GNU/Linux-powered devices are habitually being targeted by artsy design patents, but might this end soon?
Summary: A company which often takes pride in designers rather than developers (art, not technical merit) may lose that leverage over the competition if its questionable patents are taken away by the Supremes
THE SCOTUS, in its current composition at least (many nominations and appointments by Democrats — a trend that is now changing), has handed down some important decisions on patents over the past half a decade and most of them were favourable to patent reformers. Reformist scope-oriented measures such as restriction if not elimination of software patents are just the tip of the iceberg; a few months ago we wrote about the Lexmark case.
“This time around it’s about the second California Apple v. Samsung case (the one that went to trial in 2014, resulting in a $119 million verdict).”
–Florian MüllerFlorian Müller scooped an important story the other day. “I tried to find media reports on Samsung’s new Apple v. Samsung Supreme Court petition,” he wrote, “and couldn’t find any, so maybe I scooped’em all” with the blog post “Samsung is now taking the second Apple v. Samsung patent case to the Supreme Court”. To quote: “The first Apple v. Samsung case went all the way up to the Supreme Court and has meanwhile gone all the way back to the Northern District of California to take a new look at the question of design patent damages. But the steps to the Supreme Court are like a revolving door for this huge commercial dispute: a new petition for writ of certiorari (request for Supreme Court review) is already in the making! This time around it’s about the second California Apple v. Samsung case (the one that went to trial in 2014, resulting in a $119 million verdict).”
Someone disputed the number, saying that “it’ll actually be the third. They had another petition denied on a very technical issue.”
Müller insisted, however, that “by “second case” I meant the second case filed by Apple against Samsung in U.S. district court…”
“If this is all that Apple has left in its future plans (suing competitors), then it doesn’t look particularly bright; nor does it look innovative…”Techrights had been sceptical of Apple for a long time, even before Apple began attacking Android with patents (there was sabre-rattling even before that, e.g. against Palm). Apple and its nonsensical patents never end. Our sources at the EPO indicate that it’s not different in Europe, but we cannot publicly share any further details on that (in order to protect sources). Watch this article from CNN, published just 6 days ago. “Apple often patents interesting hardware or futuristic iPhone designs that may never see the light of day,” it says. “But in its latest patent granted on Tuesday, Apple (AAPL, Tech30) describes something a little less innovative, and already wildly popular.”
They’re ignoring prior art and also neglecting the fact that software patents are a dying breed. If this is all that Apple has left in its future plans (suing competitors), then it doesn’t look particularly bright; nor does it look innovative…
We look forward to that (potentially second) SCOTUS case which might, due to Apple, spell doom for design patents, which are often similar to software patents (in the GUI sense).
Life Technologies Corp. v Promega Corp.
“We look forward to that (potentially second) SCOTUS case which might, due to Apple, spell doom for design patents, which are often similar to software patents (in the GUI sense).”SCOTUS rulings on patents actually made a lot of headlines this past week, but this did not involve software patents or anything like that. Mayer Brown LLP, for example, wrote about Life Technologies Corp. v Promega Corp. (at SCOTUS) in lawyers’ media. “In an effort to curb efforts to circumvent patent protection,” they said, “the Patent Act imposes liability for infringement on anyone who supplies “all or a substantial portion” of a patented invention’s components from the United States for combination overseas. 35 U.S.C. s 271(f)(1). The Federal Circuit had held that a single component—in this case, of a five-component test kit—could be sufficiently important to a patented invention to constitute “a substantial portion.””
“The Supreme Court has reversed the Federal Circuit in Life Tech v Promega, ruling that manufacture and exportation of a single component of a patented invention assembled in another country is not enough for infringement in the US. However, as a concurring opinion and observers note, the Supreme Court did not indicate how much more than one is enough,” MIP wrote.
“IAM is basically ranting about this ruling because SCOTUS didn’t rule for patent maximalists.”IAM, the lobby of the patent maximalists (disguised as press whilst lobbying/preaching), wrote: “Yet again #SCOTUS left #patent community in the dark on a key part of its latest ruling” (misinformation).
Well, by “patent community” they mean something like “hedge funds of the patent world”, not a community per se. And nobody is really left “in the the dark”; it’s just a dark day for patent maximalists.
IAM is basically ranting about this ruling because SCOTUS didn’t rule for patent maximalists. To quote their blog post about it:
Seven US Supreme Court justices issued their latest patent ruling yesterday in a case that may not have been awaited with the same level of expectancy as next month’s oral arguments in the venue selection case TC Heartland, but which nonetheless showed them sticking to form. As ever with this court it was a case of what wasn’t said as much as what was outlined in the decision.
The case in question, Life Technologies Corp v Promega Corp, involved the supply of a single infringing component manufactured in the US by Life Technologies but then shipped to the UK for assembly. Promega sued citing the Patent Act’s prohibition of the supply from the US of “all or a substantial portion of the components of a patent invention” for combination abroad.
As for Patently-O, it said about Life Technologies Corp. v Promega Corp. that “[i]n a largely-unanimous opinion, the Supreme Court has ruled that the “supply of a single component of a multicomponent invention for manufacture abroad does not give rise to §271(f)(1) liability.””
“Patent maximalism is good for nobody except those who make a living from nothing other than patents (no actual invention, production and so on).”“Writing for the court,” Patently-O added, “Justice Sotomayor found that the “substantial portion” should be seen as a quantitative requirement and that a single component is not sufficient.”
