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08.06.19

The Eric Lundgren Case and Similar High-Profile Plea ‘Bargains’ (Aaron Swartz and Marcus Hutchins)

Posted in Courtroom, Law, Microsoft at 5:16 am by Dr. Roy Schestowitz

Overview

Microsoft’s Declaration of War on Recyclers

The Legal Aftermath

Pending review and research


Innocence Is Irrelevant
Reference: Innocence Is Irrelevant

Summary: Unjust and at times fatal plea ‘bargain’ tricks are being leveraged against people who fight ‘the system’; Eric Lundgren has come to realise he’s one of these people

The other day we saw Eric Lundgren replying to Marcus Hutchins; it wasn’t long after Hutchins had said:

Me: “Now my case is over the stress should subside and i can fina…”
My Lawyer: “Just a friendly reminder that you need to pack up your entire apartment, say bye to all your friends, then move across the fucking sea. Sometime this week would be good.”

Hutchins will be walking around for the rest of his (long to go!) life with a “felony” crest/emblem/badge/mark/stamp/livery. It’s a stain. It’ll never go away. It’s hard to find employment as in some cases it is not legal to hire people with a conviction/criminal record/felony. He’s on the record as admitting guilt only after he had been blackmailed into it with the plea ‘bargain’ trick/machinations. We mentioned this many times in our daily links over the past couple of years.

“I was watching a documentary called “The Internet’s Own Boy – The Story Of Aaron Swartz” – I wish he was still with us… I was glued to the documentary in hopes of gaining some insight that might help my plight. Then the narrator says, “And then he hung himself” and I just sat there dumbfounded…”
      –
Lundgren and Hutchins have that problem in common now. “Before I went to prison,” Lundgren told me the other day, “I was watching a documentary called “The Internet’s Own Boy – The Story Of Aaron Swartz” – I wish he was still with us…”

“I think I mentioned the similarity to you already,” I told him, as “legal bills burdened his family, so he ‘saved’ them” (by killing himself).

“It was crazy,” Lundgren continued, “he got hit with the exact same level of Federal Charges that I was facing and I was so eager to hear how he was going to get out of it! I was glued to the documentary in hopes of gaining some insight that might help my plight. Then the narrator says, “And then he hung himself” and I just sat there dumbfounded…”

And “they do this to other people,” I interrupted him to say. “Chelsea Manning is the latest…” (they impose massive daily fines on her and her family for merely refusing to testify against Julian Assange even though she rightly sticks to her Constitutional rights).

“Assange [may] still have some savings,” I said, “so I think he can cope with legal bills…”

And “then comes the plea “bargain”,” I said. And “the US did this to a Brit too [...] he was released 1-2 weeks ago (“MalwareTech”) [...] he has felony now [but] they gave him a “bargain” [of] time served (2 years) [...] after he helped stop the damage caused by Microsoft/NSA back doors (WannaCry)” (this is based on our latest informal conversation).

Here’s a report about it, “Marcus Hutchins, malware researcher and ‘WannaCry hero,’ sentenced to supervised release” (NSA and Microsoft officials — not Hutchins — should have been sentenced to prison, at the very least for their WannaCry culpability; it’s them who made the back doors that caused hospitals to be shut down; their actions actually killed a lot of people).

“How dare this young British man ‘interfere’ with WannaCry, which was mostly developed by the NSA? Stay out, little fella’! Adults only here!”The above article (from one and a half weeks ago) was written by a former Microsoft UK staffer/intern who had blocked me in Twitter. So it’s not likely he’ll explain the back doors nature of it all (or Windows). The state wants to ‘bury’ it all and ‘make an example’…

How dare this young British man ‘interfere’ with WannaCry, which was mostly developed by the NSA? Stay out, little fella’! Adults only here!

WannaCry is an exploit, a back door(ing) facility; it was leaked from the NSA and Microsoft knew about it as it’s telling the NSA about zero-days without even fixing them. WannaCry is an SMB-level exploit. It killed lots of people, shut down hospitals worldwide, and caused billions of dollars in financial damage. And guess who was threatened with life in prison for it… the man who stopped it!

“No good deed shall go unpunished, especially if it hurts profit. This world be damned, we’ll pollute it if there’s a coin to be made outta this.”
      –Anonymous
In the case of Lundgren, who got arrested and was threatened with life behind bars? Not the people responsible for deadly pollution but the person who combats this pollution. As someone put it in response to our article yesterday (Microsoft employees have already ‘infiltrated’ these comments): “No good deed shall go unpunished, especially if it hurts profit. This world be damned, we’ll pollute it if there’s a coin to be made outta this.”

The following old (but still viral) meme comes to mind as a rather appropriate and apt analogy:

Facebook vs WikiLeaks

There’s lots more coming in the series, so stay tuned. The exact structure (outline) hasn’t been determined yet. We’re thinking along the lines of: 1)
Silencing Media (how Microsoft gagged publishers). 2) Court Mischief (how Microsoft possibly ‘bought’ the outcome). 3) Legal and Financial Ramifications (the dangers of this precedent). Expect photos and legal documents (copies of them).

08.01.19

The Boards’ (of Appeal) Fear of Enforcing the Law (EPC) Will Doom the European Patent Office

Posted in Courtroom, Europe, Law, Patents at 4:07 pm by Dr. Roy Schestowitz

It’s just a big bubble waiting to burst

Big bubble

Summary: The Convention on the Grant of European Patents 2000 (EPC 2000) is totally meaningless judging by the actions of today’s EPO and the scope of European Patents; this means that a bubble is being inflated pending an inevitable implosion

European Patent Office-granted patents (EPO patents or European Patents, EPs) are rapidly losing their value, just like USPTO-granted patents after 35 U.S.C. § 101.

Team Campinos/Battistelli doesn’t think long-term; like CEOs of companies all they care about is quarterly or annual “targets”; quality isn’t part of it and one might call quality an “obstacle” (it slows things down when all one is willing to measure is “products”, numerically).

“Over at Lexology, Marks & Clerk’s Donald McNab misses the point that the EPO attacked all these Boards that are supposed, in principle, to govern things from a legal perspective, as per the EPC. They’re toothless now.”The EPO was supposed to be self-correcting, but the EPC was violated in many possible ways. There’s no separation of powers. Last month we saw EPO ‘justice’ in a nutshell — a stacked panel of judges refusing to even deal with the question of the EPC being violated (instead deeming the very question ‘inadmissible’). Who are they kidding?

