Rounded corners? Apple’s invention!
Summary: Apple’s insistence that designs should be patentable could prove to be collectively expensive, as patent trolls would then use a possible SCOTUS nod to launch litigation campaigns
TROLLS, or patent sharks, typically use software patents, but what if they also had design patents at their disposal?
Apple‘s war on Android, which manifested itself in a now-settled case against HTC and later in a long patent war against Samsung, may prove to be counterproductive now that Apple attracts patent trolls like VirnetX, to which it might be forced to pay billions of dollars. A pro-software patents site now says that “Apple will also be an even richer target for the new breed of design patent trolls” if it wins its case against Samsung/Android (over design patents). To quote this new article:
On October 11, 2016, the Supreme Court will hear Samsung’s appeal of the Federal Circuit’s affirmation of the jury’s damage award to Apple of Samsung’s “total profits” on sales of the infringing smartphones even though it had only infringed Apple’s design of the iPhone’s outer shell. In upholding the “total profits” award, the Federal Circuit determined that it was bound to uphold the jury’s award by the “explicit” and “clear” statutory language relating to design patent infringement damages.
The importance of the Supreme Court’s ultimate ruling here is underscored by the numerous amicus curiae briefs filed (27 at last count). With over 205 billion in cash reserves at last count, Apple certainly doesn’t “need” the full nine-figure damage award. And, given the far reaching implications of this case, Apple may live to regret its aggressive pursuit of “total profits” for design patent infringement by finding itself battling design patent holders seeking to recover Apple’s total device profits for infringement of even a minor design feature. Apple will also be an even richer target for the new breed of design patent trolls already surfacing based, at least in part, on Apple’s success in this case. Clearly it is time for Congress to step in and amend Section 289 to add apportionment language.
No wonder technology companies are overwhelmingly supportive of Samsung in this case — a high-profile case over design patents.
In other news, Vera Ranieri from the EFF has this new update about one of their high-profile cases against patent trolls. Ranieri writes:
There has been significant activity relating to cases and patent infringement claims made by Shipping & Transit, LLC, formerly known as ArrivalStar. Shipping & Transit, who we’ve written about on numerous occasions, is currently one of the most prolific patent trolls in the country. Lex Machina data indicates that, since January 1, 2016, Shipping & Transit has been named in almost 100 cases. This post provides an update on some of the most important developments in these cases.
In many Shipping & Transit cases, Shipping & Transit has alleged that retailers allowing their customers to track packages sent by USPS infringe various claims of patents owned by Shipping & Transit, despite previously suing (and settling with) USPS. EFF represents a company that Shipping & Transit accused of infringing four patents.
The above is a timely and good example. It demonstrates not just of the harms of patent trolls but also the harms of software patents, which in the large majority of cases rely on them. If Apple made design patents stronger, with affirmation from the Supreme Court (SCOTUS), the damage would be enormous.
Apple is on the wrong side of history. █
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Summary: Things are becoming ever more troublesome at the EPO as the Administrative Council enjoys inaction from the International Labour Organization (ILO), in spite of its role in destroying much-needed oversight at the behest of Battistelli
IN our only article about the EPO yesterday we mentioned the RFPSS meeting. Things are eroding if not disintegrating at the EPO and it’s taking its toll on staff while no effective oversight exists anymore. Someone in IP Kat‘s comments remarked on the contents of yesterday’s material as follows:
On the subject of pensions, there is some interesting commentary from the CSC on the latest RFPSS meeting.
“The Office thus unnecessarily lowers the probability of reaching our long-term objective for the return on investment, thereby deliberately creating a situation that could be used to trigger further major reforms.
The governance in terms of risk monitoring is still unclear through inadequate role clarity, while such governance deficiencies are recognised as often leading to under performance”.
If one were inclined to believe in conspiracies, the actions of the Office (including eliminating independent oversight of finances, and seemingly ensuring “underperformance” of the pension reserve fund) could all be interpreted as preparation for an attempt to sequester the approx. EUR7,000 million in the reserve fund.
In such a hypothetical conspiracy, the Office would “manufacture” excuses to cut / eliminate pension benefits to those who should be the beneficiaries of the RFPSS fund, only to then conduct a new study that miraculously discovers a massive surplus in that fund. The conspiracy would then conclude with the pension fund surplus being “liberated” by the Office.
Of course, this is all very far-fetched and so ought to easy to dismiss as nothing more than pure speculation. Indeed, a far more plausible explanation is that there is no plan for a cash-grab, just an attempt to deal with the pension liability issue that I have discussed before. Still, the effectively lawless behaviour of the Office in recent years (especially when it comes to matters of staff rights / benefits) does make one wonder…
Someone then responded to that as follows:
I have been entertaining similar suspicions since before Mr. Battistelli’s too office, when his immediate predecessor generously spouted expressions like “fit for the future”, “doing nothing is not an option” (in other words: TINA — but what is the problem in the first place?) and imposing the IFRS charade. I would however employ a much stronger word than “sequester”.
