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05.31.19

GNU/Linux in 2019 and GNU/Linux in 2009 Face Entirely Different Worlds (and Challenges)

Posted in Deception, Free/Libre Software, GNU/Linux, Microsoft at 5:02 am by Dr. Roy Schestowitz

The ‘proprietary-but-source-available’ syndrome makes a comeback (openwashing)

Come closer

Microsoft: Come closer. So I can stab you in the back.

Summary: We need to resume coverage of Microsoft abuses and attacks on GNU/Linux; their thinly-veiled attacks are intensifying while media that Microsoft is paying relentlessly cheers and ‘perfumes’ these attacks

ABOUT A DECADE ago “cloud computing” (as a term, as that is for the most part what it boils down to) had started securing a foothold. Businesses were ridding themselves of servers that they had long controlled and instead used something akin to a terminal (or browser) to access some servers they neither owned nor controlled. Let’s not even bring “edge” and “smart” and “AI” and other nonsense into it. The world of so-called ‘IT’ (another controversial term) changed; whether it’s due to marketing buzzwords or vice versa (in reverse) isn’t what’s important right now.

“In our view, simply ignoring what Microsoft is up to (in 2019 in particular) is no longer an option.”Some of our readers bemoan the OSI; some even blast the FSF, saying it hasn’t kept up with emerging threats. The emergence of systemd and various forms of Microsoft entryism (e.g. in Python) would sometimes be cited. We don’t bring up these issues often enough. That’s mostly because we focus on software patents, as we have since 2006. Our intention is to gradually change that and return to focusing on Microsoft threats; Novell is long gone, but the same tactics are now resurfacing with Azure‎ (Microsoft tries to sell it using promises of “IP peace of mind”). At the same time Microsoft’s takeover of GitHub can be seen as an abduction of developers and development. Satya Nadella merely continues the strategy laid forth by Bill Hilf‎ and Sam Ramji (under Ballmer) a decade earlier. Months ago Microsoft got itself a seat on the Board of the OSI; these people now promote, from various such seats, alternatives to “Open Source” (various other terms) and are connected to the managers of “Open at Microsoft” — the same managers who phoned my employer to condemn me and caused me trouble. They know what they're trying to achieve and how. It’s the same old Microsoft; there’s no “new Microsoft”, only new PR.

“It’s the same old Microsoft; there’s no “new Microsoft”, only new PR.”In our view, simply ignoring what Microsoft is up to (in 2019 in particular) is no longer an option. That’s why we began writing a lot more about the Linux Foundation and we shall revisit other topics, such as Apache‎ being hijacked. Even the chief of Eclipse has begun complaining about it in public (there were some press reports about it earlier this month). Recently, corporate media spent more time and space covering WSL (WeaSeL) than GNU/Linux itself. Microsoft’s sponsorship of the media pays off. They want developers to use Vista 10 with extensive NSA surveillance and Visual Studio (openwashing through “Code”) while UEFI ‘secure boot’ makes it hard to even boot GNU/Linux on a new laptop/desktop.

05.26.19

Much Ado About Senators Tillis and Coons (Who Failed in 2017 and in 2018)

Posted in America, Deception, Law, Patents at 12:21 am by Dr. Roy Schestowitz

Politicians ‘bought’ by the “legal industry” work for the “legal industry” (as if law is up for sale, a form of bribery and overt corruption)

Coons bribed
It’s not bribery if they call it “campaign contributions” (right?)

Summary: The patent microcosm is attempting to buy laws that supersede the US Supreme Court (SCOTUS) and remove/weaken U.S.C. § 101 as well as PTAB while their blogs and sponsored ‘articles’ serve as lobbying vehicles

AT the end of last year and again at the start of this year we repeatedly stated we’d cover American patent affairs a lot less. Especially pertinent court cases, as opposed to affairs and policies at the U.S. Patent and Trademark Office (USPTO). We still put many news references about US patent cases in our daily links, usually without further remarks (most show 35 U.S.C. § 101 being applied to squash bogus US patents; the Federal Circuit cites Alice/SCOTUS).

“Without a doubt software patents are a bad idea; just ask actual software professionals. Ask them!”We don’t wish to dwell on or spend too much time covering the latest nonsense from Senators Tillis and Coons. We thought they had disappeared already (as they typically do when this subject comes up), but the patent microcosm refuses to let go. It’s treating old news as ‘new’, so let’s just do a quick rebuttal.

Without a doubt software patents are a bad idea; just ask actual software professionals. Ask them! Who wants these patents? Typically lawyers. So-called ‘patent professionals’. Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) are a good idea because they help squash software patents that ought not exist. Thus, it’s hardly surprising (it’s very much predictable) that the so-called ‘patent professionals’ want PTAB obliterated along with 35 U.S.C. § 101. Follow the money; it’s about litigation dollars.

As someone put it the other day [1, 2]: “You don’t like patents. That’s a fine position to take. OSS is based entirely on patent law. If you want free software, you are free to continue wanting that. It’s a good thing, too. But [...] companies can be sued for any software they produce if the copy and patent rights are not indemnified. Starting about 1980, when US laws changed, the world of open source (not free) software has created donations to ensure that users of patents and copyright could not be sued…”

At the moment, with Alice/35 U.S.C. § 101 in place, the risk is greatly reduced. This also means that lawyers are becoming ever more obsolete. We don’t need them and we can spent more time coding. We sleep better. We share code.

Lawyers, suffice to say, aren’t happy. They think they’re entitled to the job of preying on our trade. They want their “share” (legal bills) — in essence a tax on abstract things.

