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04.09.19

Who Does the Legal System Really Serve or Favour in European Patent Disputes?

Posted in Courtroom, Europe, Law, Patents at 2:05 am by Dr. Roy Schestowitz

People like myself are being denied access to the underlying facts

Florian on Ericsson
Image credit: Florian Müller

Summary: People who oppose software patents are being denied access to the courts, the media and so on; the EPO keeps getting away with serving patent trolls, e.g. those that are connected to large companies such as Ericsson (as above)

THE existence of software patents in Europe is a threat to all programmers. Why are they being granted? It’s illegal. The European Patent Office (EPO) has not had a scientist as President for over a decade now. António Campinos is a former banker, Battistelli is a politician and Brimelow is regarded or considered to be a public servant (vague term). This is a problem because it means that people with no clue are responsible for bad decisions, having perhaps been instructed by (or consulted) law firms, legal departments, and even patent trolls. They barely ever meet any scientists. It’s like they don’t care about the impact of patents on science and technology — an impact which is rather intricate.

“It’s like they don’t care about the impact of patents on science and technology — an impact which is rather intricate.”Yesterday, responding to this new post that said “IP [sic] has become ever more concentrated into the hands of capitalism’s high temple – the corporation,” Australian attorney Mark Summerfield said: “Not only is this true, it is possible to track the transition historically.”

He added the following, linking to his blog:

There is data on this in Australia, that I think may be unique globally. Last year I worked with IP Australia to generate data (using a machine learning system) going back over 100 years distinguishing between corporate and individual applicants. The results show a clear transition during the period between the first and second world wars, between dominance of individual applicants (i.e. the inventor as patentee) and corporate applicants (i.e. the employer as patentee).

I think that this data is fascinating, and I would love to see it linked to economic or sociological research. However, there does not seem to have been much interest in this to date.

An article presenting this data (with links to the source) can be found on my blog: https://blog.patentology.com.au/2018/05/new-data-released-by-ip-australia.html

This is a real problem. The patent system has been rigged.

Yesterday, for example, a famous patent blogger (Florian) wrote: “An Ericsson privateer named #OptisWireless opposed a petition I filed last year for access to a Federal Patent Court case file, arguing that I’m “a blogger known for positions critical of the #patent system.” Court ruled in favor of my petition: screenshot #privateering #patents” (screenshot at the top).

Ericsson keeps a bunch of these patent trolls around. We wrote about these before. I happen to know that Florian attempted to crack open some more ‘worm jars’ (secret or scarcely-explored patent disputes in his country) only to be fought by corporate lawyers and judges, who are terrified by people like us, the critics and sceptics. No transparency. Florian had sent me some legal documents to show reactions. It would be jaw-dropping it I didn’t already know that it is a system of powerful people; it’s a system that discriminates against ‘poor’ ‘activists’, unlike greedy and monopoly-centric corporations. The above just serves to show what we patent realists face in a court of law.

Speaking of Ericsson, watch how the patent trolls’ lobby (literally funded by trolls), a site called IAM, is publishing Ericsson propaganda (composed by Ericsson itself). They promote a large thicket of bogus patents, mostly software patents, wrapped up using buzzwords such as “IoT” (published Monday at 2PM). Ericsson tries to distance itself from the extortion, so it uses trolls in various parts of Europe to bully just about everyone, even Chinese companies. It’s a protection racket.

Where does the EPO stand on all this? Well, yesterday it promoted software patents again, using hype waves as usual. “Over 300 participants from around the world attended our conference on #patentingblockchain,” it said.

Benjamin Henrion looked at the cited document [PDF] and quoted “Klaus Haft, attorney-at-law at Hoyng Rokh Monegier, added that open source does not mean patent-free #blockchain #swpats …”

Software patents and “open source” (Free/libre software) can never coexist and they know it. IBM-centric and Microsoft-connected front groups lie to us about it.

Meanwhile, the EPO is also intentionally conflating inventions with patents. It does so every single day (almost) and yesterday it wrote: “This guide is intended to help you avoid many of the common mistakes associated with inventions” (they mean patents).

Words like “inventions” are commonly being misused by these people. Here is an example from yesterday (article titled “Pam Bryer: Scots have never lost the urge to invent”). The corporate media is really that awful* and it is not being composed by journalists.

The Scotsman is regularly used for patent propaganda (marketing/sales as “news”), usually from Marks & Clerk LLP. This includes software patents promotion and lawyers’ lies about UPC prospects. We covered that before and named The Scotsman as a culprit. Generally, this so-called ‘news’ paper may be good in other sections, but by posting such crap it does its reputation a great disservice. In this case, patent extremists smear Scotland to cause Scots to come to their employer, Marks & Clerk LLP, and ask for patents (thinking it’s the same as inventions). Just look at the insulting headline. It’s worth noting that only at the very end the disclosure comes: “Pam Bryer is a patent attorney for Marks & Clerk LLP” (so it is marketing and should be labeled as such).