Over at Lexology, Marks & Clerk’s Donald McNab misses the point that the EPO attacked all these Boards that are supposed, in principle, to govern things from a legal perspective, as per the EPC; they’re toothless now. They cannot do their job. But Marks & Clerk, being the patent maximalist it has always been, chose to focus on upcoming rule changes:

In a meeting of its Administrative Council on 26 and 27 June, the European Patent Office (EPO) approved new Rules of Procedure for its Boards of Appeal (RPBA), which will come into force on 1 January 2020 (“RPBA 2020”). This approval comes after a consultation process, which saw 140 comments made on a first draft and a conference held in Munich in December 2018 to discuss a second draft, amendment of which has led directly to the RBPA that will now come into force. Although the full effect of these rules on practice before the EPO, not only in appeals but probably also in first instance proceedings, will only become clear once these rules have come into effect, it is generally understood that the new rules are likely to be more burdensome on parties than the existing rules and we recommend that cases presently on appeal at the EPO, or which may be the subject of appeals, be reviewed as soon as possible in case potentially beneficial action may be taken before the new rules come into effect.

The EPO’s Boards of Appeal have exclusive jurisdiction to decide upon appeals against so-called first instance decisions handed down by other departments of the EPO, for example decisions in oppositions to granted European patents and decisions refusing European patent applications. The RPBA are binding upon the Boards, “provided that they do not lead to a situation which would be incompatible with the spirit and purpose of the [European Patent] Convention” (Article 23 RPBA, unamended).

[...]

There are still further changes that will come into effect on 1 January 2020, which we have not discussed. These include the possibility for Boards to issue decisions in which the reasons are given in abridged form or partially abridged form; and timescales for Boards to issue decisions. Additionally, if a Board’s rapporteur is asked to do so by the Board’s Chair, (s)he will assess whether or not more than one appeal should be handled together or whether any appeals should be taken out of turn, seemingly for reasons of overall procedural economy.

[...]

Lastly, in view of the future importance of decisions from first instance proceedings on appeal proceedings, not to mention that of the minutes of any first instance Oral Proceedings, these (both decisions and minutes) will need to be considered to a greater extent than before, to minimise the possibility that subject-matter presented on appeal may be regarded as an amendment, which could potentially be inadmissible.

So “inadmissible” again? Does anyone still believe that the rule of law prevails at the EPO? Not even EPO staff believes that anymore. Alluding to the Enlarged Board of Appeal decision G05/83, Tim Fitzgerald and Michael Finney (IP Gateway Patent and Trade Mark Attorneys and Bennett & Philp Lawyers, respectively) have just mentioned Swiss-type patent claims, affirming our observation that the EPO became extremely lenient when it comes to patent quality:

Swiss-type claims were originally approved by the Swiss Patent Office as a mechanism to allow for protection of a new therapeutic use of a known compound (i.e., second or further medical use), given prohibition of claims to methods of medical treatment.[1] The claim format was subsequently accepted at the European Patent Office (EPO) and affirmed in the Enlarged Board of Appeal decision G05/83. In particular, the Enlarged Board held that it was “legitimate in principle” to allow Swiss-type claims where the formulation was for a specified new and inventive therapeutic application, even where the process of manufacture did not differ from known processes using the same active ingredient.

Under the provisions of the Convention on the Grant of European Patents 2000 (EPC 2000), claims in the format “Compound X for use in treating condition Y” (‘European use format’) are construed as use-limited for novelty purposes, and Swiss-type claims are no longer allowable in Europe.[2] Nevertheless, previously issued European patents containing Swiss-type claims have the potential to remain in force until at least 2031.[3] In recent years, there has been substantial judicial assessment of infringement requirements for Swiss-type claims of existing European patents, including in the UK.[4]

The Boards of Appeal of the European Patent Office cannot be viewed as an independent judiciary anymore. It’s not their fault, either. The Office colluding with a supine Administrative Council did this and terrorising the Boards’ judges sure leads to acceptance of whatever the Office wants. Unless one wishes to risk unemployment, demotion, slander and even public mobbing.

“The number of applications is already decreasing, so how can Campinos demonstrate any growth for much longer? Expect layoffs or something similar. It’s the cost of mismanagement.”What has meanwhile emerged (also today) is an upcoming patent case. The UK Supreme Court might soon throw out some more questionable European Patents granted by the EPO (it throws out many such patents these days). There’s one particular patent at stake here. It still exists because of the EPO Boards of Appeal:

Entyvio is an anti-integrin used to treat ulcerative colitis and Crohn’s disease. Entyvio recently outperformed Abbivie’s Humira in a ulcerative colitis phase 3b clinical trial and sales of Entyvio reached $1.37 billion in the nine months to December 2018. Roche claimed that Entyvio infringed its European patent EP 2 007 809. The patent had been maintained in amended form by the EPO Boards of Appeal following an opposition by GSK and Novartis (T1784/15). Takeda denied infringement and brought a revocation action in the UK courts against the patent.

The patent related to a modified antibody structure that reduced the capacity of the antibody to cause unwanted cell death. Particularly, Claim 1 of the patent related to a glycosylated human monoclonal antibody, characterised by the fucose content of its sugar chain: at least 99% fucosylation (as measured by LCMS peptide mass analysis). Although not mentioned in the patent in words, Roche argued that the high level of fucosylation abolished the ability of the antibody to cause cell death (as shown in the Figures of the patent).

Judging by recent rulings from the same court, there’s a good change the patent and the lawsuit will be thrown out (at the highest court in Britain). There’s also this new update on the German Supreme Court (BGH) deciding in relation to the EPC (“The European Patent Office (EPO) has developed a standing practice with regard to the enablement requirements (Art. 83 EPC) with regard to claims…”), but it’s behind a paywall. Many predict — and quite rightly in fact — that in the coming years the gross discrepancy between the EPC and EPO will become visible in courts outside EPOnia, reducing legal certainty and valuations of EP portfolios. The number of applications is already decreasing, so how can Campinos demonstrate any growth for much longer? Expect layoffs or something similar. It’s the cost of mismanagement.