The very fact that sites like IAM are upset about it should say quite clearly that it’s a good and positive development. Patent maximalism is good for nobody except those who make a living from nothing other than patents (no actual invention, production and so on). █
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Pseudo-intellectuals who lobby for their bottom line (pockets) want PTAB destroyed
Summary: A roundup of PTAB news, ranging from attacks on the legitimacy of PTAB to progress which is made by PTAB, undoing decades of overpatenting
THE progress made by PTAB, which faces record demand, makes patent maximalists squirm. That in itself is an indication that it is doing the right thing.
Remember the time Watchtroll used words like "impotence" to insult PTAB? That’s a classic! Watchtroll is so angry at PTAB right now that he (the founder) even resorts to bad grammar in the headline, “The PTAB is a thoroughly broken tribunal incapable of being fixing” (don’t laugh, he may be having a tantrum which isn’t good for his already-questionable health).
“And to think that companies like IBM actively support such attack sites says a lot about IBM…”“The PTAB is a thoroughly broken tribunal incapable of being fixing,” says one whose entire worldview is broken. What PTAB does is it fixes a problem, but Watchtroll and his swamp now hijack the word "fix" and ascribe it to the tackling of PTAB itself, as we noted the other day. Amazing! Incredible!
What will Watchtroll do next in his efforts to dismantle patent progress? He already shames and spreads false rumours about the Director of the USPTO, in an effort to get her ousted/fired. It’s appalling and it’s painful to watch. And to think that companies like IBM actively support such attack sites says a lot about IBM…
“This is very interesting. So Unified Patents takes practical steps to help defendants; in this case, a patent gets challenged in an IPR filed by a collective actor/action.”Anyway, in more positive news about PTAB, “MyMail patent [gets] challenged in IPR2017-00967 filed by @unifiedpatents,” according to this new tweet. “For more information, go here…” (original link).
This is very interesting. So Unified Patents takes practical steps to help defendants; in this case, a patent gets challenged in an IPR filed by a collective actor/action. It’s a good approach, and it is aided by PTAB. This same approach, which was already embraced by the EFF at times, promises to deter if not eliminate some notorious patent trolls. To quote from the site of Unified Patents:
On February 24, 2017, Unified Patents Inc. filed a petition for inter partes review on a patent owned and asserted by MyMail, Ltd. In the IPR2017-00967 petition, Unified challenged the patentability U.S. patent 8,275,863 which teaches methods of modifying a toolbar to facilitate internet traffic.
If your patent is rubbish, don’t expect to change it ‘on the go’ in order to dodge invalidation. As this other new report notes: “Among the changes brought about by the America Invents Act (AIA) was the creation of new post-issuance review proceedings – inter partes review (IPR), post-grant review (PGR) and covered business method review (CBM)” and “Amending claims at the PTAB [is] a fool’s errand?”
Well, yes. It barely ever happens. PTAB should invalidate patents rather than allow them to be modified. Patents are not something dynamic that can just be edited as one goes along. We wrote about this before.
To be fair, inter partes reviews don’t always result in success, i.e. invalidation (that would destroy the perception of justice anyway), but the success rate is very high. Here is an inter partes review which involves not software patents. As Law 360 put it the other day:
The Patent Trial and Appeal Board on Tuesday declined to review claims in a Chamberlain Group Inc. patent on garage door openers, just a few weeks after the Federal Circuit said that a rival manufacturer had raised a “substantial question of invalidity” with respect to the patent.
PTAB denied two separate petitions from a unit of Techtronic Industries Co. Ltd. seeking inter partes review of various claims in the patent. The petitioner, One World Technologies, argued that the challenged claims were invalid
So for those who think that PTAB is just blindly eliminating patents, it clearly does not do this. Many of the patents it invalidates these days are software patents and other abstract nonsense. That’s what courts at the highest levels have requested, e.g. in Alice (but not limited to it). Understandably, that’s what most petitions (IPRs) are filed to enforce.
PTAB has made a great first step against patent parasites that want to ‘own’ lives, too. The other day we wrote about the CRISPR case (covered here for a number of years) and it’s still making some headlines. “The eagerly-anticipated ruling from the PTAB of “no interference-in-fact” is a win for the Broad Institute in its CRISPR patent battle with University of California Berkeley. But much wrangling lies ahead over the rights to the gene-editing technology, including a potential appeal and likely licensing disputes,” wrote Natalie Rahhal for MIP.
Thankfully, PTAB expands beyond software patents and now tackles all sorts of patents that are working against public interests and ethics. PTAB, unless patent maximalists somehow manage to stop (or sabotage) it, will bring back patent sanity to the US. See what Patently-O wrote the other day about the promise of “[a] written decision on “every claim challenged””. Patently-O explains that “[t]he basic issue – under the statute, can the PTO (the PTAB acting as the Director’s delegate) institute inter partes review to a subset of the challenged claims? Or, does the requirement for a “final written decision as to every claim challenged” require that the Board grant or deny the petitions as a whole.”
