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04.16.18

With Liars Like These…

Posted in Deception, Europe, Microsoft, Patents at 6:15 pm by Dr. Roy Schestowitz

Related: “EPI Makes No Protest When the AC Connives With Battistelli to Trash the Rule of Law”

Margot Fröhlinger for UPC

Summary: The European Patent Office continues to lie about the Unified Patent Court (UPC) amongst other things, still revealing its reluctance to say anything which is truthful or work to repair the damage caused by Benoît Battistelli

The European Patent Office (EPO) composed not one but two ‘news’ items today, probably for the first time in two weeks (minus one day). As expected, there’s plenty to correct there. There’s also this new tweet inviting people to “[j]oin the first ever EPO Life Sciences Seminar held in Seattle, US on 17-18 May.”

Yes, EPO events now take place in another continent! In Microsoft’s back yard. Microsoft receives special treatment, so maybe the E in EPO stands not for “European”. Either way, looking at what the EPO wrote today, the first item was about the epi connections (warning: epo.org link). We wish to remind readers of the DG5 (Raimund Lutz)-epi connection; Antonius Tangena helped Željko Topić’s appointment. Tangena is apparently no longer there:

EPO President Benoît Battistelli joined Francis Leyder, President of the Institute of Professional Representatives before the EPO (epi) and Christian Cardona, the Maltese Minister for Economy, Investment and Small Businesses, to celebrate the epi’s 40th anniversary.

Valletta is a welcoming place for the likes of Battistelli because there’s plenty of corruption there and journalists who expose such corruption get assassinated, sometimes even blown up in their car (local policemen then publicly celebrate this).

The second item is about an event that was noted last week because EPO executives now associate themselves with ACTA pusher/lobbyist Paul Rübig [1, 2] in an effort to push the patently false claim that EPO cares for SMEs. They had the audacity to push/promote such lies as formal ‘news’ (warning: epo.org link). It is worth noting that EPO management is nowadays interjecting lies from Margot Fröhlinger for the sake of the UPC (her entire career/role), falsely representing SMEs (they oppose UPC), then Slawomir Tokarski. The EPO is a chronic liar like the worst administrations and mind the part about Fröhlinger:

The European Patent Office has presented its report on SMEs and Patents at an event last week hosted by Paul Rübig MEP, First Vice-Chair of the European Parliament’s Science and Technology Options Assessment Panel (STOA). The breakfast debate was co-organised by SME Europe and the EPO.

[...]

Principal Director for Unitary Patent, European and International Legal Affairs Margot Fröhlinger, set out in her presentation how the planned Unitary Patent and the Unified Patent Court will help overcome the fragmentation in the European patent system, also for the benefit of SMEs. According to her, the new system may be expected to be operational early 2019.

[...]

Mr Slawomir Tokarski, Director of Innovation at DG GROW, also presented the European Commission’s IPR package adopted last year and stressed the cost savings expected from the Unitary Patent.

So the EPO basically keeps lying in public. The UPC is now being portrayed as “for SMEs” — the very opposite of what’s true. The Unitary Patent is dead, so what Fröhlinger is doing boils down to pure marketing. She is Battistelli’s liar for hire. Other UPC critics have noticed and noted the same thing.

04.14.18

Killing Patent Quality and Encouraging ‘Covert’ Software Patents Using the Buzzwords Du Jour

Posted in America, Deception, Europe, Patents at 5:21 pm by Dr. Roy Schestowitz

Du JourSummary: The epidemic of buzzwords and/or hype waves that are being exploited to dodge or bypass patent scope/limitations, as seen in Europe and the US these days

THE granting of software patents seems to have become routine at the EPO — to the point where large law firms publicly assert that it’s now easier to get such patents from the EPO than from the USPTO. It’s a travesty because software patents are unofficially forbidden in Europe. It’s like they swapped roles. Good for the US, bad for Europe.

Watch what the EPO has just formally said: “European patent applications related to smart, connected objects are rising rapidly, achieving a growth rate of 54% in the last three years.”

“It’s a travesty because software patents are unofficially forbidden in Europe.”They have tagged this “Industry 4.0″ (buzzword) and “4IR”, which is what the EPO calls software patents these days, so they basically brag about granting bogus software patents. This is where supposed ‘growth’ comes from: bogus software patents.

We aren’t bashing EPO examiners; we know they’re primarily victims of really terrible management. Battistelli destroyed the EPO and he'll be receiving two more years of salary as a bonus for it. There’s no justice in this world. If there was, he would be detained like his padrone.

Anyway, some good people remain at the EPO. They’re technical people, i.e. they’re not top-level management (Team Battistelli is almost consistently nontechnical and under-qualified).

“We aren’t bashing EPO examiners; we know they’re primarily victims of really terrible management.”The other day Shiri Burema and Rene van Duijvenbode (NLO) wrote about EPO oppositions again, this time too — like the last time (very recently) — in a sponsored self-promotional ‘report’ at IAM. EPO oppositions, as we noted here before, skyrocketed. It’s not a modest incline but an explosion. These oppositions come from stakeholders and they represent strong opposition to a lot of patent grants. Patent grants are being disputed by the thousands!

The Opposition Division at the EPO has in fact just thwarted a bad patent. The company with a stake in it issued a press release as a response to that with a slightly modified headline reprinted here. To quote:

In its official opinion, the opposition division of the European Patent Office found the Turzi blood separation patent, which is licensed to Regenlab, to be invalid on the grounds of added matter, lack of novelty and lack of sufficient disclosure

[...]

In this preliminary opinion, the opposition division of the EPO found the Turzi patent to be invalid on the grounds of (i) added matter, (ii) lack of novelty, and (iii) lack of sufficient disclosure. With respect to the prior disclosure issue, the Opposition Division of the EPO found that “it is shown beyond any reasonable doubt that the product was available prior to priority, a prior use had taken place and the features of the product could be investigated.”

This is actually the “happy ending”; how many times are staff assigned/belonging to the Opposition Division unable to properly deal with this due to heavy workload? As we pointed out before, the number of oppositions skyrocketed; the Opposition Division did not grow proportionally as far as we’re aware. What does it mean? That simply means that many bad patents will continue to slip in and some legitimate oppositions slip through (fail).

“That simply means that many bad patents will continue to slip in and some legitimate oppositions slip through (fail).”Examples? Evidence? We have some new anecdotal ones…

The EPO wrote this a couple of days ago: “How relevant is patenting to the world of AI? That’s one of the topics at this event in Munich…”

Well, “AI” is what the patent microcosm often calls software patents these days; this is done in order to disguise the fact that it’s nothing but patent-ineligible algorithms. AI is just that. Earlier today we wrote about “blockchaining” of software patents at the EPO. But there are other hype waves and tricks, “AI” is just one of which.

“Well, “AI” is what the patent microcosm often calls software patents these days; this is done in order to disguise the fact that it’s nothing but patent-ineligible algorithms.”Taking a new example from the US, see the patent microcosm writing about “Artificial Intelligence” and “AI” (both in the headline) in relation to a “medical device” (also in the headline). It sounds like a familiar trick; call algorithms “AI”, then say they run on a “device” and add words like “medical” to make it sound like life is at stake. Judge Patrick Corcoran had dealt with a case similar to this just before he was attacked by Battistelli.