Laughable Patents That Are Used for Frivolous Litigation Are Sometimes Sponsored by Taxpayers

Posted in America, Courtroom, Law, Patents at 3:23 pm by Dr. Roy Schestowitz

The patent bubble harms everyone but litigation firms

Dark bubble

Summary: There are profound issues with the status quo which permits baseless lawsuits to be filed aplenty, sometimes based upon patents that ought not exist in the first place

THE truly ridiculous claims that the CCIA responded to earlier today serve to show that the U.S. Patent and Trademark Office is a source of blackmail and embargo. It’s not hard to see who benefits the most from that. The underlying patents need not even be valid ones (except on the surface).

Here is the latest “Stupid Patent of the Month”. The EFF’s Elliot Harmon comments on laughable US patents (or software patents) granted by the USPTO, only to be reassessed under 35 U.S.C. § 101 if one can afford the challenge. To quote “Someone Is Suing Companies for Using SMS Messages in 2019″: (published earlier this week)

This month’s Stupid Patent of the Month deals with SMS (short messaging service), a technology that goes back to the mid-1980s. Modern-day SMS messages, typically bundled with mobile phone services, have been around since 1992, but one company believes that you should have to pay a licensing fee simply to incorporate them into your app or service.

That company is Anuwave, which recently sued cryptocurrency exchange Coinbase (PDF) for infringement of US Patent 8,295,862. That’s only the most recent suit: Anuwave has sued dozens of companies since 2015 for alleged infringement of the patent—Symantec, Avast, and Bitdefender, just to name a few that have faced lawsuits.

Anuwave’s patent is on a software application using SMS to check for information—for example, for use on a device that can send and receive SMS messages, but doesn’t have an Internet connection. Anuwave alleges that Coinbase infringed the patent by letting users perform tasks like checking their balance via SMS.

“Yet another software patent,” Benjamin Henrion added, was on “an on-screen display that showed which cellular network each call in the call log was associated with,” as per this post about prior art invalidation (not the same as 35 U.S.C. § 101, likely a possibility as well):

In 2016, a major Chinese smartphone manufacturer came to us with a problem. The company was being sued by a competitor, also based in China, for patent infringement, and they would soon have to appear in court to defend themselves. The penalties for patent infringement can potentially be very painful—fines reaching into the millions of dollars, followed by costly licensing fees or, even worse, an injunction prohibiting further use of the patented technology.

We keep coming across these truly laughable patents. Why are these even being granted in the first place? And who to? As it turns out, based on this report, “[f]ive major retailers, including Amazon.com Inc and Walmart Inc, were sued on Tuesday by the University of California over what it called the “existential threat” when foreign manufacturers infringe schools’ patents. [...] It has also asked the U.S. International Trade Commission to open a probe into the retailers’ conduct, saying the retailers have failed to require their suppliers to honor the university’s patents. None of the retailers immediately responded to requests for comment. Filament LED light bulbs are sometimes called “Edison” or “vintage” bulbs because they resemble light bulbs created by Thomas Edison that have glowing filaments visible inside. They became widely available only in the last five years in the United States, where sales in 2019 are expected to top $1 billion, according to court papers.”

“Universities have turned into Patent Trolls,” Benjamin Henrion wrote about patent trolls that leverage these patents on publicly-funded research. First comment, he notes, pointing to this discussion: “But I agree: You get public funding, your research is public domain…”

We said that many times in the past. Taxpayers are funding work which is in turn being turned into patents, passed to patent trolls who then attack those very same taxpayers. It’s like a major scam, a swindle.

07.27.19

IP Kat Used to Blast the EPO for Profound Lack of Justice. Now It’s Just Meowing With the EPO’s Management.

Posted in Courtroom, Europe, Law, Patents at 6:54 am by Dr. Roy Schestowitz

From watchdog to pussycat

Curious Cat

Summary: The European Patent Convention (EPC) has been turned into a Kleenex® tissue and all that the ‘Kats’ (what’s left of them) have to say amounts to a puff piece with some Battistelli photo op

THE largest patent office of Europe has been ruined by Benoît Battistelli. António Campinos is ‘finishing the job’…

Suffice to say, Campinos was wedged or shoehorned by Battistelli into this position. It’s all ‘fixed’. Nepotism and cover-up. The concept of independence or oversight exists only in theory but never in practice.

“Today’s EPO offers only a pretense of justice.”When I was a lot younger I used to hear about the quality of examination at the European Patent Office (EPO) and how strong a background examiners came from (professors and scholars). That was before the lobby for software patents in Europe and back in the days when professors and judges such as Alain Pompidou and Ingo Kober ‘ran the show’. They weren’t perfect, but at least they had respect for science and the rule of law. Right about now there’s a similar problem at the U.S. Patent and Trademark Office (USPTO), whose Director Andrei Iancu openly mocks the law, notably 35 U.S.C. § 101. In our latest daily links we’ve included some new articles to that effect; thankfully the trends at the Federal Circuit carry on (invalidation of abstract patents) and Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) continue unabated.

Today’s EPO offers only a pretense of justice. It puts together a panel of judges for ‘trials’ which have become show trials and ‘legal theatre’. We wrote about it earlier this month in relation to the Haar case or the “Haar question” (our coverage of this case was based on an informed source).

About a week ago the EPO quietly published (warning: epo.org link) this page. The EPO did not say anything about it in “news” or in its Twitter account; instead it made lots of noise about “green” or “social” or “ethics” (three separate puff pieces coinciding with this case). To quote:

The Enlarged Board of Appeal today issued opinion G 1/18 on the distinction between an appeal deemed not to have been filed and an inadmissible appeal, and on the consequences of this. The opinion is in response to a referral by the President of the European Patent Office (EPO). The Enlarged Board of Appeal is the highest judicial authority under the European Patent Convention (EPC).

The point of law referred by the President of the EPO was whether an appeal is to be treated as not filed or as inadmissible in cases of a failure to observe the two‑month time limit under Article 108 EPC owing to belated payment of the appeal fee and/or belated filing of notice of appeal. The appeal fee is not reimbursed if an appeal is inadmissible (Rule 103(1) EPC).