Here we see Michael Borella of the litigation lobby eager to bring software patents back. Eileen McDermott of Watchtroll says “Draft Text of Proposed New Section 101 Reflects Patent Owner [sic] Input” (Watchtroll wrote a few more posts to that effect before the weekend).

Borella’s blog colleague, Kevin E. Noonan, is also having a go at it (with a sponsored copy at JD Supra for extra audience). So this pack of patent maximalists is currently very busy trying to give visibility to bad bills that have failed for years (to bring software patents back to the US).

What these patent extremists call “Bipartisan” (e.g. here, a site advocating patents on life) isn’t really that; it just has two politicians from two parties. They’re involved in particular interests/sectors, not party tribalism. It’s an attack waged by the litigation ‘industry’ against everyone else. That has nothing to do with political parties.

One can certainly expect Janal Kalis to amplify all the above. Mr. Kalis cites anything he can get his hands on to prop up the ludicrous bills. But don’t expect Kalis to cite those whom he doesn’t agree with (he even blocked me in Twitter, where I never block anyone). Here we have CCIA’s Josh Landau with a rebuttal titled “Senators Tillis and Coons Draft Fundamentally Flawed § 101 Legislation” (pretty long). To quote:

Today, staff from Senators Tillis and Coons will sit in a room with a group of stakeholders—primarily patent lawyers and lawyers from the pharmaceutical industry—and discuss their recently released draft for a § 101 bill.

That draft bill reflects little of the careful input that has been provided to the Senators over the course of the past five months, including hundreds of pages of data and suggestions explaining the concerns that the proposed legislation creates.

Instead, they’ve produced a bill that would eliminate hundreds of years of case law and replace it with untested, unclear language that will fail to provide crucial protections against vague, abusive patents. At the same time, the draft legislation would create completely new uncertainties about what is and is not patentable—the exact opposite of the predictability that Senator Tillis claims to want to promote.

So the only ‘news’ is that they decided to “sit in a room with a group of stakeholders,” that’s all. Benjamin Henrion apparently panicked about it and wrote: “US law proposal to restore software patents, stacked “meetings” with no software developer on board “stakeholder meetings on the Hill (next June 4th, 5th and 11th)…” (citing, via this tweet, an ‘article’ from Scott McKeown, basically preaching from a law firm). Any substance to it? Let’s see. To quote: “U.S. Senators Thom Tillis (R-NC) and Chris Coons (D-DE), Chair and Ranking Member of the Senate Judiciary Subcommittee on Intellectual Property, and Representatvie Doug Collins (R-GA-9), Ranking Member of the House Judiciary Committee, Hank Johnson (D-GA-4), Chairman of the House Judiciary Subommittee on Intellectual Property and the Courts, and Steve Stivers (R-OH-15) released a bipartisan, bicameral draft bill that would reform Section 101 of the Patent Act.”

“The patent microcosm can go on and on speaking about their new ‘cult leader’ Coons and misuse words like “bipartisan”; but what they’re proposing is extremely unpopular and will likely vanish later this summer, just like it did last year and the year before that.”This is, again (as before), just a handful of people. To pass a bill they’d need hundreds of politicians. Prof. Dennis Crouch wrote: “The proposal also suggests further language be added to construe the statute “in favor of eligibility” and to expressly eliminate the non-statutory exceptions to eligibility.”

But why would anybody support this? How is this different from what Coons attempted in 2017 and then again in 2018 (in vain)? That’s just a broken old record, trying again what has repeatedly failed. The only ‘news’ here is that a bunch of people gathered in a room and spoke the usual nonsense about “Patent Owners” [sic] (they're not really owners).

Why will this bill not progress? Because there’s a lot of opposition to it. The law firms have lobbyists, sure, but so do technology firms and most are happy with the way things are.

A few days ago Mike Masnick was referring to Nielsen’s software patents by the correct term, “Patent Monopolies”. He sought to demonstrate what we’re dealing with here and said:

And it’s still using patent claims to stifle competition. Back in 2016, Nielsen bought Gracenote for $560 million just three years after it had been sold for $170 million. Just what could have represented so much value for Nielsen? Well, just a couple months before Nielsen bought Gracenote, Gracenote had sued a company called Sorenson Media for patent infringement. Sorenson Media had an “automatic content recognition” ACR platform for measuring viewers of TV broadcasting — exactly the market Nielsen wishes to maintain its monopoly over.

How did that turn out? Well, Sorenson declared bankruptcy last fall (in large part due to an incredibly stupid contract it had signed), but I’m sure the cost of a patent lawsuit didn’t help. Oh, and in February, Nielsen bought up Sorenson’s assets at firesale prices.

And that’s not all. Last year another small competitor, ErinMedia, sued Nielsen, claiming antitrust violations and that Nielsen was using “predatory practices designed to prevent competitive entry by companies like ErinMedia.” A few weeks later, the company announced that it was effectively shutting down, noting that Nielsen had “chilled” its ability to close an investment round.

Oh, and remember Arbitron? The company that was at issue back in the 1960s? Nielsen bought them a few years back, leading the FTC to put some conditions on the deal in hopes that it would not “substantially lessen competition.” So far that doesn’t seem to be working.

And that brings us to the latest Nielsen use of patents against an upstart competitor. Last fall, Nielsen sued upstart competitor Samba TV, claiming patent infringement. The patents at issue — 9,066,114, 9,479,831 and 9,407,962 — all are incredibly vague and generic, and appear to be the kind of patents that aren’t supposed to be allowed in a post-Alice world.