Here’s another new example, found just earlier today. “In biopharma,” it says, “patents are everything. In tech? Not so much. Which is why it was unusual to see a company that’s trying to turn software into medicine announce this week that it’s bagged several patents.”

“Judge Patrick Corcoran dealt with a case similar to this just before he was attacked by Battistelli.”“A digital medicine company tries to adopt pharma’s patent game,” said the headline, attempting to sort of conflate two separate disciplines. Having come from the software world and earned a Ph.D. in Medical Biophysics, I think I have reasonable grasp/understanding of both. Quite frankly, this is nonsensical. What next? Saying that DNA is “code of life” and thus the equivalent of computer programs? This kind of tiresome journalism, whose goal is to glorify patents (all of them), merely discredits patents. It makes people ask all sorts of ‘funny’ questions. Questions like, “can thoughts be patented?” (or life itself)

Here’s another new example about something called the “Silver Edison Award”. Calling an award after the patent troll who was more of a businessman than an inventor? Edison is not what people are led/left to believe. It’s almost like mythology.

On the subject of software patents, watch what China’s SIPO has just done; it has just granted more software patents because they don’t really care about patent quality over there. From the announcement:

Says it received patent licenses (No. ZL 2015 10624219.3, ZL 2015 1 0611519.8), for USB device monitoring method and device based on USB interface granularity, and 32-bit progress and 64-bit progress alternate injecting method and device

Well, they use the word “device” several times, but it’s really about monitoring. Should monitoring something be patent-eligible? In China, anything goes.

“What next? Saying that DNA is “code of life” and thus the equivalent of computer programs?”Network analytics? Well, that too can become a patent, apparently. Never mind if it seems like it’s another case of bogus software patents (“KDE was patented as the first real-time…”) and the US has Alice. How about this new one from SIOS? The USPTO has just granted more dubious software patents because the applicant (mis)used the word “apparatus” (the typical loophole). From the self-promotional press release:

U.S. Patent No. 9,772,871, titled “Apparatus and method for leveraging semi-supervised machine learning for self-adjusting policies in management of a computer infrastructure,” is the first of eight core innovations developed and implemented in SIOS iQ and covered by this patent. It validates the ability of SIOS iQ to perform unsupervised learning of an environment and its behaviors for use in IT operations for purposes such as automating performance root cause analysis, while permitting human input to be used to adjust its models.

There’s no hardware there.

“Calling an award after the patent troll who was more of a businessman than an inventor?”Speaking of loopholes like “device”, “apparatus” or “medical”, how about greenwashing? The EPO does quite this a lot nowadays. Patents are being painted as “good for the environment”. Gareth Dixon from software patents proponent Shelston IP Pty Ltd has just published this ad (‘article’) titled “Making use of expedited examination for “cleantech”” (buzzword again).

“In recent years,” he says, “IP “buzzwords” have included superconductors, gene patents, business methods and computer software. Society’s ever-increasing environmental awareness now dictates that “cleantech” is the latest vogue.”

“Patents are being painted as “good for the environment”.”He himself admits that these are “buzzwords”. We appreciate the honesty — something we rarely saw at Shelston IP Pty Ltd. They’re perhaps the most vocal lobbyists for software patents in Australia and New Zealand. We wrote about them many times before.

As another popular buzzword, consider “cloud”. Unified Patents has a new report about trolls (“NPEs”) with software patents that are disguised as “cloud”. They are striking hard as “the volume of Cloud litigation increased more than 33% from 339 cases (between 2014 and 2015) to 454 cases (between 2016-2017) during the same period that overall patent litigation posted a 42% decrease,” Unified Patents explained some days ago. From the “Overview”:

In stark contrast to recent filing trends, the volume of Cloud litigation increased more than 33% from 339 cases (between 2014 and 2015) to 454 cases (between 2016-2017) during the same period that overall patent litigation posted a 42% decrease. From 2012 to 2017, NPE litigation activity for Cloud technologies remained consistently high (greater than 92% of all Cloud litigation) and amounted to a total of 1,058 cases over the last 5 years. Litigation involving various Cloud technologies fluctuated and notably, Cloud litigation involving Storage & Synchronization increased from 7% (2016) to 27% (2017).

The CCIA too has just bemoaned patent quality in the US, showing an “[i]llustration of a metal rose from a design patent” and then stating:

In an ideal world, patent examiners are perfect neutral arbiters. They find the best prior art and always make the right decision as to whether an idea is new and entitled to a patent. In this world, we wouldn’t need inter partes review or validity challenges in court—examiners would get it right the first time.

The reality, of course, is that examiners are humans. They make mistakes. They miss prior art or are unable to access it it. Some are better at the job than others. And, according to a new study from Yale’s School of Management, just like other humans, they sometimes exhibit biases. In particular, the study concludes that examiner biases result in fewer and narrower patents being granted to female inventors.

Given these sorts of flaws in examination, along with the structural incentives to grant marginal patents and the opportunities to improve patent quality identified by the GAO, the first priority for the Patent Office’s new Director should be to focus on improving examination.

Sometimes we’re amazed at how shallow design patents can be. Copyright law should cover these instead. Not patent law.

“Patent maximalism is a global problem, but we’re disappointed to see the EPO falling for it hook, line, and sinker.”The bottom line is, patent quality must matter. Growth in patents just for the sake of growth is not the yardstick to go by or the goal to strive for.

Patent maximalism is a global problem, but we’re disappointed to see the EPO falling for it hook, line, and sinker. The EPO used to be far better than this.

04.01.18

In the Wake of 35 U.S.C. §101 Eliminating Software Patents Many Patent Law Firms Are Nowadays ‘Pulling a Berkheimer’ and Pretending Everything Has Changed

Posted in America, Deception, Patents at 3:41 am by Dr. Roy Schestowitz

Nothing has really changed except perception (due to a sort of PR campaign from the patent microcosm)

Pulling a Berkheimer

Summary: The CAFC (Federal Circuit) continues to reject a lot of software patents, but citing some old decision which did not even pertain to software the patent microcosm is trying to make the public feel as though software patents still have ‘teeth’ and are thus worth pursuing at the patent office and the courtroom (because the patent microcosm profits from that)

THE granting of software patents in the US, in hindsight at least, was a Pyrrhic victory because many patents that got granted are now worthless. Sure, the USPTO recognises these, but courts would not (if these actually reached courts).

Software developers are relieved. Those who preyed on them are not. Posted a few hours ago was this promotion of a so-called ‘webinar’ (commercial) in which software patents boosters will be attempting to teach people how to patent software in spite of the new rules — examination guidelines which pretty much exclude the ‘abstract’ patents (we prefer to think of them as patents on thoughts). In this post we’ll also share similar examples from the past week.

We start this little journey with this article from Richard A. Catalina Jr. and Hill Wallack. Blockchain hype is being embraced to enthusiastically herald “Patentability of Blockchain and Distributed Ledger Technology” (a somewhat loaded headline). “Since Alice,” they admit, “the CAFC has tackled the issue of software patents and whether the claimed subject matter merely comprises abstract ideas or whether the methods and processes thereof comprise “significantly more” as required by Alice.”

CAFC has been pretty consistent on the matter, especially since last year. It’s very unusual for CAFC to tolerate software patents. “Blockchain” or not (often (mis)used synonymously/interchangeably with “database” these days), software is still software. Watch Watchtroll trying to piggyback “Blockchain” as well. We very much doubt anyone in that site even knows what blockchains are, let alone explain how they work. It’s a site by technically-incoherent people, targeting other technically-incoherent people who just love making money out of patents they barely understand.

