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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.

01.21.19

A Fortnight After His Diplomatic Immunity Ends Outgoing EPO Vice-President Željko Topić is in Court in Zagreb, Croatia

Posted in Courtroom, Europe, Patents at 3:00 am by Dr. Roy Schestowitz

Last month: EPO Vice-President Željko Topić in New Article About Corruption in Croatia

Kuterovac Topić WIPO 2010

Summary: Court minutes for a Željko Topić case heard 5 days ago

THE case of Željko Topić is well known within the European patent sphere. We’ve been covering it since 2014. As European Patent Office (EPO) Vice-President, for example, Željko Topić played a major role in crushing staff. Prior to that he had done many bad things in Croatia. Why did Battistelli bring him to the EPO in the first place?

We’ve managed to get court minutes (in Croatian and in English) for the first court appearance for a Željko Topić case, which took place on January 16th, 2019, after 8 years of silence from the court. The judge indicated that, because Vesna Stilin had provided a lot of documentation, he plans to make a final decision on April 8th, 2019.

Here it is in English:

REPUBLIC OF CROATIA

MUNICIPAL CIVIL COURT IN ZAGREB

10000 ZAGREB – Ul. grada ​​Vukovara 84

Mailbox 303

Case Number: 48 Pn-532 / 11-20

Minutes

from January 16, 2019

on the main hearing at the Municipal Civil Court in Zagreb

Presiding Judge: Joško Jurišić

Prosecutor-Counter-Defendant: Željko Topić

Defendant-Counter-Prosecutor: Vesna Stilin

Referee: Mateja Golemović

Regarding: compensation for damages

 

The judge begins the main hearing at 9.00 am and announces the subject of the hearing. The discussion is public.

 

It is established that the following have attended:

For the Prosecutor-Counter-Defendant: Imon Choudhury, Attorney in the Attorney’s Office of Mladen Prka

For the Defendant-Counter-Prosecutor: Personally

 

The prosecutor remains in the lawsuit and the allegations made so far.

The defendant remains in response to the lawsuit and the allegations made so far and the counter-lawsuit.

 

It is established that the filing of the case of the Prosecutor-Counter-Defendant dated 28.11.2018 was received in the file, a copy was sent to the Defendant-Counter-Prosecutor.

 

It is established that the Defendant-Counter-Prosecutor files a submission, of which a copy is delivered to the Prosecutor-Counter -Defendant’s representative.

 

The Prosecutor-Counter-Defendant’s representative, and also for the purpose of expediting the proceedings, proposes to withdraw or renounce his lawsuit and not claim any compensation for these civil proceedings, and proposes to do the same regarding the Defendant-Counter-Prosecutor with her counter-lawsuit.

 

Regarding the question of the court, the Defendant-Counter-Prosecutor states that she does not agree to such a proposal of the Prosecutor-Counter-Defendant. And she doesn’t want her counter-lawsuit to be withdrawn or renounced but wants to obtain a meritorious decision.

 

The Prosecutor-Counter-Defendant’s representative requests a shorter deadline for the response to the present-day submission by the Defendant-Counter-Prosecutor.

 

The court brings the following:

Decision

The Defendant-Counter-Prosecutor is requested to specify her petit in the counter-lawsuit from 4.3. 2011 and provides a 30-day deadline for the Prosecutor-Counter-Defendant’s representatives to respond to today’s submission of the Defendant-Counter-Prosecutor, for which the present hearing is postponed and the next hearing is scheduled for:

 

April 8, 2019 at 9.00 am

 

the present parties are aware of this and are required to attend without a special invitation.

Completed: 9.09

 

Recorder Judge Parties

Here is the original in Croatian:

REPUBLIKA HRVATSKA

OPĆINSKI GRAĐANSKI SUD U ZAGREBU

10000 ZAGREB — Ul. grada Vukovara 84

Poštanski pretinac 303

Poslovni broj: 48 Pn-532/11-20

Zapisnik

od 16. siječnja 2019. godine

o održanoj glavnoj raspravi kod Općinskog građanskog suda u Zagrebu Prisutni od suda:

Joško Jurišić Tužitelj-protutuženik: Željko Topić

Sudac

Tuženica-protutužiteljica: Vesna Stilin

Mateja Golemović

zapisničar Radi: naknade štete

Sudac započinje glavnu raspravu u 9,00 sati, i objavljuje predmet raspravljanja. Rasprava je javna.

Utvrđuje se da su pristupili:

Za tužitelja-protutuženika: Imon Choudhury, odvjetnik u zamjenu za odvjetnika Mladena Prku Za tuženicu-protutužiteljicu: Osobno

Tužitelj ostaje kod tužbe i dosadašnjih navoda.

Tužena ostaje kod odgovora na tužbu i dosadašnjih navoda te kod protutužbenog zahtjeva.

Utvrđuje se da je u spis zaprimljen podnesak tužitelja-protutuženika od 28.11.2018., primjerak dostavljen tuženici-protutužiteljici.

Utvrđuje se da tuženica-protutužiteljica predaje u spis podnesak, od čega se primjerak uručuje punomoćniku tužitelja-protutuženika.

Punomoćnik tužitelja-protutuženika, a vezano i u svrhu što bržeg okončanja postupka, predlaže da on povuče svoj tužbeni zahtjev ili se odrekne od tužbenog zahtjeva te ne potražuje nikakve troškove pamičnog postupka, a da isto to napravi i tužena-protutužiteljica sa svojim protutužbenim zahtjevom.

Na upit suda, tužena-protutužiteljica ističe da na ovakav prijedlog tužitelja-protutuženika ne pristaje, odnosno ne želi svoj protutužbeni zahtjev povlačiti niti se od istog odricati, već želi donošenje meritorne odluke.