The questions are IMO: who would be the happy beneficiaries of that heist, how would the loot be split among them, and how would it be transferred out of the EPOrg while maintaining appearances?
As we stated yesterday, we have no accounting expertise here (not even in our IRC channels), so we need to rely on input from those who understand such matters and can interpret the financial reports of the EPO. The following remark bemoans Battistelli's political background, which basically makes him unfit (as per qualifications) for the post he has held for over half a decade. To quote:
Don’t forget that there is a French Presidential election campaign coming up in 2017.
“Primaire à droite : les Amis de Sarkozy lancent un appel aux dons”
This is why people who hold elected office for political parties should never be put in change of international organisations with large cash surpluses and no effective oversight.
Right now at the EPO there is virtually no accountability, as pointed out in another thread in relation to a subject we first covered here 2 years ago:
Perhaps we will never know. With the full knowledge and approval of the AC, one of BB’s first actions as president was to disband the only body (the Audit Committee) that could have provided transparency / independent oversight in connection with the EPO’s finances.
The ILOAT also placed its seal of approval on this dastardly act in Judgment 3698:
“The authority to establish or abolish the Audit Committee was vested in the Administrative Council alone, and these decisions did not infringe the complainant’s rights in any way, regardless of his role in the EPO.”
Judgment No. 3698 (originally in French) is dated a month ago (when many decisions came out, more than 80% of which rules against the EPO's management) and it relates to a decision we covered here last month. It’s Bernard Paye's complaint to ILO, which gave him a Pyrrhic victory many years too late. Here is the text of this decision with highlights in yellow. The complaint was made by “the principal author of the proposal to establish [the A]udit [C]ommittee,” based on the text:
Organisation internationale du Travail
International Labour Organization
the French text alone
Judgment No. 3698
THE ADMINISTRATIVE TRIBUNAL ,
Considering the complaint filed by Mr B. Y. P. against the European Patent Organisation (EPO) on 15 March 2013 and corrected on 7 May 2013, the EPO’s reply of 5 March 2015, the complainant’s rejoinder of 24 April and the EPO’s surrejoinder of 31 July 2015;
Considering Article II, paragraph 5, of the Statute of the Tribunal; Having examined the written submissions and decided not to hold oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows: The complainant challenges the abolition of the Audit Committee of the EPO’s Administrative Council.
On 30 June 2011, following a proposal by the President of the European Patent Office, the Administrative Council adopted decision CA/D 4/11 abolishing the Audit Committee, one of its subsidiary bodies, with immediate effect. On 28 September 2011 the complainant, who was then Head of Internal Audit (Principal Directorate 0.6 of the European Patent Office), and Ms H., who chaired the Staff Committee, filed an internal appeal against this decision. They complained, inter alia, that the General Advisory Committee had not been consulted prior to the adoption of the challenged decision. In November 2012 Ms H. withdrew her appeal. Having heard the complainant, the Appeals Committee of the Administrative Council unanimously recommended on 11 December 2012 that his appeal be dismissed, considering, in particular, that the challenged decision had not been taken in breach of any “applicable legal provision”. By a letter of 20 December 2012, which constitutes the impugned decision, the complainant was notified that the Administrative Council had decided to dismiss his appeal.
In his complaint filed on 15 March 2013, the complainant asks the Tribunal to quash the impugned decision as well as decision CA/D 4/11 and to order the EPO to submit the initial proposal of the President of the Office to the General Advisory Committee. He also seeks compensation in the amount of 30,000 euros for the moral injury that he considers he has suffered and an award of costs.
The EPO submits that the complaint is irreceivable, in particular on the grounds that the complainant is impugning a general decision that does not adversely affect him. In the alternative, it asks the Tribunal to dismiss the complaint as unfounded.
1. The Tribunal has jurisdiction under Article II, paragraph 5, of its Statute to hear complaints alleging “non-observance, in substance or in form, of the terms of appointment of officials and of provisions of the Staff Regulations”. In consequence, when “[t]he complainant does not allege the non-observance of any of the terms of his appointment or of any of the Staff Regulations applicable to him”, his complaint must be held to be irreceivable (see Judgment 2952, under 3).
2. The Tribunal observes that the complainant does not allege any violation of the terms of his appointment or of staff regulations that are applicable to him. His case does not relate to his administrative status but rather to the organisation of the EPO, his employer, for which he is plainly not responsible. The fact cited by the complainant that he was “the principal author of the proposal to establish [the A]udit [C]ommittee” that was subsequently abolished does not grant him any right to intervene in a decision to maintain that subsidiary body or not.
The authority to establish or abolish the Audit Committee was vested in the Administrative Council alone, and these decisions did not infringe the complainant’s rights in any way, regardless of his role in the EPO.
3. It ensues from the foregoing that the complaint, which the Tribunal is not competent to hear, is irreceivable and must be dismissed.
For the above reasons,
The complaint is dismissed.
In witness of this judgment, adopted on 28 April 2016, Mr Claude Rouiller, President of the Tribunal, Mr Patrick Frydman, Judge, and Ms Fatoumata Diakité, Judge, sign below, as do I, Dražen Petrović, Registrar.