Novagraaf’s Philippe Vigand has meanwhile written about the EPO getting another chance to eliminate software for good. “The EPO’s Enlarged Board of Appeal is to consider the patentability of computer-implemented inventions in the context of appeal T0489/14,” he wrote. Will he mention that the appeals board lacks independence and may therefore not be able to judge impartially? An issue that the judges themselves keep complaining about?
_____
* We’ve just noted the lack of coverage about EPO corruption. Due to an ‘economic’ nature of this greedy society and publication ‘industry’, a lot of so-called ‘news’ these days is just “tweets”, ads, computer-generated crap, self-promotional nonsense and intentional falsehoods/fabrications with agenda in mind. Really bad state of affairs. Honesty may be dead.

03.30.19

The UK Supreme Court’s Latest Decision is Ammunition for the FCC to Scuttle the Unified Patent Court Agreement (UPCA)

Posted in Courtroom, Europe, Patents at 9:33 am by Dr. Roy Schestowitz

Team UPC is, understandably, going bonkers (feeling unlucky in the face of justice)

A black cat

Summary: The quality of European Patents is appalling enough that no courts would entrust EPO people with something like the Unified Patent Court (UPC); The UK Supreme Court has proven this point yet again and we suppose that the German Constitutional Court (FCC) pays close attention not only to dirty tactics from Team UPC (trying to trick the court into premature decisions, based on fabrications)

THE European Patent Office (EPO) suffered a blow some days ago because its impotent patent on impotence treatment was smashed to pieces at one of Europe’s most respected courts, the UK Supreme Court.

“They’re both spoiled brats of UPC, who on behalf of large (and international/foreign) pharmaceutical giants try to pass the UPC (ratify UPCA).”Marks & Clerk’s Mike Gilbert and Jonathan Stafford wrote about it before the weekend, as did the liars and crooks from Bristows LLP. They’re both spoiled brats of UPC, who on behalf of large (and international/foreign) pharmaceutical giants try to pass the UPC (ratify UPCA). We’ll say more about that in a moment.

Here is what patent maximalists at Managing IP [sic] wrote about it:

The UK’s highest court yesterday affirmed that a patent licensed from former biotech company Icos to Eli Lilly for the erectile dysfunction (ED) drug Cialis (tadalafil) is invalid.

A couple of new comments have also just appeared at IP Kat [1, 2], another site of patent maximalists. It’s about the highest British court finding that EPO granted this bogus patent. “Here is how there is a “reasonable expectation of success”,” said the first of those two comments. “When you follow the reasoning, the court decided that when carrying out trials of the drug the skilled person would have investigated the effect of 25mg, 50mg, and 100mg doses. Doing this they would have inevitably found the dosage plateau. They don’t need to have expected to find the plateau or have a reasonable expectation they would find it, it was an inevitability that they would find it just by carrying out the routine trials of the drug. Having found the dosage plateau that extends over the 25mg to 100mg range there is then a reasonable expectation that the lower end of the dosage plateau might extend down to 5mg.”

Notice that the so-called ‘innovation’ is to do with dosages. The comment continued: “There is no hindsight in this assessment just a reasonable assessment of how the trials of this, or any other, new drug would have been carried out at the priority date of the patent. Essentially, the dosing patent is just the Applicant applying to protect the inevitable outcome of the clinical trials of the drug because it is different from what was envisaged in the original patent. There is no inventive step.

Why was it even considered patent-eligible? Imagine if something like UPC was tasked or assigned to rule on this…

The second comment said: “I perfectly understand this line of reasoning, but I still can hardly adhere to it. The criterion of “reasonable expectation of success” says what it says: was it expectable for the skilled person to find the identified effect at the time of filing ?”

Why is this even considered an invention? It’s more like a recipe? Are cooking recipes next in line? We gave examples to that effect a few days ago.

“Importing the research process into that reasoning is no longer inventive step, because otherwise only new research processes could remain patentable, any finding based on known research processes would simply be obvious to try, whatever the efforts.”
      –Anonymous
“Research,” the comment continued, “even being made in clinical trials, remains research, i.e. exploration of the yet unidentified (and unsuggested for inventive step). If the prior art would have suggested that this drug would be active at low doses, I would then have agreed that a motivation would exist to specifically look for the lower dosages. However, even though this exploration was made in standardized clinical trials, this remained research and exploration. Moreover, the inventors have no choice but to carry out this research in clinical trials because it is performed on humans. If the product would not have been a drug, hence would not have required clinical trials, the same dose-effect experiments would have been performed to find out what doses are the most efficient. And, if I follow properly the court’s reasoning (and yours), it could then have been considered inventive because there would have been no clue how the inventors had come to this finding in theri research process.
For all types of inventions, the more so for inventions in the life science field in which the “resonable expectation of success” principle has been developped, my view is always the same, inventive step does not have to be assessed based on the process how to come to a certain finding, i.e. the invention, but only on the facts available, in particular what the prior art is teaching and what level of skill does the skilled person have. Importing the research process into that reasoning is no longer inventive step, because otherwise only new research processes could remain patentable, any finding based on known research processes would simply be obvious to try, whatever the efforts.”