Pun. tužitelja-protutuženika moli kraći rok radi očitovanja na danas zaprimljeni podnesak tužene­protutužiteljice.

Sud donosi

Nalaže se tuženici-protutužiteljici da svoj protutužbeni zahtjev od 4.3.2011. u petitu specificira te se punomoćniku tužitelja-protutuženika podjeljuje rok od 30 dana radi očitovanja na danas zaprimljeni podnesak tužene-protutužiteljice, radi čega se današnje ročište odgađa, a slijedeće zakazuje za dan:

8. travnja 2019. godine u 9,00 sati

što prisutni primaju na znanje, i obvezuju se pristupiti bez posebnog poziva.

Dovršeno: 9,09

Zapisničar Sudac Stranke

 

EPO immunity sure helped Željko Topić, who often failed to even attend court hearings (we covered this before). Will justice be served less than one decade late?

01.13.19

“Uniloc is a Lawsuit Factory”

Posted in Apple, Courtroom, Patents at 6:47 am by Dr. Roy Schestowitz

Factory

Summary: Apple is a very secretive company, so it is hard to know what goes on with the patent troll Uniloc

THERE IS RISK that quality of patents granted by the USPTO will decrease because Trump appointed law firms to run the Office (law firms that had worked for him, so there’s an element of nepotism too). Courts aren’t changing though; having said that, patent trolls often rely on the accused not being able to afford going to court, hence a secret settlement over fake (bogus) patents.

Apple is a very opaque company, so it’s hard to know what’s going on in some of the lawsuits against it. The EFF’s post that’s cited a lot by patent people speaks of Uniloc’s lawsuit against Apple as follows:

At EFF, we review court dockets to monitor the conduct of the most active patent trolls. But when court records are redacted or sealed, it can be impossible for EFF and other members of the public to know what is going on. Today we filed a motion to intervene in Uniloc v. Apple seeking public access to key briefing about whether Uniloc should be able to bring the case at all.

Uniloc is one of the most active patent trolls in the world, and filed more than 170 lawsuits in 2018. It is the patent owner that sued Austin Meyer for offering his X-Plane flight simulator on app stores. That suit led to a documentary called The Patent Scam (available on Amazon Prime). Since then, Uniloc has been a big purchaser of patents, and various Uniloc entities have filed hundreds of patent suits.

In 2017, Uniloc filed a wave of patent litigation against Apple and other defendants. In some of those cases, Apple has moved to dismiss on the basis that Uniloc lacks standing. Apple’s motion to dismiss was heavily redacted, but it appears to relate to deals Uniloc has made with Fortress Investment Group LLC. Apple seems to be arguing that Uniloc and Fortress divided rights in the underlying patents in a way that means Uniloc entities no longer had a legal right to sue for infringement.

“Uniloc is a lawsuit factory,” said a reader to us back in November. “From today’s RPX Daily Litigation Alert,” he added:

Litigations

California Central

Max Blu Technologies, LLC v. AVIC UMEDISC (US), Inc.

Uniloc 2017 LLC v. American Broadcasting Companies, Inc.

Uniloc 2017 LLC v. ESPN, Inc.

Uniloc 2017 LLC v. Hulu, LLC

Uniloc 2017 LLC v. Microsoft Corporation

Uniloc 2017 LLC v. Microsoft Corporation

Uniloc 2017 LLC v. Netflix, Inc.

Delaware

Chugai Pharmaceutical Co., Ltd. v. Alexion Pharmaceuticals, Inc.

Inventergy LBS, LLC v. Securus Technologies, Inc.

Symbology Innovations LLC v. Pilot Corporation of America

Symbology Innovations LLC v. Vital Farms, Inc.

XMTT, Inc. v. Intel Corporation

Delaware (After Hours)

XMTT, Inc. v. Intel Corporation.

New Jersey

MEDICURE INTERNATIONAL, INC. v. GLAND PHARMA LTD.

TELEBRANDS CORP. v. ALTAIR INSTRUMENTS, INC.

Texas Eastern

Uniloc 2017 LLC et al v. Google LLC

Uniloc 2017 LLC et al v. Google LLC

Uniloc 2017 LLC et al v. Google LLC

Uniloc 2017 LLC et al v. Google LLC

Uniloc 2017 LLC et al v. Google LLC

Uniloc 2017 LLC et al v. Google LLC

Uniloc 2017 LLC et al v. Google LLC

Uniloc 2017 LLC et al v. Google LLC

Uniloc 2017 LLC et al v. Google LLC

Uniloc 2017 LLC et al v. Google LLC

Uniloc 2017 LLC et al v. Google LLC

Uniloc 2017 LLC et al v. Google LLC

Uniloc 2017 LLC et al v. Google LLC

Uniloc 2017 LLC v. AT&T Services, Inc. et al

Uniloc 2017 LLC v. Barnes & Noble, Inc.

Uniloc 2017 LLC v. Cardo Systems, Inc.

Uniloc 2017 LLC v. Cisco Systems, Inc.