Delivered in public in Geneva on 6 July 2016.
The above relates to our previous post about complicity of the Administrative Council, in this particular case actively removing accountability or oversight from Battistelli, which the Council appears to be in bed with.
Citing another case, we have already shown how Battistelli worked against the European Patent Convention (EPC). How Battistelli can get away with all this isn’t something we can now defer to the Founding Fathers of the EPO anymore (most of them are deceased by now). █
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Summary: Self-explanatory graphs about the state of the justice [sic] system which is prejudiced towards/against EPO workers, based on internal reports
If EPO management cannot guarantee justice to its own staff, will it ever guarantee justice to patent holders (defendants and plaintiffs)?
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Speaking for their wallets (profit motive), misleading the public
Like the military-industrial complex and surveillance/enforcement in the age of drug wars, patent lawyers profit from endless feuds
Summary: How patent law firms are distorting the debate about software patents in hope of attracting business from gullible people who misunderstand the harsh (and worsening) reality of software patenting
Software patents should not exist in the EPO and the USPTO too is gradually cracking down on these, especially because of the US Supreme Court. It does not mean that patent law firms will take this defeat without a fightback.
Elaine Bergenthuin, “owner and managing partner of De Beer Attorneys” by her own description, has just got published this self-promotional puff piece in the South African media. It appeared there this morning and it’s not a good article, it’s more like marketing. “You cannot generally obtain patents for software in South Africa,” the article correctly states (see our Wiki page “Software Patents in South Africa”), but Bergenthuin is then finding some loopholes and promoting these, as if to say, “come to me, I’ll help you get software patents by working around the law.”
“Software developers don’t bother trying to get software patents in India, but patent law firms mislead them.”This is very typical. The press is full of this marketing spam. The local press all over the world has been reduced to advertisements in ‘article’ form.
Here is an example from India which is only days old. Software developers don’t bother trying to get software patents in India, but patent law firms mislead them. They have nothing to lose; the lawyers always get paid (irrespective of success rate), and it’s clear at whose expense.
Watch another new example that we found in the Indian press a couple of days ago. It speaks of some who “hold only a handful of patents and that too on software related to audio and keyboards.” So these are software patents. Why bother?
A site that’s preoccupied with promotion of software patents published one week ago an article titled “Hop on the Patent Prosecution Highway (PPH) via Australia”. One can guess who wrote it and it says: “While Australia isn’t usually considered a very important market since its population is so small and its manufacturing base is limited, it is our experience that there are a few US companies realising that prosecuting in Australia to use the PPH back into the US makes sense. There is always the option of filing in Australia first and using an Australian patent application as the priority application. However, one would need a foreign filing license from the US before doing so. A strategy could be to file a provisional in the US, receive the foreign filing license, and then file a standard (utility) application in Australia to take advantage of the expedited examination process at IP Australia to hop onto the Patent Prosecution Highway via Australia.”
“The press is full of this marketing spam. The local press all over the world has been reduced to advertisements in ‘article’ form.”Well, “prosecuting in Australia to use the PPH back into the US makes sense” only if software patents were actually potent there. They’re not. So once again we can see bad advice being given by the patent microcosm. What happened to journalism? Well, this isn’t journalism, it’s marketing. We recently wrote about the Patent Prosecution Highway (PPH) in relation to Australia, noting that the EPO — not just the USPTO — embraces these under Battistelli (even in rather dubious places with hardly any patents). The EPO is totally out of control when it comes to patent scope and it probably breaks the rules of the EPC when it comes to that. There is still a discussion about how this has been made possible in the first place. One person asks: “Has anything in the PPI, which must be done by the EPOff or the EPOrg, ever been done? I am thinking of the relations with the work-rules regulating organs of the host countries (Arbeitsinspectie, Gewerbeaufsicht,…)”
Well, Battistelli is “instructing the staff to sidestep part of the EPC,” one person responded. Here is the comment in full: “Yes, but what would the dispute be? According to 23(1) above, doesn’t it only arise if immunity has been claimed? Not sure that BB instructing the staff to sidestep part of the EPC would fall within that. He wouldn’t claim immunity (from what?) – he’s just doing his job.”
We worry that the EPO, especially under Battistelli, is now cooperating with the patent microcosm and just abandoning patent quality control (improving the “success” rate of patent law firms). See this new ‘article’ titled “Patents in Denmark”. “In general,” it says, “software as such is not patentable (Section 1(2) of the Patents Act). However, it is possible to patent software as part of a patent whose subject matter is a process. Further, software is patentable if it has the potential to bring about, when run on a computer, a further technical effect which goes beyond the normal physical interactions between the program and the computer.”