This is similar to the 'Teffgate', where some arbitrary numbers were used to attribute “innovative” aspects to what’s in nature (and has been in nature since before humans even existed).

It was very much expected that Team UPC firms (like the above) would condemn or spin or just moan about this decision. Team UPC is a very dishonest bunch which only cares about litigation, not science. Wait and watch their next stunts. They lie a lot.

As an example of their lies, consider this UPC ‘book’ spin. It’s amazing and it’s only days old. The FFII’s President has already responded to it with: “The complaint is secret, on which basis they gonna discuss?” (the complaint)

“It was very much expected that Team UPC firms (like the above) would condemn or spin or just moan about this decision. Team UPC is a very dishonest bunch which only cares about litigation, not science.”Basically, the longtime UPC booster (going by the Twitter handle “UPCtracker”) wrote: “Oxford University press and CH Beck have published the legal commentary on the UPC (Tilmann/Plassmann ed.), an event which the German constitutional complainant saw as a bad omen or indicator his UPC complaint could be denied shortly. Case still pending, however.”

So we’re supposed to think, yet again, that there’s a decision coming soon (dismissal). How many times before have they lied along those lines? We’ve lost count. The tweet (reply) from the FFII’s President had us investigating the merit of the statement. It’s basically a lie.

In fact, the book in question, namely its German version, has still not been published. Its publisher, C. H. Beck, currently announce it for “approximately May 2019″ (see their German Web page). The book mentioned in the said tweet is the English version which is sold by a different publisher (Oxford University Press) and has been on the market since late summer of 2018 (see the same Web site but a different page). Although it has a higher price, it is commercially not as interesting as the German version which will sell in much higher numbers should the UPC become a reality. Either the said UPC advocate does not understand the difference between the two books, which we doubt, or he is acting against his better judgment, trying to spin a story suiting his own interests. Stay classy, Team UPC. Stay vigilant, FCC.

03.28.19

European Patents Found to be Invalid and Deemed Impotent in the Highest British Court (Again)

Posted in Courtroom, Europe, Patents at 12:42 pm by Dr. Roy Schestowitz

It’s about the tadalafil generic

Just gimme the hands

Summary: “Just gimme the patent,” says every greedy corporation looking to ban its competition (including generics) and facilitate monopoly pricing; the problem is, the EPO keeps granting invalid patents that take a lot of time and money to formally invalidate (in courts), as Actavis v ICOS has just shown

THE number of patents granted by the U.S. Patent and Trademark Office (USPTO) declined last year after certainty associated with these patents had declined and then number of patent lawsuits had totally collapsed. We now see something similar going on in Europe. Was it inevitable? Couldn’t we learn from the mistakes of American lawmakers and USPTO officials?

We are pleased to see that IP Kat (Rose Hughes) has recently been covering some cases that relate to the European Patent Office (EPO). Hughes is doing an OK job without coming across as a patent extremist like the Bristows staff at IP Kat and yesterday she wrote this article about a (British) Supreme Court outcome. Yet another EPO-granted patent has been found to be nonsense:

This morning, the UK Supreme Court delivered its decision in Actavis v ICOS [2019] USKC 15, upholding the Court of Appeal’s decision that ICOS’s dosage regimen patent was obvious. In doing so, the Supreme Court (in a welcome change…) has followed the previous approach of the lower courts to the question of inventive step in both the UK courts and in the jurisprudence of the EPO.

The patent in question related to tadalafil (branded as CIALIS). Tadalafil is an orally administered drug for treating sexual dysfunction. Tadalafil works in a similar way to Pfizer’s famous blockbuster drug Viagra, but with fewer side effects. The original first medical use patent for tadalafil (EP 0740668, “Daugan”) and its associated SPC have both expired. The latest decision related to ICOS’s patent (EP 1173181) which claimed a particular dosage regime of tadalafil. Lilly is the exclusive licensee of the patent.

In an attempt to clear the market for their own tadalafil generic, Actavis brought revocation proceedings against the ICOS/Lilly patent. Actavis argued that the claims lacked novelty and inventive step in view of the original tadalafil patent (“Daugan”). The contentious claims related to a dose regime of up to 5mg tadalafil per day. The Court of Appeal, in overturning Mr Justice Birss’ decision, found the patent invalid for lack of inventive step (Actavis v ICOS [2017] EWCA Civ 1671). Particularly, it was found that the claimed dose would have been obvious for the skilled person to try (IPKat post here).

Notice that first comment which asks: “Can every one of Lord Hodge’s 9 factors be accommodated within Lord Hodge’s exposition of the EPO’s Problem and Solution Approach? If not all, which ones not?”

“Can every one of Lord Hodge’s 9 factors be accommodated within Lord Hodge’s exposition of the EPO’s Problem and Solution Approach?”
      –Anonymous
Someone “from France” then added: “One important factor seems indeed to be missing, which is the “reasonable expectation of success”, even though certain of the listed factors are usually considered for applying this factor. The reasoning that the clinical trial is somewhat a “one way street” (to use EPO standards) is not completely out of scope, but the specific dosage finding that has been identified for optimal effect could, in my view, not have been necessarily derived from this approach (the dosage plateau could not have been expected, considering it seems to necessarily imply some hindsight). I’m not sure I agree with the comment in the post that such a decision is welcome…, I can hardly consider a diverging view between the EPO and national courts to be welcome.”