But we digress…

The software patents boosters from Anticipat have also chimed in. “The Supreme Court in Alice v. CLS Bank struck down the method claims as abstract ideas, but also, importantly, struck down the computer system and computer readable medium claims for the same reason,” it said a few days ago. The post as a whole is actually somewhat of a distortion of what is really happening. They are also using hype and/or buzzwords to promote patents on software. “In the episode,” they said, “the podcast walks through the patent process in a way that even someone unfamiliar with patents can follow. Trent Ostler discusses the fundamental balancing act in getting a patent.”

We don’t deny that it is still possible to patent software. It’s just that enforcing it in court is extremely hard and given the odds this is simply not worth the investment of time and money.

“The United States Patent and Trademark Office (USPTO) has issued two more patents” on software, according to this new press release. Software patents are a mistake to grant, but here they go:

The United States Patent and Trademark Office (USPTO) has issued two more patent allowances for Glytec’s FDA-cleared proprietary software used by healthcare providers to guide the dosing of insulin.

It does not matter if it’s proprietary software or Free/libre software, algorithms are excluded from patenting on the basis of being abstract.

“Changing attitudes towards patentees in the US” is what a recent analysis labeled the current situation. But actually the attitude has changed towards certain kinds of patents, not the patentees. “The problem of patent trolls has been a hot topic for some time,” says this article, “and both the US Congress and the courts have actively been working to tackle the issue and help to drive innovation forward.”

They have only succeeded to a certain degree because, as we pointed out yesterday, the proportion of lawsuits initiated by trolls is still high.

Several days ago Robert F. Shaffer and Scott A. Allen from Finnegan (Finnegan, Henderson, Farabow, Garrett & Dunner LLP) were once again pushing the Berkheimer inane one-liners that pretend software patent are suddenly OK and CAFC is accepting them (it’s not). We knew this would happen, which is why we wrote about a dozen articles regarding Berkheimer only days the decision. It was widely distorted. It’s marketing!

McDermott Will & Emery’s Matthew J. Gryzlo and Michael Hemes (patent lawyers) are panicking that so many of those lousy patents which they advised people to pursue, notably software patents, now perish en masse. Waste of time and money and no lawsuits filed, i.e. no money for the lawyers. Here they are ‘pulling a Berkheimer (mentioning or name-dropping Berkheimer and Aatrix):

Setting a new course with respect to 35 USC § 101 litigation issues, the US Court of Appeals for the Federal Circuit held that the issue of whether a claim recites patent eligible subject matter—a traditional question of law—may also contain disputes over underlying facts sufficient to prevent a court from granting summary judgment. Berkheimer v. HP Inc., Case No. 17-1437 (Fed. Cir., Feb. 8, 2018) (Moore, J). The underlying factual disputes in Berkheimer involved step two of the Alice analysis (IP Update, Vol. 17, No. 7) as decided by the district court on summary judgment. Here, the Federal Circuit vacated the grant of summary judgment with respect to some of the disputed claims.

Another booster of software patents has just taken note of Electronic Scripting Products, Inc. v HTC America, Inc.. District court deemed “claims related to virtual reality applications [to be] patent eligible under 35 U.S.C.” But do not expect CAFC to think similarly. The outcome suited the author’s agenda and was thus boosted:

Last week, Judge Seeborg of the U.S. District Court for the Northern District of California ruled that claims related to virtual reality applications are patent eligible under 35 U.S.C. § 101. Plaintiff Electronic Scripting Products, Inc. (ESPI) accused HTC American, Inc. (HTC) of direct and induced infringement through HTC’s VIVE virtual reality headsets. Defendant HTC then brought the § 101 challenge against ESPI in a motion to dismiss. While this challenge failed, HTC was still successful in having ESPI’s complaint thrown out for failure to state a claim, and the Court granted ESPI leave to amend.

Wait until the appeal (if there is one) and see what happens. They can twist software patents as all sorts of things (like “AI” or “blockchain”), but eventually it does not help. Critical skills kick in. There’s a similar phenomenon in marketing, such as this Apple advocacy site that glorifies Apple’s patents. Calling everything “smart”, for example, in order to pursue patents and then sell it to the masses is a short-term strategy. There are people who will wrongly assume buying something “smart” makes one smart, not dumb. There are even patent examiners who can fall for such spurious words/adjectives (“innovative”, “smart”), but in courts that is less likely to work.

The patent microcosm (Squire Patton Boggs’ Daniel Rabinowitz in this case) is still very much worried about 35 U.S.C. §101 as it annuls software patents even at CAFC. Here’s another spin attempt, distinguishing patent examination from CAFC’s assessment:

When examining subject matter eligibility of a patent application under 35 U.S.C. §101, the United States Patent and Trademark Office (USPTO) relies on a two part test established by the Supreme Court of the United States (See Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014)). The first part of the test requires a determination of whether the claims of a patent application are directed to a law of nature, a natural phenomena, or an abstract idea (See Alice Corp. Pty. Ltd., 134 S. Ct. 2354). When a claim is determined to be abstract, the USPTO requires its Examiners to “identify the abstract idea as it is recited (i.e., set forth or described) in the claim, and explain why it corresponds to a concept that the courts have identified as an abstract idea” (See MPEP §2106.07(a)). To help Examiners identify concepts that courts have previously “identified as an abstract idea,” the USPTO keeps an updated chart of court decisions that have held claims either eligible or ineligible as an abstract idea. While at first glance all of the decisions in the chart seem to be on equal footing, it is important for practitioners to keep in mind the different weight given to precedential and non-precedential decisions.

[...]

While it is easy enough for Examiners to rely on the general holding that “using categories to organize, store, and transmit information” is an abstract idea, it is important to note that Cyberfone is a non-precedential decision. Practitioners can overcome this subject matter eligibility rejection by simply distinguishing their claims from those examined in Cyberfone. In view of the above, it is important for practitioners to keep in mind that arguing distinctions between claims in a pending application and those examined by a court in a non-precedential decision can often be an effective tool for overcoming a subject matter eligibility rejection.

As if “overcoming a subject matter eligibility rejection” is the ultimate goal of all. The Federal Circuit’s judges know better than that. Another new post, this one by Jason Rantanen, speaks of appeals:

For the past few years, I’ve been working on a project with the working title “the Federal Circuit Database Project.” The goal of this project is to develop an accurate, reliable and transparent database containing information about the Federal Circuit’s patent law-related decisions that would be of interest to scholars, commentators and policymakers. In keeping with the public nature of the University of Iowa College of Law, I wanted the database to be accessible and usable by anyone.

Such a “reliable and transparent database” that he envisions is supposed to help one side or one agenda. It’s not really about transparency.

The EFF has meanwhile responded to the latest Berkheimer and Aatrix hype (law firms ‘pulling a Berkheimer‘). It wrote to CAFC along with the R Street Institute:

In its landmark Alice v. CLS Bank decision, the Supreme Court return some much-needed balance to the patent system. The court invalidated an abstract software patent, essentially ruling that adding “on a computer” to an abstract idea does not make it patentable. The Alice ruling has been particularly important because courts have often applied it early in litigation. This has allowed even small companies to fight back against patent trolls wielding weak software patents. We’ve featured many of these stories in our Saved By Alice series.

