The trolls’ best friend, Mr. Gilstrap
Summary: A look at what law and practice are saying about software patents, contrasted or contradicted by the patent industry and trolls-friendly courts (which make business out of or together with patent aggressors)
TECHRIGHTS spent a lot of time writing about Microsoft’s hijack of Yahoo. Microsoft took everything it wanted from Yahoo and left a dead company to rot, as usual (that’s Microsoft’s modus operandi as one can see in Corel, Novell, Nokia et cetera).
Now that Yahoo is sold (and journalists don’t bother mentioning how Microsoft killed Yahoo) the think tank which is IAM says: “While that deal will involve the bulk of Yahoo!’s traditional business, it does not involve the Excalibur patent portfolio, a stockpile of around 2,700 assets that the company has spun out into a separate vehicle to be sold separately.”
“Microsoft took everything it wanted from Yahoo and left a dead company to rot, as usual (that’s Microsoft’s modus operandi as one can see in Corel, Novell, Nokia et cetera).”We always sensed the danger that Yahoo would give its software patents to some hostile entity or a Microsoft-made entity like CPTN. Yahoo has a lot of software patents, but they’re quite worthless after Alice and some are nearing their expiry. The good news is, one single decision at the Supreme Court (SCOTUS) had supreme impact and this lowers the risk to software developers everywhere in the world (if they trade within the US or export to the US).
A lot of patent lawyers/attorneys keep pondering/assessing tricks for portraying software patents as non-abstract (even though they always are), in light of Alice whose impact was incredibly profound.
As expected all along, Bascom is exploited by software patents proponents including Watchtroll’s site (patent attorney John M. Rogitz in this case). He says that the case of “DDR begins with Mayo step 1 analysis without definitively declaring whether the claims are or are not abstract. Instead, the opinion observes what the claims are not: they are not a mathematical algorithm or a fundamental economic or longstanding commercial practice, but instead address a business challenge (retaining website visitors), a challenge particular to the Internet. Instead of declaring this not to be “abstract”, however, Judge Chen simply points out that identifying the precise nature of the abstract idea is not as straightforward as in Alice given the various varying formulations of the underlying abstract idea presented by the infringer and by the dissent.”
Unless Judge Chen actually wrote a computer program, it is likely that understanding of abstractness of algorithms would be deficient. Watch the very latest pro-software patents lobbying/promotion from Shelston IP [1, 2]. They’re preying on ignorance and looking for exceptional court decisions not only to preserve software patents in the US/Australia but also bring them elsewhere (like Australia’s neighbours and in particular a defiant New Zealand).
“Unless Judge Chen actually wrote a computer program, it is likely that understanding of abstractness of algorithms would be deficient.”Speaking of judges, Rodney Gilstrap is a villain, not a judge (recall his track record in East Texas [1, 2, 3, 4]). He deals with an enormous number of troll cases where software patents are treated favourably and practicing businesses are forced to pay parasitic trolls. As it turns out, he also publishes documents in Microsoft Word format (maybe a clerical error). He is publishing in formats that only Microsoft customers can properly access, much like the EPO (see today’s tweet which mostly matters to people who are using Microsoft Windows, not anything else).
“Section 101 is a powerful tool for patent defendants, if they can get heard,” Joe Mullin says in his summary and here is the beginning of the article “East Texas judge backs off restrictive “abstract” patent motion rules”:
US District Judge Rodney Gilstrap of the Eastern District of Texas hears more patent cases than any other federal judge. Last year, he installed a set of controversial rules for those cases, leading to rare public criticism. Changes to Gilstrap’s order (Word file), dated last week, suggest some of those rules have been withdrawn.
Section 101 of the US patent laws is what the Supreme Court has deemed bans overly abstract patents. Since the high court decided Alice v. CLS Bank in 2014, Section 101 has become more important, since courts have been reading it as banning many software patents that recite basic processes.
Last year, the patent rules for Gilstrap’s court held that defendants seeking to file a motion under Section 101 “may do so only upon a grant of leave from the Court after a showing of good cause, which shall be presented through the letter briefing process.”
Gilstrap is out of control. More people need to speak about it. CAFC too had such a judge, but he was ejected for misconduct.
