The EPO‘s Battistelli has lost his main UPC ally in the UK, Lucy Neville-Rolfe
Summary: The issues associated with the UPC, especially in light of ongoing negotiations of Britain’s exit from the EU, remain too big a barrier to any implementation this year (and probably future years too)
THE UPC was a big topic, more so towards the end of last year, especially because of Lucy’s ludicrous statement about it and then her resignation/firing, culminating in yet more uncertainty and a limbo. SUEPO correctly (if not belatedly) took note of top posts in the patent microcosm’s sites. On IAM it wrote: “IAM blog’s top 20 most-read stories of 2016 (IAM Magazine, 22 December 2016). EPO info can be found at reference points 9, 11, 15 and 16.”
“A lot of the above articles are actually not about the EPO directly but about the UPC, which Battistelli keeps promoting.”On Kluwer Patent Blog (Team UPC) SUEPO wrote: “Brexit and EPO unrest in top ten of most popular posts Kluwer Patent Blog in 2016 (Kluwer Patent Blog, 01 January 2017). EPO info can be found at reference points 1, 3, 5, 7 and 10.”
As we noted here a couple of days ago, IP Watch too shared some statistics and noted that articles about the EPO topped their list. A lot of the above articles are actually not about the EPO directly but about the UPC, which Battistelli keeps promoting. Battistelli lies a lot about the UPC. According to what he told the media in 2015 (his so-called ‘media partners’ even printed these lies), the EPO was in great shape and UPC would have been a done deal and ready to roll last year. We recently wrote the following series which explains why, as long as the UK intends to leave the EU, the UPC is basically stuck or deadlocked. Brexit and UPC are inherently incompatible. Revisit the following:
Towards the end of this series we quoted Dr. Luke McDonagh (University of London’s Law School) quite a lot. He is a UPC sceptic in the sense that he does not believe it can happen and next month he will speak about it, debating with/against the patent microcosm. [via]
“Brexit and UPC are inherently incompatible.”McDonagh is not a patent attorney and he is definitely not part of the patent microcosm, so his input on this subject has been refreshing and valuable. We look forward to his talk and maybe even reports about it (probably not only to be covered by the patent microcosm’s sites). From the description of this event: “At this event Dr Luke McDonagh of The City Law School will launch his new book ‘European Patent Litigation in the Shadow of the Unified Patent Court’ (Edward Elgar, 2016) with a panel discussion on the impact of Brexit on patent litigation in the UK and elsewhere in Europe, with a particular focus on the forthcoming Unified Patent Court and future relations between the UK and EU.”
The book’s description can be found here (first chapter free, as mentioned here before) and to quote from the outline: “Making use of evidence from within the business and legal communities, this book highlights the key issues concerning the new system and examines what the impact of the reforms is likely to be on Europe’s patent litigation system in the near future.”
In its current form, the UPC is in impasse/deadlock. It won’t become a reality unless something quite radical happens. █
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Producing nothing, insulting everybody
Summary: A look at some of the latest spin and the latest shaming courtesy of the patent microcosm, which behaves so poorly that one has to wonder if its objective is to alienate everyone
THE patent reform in the US (AIA, especially after Alice) brought us the blessing known as PTAB, which is responsible for the immediate and permanent elimination of many software patents and the reduction in litigation. It lowered confidence in even more of these software patents (potentially hundreds of thousands of patents).
“”Idiotic”, “impotence”… what next? Will Watchtroll accuse judges and PTAB of rape and pedophilia too?”PTAB continues to scare people who made a living from software patents (not software, just patents). With his habitual insults directed at PTAB, Gene Quinn (Watchtroll) continues to fling criticisms at PTAB, bemoaning the latest decision which he summarises with the word “idiotic” in the image (and IBM’s patent chief actually boosts these people, who also attack judges! See the image at the top!).
“Idiotic”, “impotence”… what next? Will Watchtroll accuse judges and PTAB of rape and pedophilia too? Frankly, these people are a lot more rude than anything we have ever seen and some of those people actually advertise themselves as professionals. “If a machine is patent ineligible bc it is an abstract idea,” Watchtroll wrote in Twitter, “no point in keeping powder dry. The 101 fight is now.”
He wants a “fight”.
“Telling Watchtroll about software development is an exercise in futility; he doesn’t even know how software works.”Well, the Section 101 fight is over. The patent microcosm lost. Most software patents are dying and this is good because, as Benjamin Henrion put it in his reply, “patents also destroyed software development.”