Another anonymous commenter quotes: “The original first medical use patent for tadalafil (EP 0740668, “Daugan”) and its associated SPC have both expired.”

Then comes the question (or questions): “Doesn’t this mean it has already passed through clinical trials? By the courts’ logic should a 5mg dose already be known? What have I missed?”

What about public interests as well? Either way, the court has trashed yet another European Patent. Will António Campinos get the message or just keep on lying about quality?

“I can hardly consider a diverging view between the EPO and national courts to be welcome.”
      –Anonymous
Freshfields Bruckhaus Deringer LLP’s Laura Whiting and Paul Abbott wrote about it this morning (publication time), calling it “its second patent decision in 6 months” (so rarely do we get to see, at least at this level, just how awful the quality of patents has become).

We’ll probably hear a lot more about it in days if not weeks to come.

03.19.19

Where the USPTO Stands on the Subject of Abstract Software Patents

Posted in America, Courtroom, Law, Patents at 12:38 pm by Dr. Roy Schestowitz

The Office hands out fool’s gold

Some gold

Summary: Not much is changing as we approach Easter and software patents are still fool’s gold in the United States, no matter if they get granted or not

THIS is a very quick update regarding the U.S. Patent and Trademark Office (USPTO). The gist of it all? Well, nothing is changing, certainly not at the courts. We have been watching closely all sorts of case outcomes; all have them bar few have reached the predictable kind of outcome.

Watch out as patent maximalists aren’t telling the whole story. They habitually ignore or hide everything which doesn’t fit their agenda.

Robert Schaffer and Joseph Robinson over at Watchtroll have nitpicked or cherry-picked a Federal Circuit (CAFC) case regarding the patent troll PersonalWeb ‘Technologies’ because it is a rarity; it is a high court’s reversal after a Patent Trial and Appeal Board (PTAB) after a successful inter partes review (IPR). We also noticed (yesterday) that patent maximalists hope to compel SCOTUS to reconsider a case that resembles Alice (basis of 35 U.S.C. § 101) while cherry-picking a CAFC case similar to Mayo. We said we’d not cover pertinent American patent cases, so for the time being we’re just observing and adding those to our daily links. It is very much possible if not highly likely that nothing at all will change; the US government was simply asked to comment about a pending appeal and there’s no guarantee SCOTUS will go ahead; even if it does, this might simply serve to double down on Alice, even further strengthening the precedent.

03.05.19

The EPO Technical/Enlarged Board of Appeal Would, Potentially (If It Enjoyed Actual Independence), Serve a ‘European Alice’ and Eliminate All/Most Software Patents in Europe

Posted in Courtroom, Europe, Law, Patents at 10:46 am by Dr. Roy Schestowitz

Original/full (see the part about AMBA below): English [PDF] | German [PDF]

Boards of Appeal concern

Summary: For over half a decade the judges at the EPO have lacked the independence they need to appropriately govern patent scope; this is a very serious issue because it means that EPO corruption might in fact be the principal barrier in the face of software patents’ abolition

SEEING that the United States now deals (at the highest level) with copyright cases and no patent scope cases (fee shifting does not interest us much, but that can definitely imperil patent trolls), we will press on with our ever-increasing focus on the European Patent Office (EPO). It seems safe to say that nothing is going to change the status quo when it comes to software patents in the US, at least for the time being. Rather than delve into inter partes reviews (IPRs) and Federal Circuit cases (a few mentioned in our daily links this morning; US patent news has been relegated to this), patent maximalists obsess over Patent Trial and Appeal Board (PTAB) interactions with examiners regarding mere applications. Focus on what they distract from, not what they distract with. As always. Lies by omission are in law firms’ toolbox of the ‘trade’.

In Europe, unlike the US, software patents are still a major issue. The EPO advertises these every day, at the very least in Twitter (sometimes elsewhere, too). Florian Müller, who had campaigned against such patents a decade and a half ago in Europe, recently told me that he found these EPO tweets disturbing.

“In Europe, unlike the US, software patents are still a major issue. The EPO advertises these every day, at the very least in Twitter (sometimes elsewhere, too).”Team UPC and boosters of software patents in Europe (like Janal Kalis in another continent) took note of what could, in theory, become somewhat of a European Alice (35 U.S.C. § 101/SCOTUS), at least at the EPO level (not European courts, which António Campinos lacks control over). It would be very tricky for Campinos to simply ignore BoA, let alone smack some more judges in acts of overt retribution.

This is what “Patently German” (calling himself after patents) wrote a few days ago about the ‘simulation’ patent (actually a computer program):

The outcome of the referral has in my view implications far beyond simulation programs, for example also to inventions based on machine learning (ML). If you replace in the referral questions “simulation” by “machine learning process”, the same issues arise.