Uniloc 2017 LLC v. Huawei Device USA, Inc. et al

Uniloc 2017 LLC v. SAMSUNG ELECTRONICS AMERICA, INC. et al

Uniloc 2017 LLC v. Samsung Electronics America, Inc. et al

Uniloc 2017 LLC v. Samsung Electronics America, Inc. et al

Uniloc 2017 LLC v. Terrano, LLC

Uniloc 2017 LLC v. Verizon Communications Inc. et al

Uniloc 2017 LLC v. Hike Ltd. et al

Uniloc 2017 LLC v. Hike Ltd. et al

Texas Northern

Ring Protection LLC v. NEC Corporation of America

Uniloc 2017 LLC v. Blackberry Corporation

Uniloc 2017 LLC v. Blackberry Corporation

Uniloc 2017 LLC v. Blackberry Corporation

Uniloc 2017 LLC v. Blackberry Corporation

Uniloc 2017 LLC v. LG Electronics USA Inc et al

Uniloc 2017 LLC v. ZTE, Inc. et al

Uniloc 2017 LLC v. ZTE, Inc. et al

Uniloc 2017 LLC v. ZTE, Inc. et al

Uniloc 2017 LLC v. ZTE, Inc. et al

Texas Southern

Metuchen Pharmaceuticals LLC et al v. Empower Pharmaceuticals LLC et al

Ringers Technologies LLC v. Harmer

Texas Western

Uniloc 2017 LLC v. Apple Inc.

Uniloc 2017 LLC v. Apple Inc.

Uniloc 2017 LLC v. Apple Inc.

Uniloc 2017 LLC v. Apple Inc.

That’s from one day in November. If Apple cares about society at large, it will reject this ‘NDA culture’ and tell the public what’s going on. Uniloc has already expanded to Europe and it’s a problem that doesn’t seem to be going away fast enough.

12.22.18

Patent Attorneys Still Insult Judges Because Their Clients, Notably Patent Trolls, Hate 35 U.S.C. § 101 (and Courts Are Correctly Applying It)

Posted in America, Courtroom, Microsoft, Patents at 5:07 pm by Dr. Roy Schestowitz

Judges have become ‘dangerous’ for the same reason peacemakers are ‘dangerous’

The profit motive

Summary: The Court of Appeals for the Federal Circuit (CAFC) and the Patent Trial and Appeal Board’s (PTAB) judges still receive scorn, mockery and disdain from people who make a living out of lawsuits; it has become a stain on the reputation of law firms — a simple fact they’re incapable of comprehending or unwilling to grasp

THE new Director of the U.S. Patent and Trademark Office (USPTO) likes to ignore the Federal Circuit or cherry-pick only decisions which suit his personal agenda. He also routinely mocks/belittles 35 U.S.C. § 101, hence the highest US court. He’s mostly supported by a ranting bunch of lawyers/attorneys like himself. Michael Borella, for instance, has just unleashed this latest complaint about 35 U.S.C. § 101, offering tips/pointers for bypassing it. “Opening scene,” he declared, “our intrepid patent attorney arrives early at her office for a productive day at work. With morning coffee sitting next to her monitor, she opens her email. She finds a few messages from clients and colleagues, as well as a new office action from the USPTO. Curious, she opens the Office action and scans through it, only to find that it contains yet another 35 U.S.C. § 101 rejection applying the dreaded Electric Power Group LLC v. Alstom S.A. decision.”

“These people dread PTAB because PTAB reduces the number of patents and limits the scope of acceptable patents.”Good. Get a real job. David Boundy (Cambridge Technology Law) has also just written for this site. After a bunch of PTAB-hostile blog posts and articles he claims: “My article shows that lapses of administrative law are not confined to Gil Hyatt (a petition for rehearing of Hyatt v. PTO is currently pending, as discussed on Patently-O (see “Agency Bad Guidance Practices at the Patent and Trademark Office: a Billion Dollar Problem”), nor are lapses confined to individual examiners.”

In our previous articles which mentioned Boundy (e.g. [1, 2]) we rebutted his claims, taking note of his financial motivations. These people dread PTAB because PTAB reduces the number of patents and limits the scope of acceptable patents. Anne Cullen, for instance, has just noted that “PTAB Cuts Some Huawei Patent Claims In Samsung Fight” and to quote what’s not behind paywall:

The Patent Trial and Appeal Board has handed a partial win to Samsung in a dispute over three Huawei cellular network patents, chucking all of the challenged claims…

This is very typical. They re-evaluate the examination.

Thanks to the Patent Trial and Appeal Board’s (PTAB) inter partes reviews (IPRs) the patent troll SMTM Technology may soon lose its sole ‘business’: patent lawsuits. With a “patent challenged as likely invalid,” Jain stated 4-5 days ago:

On December 17, 2018, Unified filed a petition for inter partes review (IPR) against U.S. Patent 8,958,853, owned and asserted by SMTM Technology, LLC, an NPE. The ‘853 patent, directed to automatically causing a mobile device to enter into an inactive mode when the mobile device is being used in a moving vehicle, has been asserted in district court litigation against Apple and Microsoft.

Here’s another chance to win a thousand bucks by helping to squash a questionable US patent:

On December 20, 2018, Unified added a $1,000 contest to PATROLL seeking prior art for US Patent No. 8553831 owned by Feng Ma. The ’831 patent, generally relates to a computed tomography imaging system used for medical diagnoses.

Last but not least, a patent troll called General Patent Corp. faces another (more recent) challenge:

On December 20, 2018, the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims in an IPR filed by Unified against U.S. Patent 9,253,239 owned by Bradium Technologies, LLC, a General Patent Corp. subsidiary and NPE. As in its recent institutions against Realtime Adaptive Streaming and Mobility Workx, the Board once again rejected arguments that Unified’s members are real parties-in-interest in view of the Federal Circuit’s ruling in Applications in Internet Time, LLC v. RPX. The ’239 patent, directed to a “Optimized image delivery over limited bandwidth communication channels,” is not actively involved in district court litigation.