Telling Watchtroll about software development is an exercise in futility; he doesn’t even know how software works. I debated this in length with him and then he chickened out, blocking me in Twitter.
Watchtroll (a front for the patent microcosm, not just one person) is now lobbying Trump to makes Patent Chaos Again (as expected, with lots more of this lobbying to come).
“These have included enabling the PTO to attack patent validity in a second window,” says the article, “attacking classes of inventions such as software and medical diagnostics…”
“PTAB is a lot more professional because these financial incentives hardly exist, which makes their staff more objective.”Nobody is “attacking” and there is no “fight”. As we pointed out here before, the attorney known as Patent Buddy uses words like “survive”, “kill” etc. rather than use terms that don’t pertain to war. The people actually call PTAB a “death squad!” Picture that for a connotation.
Here is Patent Buddy saying about the above case: “In the MRI-101 Invalidation Decision, the PTAB Reversed the Examiner finding eligibility under 103, but not 101.”
Examiners at USPTO have historically been rewarded to just award lots of patents, irrespective of quality or prior art (which can take a long time to assemble and study). PTAB is a lot more professional because these financial incentives hardly exist, which makes their staff more objective.
Earlier this week we found this lawyers’ site claiming that “[t]he tide may be turning in the Section 101 landscape and it is making waves in the patent practice area.” No, it’s not. The patent microcosm lives in wonderland and only pays attention to a few CAFC decisions that suit their agenda. The article says that CAFC’s “latest rulings on the issue—Enfish v. Microsoft Corp., BASCOM Global Internet Services v. AT&T Mobility, and McRO v. Bandai Namco Games America—possibly signal a new direction for patent eligibility in a post-Alice era. On the damages front, the U.S. Supreme Court grabbed headlines with its highly anticipated ruling in Samsung Electronics v. Apple, the first design patent case to be examined by the Court in over a century. Our panel of experts discussed these issues as well as patent trends on the horizon in 2017.”
“There’s no “win”, it’s not a game. It’s also not a “war” or a “fight”.”We actually debunked this just recently (December 27th), in relation to similar claims about CAFC cases. Less than a handful of cases (less than one hand’s fingers) don’t change years of patent invalidations, including by Judge Mayer, whom Watchtroll is insulting (see above again).
CAFC is soon going to decide whether challenging low-quality USPTO patents (through PTAB) is acceptable, says MIP, noting about a particular case that CAFC “has granted en banc rehearing in Wi-Fi One v Broadcom. The court will consider whether judicial review is available for a patent owner to challenge the USPTO’s determination that the petitioner satisfied the timeliness requirement governing the filing of IPR petitions” (these are the petitions that typically initiate invalidation by PTAB).
Regarding this new article from lawyers’ media, one person wrote, “CAFC vs. PTAB decision discrepancies: Who wins?”
There’s no “win”, it’s not a game. It’s also not a “war” or a “fight”. In fact, most of the time CAFC agrees with PTAB, so the framing of infighting is simply incorrect and inappropriate. To quote the actual article:
Apple Inc. has won at least a moral victory in a fight with the U.S. Patent and Trademark Office over touchscreen technology.
The U.S. Court of Appeals for the Federal Circuit agreed with Apple on Tuesday that the patent office failed to sufficiently explain why Apple’s method for reconfiguring touchscreen icons is unpatentable due to obviousness.
Apple applied for a patent in 2009 on its method of using a sustained touch to activate an icon, which then allows a person to drag the icon to a new location on the screen. A patent examiner found the claim obvious in light of separate prior inventions on sustained touch and dragging. Combining the two inventions “would be an intuitive way” to rearrange touchscreen icons, the examiner concluded and the Patent Trial and Appeal Board affirmed.
This is just one of those exceptions where the CAFC does not fully agree with PTAB and wants the judgment reassessed.
The bottom line is, things are progressing in a positive direction as the US patent system persists in improving patent quality. It’s well overdue. Here we have a new case which “focuses primarily on §101 issues.”
“The bottom line is, things are progressing in a positive direction as the US patent system persists in improving patent quality.”To quote: “The oral argument of the week is MACROPOINT, LLC v. FOURKITES, INC., No. 2016-1286 (Fed. Cir. Dec. 8, 2016) decided by a Rule 36 judgment.”
Those who claim that Section 101 is losing its potency or that CAFC is at war with PTAB or anything like that are being extremely dishonest and typically — if not always — they are the ones directly profiting from these misconceptions/distortions.