[...]

EFF, together with the R Street Institute, has filed an amicus brief [PDF] urging the Federal Circuit to rehear the Berkheimer appeal en banc. This means that all the active judges of the appeals court would review the decision. We argue that the panel’s decision is both wrong on the law and bad policy. The panel’s decision disregards long-standing Supreme Court and Federal Circuit law that makes it the judge’s role to construe patents. On policy, we describe how early Alice rulings have helped end many of the most abusive patent trolling campaigns.

When the Alice case was originally before the Federal Circuit, one judge argued that a ruling finding the patent invalid would “would decimate the electronics and software industries.” This dire prediction turned out to be completely wrong. In fact, R&D spending on software began increasing at an even faster rate after the Supreme Court’s 2014 decision. Where Alice did not hurt the software industry, the Berkheimer and Aatrix rulings could hurt the industry by making software companies more vulnerable to the abstract patents that Alice invalidated.

It’s good to see the EFF naming software patents (not just ‘abstract’ patents) and working toward making it easier to trash them in the US. CCIA, another active group in that domain, recently (just over one week ago) tackled the subject and so did Watchtroll, which wrote about the Tinder lawsuit in order to promote the plaintiff. For the uninitiated, Match Group/Tinder uses software patents that are worthless to bully/sue a rival. CCIA, in the form of Patent Progress, said this:

Tinder swiped right on a lawsuit against Bumble last week, but their lawsuit has more than just surface flaws. Tinder’s lawsuit alleges a number of forms of intellectual property violations—but basically, it comes down to claiming that they own the idea and the design of swiping, especially for a dating app.

A Brief History Of Swipe

Of course, the idea of swiping (and even the word) isn’t new. It’s not even new in the context of a smartphone app. The iPhone was introduced in 2007 using the words “to go through pictures, I just swipe them.” And by 2009, Palm’s webOS used swiping on cards, including swiping cards away, in its multitasking interface. (Not to mention “swipe to unlock,” the focus of a number of lawsuits back in 2012.) All pre-date Tinder and Tinder’s patents.

And yet, Tinder claims they own the word “swipe.” Of course, they didn’t file the trademark originally—Tinder acquired the SWIPE trademark from another company in 2015.1

For that matter, Tinder even admits that it wasn’t just the trademark they didn’t come up with. Turns out, Tinder didn’t come up with the swipe idea for Tinder—according to Tinder’s former chief creative officer, the user interface designer “ripped off [swiping] from the flash-card app he worked on for Chegg.”

So it’s questionable whether Tinder came up with the idea in the first place, much less the word. But sometimes companies succeed with ideas they acquired elsewhere. So, what about their patents?

In short, it’s a worthless patent and this whole lawsuit is probably just a waste of time. Some say it’s intended to put pressure on a rival to be absorbed by the competition. Are courts being ‘gamed’ as bargaining chips now?

Speaking of games, Robert Ryan from Holland & Hart LLP wrote about this one particular new case which again proved that software patents are still an utter waste of time and money. This firm is actually paying to spread this (it is being pushed out as press release [1, 2]) and there’s a mention of Section 101. To quote:

High 5 Games Defeats Konami Gaming’s Slot Machine Software Patents

[...]

High 5 Games, a recognized pioneer in the slot game industry, including online games, has created hundreds of games that are played on six continents in more than 150 countries. High 5 Games’ robust library of virtual slot games includes some of the most complex math features in the electronic gaming industry.

Electronic gaming competitor, Konami Gaming Inc. (Konami), sued High 5 Games claiming that High 5 Games’ leading and patented line of Super Stacks slot games infringe 52 claims of four Konami patents. Konami had previously procured licenses under these patents from other stakeholders in the gaming industry. In its lawsuit filed in the United States District Court for the District of Nevada, Konami sought an injunction to prevent High 5 Games from using or licensing the accused game feature, Super Stacks, as well as unspecified damages.

High 5 Games aggressively disputed Konami’s patent infringement claims and brought a motion for summary judgment challenging all of Konami’s 52 asserted patent claims as invalid. High 5 Games attacked the Konami patents as “indefinite” because the patents did not disclose sufficient information for how to structure the game software and as “patent-ineligible subject matter” under 35 U.S.C. §§ 112 (6) (Pre-AIA) and 101.

Take it for what it is, folks. Software patents are dead and unless something very major happens, nothing is about to change that, not even perception/narrative wars and marketing, such as ‘pulling a Berkheimer‘.

03.31.18

Massive Discovery Misconduct and New Litigation Misconduct Show That the Patent World is Not Always About Justice

Posted in America, Courtroom, Deception, Patents at 9:52 am by Dr. Roy Schestowitz

We have got a winner

Summary: Manipulation of the legal system, or arm-wrestling the law in order to get one’s way, still a problem for the credibility of today’s patent system (rife/riddled with misconduct)

EVERY now and then we document or pile/assemble together examples of misbehaviour, not necessarily at patent offices (EPO, USPTO and so on) but in courts and law firms. There’s no lack of examples. The system is far from perfect, transparency can always help, and pointing out flaws can help correct these.

A few days ago “massive discovery misconduct” was reported in a case where the “plaintiff’s severed litigation misconduct was exceptional.”

“Following plaintiff’s post-Markman stipulation of dismissal and a bench trial finding inequitable conduct,” Docket Navigator summarised, “the court granted defendant’s motion for attorney fees under 35 U.S.C. § 285 because plaintiff’s severed litigation misconduct was exceptional.”

Well, patents are, with few exceptions, not used amicably. And those who use them for hostile purposes are not exactly likely to act in good faith.

Another example of misconduct was covered a few days ago by David Hricik, who focuses on ethical matters. “In addition to this evidence,” he said, “the district judge heard evidence of various litigation misconduct…”

Here are the details:

Last month, the Federal Circuit held oral argument in an appeal, styled Gilead Sciences, Inc. v. Merck & Co., Inc. (Appeal Nos. 16-2302 & -2615) from a judge’s decision which held a patent unenforceable — for unclean hands — after a jury returned a verdict of $200 million. A more detailed write up is here which includes a link to the oral argument.

Boiled down, in a bench trial after the verdict, the judge heard evidence that Gilead had agreed to share information with Merck regarding an antiviral agent against Hep C — provided Merck personnel working on Merck’s competing work be walled off rom the information. Gilead shared information on a call… and a Merck attorney who was on the call who was prosecuting a Merck competing application then amended claims to cover the Gilead product.

As a twist, the application that was amended supported the Gilead product, and the jury had found no derivation. The reason was that the amended Merck application had support for a large genus of compounds, but the amendment narrowed to a subgenus which included Gilead’s leading agent. In other words, Merck had invented the Gilead product, and so there was no but-for materiality (in any meaningful sense that I can see, at least).

In an ideal patent system the patents granted would be of high quality, litigation be a last resort, and the legal process involve no misconduct. But in a world where lawyers on both sides just try to win the case can we expect justice or a shouting match where the longterm goal is to drain the opposition’s pockets (with legal fees)?