This seems to be a method for slowing PTAB down and proponents of this approach are not too shockingly patent maximalists. █
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This intervention from CAFC can spell doom for some more patent trolls
Summary: Patents on tasks that can be performed using pen and paper (so-called ‘business methods’, just like algorithms) and oughtn’t be patent-eligible may be the next casualty of the America Invents Act (AIA)
THE PAST week was an important week for the subject of patents on business methods (CBM, or covered business method), almost a sibling of software patents. There were also many articles on the subject, including this from the mainstream/corporate media (the Wall Street media in this particular case).
“They just mean to say that business method patents may be rubbish and should not be patentable in the first place.”Ignore the expected bias (publication is joined/connected to big banks by the hip) and disregard the weird and almost incomprehensible headline. They just mean to say that business method patents may be rubbish and should not be patentable in the first place. To quote: “The assertion of a patent against Bank of America, GE Capital Corp. and 40 other financial institutions doesn’t make it a financial business method invention vulnerable to attack in a Patent and Trademark Office special proceeding, an appeals court said Feb. 21 ( Secure Axcess, LLC v. PNC Bank N.A. , 2017 BL 51354, Fed. Cir., No. 2016-1353, 2/21/17 )”
Also from the article: “Patent challengers like the special “covered business method” proceeding because it gives them more options to make invalidity charges, such as on whether the invention is patent-eligible. In November, the U.S. Court of Appeals for the Federal Circuit ruled against Apple Inc.’s argument that a CBM patent includes one whose invention is “incidental” to financial activity. The court’s 2-1 decision Feb. 21 further limited CBM to be more dependent on what, exactly, the patent holder claimed.”
Michael Loney, a PTAB expert from MIP, covered it as follows, taking note of the relevance to PTAB:
The Federal Circuit has concluded “the patent at issue is outside the definition of a CBM patent that Congress provided by statute” in its Secure Axcess v PNC Bank National Association ruling. Judge Lourie wrote a dissent, backing up the PTAB’s determination
The Federal Circuit has reversed the Patent Trial and Appeal Board (PTAB) in secure Axcess v PNC Bank Association.
WIPR‘s article about it was fairly detailed:
The US Court of Appeals for the Federal Circuit concluded that the Patent Trial and Appeal Board (PTAB) adopted a statutory definition of covered business method (CBM) patents that went too far.
In an opinion handed down on Tuesday, February 21 in Secure Axcess v PNC Bank, the court reversed the finding that a patent owned by internet security company Secure Axcess was a CBM.
Secure Axcess challenged a final written decision of the PTAB that held that its patent was a CBM.
The dispute concerned US number 7,631,191, called “System and method for authenticating a web page”.
Now watch the following CBM review, which involves Ericsson’s patent troll, Unwired Planet LLC. Law 360 had this to say about it:
Unwired Planet LLC urged the Federal Circuit on Wednesday to let stand its November decision that held the Patent Trial and Appeal Board is using an overly broad definition of what qualifies under its covered business method patent review program.
In a brief responding to Google Inc.’s request for an en banc rehearing, the company said the appeals court rightly reined in the PTAB’s authority for reviewing patents directed at financial services, arguing that Google and its tech company amici are inappropriately asking a federal appeals…
Patently-O, in the mean time, wrote about CBM reviews as follows, taking stock of AIA (which brought PTAB): “The America Invents Act created a temporary mechanism (8-year) for challenging certain “covered” business method patents. The program will sunset for new petitions in the “Transitional Program for Covered Business Method Patents” (“CBM review”) sunsets on September 16, 2020. The program allows for CBM patents to be challenged on any ground of patentability (e.g., Sections 101, 102, 103, and 112) and is not limited to post-AIA patents.”
This has been a fantastic and very successful program. No business methods should be patentable and the CAFC has been looking into it, in effect (or potentially) axing a lot of patents that should never have been granted in the first place. █
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It’s driving the patent maximalists nuts!
Summary: The Court of Appeals for the Federal Circuit (CAFC) continues to accept about 4 out of 5 decisions of the Patent Trial and Appeal Board (PTAB) and the US Supreme Court (SCOTUS) refuses to intervene
WE are very gratified to see the USPTO improving patent quality by means of appeals, or by revisiting and reassessing already-granted patents. There has been a lot of news about that this past week and below is an outline.
We previously wrote a number of articles about CSIRO and CRISPR, which served to demonstrate unjust patents that went against public interests, sometimes at the expense of the public. Well, PTAB, based on this new blog post, finally — one might say belatedly — takes on CRISPR and the patent parasite, CSIRO (Commonwealth Scientific and Industrial Research Organisation), which earned a lot of disdain/notoriety for its patent strategy. “The gene-editing tool CRISPR,” IAM wrote, “is in the process of transforming the life sciences industry.”
“We certainly hope that PTAB will somehow take public interests into account, but that’s not how PTAB works.”IAM means privatising and monopolising, even by means of lawsuits. The promotional and defensive language carried on as follows: “Perhaps not surprisingly with such a revolutionary technology still in its relative infancy, a dispute over patents between universities and research institutes that have been at the forefront of its development, erupted over just who owns some of the foundational IP.”
Maybe nobody? Especially given that money for this work came from the public?
We certainly hope that PTAB will somehow take public interests into account, but that’s not how PTAB works. It assesses patents not on ethical grounds but based on the guidelines/laws/rules.