Watchtroll and its ilk need to go away or not be taken seriously. Time after time we have demonstrated that the site’s purpose is to attack those who don’t agree (even judges!) and sometimes to organise 'echo chamber' events so as/in which to lobby officials.
Watchtroll is to the patent world what Trump is to civilised politics. █
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European Digital SME Alliance is legitimate (grossroots), not AstroTurfing like Team UPC
Summary: Another example of UPC promotion from within the EPO (a committee dedicated to UPC promotion), in spite of everything we know about opposition to the UPC from small businesses (not the imaginary ones which Team UPC claims to speak ‘on behalf’ of)
YESTERDAY we wrote about how the Chairman of the Select Committee promoted the UPC based on false claims. It turns out it wasn’t a one-time thing as this document form the Central Staff Committee
[PDF] contains yet another example of misleading if not false claims. The transcript in German says: “Es ist mir eine Freude, Ihnen und dem Engeren Ausschuss zum Abschluss der Verhandlungen zum Einheitlichen Patent als Vertreter des Personals gratulieren zu dürfen. Die Patentprüfer, die zukünftig das Einheitliche Patent prüfen werden, sind hervorragend ausgebildete Ingenieure und Naturwissenschaftler. Viele davon sind promoviert und haben respektable Erfahrung in Forschung und Industrie gesammelt. In ihrer Arbeit sehen sich die Kollegen streng dem EPÜ verpflichtet. Und gerade deswegen freuen wir uns, dass die Artikel 142 bis 149 EPÜ nun mit Leben gefüllt werden. Auch die IGEPA hat sich immer für das Einheitliche Patent ausgesprochen.
“It’s unreasonable to expect that an Office which is run by a notorious tyrant can produce something which serves the public rather than Battistelli and his corporate ilk.”“In ihrer täglichen Arbeit leben die Kolleginnen und Kollegen den europäischen Gedanken. Die Wirtschaftslandschaft in Europa ist geprägt durch kleine und mittelständische Unternehmen. Ein starkes und sorgfältig geprüftes Einheitliches Patent kann dazu beitragen, dass nicht nur die Großindustrie, sondern auch die KMUs davon profitieren. Leider müssen wir beobachten, dass für die Arbeit in den dreiköpfigen Prüfungsabteilungen kaum noch Zeit bleibt. Die Effizienzsteigerungen, von denen Ihnen hier regelmäßig berichtet wird, haben eben auch ihre Schattenseiten.
“Allerdings mag es ja durchaus in Ihrem Interesse sein, meine Damen und Herren, die Struktur des europäischen Patentsystems und der Europäischen Patentorganisation anders zu gestalten. Sie haben mit Artikel 172 EPÜ die Möglichkeit, eine Konferenz der Vertragsstaaten einzuberufen. Vielleicht genügt auch schon eine Konferenz der Minister der Vertragsstaaten nach Artikel 4a EPÜ, die eigentlich schon hätte stattfinden müssen, weil sie ja laut EPÜ mindestens alle fünf Jahre stattfinden muss. Ich kann Ihnen versichern, dass die Kolleginnen und Kollegen dann zu dem Erfolg des Einheitlichen Patents beitragen werden und spreche Ihnen abschließend meinen herzlichen Glückwunsch zu dem erreichten Abschluss aus.”
Automated translations of these paragraph suggest that the above admits “the economic landscape in Europe is characterised by small- and medium-sized enterprises. A strong and carefully tested Unitary Patent can help not only the large industry, but also benefit SMEs.”
However, a year later we know that nothing has changed and the UPC would harm everyone but large corporations (some of them foreign) and patent trolls.
If Team Battistelli is so eager to make the UPC a reality in spite of what the European public keeps saying, then it’s clearly an antidemocratic institution whose nature we shall continue to expose. It’s unreasonable to expect that an Office which is run by a notorious tyrant can produce something which serves the public rather than Battistelli and his corporate ilk. There’s an emergent pattern here — one that EPO staff is too familiar with by now. If EPO becomes an instrument of domination or occupation, then it needs to be overhauled, starting from the top. █
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From Panel 2: Development of the European Patent System
Summary: The UPC is neither desirable nor practical, especially now that the EPO lowers patent quality; but does the Select Committee understand that?
The EPO‘s Web site describes the Select Committee’s mission as follows: “The legal basis for the Select Committee is Article 9(2) of Regulation (EU) No 1257/2012 (“the Regulation”) and Article 145 EPC. The committee has been set up by the 25 member states participating in the unitary patent, to supervise the EPO’s activities related to the tasks entrusted to it in the context of unitary patent protection. The committee’s competences include the setting of fees.”