There can be no doubt: If the first two questions of the referral are not answered in the affirmative by the EBA, applicants of various types of computer-implemented inventions in Europe will be in trouble.

So even the software patents zealots acknowledge the importance of this referral, warning that a particular outcome could and would sweep away “various types of computer-implemented inventions [i.e. software patents] in Europe…”

“So even the software patents zealots acknowledge the importance of this referral…”I’ve come across only a few more posts/articles like the above. Certainly there are more on the way because of the possible ramifications. Coverage will, without a shadow of a doubt, be dominated by the patent microcosm. We wrote about it twice before [1, 2] (citing only the patent microcosm), noting in particular the judges’ lack of independence since the start of the term of Campinos. Even the judges admit this and bemoan this. Can they rule in defiance of patent maximalists without putting at jeopardy their job (or extension of tenure)? No, not as things stand. As “EPO Observer” put it a short while ago in this comment: “Haar has been chosen on purpose to remind the board members that they would pay the consequences of unwelcome decisions. So I expect the reminder to work and the members of the Enlarged Board to take the right (for the management decision) , confirming the lawfulness of the relocation to Haar.” Remember what happened to Judge Corcoran (hospitalisation). There are some more new comments of interest there. It’s all about the lack of the Boards’ independence and SUEPO linked to this earlier this week. The EPO has long been a dictaorship and one that violates its own rules.

The above speaks of the Enlarged Board of Appeal, but the same applies to the Technical Board of Appeal.

“If only European people were as active in their opposition to abstract patents as they are in opposition to the copyright ‘reform’ in the EU…”European software patents need to be buried once and for all, not just in the US but in Europe, too. If legal certainty associated with such patents gets obliterated (like in the post-Alice US), there will be no more lawsuits — or far fewer lawsuits — not to mention fewer such applications. Nobody really wants or needs patents that are duds. Even as ‘trophies’, these can be very expensive to earn and maintain. They’re hard to sell, too.

We certainly hope that the situation w.r.t. software patents in Europe might change some time soon. The sad thing is, programming gurus and habitual programmers don’t seem bothered enough to protest, let alone speak out. If only European people were as active in their opposition to abstract patents as they are in opposition to the copyright ‘reform’ in the EU — a subject Florian Müller has been covering a lot lately (with much impact)…

02.28.19

The US Supreme Court (SCOTUS) Will Waste No Time on Section 101. It Will, However, Waste Its Time on Obvious Patent Trolls.

Posted in America, Courtroom, Law, Patents at 6:59 am by Dr. Roy Schestowitz

The future looks bright for software development in the US because software patents have perished

The green shirt

Summary: A roundup of American patent affairs; in short, nothing is really changing on the patent (scope) front and that’s a positive thing

THINGS are in general going well outside the chaotic EPO where António Campinos openly promotes software patents in Europe. Things improve in the sense that much of the world — including the US, Australia and Canada — are leaving software patents behind. They recognise that only lawyers and trolls want such patents; software developers strongly reject if not abhor such patents.

Deplorable patent lawyers from north America will never rest. They will never give up. Bereskin & Parr LLP’s Cameron Gale, for instance, has just willfully given bad advice to businesses in spite of knowing software patents are worthless; these people even blast the law itself (or the policy of the Canadian Intellectual Property Office (CIPO)). Pure greed. But we have gotten accustomed to that. As it turns out, based on LWN’s article “Patent exhaustion and open source” (it was freed from the paywall on Thursday morning, or about 10 hours ago), lawyers have even entered Free/Open Source software events. This one is about Lindberg and it mentions Alice:

A patent is a limited legal monopoly granted to protect an invention, giving the holder the right to exclude others from using, making, selling, and importing the invention (including things that embody the invention) for a fixed period of time. Much has been said and written over the years about the extension of patents to cover ideas that are expressed in software, but software patents are definitely with us at the moment.

There are, however, a number of limitations on the rights that a patent grants. One of these is patent exhaustion, which protects the ability of those lawfully in possession of goods embodying patents to use, sell, or import those goods without interference from the patent holder. Exhaustion prevents the patent holder from profiting more than once from the sale of any particular item; in Lindberg’s words, as soon as the patent holder puts something “into the stream of commerce”, the patent rights are exhausted. If Alice holds a patent for an invention embodied in a widget, and she sells a widget to Bob, then Bob is protected against accusations of patent infringement because he acquired the widget from the patent holder. If Bob sells his widget to Carol, she is similarly protected; not because she has licensed the patent from Alice, but because Alice’s patent interest in that widget was exhausted by that first sale to Bob.

[...]

We in the free software world have repositories, distributions, and mirrors; copies of source code are hosted by companies willy-nilly. Suppose that some company had mirrored a copy of a Linux distribution, with its thousands of constituent programs, each of which might embody one or more patents. Then that same company, because it is an authorized licensee for such of those patents as the company itself either held or had a right to use (by virtue of being in one or more patent pools or cross-licensing arrangements), would have exhausted those patent rights with respect to that software. Lindberg did add a caveat, however: courts frequently try to avoid surprising outcomes, therefore a court might follow the argument but decide not to allow it anyway.