Under Article 112(1)(b) EPC, the President of the EPO may refer a point of law to the Enlarged Board of Appeal where two boards of appeal have given different decisions on it. With respect to the point of law in issue here, some boards had held that the appeal was inadmissible and that there were therefore no grounds for reimbursing the appeal fee. However, the prevailing view in the Boards’ case law was rather that the appeal was deemed not to have been filed, and that – since no appeal existed – the appeal fee had been paid without a legal basis and therefore had to be refunded. The Enlarged Board was therefore called on to clarify this point of law and its consequences for the reimbursement of the appeal fee.

This is hogwash and a stunning reminder of what a joke justice at the EPO became. Just before the weekend Rose Hughes (IP Kat) mentioned the above — an outcome we first mentioned several days ago. No other blog appears to have mentioned it (we checked) and the EPC’s demise apparently interests nobody who is in the ‘trade’ of litigation. The EPO’s management just doubles down on its unconstitutional behaviour and gross violation of the law; it refuses to even deal with the question, just as we expected/foresaw. Here is what Hughes wrote just before the weekend:

The referral related to the question of whether, where a notice of appeal is filed after expiry of the time limit for filing an appeal (Article 108 EPC), an appeal to the Boards of Appeal a) is inadmissible or b) should be deemed not to have been filed. The question was referred by outgoing EPO President Benoît Battistelli, just before the end of his term. For a full background to the case see IPKat post here.

Of course today’s ‘Kats’ won’t bother pointing out how monumental a disaster the EPO became. “We await publication of the Enlarged Board of Appeal opinion in full,” Hughes concluded. As do others, but we know who’s responsible for this farce and why. It was predictable given how the panel had been constructed. Watch this comment that says: “The full decision is available here:
https://www.epo.org/law-practice/case-law-appeals/eba/number.html” (warning: epo.org link)

Why did nobody among the ‘Kat’, who had written many articles about the exile to Haar, bother scrutinising this decision? IP Kat ‘staff’ (Jonathan Pratt) wrote this weekly roundup. Hughes is basically pushing Team UPC agenda like SPCs, FRAND and SEP. In Pratt’s words:

Rose also commented on the question relating to SPCs for a second indication of a product that has been referred to the CJEU (C-354/19).

On the theme of SPCs, Rose further summarised the SPC manufacturing and stockpiling waiver (amending Regulation (EC) No 469/2009) that came into force on 1 July 2019. Controversially, the legislation provides a waiver not only for the manufacture of generics and biosimilars for export, but also provides a waiver for stockpiling for day-1 release following expiry of an SPC.

Finally, Rose updated us on the latest step in the FRAND/SEP saga with the UK High Court decision on the validity of Conversant’s patent for 3G mobile phone technology. Mr Justice Arnold found that Conversant’s patent is essential and infringed by Huawei and ZTE, but invalid for added matter: Conversant v Huawei [2019] EWHC 1687 (Pat).

The interests that nowadays drive these ‘Kats’ are disturbing. It used to be like a watchdog (or cat), but now it’s like a litigators’ lobby, very much like IAM (almost the same at times, with literal litigators as bloggers).

Hughes soon (less than two hours later) proceeded to CIPA ‘ads’ for “Rules of Procedure of the Board of Appeal” (which lack independence). It was entitled “Event Report: CIPA seminar on the revised Rules of Procedure of the Board of Appeal” (an ‘event’ mentioned here before it took place because of the sheer bias).

CIPA is a pack of patent maximalists, Battistelli allies (almost a 'collusion'), and Team UPC nuts who intentionally promote falsehoods and lie about businesses in Britain in order to extract money from these businesses (in the form of legal fees). Kluwer Patent Blog and other prominent blogs about patents have not yet said a thing about the Haar decision; why not? Are they embarrassed? Do they believe it’s not worthy of a report? Why has the EPO itself kept quiet about it?

07.26.19

Microsoft’s Legal Attacks on Eric Lundgren Demonstrate There’s No ‘New’ Microsoft Except a Super-Vicious, Law-Twisting Thug

Posted in Courtroom, Hardware, Law, Microsoft at 3:54 am by Dr. Roy Schestowitz

This post is based on an informal preliminary discussion with Eric Lundgren, whose ordeals we hope to explain in weeks to come

Overview

Microsoft’s Declaration of War on Recyclers

The Legal Aftermath

Pending review and research


Recycling batteries and plastic

Summary: The person whom Microsoft sent to prison for doing the moral thing has had an informal chat with Techrights, which plans to explore and study the case more closely

Yesterday we published an article about computer recycling (also published yesterday is this article about new Microsoft crimes, which are related to it). The subject is likely going to be part of an upcoming series, likely a rather long one (there’s another one in the making about Windows in hospitals).

The story of Eric Lundgren was mentioned here many times in the past. The story was also widely covered in the mainstream media, including some of the very biggest names, the so-called journals of record. Smaller sites covered that in length, e.g. [1, 2].

We first became aware of Eric Lundgren’s situation before it made it into the media (any of it); people had told us about it. This year we’re going to revisit the story, which isn’t over yet. There is a lot to be learned from it and plenty worth showing. We’re going to do this in multiple installments and cite relevant material and sources as we go along.

Our coverage of the matter won’t be slanted or biased. We’ll stick to the underlying facts, which are in their own right pretty damning. It’s really hard to understand why a sane company would go through all this trouble. When dealing with Microsoft, however, sanity isn’t a factor. Insanity prevails and a schoolyard bully’s mentality/mindset guides the legal department.

“They actually went back and threatened to Sue everyone that wrote about me.. Like WAPO [Washington Post], HLN, FORBES, The Verge, LA TIMES, Etc.”
      –Eric Lundgren
Several years ago a friend of Eric Lundgren spoke to us right before the story broke. The Washington Post story had the most impact at the time. “I spent (1) year in Prison for distribution of freeware that was valued at $700,000,” Lundgren tells us. He recently got out of prison, having been sent there for a non-crime; as many explained at the time, the man deserves an award, not prison time. If anyone deserved time behind bars, it’s the people who fought hard to put him there. In his own words:

“I built the world’s longest range electric car and largest hybrid electronic recycling company,” he told us. “Stopped eWaste Burning in Ghana Africa w. Gov. and then US. Then the Gov. put me in prison [...] for distribution of freeware restore CD’s.”