Patent trolls are going after small companies if they don’t wish the claims to be challenged or for trials to be concluded. It’s a rogue system, so in addition to ending sofwtare patents it would be useful to prevent venue shifting to Rodney Gilstrap with his bogus Texan ‘court’ (whose district openly advertises itself as being friendly towards trolls). What a mess of a system! This needs to be tackled immediately. █
“There`s no present. There`s only the immediate future and the recent past.”
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Summary: A look at how the AIA’s Patent Trial and Appeal Board is invalidating software patents post-Alice, with or without involvement of patent courts
PATENT QUALITY at the USPTO seems to be improving as more courts rule against patents, PTAB challenges the USPTO’s examiners, and even examiners are growingly worried because of those first two group (courts and PTAB), so they are cautious in granting patents, thus rejecting more of them, especially when these are abstract.
Michael Loney, writing for MIP from New York, says that the Court of Appeals for the Federal Circuit (CAFC), originator of software patents, has just “ruled that the burden of proof does not shift to the patent owner on institution of an inter partes review (IPR) trial, in In re Magnum Tools International. It reversed the Patent Trial and Appeal Board (PTAB)’s determination that the challenged claims were invalid for obviousness.”
“This means that, regardless of CAFC’s notorious past, it has become somewhat of a solution to the software patents epidemic.”One may be tempted to say that this is just typical of CAFC, but actually, judging by the numbers, CAFC very often rules against software patents these days. Hugo Roy from the Free Software Foundation Europe has just “updated https://hroy.eu/posts/patentFacts/ … listing some interesting facts about #patents. (Check the invalidation rate in the US! 91%)”
The 91% figure refers to CAFC and here is the relevant part from the updated page: “In the US, patents challenged on the basis of the US Supreme Court Alice v. CLS Bank decision are invalidated by Federal Circuit courts in 91.9% of cases (66.5% for all courts).”
This means that, regardless of CAFC’s notorious past, it has become somewhat of a solution to the software patents epidemic. It has no choice after Alice at a superior level (SCOTUS). In another article, one which Michael Loney found and shared, an inter partes review (the way PTAB slays software patents) is mentioned as follows: “On July 25, 2016, Unified Patents Inc. filed a petition for inter partes review of all claims 1-15 of U.S. Patent 6,415,207. In IPR2016-01465, Unified challenged a patent directed to automated tracking, one that Shipping and Transit has asserted against more than 90 small businesses.”
It’s no coincidence that small businesses are targeted; small businesses cannot afford or don’t have the incentive to take this to court. Imagine what UPC would do to European SMEs if it ever became a reality. This would help patent trolls at the expense of small businesses (in particular the smallest ones). █
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EPO management even lies to EPO staff about its rulings, which are based on highly dubious proceedings
Summary: Hearings in The Hague begin (or resume) tomorrow, but whatever the outcome may be, Team Battistelli arrogantly reminded us that it would refuse to respect rulings from the highest court at The Hague, much like China’s government
THE links in yesterday’s daily summary (we posted two summaries yesterday) contain a couple dozen stories about China refusing to honour a ruling from The Hague. Maybe it’ll be a convenient subject for discussion on Battistelli’s next SIPO journey as the EPO too ignores The Hague, except when it comes to setting up branches near The Hague. EPO management is about to go on trial again (Supreme Court) and according to this report it will begin tomorrow. SUEPO is understandably quiet as preparations are required.
Lawlessness at the EPO has become the standard. Laws and rules are habitually broken (even by the President himself), external trials are snubbed, independent judges are crushed, and internal ‘justice’ uses bogus or fabricated evidence in order to implement anything the President asks for. Writing about the immunity of Battistelli, one person shared the following:
Indeed, no. He even enjoys more immunity than “us employees”, as he gets full diplomatic immunity according to the Vienna agreement… Even from his sending state, as all member states must accord it to him….
The president alone proposes the agenda, but the moment the AC meeting has started, the AC can amend and change the agenda. They can remove topics, add topics, change the order. But only with majority vote. (The AC approves the agenda.)
The topics as preliminary published and set by the president is therefore a mere proposal and non-binding to anyone.