A decade ago we wrote about Nielsen in relation to Microsoft. In more recent years Nielsen made headlines in relation to its aggressive patent strategy, which it resorted to amid its demise. The likes of Nielsen probably give a lot of business to law firms, but they aren’t innovating. People generally understand that now and hence there’s growing hostility to what’s colloquially known as “patent trolls” — an epidemic in the US. The patent microcosm can go on and on speaking about their new ‘cult leader’ Coons and misuse words like “bipartisan”; but what they’re proposing is extremely unpopular and will likely vanish later this summer, just like it did last year and the year before that. We wrote many articles on this topic in past years.

05.24.19

EPO Strikes Further Diminish Chances of UPC Ever Materialising (in Any Shape or Form)

Posted in Deception, Europe, Patents at 9:16 am by Dr. Roy Schestowitz

Another EPO strike
Credit: MSServices Global

Summary: The EPO crumbles under the weight of its own corruption while an increasingly-insane Team UPC pretends all remains normal and a patent trolls-friendly system is ready to take off

IT IS becoming a busy week (and maybe weekend) down in Munich. SUEPO has had the final straw. We expect more to be said, maybe in light of the Kötter Group as well. Is the EPO about to become infested with thugs and goons from a firm founded inside the Third Reich? And apparently participated in the occupation and exploitation of the Netherlands?

“What we’re seeing here is a gradual shift; the public does not view the EPO as an ally or a regional protector; rather, it’s an exploitative foe that extracts money from the European public and gifts rogue entities, both contractors of the EPO (connected to EPO chiefs) and patent trolls.”Earlier today we took note of the upcoming strike (assuming staff votes for it and it’s approved), adding the above banner. As it turns out, it was made by a Dutch firm. “Sorry to bother you with this,” one reader told us, “but it seems that you used the wrong source for the published picture (“Credit: Anonymous Twitter account“); however credits go to “MSServices Global” (a Dutch registered business). I’ve heard from a reliable source (from within the Union) that this company supports the union. Many thanks in advance for correcting it.” (We’ve just corrected it)

What we’re seeing here is a gradual shift; the public does not view the EPO as an ally or a regional protector; rather, it’s an exploitative foe that extracts money from the European public and gifts rogue entities, both contractors of the EPO (connected to EPO chiefs) and patent trolls. The public is only going to suffer and Europe’s reputation too is being harmed.

Earlier today we saw this press release in PRNewswire about “Formal Requirements of the European Patent System”; which system? The one foreseen and set up by the EPC or the sordid mess we have today, operating outside the rule of law and even defying the EPC itself?

“The EPO basically violates the law; the EPC, the courts, the European Parliament…”On May 16th this long blog post was published in Spanish (Spain opposes the UPC and is no friend of the EPO in general). Benjamin Henrion had a go at translations with [1, 2]: “Where the European Parliament did have a starring role was in the rejection of the Directive on the patentability of computer-implemented inventions in 2005. [...] However, the EPO has continued to do what it has wished in this area [...] EPO has continued to do what it has wished in this area, so the rejection of the European Parliament did not result in the elimination of “software patents” and certainly leads to the EU’s inhibition in patents, leaving initiative to the EPO…”

The EPO basically violates the law; the EPC, the courts, the European Parliament…

“Putting aside illegal software patents, how about patents on life and nature?”No sane judge would ever entrust or assign anything legally-sensitive to the EPO, which also violates the privacy of stakeholders (underreported issue that corporate media did not bother covering, as usual).

Putting aside illegal software patents, how about patents on life and nature? CMS Cameron McKenna Nabarro Olswang LLP’s Robert Stephen has just published this article about Broad Institute’s CRISPR patent loss. Will the EPO’s examiners manage to defy management and patent maximalists who infest the management level? Then deny patents on life itself? (Patents in violation of EPC)

To quote Robert Stephen:

The Broad Institute of MIT and Harvard owns several key patents related to the CRISPR technology. One such patent is EP2771468 (“EP ‘468”), which relates to a fundamental aspect of the CRISPR technology in eukaryotic cells. EP’468 was granted in February 2015 and opposed by nine opponents. Following an oral hearing in January 2018 the Opposition Division of the EPO revoked the patent due to lack of novelty over two pieces of intervening art, i.e. documents published after the earliest priority date. These two documents became part of the state of the art after it was decided that the application was not entitled to its earliest two priority dates.

The Broad Institute has appealed the Opposition Division’s decision. Their grounds of appeal rely on attacking the EPO’s current approach to determination of priority entitlement.

The EPO applies an “all applicants” test for priority. The right to claim priority belongs simultaneously and jointly to applicants when there is more than one. The right to claim priority to the two earliest applications belonged simultaneously and jointly to Mr Zhang, Mr Cong, Ms Habib, and Mr Marraffini, yet neither Mr Marraffini nor his successor in title (Rockefeller University) were named as applicants on the PCT, and neither had assigned his right to claim priority to any of the named applicants. The PCT could not, therefore, validly claim priority to the two earliest applications, and thus EP ‘468 was deemed to have a priority date of 30 January 2013.

At the moment, with referrals and appeals impending, all sorts of European Patents are just ‘hanging in the air’ (great uncertainty over their fate). The FCC in Germany is certainly aware that EPO judges lack independence (the judges themselves say so), so we very much doubt the UPC can get off the ground. To make matters worse, there’s an imminent meltdown at the Office because staff will revolt.