We think it’s pretty amazing one can get jailed for doing something moral. As we recall it, Microsoft hired/assigned lots of PR people to try to cover up what Microsoft had done. It did not like and probably did not anticipate the generated negative publicity. Some of us know the case pretty well because it was discussed in IRC before it was even in the news.

“Microsoft did hire a bunch of PR,” Lundgren confirmed to us. “They actually went back and threatened to Sue everyone that wrote about me.. Like WAPO [Washington Post], HLN, FORBES, The Verge, LA TIMES, Etc.”

We should note that we’re quoting here an informal discussion, hence typed in a hurry. We’re certain Lundgren can express himself more clearly in a formal setting, but that’s not the point. At this stage, which is exploratory, we’re putting together some raw facts from one who was unjustly put behind bars. It was Microsoft that put him there; typical Microsoft…

“To be honest,” he told us, “I was just trying to get people free repair tools. Nothing was sold.”

“It was crazy,” he continued, “Microsoft flew a single witness from Ireland to my trial, the guy walks in – hands the judge a document that my lawyer and I could not see. When the judge was done reading it – he asked Microsoft what the value of a “Restore CD” is.. And Microsoft lied under oath.. They stated a “Restore CD” is worth $25.00/EA.”

“The judge didn’t understand the difference between a “Restore CD” and a “License”,” he complained, “and Microsoft convinced the judge that the “Restore CD” was of equal value and functionality to a new MSFT OS w. new license! I was honestly dumbfounded.. I kept waiting for someone to get it in court .. Instead – The judge threw out all of my expert witness’ testimony and only kept Microsoft’s testimony..”

I suggested or put forth the possibility that Microsoft played a role in selection of this judge in light of what we recently covered here. “If you can select the judge, you choose outcomes,” I told him.

“Very possible,” he replied. “My expert witness = Glenn Weadock – This guy wrote the book “Windows For Dummies” and trained MSFT employees for 16 years! [...] His testimony was thrown out – along with all my other expert witness’ [..] The Federal Judge in my case retired right after the case was over.. Then.. A few months later – MY LAWYER became the new federal judge in the same district.. Bruce Reinhart…”

Politics in the courtrooms aren’t unprecedented and we recently did a whole series about it (regarding EPO courts). One must not forget that Bill Gates’ father is the man behind a very powerful legal firm that is politically connected (we published many articles about that over the years).

Lundgren was sort of tricked if not blackmailed. It was the old trick of plea ‘bargain’ that was leveraged against him. “They threatened me with 47 Years in Prison,” he told us. “So my only choice was to plea-bargain.. I told them I would ONLY plead guilty to “Restore CD Without License” but then Microsoft convinced the judge to value a Restore CD at the SAME VALUE as a Full Microsoft OS w. License!”

If there’s a ‘new’ Microsoft, it’s not a very good one. It’s not a gentle one, either. They like to pretend it’s a charity now, the Gates Foundation.

“Microsoft has written in Print things that are 100% NOT TRUE about me,” Lundgren said. “How do I address this? Their “Slander/Libel Campaign” against me just makes me sick.”

There’s no easy way to tackle this in a corporate world or a world dominated, from top to bottom, by corporate power. In fact, they can get away with it (slandering people), knowing they have deeper pockets and more connections.

“At one point,” Lundgren explained, “they accused me of making computers susceptible to virus & hacking.. They also said I was trying to Decieve people.. None of this was true, it was their original free restore CD software and it was NOT changed in any way.. Same software anyone can Download online for FREE at the time.. I was just trying to help people that didn’t know how to download and I wasn’t trying to deceive anyone. I actually lost money on this.. and went to PRISON!”

This whole affair was proof or evidence of what Microsoft really is. Microsoft was eager to mothball reporting on it because it’s all about perceptions to them.

“I am a big fan of RightToRepair & iFixIT,” Lundgren explained. “They help me keep electronics working, in use, and out of our landfills!”

Microsoft recently got mentioned in the media for fighting the right to repair. “Electronic Waste represents 70% of the Toxic material in our landfills leaching into our water & food,” Lundgren continued. “Being burnt overseas.. We need to stop throwing this stuff away! [...] It’s time to fix the eWaste epidemic once and for all! Honestly.. If they want to stop me from Recycling – The’ll have to kill me! It’s not that they are anti-recycling.. It’s all about the $$$ with them. Consumers must waste for their profit to increase… Society must USE and TOSS.”

He mentioned Planned Obsolescence. “I just want them to leave recyclers & repair shops alone.. and customers! [...] If what I went through is able to spark the debate & promote change then it was worth it… I wouldn’t wish Prison on my worst enemy.. It’s just endless pointless suffering. ”

“They made my life hell,” he partly joked, but I told him that they bully everyone, still. In 2019 they still shake down companies using patents because they distribute Linux (Foxconn). “Foxconn has deeper pockets than yours,” I told him, and “we recently showed several stories on how they try to cause people to lose their job, mine included…”

Fyodor Dostoevsky once said: “The degree of civilization in a society can be judged by entering its prisons.”

A society that arrests recyclers doesn’t look too good.

As Lundgren put it: “Let’s help people control their own tech! In all seriousness – we are recycling 43 Million LBS of eWaste every year. Next – we will open recycling centers for EV Batteries worldwide. I truly live for recycling! We are all about re-using the parts and components in new applications to serve multiple life-cycles.

“When I am done Recycling Computers – I want to start a company to help Recycle-Lives. These people in Prison need direction & opportunity as to lower the recidivism rate.. It’s crazy that the recidivism rate is 68% within the first (3) years! Honestly – PRISONS ARE THE SOCIAL EQUIVALENT OF OUR LANDFILLS. As a Recycler – I believe there is value in everything.. I believe even Microsoft can be recycled into something good.”

“Microsoft is morality’s landfill,” I told him, “you assume goodwill [but] Microsoft belongs out of business. I keep having to explain to people they're very unique… not many companies would do this.”

To quote former Netscape Chairman James H. Clark: “Microsoft is, I think, fundamentally an evil company.”

How many companies out there would do things like these?