03.27.18

Oil States Decision is Approaching and So Does Strategic Smearing of the Patent Trial and Appeal Board (PTAB)

Posted in America, Deception, Law, Patents at 11:06 am by Dr. Roy Schestowitz

Recent: Where Opposition to the Patent Trial and Appeal Board (PTAB, AIA) Has Come From Over the Past Week If Not Year

United for Patent Reform letter

Summary: With the Oil States decision expected some time in the coming weeks (or few months), the anti-PTAB lobby gets a little louder again and there are responses to it, such as the letter above

THE value of software patents is being diminished if not outright decimated by Alice. This is a good thing. The USPTO has become more selective, PTAB ensures that examiners do their job properly, and courts mostly agree with PTAB when they affirm rejections of abstract patents.

“So rather than call it “STRONGER Patents Act” why not just call it “ABOLISH PTAB Act”?”The patent trolls’ lobby isn’t happy; it’s still trying to offer tips for dodging PTAB, it selectively covers a reversal of PTAB decisions, which is the exception rather than the norm (“The Court reversed a PTAB decision invalidating Power Integrations’ U.S. Patent No. 6,249,786 (“the patent”) as anticipated because the Board’s decision was based on an unreasonably broad claim construction.”) and Steve Brachmann from Watchtroll is promoting an anti-PTAB bill only hours after the site had cherry-picked a reversal of a PTAB decision. Brachmann says, by his own admission: “Most of the STRONGER Patents Act deals with both inter partes review (IPR) and post-grant review (PGR) proceedings used to challenge patent validity at the PTAB.”

“The patent trolls’ lobby does not really think it’ll ever pass (it said this repeatedly), but these people still try.”So rather than call it “STRONGER Patents Act” why not just call it “ABOLISH PTAB Act”? Because PTAB is widely supported by just about everyone except law firms and patent trolls (along with a few pharmaceutical giants)? The words “STRONGER Patents” are just pure marketing and in reality the bill strives to weaken patent, i.e. reduce patent quality. We wrote about that several times last year.

The patent trolls’ lobby does not really think it’ll ever pass (it said this repeatedly), but these people still try. At best, what they might accomplish here is a sort of publicity stunt just in time for Oil States. Richard Lloyd from the patent trolls’ lobby (IAM) is the latest to push this anti-PTAB bill (“STRONGER Patents Act”) and he wrote the following yesterday:

Patent legislation was firmly back on the agenda last week with the introduction of a version of the STRONGER Patents Act in the House of Representatives and a bill introduced in the Senate to extend the USPTO’s fee-setting authority. The House version of the STRONGER Act is largely the same as the bill introduced in the Senate last year and which has been championed most actively by Senator Coons and supported by the bio and pharma communities and advocacy groups such as the Qualcomm-backed Innovation Alliance.

We wrote about who was behind this bill exactly one week ago and it’s clear that just about every technology firm is firmly against it. United for Patent Reform, representing so many companies that it took 3 pages just to list them, said: “The STRONGER Patents Act would damage American innovation and undermine vital congressional reforms that American businesses have relied on to fight patent trolls. Read our letter to Rep Steve Stivers and Rep Bill Foster…”

It’s a PDF, so we made a screenshot of it.

“There are actually some people in the patent microcosm who are delusional enough to repeatedly and publicly suggest that patents and patents alone (they mean AIA) is the cause for the decline of the US; they often use “China!” as a dog-whistle.”“The STRONGER Patents Act will only distract Congress from the real problems facing the U.S. patent system and plaguing the American economy,” Benjamin Henrion quoted from it.

There are actually some people in the patent microcosm who are delusional enough to repeatedly and publicly suggest that patents and patents alone (they mean AIA) is the cause for the decline of the US; they often use “China!” as a dog-whistle.

03.26.18

On Media Hype, Software Patents, and 35 U.S.C. § 101 Which Annuls Both

Posted in America, Deception, Patents at 5:34 am by Dr. Roy Schestowitz

Don’t be misled by faux novelty (old ideas or abstract ideas disguised as something complicated, physical, and very new)

Entrepreneurs say ‘faux AI’ hype hurts marketing efforts
Reference: Entrepreneurs say ‘faux AI’ hype hurts marketing efforts

Summary: A lengthy roundup of software patents news and spin, culminating not only in demonisation of the current system by patent maximalists but also senseless shaming of science and technology as though these — unlike patent law firms — are the issue

THE EPO likes to refer to software patents by all sorts of three-letter buzzwords/acronyms, including “ICT”, “CII” and “4IR” (similar to “Industry 4.0″, the previous term they piggybacked). The USPTO does not use these buzzwords, but it’s habitually if not growingly subjected to buzzwords inside patent applications, e.g. “cloud” and “AI”. This can confuse examiners and this confusion (lack of clarity) can yield an erroneous grant. We wrote quite a lot about it over the past year and we gave many hundreds of examples. The general idea is to work around the law by exploiting words that sound novel and cutting-edge. Examiners cannot quite author a decision for rejection if they fail to grasp the claims, maybe because these claims are intentionally incomprehensible. The examiners do not wish to sound foolish (or unsuitable to assess the said patent/s).

Software Patents Still Being Granted

Looking at this morning’s list of “patents awarded” in just one US region, we’re still seeing patents that sound like software patents. They don’t use terms such as “software patents,” but the actual effect is the same.

Yesterday we saw this patent maximalists’ blog advertising a “Webinar [lobbying/advertising] on Patent Quality” and somehow we remain really/highly sceptical. We doubt that a bunch of lawyers will speak about the importance of patent quality; they may well hijack the word ‘QUALITY’ (they use all caps!) however, just like Battistelli does at the EPO. When he talks about “quality” he refers to things like timeliness, not patent quality. The title of this “Webinar” is “Achieve the ‘QUALITY’ in Patents and Avoid Common Mistakes” and under ““Quality” in Patents” it says “The patent value hierarchy” (whatever that means), “Definitions of “good” and “valuable”,” and “Quality in provisional applications and non-provisional applications” (that is not what patent quality technically and traditionally means).

Let’s face the fact that software patents are all abstract and are always low-quality patents. They oughtn’t be granted at all, but law firms insist otherwise because they profit from it.

Attacking the Enforcer of 35 U.S.C. § 101 (and § 101 Itself)

This same patent maximalists’ blog then mentions several other such events. It’s purely about lobbying. It’s staged to help change the status quo. It’s the usual tactic.

Another patent maximalists’ blog has just mentioned this upcoming Harvard event — yet another event stuffed/stacked by Koch-funded think tanks and lobbyists like David Kappos, who works for his pressure group and a patent law firm. Sadly, we are more or less becoming accustomed to such interventions. How about yesterday’s piece from the FRAND lobby, this time Annsley Merelle Ward (Bristows) and Richard Vary (Bird & Bird)? A lot of the patents in question are software patents, which they are attempting to put inside standards.

And speaking of lobbyists, watch what the Business Software Alliance (BSA) does politically. As reported some days ago by Bloomberg:

A House subcommittee is weighing whether to continue a Patent and Trademark Office program that allows for challenges of covered business method patents often involving financial or e-commerce-related processes.

The House Judiciary Courts, Intellectual Property and the Internet Subcommittee held a March 20 hearing to discuss specialized challenges under the program, created under the America Invents Act of 2011, that are set to expire in 2020.

Financial services industry lobbying groups have said the covered business methods program helps stem abusive patent infringement lawsuits that assert broadly defined patents. But some software industry trade groups, such as BSA|The Software Alliance, argue that the CBM process hurts U.S. innovation by making it easier for parties to challenge and kill software-related patents.

