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01.07.18

Patent ‘Industry’ Settles on Use of Buzzwords for Bypassing § 101/Alice Rules in the United States

Posted in America, Deception, Patents at 7:40 am by Dr. Roy Schestowitz

Industry 4.0

Summary: Facing a tough reality wherein software patents get repeatedly rejected by courts, the patent lawyers reach out to low-importance precedence in low courts (rocket dockets) and pretty meaningless buzzwords that make computer code sound both innovative and physical

A FEW DAYS ago we published this long article about the demise of software patents, accompanied/complete with new examples. As we showed at the time, the patent industry was fuming and looking for workarounds.

Since then, promoted by some patent extremists for the most part (in Twitter) was this article titled “The Current State of § 101 Examination for Computer-Related Inventions”. The patent microcosm cannot help itself; it is still exploring ways to get around the de facto ban on software patents or § 101 (incorporating Alice). To quote:

The impact of recent § 101 changes on the patent community, particularly for computing technologies, is difficult to overstate. As the various administrative bodies seek (and fail to find) a coherent and consistent statement of the law, a distinct reality is manifesting at the point where the rubber meets the road – in day-to-day patent examination. This first post of the reconstituted USPTO Talk presents observations about the state of play in § 101 examination practice for computer-related inventions.

Having studied the matter for over a decade (and published many thousands of articles about it), what we see nowadays is a retreat to buzzwords. Code is being passed off/characterised as “AI” or “IoT” (older tricks involved phrases like “over the Internet”). The EPO keeps coming up with new buzzwords of its own.

“Having studied the matter for over a decade (and published many thousands of articles about it), what we see nowadays is a retreat to buzzwords.”See this new European tweet which reads: “Workshop open to IoT vendors & innovators #SMEs @IConectada40 CEN-CENELEC/WS SEP2 – Industry Best Practices and an Industry Code of Conduct for Licensing of Standard Essential Patents in the field of 5G and Internet of Things…”

There’s also this new report titled “PATENTING INTERNET OF THINGS (IoT) AND INDUSTRIAL IoT INVENTIONS AFTER ALICE” and “TRENDS AND PRACTICE TIPS IN THERAPEUTIC ANTIBODY PATENTING” from the same firm (uploaded last month). Patenting software algorithms by disguising them with buzzwords like “IoT” isn’t an entirely new thing. We wrote a lot about it. We expect to see more of that in months/years to come (until they embrace newer buzzwords).

“We expect to see more of that in months/years to come (until they embrace newer buzzwords).”(Self-)esteemed lawyers from McDermott Will & Emery apparently want to infect digital currencies too with software patents; they just use trendy terms like “Blockchain” and “Cryptocurrency”.

Safraz W Ishmael from Proskauer Rose LLP (an infamous cherry-picker) has just published a long article titled “Patenting the Blockchain”. It’s in the National Law Review and it says this:

And while software patents are much more difficult to get through the Patent Office these days, especially after the Supreme Court’s 2014 ruling in Alice v. CLS Bank (finding that software that implements intermediated settlement services is ineligible for patenting), recent interpretations of the Alice case by the lower courts have indicated that patents directed to innovative database technologies that improve a network of computers may be patent eligible. As blockchain is at bottom a complex decentralized database system designed to track and store electronic transactions, many innovations in the space may very well be eligible for patenting.

This is still software; Ishmael does not name any of these “lower courts” decisions that he alludes to. Does it even matter? These “lower courts” (he probably means district courts, such as the notorious ones in Texas) are more Alice-hostile than the Court of Appeals for the Federal Circuit (CAFC) and their rulings have little weight. For cherry-pickers like Proskauer Rose LLP that seems to be enough to compel the National Law Review to publish the above (and it’s what readers of the National Law Review want to believe anyway).

“This is still software; Ishmael does not name any of these “lower courts” decisions that he alludes to.”The bottom line is, watch out for (mis)use of buzzwords; the EPO does this a lot (in recent months we covered many examples) and the USPTO is more receptive towards patent applications which disguise algorithms this way.