“They’re dressing up corpses or embalming dead bodies.”What do the bullies/litigators think of the UPC? Well, they live in another universe. Team UPC’s Vanessa Rieu (who describes herself as “experienced litigator specialised in all areas of intellectual property” [sic]) makes it pretty obvious that Bristows were the ones writing this latest UPC propaganda in Kluwer Patent Blog (albeit anonymously). Just compare the texts. One says: “The latest development shows preparations are going on despite the uncertainty about the future of the UP system due to the German constitutional complaint which was filed against the UPCA in 2017.”

That’s similar to their obsession over/with robes. They’re dressing up corpses or embalming dead bodies. In their official blog they said: “The building that will, at least initially, host the UPC is located on the Quai de la Mégisserie, overlooking the Ile de la Cité, and it is reported that a few years after the Court opens (and there are more cases) the Court may move to the Palais de Justice on the Ile de la Cité.”

“Bristows continues to discredit itself each time it tries to reattach these clipped wings to their ‘fallen angel’.”Haha, they said something similar about venues in the UK up until Brexit. “The Paris offices of the future Unified Patent Court have been disclosed,” writes the anonymous person in Kluwer. Guess who…

Bristows continues to discredit itself each time it tries to reattach these clipped wings to their ‘fallen angel’. They must be in a lot of pain. Battistelli is meanwhile ‘hiding’ in CEIPI, presumably praying for a UPC (which he’s hoping to head while António Campinos brings him back to the Office as a judge!).

Bristows EPO

05.18.19

Watchtroll, Composed by Patent Trolls, Calls the American Patent System “Corrupt”

Posted in America, Deception, Patents at 10:51 am by Dr. Roy Schestowitz

Watchtroll

Summary: Another very fine piece from Watchtroll comes from very fine patent trolls who cheer for Donald Trump as if he’s the one who tackles corruption rather than spreading it

VoIP-Pal (or VoIP-Pal.com because it could afford an Internet domain), which we’ve mentioned here before, e.g. in [1, 2, 3, 4, 5], is back. As someone put it not too long ago: “A patent troll play is still a patent troll play. Regardless of the exchange it is on. And VPLM is very clearly a patent troll play. The fact the CEO spends money on fees to keep this POS current, when there are no revenues, just adds to millions more shares need to be diluted. And with the anti-dilution clause also means more shares for himself.”

It’s similar to Finjan.

“Malak, a troll, has called the whole American patent system “corrupt” because it calls him out for his trolling.”Well, Emil Malak, the CEO of VoIP-Pal.com, a notorious patent aggressor/troll, has gotten lots of puff pieces from Watchtroll, a site sympathetic to all patent trolls (it does not even call them that). Malak was cheering for corrupt Donald Trump and against patent sanity in yesterday’s article, whose title was about as trollish as him: “President Donald Trump Should Investigate the Corrupt Patent System and Passage of the AIA” (no kidding).

The site has gone MENTAL. They actually publish things like these, irrespective of the consequences. They also habitually engage in judge-bashing and science-bashing antics (and yes, they did it once again this past week). We don’t wish to entertain or even link to this piece but only to point out that the new editor of Watchtroll failed to (fore)see the ramifications of publishing such crap for really crappy people.

Meanwhile, contrariwise, “Judge Alsup Slams Patent Troll For Basically Everything,” as this headline put it. It’s actually a copy of an article from Mike Masnick.

“Glad to see someone taking time to understand,” AntiSoftwarePat wrote. Mike Masnick didn’t even focus on his personal views but the views of a very famous judge (high-profile cases).

Mike Masnick covered the outbursts of Judge Alsup against Uniloc — outbursts that we mentioned in passing earlier this month. Putting aside the fact that 35 U.S.C. § 101 likely extinguishes most of this patent troll’s USPTO-granted patents, there are many other things to be criticised:

That brings us to a more recent case, involving notorious patent troll Uniloc — a company we’ve written about a bunch in the past, mainly for its buffoon like attempts at patent trolling. This includes suing over the game “Mindcraft” (the trolls were in such a rush to sue, they didn’t notice it was actually “Minecraft”), and a weak attempt to patent basic math. All the way back in 2011, we wrote about Uniloc getting smacked down by the Federal Circuit for pushing a ridiculous way of calculating patent damages.

It appears that in the intervening years, Uniloc hasn’t given up any of this. The company keeps buying up more patents and suing lots of companies — including Apple, which it has sued multiple times. One of those lawsuits was filed back in 2017. In response to this lawsuit, Apple argued that Uniloc didn’t actually hold the right to sue over the patent. Ridiculously, Uniloc demanded most of the details be blacked out, arguing that it was “confidential.”

[...]

A few other areas where Uniloc sought to hide info, Alsup dismisses by pointing out that a “boilerplate assertion of competitive harm fails to provide a compelling reason to seal.”

And that’s not all that Alsup appears displeased with Uniloc over. Remember earlier when I talked about Uniloc running into trouble years back for using a nutty formula for trying to calculate damages? Well, Alsup notes that redacting all this info might help Uniloc hide “reasonable royalties” from being used in damage calculations, and calls out “vastly bloated figures.”

The realisation that patent trolls lack credibility and morality is very widespread. SCOTUS mentions the term “patent troll”, as do the Federal Circuit and Patent Trial and Appeal Board (PTAB). We’re not sure about the ITC, but the former Director of the U.S. Patent and Trademark Office (USPTO) spoke of patent trolls all the time after she had come from Google (commonly a target of such trolls). The above from Alsup is a nice addition to a long series of rants from all levels of the system. Malak, a troll, has called the whole American patent system “corrupt” because it calls him out for his trolling.