All the above are IPRs and these typically target patent trolls. Unfortunately, Steven Seidenberg has just come out again with loaded headlines, akin to those from climate change deniers. To quote:

Two recent academic papers examine whether Non-Practicing Entities (NPEs) deserve their reputation as patent trolls – but the papers reach conflicting conclusions. As discussed in the first part of this article, a paper published by Stanford’s Hoover Institution found that 26 publicly-listed NPEs invest in R&D and do little harm to America’s high tech sector. These findings, however, are less significant than they appear. Another paper, published by Harvard Business School (HBS), found that NPEs do on average behave as patent trolls. How important – and trustworthy – are the HBS findings?

“NPEs” and “patent trolls” are the same thing; they’re synonymous. They exist for nothing but lawsuits/extortion.

“”NPEs” and “patent trolls” are the same thing; they’re synonymous. They exist for nothing but lawsuits/extortion.”The other day Janal Kalis took note of a software patent’s invalidation (“US Pat 9516045, Resisting the spread of unwanted code and data; Alice/101 Kill by Dist. Ct. Affirmed by Fed.Cir.”) only for a patent trolls' attorney (Mr. Gross) to lose his mind and attack the judges (“Another terrible, bogus, illogical interpretation of 101 by the CAFC; I wonder if the fact that there was no 101 rejection at the PTO during prosecution affected their thinking? [] Taranto says that “filtering in content” is not a distinction over “filtering out content” and therefore is just abstract even as it is a clear computer function http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1407.Opinion.12-20-2018.pdf … Amazing how he goes out of way to trivialize technical distinctions when it suits his agenda [] Only in CAFC bizarro-land could physical operation – breaking an electronic file into pieces, and sorting conforming/non-conforming content- be considered as NOT directed to improving computer functionality. We’re being ruled by techno-illiterati http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1407.Opinion.12-20-2018.pdf … [] I’m convinced Judge Taranto is responsible for more than 90% of the mess concerning 101 at CAFC: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1407.Opinion.12-20-2018.pdf … his opinions are arbitrary, illogical and results oriented; his attempted distinction of Finjan is completely technically incorrect…”).

“The bottom line is, trolls are often litigation proxies working at the behest of other entities.”Mr. Gross is supporting trolls, for whom he writes articles. His defense of Microsoft trolls like Finjan is hardly surprising either (Finjan is mentioned 4 times in page 4 of this decision).

Speaking of Microsoft trolls, Keith Bergelt from the Open Invention Network has just recalled Microsoft’s funding for SCO (Microsoft also funded Finjan). To quote:

Symbolically and functionally it’s extremely significant. The Open Invention Network (OIN) was formed in the wake of the SCO litigation against IBM, Red Hat and SUSE/Novell. SCO sued claiming to have Unix related functionality that was relevant to Linux.

This litigation was quietly funded by Microsoft, lasted several years and went nowhere. In the end, there was no liability and no culpability for the alleged infringements

The bottom line is, trolls are often litigation proxies working at the behest of other entities. It is a shell game. To argue that they don’t exist or that their patents do no harm is very dodgy an attitude/approach.

Maybe one day these trolls-friendly attorneys will regret what they said; this is why we need to keep this stuff well documented, properly preserved.

12.10.18

US Courts Make the United States’ Patent System Sane Again

Posted in America, Courtroom, Patents at 3:57 am by Dr. Roy Schestowitz

“The only patent that is valid is one which this Court has not been able to get its hands on.”

Supreme Court Justice Jackson

Summary: 35 U.S.C. § 101 (Section 101), the Patent Trial and Appeal Board (PTAB) and other factors are making the patent system in the US a lot more sane

THE U.S. Patent and Trademark Office and the courts aren’t the best of friends these days. The courts often disagree with the decisions of the Office. The higher courts also increasingly resist/anatagonise Office-friendly and trolls-friendly litigation venues. Consider TC Heartland and its application by lower courts.

“Seven Networks LLC on Friday urged the Federal Circuit not to reconsider a ruling that allowed a patent lawsuit it brought against Google LLC to remain” (in Texas), Matthew Bultman (Law360) wrote. Also from Bultman and colleagues we have this: “Verizon subsidiary Oath Holdings Inc. can defend a patent suit over advertisement technology in Delaware, a New York federal judge has ruled, following the Federal Circuit’s decision that the judge failed…”

“The higher courts also increasingly resist/anatagonise Office-friendly and trolls-friendly litigation venues.”Lawyers are trying to find creative new ways to pick courts/judges in patent cases. It’s not working for them. Well done, US courts and judges. When it comes to tackling the Cult of Patents at least. When I say “Cult of Patents” I don’t mean to suggest all patents are inherently evil. The same goes for religion. It’s when people take it to the extreme that the whole broth spoils and the system looks like rubbish. Here is more on this from Watchtroll and from Law360: “A Texas federal court has jurisdiction to hear whether several banks infringe a licensing company’s patents covering electronic banking procedures because the company sent demand letters to the institutions…”

There’s nothing such parasites won’t do to drag victims to patent courts that advertise their bias.

“It’s when people take it to the extreme that the whole broth spoils and the system looks like rubbish.”It has meanwhile been pointed out, e.g. in a couple tweets [1, 2] spotted by Florian Müller, that Makan Delrahim (former lobbyist, consistent with a pattern of corrupt officials) may be having yet more problems [1, 2].