Anonymous “Kluwer Patent Blogger” is Probably Just Bristows LLP Hiding Its Identity While It Publicly Lies or Distorts Facts About UPC

Posted in Deception, Europe, Patents at 4:55 am by Dr. Roy Schestowitz

Bristows EPO

Summary: In an effort to ram the Unified Patent Court (UPC) down Europe’s throat (for Bristows profits) staff of Bristows appears to be writing misleading pieces anonymously and maybe choosing time of publication so as to limit response/correction

ANONYMITY is often required when blowing the whistle (e.g. about EPO misconduct). It is also sometimes used or misused when someone wishes to spread lies (or libel) without facing accountability.

Bristows is a villainous firm which we wrote many articles about; it’s not a witch-hunt but merely a reaction to a big load of misinformation and sometimes fabrication. They’re usually writing late on a Friday (or a weekend) in Kluwer Patent Blog, sometimes using real names of real staff, soon to be blasted in the comments for misinformation or delusion (it can take until Monday for comments to actually show up because moderation is enabled for all comments).

“Bristows is a villainous firm which we wrote many articles about; it’s not a witch-hunt but merely a reaction to a big load of misinformation and sometimes fabrication.”On Saturday morning this blog post turned up; this time it was published by the anonymous “Kluwer Patent blogger” (not for the first time). It’s about something which was first mentioned by Bristows (rebuttals soon surfaced) and it’s yet another one of those posts which we assume got written by Bristows, then published with the veil of anonymity. Anonymous “Kluwer Patent blogger” typically sounds just like copy-paste from Bristows’ blog and it’s often also linking to Bristows’ own blog as “proof” of the claims. To demonstrate that this latest blog post is likely from Bristows itself, we took only one portion of text from this paragraph and our very first attempt netted a “plagiarism” match. This very first attempt took text from the following paragraph:

Over the last months of 2017, the UPCA ratification procedure in the UK progressed considerably. The last remaining piece of legislation that must be passed in order for the UK to be able to ratify the UPC Agreement, the draft Unified Patent Court (Immunities and Privileges) Order 2017, is expected to be on the agenda of the Privy Council meeting of February 2018. If the Privy Council approves it, the UK will be in a position to ratify the UPCA.

The above says “remaining piece of legislation that must be passed in order for the UK to be able to ratify the UPC Agreement” and when we fed that into Google we got last month’s sponsored Bristows text. So this was copy-pasted from other paid-for ‘articles’ of Bristows, which say, e.g. “remaining pieces of legislation that must be passed in order for the UK to be able to ratify the UPC Agreement…”

Why would Bristows prefer to go ‘underground’ and publish UPC promotion/lobbying anonymously? We’ll leave it for our readers to decide/speculate about…

01.06.18

Patent Maximalists’ Utopia: INPI-Like Patent Systems Where Every Application is Blessed and WIPO-Inspired Assumption That the More, the Merrier

Posted in Deception, Patents at 10:20 pm by Dr. Roy Schestowitz

What would the world look like with billions of computer-generated patents (as some people have suggested)?

Information overload
Reference: Information overload

Summary: The distortion of the patent system at the hands of the patent ‘industry’, which leads to granting of millions of patents that oughtn’t be granted due to duplication, prior art, and/or lack of merit

THE PATENTLY FALSE assumption that maximisation of the number of patents is both essential and desirable is a real problem. We see it everywhere in the patent microcosm, i.e. the ‘industry’ associated with patenting (rather than doing things on which patents get granted). The EPO is all about maximisation right now; the USPTO always had this problem, more so after the Reagan years. China too is moving in this direction, as we shall explain later this weekend.

Let’s go back to the basics. What are patents anyway? Patents are an exchange. A person gets granted a temporary monopoly in exchange for publishing his or her (or their) method, typically demonstrated using some physical device. Examiners used to be shown the claimed inventions (in real life, in person). The motivation is sharing of knowledge or contrariwise, avoiding the loss of technical advancement due to someone’s death (taking one’s trade/technical secrets into one’s grave). Patents are not bad per se; it just depends on how we view them and their original (intended) purpose. The same goes for copyrights and trademarks.