Unified Patent Court Won’t Happen Just Because the Litigation Microcosm Wants It

Posted in Deception, Europe, Patents at 9:58 am by Dr. Roy Schestowitz

UPC boat sinks

Summary: Unified Patent Court (UPC) hopefuls are quote-mining and cherry-picking to manufacture the false impression that the UPC is just around the corner when in reality the UPC is pretty much dead (but not buried yet)

THERE are some topics that refuse to go away; Rather than focus on EPO abuses and USPTO reforms we’re often dragged back to the UPC, which died about 2 years ago (summer of 2017). António Campinos never mentions it anymore. The EPO very rarely uses that acronym (or even speaks of “unitary” anything) because deep inside they know it’s doomed. The litigation ‘industry’ hoped it would usher in a plaintiff-friendly system that bypasses national laws, encompassing raids, embargoes and even software patents in Europe (those are typically rejected by European courts, as per national laws). Even the United States, the ‘home of software patents’, barely tolerates such patents anymore (courts almost always cite 35 U.S.C. § 101 after defendants leverage it).

Let’s be frank. We never liked the UPC, even when it was called “EU” or “Community” (way before “unified” and “unitary”). One need not be against the EU or against communities or against unity to openly oppose the UPC. I’m personally very pro-EU (it’s no secret), but at the same time I’m strongly against the UPC, which is inherently an EU project. Similarly, myself and many others oppose the Copyright Directive not because we oppose the EU but because it serves to discredit the EU.

As usual, as with most things (like copyright law), someone stands to benefit from changes. Law firms, especially those that have many litigators (offensive), want as many lawsuits as possible. That’s understandable. Right now there are arms manufacturers drooling (maybe even literally) over wars in Iran and in Venezuela.

Just before the weekend JUVE’s editor (M.K.) spoke of a new puff piece from their English site. Recall "JUVE Creates English Site, Promotes Unified Patent Court (UPC)" (01.20.19). It’s a puff piece in “interview” form — similar to those Kluwer Patent Blog used to issue aplenty with Team UPC minions. This one is pro-FRAND, pro-UPC and all those usual things patent trolls absolutely adore.

As I put it last night, “JUVE continues to lobby for UPC on behalf of its subscribers base. They want lots of litigation with patents. A selective quote as a headline in JUVE shows the sheer bias of the site. It’s not news, it’s lobbying thinly disguised as ‘news’, as usual from Amy Sandys, amplifier of Team UPC liars.” (alluding to her previous work in that site)

“JUVE Patent interviews UK Supreme Court judge, David Kitchin,” the editor said. “We cover FRAND, injunctions, and why Kitchin thinks the UPC project is still likely.”

Those three things are connected because they’re weapons of patent aggressors and trolls — those who stand to benefit most from the UPC, along with their legal representatives.

“This one is pro-FRAND, pro-UPC and all those usual things patent trolls absolutely adore.”The headline says, in quotes, “The UPC has the support of UK judges,” but here what he actually said:

Do you still believe in the UPC?

The UK is fully committed to the UPC. The government believes that the UPC and Unitary Patent project are an important way to simplify the protection of innovative products and processes across the Union. It has the support of the UK judges in this field too.

He was talking for jurists, not Brits in general. British businesses are not “fully committed to the UPC” and many speak out against it. Funny how he then speaks for the government too (he knows its beliefs, maybe alluding to IPO’s actually) and then speaks for all judges. Kitchin is one of several judges in the UK Supreme Court; so his words are akin to those of one single player in a football team, alleging to be speaking for the FA, for his team, and maybe for a whole city/country. We saw something similar in a Bristows post at IP Kat earlier this month (one German judge).

Suffice to say, Team UPC is all jubilant about this interview and is citing it, e.g. in Twitter; the article speaks of mere will (of one person), no actual news, no progress.

And whose will? Obviously, those looking to profit from it, those who share corridors at events that are echo chambers. This judge’s argument boils down to, “I want it, so it’ll happen” — how so typical of UPC boosters. What about other judges? They weren’t even asked for their views on this. Maybe ask the Boards at the EPO about it, only to realise that virtually all judges there oppose the UPC (it makes them redundant and obsolete).

Facts and desires are often mutually-contradicting; such is the case when it comes to almost every article about the UPC. Just look who’s writing these articles! Law firms, directly or by proxy. Nobody else gets given a voice or a platform whilst apathy (or misunderstanding of the underlying issues) gets exploited by Team UPC. This morning we saw this new press release from a very large American law firm. To quote from it:

Pegram is a leading expert on patent reform and the EU Unitary Patent & Unified Patent Court. He served as a staff member and then editor-in-chief of The Trademark Reporter, where he worked with members of the Trademark Trial & Appeal Board to establish the basis for the Board’s Manual of Procedure. After the Copyright Law was rewritten in 1976, he advised the president of the Special Libraries Association and clients regarding compliance with the copying and fair use provisions.

So he keeps changing occupations, including a media career. A lot of people who cover patents in the media even admit to me (as recently as a week ago) that they write for lawyers. What kind of journalism is that? Admission of bias upfront?