Watchtroll Still at It… Denying Facts
Watchtroll’s PTAB bashing is nothing new (see screenshot at the top). The site continued with this bashing today (factually-flawed and structurally-incoherent drivel that’s akin to fake news). According to this new article, which is based on statistics from the first day of the month, “Federal Circuit PTAB Appeal Statistics” suggest that in addition to the all-time high for PTAB in January, CAFC agrees with PTAB ~80% of the time. It means that PTAB is doing its job capably and correctly. To quote from Lexology: “Through February 1, 2017, the Federal Circuit decided 161 PTAB appeals from IPRs and CBMs. The Federal Circuit affirmed the PTAB on every issue in 125 (77.64%) of the cases, and reversed or vacated the PTAB on every issue in 13 (8.07%) of the cases. A mixed outcome on appeal, where at least one issue was affirmed and at least one issue was vacated or reversed, occurred in 14 (8.70%) of the cases.”
“Put in simple terms, PTAB maintains its ability to crush bad patents and CAFC generally agrees with PTAB in 77.64% of the cases it looks at. “The statistics for 2016 were very similar, as we noted here before (the exact number was 77.4% rather than 77.64%, so the increase is marginal). Put in simple terms, PTAB maintains its ability to crush bad patents and CAFC generally agrees with PTAB in 77.64% of the cases it looks at.
Based on more news, PTAB continues to smash patents to pieces, and CAFC agrees, as usual. To quote:
After the Patent Trial and Appeal Board found claims of ImmunoGen Inc.’s U.S. Patent No. 8,337,856 nonobvious, non-practicing entity Phigenix, Inc. appealed to the U.S. Court of Appeals for the Federal Circuit. The Federal Circuit dismissed the appeal, finding that Phigenix lacked standing to appeal because it had not established it had suffered an injury in fact.
Prior to filing its inter partes review petition, Phigenix was engaged in litigation with a third company, Genentech, Inc., over a Phigenix patent, U.S. Patent No. 8,080,534. Phigenix asserted that the ’534 patent covered Genentech’s manufacture and sale of a drug, Kadycla. Genentech produces the drug under a “worldwide exclusive license” from ImmunoGen for the ’856 patent. As part of its efforts to commercialize its own patent portfolio, Phigenix filed the petition for inter partes review of the ’856 patent, alleging claims 1–8 were invalid as obvious over various prior art references.
CAFC is again (as usual) agreeing with PTAB that Depomed’s patent should be invalidated, based on this new report:
The Federal Circuit on Tuesday affirmed the U.S. Patent and Trial Appeal Board’s decision in an America Invents Act inter partes review that Depomed’s patent on extended-release drug technology is invalid as obvious, saying the board’s conclusion is backed by substantial evidence.
There is another high-profile ‘case’ (petition rather) in the pipeline. Here are the details from the news:
Days after rejecting a challenge from Roxane Laboratories to a patent related to Novartis’ blockbuster cancer drug Afinitor, the Patent Trial and Appeal Board agreed recently to review the patent based on a challenge from another generic drugmaker, Par Pharmaceutical.
In a Feb. 15 decision, the PTAB found that Par Pharmaceutical Inc. had shown the patent was likely invalid as obvious. Par, which was previously sued for infringement, filed a petition seeking inter partes review last summer.
Justice does not seem plausible and is not perceived as legitimate when the outcome is always the same (like FISA rubber-stamping), so there are also exceptions. Here, for a change, “PTAB Follows Fed. Circ. Lead, Upholds Trading Patent” and to quote:
A split Patent Trial and Appeal Board on Friday followed the lead of the Federal Circuit and upheld a Trading Technologies International Inc. electronic trading patent, finding it was not invalid under the U.S. Supreme Court’s Alice ruling.
In a 2-1 decision, the PTAB said TradeStation Group Inc. and IBG LLC had not shown why it should break from the appellate court’s Jan. 18 decision, when the court ruled that a judge correctly found this and another Trading Technologies patent covered technological improvements, not abstract ideas…
PTAB Scares the Patent Microcosm
It’s no secret that patent maximalists, unlike actual companies that make things, hate PTAB. In general, PTAB can help save/defend practicing companies, to whom patents are still a two-edged sword. Here we have a law firm asking (seeking attention from potential clients), “Can Your Patent Be Invalidated Without a Trial?”
“As there is no foreseeable case at the SCOTUS which involves software patents, we are pretty certain that there will be no challenge to Alice any time soon.”Well, yes, and many software patents are already as valuable as nothing at all. They are toothless. Trying to litigate with them would benefit nobody except lawyers at both sides. In that sense, such patents may be even worse than none at all. But to quote the above: “Patent owners should be keeping a close eye on a case that may come before the Federal Circuit Court of Appeals that could potentially block challenges to patent validity outside of the courtroom. Cascades Projection v. Epson and Sony 1 asks the court to decide whether the rights granted by a patent are public or private and, in turn, if those rights are capable of being revoked without access to a jury trial.”
We wrote about it earlier in the month. These are edge cases or rare exceptions; thus, promoting these to prospective clients is rather disingenuous and misleading. Or as one might call it — marketing!
SCOTUS Defends CAFC and by Extension PTAB
One interesting case that we spotted today in the news involves a company called Big Baboon (real company name!) and its unusual attempts to challenge patent scope etc. at the US Supreme Court (SCOTUS). Software patents are still dead/dying after Alice, so Big Baboon attempted another angle and failed. To quote:
The U.S. Supreme Court on Monday declined to hear a petition by a Silicon Valley software company asserting that the Federal Circuit has routinely imputed patent law claims into lawsuits that challenge the U.S. Patent and Trademark Office’s procedures in order to exert jurisdiction over the cases.