A few days ago someone wrote that the “USPTO trademark filing record shattered again in 2017, with more than 437,000 new applications, an increase of at least 12% in filings over 2016.”

It’s rather odd that trademarks and patents are both being dealt with by the same US-based office. Regardless, patents too are on the increase; the pace of granting increases, not necessarily because innovation is picking up pace (no empirical evidence of that). We wrote about this many times over the years; it’s a commonly-explored area in scholarly literature, too.

The other day CCIA noted that while courts eliminate many software patents, there’s no evidence that it affects the patent office all that much and it certainly has not slowed down granting. As the author put it, “the impacts of the Alice cases on patent examination have been relatively insignificant,” which is true. He cites WIPO data:

Third, the World Intellectual Property Organization (WIPO) released their annual Global IP Indicators report. There’s a lot of data in here on IP and patents worldwide. One interesting observation in the report—despite the “sky is falling” rhetoric about Alice and IPR, filings in the U.S. continue to increase. What’s more, grant rates were actually higher in 2014-2016, after Alice, than in 2010-2012. As I pointed out last year, the impacts of the Alice cases on patent examination have been relatively insignificant compared to the rhetoric surrounding them.

The WIPO figures alluded to above came out not too long ago. In fact, WIPO published this nonsense about “Innovation Hotspots”; what WIPO neglects to say us tgar one has to be rich to pursue patents worldwide; it’s not about innovation at all but mostly about protectionism, which some nations are better able to afford.

“These are the world’s top 10 invention hotspots, based on the number of international #patent applications filed,” it said in Twitter. Well, “international patent applications” are extremely expensive.

The same sort of flawed logic could be seen here at Kettering University just a few days ago. Kettering promotes the utterly baseless theory that inventorship doesn’t exist until/unless there’s a patent . “The study,” it says, “by economists from Harvard University, MIT, the London School of Economics, Stanford University and the U.S. Treasury, analyzes the backgrounds of patent-holders nationwide to determine shared characteristics of inventors. In a portion of the study looking at the education of patent-holders, Kettering University was fourth in producing alumni who hold patents – trailing only MIT, CalTech and Harvey Mudd.”

But does that not miss the point? Are people “inventors” only if they have patents? What about places like India, where most people are not wealthy enough to pursue patents (never mind India’s renowned limit on patent scope)? IAM and Spicy IP wrote a few days ago [1, 2] about IPAB. The outline from Spicy IP says “Justice Manmohan Singh Appointed as IPAB Chairperson under Potentially Illegal Tribunal Rules – Continues to Hold the Post of Chairperson of Appellate Tribunal for Forfeited Property” (IPAB was covered here before).

Remember that patents are only worth as much as quality control or the effort required to come up with them and assess them. Otherwise it’s just fool’s gold. Recently, Brazil nearly committed reputational suicide (damage to all granted patents) by ‘pulling an INPI’, i.e. just granting a patent for every outstanding application. Thankfully, plans have changed since then and it seems as though it’s not under consideration anymore. To quote the one single report we saw about it:

A potential procedure to fast-track the approval of more than 230,000 pending patent applications in Brazil, which some expected before the end of 2017, has not yet been published

A potential procedure to fast-track the approval of more than 230,000 pending patent applications in Brazil has not yet been published.

By “fast-track”, based on a prior report, they just mean approve. They apparently used words like “emergency” to justify such an extreme measure. It’s not only shady but also dangerous; we have only begun seeing just how broad a damage similar managerial approach has caused at the EPO.

Sane Responses to the Latest Pressure From Team UPC Amid Brexit Negotiations

Posted in Deception, Europe, Patents at 3:45 am by Dr. Roy Schestowitz

FTI Consulting, which promoted highly controversial fracking (as per its own brochure [PDF]), also promotes the UPC by paying publishers while receiving over a million euros from EPO budget

FTI Consulting for fracking

Summary: Paid-for lies regarding the Unified Patent Court (UPC) continue to circulate; nevertheless, readers/commenters are not gullible enough to accept/swallow these lies

THE EPO, unlike the USPTO, has weakened the appeal boards and is actively pushing towards more litigation, not less of it (later this weekend we’ll write about the sharp decline in patent litigation in the US).