“There are only (formally) software patents in the US (maybe in Japan as well), but they’re being used by foreign entities outside the United States.”Actually, these are dubious claims that rely on Brimelow sidestepping the EPC. Things have become even worse in German courts and the German patent office. Here is a new example of software patents for German company in the United States. These patents have been weaponised and “[a]ccording to the complaint, the asserted patents generally relate to industrial control systems that employ advanced software to program, run, and visualize industrial control processes. In particular, the ‘226 patent relates to interfaces for connecting a computer to devices on multiple industrial control networks so that data may be communicated across the different industrial control networks to and from an application program running on the computer.”
These are software patents from the US. There are only (formally) software patents in the US (maybe in Japan as well), but they’re being used by foreign entities outside the United States. We sure hope that people will come to grips with the corrupting influence of patent law firms in this debate and also acknowledge that software patents bring nothing but negatives to society; they’re good only to patent lawyers and patent offices where the goal is to increase so-called ‘production’ as measured in terms of the number of granted patents. █
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Judge Raymond Chen has a track record of resisting § 101
Summary: The perception of correlation between the Court of Appeals for the Federal Circuit (CAFC) judge that is assigned to a software patent/s case and the outcome of the case gives room for speculation
THERE is a lot to be celebrated now that the USPTO hardly accepts (abstract) software patent applications and even when it does, boards or courts will overrule it down the road. We fought for this for over a decade and after Alice it gradually became a reality, lowering the overall number of patent lawsuits and patent trolls, as expected. The EPO currently moves in the opposite direction, due to its misguided President. As Benjamin Henrion put it yesterday, in relation to the UPC with its bogus 'expert' teams, “software dev[elopment] does not need patents. UPC is a back door.”
The US Supreme Court has not dealt with the subject of software patenting for several years, but the Court of Appeals for the Federal Circuit (CAFC) deals with it all the time and usually, in about 90% of cases, accepts the Alice ruling and tosses away software patents. It is worth keeping track of who inside CAFC has a track record of not obeying Alice and in fact defying/rejecting it. This subject is hardly explored anywhere. In his latest article about CAFC, for example, Professor Crouch focuses on Halo, Pulse, and Seagate in relation to willful infringement claims, which is another subject altogether, namely damages.
“In order to keep software patents at bay (and away) we need to at least name the judges.”Daniel Cole, a patent attorney with Bold IP, worries about Alice and says that “Removing Section 101 Won’t be Enough” (to restore software patenting). This was published yesterday (as in every Sunday) in the pro-software patents site of Watchtroll. Well, software patent proponents want it all and they know how they can get it, if only opponents of software patents don’t remain vigilant. “If section 101 of the patent act,” he explains, “is removed the Supreme Court is extremely likely to simply continue to rely on those two precedents and continue to find abstract ideas and natural phenomena unpatentable. As the “broad language” of section 101 would also be removed the Supreme Court might even assume congress is giving it broad authority to enact further limitations on patentability.”
Brian Watkins, in the mean time tells me that “[i]n real life, on the other hand, the CAFC—especially J Chen—is halfway to overturning Alice.” He added [1, 2] “DDR Holdings: copying color code out of HTML file is patent-eligible. Bascom: running IPtables on remote host eligible. The two biggest steps on the road to overturning Alice and Bilski and returning to State Street Bank, both by Chen.”
The Enfish judgment, by contrast, he says is “[b]y Hughes w/ Moore, Taranto on panel.”
Citing Watchtroll, a vocal proponent of software patents, he says the article “lays out exactly how the trolls are overturning Alice step by step.”
This is worth noting perhaps, and better late than never, as we never really bothered checking who issued which CAFC ruling/s and what the patterns of outcomes were. In order to keep software patents at bay (and away) we need to at least name the judges. In the past, specifically inside CAFC, some judges were crooked and were working closely with outside interests. Randall Ray Rader is a recent example which we mentioned here many times before. Watchtroll already has a ‘thing’ for Mr. Chen (4 out of the top 6 search results are Watchtroll articles; see for example Google images search). █
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Summary: Software patent lawyers and software patent trolls are still active in the United States, even if the climate is unfriendly to them after the Supreme Court’s decision on Alice and § 101
WITH § 101 and Alice (2014), it’s now abundantly apparent that things have changed. It’s rather common for software patents to simply die, either at the courts or at PTAB. As patent trolls rely so heavily on software patents, they too are suffering and now there’s a plan for an “IPO Webinars on Section 101″. To quote a patent maximalism site: “The Intellectual Property Owners Association (IPO) will offer two one-hour webinars entitled “Section 101 – The Way Ahead”. The first webinar, concerning the impact of § 101 on the software industry, is being offered on August 10, 2016 from 2:00 to 3:00 pm (ET). Stephen Durant of Schwegman, Lundberg & Woessner, P.A.; Michelle Macartney of Intellectual Ventures, LLC…”
Well, Steven Lundberg's firm, which we last mentioned in April, is one of the worst offenders and one of the most vocal proponents of software patents. They even have a dedicated blog and lobbying on the matter. The world’s largest patent troll (and Microsoft’s troll) Intellectual Ventures taking part in pro-software patents event is also noteworthy. It really shows what the Intellectual Property Owners Association has been reduced to; it’s like a think tank for lobbyists, parasites and trolls.