“William Barr,” one said, “who may become the next attorney general, had a serious dispute with Makan Delrahim, the Justice Department’s top antitrust lawyer, implicitly accusing him and his deputy of lying about a meeting on the AT&T-Time Warner Merger https://www.washingtonpost.com/technology/2018/12/07/trumps-likely-pick-attorney-general-said-justice-departments-antitrust-chief-gave-inaccurate-account-meeting-with-time-warner/?utm_term=.964435282f54 …”

“Makan Delrahim just backed the Antitrust Division out of the 2013 agreement with the PTO on FRAND remedies,” said the other tweet, “apparently it now takes the position that you can get an injunction even if you’ve committed not to.”

The CCIA’s Josh Landau has meanwhile written a blog post about it. To quote:

This alone threatens to reduce U.S. competitiveness in standardized technologies. But Delrahim goes further, claiming that competitors will be subjected to new antitrust scrutiny for making reasonable commercial decisions about which standard-setting organizations (SSOs) to participate in.

For example, Delrahim threatens to sue companies that choose to avoid SSOs that are too favorable to patent holders. Participation in a standard-setting organization is voluntary.1 Stating that “competitors would come under scrutiny if they orchestrated a group boycott of an SSO with a patent policy that is unfavorable to their commercial interests,” Delrahim appears to suggest that DoJ will use its authority to investigate companies who don’t want to participate in standards that have unfavorable commercial terms and organize competing standards with better terms.

Separately, Landau wrote: “My sympathy for journalists grows in direct proportion to the number of Friday night emails I receive calling me “enemy of the people” for having the gall to post a summary of a paper showing evidence that NPEs don’t promote innovation.”

“There’s nothing such parasites won’t do to drag victims to patent courts that advertise their bias.”I received death wishes for criticising patent trolls. These people bully companies for a living, so why not bully their critics as well?

Landau (in his capacity as CCIA staff) cites the recent work of Colleen Chien and Jiun-Ying Wu on 35 U.S.C. § 101 and says “Increase In § 101 Rejections Due Almost Entirely To Rejected Business Methods” (there are other aspects we covered here, such as fewer people even bothering to sue with weak patents). To quote Landau:

Prof. Colleen Chien, along with her student Jiun-Ying Wu, recently published an analysis of the impact of § 101 on patent prosecution. While their analysis clarifies which art units are impacted by § 101 decisions like Alice and Mayo, the published article doesn’t clearly answer the question of how each art unit contributes to the overall impact on prosecution from § 101. Fortunately, thanks to Prof. Chien and Wu’s decision to publish the code used to derive their data from the Google Patents public dataset for BigQuery, it’s easy to answer that question.

And the answer isn’t surprising. Essentially the entire increase in rejections from § 101 is driven by increased rejections of business method patents.

Another group that combats patent maximalism is Unified Patents, whose CEO was recently interviewed. Watchtroll really, really does not like Unified Patents. This should mean that patent trolls hate Unified Patents. This means Unified Patents is technology’s friend. Here is what Watchtroll wrote 6 days ago: “On Tuesday, November 27th, the Patent Trial and Appeal Board (PTAB) issued a redacted version of a decision to institute an inter partes review (IPR) proceeding petitioned by Unified Patents to challenge the validity of patent claims that have been asserted in district court against at least one of Unified’s subscribing members. The PTAB panel of administrative patent judges (APJs) decided to institute the IPR despite the patent owners’ assertion that the petition should be denied because Unified didn’t identify all real parties in interest (RPIs) including members of Unified’s Content Zone.”

“Unified Patents does a valuable service, whose net effect is removal of bogus patents, using Sections 101-103 typically.”Yes, there’s no reason why Unified Patents, which lowers the costs of IPRs by sort of crowdfunding them, can be seen as ineligible a petitioner. PTAB agrees. Unified Patents does a valuable service, whose net effect is removal of bogus patents, using Sections 101-103 typically. Prior art, for example, has just been found for U.S. Patent 7,050,043. Bad news for this patent troll as the panel will tackle Proximity Sensors with an inter partes review (IPR):

Unified is pleased to announce the PATROLL crowdsourcing contest winner, Hanhwe Kim, who received a cash prize of $1000 for his prior art submission for U.S. Patent 7,050,043, owned by Proximity Sensors of Texas, LLC, a well-known NPE. The ’043 patent, directed toward a proximity sensor, has been asserted against several companies in district court litigation. To help the industry fight bad patents, we have published the winning prior art below.

We would also like to thank the dozens of other high-quality submissions that were made on this patent. The ongoing contests are open to anyone, and include tens of thousands of dollars in rewards available for helping the industry to challenge NPE patents of questionable validity by finding and submitting prior art in the contests. Visit PATROLL today to learn more about how to participate.

And another patent troll, this time E-Credit Express, was mentioned by Unified Patents on the same day. Prior art found again:

Unified is pleased to announce the PATROLL crowdsourcing contest winner, Hanhwe Kim, who received a cash prize of $1,500 for his prior art submission for U.S. Patent 8,909,551, owned by E-Credit Express, LLC, an NPE. The ’551 patent, directed toward an electronic credit and loan processing method, has been asserted against several companies in district court litigation. To help the industry fight bad patents, we have published the winning prior art below.

We would also like to thank the dozens of other high-quality submissions that were made on this patent. The ongoing contests are open to anyone, and include tens of thousands of dollars in rewards available for helping the industry to challenge NPE patents of questionable validity by finding and submitting prior art in the contests. Visit PATROLL today to learn more about how to participate.

People can now win $1000 by helping an interception of the patent weaponised by Kojicast, another patent troll. As Unified Patents put it the following day:

On December 7, 2018, Unified added a $1,000 contest to PATROLL seeking prior art for US Patent No. 9749380 owned and asserted by Kojicast, LLC (an NPE). The ’380 patent, generally related to a media streaming method and system, has been asserted against Dailymotion S.A. in the Texas Eastern District Court.