He said: “The company is made up of people.. People that answer to bosses whom answer to the CEO whom answers to Shareholders whom care about Stock Prices, Influence & Mitigating Risk.. Those Share-Holders are willing to turn a blind-eye to those in charge whom are able to make decisions that are good for MSFT although potentially bad for humanity..”

But Bill Gates controls the company and he is a longtime sociopath. Paul Allen (co-founder), who recently died, was a patent troll; the company is all rot and a fish rots from the head down.

07.23.19

Greenwashing to Distract From the EPO Breaking the Law, Rigging Justice and Its Own Courts

Posted in Courtroom, Deception, Europe, Law, Patents at 8:14 am by Dr. Roy Schestowitz

EPO toons

Summary: The so-called ‘Haar case’ ends as expected; the EPO won’t even deal with the question of legality, instead throwing it aside as “inadmissible” while bombarding the media with puff pieces about being “ethical”, “social” and now “green”

THE European Patent Office (EPO) has had plenty to distract from recently, notably the way it was appointing judges for an outcome which can cover up EPO abuses (the Haar case or the Haar question). What good are courts that are controlled by the Office and afraid from the Campinos/Battistelli cabal? The USPTO has similar issues in the Patent Trial and Appeal Board (PTAB), which is being abused by the Director of the Office. In Europe this has led to cementing of software patents in defiance of the EPC.

The EPO has not said a word about the case for months. Earlier today it announced that “EPO publishes latest Environmental Report 2018” (warning: epo.org link); The latest bout of greenwashing from a crooked organisation? Last week it pretended it was about “ethics” and “social”? Both on the same date the Haar case began. How much EPO money is being thrown at this propaganda? Accompanied by artwork, today the EPO tweeted: “The EPO’s 2018 Environmental Report is out! For insights into the EPO’s environmental impact and its commitment to achieving new levels of sustainability, take a look here…”

But this isn’t really the news; the real news is that the EPO continues to violate the most fundamental law, the EPC, after judges in the Haar case sort of threw out the case (as we expected). An article by J A Kemp explained:

The oral proceedings before the Enlarged Board of Appeal concluded on 16 July 2019, and at the end of the oral proceedings the Enlarged Board announced its final decision. Specifically, the Enlarged Board rejected the first referred question as inadmissible, while the second and third referred questions were reformulated and answered as follows (our English translation, with the language in the EPO Communication having been provided only in German)…

[...]

The reasoning of the Enlarged Board of Appeal is not yet available. This will be provided in due course in the written decision. However, the Enlarged Board may have felt it appropriate to announce its final decision immediately (which does not normally happen), in order to allay any concern there may have been about the possibility of a sudden need for the Boards of Appeal to move back to central Munich. Thus, for the time being at least, it seems the Boards of Appeal will be staying put in Haar.

So basically there’s no ruling; they refuse to even examine the question. How convenient…

What we now know for sure is that justice cannot exist and may never prevail inside the EPO. These people who have judge-level jobs are basically like butlers of Campinos; they’re there to serve patent maximalism or lose their job (appointment ending without renewal). This is a serious crisis. It means that many invalid patents will persist without challenge, irrespective of underlying laws. The Science Board‘s Samantha Black wrote about patents on life this week; “The CRISPR fight continues after nearly a decade,” states the headline and it’s about the elaborate ploy to patent life itself with CRISPR patents (even charge patent tax when an animal or organism merely reproduces!) and the role of the EPO in it. It’s an unbelievable injustice and it’s against the law. To quote: “Patents Around the Globe The US Patent and Trademark Office has issued more than 80 patents with claims to CRISPR and/or Cas9 to more than 300 inventors from nearly 60 applicant organizations. The European Patent Office (EPO) has issued more than 20 such patents to approximately 30 inventors from about ten applicant institutions. In addition, there are more than 1,500 applications filed (but not yet granted) around the world.”

And Campinos referred/passed that question to the same court as above — the same one that will assess software patents (a subject we’ll cover separately in the next post).

This whole thing is truly troubling. We have a patent-granting authority which breaks its own rules and terrorises the people who can put an end to it. It’s all rigged and nobody can stop it. Here’s an example of the kind of patents being granted.

In today’s EPO patent quality is a disaster, necessitating oppositions (which can be expensive). Bad patent quality has a high if not mortal cost (to people and to companies) and following up on its report from a few days ago Motley Fool is again mentioning Pacific Biosciences: (days after it wrote about this company’s collapse)

It recently had its second patent revoked by the European Patent Office (EPO), which took issue with the company’s claims to “single molecule sequencing” — the core claim of its platform. The company’s long-read approach is also under pressure from United Kingdom-based startup Oxford Nanopore, which was handed a decisive victory by the EPO’s decision. The startup is playing a not-so-subtle role in recent events, and proving to be a thorn in the side of Illumina, too.

Does “IP” stand for invalid patents? Is that what the EPO means when it uses the term “IP” (to refer to patents, which is misleading)? Also this week we’ve taken note of MinterEllison’s Michael Christie on the EPO fast-tracking justice and injustice by rushing already-overburdened examiners. It’s like the EPO goes out of its way to impede actual patent examination. If it could, it would just grant a patent for every application sent, with little or no (minimal) scrutiny. Its latest 'efficiency' programme does exactly that.

07.18.19

EPO Looney Tunes – Part 4: G 2/19 – Faites Vos Jeux…

Posted in Courtroom, Europe, Law, Patents at 5:41 am by Dr. Roy Schestowitz

“True peace is not merely the absence of tension: it is the presence of justice.”

Martin Luther King Jr.

Carl Josefsson

The Chairman of the Enlarged Board, Carl Josefsson

Part 1: EPO Looney Tunes – Part 1: Is D-Day Approaching for Battistelli’s “Difficult Legacy”?
Part 2: EPO Looney Tunes – Part 2: The “Difficult Legacy” and Its Dark Historical Shadow
Part 3: EPO Looney Tunes – Part 3: The Legal Line-up for G 2/19

Summary: “Josefsson needs to bring in the “desired result” for his political masters in the Administrative Council if he wants to be in with a chance of reappointment.”

The Chairman of the Enlarged Board, Carl Josefsson, is generally reckoned to be a “safe pair of hands” who does his best to please his political masters.