Bank robberyYesterday it resumed the old #IPforSMEs nonsense, either by naming companies from their ridiculous ‘study’ (going back to September [1, 2]) or just posting vague tweets that imply SMEs rejoice over patent saturation (one single patent lawsuit can be destructive if not fatal to a start-up). We’ve grown rather tired of lies about “UPC for SMEs”; it’s often Bristows staff that spreads such lies and yesterday we saw Bristows and others lobbying the British government for patent maximalism (for patent microcosm profits). This tiring old thing and tireless effort by Team UPC was noted also by Eibhlin Vardy, who wrote this blog post about it. The relevant part (to us):

2. Unitary Patent/Unified Patent Court Agreement – the note seeks confirmation that it is the UK’s intention to stay in the UPC following Brexit, and asks that the UK work with UPC member states to bring the UPC/UP into effect and ensure the UK’s participation following Brexit;

Watch the comments, especially the parts about the UPC. One person wrote:

2. UPC: Confirmation the UK will stay? It hasn’t ratified yet so nothing to stay in. IP profession reps are looking after themselves – it is in their interests as we all know.

Another person wrote:

2. European patent attorneys will retain their right to assist practicing attorneys at law, so not a big deal for CIPA. The UK staying in the UPC if it is up and running by the time of Brexit seems problematical. Much simpler to enact legislation to the effect that UPC judgments in respect of European patents having effect in the UK will be extended automatically.

And the latest:

I see a fundamental problem with the continued mutual recognition of judgments post Brexit (let’s face it they don’t mean mutual in a two-way sense). The CJEU clarifies EU law (Directives and Regulations) in the context of maintaining one of the pillars of the Single Market, namely the free movement of goods and services. A primary aim for the CJEU is to advance the harmonisation of the internal market. A recital to this effect can be found in virtually every Directive of relevance to the IP area.
However the UK government has publicly declared that it will not seek to remain in the Single Market and it will actively seek other markets outside the EU. To that extent, opinions and judgments of the CJEU made after Brexit, even if they refer to Directives etc made before Brexit (ie those Directives which are to remain legally binding in the UK), will be made based on assumptions which are incompatible with or possiblty inimical to the interests of the UK after Brexit.
As has already been mentioned in the comments above, the UK courts may wish to take note, post Brexit, of relevant CJEU decisions, but ‘mutual recognoition’ suggests something rather more binding in its effect.

It is good to see that people are responding to such UPC jingoism; they too know that the UPC isn’t getting anywhere. There have been a massive PR campaigns behind UPC (not limited to FTI Consulting). Shall truth be victorious, Battistelli’s future will be very grim.

01.03.18

EPO Management Claims “Higher Quality Patents” and Everyone at the EPO Knows That It’s a Face-Saving Lie

Posted in Deception, Europe, Patents at 2:49 am by Dr. Roy Schestowitz

Starting the new year with old lies

Battistelli liar
Source (original): Rospatent

Summary: Structures and procedures that helped ensure high patent quality (e.g. the Boards of Appeal) are under unprecedented attacks and a new statement — with Benoît Battistelli’s fingerprints all over it — is this year’s first example of lies as the norm at the European Patent Organisation

THE EPO scandals and EPO lies are nothing new. They’re routine now; it’s almost mundane.

Check out the latest “news” item from the EPO’s site (warning: epo.org link). It was published yesterday, claiming “higher quality patents,” as usual. This is a lie. Every paragraph contains lies. Basically, the EPO continues to disregards the law, the truth, and human lives. It just cannot be trusted. To quote: “The European Patent Office has completed an internal re-organisation which will enhance the efficiency of its patenting process. The move is also expected to foster the timeliness of the patent granting procedure for users and contribute to higher quality patents and services.”

People are also complaining about the quality of services, but the EPO will never publicly acknowledge that. As usual, they’re interjecting Benoît Battistelli into everything in this “news” item. It’s him who has been responsible for many of the scandals.