“The president alone proposes the agenda, but the moment the AC meeting has started, the AC can amend and change the agenda,” says the above. But they quite evidently did not. Battistelli has managed to totally distract everyone from the abuses for which he and his goons come under fire from courts at The Hague. Who needs immunity when one controls the agenda of a meeting that only takes place 4 times a year? The game is rigged. Writing about the “outmanoeuvred” hypothesis (Battistelli manipulating the Administrative Council), one person asks: “Really? With only one vote against (NL) and two abstentions (HU, IT)? C’mon…”
This serves to show just how rigged it all was. They didn’t even discuss the pressing issues like Battistelli’s abuses and demands from Battistelli. Later on a debate developed around whether Battistelli got what he wanted or not. It went like this:
…the latest amended document isn’t perfect, but it is a million miles from what Battistelli wanted.
He’s presented three or four proposals over the last 18 months. Each time the AC has told him to go back and think again. That’s why it has taken so long.
Remember that originally BB had planned to ask the AC for a final decision way back at the March 2015 AC meeting. But then the controversy over the house ban of a BoA member blew up, so he realised that he wasn’t going to get all his own way. So instead of a final decision, he merely asked the AC for an opinion on CIPA’s suggestion that he should delegate powers to a new President of the Boards of Appeal. (Do you really think that BB liked the idea of delegating power to someone else?)
Further proposals followed, but weren’t good enough. Eventually, in February/March this year there was a huge bust-up, where the AC told BB that his proposal was still not acceptable, so Board 28 would tell him what it should say. Even then, during the June AC meeting they further amended what he had produced.
Of course, on each occasion BB’s PR machine has issued a communique on the AC’s behalf, saying that the AC was extremely happy with his proposals. But do you seriously believe everything you read in official communiques?
One person asked, “could it be that BB [Battistelli] is creating side-shows about issues that really do not matter that much to him” or distracts from abuses against his staff? Here is the full comment:
I fear that your comments rather reveal what I was most afraid of, namely a perception amongst some representatives to the AC that it is enough that BB has been battered back from his (apparently) preferred position on certain issues.
Let me be clear: avoiding an even more ridiculous alternative can hardly be counted as a “victory” if the outcome is still ridiculous. Also, has the AC not considered that, if BB were being particularly cunning, he might well make all of his initial positions so ridiculous that what ends up being passed by the AC nevertheless still gives him (at least) what he had secretly hoped for?
There is also the possibility of “sacrificial pawn” tactics. That is, could it be that BB is creating side-shows about issues that really do not matter that much to him, simply in order to ensure that he keeps a free hand on the issues that are truly important? Having to make some small concessions on minor issues is not such a high price to pay for ensuring you achieve your ultimate objectives.
I now understand more about how events have come to pass, but that additional knowledge has done nothing other than give me less cause for optimism. This is because my worst fears have been confirmed: the President really does control the agenda and is making fools of the representatives to the AC who oppose him. Also, with seemingly total immunity, it seems that the President really has nothing to fear… not even committing acts that, if judged under national laws, might land him in jail.
I really hope that there is someone out there who can figure out a way of fixing this, because I fear that there is worse to come for the European patent system if BB is neither jettisoned nor brought to heel.
The following comment said that the “latest outcome” is what Battistelli “wanted all along” as the appeal boards lost their independence (the EPO lied about it).
sorry but I can’t agree that the latest outcome is what BB wanted all along. I fear you have been taken in by his constant propaganda that the AC thinks he is wonderful and accepts everything he says.
All you can really say is that the AC could have done more on some of the issues. But viewed objectively, while the outcome is not perfect, neither is it favourable for BB.
The debate missed the point that Battistelli controls people by appointment now. The latest comment said this:
Can you really claim to know what BB wanted all along? I am not saying that I can either, but the point that I was making is that his tactics may be a lot more manipulative than is currently perceived. Perhaps, unlike me, you have not had your eyes opened to the fact that there are some individuals out there who will make a huge fuss (and fight tooth and nail) about an issue that really is of little consequence to them, simply in order to improve their negotiating position on other points.
From my perspective, the conclusion that “neither is it favourable to BB” just does not cut the mustard. I would instead have preferred a sane and sensible reform of (the rules of conflict of interest for) the Boards of Appeal – whereas the reform that we got does not meet either of those criteria.
Compromise is of course a very “European” way of doing things, and is no doubt essential in fora such as the AC. All I am saying is that just realise when you are being played – and when it is time to stand up to bullying behaviour and draw a line in the sand that shall not be crossed. Breaching provisions of the EPC and making threats to the EBoA really ought to have been such a line.