Most insiders are of the opinion that he is unlikely to advocate or support any course of action which might risk upsetting the apple cart (António Campinos has partial control over his position).

“The decisive question seems to be whether or not Josefsson can persuade a majority of the Board to row in behind him or whether the “contrarians” will carry the day.”So it seems like a safe bet that he will do his best to guide the proceedings in a direction that will enable the Board to dodge the awkward third and final “Haar question”.

Failing that, he can be expected to do his best to secure a decision confirming that the holding of oral proceedings in Haar is in compliance with the EPC.

The decisive question seems to be whether or not Josefsson can persuade a majority of the Board to row in behind him or whether the “contrarians” will carry the day.

EBA of EPO

The internal members of the Enlarged Board.
Top row: Legally qualified members, Ingo Beckedorf and Gérard Weiss
Bottom row: Technically qualified members, Gunnar Eliasson (no photo) and Pascal Gryczka

As far as the internal members are concerned, Josefsson can probably safely count on the support of his fellow Swede, the elusive Gunnar Eliasson.

“Eliasson is the Chairman of the Technical Board of Appeal 3.4.03 which is reputed to take a relatively “soft” and “customer-friendly” line on software and business method patenting.”Eliasson acted as ad interim Chairman of the Enlarged Board (warning: epo.org link) during the interregnum following the departure of the former Vice-President of DG3, the Dutchman Wim “the Wimp” van der Eijk, who had is reported to have fallen out of grace with Battistelli. In this role Eliasson liased closely with Josefsson during the “handover” period when the latter assumed office as “President of the Boards of Appeal”.

Eliasson is the Chairman of the Technical Board of Appeal 3.4.03 which is reputed to take a relatively “soft” and “customer-friendly” line on software and business method patenting. By all accounts he seems like another managerially compliant “safe pair of hands” who can be depended on to dance to the Chairman’s tune.

The support of the other internal members for Josefsson’s line is less certain because at least some of them are known to have taken management-critical stances in the past.

“As far as the external members are concerned, they are “dark horses” and it is difficult to make any reliable prediction about the position which they might take.”Ingo Beckedorf joined the EPO in 2007 and has been a regular legally qualified member of the Enlarged Board of Appeal since 2012. Before joining the Boards of Appeal, he was an attaché de presse and deputy head of the Office of the European Parliament in Germany (2001-2003) and a judge at the Hanseatic Higher Regional Court of Hamburg (1997-2006).

Gérard Weiss, from Alsace, joined the EPO in 1982 as a legal advisor in the Patent Law Department. From 1990 to 2000 he was head of the Administrative Council Secretariat. He moved to the Boards of Appeal in 2001 and has been a legal member of the Enlarged Board since 2010.

Pascal Gryczka, who comes from Freyming-Merlebach in the Moselle region of France close to the German border, is a graduate of the University of Strasbourg (Battistelli works at CEIPI in Strasbourg now) and has been a Chairman of a Technical Board of Appeal since 2011.

EPO external

The external members of the Board.
Jochem Gröning (Germany) and Michael Sachs (Austria)

As far as the external members are concerned, they are “dark horses” and it is difficult to make any reliable prediction about the position which they might take.

These “external members” are members of a national judiciary of an EPO contracting state who are appointed to a panel for a (renewable) term of three years.

“Sachs has a reputation as a bon viveur and is a well known figure among the “champagne set” of Viennese High Society.”Jochem Gröning is a judge at the German Federal Court of Justice in Karlsruhe with a solid reputation in legal circles in his home country. He gives the impression that he can be relied upon to weigh up matters in a neutral manner and that he is unlikely to allow himself to be swayed too much by purely political considerations.

Michael Sachs is the Vice-President of the Austrian Federal Administrative Court in Vienna. Sachs has a reputation as a bon viveur and is a well known figure among the “champagne set” of Viennese High Society.

Michael Sachs

Judge Michael Sachs enjoying the good life at a champagne-tasting reception in Vienna

Austrian judicial appointments are notoriously political and the Federal Administrative Court which was established in 2014 is no exception to this general rule.

Michael Sachs is politically connected to the conservative Austrian Peoples’ Party (ÖVP) currently led by the “Wunderknabe” Sebastian Kurz. His colleague Harald Perl, the President of the Federal Administrative Court, is an appointee of the other main political party in Austria, the Socialist Party (SPÖ).

SPO VPO

Tweedledum and Tweedledee?
President of the Federal Administrative Court, Harald Perl (SPÖ)
and Vice-President Michael Sachs (VPÖ)

Since its inception in 2014, the Federal Administrative Court has been dogged by allegations of endemic cronyism and questionable appointments.

“In at least one case, it was confirmed that the Office of the Public Prosecutor in Vienna had opened a formal investigation into allegations of official misconduct.”Some disgruntled staff, including judges and lawyers, were sufficiently irritated to set up an “Association against Cronyism” (“Verein gegen Freunderlwirtschaft”) and even went so far as to file a number of criminal complaints about various goings-on which upset them.

In at least one case, it was confirmed that the Office of the Public Prosecutor in Vienna had opened a formal investigation into allegations of official misconduct.

In another case, allegations of abuse of office were raised against members of the Presidium of the Court who had proposed the judicial appointment of Hubert Keyl, a member of the far-right populist Freedom Party (FPÖ) founded by the controversial Jörg Haider and currently led by the equally controversial Heinz-Christian Strache. In that case, allegations were made against both Sachs and Perl who are members of the Presidium.

Coming from an environment where cronyism, intrigue and machination seem to be on the daily menu, Sachs gives the impression of being a much more “political animal” than Gröning who seems to be more of the “legal scholar” type.

“Coming from an environment where cronyism, intrigue and machination seem to be on the daily menu, Sachs gives the impression of being a much more “political animal” than Gröning who seems to be more of the “legal scholar” type.”If this impression is correct, then there is a greater probability that Sachs – in contrast to Gröning – might be more susceptible to the influence of political as opposed to strictly legal considerations.

All in all, it would seem to be an easier task to persuade Sachs to row in behind the Chairman and to refrain from supporting any “contrarian” course of action.

Assuming that Josefsson can get the internal member Eliasson and the external member Sachs on his side, then all that he would need for a majority would be to “flip” one of the undecided internal members.