At this point, Lindberg reminded attendees that Microsoft bought GitHub. After a short pause, the entire room, with a large proportion of lawyers in the audience, giggled, a sound that can only be described as chilling, then applauded. He then went further and proposed an N-way merge across copies of code bases sanitized by different distributors with respect to their different patent portfolios, to create code bases that are exhausted with respect to all patents that all those various distributors are authorized to use.

That Microsoft part is neither funny nor worthy of the applause. It is a real problem because Microsoft has weaponised patent trolls in order to sell Azure surveillance and entrapment. Maybe one day it will use the same tactics to push all code — private code too — into GitHub (for a fee).

While it seems unlikely that Alice is going away (any time soon), it’s worth keeping vigilant. The CCIA‘s Joshua Landau wrote on Twitter [1, 2] about Iancu’s attitude towards patent trolls and Alice: “This quote is a problem. American *patents* don’t treat anyone; progress does. Might need patents to make that progress, but as @PatentScholar, @colleen_chien, etc., argue, we don’t know for sure. Iancu could pursue the policy experiments to prove it. Not his priority. [...] The quote is symbolic of the misconception held by far too many – apparently including the @uspto director – that patents have inherent value, as opposed to being an instrument to drive progress and only being valuable insofar as they do so.”

“It is a real problem because Microsoft has weaponised patent trolls in order to sell Azure surveillance and entrapment.”Iancu is disgracing the U.S. Patent and Trademark Office (USPTO) by deliberately ignoring caselaw and granting patents he knows to be fake (like the President who gave him this job after his private firm had worked for him). Iancu is a symptom of the political meltdown and corruption under Trump. Decline in US patent quality has had the expected effect on litigation and application. Both are down, the former very sharply. It’s good news to everybody but lawyers (remember where Iancu came from).

Seeing that there’s no recourse, the lawyers have reverted to more action in Congress. Clueless Coons continues with his zombie legislation (two years in the making already [1, 2], still going nowhere in this fight against 35 U.S.C. § 101). It’s a bill that will never pass because technology companies have more power than the litigation industry. Here is what the litigation industry’s section of Bloomberg wrote some days ago:

House and Senate lawmakers are ramping up efforts to rewrite the definition of patent eligibility, in a bid to create greater legal certainty around patents held by pharmaceutical, life sciences and technology companies.

Lawmakers are quietly meeting with company and trade group representatives to ask for suggestions on how to rewrite Section 101 of federal patent law, which defines what inventions may be patented. The U.S. Supreme Court has issued a series of decisions on patent eligibility that practitioners say have left the law poorly defined. Companies are uncertain about what inventions are patentable, and which granted patents can survive challenges.

“There have been a few Supreme Court rulings that have affected the ability of the patent office to know with certainty what is patentable, particularly in the realm of medical diagnostics and computer software, and these are areas of great growth,” Rep. Hank Johnson (D-Ga.), the new chairman of the House Judiciary’s intellectual property subcommittee, told Bloomberg Law.

This “Bloomberg Law” thing is just a litigation lobby in “news” clothing; we wrote about it before. We’re not surprised that they try to give rather than clip wings of this zombie legislation, which can be safely ignored for now (there are more such bills and they too have vanished).

“The person in question is an Internet troll, not just a patent troll.”It is also not surpising that patent maximalists like Dennis Crouch have not gotten tired of trying to push Section 101 questions into SCOTUS. Seeing that all these abstract patents are finished (good for nothing but putting in a frame and hanging on the wall like a trophy), they urge patent maximalists to give persuasive input and compel Justices to reevaluate the
Federal Circuit‘s stance.

It truly bothers these patent maximalists that not only courts throw out software patents (we have just seen several new outcomes to that effect and added these to our daily links because we no longer cover American patent cases); Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) have the same effect at a much broader scale (thousands of patents). Get used to it.

Speaking of SCOTUS, mind last night’s article about an upcoming case. Authored by Mike Masnick, it deals with two topics that TechDirt likes to cover: patents and attacks on free speech. “Calling a company a patent troll is not defamatory,” Masnick asserted. Here’s the introduction:

Over the years, there have been a few attempts — usually by companies that most of us would call patent trolls — to argue that calling a company a patent troll is defamatory. These arguments rarely get very far, because they completely misunderstand how defamation works. However, a company with some questionable patents around bank ATMs, called ATL, tried a few years back to sue a bunch of its critics over the “patent troll” name. Thankfully, the local court in New Hampshire correctly noted that calling someone a patent troll is protected speech under the First Amendment and is not defamatory.

The person in question is an Internet troll, not just a patent troll. He has been trolling me in Twitter even though I ignored him. A long time ago I came to consider that person to be borderline insane or a stalker and I was rather shocked to learn that the Supreme Court will give him even a minute of its time. Who next in SCOTUS? David Ike?