“It’s rather common for software patents to simply die, either at the courts or at PTAB.”In writing about Technicolor, the trolls-funded 'news' site IAM did not bother mentioning that MPEG-LA is a parasitic patent troll. The editor, who wrote this article, denies that trolls exist (like people who deny climate change). MPEG-LA and related patent pools (mentioned therein and covered here in the past) pass a massive tax to the public, in the name of software patents even when these patents do not exist (and are not legitimate). Companies that latch onto MPEG-LA to extract revenue from the public are nothing but leeches. They don’t innovate, they just look for a patent troll like MPEG-LA to act as a proxy and bully any company which streams video (or helps stream video) without paying millions of dollars in unjust tax. Even Mozilla became a victim of this. What a waste of money for a FOSS company and a project like Firefox.
Speaking of trolls, IBM increasingly acts like one and it relies on software patents for this. Using the words “PTAB Attack” (another negative-sounding term like “killer” or “death squad”) a patent attorney wrote that “IBM’s Online Reservation Patent Survives PTAB Attack: https://dlbjbjzgnk95t.cloudfront.net/0822000/822630/ipr2016-00604_institution_decision_12.pdf”
“Companies that latch onto MPEG-LA to extract revenue from the public are nothing but leeches.”The cited PDF is 25 pages long and in it it’s “ORDERED that, pursuant to 35 U.S.C. § 314(a), an inter partes review is not instituted for claims 1–8, 11, 12, 14–21, 24, 25, 27–34, 37, 38, 40–45, 47–49, 51–57, and 60–66 of U.S. Patent No. 5,961,601.” The Petitioners are Richard Zembek and Gilbert Greene. The patent owner (or firm representing him/her/them) is Andrew Heinz and/or Kevin McNish.
What we have here is a reminder that PTAB is not always the ultimate remedy. Having said that, there are also the courts to fall back on, so if IBM resorts to lawsuits rather than just saber-rattling, the patent can still die (at very high cost to the defendant though, possibly lasting several years after a number of appeals).
The latest in a high-profile case against Apple suggests that VirnetX‘s patent lawsuit which it won against Apple isn’t the end of it because “TX Ct [Texas court] Vacated VirnetX $625M Award Against Apple; Ordered Two New Trials: https://dlbjbjzgnk95t.cloudfront.net/0823000/823395/https-ecf-txed-uscourts-gov-doc1-17518671566.pdf”
Texas again. It figures.
“What we have here is a reminder that PTAB is not always the ultimate remedy.”In other news, Patently-O wrote last night about Illumina’s battle against Ariosa Diagnostics. It’s one of those controversial patents on genetics (i.e. on life) and Professor Crouch wrote: “The essence of the conflict is whether Illumina’s U.S. Patent No. 7,955,794 is covered by the “Core IP Rights” licensed as part of a 2012 supply agreement. Illumina argues that ‘794 patent was not licensed and, when Ariosa refused to pay a license fee, sued Ariosa for patent infringement. Ariosa’s counterclaim of breach of contract and other covenants stem directly from the infringement allegations.”
Sadly, as seen above, there is a persistent (if not also growing) element of confrontation around software patents and other dubious patents because the USPTO lost touch with patent scope and granted nearly anything that came in — the same mistake that Battistelli now makes at the EPO. █
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Summary: An unresolved complaint that says “both directors and examiners were negatively affected by the instruction to intervene in the decision-taking process of the Examining Division” and the Appeals Committee was stacked
TECHRIGHTS will soon present more and more evidence of dysfunction at Battistelli’s Office, which is turning from hero to zero in just a few years because of Battistelli’s misguided policies that severely damage patent quality and basically attack resistors at the cost of their human (and labour) rights.
We are still working on ‘examination’ of individual ILO cases, in order to help highlight what Battistelli has done to the EPO since staging a coup, leaving casualties wrestling for a place in ILO’s long queue. Over 80% of determinations end up against Battistelli, based on the latest round of decisions. We previously wrote about one’s assignment to a bogus role after elimination of auditory roles — a Željko Topić classic!
“For those wanting to see the ILO decisions,” wrote one person “go to http://www.ilo.org/dyn/triblex/triblexmain.showList?p_lang=en&p_session_id=122
“3694 and 3699 are worth looking at. ”
“Over 80% of determinations end up against Battistelli, based on the latest round of decisions.”“Judgements 3694 and 3699 actually show the problem with ILO,” wrote a person in response to this. “We have one administrator who was harassed and sacked for displeasing Battistelli… he got less than a month salary in damages. We have a problem with the internal appeal committee which composition is lacking, the office can redo the work. Consequence? Personal must wait another 4-6 years for a decision. The judgements are victories… but Pyrrhic ones. ”
We decided to reproduce the text below and add some highlights to it. We don’t know who T. C. (the complainant) is, as there’s nobody with the initial T. C. among the signatories here, so either the person is not in SUEPO/Central Staff Committee or is no longer at the EPO (after the infamous purges).