“Breaching provisions of the EPC and making threats to the EBoA,” as the above put it, are just two among dozens of Battistelli abuses. In tomorrow’s hearing only few among these will be considered by the court. If Battistelli was found guilty for only one of those dozens of abuses, he would not obey the ruling. That would only further embarrass the Office. █
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Supreme Court will keep Battistelli at bay
Summary: The cases against EPO management (collective, not just Benoît Battistelli) and against Željko Topić (as an individual) are guaranteed to make it a hot sweaty summer at the higher floors of EPO buildings
AFTER the latest big meeting at the end of June the EPO may seem to have fallen off the headlines. It’s definitely busy behind the scenes (trial this week, so preparations are made), but the media is mostly quiet, with few exceptions. We still require translations from German [1, 2] and we have some articles in the making with exclusive information in them.
Remember that EPO management will be on trial this week (for its extraordinary abuses, for which it was found guilty previously). The EPO’s Vice-President, or Battistelli’s bulldog, is personally (not collectively) in trouble as a verdict is imminent (decision should be made soon) in Croatia. If these people wonder why Brits voted in favour of leaving the EU, well… this is why. It’s mischief and criminality.
“If these people wonder why Brits voted in favour of leaving the EU, well… this is why. It’s mischief and criminality.”The EPO management isn’t quite so accustomed to fair trials and it tends to ignore these, not show up, not obey rulings etc. That’s just how bad things have become. At the “European Patent Office,” said or implied one new comment, “secret trials on bogus charges [are brought] against anyone who disagrees with the President” and here is the timely analogy: “On July 12, the Permanent Court of Arbitration (PCA) in the Hague is expected to deliver its final award on the arbitration case between the Republic of the Philippines and the People’s Republic of China. Mmh … a country, run by a cabal of people forming a Central Committee, that considers itself above the law and has pledged to ignore any decision a Tribunal in the Hague may take … does that remind you of anyone else?”
Battistelli’s regime is somewhat like China’s or North Korea’s; state propaganda is the standard, lying to the citizens is routine, and Team Battistelli refuses to obey orders from The Hague. Battistelli goes further than China by also undermining internal ‘courts’ inside the EPO. As another comment put it: “And the result went against the cabal – who immediately declared the decision and the court wrong and insisted that they would do whatever they had to do to protect their interests while ignoring the decision?”
“…a country, run by a cabal of people forming a Central Committee, that considers itself above the law and has pledged to ignore any decision a Tribunal in the Hague may take…”
–AnonymousThat’s just like Battistelli’s minion, Willy Minnoye (EPO), who proudly said that he would ignore the highest court in the Netherlands. These trials serve to expose the vanity or arrogance of horrible regimes. This, in turn, can lead to alienation, boycotts, etc. Battistelli’s lobbying event was promoted today by EPO in Twitter, but not the trials. They would rather totally hide all this from stakeholders and pretend that everything is going very well, based on EPO propagandists.
Meanwhile we see that SUEPO, which leads the action against EPO lawlessness, has translated into English this recent article from the Dutch media:
Trade union wants Battistelli’s immunity removed
EUROPEAN PATENT OFFICE trade union SUEPO has issued a summons against the patent office. The union is calling on the member states to take action against Battistelli.
29 June 2016
The immunity of President Benoît Battistelli of the European Patent Office must be lifted. This call was made by trade union SUEPO on Tuesday to the 38 member states of the office, through lawyer Liesbeth Zegveld.
The call was prompted by further escalation of the industrial dispute between the union and Frenchman Battistelli. The union, which represents half the 7000 employees, has now brought the patent office to court because of sanctions against trade union officials.
The office grants European patents and has branches in Germany, Austria, the Netherlands and Belgium. As an international organisation, the patent office says it is not bound by national labour laws and enjoys immunity. The Court of Justice in The Hague did not agree, but Battistelli ignored the ruling. The case has now been brought before the Supreme Court.
The management crisis will be central when the Administrative Council, the highest body with representatives from the 38 member countries, meets in Munich on Wednesday and Thursday. The patent office does not wish to speculate on the agenda of the management board, says a spokesman.
In March, the council instructed Battistelli to normalise the relationship with the council. Instead of this, the secretary of SUEPO, Laurent Prunier, was recently suspended for alleged misconduct. There are ‘disciplinary investigations’ into seven union leaders, around a third of the total, says lawyer Zegveld. The procedures could result in dismissal or reduction of the salary or pension.