Earlier today we saw this new article from Alex Woolgar. Can one ‘borrow’ foreign patent law to sue a company in its own country using these ‘imported’ laws? That’s what UPC strives to achieve, but here’s what happens in practice (here in the UK):

Another judgment, another instance of the English court seizing jurisdiction in a patent dispute. In Ablynx NV and Anor v VHsquared Limited and Ors [2019] EWHC 792 (Pat), His Honour Justice Hacon (sitting as a High Court judge) has provided a useful judgment concerning the application of the Brussels Regulation to patent disputes where there is also a purported choice of jurisdiction by contract. Even in circumstances where the parties have made such a choice, a forum shopping defendant might well find the shelves to be bare.

Ablynx is the exclusive sub-licensee of certain fields of use for three patents (now expired) protecting an invention relating to immunoglobulins derived from camelid antibodies [“camelid” refers to several even-toed ungulates, not just camels, so we can leave puns involving humps and deserts at the door, please]. Broadly speaking, the Defendants were licensees in relation to other fields of use. The Defendants are alleged to have infringed the UK designations of the patents during their term by encroaching on Ablynx’s field of use. This allegedly provided an illegitimate springboard for work completed following the expiry of the patents. There is ongoing litigation relating to the same subject matter in the Netherlands and Belgium, and there was earlier litigation in the Netherlands.

[...]

Therefore, the question of jurisdiction turned simply on the meaning of “concerned with…the validity of patents”.

Different countries have different patent laws; this may actually be a feature rather than a fault/defect because different nations have different specialty and so their patent priorities/strategies should vary; a country that exports a lot of fruit, for example, might rightly oppose patents on seeds, plants and all that malarkey. The UPC mindset wants to blur everything for the sole purpose of expanding the scope of litigation (geographically) and scope of patents (bypassing national laws). It’s not hard to see to whose advantage.

05.15.19

False Hope for Patent Maximalists and Litigation Zealots

Posted in America, Deception, Europe, Patents at 1:06 am by Dr. Roy Schestowitz

Hope street

Summary: Patent litigation predators in the United States, along with Team UPC in Europe, are trying to manufacture optimistic predictions; a quick and rather shallow critical analysis reveals their lies and distortions

35 U.S.C. § 101 remains strong in the United States. Courts follow it. There are new examples. Some were publicised earlier this week; we posted two batches of daily links yesterday (double the usual) and we no longer deal with the matter as meticulously as last year because EPO affairs are more urgent than the USPTO‘s.

“Long story short, even if we ignore racketeering and extortion ‘behind the scenes’ (that’s the majority of troll activity) and only focus on what becomes public (actual lawsuits), trolls still dominate.”In the previous post we quickly noted that António Campinos continues granting European software patents because like the man who gave him the job he does not care about patent quality, only quantity. Maybe he strives to be like China, where patent filings exceed a million per year.

More low-quality patents would certainly mean more frivolous and baseless litigation. Patent trolls can exploit such patents to receive “protection money” without ever going to court or filing a lawsuit. They just make threats. On some occasions they do in fact proceed from threats to actions. Statistics published earlier this week (by RPX) show that the majority of new patent lawsuits get filed by trolls. It’s always the case. They are the majority of lawsuits; they make nothing at all; all they do is blackmail companies/people and sometimes sue. Lex Machina also has some new data. As Michael Risch put it yesterday: “I did want to drop a brief note that the Stanford NPE [trolls] Litigation Database appears to be live now and fully populated with 11 years of data from 2007-2017. They’ve been working on this database for a long while. It provides limited but important data: Case name and number, district, filing date, patent numbers, plaintiff, defendants, and plaintiff type. The database also includes a link to Lex Machina’s data if you have access.”

Long story short, even if we ignore racketeering and extortion ‘behind the scenes’ (that’s the majority of troll activity) and only focus on what becomes public (actual lawsuits), trolls still dominate. They do nothing for innovation and a lot against it. Sometimes they’re stopped without them even filing a lawsuit, owing to Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs).

“They’ve stooped rather low to generate pretense of “good news” or “hope”.”The upside is, software patent are nowhere near making a comeback and litigation numbers continue to fall, owing largely to 35 U.S.C. § 101 . Anticipat has just published some new spin, echoed by the likes of Janal Kalis; Anticipat’s folks are lying by omission, as usual, or intentionally spinning the numbers. They don’t count IPRs but instead focus on mere patent applications i.e. not actual US patents. They’ve stooped rather low to generate pretense of “good news” or “hope”.

Likewise, here in Europe, the chronic liars from Bristows (this time Edward Nodder) want us to think the dead UPC is suddenly resurrected because “change is [made] the training required to qualify as a patent attorney” in one small country with not so many European Patents (low on a per capita basis, too). The blog has been silent for so long, so here’s what they said yesterday (and will probably pay other sites to syndicate):

The Austrian parliament has reported here that it adopted amendments to the Patent Attorney Act on 9 May 2019. One change is to the training required to qualify as a patent attorney. Currently there is no requirement to have studied law at university, the legal knowledge being acquired through practical training. Under the new requirements, law (including Austrian and European) must have been studied at a university (the course content to be governed by a decree), and the duration of practical training will be shorter.

And that’s it; from the above Bristows came up with “Austria’s change to patent attorney training will enable representation in UPC” (their headline). This has nothing to do with UPC, but when Team UPC is ever so desperate they might even mistake EPC for UPC. Or focus on Austria, which does not even register on the EPO’s chart (warning: epo.org link) based on number of patents. Germany got 20,804 patents last year, compared to 535 in Austria (that’s 0.4% of the total at 127,625).