02.19.19

What Happened in the United States Now Happens in Europe: Lots of Patents Turn Out to Be Bunk, Fake, Bogus, Invalid and Thus Worthless

Posted in America, Courtroom, Europe, Law, Patents at 5:09 am by Dr. Roy Schestowitz

Low patent quality has done incredible harm/damage to confidence in the system

Cardboard recycling

Summary: Worthless patents — not opposition to such patents — are the greatest threat to the legitimacy of the patent system, yet bureaucrats fail to heed the warning in the name of short-term profits

HERE AT TECHRIGHTS we’ve been following the U.S. Patent and Trademark Office (USPTO) for more than a decade and a half (I wrote about it long before the site even existed). When I was about 20 I was upset to see Graffiti input on Palm being destroyed by patents. I wrote about it in my personal blog. Such ridiculous US patents could possibly be used by a relic like Xerox to embargo — e.g. via ITC — devices I so often used (I still own and use a Palm PDA). The workaround was known as Graffiti 2, which is vastly inferior. The PDA I use was manufactured in 2003 — the same year Graffiti 2 was introduced, so I’m lucky to have dodged this sabotage by patents. For those who wonder what got me upset at such patents (software patents), that was it. Richard Stallman often attributes the creation of GNU and then the FSF to Xerox printers that upset him. So I share more than my initials with him and we’ve been good friends. We share our views on patents and the European patent system.

Things have changed a lot since, especially in 2014 when SCOTUS ruled on Alice, giving rise to 35 U.S.C. § 101 as we now know it.

“We are saddened to see Europe falling into the same trap that the US had fallen into a few decades ago when the Federal Circuit gave a green light to software patents.”Seeing what happens in the US this year, we’re not even tempted to resume coverage of it. Virtually all cases are concluded the way we’d like them to. Janal Kalis (“Patent Buddy”) is still obsessing over mere patent applications, as PTAB and district courts have nothing for these patent maximalists to celebrate. This week he wrote: “The PTAB Reversed an Examiner’s 101 Rejection of Claims for a Method of Detecting Similar Objects” (the exception).

Usually it’s the other way around. We also note that patent extremists blame “big tech” for the demise of software patents, never mind if “small tech” (firms) too pushed towards that. “They ‘happen’ to be those who also produce a lot of software,” I replied to him, “unlike patent trolls and law firms, so…”

“It is impossible to argue (any longer) that the EPO has no patent quality issues; even the EPO’s management now admits it.”Readers can probably agree that what happened in the US after Alice, more so in recent years as caselaw shaped up, was overwhelmingly positive. Developers were able to focus on actual work rather than hire lawyers.

We are saddened to see Europe falling into the same trap that the US had fallen into a few decades ago when the Federal Circuit gave a green light to software patents. The European Patent Office (EPO) under the leadership of António Campinos is a very vocal booster of software patents in Europe. The managers at the Office, preoccupied and obsessed with so-called ‘production’, are still trying very hard to break the rules (e.g. misinterpret the EPC) and grant bogus patents — European Patents courts would reject such as "blockchain" patents.

The EPO has already admitted these are software patents as so does Bastian Best on Twitter, soon to be retweeted by EPO (official). The EPO reposted this yesterday: “For the blockchain enthusiasts in my network: Koen Lievens does a great job in this video explaining how #blockchain inventions can be #patent’ed at the @EPOorg. Hint: It’s the exact same standard as for any other type of CII.”

What are these people thinking? Bearing in mind the EPO's own admission of quality problems (albeit internally only, for now), shouldn’t they quit this madness? Sooner or later all these patents will fall in an avalanche like Alice in the US.

Meanwhile, judging by yesterday’s long post from IP Kat, the non-impartial and not-so-independent (i.e. partially dependent) EPO appeal boards are hard to rely on as long as Battistelli and Campinos, two crooked patent maximalists, control them. Watch this latest situation:

A recent decision by the EPO Technical Boards of Appeal (TBA) departed from previous boards on how the novelty of the increased purity of a known compound is to be assessed. In T 1085/13, the TBA diverged from previous decisions that established special criteria for determining the novelty of a claim directed to a known compound of increased purity. The decision also ignores the criteria set out in the EPO Guidelines for Examination. These state that to be novel a selection invention must be “purposive”. The decision therefore confirms that the EPO is prepared to depart from its previous positions on the criteria for assessing the novelty of selection inventions. It seems that, for the purpose of assessing novelty, the TBA are now in favour of applying the same novelty criteria to these inventions as to any other type of invention, and nothing further.

[...]

As far as this Kat is aware, T 1085/13 is the first decision by the TBA to depart from the “special criteria” for purity inventions provided in T 0990/96 (although she is happy to be corrected on this if readers are aware of any earlier decisions).

T 1085/13 also appears to have ignored the criteria for selection inventions established by earlier TBA (and outlined in the EPO guidelines for examination) that a claimed selection must constitute a “purposive selection”. This is in line with other recent decisions of the TBA. It therefore appears that the third criteria for the novelty of selection inventions is being phased out, although this is still not reflected in the most recent EPO Guidelines for Examination. If this really is to be the new position of the EPO, is it not time for these changes to be reflected in the guidelines? This Kat also awaits with interest to see whether this latest decision on purity inventions will be followed by subsequent boards and the Examiners.