“According to insiders, Battistelli is trying to replace examiners with machines, paving the way to even worse patent quality.”According to this Staff Committee report
[PDF] on the 147th meeting of the Administrative Council (early 2016), the following statement was made in German by the Select Committee: “Wir begrüßen jeden Fortschritt in Richtung des einheitlichen Patentschutzes. Ich versichere Ihnen, dass das Personal hochqualifiziert ist, um das Einheitliche Patent mit sehr guter Qualität zu prüfen. Wie Sie wissen, werden europäische Patente oft nur in wenigen Ländern validiert. Mit dem Einheitlichen Patent wird es aber in vielen Staaten von uns erteilte Monopole geben. Daher ist es wichtig, dass eine sehr hohe Qualität gewährleistet ist. Ein sorgfältig geprüftes Patent benötigt aber Zeit. Wenn Sie auf Effizienz schauen, sollten nicht nur Produktionszahlen im Vordergrund stehen. Wenn die erteilten Monopole für die Wirtschaftslandschaft in Europa nützlich sein sollen, ist eine unbegrenzte Effizienzsteigerung nicht denkbar. Wir sind daran interessiert, immer besser zu werden. Eine Unterstützung durch IT-Tools ist sicher sinnvoll, aber versprechen wir uns nicht zu viel davon. Recherche und Prüfung muss immer von Menschen gemacht werden, wenn sie sinnvoll sein soll. Software ist und bleibt immer nur ein Hilfsmittel. Beachten Sie also, dass eine Steigerung der Effizienz bedeutet, dass pro Patentanmeldung im Durchschnitt weniger Zeit investiert wurde. Der Patentprüfer hat weniger Zeit für die Bearbeitung der Anmeldung gehabt. Wir sind bereit, zur hohen Qualität des Einheitlichen Patents beizutragen. Hierzu benötigen wir aber eben auch genügend Zeit, und ich hoffe darauf, dass Sie dies nicht außer Acht lassen werden.”
It says something along the lines of “we welcome any progress towards unitary patent protection.”
Obviously, as this is their mission, but the informed public is against it.
“I assure you that Staff is highly qualified to test the Unitary Patent with very good quality,” the above says, but under Battistelli (UPC booster) patent quality already nosedives.
“EPs are being invalidated in courts, yet Battistelli remains unaware of this.”The Chairman of the Select Committee (we assume Jérôme Debrulle) says “it is important to have a very high quality is guaranteed.” Well, that’s already a failed objective. Battistelli ruined the EPO, which certainly cannot be trusted to provide patents with unitary (Europe-wise and beyond) effect in prosecution.
“A support from IT tools is certainly useful,” the Chairman says, “but … research and testing must always be done by people…”
According to insiders, Battistelli is trying to replace examiners with machines, paving the way to even worse patent quality. There’s Early Certainty that Battistelli is losing his mind.
“We are ready for the high quality of the Unitary Patent,” the Chairman says, but what quality is that? EPs are being invalidated in courts, yet Battistelli remains unaware of this. █
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The very antithesis of the Office under Battistelli’s horrible regime…
Reference: Social democracy
Summary: Orwellian misuse of terms by the EPO, which keeps using the term “social democracy” whilst actually pushing further and further towards a totalitarian regime led by ‘King’ Battistelli
STAFF of the EPO is suffering. Staff representatives suffer even more.
The following Open Letter, published earlier this year, helps reveal just to what extent the union-busting activities of Battistelli have contributed to fear and erosion of staff representation in an institution that, without these safeguards, is basically no better than North Korea, with Battistelli as its “Supreme Leader”. To perfume it a little, Team Battistelli attempted to
hijack adopt the term “Social Democracy” (something akin to the term used by Bernie Sanders in the US and in various other countries). Here is the letter in full (except the names of representatives, as they are already subjected to enough abuse from Battistelli and his goons):
Mr Benoît Battistelli
President of the EPO
ISAR – R.1081
Dear Mr Battistelli,
The so-called “Social democracy” was one of the policies introduced in July 2014 under the HR roadmap (CA/39/14), with claimed goals to “fill a legal vacuum, adapt and modernise [the EPO] social framework and provide improvements for a more efficient management of the Office.”..
After almost 2 years of implementing these policies none of these goals have materialised. Quite to the contrary and as pointed out by the AC in its recent resolution, the reality is a social situation that gives reasons for grave concern and has been acknowledged as a crisis, not only internally but by the media and other external, interested circles. The conclusion is that this situation is unsustainable and action will be required to meet the challenges set by the AC in its March resolution.
