. The patent scam that a scammy patent lawyer/attorney threatened me over is finally lost. It’s finished. All options exhausted. SCOTUS finally rejects the case; there will be no appeal. SCOTUS isn’t buying this ludicrous idea that tribal immunity can be ‘borrowed’ for patents of some major pharmaceutical company that has nothing to do with tribes. It looked at the alleged grounds and briefs, but it wasn’t convinced. So the Supreme Court generally agrees (on the surface) with the findings of the Federal Circuit without necessarily looking into it in depth. Last year it also defended the inter partes review (IPR) process at the Patent Trial and Appeal Board (PTAB) although one new Justice, Gorsuch, brought forth talking points from Koch-funded 'scholars'.

“It often feels like our activism against American software patents was a success; patent courts aren’t tolerating these anymore.”We are relieved but not surprised. The CCIA wrote about it (SCOTUS Won’t Review Tribal Immunity To Inter Partes Review) and so did patent maximalists who had seemingly supported the scam (these stories are already in daily links where we shelve a lot of USPTO/US courts’ news).

Michael Shore will be remembered for nothing but a failure with a failed attempt to cheat the law, then SLAPP his critics (yours truly). Sadly, his clients will pay for this idiocy; he gets to keep the money from legal bills.

In other news, 35 U.S.C. § 101 (Section 101) is also safe. Janal Kalis wrote: “Yesterday, the Supreme Court Denied Cert. in TS v Yahoo. The Issue Was Whether a Dist. Court Could Invalidate a Patent under 101/Alice While Granting a Motion to Dismiss…”

If the Supreme Court won’t touch Section 101, as it has refused for quite some time, nothing will change. With a couple of new Justices there’s risk of a different position, no doubt, even though another decision to the same effect can actually strengthen Alice. But why take the chance?

We are still observing (from afar) blogs of patent maximalists. It’s the same old nonsense and it is getting ever more ridiculous over time.

The new Watchtroll editor, Eileen McDermott, continues in the spirit of her blowhard predecessor. She now uses Cheekd to promote the lie and delusion that patents (or ‘IP’) are needed for small firms/people rather than giants and their monopolies. Pure reversal of what’s happening. Their ‘religion’ requires this lie to be spread far and wide. The other day a famous GNU developer told me, “wait, doesn’t IP stand for Invalid Patent? ;-)”

That’s a funny one. We may borrow that. We’ve meanwhile also noticed that appointments at the USPTO come under fire from insiders. Months ago we wrote about Laura Peter joining Iancu, having already acquired some experience in patent trolling. Nowadays that skill is a “plus” because Trump flunkies like Iancu deny that patent trolls even exist or are a problem. They just want to make lots of ‘IP’ (invalid patents). The USPTO insider wrote: “I guess the new deputy director of USPTO, Lara [sic] Peter, is on a kick to promote females regardless of skills. I am not sure how she got appointed having actually never led anything….I hope the new CIO will not turn out to be an failure like the rest.”

A short time apart there was also this Office gossip revolving around abuse and nepotism: “So many of you are telling me that Debbie Stephens is now the new DCIO, and we did not believe it could get worst after Owens and Chiles. Rumors are that Patents no longer wants her and now the CIO will have a DCIO that can only micromanage and appoint other idiots that kiss her…”

This is starting to resemble some of the worst elements of the EPO — a subject we shall return to in our next post. We are trying to gradually reduce our coverage of US patent cases and instead focus on EPO and GNU/Linux. It often feels like our activism against American software patents was a success; patent courts aren’t tolerating these anymore.

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