“This is the best opportunity to get a closer look a the activity of the Boards of Appeal,” the EPO wrote yesterday, advertising internships again.

The Boards of Appeal urgently require actual full-time staff, not interns. Battistelli wants to destroy them through (DG3 as a whole). It’s a violation of the EPC. Nobody new was hired and they’ve just lost Patrick Corcogan, a valuable technical judge.

In light of suggestions that DG3 members ought to give testimonies in German courts (e.g. Patrick Corcogan, now in DG1, after his mistreatment), a new comment was posted to say that it’s rather unlikely to happen due to fear of retribution and “would it not rather prove the point that the Boards of Appeal are not truly independent if the President could forbid them from providing evidence on this subject in a court of law?”

Obviously.

If they cannot speak to the constitutional court about what Battistelli is doing, it will make opposition to the UPC harder.

Speaking of the UPC, IAM used to spread fake news about UPC in Spain [1, 2]; that culminated last year. This week it gives this “[r]ough translation – “From 1st January, Spanish SMEs and entrepreneurs which wish to do so can submit their PCT applications in English as well as Spanish, and conduct all proceedings before the Spanish Patent Office in English”” (Spanish here).

So forget about the UPC; they too know it’s not happening. They already come up with language bridges that aren’t UPC.

Donald Zuhn has just noted that UPC’s forever promises go quite a while back. “After making it onto our 2012 and 2013 lists,” he said, “the unitary patent and Unified Patent Court (UPC) initiatives took a three-year sabbatical from our top stories list.” It will probably disappear again this year because the UPC is stuck. It cannot move on.

“Alfalahi, Birss, Campinos, Cao and Nokia,” according to IAM, are the “IP [sic] personalities of 2017,” but when patent trolls like Kasim Alfalahi, judges like Colin Birss (rules for trolls' interests) and António Campinos (amid EPO scandals) are top picks, what does that say about IAM? Here’s what IAM’s editor said about Campinos:

Antonio CAMPINOS – In July, the Administrative Council of the European Patent Organisation did something that it had never done before and invited applications to be the next president of the European Patent Office (EPO). Previously, the appointment has been made behind closed doors following a secretive election process with no criteria given as to why the successful candidate got the job. But this time we know exactly what it is that the Council requires of António Campinos, who will succeed current incumbent Benoît Batistelli on 1st July 2018. The job spec provides a benchmark against which to judge Campinos’s success – and such a level of transparency has previously been unknown at the EPO and it would be nice to think it will be followed by a lot more in the future (though don’t hold your breath on that one!). It always looked like the job as described in the July announcement was a perfect fit for Campinos, who as executive director of the EU IP Office has established a strong reputation as a political operator while keeping sometimes fractious national agencies onside, ensuring a top class service for users and maintaining an amicable relationship with staff members. They are skills he is going to need in spades in his new job.

How gently worded; and the list goes on in part 2 (probably to be published later today)…

01.01.18

FRAND is Unfair, Unreasonable and Discriminatory; Ericsson is Still a FRAND Troll

Posted in Deception, Patents, RAND at 10:13 am by Dr. Roy Schestowitz

Ericsson troll

Summary: In commenting on TCL v Ericsson, particular sites give away their biases (and support of Ericsson trolls such as Unwired Planet, formerly Openwave, software.com, phone.com, and Libris, Inc)

THE EPO seems to be pushing the FRAND and software patents envelop these days. This means that a software patents tax may be silently creeping into Europe and there’s no way for people to be exempted from it. It’s attached to or bundled together with products.