Organisation internationale du Travail
International Labour Organization
C. (No. 3)
Judgment No. 3694
THE ADMINISTRATIVE TRIBUNAL ,
Considering the third complaint filed by Mr T. C. against the European Patent Organisation (EPO) on 18 May 2015 and corrected on 27 October 2015, the EPO’s reply of 11 January 2016, the complainant’s rejoinder dated 25 April, corrected on 9 May, and the EPO’s surrejoinder of 13 May 2016;
Considering Articles II, paragraph 5, and VII of the Statute of the Tribunal;
Having examined the written submissions;
Considering that the facts of the case may be summed up as follows:
On 21 June 2012 the staff of the European Patent Office – the secretariat of the EPO – were informed of the entry into force as from 20 June 2012 of new Internal Instructions concerning the patent granting procedure. On 19 September 2012 the complainant, in his capacity as staff representative, together with other staff members, wrote to the President of the Office appealing the Internal Instructions on the ground that both directors and examiners were negatively affected by the instruction to intervene in the decision-taking process of the Examining Division. He contested in particular Article 2.4 of Section IC-VIII of the Instructions concerning the role of directors.
The Chairman of the Appeals Committee decided that his appeal would be dealt with in a summary procedure, pursuant to Article 9 of the Implementing Rules for Articles 106 to 113 of the Service Regulations for permanent employees of the Office. In its opinion of 16 December 2014 the Appeals Committee, composed of the Chairman and the two members appointed by the President of the Office (the two members who should normally be appointed by the Staff Committee had not been appointed), recommended rejecting the appeal as manifestly irreceivable as the complainant was challenging a general decision which did not directly and immediately affect him or the staff whose rights he sought to protect.
By a letter of 18 February 2015 the complainant was informed that the Vice-President of Directorate-General 4, acting with delegation of power from the President, had decided to endorse the Appeals Committee’s recommendation. That is the decision the complainant impugns before the Tribunal.
The complainant asks the Tribunal to declare both the opinion of the Appeals Committee and the impugned decision null and void. He asks the Tribunal to refer the appeal back to the Appeals Committee and to order it to “treat the appeal newly ab initio and in a new [...] composition”, without any of the members having taken part so far in the procedure. He also claims 50,000 euros in moral damages, plus costs. As “auxiliary requests”, he asks the Tribunal to order the EPO to declare that “interventions in the tasks vested to the Examining Divisions and Opposition Divisions by the [European Patent Convention], in particular any tasks of examination, are illegal”, and to require directors to withhold from actions that are ultra vires. He also asks the Tribunal to order the EPO to withdraw Article 2.4 of Section IC-VIII of the contested Internal Instructions, or subsidiarily that the EPO makes “available said Section to the public for example by publishing it in the official journal of the EPO”. He further claims moral damages in the amount of 100 euros for each director and examiner to whom the Internal Instructions apply.
In his rejoinder he modifies some of his claims and asks the Tribunal not to refer his case to the Appeals Committee, but to treat the case “newly from the beginning” and grant him an oral hearing. He also
asks to be given “another possibility for a rejoinder for providing evidence which could not have been submitted in the appeals procedure before the [Appeals Committee], as it did not treat the case substantially”.
The EPO was instructed by the President of the Tribunal to confine its submissions to the issue of the composition of the Appeals Committee. The EPO argues that the decision of the Appeals Committee to pursue its activity in a reduced composition was legal and legitimate.
1. The complainant filed an appeal with the President of the Office on 19 September 2012 against the Internal Instructions on the patent granting procedure, contesting in particular Article 2.4 of Section IC-VIII of the Instructions concerning the role of directors. He was informed on 15 October 2014 that his appeal would be dealt with in a summary procedure, without hearing the parties, pursuant to Article 9 of the Implementing Rules for Articles 106 to 113 of the Service Regulations. The Appeals Committee was composed of the Chairman and the two members appointed by the President, as at that time the Staff Committee had not appointed the two members and two alternates as provided for in Article 111 of the Service Regulations and Article 5 of the Implementing Rules for Articles 106 to 113 of the Service Regulations. In the present complaint the complainant impugns the decision of the Vice-President of Directorate-General 4, acting with delegation of power from the President, to endorse the Appeals Committee’s recommendation to reject his appeal as manifestly irreceivable. The EPO was requested by the Tribunal to limit its reply to the issue of the composition of the Appeals Committee.
2. The complainant asks the Tribunal to set aside the impugned decision endorsing the Appeals Committee’s opinion, refer the appeal back to the Appeals Committee with a new composition and award the complainant moral damages and costs. The complainant also makes an auxiliary request that the EPO be ordered to withdraw Article 2.4 of Section IC-VIII of the Internal Instructions. He presented new claims
in his rejoinder, asking the Tribunal not to refer his case to the Appeals Committee but to examine it on the merits. However, the EPO was instructed to confine its submissions to the issue of the composition of the Appeals Committee. Consequently, these claims will not be considered.