Guidelines should be based on law, not so-called ‘production’ aspirations. This is akin to what Iancu does at the USPTO, in effect mimicking Battistelli. Judges are being pressured and condemned.

As further evidence of the decline of quality of patents (EPO and USPTO in this case), watch these two new reports (from yesterday) [1, 2] as they cover something we wrote about some days ago (based on the original press release). The gist of it is, the EPO admits it granted false patents… yet again (not just the USPTO, where such invalidation is a lot more common with Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs)).

To quote the first report:

The European Patent Office (EPO) and the US Patent and Trademark Office (USPTO) have both invalidated patents owned by Immunex Corporation.
The patents cover antibodies that target human interleukin-4 receptors.

Regeneron Pharmaceuticals had opposed the patents, arguing that European patent 2,990,420 and US patent 8,679,487 were invalid due to the insufficiency of disclosure.

The EPO invalidated Immunex’s European patent a day after the USPTO’s Patent Trial and Appeal Board invalidated all 17 claims of the US patent due to obviousness.

Joseph LaRosa, executive vice president of Regeneron, commented: “We applaud decisions by the US and European patent offices this week, which invalidate Immunex’s functional patent claims to antibodies that target human IL-4 receptors.”

The second such report says:

Regeneron Pharmaceuticals (Nasdaq: REGN) has announced two important legal developments invalidating Immunex patents with functional claims to antibodies that target human interleukin-4 receptors (IL-4R).

On Friday, the Opposition Division of the European Patent Office (EPO) revoked wholly-owned by Amgen (Nasdaq: AMGN) subsidiary Immunex’ European Patent No 2,990,420 in its entirety because the claims were invalid for insufficiency of disclosure. This follows a decision by the Patent Trial and Appeal Board (PTAB) of the US Patent & Trademark Office (USPTO) to invalidate all 17 claims of Immunex’ US Patent No 8,679,487 as obvious. These decisions are subject to appeal by Immunex.

Regeneron’s shares closed up 2.17% at $423.79 on Friday, while Amgen dipped 1.51% to $185.50 in after-hours trading.

“We applaud decisions by the US and European patent offices this week, which invalidate Immunex’ functional patent claims to antibodies that target human IL-4 receptors,” said Joseph LaRosa, executive vice president, general counsel and secretary, at Regeneron. “It is our position that Immunex’ functional claims unfairly attempt to claim ownership far beyond the molecules developed, and stifle innovation within the broader scientific community,” he added.

It is impossible to argue (any longer) that the EPO has no patent quality issues; even the EPO’s management now admits it.

01.27.19

British Courts Once Again Reject Bogus European Patents Granted on Software

Posted in Courtroom, Europe, Patents at 3:23 am by Dr. Roy Schestowitz

Trivial patents, too

Sony Communications International AB v SSH Communications Security Corporation

Background to case (Source): Sony Communications International AB v SSH Communications Security Corporation

Summary: The liability caused by erroneous patent grants, requiring years in courts (motions and appeals) just to undo and revoke; it’s a warning sign to all those who ignore the nonchalance of António Campinos and his new deputy (denying the decline in patent quality like oil companies deny climate science)

POSTED some hours ago in Kluwer Patent Blog (almost no articles there lately; just a catalogue of cases with self-promotional links, Sara Moran helping Kluwer make ‘sales’ in this case) was this recent case/outcome. It’s related to what we wrote yesterday about declining quality of patents granted by the European Patent Office (EPO) and what we wrote the day before yesterday about the UK High Court rejecting European Patent No. 2073862. Here’s the summary of what happened:

The Court of Appeal upheld the first instance decision that the patent in suit lacked novelty and inventive step over the prior art. The Court confirmed, following Halliburton v Smith, that despite the fact the parties had reached a confidential settlement and Sony was not involved in the appeal, it was necessary to hear the appeal on its merits as it would not be right to restore a patent which had been held invalid by the court below unless that decision had been shown to be wrong.

“We are saddened to see that António Campinos is — much as we’ve expected all along — another Battistelli, only with reduced insider backlash because staff representatives have been gagged (not just SUEPO but also the CSC).”We’ve seen situations like these before in the United States. The Patent and Trademark Office (USPTO) grants dubious patents which are used for extortion without trial and later on, some time down the line (usually years), the extortionist turns out to have used a bogus patent (or patents) to accumulate great wealth (sometimes as much as hundreds of millions of dollars); the money never get refunded to the extorted parties (sometimes as many as thousands of them). One such example is the patent troll Erich Spangenberg, whom EPO management invited to speak at its event that promotes software patents in Europe. We are saddened to see that António Campinos is — much as we’ve expected all along — another Battistelli, only with reduced insider backlash because staff representatives have been gagged (not just SUEPO but also the CSC). With decreased work security it seems like nobody has the courage to step up and protest anymore.

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