The high court declined to hear Big Baboon Inc.’s Oct. 10 petition for writ of certiorari, which argued that it was in the public’s interest that the justices stop the appellate court from the “ongoing and palpable” harm it…
This is good news. As there is no foreseeable case at the SCOTUS which involves software patents, we are pretty certain that there will be no challenge to Alice any time soon. There is also no indication from the Trump administration that AIA (which brought PTAB) will be in any sense revoked/undone. █
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Google uses IPRs to eliminate everything that’s left of this parasite
Summary: A new example of software patents against Free software, or trolls against companies that are distributing freedom-respecting software from a country where these patents are not even potent (they don’t exist there)
InfoGation Corp. [sic] (corporations typically make things) is not a real company. Maybe it used to actually do something in the distant past, but now it’s just a pile of patents. Their Web site is a one-page stop, the classic troll-themed Web site, referring to “technology” (for so-called ‘licensing’) rather than actual products. Search the Web for the term “InfoGation Corp.” and just about every single result will be about some lawsuit, which is rather telling.
“Search the Web for the term “InfoGation Corp.” and just about every single result will be about some lawsuit, which is rather telling.”Under the “Patent Trolling Archives” section, the Patent Investor described InfoGation Corp. as an “assertion entity” (fancy name for troll), noting that after it had gone after Taiwan’s HTC (the first time we wrote about InfoGation Corp.) it also attacked other Google partners, mostly in China, e.g. ZTE and Huawei. Google stepped in to defend these partners.
Watchtroll is bashing PTAB, essentially by calling the patent holder, InfoGation Corp., “small software developer” (yes, software patents) and saying that those challenging the patents merely “gang up”. This is quite a lot of Watchtroll FUD in quick succession, e.g. after it had published a piece we debunked this morning. We don’t want to start a line-by-line rebuttal; instead we’ll just say that Watchtroll has been grooming this troll for quite some time (it wrote quite a lot about it in the past). It also exploits it for PTAB bashing — an old tradition at Watchtroll. Is PTAB going to trash some more software patents, thus taking InfoGation out of business once and for all? We sure hope so. This would help deter trolls and discourage further litigation such as this. █
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War on generics, or when judges choose between life and death
Summary: The latest developments from the Federal Circuit (CAFC), which has been increasingly hostile towards patent maximalism in recent years, leading to less frequent death knells by court
THE Federal Circuit (CAFC) and the USPTO have changed a great deal since Alice. It’s no longer easy to be granted and then enforce (have upheld) software patents. That’s a positive development of course.
We typically write about how the ITC helps US giants embargo their competition, using as little as a few patents and hardly even a proper trial. Based on the “UPDATE FEBRUARY 8″ in MIP, the “Federal Circuit has stayed the permanent injunction for Praluent pending Sanofi and Regeneron’s appeal. The story published below on February 7 has been updated to reflect this.” Well, the story as it originally appeared said this:
Last month’s granting of an Amgen permanent injunction motion in its cholesterol drug patent dispute with Sanofi and Regeneron would “give another arrow in the quiver” of those seeking permanent injunctions in similar cases, if it is upheld on appeal
Saying she was caught “between a rock and a hard place,” Judge Sue Robinson in the District Court of Delaware last month decided to grant Amgen’s motion for a permanent injunction against Sanofi and Regeneron in an infringement suit over competing cholesterol drugs.
This is about cholesterol drugs, i.e. a classic case where lives are at stake (notably cardiac problems). What is noteworthy here is that the ruling by CAFC can mean the life (or death) of many people who are unable to afford some overpriced drugs from Amgen. Here is another new article (IAM “report”) about CAFC:
Drug manufacturers cannot avoid infringement by dividing method between physicians and patients
Thus, the Federal Circuit removed any doubt as to whether drug manufacturers may avoid infringement by dividing the steps of a patented method for drug administration between physicians and patients. Under such circumstances, infringement cannot be circumvented by instructing physicians to require that patients perform a step of the method before administration of the generic drug. Accordingly, entities seeking FDA approval to market generic versions of patented drugs should take caution and ensure that any instructions for administration of the drug do not merely divide the steps of a patented method between two or more parties. This case should come as welcome news to many existing patent holders, providing another tool for more effective exclusion of market competitors and potentially increasing the value of patented methods for drug administration.
This simply means that the CAFC chose the side of the maximalists in this case. Who would have trouble sleeping at night? The executives, the judge/s, or those who will die needlessly?
“Who would have trouble sleeping at night? The executives, the judge/s, or those who will die needlessly?”“In a short opinion,” Patently-O wrote about another CAFC case, “the Federal Circuit has reversed a lower court infringement claim — holding instead that Watson’s generic product does not infringe.”