05.11.19

Team UPC Has Run Out of Arguments, So Now It’s Just Writing Anti-Brexit Rants With Testicles in the Headlines

Posted in Deception, Europe, Patents at 8:04 am by Dr. Roy Schestowitz

The three Frenchmen

Summary: Nothing has worked for firms that crafted and lobbied hard for the Unified Patent Court (UPC); after necrophilia a new low is being reached

I MYSELF am not pro-Brexit, but this isn’t the point. Many people who oppose the UPC and oppose corruption at the European Patent Office (EPO) are pro-EU and against Brexit. It’s actually very likely that the majority of such people, typically better educated folks, won’t conflate the two matters. Last year Bristows tried to associate opposition to the UPC with the far right. It’s an old trick that won’t fool anyone.

“So they’re international litigation people — just what the UPC caters for.”In a recent article (dated 29.04.19) about Brexit a law firm speaks about the UPC very succinctly. Who wrote it? “Beverley Potts is a senior professional support lawyer and David Stone is a partner in the London office of Allen & Overy; Joachim Feldges is a partner in the Munich office; Keren Livneh is a senior associate in the New York office; and David Shen is a partner in the Shanghai office.”

So they’re international litigation people — just what the UPC caters for. Here is what they wrote: “There is continuing uncertainty about when and if the Unified Patent Court (UPC) will come into effect. Some of that uncertainty stems from Brexit but there is also a pending challenge to the legality of the system in Germany. If and when the unitary patent and the UPC come into force, there is debate about whether the UK may still qualify as a member state under the Agreement on a Unified Court. For the time being, patent owners are waiting for the further development of the UPC and, in particular, for the decision on the German constitutional complaint (judgment still pending).”

“Last year it tried fake news and fabricated/false rumours. It told politicians that the UPC would start very soon and the complaint be dismissed; their liars cited no reliable source, they just made the whole thing up.”Notice that familiar pattern with the two famous lies. Britain cannot participate in a system (that does not exist anyway) regardless of its status and the court observes a variety of factors (about 4 of them). So UPC is basically a non-starter.

We’ve meanwhile noticed a shift in the strategy of Team UPC. Last year it tried fake news and fabricated/false rumours. It told politicians that the UPC would start very soon and the complaint be dismissed; their liars cited no reliable source, they just made the whole thing up. They’re liars, not lawyers.

Failing that, half a year down the line, they’ve turned to discussions of Brexit itself. We’re supposed to think that this whole thing, which obstructs the UPC, boils down to nothing but Nigel Farage and his laughable (a domestic joke) Brexit Party.

“We’re supposed to think that this whole thing, which obstructs the UPC, boils down to nothing but Nigel Farage and his laughable (a domestic joke) Brexit Party.”IP Kat’s Team UPC (Annsley Merelle Ward, Bristows) amplifies Team UPC (AIPPI) and the colleague Alan Johnson has nothing left to say about the dead UPC, so now he’s just ranting about Brexit in a patent blog (which oughtn’t be about Brexit Party/Nigel Farage but about patents). Even the headline is immature: “Brexit Party or “Bollocks to Brexit” – will the EU Parliamentary elections make any difference?”

Watch what Kluwer Patent Blog has been reduced to by Bristows. Words like “Bollocks” in titles. Colloquially, in plural form (as above) it means testicles.

A non-Bristows author at Kluwer Patent Blog (and not Team UPC either) pointed out as recently as 4 days ago that “[a]ccording to the EPO’s Annual Report 2018, 66712 patents were granted in 2013. In 2018, the number of patent was 127625! Conversely, the number of examiners has almost exactly stayed the same (4221 in 2013, 4276 in 2018).” The context of this post is slowness of German courts, especially in nullity (of patents) procedures that are often settled outside courts and thus mask the really appalling rates of patent validity. To quote the relevant portions:

Will your response be: “Well, well, well, but is this such a big problem? Each patent has at least been thoroughly examined by either the German or the European Patent Office. So don’t these well-examined rights deserve being respected?” – Hmmm. The validity of this argument obviously depends on the quality of the patents granted by the respective offices. And here lies another serious problem. The EPO, for example, has almost doubled the number of granted patents over the past 5 years. According to the EPO’s Annual Report 2018, 66712 patents were granted in 2013. In 2018, the number of patent was 127625! Conversely, the number of examiners has almost exactly stayed the same (4221 in 2013, 4276 in 2018). This means that compared to 2013, each examiner now has half the amount of time available to examine and judge each application. And given that it is easier to comply with applicant’s wishes than to write a decision of refusal, you can guess what this trend means for the average quality of the search and examination process.

But even if the quality of the granted patents had miraculously stayed the same for the last 5 years, this does not mean that examination by the EPO or GPTO makes a patent fire-proof. On the contrary, the percentage of total or partial invalidations by the Federal Patent Court is significant.

[...]

The impression you might get from these statistics is that only a relatively small (in 2018, 24% + 16%) proportion of patents is wholly or partially revoked, whereas the rest is maintained. But this is not so. In fact, the BMJV’s statistic is – apologies for being so outspoken – quite misleading. This is because most cases before the Federal Patent Court are not “disposed” by a contentious judgment, but by withdrawal or some other sort of settlement. In particular, patentees may wish to settle a nullity action – e.g. by granting a free license – when they know their patent is of doubtful validity. Thus, while the number of “disposed cases” is somewhere from 200-250, the number of actual decisions per year is only in the order of 100. For example, in 2015 there were 93 judgments, of which 47 (50%) ended with total revocation, and 32 (34%) with partial revocation. The patent was maintained as granted only in 17 (18%) of all cases!