As to the complainant’s request for oral proceedings, the Tribunal notes that the parties have presented their case extensively and comprehensively in their written submissions, which are sufficient to enable the Tribunal to reach a reasoned and informed decision on the only issue that must be determined at this stage. The request for oral proceedings is therefore rejected.
3. The grounds for complaint are that the Appeals Committee was improperly composed, as it did not include two members appointed by the Staff Committee, and that the Appeals Committee unlawfully applied the summary procedure retroactively, infringing the complainant’s right to be heard. In his rejoinder the complainant contested the merits of the Internal Instructions.
4. In its opinion dated 16 December 2014, the Appeals Committee recommended rejecting the appeal as irreceivable and held that the complainant could not appeal instructions which did not directly and immediately affect him or the staff whose rights he wished to protect as a member of the staff representation. The Appeals Committee attached to its opinion a “Decision on the composition of the Appeals Committee” in which it noted inter alia that the Chairman and the two members appointed by the President had decided to sit in a reduced composition because the Central Staff Committee, elected in June 2014, had not fulfilled its obligation under Article 36(2) of the Service Regulations and Article 5(4) of the Implementing Rules to Articles 106 to 113 of the Service Regulations to appoint its members to the Appeals Committee, which the Staff Committee was supposed to do by 1 October 2014 at the latest according to Article 17(1) of Administrative Council’s decision CA/D 2/14. Despite numerous written requests, this was not done. It further stated that “[w]ith a view to the non-appointment of members by the Central Staff Committee, the Appeals Committee in its aforementioned composition decided to nonetheless continue dealing with appeals.
Considering its ongoing responsibility to provide a means of legal redress, the Appeals Committee [felt] obliged, in the interest of the entire staff of the EPO, to continue hearing and deliberating appeals brought before it. The Appeals Committee [did] its utmost to shorten the length of proceedings and therefore [found] it legally unacceptable to suspend its work for an unknown duration.” The Appeals Committee cited Judgments 1838, under 16 and 17, 1767, under 12 and 13, and 1565, under 8, noting that the Tribunal had held that the refusal of staff representatives to participate in the work of a consultative committee neither disqualified that committee nor invalidated its recommendations, and that the refusal of the staff representatives to participate may not result in a veto right. The Appeals Committee, in its reduced composition, thus decided to continue to sit in order to hear appeals until a better solution could be found.
5. The Central Staff Committee, in a letter dated 3 October 2014, informed the President that appointing nominees to the Appeals Committee was “for the moment, [...] neither appropriate nor desirable”. It went on inter alia to “challenge the legality of changing the rules mid-term, with the specific purpose of causing replacement of the members nominated by the Staff Representation before their mandate expire[d]”; “challenge the legality of asymmetric appointments”; and to note “severe dysfunction in the way the [Appeals Committee’s] work is managed and the cases handled”. It also mentioned other issues of contention and requested a meeting with the President to discuss those issues.
6. The Tribunal notes that none of the cases cited by the Appeals Committee dealt with the composition of an internal appeal body. It also observes that considering the quasi-judicial functions of the Appeals Committee, its composition is fundamental and changing it changes the body itself. While it is true that the fundamental functions of that body must not be paralysed, it is also true that the body itself cannot be changed through a changed composition. The balance sought to be achieved by the composition of this body, which includes members appointed by the Administration and the staff representation, is a fundamental guarantee of its impartiality. That balanced composition is an essential feature
underpinning its existence. Without it, it is not the Appeals Committee. The case will therefore be sent back to the EPO so that the Appeals Committee, composed in accordance with the applicable rules, may examine the appeal. In the specific circumstances of this case, no award of moral damages will be made. The question of costs shall be reserved.
For the above reasons,
1. The case is sent back to the EPO so that the Appeals Committee, composed in accordance with the applicable rules, may examine the appeal.
2. The claim for moral damages is dismissed.
3. The question of costs is reserved.
In witness of this judgment, adopted on 19 June 2016, Mr Giuseppe Barbagallo, Vice-President of the Tribunal, Mr Michael F. Moore, Judge, and Sir Hugh A. Rawlins, Judge, sign below, as do I, Andrew Butler, Deputy Registrar.
Delivered in public in Geneva on 6 July 2016.
GIUSEPPE B ARBAGALLO
MICHAEL F. MOORE
HUGH A. RAWLINS
There are dozens more like the above complaint (and far more pending outcome, which can take years), but we are going to produce a summary/overview and deal with them in turn based on relevance, urgency, priority etc. █
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~90% of technology patent lawsuits are said to involve patent trolls
Summary: Encouraging signs of patent scope tightening/improvement at the US patent system, bolstered by inter partes reviews which crowdsource (or crowdfund) so as to defang serial abusers that rely on dubious software patents
Unified Patents, which showed that patent trolls with their software patents dominate the scene, took unprecedented action several days ago, aided by PTAB’s inter partes reviews. This is delightful progress and a move in the right direction.