So sometimes they get the balance right. Patently-O‘s Crouch, separately, has an ongoing rant (and paper) about CAFC’s “judgments without opinion” as he calls these [1, 2]. We sure hope that CAFC will be hearing also from affected patients. The EPO certainly does not care about them. █
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Holland fights to market itself as safe haven for unaccountable (and often abusive) organisations
Summary: A recent decision on the EPO (from a high Dutch court) is now available for reading in English
OUR previous coverage on this subject, namely EPO management getting away with anything on Dutch territory, pretty much said everything that needed to be said. Here are 5 articles about it (there are more):
Yesterday afternoon we found this update in SUEPO’s Web site. It said the following:
Judgment of the Dutch Court of Cassation issued on 20 January 2017
JUDGMENT OF THE DUTCH COURT OF CASSATION IN SUEPO v EPO ISSUED ON 20 JANUARY 2017
Dutch courts have no jurisdiction in European Patent Organisation dispute
The European Patent Organisation can invoke jurisdiction immunity in a dispute with trade unions. That is the ruling issued by the Supreme Court 5 today, and means the Dutch courts have no jurisdiction to examine disputes brought before them between the European Patent Organisation (EPOrg) and two trade unions: the Trade Union of the European Patent Office (VEOB) and the Staff Union of the European Patent Office (SUEPO). Previous rulings by the court in preliminary relief proceedings and the Court of Appeal in The Hague 10 have been set aside by the Supreme Court.
Original judgment text is in Dutch. English translation is available.
We have local
[PDF] copies of both
[PDF] English translations. We have uploaded these PDFs for long-term preservation (as SUEPO is under attack and sometimes pressured to censor itself). █
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Summary: In spite of breaking EPO rules on a regular basis, and despite defying laws of states where the EPO is based, Battistelli is happy to insinuate that he is guilty of nothing
THE premier source of scandals, Battistelli’s EPO, never ceased yielding further embarrassments, such as the above so-called ‘blog’ from Battistelli (warning:
epo.org link), belatedly promoted by his obedient marketing bunnies some time yesterday.
“Battistelli has surrounded himself only by colleagues who agree with anything he says and try to get him out of scandals by somehow justifying his abuses…”Repeating any of it would merely amplify the lies (almost everything Battistelli says these days is a lie) and we don’t have time for a complete top-to-bottom rebuttal. What we will say, however, is that when Battistelli brags about being above the law he not only reminds his staff what an utterly disgusting person he is (a disgrace to France, say numerous French politicians, as recently as December). Battistelli seems to be suffering some sort of God complex or psychopathy — the same thing many people accuse Trump of having. Battistelli does not uphold the law; he violates the rules of the Organisation itself while the Chinchilla that's intended to supervise him does nothing. Battistelli has surrounded himself only by colleagues who agree with anything he says and try to get him out of scandals/trouble by somehow justifying his abuses (Minnoye, for example, said they would flagrantly ignore the highest Dutch court). These are the people who receive promotions and the accompanying payrise.
We recently found a much better ILOAT judgment than the one published here yesterday. It’s about not consulting the GAC/GCC (staff representatives) before making decisions. See judgment #2874 and in particular the part that says: “As the GAC was not consulted, the decision to place the complainant on the BEST list is flawed and must be set aside. The underlying question as to the method for implementing the amendments to the European Patent Convention is remitted to the President to be determined following consultation with the GAC.”
We have decided to reproduce the entire decision below (emphasis in yellow added by us):
Organisation internationale du Travail
International Labour Organization
Judgment No. 2874
THE ADMINISTRATIVE TRIBUNAL,
Considering the complaint filed by Mr A. J.-J. d. D. against the European Patent Organisation (EPO) on 30 April 2008, the EPO’s reply of 29 August and the complainant’s e-mail of 6 October 2008 informing the Registrar of the Tribunal that he did not wish to enter a rejoinder;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to order hearings, for which neither party has applied;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. Amongst other activities, the EPO processes international applications under the European Patent Convention and the Patent Cooperation Treaty. One of the purposes of filing an international application is to ascertain whether a claimed invention is likely to be patentable before incurring the expense of applying, perhaps unsuccessfully, for patents at national or regional level. Under the procedure that was in place when the European Patent Office – the EPO’s secretariat – was set up each application was first submitted to a search examiner, who carried out a search in order to identify similar technology already known as a result of a written public disclosure. The inventor could then choose to obtain a more detailed opinion provided by a substantive examiner. In 1989 the formerly separate roles of search examiner and substantive examiner were combined through a pilot project known as “BEST” (Bringing Search and Examination Together). Examiners were to be trained to perform both search and examination duties so that applications could be dealt with by the same examiner (a “BEST examiner”). The BEST project was implemented at the Office, first in Directorate-General 1 in The Hague (Netherlands) and later in Directorate-General 2 in Munich (Germany). In June 1997 the Administrative Council approved in principle the Office-wide extension of BEST and instructed the Committee on Patent Law, whose mandate is to advise the Council inter alia on any legal matters concerning a revision of the European Patent Convention, to study the project in the context of the Convention and to submit its conclusions and recommendations. A majority of the Committee on Patent Law recommended that a diplomatic conference be held with a view to amending Articles 16 and 17 of the Convention as well as provisions of the Protocol on the Centralisation of the European Patent System and on its Introduction (hereinafter “Protocol on Centralisation”). This recommendation was endorsed by the Administrative Council and the proposed amendments were adopted in 2000 by the Conference of the Contracting States.
The complainant, who was born in 1966 and has dual French and Swedish nationality, joined the Office in 1991 as a search examiner and subsequently worked as a substantive examiner. By e-mail of 6 October 2004 his director informed him that his name had been put on the waiting list for transfer to BEST. In a further e-mail of 25 October she provided clarifications on this matter, stating inter alia that transfer to BEST was no longer done on a voluntary basis only. On 13 December 2004 the complainant was invited to take part in BEST training as from 6 April 2005.