The union brought a preliminary injunction at the Court of Justice in The Hague, for an independent ruling on the disciplinary investigations. The patent office allowed the officer delivering the summons to leave the site with five guards. They also would not tell him where the post box was. A number of important member states, such as Germany, France and Switzerland are very critical of Battistelli. He recently increased the irritation by applying personal pressure in dismissal proceedings against an Irish patent judge. Battistelli demanded in a letter that the judge should not be given a public hearing by a board of appeal. The commission stated that its independence was being brought into question and did not accept the dismissal.
The office does not comment on individual cases, according to the spokesperson.
In the coming days or weeks we might know not just the outcome of this trial but also the trial/s against the EPO Vice-President, whose abuses are so unspeakable that one gets sued for the offense (of merely speaking about them). █
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Team Battistelli dragged back to The Hague this week
International Criminal Court (ICC) in The Hague. Photo credit: Reuters
Summary: Ahead of this week’s proceedings against the EPO, reports of the EPO’s latest (top-level management) violations, aggression, and dangerous push towards EPO extinction
THE last time IP Watch wrote about the EPO it was a puff piece with Battistelli in it (a so-called ‘interview’ that had softball questions). Earlier today IP Watch published this long piece from which we quote some key parts with added highlights:
Special Report: Union Lawsuit Claims EPO Has Prevented It From Functioning; Office Claims Immunity
Deteriorating relations between European Patent Office (EPO) management and staff union SUEPO have sparked another lawsuit in the district court in The Hague, Netherlands. The matter, which will be heard in a 15 July summary proceeding, alleges a pattern of threats, dismissals, suspensions from service and gagging of union members, said Prakken d’Oliveira attorney Liesbeth Zegveld, who represents SUEPO and its Dutch branch. Around one-third of union officials have been suspended, investigated or gagged, effectively preventing the union from functioning, she said in an interview.
The lawsuits are just part of the ongoing turmoil affecting the EPO. Reform of the Boards of Appeal (BoA) has also proved controversial, and there are concerns about the reluctance of the Administrative Council to get a grip on the staff-management battle.
The EPO said that, as an international organisation, it has immunity from such suits, as recently held by a German court. It defended its changes to the BoA, and announced an autumn conference for stakeholders to discuss an independent study on office social issues.
As for staff efforts to spur the AC to take control of the downward-spiralling situation: In a 22 June letter, the EPO-FLIER team, which identifies itself as “a group of concerned staff of the EPO who wish to remain anonymous due to the prevailing harsh social climate and absence of rule of law” at the office, begged Council members to assert their “fiduciary duty” over the organisation.
The AC took responsibility when it issued a resolution with “clear and achievable objectives for the President,” the open letter said. “Very briefly there was a marked improvement of the atmosphere in the Office.” But instead of complying with the unambiguous instructions, Battistelli has challenged his supervisory body, it said. “Mr. Battistelli is causing immeasurable damage to the Office; he is now untenable.”
Among other problems, the letter said, applicants have started noticing a decline in the quality of EPO patents, and, because of the ongoing disputes, the office no longer attracts the same calibre of staff. The letter also noted Battistelli’s continuing disregard for staff rights. “And all the time, the members of the Office’s only supervisory body watch it happen.”
“I believe the situation is now so bad and dangerous at the EPO that it is time that public, patent attorneys, economists and company bosses assemble and act together,” one staff member wrote in anonymous comments published on 3 July. “Make a petition, use your professional or private network if you know politicians, journalists, economist, write to ministers or representatives. We need to inform them that the whole European Patent System is at risk.”
There are also lots of lies and whitewashing from EPO spokespeople in this article (we rebutted these talking points in the past).
In relation to the boards’ planned ‘exile’, which we wrote about this morning, one person recalls old problems and says: “Another badly prepared project at the EPO, very common nowadays” (more so than ever before, by far). With context:
Thanks to Leidschendam for the link to the EPO building that was intended at the time. I find the design far more original that than of the future new Main :
The rumor concerning the non-constructed building in Leidschendam was that after buying the land, it turned out that the land was not suitable for supporting a big building and the EPO had to sell it for other purposes (such as for houses, which are supposedly lighter than an office building), making a huge loss. Another badly prepared project at the EPO, very common nowadays – just check out what is coming with Early certainty (for examination and opposition)
“Never mind that in other posts the investigation units was found bugging public computers and fabricating facts,” said another person, alluding to Battistelli’s sheer arrogance and his attack on the course of justice:
I find the discussion about the independence of the boards somewhat strange. Haven’t you read the title of the post and the linked documents? Battistelli opinion on the boards is quite clear: they are here to directly follow the conclusions of the investigation unit. Never mind that in other posts the investigation units was found bugging public computers and fabricating facts. The boards work is to do as Battistelli says.