1. “Social Democracy” has a flawed design
The shortcomings of the “social democracy framework” have been pointed out repeatedly by the CSC and SUEPO, both during the statutory (albeit formally superficial) consultation processes and in diverse publications since its introduction, all to no avail.
A non-exhaustive list of unanswered communications is set out in the Annex.
2. Actual “Social democracy” is even worse than anticipated
Unfortunately, the reality of “Social Democracy” has gone well beyond Staff’s already pessimistic forecast. Just to cite some key points (see the CSC letter to the AC for more details):
- Despite all the promises made, the effective time allocated to Staff representation work has been reduced by well over 50% compared to historical figures (in accordance with Communiqué 49, the framework formerly in place). Internal documents show that this is not an accident but according to plan.
- Despite declarations that the new framework would “enhance the representativity and functions of both the Central and Local Staff Committees, regular arbitrary restrictions on nominations, duty travel and training have led to substantial disruptions to the internal functioning of these staff representation bodies. To summarise, staff representatives have been systematically hindered in organizing themselves in an autonomous, independent manner.
- The existing provisions for filling vacated positions, have not been followed: for instance, Mr Brevier (CSC deputy member from The Hague) has still not been allowed, since October 2014, to replace a CSC full member who resigned, He is still not allowed to dedicate 100% of his time for Staff Representative duties, due to an investigation, initiated by Ms Bergot now more than a year ago.
- Other staff representatives have also been targeted by the same and other investigations, which have already resulted in disciplinary procedures, the dismissal of two elected staff representatives and the downgrading of another one. These sanctions have been perceived as political rather than legal actions and were commented to be unfair and disproportionate disciplinary measures by both the media and the AC.
- Many Staff Representatives have in the meantime resigned because of perceived pressure (threats) from the administration and undue work pressure from their hierarchy. Of those remaining, many have suffered severe damage to their health, resulting in e.g. sickness, depressions or even burn-out.
To conclude, the work environment for staff representatives has become unsustainable. Maintaining the present framework amounts to harassment, is irresponsible and has led to severe damages both to the functioning of the institution representing Staff interests in the EPO and to the health of the individuals acting therein.
3. Negligent, unsustainable and not fit to meet the clear challenges set by the AC
The so-called “Social-Democracy” framework no longer allows the nomination of non-elected staff representatives to any working groups and statutory bodies. This has led to a situation where grooming of new staff representatives and delegation of work are impossible.
Combined with unfilled positions, due to resignations and dismissals, the result is today, that particularly in the big sites, the effective work capacity of available “fully fit and functional” staff representatives has reached an all-time low, which is not compatible with their duty to fully represent staff interests. More pertinently, this has become an issue of great concern in the context of the request made by the AC in its March resolution.
Clearly the situation is not sustainable in the long run and urgent action is required both to protect the health of the individual staff representatives and their capacity to genuinely and thoroughly represent staff interests.
4. Urgent action required: request authorisation to delegate work to non-elected Staff members
In the medium term, an in-depth review of the so-called “social democracy” is not only expected but required. The CSC is of the opinion that essential features of Communiqué 49 should be reconsidered and built in to the framework to overcome the obvious shortcomings of the present framework and render it more in line with democratic, best-practice standards used in similar international organisations in western civilisations.
In the short term, urgent action is required now to redistribute the workload. Hence the CSC herewith requests the President to immediately allow Staff Committees to delegate autonomously tasks to non-elected staff representatives as experts and to provide the necessary time to adequately compensate them.
The Central Staff Committee would like to stress that the Office’s apparent lack of due diligence on this matter, i.e. not following the recommendations outlined above, will continue to seriously jeopardise the announced negotiation process. It constitutes institutional harassment of the staff representation and, if continued, may lead to further complaints.
The Central Staff Committee
We confirm that this letter was legitimately decided and produced by the Central
1 Pursuant to Article 35(3) ServRegs, the Central Staff Committee shall consist of ten full and ten alternate members.
The CSC presently consists of 9 full and 8 alternate members, because two have resigned in December 2014, one has been dismissed in January 2016 (against the recommendation of the Disciplinary Committee) and one refused replacement of a full member against Article 7(3) of Circular 355.
One full member of the CSC has been downgraded in Jan 2016 (against the recommendation of the Disciplinary Committee). In fact, the Office has launched investigations and disciplinary procedures against several other Staff representatives as well, affecting negatively their health.