A lot of these are software patents, which could probably also be tackled by Section 101. The legal angle depends on the petitioner’s attorney.

“People can now win $1000 by helping an interception of the patent weaponised by Kojicast, another patent troll.”And speaking of software patents, TechDirt now compares them to pot patents with plenty of prior art.

“This is actually quite reminiscent of the mess that came with software patents,” Benjamin Henrion wrote, citing “What Do Pot And Software Have In Common? Stupid Patent Thickets Based On A Lack Of Patented Prior Art” (originally published in TechDirt and soon thereafter reposted by Above The Law). It’s about the time the Federal Circuit (CAFC) opened the door to software patents (before today’s 35 U.S.C. § 101):

Basically, there hasn’t been that much official prior art because pot was considered illegal for so many years, and no one was rushing to patent anything. And, of course, patent examiners are somewhat limited in what they’re set up to research regarding prior art, and they often rely on earlier patents and scientific articles as the basis for prior art searches. And, with pot, there aren’t so many of those.

Of course, this is actually quite reminiscent of the mess that came with software patents. For a long time, most people didn’t consider most software to be patentable (this is not entirely accurate, as there are software patents going back many decades, but many people considered it limited to a few special cases of software). However, in 1998, we got the State St. Bank case, in which the Court of Appeals for the Federal Circuit basically threw open the doors on patenting almost any software. And those doors remained completely wide open until the Alice v. CLS Bank decision in 2014 (which hasn’t totally cleaned up the mess of the State Street ruling, but has certainly helped dial back the insanity).

But, for nearly two decades after the State Street ruling, the US Patent Office was patenting software willy nilly — often despite much of it having tons of prior art or being completely obvious. A big part of the problem was that examiners, again, focused on mainly looking at earlier patents and scientific journals for evidence of prior art. But because so many people didn’t think that most software was patentable, there were very few patents to look at, and it’s pretty rare for anyone to write up the details of software in scientific journals (they just make the damn software).

Days ago there was this report titled “Higher Law: Bay State Marijuana Shops Open | Tracking Pot Patent Cases | Plus: Who Got the Work” (litigation work).

“The patent system may be out of control, but there’s still hope that PTAB and the courts above it will correct things.”Welcome the parasites of pot. Who will benefit from people getting high? Yes, the lawyers (they wanted patents everything, making themselves ‘necessary’).

The patent system may be out of control, but there’s still hope that PTAB and the courts above it will correct things. What about European courts?

Yesterday we said there should be no patents on plants (like pot) and people now point out that “On 7 December 2018, the EPO posted a report on its website relating to the decision” (to allow patents on plants at the EPO, even in defiance of the EPC). The next comment speaks of the UPC (which is likely dead): “You seem to forget that the EPC has 38 member states and the EU presently 28 and soon only 27. You might thus have a long time to wait until the EU takes control of the EPO on the pretext of harmony. If the EU could have taken over the EPO, we would not have to do with the UPC, but EPLA would probably be in place now. However, Opinion C 1/09 came in between. I do not think that even the children of my grandchildren will see the EU take the control of the EPO!”

Given the direction the EPO has taken, it might not even survive much longer. Patent maximalism can doom offices (presumption of validity gone).

12.09.18

Good News: US Supreme Court Rejects Efforts to Revisit Alice, Most Software Patents to Remain Worthless

Posted in America, Courtroom, Patents at 11:46 pm by Dr. Roy Schestowitz

Summary: 35 U.S.C. § 101 will likely remain in tact for a long time to come; courts have come to grips with the status quo, as even the Federal Circuit approves the large majority of invalidations by the Patent Trial and Appeal Board’s (PTAB) panels, initiated by inter partes reviews (IPRs)

2017 and 2018 have been very good years. Irrespective of what the U.S. Patent and Trademark Office grants as patents (more on that in a separate post), courts do a good job. They’re a lot tougher than before.

“Irrespective of what the U.S. Patent and Trademark Office grants as patents (more on that in a separate post), courts do a good job.”As Karl Auerbach put it some days ago: “The supreme court and the IP bar have gotten a lot smarter about software, so they are far more able to recognize that a huge portion of software patents are simply old ideas rewrapped as code and are thus not eligible for patent protection..”

Here’s the full comment (a reply I received):

I do not accept the mantra that “software is math”. Sure, computers operate through the application of the laws of physics, via the emergent properties of electronics and electro-mechanical devices. But so do procedures in chemistry. The act of using a hammer to pound a nail is ultimately “mathematical” in the sense that it is an expression of the laws of force and mass and velocity – all of which are usually expressed in mathematical form. That would make a patent on a novel and non-obvious use of a hammer and nails to be unpatentable.

Some software is, indeed, used to computer mathematical expressions. So are pencils. And pencils are not unpatentable because they are mathematics. (Pencils are unpatentable because they or no longer novel or non-obvious.)

The analogy with gears is to counter the argument that software has no physical reality – which is not true given that once it is reduced to its basic form it consists of charges in electronic circuits that, when combined with electrical time pulses, turns into a very physical machine – but with electrical charges interacting rather then gears meshing.

The main problem that has existed with software patents is that they fail the required test of being non-intuitive to someone practiced in the art of computer programming. The US patent office for decades refused to hire computer people, so it made itself intentionally stupid and thus thought that every chunk of software was non-intuitive. The head of the USPTO during much of that time was a total jerk – he even was booed by a bunch of IP lawyers at a meeting I attended.

The supreme court and the IP bar have gotten a lot smarter about software, so they are far more able to recognize that a huge portion of software patents are simply old ideas rewrapped as code and are thus not eligible for patent protection. But no court has said that a patent, just because it is expressed in the form of a computer programs, is by virtue of that expression, not patentable.