This trend has not significantly changed over the last 5 years. One simply cannot assert that even the simple majority of patents that are seriously attacked before the FPC will withstand nullity plaintiff’s challenges

Imagine something like the UPC, connected to the EPO, being put in charge of assessment of European Patents. Will judges lose their jobs (contract not renewed) for throwing out “too many” European Patents? Therein lies some of the very substance of the UPC complaint in Germany’s FCC. Let’s hope the decision takes another couple of years to arrive (there haven't even been oral arguments yet) because the UPC was a terrible idea all along and it’s unconstitutional in many member states for reasons such as languages among others. Brexit delays also further contribute to the demise of the UPC, as we explained several times before. Bristows’ UPC blog is more or less dead, so now they ruin others’ blogs.

05.09.19

Stephen Rowan: From UK-IPO to Operation Coverup of Team António Campinos

Posted in Deception, Europe, Law, Patents at 6:29 pm by Dr. Roy Schestowitz

Grand Theft EPO
“Abuse of Power, Abuse of Law, Suicides, Harrassment and much more…welcome to Grand Theft EPO VI (Battistelli (Psycho), Topić (Suspected Criminal), Ernst (Hypocrite), Kongstad (got fired), Minnoye (Crook), Bergot (Psycho II) and a good many others)”Anonymous

Summary: The Boards of Appeal are unable to stop the ride down the slippery slope of patent maximalism; the Office now congratulates itself for granting a lot of European Patents, including many that aren’t in compliance with the law

THE European Patent Office (EPO) in 2019 still suffers a nepotism epidemic, with former colleagues of António Campinos getting top jobs and even his former 'boss'. Illegal patents (against the EPC) are being granted, e.g. European software patents and the Office lobbies to accomplish the same in the US despite 35 U.S.C. § 101/Alice.

“In the meantime, the repository of European Patents — once the pride of the EPO — is rapidly being ‘polluted’ with patents that aren’t supposed to even exist.”What the heck is going on? We recently learned that it’s now approaching a boiling point and there may be protests/strikes on the way provided SUEPO (the staff union of the EPO) gives the “green light” or EPO staff organises some other way. Based on recent polls (from the EPO itself, even the management), EPO staff is still depressed and demoralised. Earlier today SUEPO noted their similarity to the suicides epidemic in France Telecom (by linking to several new reports on the subject) and as SUEPO noted in April (almost exactly a month ago), quality of work has collapsed (that’s also based on the data from the EPO itself).

What did the EPO do in light of these findings? Namely that about 75% of European Patents are granted in error? The usual. They’re trying to bury facts. The EPO itself has found that a quarter of the patents it grants are fake European Patents (we sometimes call them IPs, Invalid Patents), i.e. those not compatible with EPC and hence unlikely to have any worth in courts. Watch the typical managerial tricks from Stephen Rowan, as explained earlier today by an insider:

In the previous article, Märpel presented the results of the staff survey. One of the concerns of the staff is that with production increases, quality has decreased.

Apparently, our internal quality control (DQA) also noticed. Compliance decreased from 85% to 75% last year. Märpel is not so good at maths, but understands that a quarter of the searches and granted patents do not respect the EPC. Märpel is also not so sure, but believes that this figure puts the EPO behind all other major patent offices.

Management also noticed. They had to.

Common sense would have that management would lower production pressure, maybe set time aside for retraining, etc… This is pretty standard. But not, Stephen Rowan, Vice-President DG1 had a better idea: Collaborative Quality Improvements (CQI).

[...]

In summary, Examiners are supposed to spend more time discussing the files together. They are also supposed to write everything down in a logbook.

There is nothing really wrong with that, except that it is not really related to compliance with the EPC and that the whole exercise costs time. But what time budget do the examiners get? Exactly zero. What was Vice-President Stephen Rowan thinking?

Rowan’s own words, i.e. the management’s spin, are included in the above post.

Meanwhile, IPPro Magazine’s Ben Wodecki has posted this new article about a patent office that still grants patent monopolies on nature itself and life itself — that is, European Patents are given in clear defiance of the EPC. “No Patents on Seeds” speaks out again:

The No Patents on Seeds Group has called on politicians to “take responsibility and to change the law” regarding the patentability of conventionally bred animals and plants.

The group said politicians should make it “impossible to grant patents on conventionally bred plants and animals”.

Johanna Eckhardt of No Patents on Seeds warned that if politicians fail to set limits, then “new facts will be constantly created for patent attorneys, companies and the EPO to make even more profit with such patents”.

She added: “In the near future even food and drink may be patented as an invention.”

Such patent types are prohibited by rule 28(2) for the interpretation of the European Patent Convention (EPC). However, the European Patent Office has come under fire for granting what the groups claim are conventionally bred patents on plants and animals.

The most notable case covering such a patent, T1063/18, saw agrochemical company Syngenta appealing an EPO decision that saw its patent application for a pepper plant denied. The case caused protests outside the EPO’s office building in Munich.

In response, EPO president António Campinos wrote a referral to the Board of Appeals. [sic]

Who or what will stop this lunacy? Can the Board of Appeal, indirectly bossed by Campinos himself, put an end to the practice? We doubt it, but time will tell. In the meantime, the repository of European Patents — once the pride of the EPO — is rapidly being ‘polluted’ with patents that aren’t supposed to even exist. Imagine having a scholarly journal where ‘only’ 3/4 of published papers turn out not to be hoaxes. ‘Only’…

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