Principal Director 4.3
Members of the WG SR resources
Non-exhaustive list of communications on the shortcomings and events of the so-called “Social-Democracy”:
- 23/06/2015 social democracy: staff representation dismantling is on track!
- 18/03/2015 [csc] letter to heads of delegation; restoration of social dialogue at the epo
- 08/12/2014 social democracy vs social peace
- 14/10/2014 [csc] battistelli’s “social democracy” – staff representatives banned from attending the administrative council for the first time in the history of the office
- 24/03/2014 letter to the members of the admin. council ” ‘social democracy’ will be quickly outdated”
- 24/03/2014 letter to ac delegations – “social democracy” – mr battistelli’s reform of the staff representation
- 24/01/2014 meeting the president 27.01.14 – social democracy
- 18/12/2013 trias politicabeyond the problems, the way out: “feuille de route” for social democracy by suepo
- 23/10/2014 [csc] the organisation of your central staff committee
- 26/05/2014 letter of vp1 to the local and central staff committee of 26.05.2014 – social democracy in progress
- 02/04/2014 reform of staff representation “social democracy”
- 12/03/2014 opinion of the members of the gac appointed by the staff committee on gac/doc 7/2014 – “social democracy”
- 14/03/2014 report of the 257th meeting of the gac on 4.3.2014 in the hague
- 21/02/2014 letter to mr r. lutz – request concerning “gac 7/14 – social democracy”
- 07/02/2014 social democracy reform of mr battistell
- 05/12/2013 letter to b. battistelli: working group social democracy
The exploitation or misuse of the term “social democracy” is rather gross. There is neither of those two things at today’s EPO. Battistelli does not understand democracy and probably never will. As staff representatives put it earlier this year
[PDF] in another context, “President Battistelli has broken an EPO promise to staff to be properly involved in the management process in a Healthcare Insurance Advisory Committee in exchange for the additional risk put on them. President Battistelli seems to dislike advice: not only has he failed to create HIAC, he disbanded General Advisory Committee (GAC) and replaced it with the General Consultative Committee which, although fully populated by Vice-Presidents, is an inferior statutory body when compared to the GAC.”
In other words, Battistelli allows only Team Battistelli, i.e. those totally loyal to him, to decide on matters that don’t even involve them. It’s neither social nor democratic. █
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They even organise events to push their agenda
Summary: The latest facts and figures about software patents, compared to the spinmeisters’ creed which they profit from (because they are in the litigation business)
atest [Section] 101 Statistics Show Improved Validity Prospects at Dist. Cts, Not CAFC or PTAB,” said a patent attorney the other day, reinforcing our response to Mullin's article (titled “These three 2016 [CAFC] cases gave new life to software patents”). The reality in the US right now is undeniably bad for software patents, which are being chopped at PTAB’s block and CAFC’s block. Patent maximalists are trying to pretend otherwise and we repeatedly rebut their arguments, only to see these arguments resurfacing over and over again, courtesy of the usual suspects. If the lies are repeated often enough, then maybe prospective applicants (or clients in need of legal representation) will actually believe them.
“The reality in the US right now is undeniably bad for software patents, which are being chopped at PTAB’s block and CAFC’s block.”The other day we saw this new article titled “Assessing USPTO’s Memo On Software Claim Patent Eligibility”; we keep wondering if USPTO officials will become as rational and realistic as US courts. Right now they just strive to rubberstamp whatever they can and those who pay the price for it are both plaintiffs and defendants; only patent law firms profit from it.
“This method of presentation involves storing and processing applications or parts of applications at a user’s local personal computer rather than at a remote server.”
–PatentDocsAs a side note — although an important note nonetheless — we can’t help but notice that IBM keeps trying to corrupt the system though its former Director, who had worked for IBM beforehand. IBM definitely used to be a (GNU/)Linux friend. Now it’s just an Apple promoter/pusher and a malicious patent aggressor. Yes, IBM has been rather busy going after small companies using software patents. Some of these companies, seeing what a menace IBM is becoming, belatedly turn to PTAB in an effort to invalidate these patents of IBM. Here is one report about IBM’s software patent that will quite likely be invalidated: “The ’967 patent relates to a method for presenting applications in an interactive service featuring steps for generating screen displays of the service applications at the reception systems of the respective users. This method of presentation involves storing and processing applications or parts of applications at a user’s local personal computer rather than at a remote server. This helps avoid possible server bandwidth issues that can be caused by the server being required to serve too much data to multiple users simultaneously. The ’967 patent lists many applications that can take advantage of this method of presentation, including games, news, weather, movie reviews, banking, investments, home shopping, messaging, and advertising.”