PTAB, especially post-Alice, is one of the best things to happen to the USPTO in recent history. The combination of these two things 2 years ago presently facilitates the systematic crushing of software patents in the US, whether or not these patents are being asserted in a court of law. Patently-O has this new article titled “Inter Partes Review Statistics” and it says upfront: “This post summarizes data on inter partes review proceedings and appeals from the Patent Office. Although the office publishes a monthly Patent Trial and Appeal Board Statistics packet, the narratives contained within that packet can create confusion as discussed in Michael Sander’s guest post earlier this year. Below are some of the charts that I’ve developed based on the publicly available information to attempt to get a better handle on what’s going on in terms of case flow and outcome.”
This is a very detailed post and a helpful one, too. Patently-O is quite a decent source of scholarly information on the state of affairs in the US and nowadays it is quite neutral/impartial on most data.
In various Web sites earlier this week we have begun seeing positive coverage of Unified Patents and its good fight. BoingBoing, for example, said that “Unified Patents raises money from companies that are the target of patent-trolling and then uses it to challenge the most widely used patents in each of its members’ sectors: now it’s going for the gold.
“Unified is challenging three patents at once: Shipping & Transit’s patent on bus-tracking (the basis of 500+ lawsuits, most against cities’ transit authorities); Uniloc’s patent on DRM; and Sportbrain Holdings’ patent on wearable health monitors.”
Uniloc is a particularly nasty patent troll, which basically denies being a troll and uses rather dubious software patents to make money out of nothing. Michael Loney, writing for MIP from New York, wrote:
Unified Patents has filed inter partes review (IPR) petitions at the Patent Trial and Appeal Board (PTAB) to challenge patents asserted by this year’s three most prolific patent litigants. The challenges to Shipping and Transit, Sportbrain Holdings, and Uniloc USA are part of Unified’s efforts to protect its members in technology areas from non-practicing entities (NPEs).
These three NPEs have sued more than 200 companies combined in 2016, accounting for almost 15% of patent cases filed against high-tech companies.
“Unified is the only company that refuses to pay off NPEs, instead disrupting and deterring them by challenging poor-quality patents,” Unified said in a blog post.
In a separate new article, Loney looked at recent litigation statistics, whereas at IAM there was only reminiscing of “the busiest month of patent litigation on record” (more to do with a filing cutoff/deadline). As even IAM admits: “Last November saw a huge spike in new patent case filings… 570 of those 847 have been terminated” (and more will probably be terminated soon). “Overall, though,” IAM notes, “what the November stats may tell us is that plaintiffs were looking for predictability. No one knew back then (and probably few know fully now) how the new regime was going to work. By getting in by the 30th November plaintiffs were making sure that they would be operating within a regime that they understood.”
That was the end of an era. No longer can patent trolls enjoy the same trolls-friendly platform which is tolerant and full of software patents. A new article by Daniel Nazer from the EFF (copied to TechDirt) speaks of one such software patent and explains it as follows:
Another month, another terrible patent being asserted in the Eastern District of Texas. Solocron Education LLC, a company whose entire “education” business is filing lawsuits, owns U.S. Patent No. 6,263,439, titled “Verification system for non-traditional learning operations.” What kind of “verification system” does Solocron claim to have invented? Passwords.
The patent describes a mundane process for providing education materials through video cassettes, DVDs, or online. Students are sent course materials, take tests, and, if they pass the tests, are allowed to continue on to the next part of the course. At various times, students confirm their identity by entering their biographical details and passwords.
Solocron did not invent distance education, encryption, or passwords. The patent doesn’t describe any new technology, it just applies existing technology in a routine way to education materials. That should not be enough to get a patent. Unfortunately, the Patent Office does not do enough to prevent obvious patents from issuing, which is how we get patents on white-background photography or on filming a Yoga class.
Such patents are no longer likely to withstand the scrutiny of a court other than perhaps in the Eastern District of Texas, which markets itself as trolls-friendly. Another case of software patents in their full ‘glory’ can be seen here, as “AGIS claims all require a “symbol generator” to track mobile phone user location” (sounds like surveillance patents with artistic terminology designed to mislead examiners/judges*) and according to this patent attorney, we can expect more of the same. “According to the S.Ct.,” he wrote, “this Alice Bank patent claims abstract subject matter: US5970479″ (the title of this patent is “Methods and apparatus relating to the formulation and trading of risk management contracts”).
We’re at the cusp of change right now because litigation numbers (on the decline) serve to indicate reduced certainty about the potency of software patents in the US, especially at the court which got them all started, the Federal Circuit. █
* As Professor Dennis Crouch notes: “On appeal, the Federal Circuit affirmed the indefiniteness finding under its strict means-plus-function approach. The appellate panel first held that the “symbol generator” element should properly be interpreted under 35 U.S.C. 112 ¶ 6 as claiming a means for performing a specified function without reciting (in the claims) the supporting structure. Under 112 ¶ 6, means-plus-function claim elements are However, the statute requires that MPF claim elements be tightly construed to cover only “the corresponding structure . . . described in the specification and equivalents thereof.” Further, the Federal Circuit has repeatedly held that MPF claim elements that are not supported by corresponding structure within the specification are indefinite and thus invalid.”
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