Internal sources suggest that Beckedorf is very much his own man so in the end it all seems to come down to what position Weiss and Gryczka are going to take and whether or not Josefsson can persuade one or both of them to row in behind him.

“Internal sources suggest that Beckedorf is very much his own man so in the end it all seems to come down to what position Weiss and Gryczka are going to take and whether or not Josefsson can persuade one or both of them to row in behind him.”If he can, then he will have it in the bag and the “Haar question” can at least be avoided for the time being or – in the best case scenario for Josefsson – if he plays his cards right he might even manage to bury it entirely.

As he is about half-way through his current five-year term of office, it’s clear that Josefsson needs to bring in the “desired result” for his political masters in the Administrative Council if he wants to be in with a chance of reappointment.

This brings the current mini-series of EPO Looney Tunes to a close but we hope to be back with an update in the not too distant future after the Enlarged Board of Appeal has delivered its decision on referral G 2/19.

07.16.19

EPO Looney Tunes – Part 1: Is D-Day Approaching for Battistelli’s “Difficult Legacy”?

Posted in Courtroom, Europe, Patents at 3:05 am by Dr. Roy Schestowitz

A four-part mini series about EBA referral G 2/19

EPO toons

“The European Patent Office is an executive organisation, it deals especially with patent applicants, as such, its view of the world may be biased. As an executive organisation, its interpretative powers are very limited. The European Patent Convention excludes computer programs, it is outside the EPO’s power to change this. The exclusion of computer programs is a political question. [...] The core task of a computer is to process data. So at least the processing of data is not patentable.”

Ante Wessels, FFII

Summary: European patent justice isn’t working within the premises of EPOnia; a bunch of ‘show trials’ may in fact turn out to be just that — a show

THIS series about the European Patent Office (EPO) comes from someone who prefers to remain anonymous. It is a series by a guest author. This author has a lot of credibility based on a track record of high accuracy.

“EPO Looney Tunes,” the author explains, is “a four-part mini-series exploring Battistelli‘s “difficult legacy” and the Enlarged Board of Appeal referral case G 2/19 which is scheduled for a hearing in the main EPO Isar Building today (Tuesday, 16 July 2019).”

The Enlarged Board of Appeal (EBA) is very important (a decade ago it dealt with questions like software patentability in Europe and I sent it a letter about it). There are similar things in the United States (dealing with 35 U.S.C. § 101 at the Office) and elsewhere in Europe, e.g. in EUIPO (previous home of António Campinos). Yesterday the following comment was left in IP Kat: “I note that I am not permitted to post obscene or defamatory comments, or to post ad hominem (or, I presume, ad feminam) attacks on members of the blog team or other posters. Moreover, the IPKat team will moderate my comments before they are published. This seems perfectly reasonable to me. What I do not understand is that the USPTO should be less privileged in this respect than the IPKat. David T. Keeling (former EUIPO Board of Appeal member, rapporteur in the SCREW YOU case, not rapporteur in the FUCKING HELL case)…”

Assuming that’s really him, it’s funny that he takes note of IP Kat censorship — a subject we explored/revisited at least twice earlier this month. Notice how IP Kat quit covering the attacks on EBA a couple of years ago (after some people had left the blog and the EPO temporarily blocked the whole blog). EBA has since then complained, publicly even, about its lack of independence. Will any of that change any time soon (under Campinos)? Will the EPO change at all? Yesterday the EPO tweeted: “The EPO’s success is based on the expertise of its highly skilled staff.”

“The EPO already drove away all the best staff,” I responded. “So now it can grant loads of fake patents and underpay the staff.”

We also recently noted here that examiners are bound by the decisions (e.g. interpretations of the EPC) of the Boards of Appeal, including EBA. So it’s highly crucial that independence gets restored. Without it, quality of patents will continue to suffer if not fall even further. With that in mind, here comes part 1.


Back in March of this year, JUVE reported on a case which had been referred to the Enlarged Board of Appeal, the highest judicial instance at the EPO, in a move which was said to put Battistelli’s “difficult legacy” to the test.

The “difficult legacy” referred to here was the banishment of the Boards of Appeal to a new premises in Haar, an independent municipality on the outskirts of Munich.

The question as to whether oral proceedings could lawfully be held in Haar was raised by Aachen patent attorney Hans-Dieter Jostarndt, following objections raised by third parties during the granting procedure of EP 2 378 735.

The disputed patent relates to a technology for operating a mobile phone network and it belongs to IPCom, a well-known – some might say “notorious” – patent-holding company or “non-practicing entity”, which is a common euphemism for a patent troll.

One of the leading patent trolls in Germany, IPCom was established by the flamboyant Munich patent attorney, Bernhard Frohwitter, and it lays claim to a portfolio of over 1,200 patents, many of which were acquired from Bosch. It has been active in the business of trying to “shake-down” big telecom companies since 2008 or thereabouts.

In the course of the proceedings in the case of EP 2378 735, Jostarndt requested that an oral hearing scheduled for 25 January should be moved to the seat of the EPO in Munich because “Haar is obviously not intended in the EPC as a place for acts and negotiations.”

The Technical Board of Appeal dealing with the case decided to refer the matter to the Enlarged Board of Appeal.

Oral proceedings are scheduled to be held in the main EPO Isar building on Tuesday, 16 July 2019.

The hearing will be public so anybody who is interested can attend.

One of the questions on the agenda is whether an EPO Appeals Board can lawfully hold oral proceedings in Haar “if the appellant objects to this site as not being in conformity with the EPC and requests that the oral proceedings be held in Munich instead?”

Despite the excitement which the case has generated inside the EPO, observers are cautioning that it may all turn out to be a bit of an anti-climax because the question about Haar’s conformity with the EPC is preceded by two other questions which concern the admissibility of the legal action itself.

Should the Enlarged Board decide that the appeal is inadmissible, then it will not need to consider the “Haar question”.

In that case, the issue of Haar’s conformity with the EPC would remain unresolved and would be likely to fester on in the background until it resurfaces in a future proceedings.

While we are waiting for the Enlarged Board to make up its mind on referral G 2/19, it seems like a good time to take a peek behind the scenes and have a closer look at the background and some of the personalities involved in the case.

The next installment will follow shortly…

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