This is pretty trivial. It’s akin to caching.
Now watch what David Kappos is cited as saying again. “US is losing the innovation war,” he is quoted by IBM as saying, “to China” (where IBM finds buyers for its failing business units, notably Lenovo).
“Kappos is a paid lobbyist,” Benjamin Henrion noted, “working for patent trolls such as Microsoft or IBM.”
“IBM’s Schecter would know,” I replied, as “he’s IBM’s patent chief ^_^ so [he] has the ‘receipts’…”
What we have here is IBM citing as ‘proof’ a former IBM staff who is now an IBM-funded lobbyist for software patents. Look how dirty (as in dirty play) these people are…
And as if the greater the number of patents, the better… who would be foolish enough to actually believe this?!
“China pushing for software patents,” Henrion noted in relation to another Schecter tweet, “apparatus claims relating to software can contain both hardware and “program” components…” (links to “China Files A Million Patents In A Year, As Government Plans To Increase Patentability Of Software”)
“Kappos is a paid lobbyist working for patent trolls such as Microsoft or IBM…”
–Benjamin HenrionChina is their new bogeyman. One of these people added: “But USA keeps working on UN-patentability of software. What’s wrong with this picture?”
Nothing is wrong with this picture. It’s a good decision. End software patents, end patent trolls.
“China is plain wrong on this,” Henrion wrote, separately noting (to Marietje Schaake regarding software patents in Europe) that it’s “like the unitary patent lie that it won’t affect software development.”
On a final note, worth seeing is this rant from Watchtroll and 'gang' about end of software patenting (or demise thereof). “Stepping Back from the Cliff: The Year Congress Didn’t Cave to the Anti-Patent Lobby” says the title. They’re currently taking stock of a terrible year for them [1, 2] — a year which saw the demise of patent trolls. Watchtroll continues to attack PTAB for doing its job and we can’t help wondering why IBM’s Schecter treats this like some kind of ambassador for his cause. Does IBM really want to be so closely associated with Watchtroll, who even resorts to attacking judges?
For a more balanced summary of recent events, see “Year in Review: The Top-Five Legal Developments of 2016″ (posted days ago). It has a section about software patents.
“…anti patent trolling would be better, even if trolling is considered pejorative.”
–Benjamin HenrionThose who are against software patents, notably people who actually write software, are not “anti-patent” as Watchtroll tries to put it. In fact, as Henrion put it, “anti-patent is a gross and blunt exaggeration here. […] anti patent trolling would be better, even if trolling is considered pejorative.”
Patent trolls, in the majority of cases, rely on software patents. Take the latter away to get rid of the former. █
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Summary: Selective emphasis on very few cases and neglect of various other dimensions help create a parallel reality (or so-called ‘fake news’) where software patents are on the rebound
“In 2014,” Joe Mullin recalls in a new article (published earlier today), “the US Supreme Court dealt a major blow to software patents. In their 9-0 ruling in Alice Corp v. CLS Bank, the justices made it clear that just adding fancy-sounding computer language to otherwise ordinary aspects of business and technology isn’t enough to deserve a patent.”
“Since then,” he continues, “district court judges have invalidated hundreds of patents under Section 101 of the US patent laws, finding they’re nothing more than abstract ideas that didn’t deserve a patent in the first place. The great majority of software patents were unable to pass the basic test outlined by the Supreme Court. At the beginning of 2016, the nation’s top patent court had heard dozens of appeals on computer-related patents that were challenged under the Alice precedent. DDR Holdings v. Hotels.com was the only case in which a Federal Circuit panel ruled in favor of a software patent-holder. The Alice ruling certainly didn’t mean all software patents were dead on arrival—but it was unclear what a software patent would need to survive. Even DDR Holdings left a teeny-tiny target for patent owners to shoot at.”
“The patent law firms want us to believe that software patents are rebounding or something, even though CAFC invalidates them as quickly as ever, SCOTUS repeatedly rejects attempts to override Alice, and the number of lawsuits involving software patents sank considerably this past year, based on numerous comprehensive/exhaustive surveys.”Ignoring some of the biggest cases of 2016, Mullin then argues that “[j]udges on the US Court of Appeals for the Federal Circuit found three more cases in which they believe that software patents were wrongly invalidated. What once looked like a small exception to the rule now looks like three big ones.” What about that one single CAFC case involving not one but three invalidations, courtesy of the judge some hold responsible for software patents in the US? Here is a new article about it (bumped earlier today):
Intellectual Ventures recently filed for a rehearing en banc in Intellectual Ventures LLC v. Symantec Corp. and Trend Micro Inc. for a decision made in the U.S. Court of Appeals for the Federal Circuit that invalidated three of its software patents. The variety of patents at issue, colloquially dubbed the “Do-It-On-A-Computer” patent, have been increasingly invalidated after the U.S. Supreme Court’s decision in Alice Corp. v. CLS Bank International.