I heard Battistelli privately say a year ago that since he is paying the salary of the boards, he should get what he paid for. I think this is the idea behind the new fee structure: if the boards want to be independent, they should self finance.
In private Battistelli is a relatively simple man: he pays, he wants obedience. The real problem here is that the Council agreed. They did not distanciate from the letter, they did not even raise the point in the last session.
At the EPO, says another person sarcastically:
I fail to see the problem with the Council.
The Council has learned the virtue of OBEDIENCE.
The Council delegations comply with Simon Cameron’s definition of an “honest politician” (“An honest politician is one who, when he is bought, will stay bought.”)
The real problem seems to be the pig-headed stubborness of the Boards of Appeal which have yet to learn this lesson.
More on the same topic:
Question: other than a resolution at an AC meeting, is there a mechanism by which the President of the EPO can be censored (or even dismissed / have his immunity lifted)?
If the answer to this is no, then can BB rest assured that, so long as he is able to control the agenda for each and every AC meeting, there will always be sufficient (and lengthy) distractions that will prevent the AC from ever reaching a decision that is adverse to him?
If this is the case, then the members of the AC who are at all concerned about the serious damage that is being done by BB to the reputation of the EPO ought to figure out a way of changing the way that the game is played at AC meetings.
What is gratifying to see is that more and more people now recognise and speak about the risk of the EPO alienating talented staff, reducing patent quality, and letting a nutcase like Battistelli run the show. The sooner he is removed from Office (along with his cronies), the better chance of a quicker recovery the Office will have. Right now it’s just a total mess and it harms Europe as a whole. Patent examiners know this. █
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“Reality distortion field (RDF) is a term coined by Bud Tribble at Apple Computer in 1981…” –Wikipedia
Shook, Hardy and Bacon L.L.P. with a slant
Summary: Another new example of software patents advocacy from IAM, with help from Microsoft’s people (or ‘former’ people)
NOT only patent trolls, the PR firm of the EPO and various patent law firms send money IAM’s way. Joff Wild has quite a few hands feeding him and these tend to be ardent advocates of patent wars (they profit from wars). It’s not really a news site, even if Google News recognises it as such. It is agenda. Sometimes it’s marketing.
Earlier today IAM gave readers the impression of software patents resurgence. As we have been showing here for a number of months, this could not be further from the truth and this claim comes (or sourced) from Microsoft’s former Patent Counsel, Bart Eppenauer. Joff Wild previously gave Bart Eppenauer a voice/platform in his Microsoft-powered site for similar reasons. It is not too shocking to find the site once again being composed, by proxy, by Microsoft folks in order to promote software patents, like those which Microsoft uses to continue its war on GNU/Linux, Android, ChromeOS, and Free software in general.
“It is not too shocking to find the site once again being composed, by proxy, by Microsoft folks in order to promote software patents, like those which Microsoft uses to continue its war on GNU/Linux, Android, ChromeOS, and Free software in general.”Wild wants us to believe that just two decisions (among many thousands) at CAFC (a corruptible court by the way), one of which involved Microsoft directly, somehow mean “eligibility nightmare the US software and biotech industries have been going through may – just may – be coming to an end.”
Well, the very opposite is true as SCOTUS refuses to revisit anything that pertains to Alice and litigation fell sharply. Lies by omission, selection, cherry-picking or just wishful thinking? Microsoft, a lobbyist for software patents, is hardly a reliable or objective source regarding software patents (especially in cases that involve Microsoft) and Joff Wild is experienced enough to know this. Does IAM even make an attempt to hide its agenda (and Microsoft’s) any longer? It has been getting pretty shallow.
This is what we often allude to as the problem of patent lawyers dominating if not abducting the media and thus controlling (or distorting) the message. █
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Summary: Another sign that software patents in the United States are a dying breed because closer scrutiny gets applied even outside the courtroom
NOT ALL is doom and gloom. The USPTO, for one thing, is unable to grant software patents like it used to because PTAB keeps invalidating such patents and the US Supreme Court takes the side of PTAB (confer Cuozzo [1, 2, 3]), which unlike USPTO examiners does not strive to maximise the number of granted patents. The National Law Review has a new article about it, titled “Supreme Court Gives Deference to USPTO in Post Grant Proceedings,” and there is even a sponsored ‘article’ about it in IAM this week.