On 18 January 2005 he lodged an appeal with the Internal Appeals Committee, requesting that the order to transfer him to BEST be cancelled and that the lawfulness of BEST be examined by the Committee. In its opinion delivered on 19 December 2007 the Committee found that the Office had failed to consult the General Advisory Committee (GAC) prior to deciding the compulsory Office-wide implementation of BEST, in breach of Article 38(3) of the Service Regulations for Permanent Employees of the Office and it recommended that the implementation of BEST be submitted to the GAC for its opinion. The Committee also recommended by a majority that a “symbolic” amount of 500 euros be awarded to the complainant in moral damages. By letter of 14 February 2008 the complainant was notified that the President of the Office had decided not to endorse the Committee’s recommendations and that his appeal had accordingly been rejected. That is the impugned decision.
B. The complainant submits that the Office-wide implementation of BEST breached Article 38(3) of the Service Regulations because the President of the Office failed to consult the GAC. Referring to the case law, he contends that in a similar case where the GAC was not consulted, the Tribunal set aside the impugned decision. He acknowledges that, in the present instance, setting aside the decision to implement BEST Office-wide might cause major disruptions but he points out that removing him from BEST would not occasion such disruptions and that, in any event, every examiner should be given the choice whether or not to work as a BEST examiner.
He also submits that since 1996 he has been the subject of repeated attacks from his line managers who sought to have him transferred to BEST. This, he says, had a negative impact on his self-esteem and health, thus entitling him to compensation in excess of the symbolic amount recommended by the Internal Appeals Committee.
The complainant asks the Tribunal to order that the GAC be consulted on the Office-wide implementation of BEST. He also asks the Tribunal to quash the decision to transfer him to BEST, at least until the outcome of the GAC’s consultation. He claims 10,000 euros in moral damages and 5,000 euros in costs.
C. In its reply the EPO objects to the receivability of the complaint insofar as it relates to the lawfulness of BEST. It submits that the GAC and the Internal Appeals Committee are both advisory bodies and that neither they nor the Tribunal are competent to rule on the lawfulness of the amendments adopted by the Conference of the Contracting States. It considers that the claim that every examiner should be given the choice to work or not as a BEST examiner is also irreceivable, because the complainant cannot challenge “an injustice purportedly suffered by his colleagues”.
On the merits the EPO contends that the complaint is unfounded. Article 38(3) of the Service Regulations did not require consultation of the GAC as the decisions to implement BEST Office-wide and to amend Articles 16 and 17 of the Convention and provisions of the Protocol on Centralisation were taken by the Conference of the Contracting States. They were thus binding on the Organisation and the President could not ignore them. Furthermore, the Office-wide implementation of BEST was an organisational matter which fell within the President’s power, under Article 10(2) of the Convention, to take all necessary steps to ensure the functioning of the Office. Referring to a Note concerning the Office’s Policy and Criteria for Migration to BEST, the EPO points out that all examiners had to be transferred to BEST and that the only possible exceptions were on the grounds of age or health reasons. It adds that an employee’s duties cannot be considered as acquired rights.
The Organisation argues that the complainant has failed to provide evidence that he was the victim of harassment. It points out that if, as he asserts, his health has been impaired, he can turn to the relevant medical authorities.
1. In 1989 the EPO launched the “BEST” pilot project, which brought search and examination together in order to process more patent applications without increasing the number of staff members.
In June 1997 the Administrative Council approved in principle the implementation of BEST Office-wide and instructed the Committee on Patent Law to study the project in the context of the European Patent Convention and to submit its conclusions and recommendations. The Committee recommended by a majority that a diplomatic conference be convened for the purpose of amending Articles 16 and 17 of the Convention as well as the Protocol on Centralisation. The proposed amendments were adopted in 2000 by the Conference of the Contracting States. In essence, they removed mention of specific branch offices (The Hague, Munich and Berlin) and replaced them with a general reference to the Organisation to reflect the merging of search and examination duties Office-wide.
2. The complainant joined the Office at its branch in The Hague in 1991 as a search examiner. He was transferred to Munich in 1996 and worked as a substantive examiner. By an e-mail of 6 October 2004 his director informed him as well as all other non-BEST examiners, that they had been put on the official waiting list for transfer to BEST in the course of 2005, subject to the condition that training should not start before March 2005. In an e-mail of 25 October 2004 she pointed out that transfer to BEST was no longer voluntary.
3. The complainant lodged an appeal against the decision to transfer him to BEST and asked the Internal Appeals Committee to rescind it and to examine the lawfulness of BEST under the Convention as the decision to make BEST compulsory for all examiners had not been submitted to the GAC as required by Article 38(3) of the Service Regulations. In its opinion dated 19 December 2007 the Committee unanimously recommended:
“1. that the compulsory Office-wide implementation of BEST be submitted to the GAC for opinion as soon as possible [...] and that a decision be taken on that basis on whether [...] BEST [...] is to be maintained in its present form;
3. that in all other respects the appeal be dismissed as unfounded.”
It recommended by a majority that the complainant be paid the symbolic sum of 500 euros in damages. The minority opinion found that no personal injury was identifiable as a result of failure to consult the GAC and that therefore the complainant had no claim to damages.