The Intellectual Ventures loss (covered here many times at the time) isn’t the only such loss this year (for software patents at CAFC). We actually covered quite a few other such cases, but the patent microcosm prefers to obsess over just 3 or 4 cases, i.e. less than it takes one hand’s fingers to count. In our humble assessment, Mullin, who is an excellent journalist, fell prey/victim to the endless propaganda from the patent microcosm. The patent law firms want us to believe that software patents are rebounding or something, even though CAFC invalidates them as quickly as ever, SCOTUS repeatedly rejects attempts to override Alice, and the number of lawsuits involving software patents sank considerably this past year, based on numerous comprehensive/exhaustive surveys. █
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Fenwick & West’s Bilski Blog is not a service; it’s marketing
Summary: Looking at some of the latest promotions of software patents in the US and where this is all coming from (and why)
THE stature of software patents proponents isn’t quite what it used to be (they speak from a position of weakness now) and potency of software patents is at an all-time low. As one legal site put it the other day, a lot of these people now hope that Trump will magically change something (to their advantage). The article states that “Brendan S. Lillis, an associate at Phillips Lytle LLP, concentrates his practice in all areas of intellectual property law, with particular emphasis on patent preparation and prosecution and opinion work in the software, mobile applications and electronic arts.”
“We are generally quite open and frank about the parasitic nature of most patent law firms out there.”The problem is, Lillis works for an industry that profits from litigation and applications that precede litigation. They view things from an entirely different perspective, in the same way that an arms industry views peace negatively (or apprehensively, if they’re publicly polite about it). A legal firm, Banner & Witcoff Ltd, has just given small businesses some really bad advice (to pay legal firms), but what is the point if a small business can barely even afford going to court?
We are generally quite open and frank about the parasitic nature of most patent law firms out there. They pretend to care about “small businesses”, the “small inventor” etc. but all they care about is themselves and huge corporations that bring them the most income (for protectionism). Don’t fall for their marketing pitch!
“Federal Circuit judges spar over software patents,” said the headline from lawyers media the other day. “Will they ever agree?” (behind paywall)
“Notice how, at the same time, pro-software patents sites such as IAM want us to believe that CAFC suddenly loves software patents and things are somehow changing.”Well, in the majority of cases the Court of Appeals for the Federal Circuit (CAFC) rules against software patents, which is all one needs to know. Fenwick & West’s Sachs kept track of pretty much all these cases and generated charts based on these. These charts were very helpful. But what Sachs means by “gift” is software patents. These people are making no (successful) endeavor to hide their agenda/subjective interpretation. Instead of showing some objectivity they are just promoting their own business (profit). They are producing and showing lots of charts and along/between the lines they also interject opinions about whether the outcome is desirable or not — quite unprofessional if this was scholarly work. What they are trying to accomplish at the blog (if it can be called that, as it’s growingly looking like marketing) is squashing of Bilski and Alice. Wolves in sheep’s clothing is what they are and they are exploiting the name Bilski (of the famous patent case) to do this. To quote from their latest post, “Alice Brings a Mix of Gifts For 2016 Holidays”:
As I previously reported, the monthly data showed a drop in the number of invalidity decisions as well as an overall downward trend in the invalidity rate for district court decisions. In December thus far there’s been an uptick in such invalidity decisions (seven thus far) and a few more may issue in the before the year is out. The dotted line above shows the invalidity over three month periods, to smooth out the monthly fluctuations; overall the trend has been downward.
Nonetheless, in October, I cautioned that “I would prefer to see these numbers hold for several months,” because the Federal Circuit “continues to affirm more invalidity decisions than it reverses.” This fact still holds true: there have been nine decisions by the Federal Circuit since October, and they have affirmed ineligible subject matter in seven of them (77%).
Notice how, at the same time, pro-software patents sites such as IAM want us to believe that CAFC suddenly loves software patents and things are somehow changing. They aren’t. That’s usually just agenda disguised as news — something which IAM does a lot of. Therein lies the business model of IAM. █
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