The BSA, which is backed by Microsoft, has long lobbied for software patents. Even inside standards and even in places that ban such patents. It’s like the law does not matter to them, it’s only changing the law that they strive for. They want to end or water down § 101.

Counting Occurrences of Buzzwords

For the second day in a row, Managing IP does some patent maximalists’ marketing/brainwash for CRISPR patents (not allowed, either). They too cite a biased report of an interest group:

According to iRunway’s 2018 CRISPR: Global Patent Landscape report, 4,706 patents were filed globally in 2015, which represents a 3492% rise

What’s noteworthy here is that they merely track acronyms or hype waves, which makes such statistics self-fulfilling prophecies in a sense.

Blockchain and Other New Hype

In software too there are hype waves or buzzwords. Consider, for instance, this new article on “PayPal’s Patent Pursuit” and another about blockchain. Patenting software by using buzzwords, pretending databases are also “blockchain” and stuff (riding the hype wave because it’s distributed) isn’t a genuine trick. We’ve been seeing this for a number of months if not a whole year. From the article:

Meadow has taken Oxford’s molecule, deployed it to a microchip armed with cryptographic defenses, blockchain log-filing and other software services, all patent-protected through 2035.

That’s almost two decades.

Here they are, riding hype waves to patent software because such patents will be rejected unless one fakes ‘novelty’ (with terms like “AI” or “cloud” or “blockchain”). Another new example is this: “Over 1200 Blockchain Patent Applications Filed in 2017, Up From 594 in 2016″

To quote: “The number of patents relating to blockchain in on the rise. According to data collected by the Korean Intellectual Property Office, more than 1240 applications for blockchain-related patents had been filed across South Korea, the United States, Japan, China, and Europe by the end of January 2018.”

A variant of that was posted here, unlike for example this article titled “There is a simple reason for blockchain’s spectacular rate of development, says Alex Sims. No patents” (article from New Zealand, which does not permit software patents).

To quote:

Blockchain technology, which is poised to transform everything from supply chains to insurance and health, has flourished in an open-source environment. This raises questions about whether our current intellectual property laws are fit for purpose when it comes to fostering innovation.

Intellectual property laws, such as patents and copyright, are premised on the incentive theory. To incentivise people to create, they are given, in effect, a monopoly (with some exceptions) on their creations and can go to court and stop others from free-riding on their work.

Blockchain hype isn’t a new thing. And we won’t stop hearing about it any time soon, especially from those looking to patent something with a database (while making it sound more novel). “Blockchain” is not a made up concept, but it is nowadays misused to refer to things that are not blockchains and those who count occurrences of the term (in media or in patents) merely perpetuate this hype.

How about software patents disguised using words like “Autonomous Vehicle” (another recent hype wave), as seen here some days ago? Or “Machine Learning”, as seen here? Imaging and Machine Vision Europe spoke of companies that “were recently granted four new patents for several aspects of its technology, including visual sensing and processing software that improves the efficiency and safety of automated robotic systems.”

This has § 101 all over it. Jones Day is also the latest law firm to use buzzwords and hype waves like “Artificial intelligence (“AI”) and big data (“BD”)” (yes, they gave that an acronym) to sell their worthless services under the headline “Protecting Artificial Intelligence and Big Data Innovations Through Patents: Subject Matter Eligibility” (again, same old tactics).

Artificial intelligence (“AI”) and big data (“BD”) innovations are a driving force of the current technological revolution, dramatically changing the way we search for information, communicate, operate devices, manufacture things, and solve problems. Companies have traditionally turned to patents as the strongest mechanism to protect their innovation and secure investment.

[...]

One of the bigger challenges facing the patenting of AI and machine-learning inventions is subject matter eligibility under 35. U.S.C. § 101, in particular as applied in Alice and its progeny.

So they just hope that fancy words will bypass § 101?

Even a “three-dimensional vision guidance software” isn’t patent-eligible. Geometry is mathematics. Will the examiners at the USPTO please stop granting patents on pure science-/cutting-edge-sounding software hype? From this article:

With early implementations in place and 20 patents in the pipeline, he adds that “now is the time” to build sales channels for its three-dimensional vision guidance software.

This certainly won’t be the end of that. We’ll continue to keep abreast of it.

Watchtroll Once Again Attacks and Smears the Actual (Producing) Industry

Patent maximalists work hard (or overtime, especially weekends) on making the above-mentioned maximalism the ‘norm’. They try to thwart Section 101 and PTAB for enforcing Section 101. As recently as last week PTAB was criticised by Watchtroll for tackling patents on DRM. To quote: “Grecia did file a patent infringement suit against Visa in the Southern District of New York back in November 2015. That case was dismissed with prejudice in November 2017 with both parties stipulating to the dismissal of claims. Grecia’s ‘555 patent has been challenged in four inter partes review (IPR) proceedings at the Patent Trial and Appeal Board (PTAB); two of those petitions have been denied and one was settled pre-institution. The ‘860 patent has been challenged five times at PTAB leading to two pre-institution settlements and one post-institution disclaim.”

Not surprising at all. DRM is pure software. Watchtroll’s Gene Quinn is just pushing patent maximalism for the purpose of attracting clients rather than anything else and his protégé Steve Brachmann actively attacks technology companies as if technology itself is a threat. This lobby of patent trolls and patent predators (mostly lawyers) continues attacking and demonising technology firms as though it forgets to masquerade as caring for innovation. Do these people realise how utterly foolish and ruinous they make themselves look? They don’t help science and technology but sabotage both. 5 days ago they even gave a platform to Michael Shore, the patent 'scammer' (now a writer at Watchtroll). Not too shockingly? He too smeared technology companies. Each time these patent extremists — including patent law firms — prop up China as a model example and bash technology firms in the name of patent maximalism they merely reinforce the view that such extremism is a threat to society.

Staying with Watchtroll for a bit, watch its latest attack on PTAB from yesterday (there was actually another such attack that day). Totally ridiculous statements from Watchtroll on a Sunday say things like “The United States Patent and Trademark Office (USPTO) has admitted to stacking panels…”

No, it did not. Another bit of made-up nonsense from Gene Quinn, linking to himself as “proof” of this ludicrous claim. And it’s not just Watchtroll. In the past day alone we saw similar criticisms/posts from David at Patently-O and Patent Docs (basically, how to work around PTAB IPRs).

Still Name-Dropping Berkheimer

Days ago Berkheimer was brought up again by Michael Borella at Patent Docs. The patent maximalists now worry that § 101 is as tactful as always (and thus software patents banned); what’s at stake isn’t facts, but they carry on with their inane canard about Berkheimer:

The Court noted that some § 101 disputes may be resolved as a matter of law when there is no material issue of fact regarding whether one or more claim elements, or combination thereof, are well-understood, routine, or conventional to a person of ordinary skill in the art. Based on this reasoning, HP’s summary judgment motion for ineligibility was reversed and remanded to the District Court for further proceedings. The Court reiterated this position a few days later in Aatrix Software Inc. v. Green Shades Software, Inc. and three times since then in nonprecedential decisions.

This line of cases, all but one involving Judge Moore in the majority opinion, has sent patentees, practitioners, and commentators into a minor tizzy. And certainly it has opened the door for a number of interesting questions: What does it take for a patentee to establish that there is a material issue of fact? Will § 101 disputes become a battle of experts? Will § 101 issues now need to be explained to a jury? How “understood” does a claim element need to be in order to qualify as “well understood?”

[...]