“We aren’t exactly surprised to see those sites aiding Ericsson’s agenda. They have long been in cohesion or harmony with patent trolls’ agenda. Some of their clients are literal patent trolls.”Bristows, a fan of Ericsson’s patent troll Unwired Planet (which operates in London and brings business to the likes of Bristows), has just written about this new case. It’s not about Ericsson's trolling operations in Europe but about China. Richard Vary (Bird & Bird), who has similar interests to Bristows’, including the UPC, has been given the platform. They push that old “FRAND” lie. They are basically promoting FRAND tax on the first day of the year; Patently-O has just done the same thing, courtesy of Jorge Contreras. It’s introduced as follows: “The case involves the sale of cellular handsets by TCL, a Chinese firm reported to be the seventh largest global manufacturer of mobile phones. Ericsson is one of the largest holders of patents essential to the implementation of the 2G, 3G and 4G wireless telecommunications standards published by the European Telecommunications Standards Institute (ETSI) (standards-essential patents or SEPs). Under ETSI’s policies, ETSI participants are required to grant licenses under their SEPs to implementers of ETSI standards on terms that are fair, reasonable and non-discriminatory (FRAND).’

Ericsson — like Microsoft — is trying to tax every single phone and is even using trolls for this purpose. It publicly pretends to be reasonable, usually by detaching itself from the trolls and disguising the patent stacking ploy.

We aren’t exactly surprised to see those sites aiding Ericsson’s agenda. They have long been in cohesion or harmony with patent trolls’ agenda. Some of their clients are literal patent trolls.

12.29.17

Raw: Battistelli the Patent Office Shark Shouting From the Rooftop (Isar)

Posted in Deception, Europe, Patents at 6:13 pm by Dr. Roy Schestowitz

Translation: “It is not my fault that the wife [Bergot] of my closest French collaborator [recently promoted closer to the top] is neither German, nor Dutch, nor British, nor Belgian, nor Swedish, nor Danish , nor Finnish, nor Italian, nor Romanian. What has this to do with nepotism?”

Original/full: Translation of Communiqué No 26 [PDF]

Battistelli the Patent Office Shark

Summary: SUEPO responds to Communiqué No 26, in which Battistelli — as usual — blames truth-tellers, notably staff representatives, and promotes the horrible Unitary Patent (UPC) — advancing that illusion that it was about to happen more than half a decade ago! (they have always pretended that it was just around the corner)

12.28.17

UPC IT Working Group is Chasing Rainbows and Unicorns

Posted in Deception, Europe, Patents at 3:24 pm by Dr. Roy Schestowitz

Team UPC continues dumping money into software that won’t be used by anybody

Unitary Patent unicorn

Summary: Bristows, one of the most misleading parties among Team UPC, maintains the illusion that Unitary Patent is just around the corner; in reality, the whole thing comes tumbling down along with the EPC

“On 22 December 2017,” Bristows’ Luke Maunder wrote today about the dead-end UPC, “Dario Pizzolante, the Coordinator of the IT Working Group, reported by email on its work on establishing the Unified Patent Court (UPC) IT system.”

But what kind of progress can there possibly be when the UPC is stuck in the middle of nowhere? He says work “will continue during 2018 in preparation for the opening of the Court.”

Got to maintain the illusion of “progress”…

“They might as well stop development and cease investment of money in it as nobody is going to use it.”Someone must be delusional because, as we explained yesterday, it’s unlikely that any concrete progress will be made next year. They might as well stop development and cease investment of money in it as nobody is going to use it. There’s a very serious constitutional complaint in Germany right now and the latest scandal implicating Battistelli and the Boards of Appeal will certainly reinforce this complaint. Earlier this week someone wrote: “I’m not sure if the EPC says what happens if the President disobeys an order (eg to publish a decision) from the Enlarged Board.”

Soon came this reply: “The President did not disobey any order. It was the AC that decided that there would be no publication.”

If true, it’s another new scandal in the making. As another comment put it today:

Interesting. Is there any publicly available documentation that can confirm your assertion?

Another question: what authority does the AC have to overrule (or to permit the President to ignore) a decision of the Enlarged Board? I cannot see anything in the EPC that grants the AC such sweeping powers.

The EPC is long forgotten and abandoned. We have given many examples where Battistelli blatantly violated the EPC and the AC allowed him to get away with it. Under such unacceptable circumstances it’s only rational to conclude that the constitutional complaint in Germany remains in fact, will go ahead, and will postpone things another 2-3 years if not indefinitely.

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