The way things stand, technology companies gained leverage over law firms. It’s still not ideal. As Benjamin Henrion put it the other day in light of this report (“Google, Amazon Invited to Talk Patent Eligibility With Lawmakers”): “Software developers and small companies not invited to discuss software patents, only large companies and patent lawyers…”

The above report comes from a lawyer’s section, too. “If you have no money,” I told Henrion, “then your opinion does not matter. You’re disposable “workforce”…”

The above talk, however, did not deal with courts directly. They’re separate. So what do courts say? The decision to reassess Helsinn v Teva (several days ago) was put in our daily links as it’s pretty irrelevant to us (it’s not at all about patent scope/quality). As proponents of patents on life put it, “Supreme Court Hears Oral Argument in Helsinn v. Teva” (mentioned here before in passing).

“The way things stand, technology companies gained leverage over law firms.”So SCOTUS will look at Helsinn v Teva, but as expected Carl M. Burnett v Panasonic Corporation goes nowhere. It’s another small victory for us programmers who’ve long campaigned against software patents and now have 35 U.S.C. § 101. The Office cannot bully judges. It cannot force Justices (at SCOTUS) to challenge 35 U.S.C. § 101. Days ago the USPTO published yet another talk of Iancu. He can moan about 35 U.S.C. § 101 all he wants, but courts won’t care.

“Another one bites the Alice dust,” wrote this patent maximalist from Watchtroll, linking to an opinionated Watchtroll report about last Monday’s decision:

On Monday, December 3rd, the U.S. Supreme Court denied a petition for writ of certiorari in Carl M. Burnett v. Panasonic Corporation, declining to take up the case on appeal from the Court of Appeals for the Federal Circuit. This is now the latest case involving questions of patent-eligibility for an invention under 35 U.S.C. § 101 declined by the nation’s highest court. In this case, however, the Supreme Court hasn’t addressed the patentability of the relevant subject matter, namely electronic data and electromagnetic analog and digital signals, since 1853.

SCOTUS has also just rejected SSL Services v Cisco and it’s hilarious to see the response from patent extremists who loathe PTAB and love software patents. They’re losing their minds as courts gradually restore/impose sanity on the patent system. Here is what Watchtroll said: “On Monday, November 19th, the U.S. Supreme Court issued a list of orders regarding pending cases where the Court refused to take the appeal. The Supreme Court on that day denied the petition for writ of certiorari to take up SSL Services, LLC v. Cisco Systems, Inc. on appeal from the Federal Circuit. In denying certiorari, the Supreme Court refused to answer whether the Patent Trial and Appeal Board (PTAB) erred in instituting an inter partes review (IPR) proceeding in the face of federal statute barring institution of an IPR based on similar arguments and prior art raised in a previous validity challenge.”

“At the end of the day, when it all boils down to Alice, these patents are still unlikely to withstand judges’ scrutiny.”Watchtroll can be hilarious in the sense that it has nothing left but judge-bashing and as we’ll mention again later, the founder and editor steps down. A month later these people still bring up Ancora v HTC. They’re living in the past, cherry-picking rare case outcomes in desperate efforts to somehow revive software patents in US courts. Watchtroll suggests adding “Technical Solutions” and King & Wood Mallesons’s Veg Tran and Esme Wong argue you should say “an improvement in the computer”; anything to hopelessly fool examiners and judges into software patents?

At the end of the day, when it all boils down to Alice, these patents are still unlikely to withstand judges’ scrutiny. That’s just the way it is; there’s no point pretending that adding some catchphrases will help as if it’s all about words. It’s about the underlying claims, not semantics.

“The bottom line is, software patents are bygones; even the lawyers know it, but they still try to attract applicants, i.e. money/legal bills.”James Fussell, Nikko Quevada and Vincent Violago, three people who do ‘patents’ for a living (nothing else actually) say “Alice Must Be Revisited In View Of Emerging Technologies” (published 5 days ago); they just worry they’ll become unemployed as they will need to find a real job. They start their articles with a bunch of meaningless buzzwords: “The increasing convergence of artificial intelligence, the internet of things, robotics and other emerging technologies are expected to generate various novel legal issues that courts will soon have to grapple with…”

Yes, “artificial intelligence” or “internet [sic] of things” and so on. Why not add “cloud” and “smart” and other nonsense?

The bottom line is, software patents are bygones; even the lawyers know it, but they still try to attract applicants, i.e. money/legal bills.

12.06.18

The European Patent Office Remains a Lawless Place Where Judges Are Afraid of the Banker in Chief

Posted in Courtroom, Europe, Law, Patents at 8:34 am by Dr. Roy Schestowitz

Related: Ingve Björn Stjerna Has Just Warned That If Team UPC and the European Patent Office Rigged the Proceedings of the German Constitutional Court, Consequences Would be Significant

Fair trial

Summary: With the former banker Campinos replacing the politician Battistelli and seeking to have far more powers it would be insane for the German Constitutional Court to ever allow anything remotely like the UPC; sites that are sponsored by Team UPC, however, try to influence outcomes, pushing patent maximalism and diminishing the role of patent judges

THE underlying issues at the European Patent Office (EPO) have not been addressed at all. They just rotated the face, swapping one Frenchman with another, António Campinos. In a 20-year period it's expected that almost 17 years will be French-led at the EPO. How ridiculous is that? A reader of ours calls it "La famiglia".