HP goes on to note correctly that many, if not all, previous § 101 appeals were decided as a matter of law, and that the Berkheimer panel deviated from this trend. Nonetheless, neither the Supreme Court nor the Federal Circuit ever mandated that all § 101 analyses must ignore facts — only that eligibility decisions could be ripe for judgment on the pleadings or summary judgment when facts are not in dispute. HP attempts to make hay of the extent that the courts (and the USPTO) may have carried out the analysis otherwise.

HP also states that asking “whether the invention describes well-understood, routine, and conventional activities” is the wrong question. HP does have a point that “[a] claim that merely applies a new abstract idea . . . might not describe well-understood, routine, and conventional activities.” (For instance, a newly-discovered equation is abstract, but by definition not conventional).

Charles Bieneman too is still writing endlessly about Berkheimer [1, 2], as does his colleague/blog guest Mike McCandlish, who alludes to this recent decision from Judge Koh. To quote: “Claims from two out of three patents for providing haptic feedback to computer users survived a motion to dismiss based on a patent eligibility challenge under the Mayo/Alice test and 35 U.S.C. § 101. Considering their character as a whole, the court found that the claims were not directed to abstract ideas. Immersion Corp. v. Fitbit, Inc., No. 17-CV-03886-LHK, (N.D. Ca., March 5, 2018). The court held claims of a third patent to be patent-ineligible.”

That was just the latest of many examples of Section 101 being in tact and being effective.

Comparing Patent Judges to “Death Panels”

A few days ago, James Bollinger, who is a partner at Troutman Sanders in New York, wrote about § 101 and said: “Many of the existing pool of patents in software and diagnostics—fast growing and sizable market sectors—were invalidated in a single stroke. American Invents Act—Inter Partes Review of Patents.”

Very good. He continued: “These clearly high-stake cases were interspersed with the growing presence of Non-Practicing Entities (NPEs) [trolls] —patent pools, “trolls” and the like). These actions rarely involved large damage awards, but were characterized by multiple settlements for smaller amounts—settlements that however quickly grew to substantial sums.”

This sounded like a promising article, but further down the article said “Death Panels—The New Paradigm” — in effect comparing patent quality (again) to assassination. These people are radical, they’re mentally detached from reality.

Mass Invalidation of Software Patents Carries On

How about Mr. Gross, whose rants about PTAB culminate in actual acceptance that some IBM software patents are bunk? Or this other IBM patent application, which was rejected by an examiner but not by PTAB? Most of the time, like this past Friday, IBM’s patents are found to be invalid with few rejection reversals being noted and Berkheimer named aplenty. What we think we’re seeing here is growing acceptance that nothing has really changed after Berkheimer and PTAB is here to stay in its current form.

“Stupid Patent of the Month”

The EFF's Joe Mullin, in his latest example of “Stupid Patent of the Month,” has just mentioned Berkheimer as well. “A patent on “electronic tokens” is being used to sue small gaming studios,” the EFF wrote. “It’s exactly the kind of abuse we need the Alice decision to protect against.”

To quote the actual article:

Changes to the patent system, including the Alice v. CLS Bank decision, have helped make it easier for a company like Playsaurus to resist against a bogus patent demand. But Alice has threatened the trolling business model so much that it keeps facing threats, in both courts and Congress.

A recent decision called Berkheimer v. HP may make it much harder to defend a case using Alice. In Berkheimer, the district court invalidated a patent that described a system for “archiving and outputting documents.” But the district court judge was overturned on appeal, when the U.S. Court of Appeals for the Federal Circuit held [PDF] that whether or not a technology was “well-understood, routine, and conventional” is a factual determination that requires more proceedings.

This ruling could undermine a key benefit of Alice: namely, that patent defendants shouldn’t have to engage in expensive discovery and trial proceedings to negate patents that are abstract on their face. The defendant in that case, HP, has asked the full Federal Circuit to reconsider that decision, and we agree that it warrants the court’s attention.

Businesses like Playsaurus shouldn’t have to go through extensive discovery and motion practice to prove what real innovators in their industry know: e-tokens are an abstract idea and not eligible for a patent. Neither are ideas like tracking a package, or remotely diagnosing an illness, or holding a photo contest. The Alice decision is indispensable to small businesses that are being held up by such patents, and it’s worth protecting.

Berkheimer did not change much in practice. But it’s just mentioned a great deal nowadays, especially in articles composed by the patent microcosm and by groups that have Koch-funded roles.

§ 101-Hostile Scholars Unnamed

IAM’s Adam Houldsworth now shelters new propaganda behind more paywalls, so it’s hard to tell if these “law professors” that it named the other day are those notorious Koch-funded ones who attack PTAB and promote software patents for a salary.

The patent trolls’ lobby, IAM, wrote this:

Lower courts in the US have been applying overly-restrictive criteria for patent-eligible subject matter that conflict with Supreme Court precedents, six prominent patent law scholars have claimed. It is this misapplication of the Alice-Mayo test, they say, rather than the Supreme Court Alice decision itself , that has made it unduly difficult to protect diagnostic method patents since 2014. The argument is made in an amicus brief recently submitted to the Court of Appeal for the Federal Circuit in support of the Cleveland Clinic Foundation’s attempt to reverse the cancellation of its patents covering diagnostic methods for atherosclerotic cardiovascular disease.

There are no links and no names, except for subscribers. We can only imagine who these scholars are and who they are affiliated with.

03.24.18

The Patent Maximalists Already Pressure USPTO Director Andrei Iancu to Say the ‘Right’ Things

Posted in America, Deception, Patents at 1:23 pm by Dr. Roy Schestowitz

Make Patents Great Again

Summary: The efforts to incite Iancu against the Patent Trial and Appeal Board (PTAB) carry on unabated and his words are being distorted by patent maximalists to say what they want him to say

The patent trolls’ lobby (IAM) is still pressuring Andrei Iancu to hate PTAB and make the USPTO more open to abstract patents, such as software patents. The IAM interview even warped his words somewhat (in the headline especially), so it’s rather sickening that these people even call themselves “journalists” or “news”. it’s also frustrating to see the extent of coordinated pressure, not only that he accepted a speech invitation from IAM.

Richard Lloyd does it again, citing a newer appearance of Iancu and saying: “If you were looking for a sense of the industrial complex that has sprung up around the Patent Trial and Appeal Board in the five and a half years since it was created, then this week’s PTAB Bar Association annual conference was a good place to be. With around 500 delegates crammed into a ballroom in the Ritz Carlton in Washington DC – a stone’s throw from the lawyers and lobbyists of K street – the association, in just a couple of years, has quickly established itself in patent circles.”

“The patent trolls’ lobby (IAM) is still pressuring Andrei Iancu to hate PTAB and make the USPTO more open to abstract patents, such as software patents”The patent maximalists already project their own desires (business agenda) onto him. One patent maximalist said that “Dir. Iancu Calls for Paradigm Shift in USPTO Prior Art Searching and Forward Thinking wrt 101 Eligibility,” in effect distorting the actual headline he links to. “USPTO Head Stresses Need For Predictability In IP System” is the real headline and it’s an article behind paywall in which Matthew Bultman (Law 360) says nothing critical (there’s no lack of possible criticism) and instead summarises as follows outside the paywall:

U.S. Patent and Trademark Office Director Andrei Iancu emphasized the need for predictability in the intellectual property system on Thursday, while suggesting various ways the agency might help to bolster certainty in patent rights.