The major news, however, isn’t Cuozzo but the following June report from MIP. It says:
According to the Docket Navigator database, 176 PTAB petitions were filed in June, consisting of 166 inter partes review (IPR), nine covered business method and one post-grant review (PGR) petition.
This made it comfortably the busiest month for petition filing so far this calendar year, ahead of February’s 150 petitions. This was despite it being the lowest month for CBM petitions since January 2016 and for PGRs since March 2016.
This surge in invalidation/reassessment activity goes in cohesion with the sharp decline in litigation activity. We hope this will further cement the end of software patents in the United States. █
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Based on data from Lex Machina
Summary: Tensions and disputes over patents in the US are on the decline, potentially as a direct result of heightened scrutiny of patents over their quality
THE USPTO is loved by patent aggressors and feared by everybody else. According to these new figures from Lex Machina (reported by IAM in this case), the USPTO just got a little less scary. To quote one of many analyses to come (after the US holiday): “New patent lawsuit in the US were down by close to 1,000 filings in the first half of 2016 compared with the first six months of 2015, providing a further indication that the marked drop off in cases since December may be part of a longer-term trend.
“As expected, given the IAM funding sources, IAM is not particularly happy about it, but what IAM wants is typically the very opposite of what society as a whole should want.”“According to Lex Machina’s running total, there were 2,238 cases brought in the first six months of this year compared with 3,232 in 2015 and 2,923 in 2014. That makes it the lowest first half total since 2011, the year that the America Invents Act was signed into law and its new joinder rules led to a spike in filings. Lex Machina has not officially announced their numbers for the first six months of 2016, but Lex Machina’s database keeps a running total and it’s safe to assume that the final total to the end of June will be close to 2,238. Unified Patents released its analysis earlier today which put the number of new cases at 2,187.”
This looks like great progress, possibly attributable to PTAB (part of America Invents Act*) and the message it sent out to patent aggressors after Alice had been handed down from SCOTUS.
As expected, given the IAM funding sources, IAM is not particularly happy about it, but what IAM wants is typically the very opposite of what society as a whole should want. IAM’s agenda is still promotion of the EPO, opposition to patent reform, UPC advocacy, and software patents (there’s no ambiguity about it). In the US, which still grants some software patents and thus helps patent trolls, voices can be found of large corporations that are upset. IAM gives them a platform this week. It is quite revealing.
Over at Patently-O, a blog based in the US (unlike IAM which is British), a MacDermid v. DuPont petition gets mentioned today and to quote the original: “Whether the Federal Circuit has erred in holding that there “must” be a proven “reasonable expectation of success” in a claimed combination invention in order for it to be held “obvious” under 35 U.S.C. § 103(a).”
“It was eventually the Supreme Court — not US Congress (in the pockets of megacorporations) — that brought necessary change.”Arguments about obviousness of patents have become commonplace not just because of Alice (which mostly relates to business methods and software). Another Patently-O article from today speaks of Rapid Litigation Management v CellzDirect and says that “[o]n appeal, the Federal Circuit held that the claimed hepatocyte prep-method was “not directed to a patent-ineligible concept.””
To quote the original: “The inventors certainly discovered the cells’ ability to survive multiple freeze-thaw cycles, but that is not where they stopped, nor is it what they patented. Rather, “as the first party with knowledge of” the cells’ ability, they were “in an excellent position to claim applications of that knowledge.” Myriad, 133 S. Ct. at 2120 (quoting Ass’n for Molecular Pathology v. U.S. Patent & Trademark Office, 689 F.3d 1303, 1349 (Fed. Cir. 2012) (Bryson, J., concurring in part and dissenting in part)). That is precisely what they did. They employed their natural discovery to create a new and improved way of preserving hepatocyte cells for later use.”
Here we have Myriad (the SCOTUS determination) being used to challenge another kind of patent. It was eventually the Supreme Court — not US Congress (in the pockets of megacorporations) — that brought necessary change. █
* A science-led Patent Trial and Appeal Board which invalidates many software patents these days.
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