“It’s almost as though Wingrove just writes whatever Bristows’ main office tells him to write and the headline says “Constitutional Court ruling rumours spread” as if this “spread” somehow means there’s truth to it; for all we can tell, the only ones “spreading” it are propaganda sites like the one Wingrove writes for.”We are well aware that the Constitutional Court in Germany (FCC) is assessing the situation. It isn’t helping that UPC propaganda sites (connected to the EPO and Team UPC) are perpetuating falsehoods. Patrick Wingrove is the latest to do this in a patent propaganda site which keeps spreading false rumours that are baseless and created out of thin air by Team UPC. It’s really bad, but we suppose it says a lot about their journalistic standards. They have none; they just have sponsors and an agenda to sell. “Talk is building of a decision from the German Constitutional Court before year-end,” Wingrove wrote, “the UK House of Lords heard evidence about Brexit’s effect, and the Italian Council of Ministers approved national legislation to adopt the Unitary Patent Regulation and the UPCA…”

What is the source for all this? Team UPC. It’s almost as though Wingrove just writes whatever Bristows’ main office tells him to write and the headline says “Constitutional Court ruling rumours spread” as if this “spread” somehow means there’s truth to it; for all we can tell, the only ones “spreading” it are propaganda sites like the one Wingrove writes for. It’s wishful thinking and lobbying; it’s totally baseless and already refuted by the court.

There are many aspects to the complaint, presumably 4 main ones; one of the concerns is that UPC judges are controlled by (re)appointment policy, leaving them subservient to crooked circles like Battistelli’s. It’s not hard to see what Battistelli thinks of justice and judges. There’s ample documentation of that. It’s almost 2019 and the EPO Boards of Appeal still do not have independence; Campinos has changed nothing after corrupt Battistelli illegally attacked judges (the latest update is rather grim, claiming that Judge Corcoran was admitted into a psychiatric hospital).

Nobody wants to go through what Corcoran experienced, so nowadays the boards may seem spineless and subservient to those it rules on (the Office). Kluwer Patent Blog, which recently mentioned Corcoran’s condition, said yesterday that a “EPO Board of Appeal decides plants can be patentable after all” (ridiculous) and to quote:

Those who thought that the battle on patenting of plants had gotten a final blow by the amendment of the European Patent Convention last year and the approach of the EPO examination following that (see this post), have not counted on the EPO Boards of Appeal.

The discussion on the patentability of plants has a long history within the EPO, which culminated in the amendment of Rules 27 and 28 EPC by the Administrative Council entering into force on 1 July 2017 (see this post). This amendment followed a Notice of the European Commission of 3 November 2016, indicating that the Biotech Directive 98/44 should have been interpreted as that plants obtained by essentially biological processes are not patentable.

There is meanwhile another controversy brewing; Doctors Without Borders have just issued the following statement:

Six organizations appealed today the European Patent Office’s September decision to uphold US pharmaceutical corporation Gilead Science’s patent on the key hepatitis C drug sofosbuvir. The appeal—filed by Médecins du Monde (MdM), Doctors Without Borders/Médecins Sans Frontières (MSF), AIDES (France), Access to Medicines Ireland, Praksis (Greece), and Salud por Derecho (Spain)—states that the European Patent Office (EPO) should revoke Gilead’s patent because it does not meet the requirements to be a patentable invention from a legal or scientific perspective.

The appeal comes exactly five years after sofosbuvir was first approved for use in the US, where Gilead launched the drug at $1,000 per pill, or $84,000 for a 12-week treatment course. The corporation has made more than $58 billion from sales of the drug and its combinations in the last five years.

Catherine Saez (Intellectual Property Watch) soon followed with this coverage:

Six organisations, including Médecins Sans Frontières (MSF, Doctors Without Borders), today appealed a European Patent Office decision to uphold Gilead Science’s patent on hepatitis C drug sofosbuvir.

In September, the European Patent Office (EPO) upheld Gilead’s patent on sofosbuvir in an amended form (IPW, Public Health, 13 September 2018).

MSF, along with Médecins du Monde (MdM), AIDES (France), Access to Medicines Ireland, Praksis (Greece) and Salud por Derecho (Spain), filed an appeal requesting that the EPO revoke Gilead’s patent. They argue it lacks the patentability requirement “from a legal or scientific perspective,” according to an MSF press release. The filed appeal document was not available at press time.

Intellectual Property Watch has also just published “OECD Report Presents Policies To Balance Innovation With Access To Medicines” and they mean patents rather than innovation (they try to make it synonymous for propaganda’s sake or self-serving purposes). To quote:

The Organisation for Economic Cooperation and Development (OECD) has released a new report that presents policy options for countries to strike a better balance between promoting financial incentives for pharmaceutical innovation and ensuring affordable access to medicines. Finding this balance, the report explains, will be essential for ensuring the sustainability of health systems.

Where have the board been when it comes to stopping abstract patents on mathematics and actually enforcing the EPC? The EPO has just finished an event that promotes software patents in Europe and all that Intellectual Property Watch wrote about it was this puff piece, based on this misleading outline (warning: epo.org link) that the EPO published yesterday. To quote:

The number of blockchain inventions is mushrooming, and the European Patent Office wants to ensure it handles the increasing patent applications consistently, officials said at a 4 December conference that brought together around 350 patent examiners and practitioners.

Only them? Well, the EPO is no longer shy to break the law and to promote software patents provided it uses surrogate names and terms. That’s a problem, but who’s going to stop this when one President controls everything, attacking judges and even turning his boss into his assistant in a few weeks? As some insiders rightly claimed, Campinos now makes himself even more powerful than Battistelli and if the FCC was ever to approve the UPCA, things would go truly mental, giving a corrupt Office power over courts in the whole of Europe.

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