Speaking at the PTAB Bar Association Annual Conference in Washington, D.C., Ianucu [sic], who was sworn in as director late last month, said innovation was important to the U.S. and its economy.

The rest is behind paywall/s. Benjamin Henrion quoted/said: “The patent office has issued some guidance on Section 101, typically in reaction to court rulings. Iancu suggested there may be room for more forward-thinking guidance from the agency about where it thinks the lines of patent eligibility should be drawn” (this is what was actually said).

“Once upon a time an “attack” was some patent troll blackmailing a lot of businesses with threats; but the narratives are being inverted by some — to the point where the attacker carrying on with blackmail/lawsuit is “survival” and the defendant found innocent of infringement is actually an “attack”. Now we see Iancu accused of “attacking patents” simply by maintaining the status quo. “Then came maximalists’ propaganda sites such as Watchtroll, which say that “USPTO to Clarify Guidance on Written Description of Antibodies” (different but related) and two days earlier carried on characterising concern for patent quality as an “attack”. They said (with our emphasis added): “But the first major ruling under the new Director of the USPTO Andrei Iancu fell back to attacking patents. On February 23, three administrative patent judges of the Patent Trial and Appeal Board (PTAB) issued a sweeping opinion that sovereign immunity does not apply to PTAB proceedings and that the agency can revoke a patent right without consent or participation of the patent owner. This is the latest and possibly most extreme example of agency overreach in the 7 year history of the PTAB under the American Invents Act.”

Why is it that such patent aggressors compare justice to "death squads" and attacks? Is justice itself an aggression? Is Iancu “attacking patents” by choosing to preserve improved patent quality? That “attack” narrative goes even further; we see it almost every day. Here’s a new tweet from a patent maximlaist: “US Pat 8311945, System and method for processing checks; Survived 101 Attack; Asserted Against US Bank; $3.3M Verdict for Infringing…”

“The patent extremists have already bullied Michelle Lee out of her job. Are they trying to threaten Iancu with the same fate unless he does their biddings?”And then again: “Checking Patent that Survived 101 Attack Was Successfully Asserted Against US Bank; $3.3M Verdict…”

Once upon a time an “attack” was some patent troll blackmailing a lot of businesses with threats; but the narratives are being inverted by some — to the point where the attacker carrying on with blackmail/lawsuit is “survival” and the defendant found innocent of infringement is actually an “attack”. Now we see Iancu accused of “attacking patents” simply by maintaining the status quo.

The patent extremists have already bullied Michelle Lee out of her job. Are they trying to threaten Iancu with the same fate unless he does their biddings?

03.23.18

Team Battistelli and Team UPC Are Both Very Deep in Denial

Posted in Deception, Europe, Petitions at 7:40 pm by Dr. Roy Schestowitz

They still have a very long way to go

Five Stages of Grief by Elisabeth Kubler Ross & David Kessler
Reference: Five Stages of Grief by Elisabeth Kubler Ross & David Kessler

Summary: The perpetrators of a terrible patent system that permits patents on abstract ideas (which sometimes aren’t novel, either) and litigation as a priority refuse to let go of their dream — a distant, runaway fantasy which may soon cost over a thousand examiners their careers

Team Battistelli and Team UPC have a lot in common and they mutually benefit at the expense of the EPO. We have stressed this repeatedly over the years and there are many aspects to this symbiotic relationship.

Earlier today Team Battistelli said that “[p]atent applications at the EPO from UK companies and inventors continued to climb in 2017 (+2.4%),” but I told them that prices were lowered to ‘cheat’ for this supposed increase, which is still a decrease in revenue. They don’t like talking about that. For a number of months they hoped nobody would notice and point this out. Finances of the EPO are pretty opaque, but one can imagine what’s going on.

“Fourth Industrial Revolution technology patents [i.e. software patents at the EPO] are flourishing…”
      –World Economic Forum
Not only did the EPO lower the cost of applications (after observing decline in the number of applications); it also lowered the bar, welcoming for example software patents which are illegal in Europe. It just introduced some loopholes for that and wasted money promoting such loopholes in the media.

Earlier today the EPO retweeted this nonsense from WEF (World Economic Forum), which is based on something the EPO had paid the media for. “Fourth Industrial Revolution technology patents,” it said. “are flourishing…”

“Replace “patents in ICT” by “software patents”. And guess there are few software developers in the audience…”
      –Benjamin Henrion
This buzzword just means software patents, which are not legal in Europe. How do we know that this buzzword means software patents? IAM and Battistelli jointly said so earlier this year. “Fourth Industrial Revolution” (IR4) should just be read/interpreted as “software patents”; it’s a new (totally made up) term that’s being used in conjunction with older misleading terms like “CII”. Benjamin Henrion has also just taken note of “ICT” — a term that Grant Philpott likes to use alongside “Industry 4.0″ (they all mean the same thing). “Replace “patents in ICT” by “software patents”. And guess there are few software developers in the audience,” Henrion wrote today.

Then there are terms like “artificial intelligence”, which can be used for assessment of patents or for patents on software. We wrote about it many times so far this year (because the “AI” hype has been really strong in the past few months). Earlier today the EPO wrote: “We will discuss artificial intelligence and patent information searching at the East Meets West conference in Vienna…”

Carry on with buzzwords, EPO, but buzzwords won’t save you. The quality of patents is declining along with revenue (apparently). Courts aren’t easily fooled by buzzwords and don’t have 'production' pressures that compel them to decide within just hours.

“The quality of patents is declining along with revenue (apparently).”And on we move to Team UPC, which benefits from low-quality patents because these fuel more lawsuits (which is what they profit the most from). Thomas Adam (“UPCtracker”) wrote about CJEU in relation to UPC (4 days ago), foolishly believing (in spite lots of evidence to the contrary) that the Conservative Party will make exceptions just for UPC (which they never even speak about).

Then there’s “UPC blog” from Louise Amar, who went on about the selective data points from the likes of Bristows, choosing to create/embrace a sort of parallel reality wherein UPC is “almost there” and “inevitable”. In reality, or in this only universe, the UPC is dead. Team UPC (with blogs called “UPC blog” and accounts called “UPCtracker”) will sooner or later reach the “acceptance” phase. Deal with it and move on, Team UPC. Your Twitter accounts and blog names are now obsolete.

Amar wrote this:

Since the Brexit referendum the future of the UPC has been in jeopardy and, despite the optimistic schedules published by the UPC Preparatory Committee, its opening is still uncertain. Recently however, member states have taken encouraging steps. The UPC may thus soon become a reality.

No, it may not and the ‘evidence’ presented is delusional at best. As time goes by there is only growing evidence that the UPC will not happen. Nothing positive has happened since before Brexit. Nothing.

“As usual, especially when it comes to Team Battistelli and Team UPC, there’s an incredible difference between perception and reality. Maybe all of them — not just Battistelli — are perpetually drunk (not only on power).”Amar then proceeds to mumbling some incomprehensible mumbo-jumbo about SPC and Brexit. Brexit’s impact on patents is not profound because the UK remains in the EPO, but it will never participate in the UPC, which won’t materialise anyway.

As usual, especially when it comes to Team Battistelli and Team UPC, there’s an incredible difference between perception and reality. Maybe all of them — not just Battistelli — are perpetually drunk (not only on power).

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