4. The complainant was notified by a letter dated 14 February 2008 of the President’s decision to reject his appeal as irreceivable in part and unfounded in its entirety. The letter stated inter alia that the President was of the opinion that the introduction of BEST was not in the competency of the GAC as defined in Article 38(3) of the Service Regulations. Both that Committee and the Internal Appeals Committee acted as consulting bodies to the President and had no competency concerning the decisions taken by the Contracting States. The complainant’s request to examine the lawfulness of BEST was therefore considered irreceivable.
5. The complainant bases his complaint on Article 38(3) of the Service Regulations, which states:
“The General Advisory Committee shall, in addition to the specific tasks given to it by the Service Regulations, be responsible for giving a reasoned opinion on:
- any proposal to amend these Service Regulations or the Pension Scheme Regulations, any proposal to make implementing rules and, in general, except in cases of obvious urgency, any proposal which concerns the whole or part of the staff to whom these Service Regulations apply or the recipients of pensions;
- any question of a general nature submitted to it by the President of the Office;
- any question which the Staff Committee has asked to have examined and which is submitted to it by the President of the Office in accordance with the provisions of Article 36.”
6. The Organisation submits that the Office-wide implementation of BEST did not require consultation of the GAC under Article 38(3) and that the President was entitled under Article 10(2) of the European Patent Convention to reorganise the duties assigned to examiners. It notes that the complainant may only challenge the order that he himself work as a BEST examiner and not the lawfulness of BEST in general. The Organisation is of the opinion that, according to “Article 2 in conjunction with Article 4(3)” of the Convention, the President’s role in implementing the decision of the Conference of the Contracting States to apply BEST Office-wide was very limited: he “had no discretion to accept or ignore it, he simply had to implement it”. The Organisation further notes that the Tribunal’s case law has determined that the head of an international organisation “is empowered to change the duties assigned to his subordinates” and has the “executive authority to assign staff to different posts” (see Judgments 265 and 534, under 1).
7. The Tribunal held that “Article 38(3) does of course [...] apply to cases where the Service Regulations and Pension Scheme Regulations are to be amended or ‘implementing rules’ are to be made, and the legal status of staff is thereby to be affected. But it goes further: it applies to cases where ‘any proposal’ is made ‘which concerns the whole or part of the staff’. So it casts a wide net that goes beyond mere changes in legal provisions.” The Tribunal has also held that “Article 38(3) does not interfere with the President’s exercise of his decision-making authority, but seeks to ensure that the proposal shall go through a formal process in which the staff have a right to be consulted through the General Advisory Committee” (see Judgment 1488, under 9 and 10). Furthermore, in accordance with the provision of Article 10(2) of the European Patent Convention, the President “shall take all necessary steps to ensure the functioning of the European Patent Office, including the adoption of internal administrative instructions and information to the public”, and unless otherwise stipulated in the Convention “he shall prescribe which acts are to be performed at the European Patent Office in Munich and its branch at The Hague respectively”. The exercise of these powers is, thus, subject to Article 38(3) of the Service Regulations and the GAC must be consulted on “any proposal which concerns the whole or part of the staff”.
8. The Organisation is correct in asserting that the Tribunal is not competent to rule on the lawfulness of the amendments to the Convention. However, that does not mean that the President could choose the method for implementing the amendments without consulting the GAC. He could have dispensed with that consultation only if the amendments themselves foreclosed any choice as to the method of implementation. This was not the case; there were several factors not mentioned in the amendments in question which could be relevant in choosing a method of implementation. Therefore, there should have been a consultation of the GAC.
9. As the GAC was not consulted, the decision to place the complainant on the BEST list is flawed and must be set aside. The underlying question as to the method for implementing the amendments to the European Patent Convention is remitted to the President to be determined following consultation with the GAC. The complainant must return to his previous non-BEST duties until that has been done.
10. The Tribunal agrees with the Organisation that the complainant has failed to prove any harassment or to follow proper procedure to assess alleged health problems and therefore disregards them in the calculation of damages. Considering the failure to consult the GAC and the time spent by the complainant acting as a BEST examiner, the Tribunal awards him 3,000 euros in moral damages. As the complaint succeeds, the Tribunal awards him 800 euros in costs.
For the above reasons,
1. The President’s decision dated 14 February 2008 concerning the complainant’s internal appeal is set aside as is the earlier decision to place the complainant on the BEST list.
2. The question as to the method for implementing the amendments to the European Patent Convention is remitted to the President to be determined following consultation with the General Advisory Committee.
3. The Organisation shall pay the complainant 3,000 euros as compensation for the moral injury he suffered.
4. It shall also pay him 800 euros in costs.
5. All remaining claims are dismissed.
In witness of this judgment, adopted on 5 November 2009, Ms Mary G. Gaudron, President of the Tribunal, Mr Giuseppe Barbagallo, Judge, and Ms Dolores M. Hansen, Judge, sign below, as do I, Catherine Comtet, Registrar.
Delivered in public in Geneva on 3 February 2010.
Mary G. Gaudron
Dolores M. Hansen
This decision is very relevant as it shows that Battistelli must actually learn to respect the Office’s own rules, or else risk breaking the ‘law of Eponia’ (which he regularly breaks anyway). How many decisions and proposals has Battistelli passed in complete defiance of the rules of the Office and the Organisation? What does that say about the governance of the EPO? █
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