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03.18.19

Microsoft and Its Patent Trolls Continue Their Patent War, Including the War on Linux

Posted in Asia, Deception, GNU/Linux, Microsoft, Patents at 2:46 am by Dr. Roy Schestowitz

There’s “truce” as long as Microsoft receives billions of dollars from its rivals for its “Linux patents”

A happy piranha

Summary: Microsoft is still preying on GNU/Linux using patents, notably software patents; it wants billions of dollars served on a silver platter in spite of claims that it reached a “truce” by joining the Open Invention Network and joining the LOT Network

THE parasites and predators are still at it. They’re exploiting software patents wrongly granted by the U.S. Patent and Trademark Office (USPTO) and they go after Microsoft’s rivals.

“Microsoft and Bill Gates are culpable as Intellectual Ventures effectively came from them and was bankrolled by them.”Days ago we saw the Intellectual Ventures-armed Dominion Harbor losing yet again. As it turned out, the Patent Trial and Appeal Board (PTAB) helped squash fake patents of this Microsoft-connected patent troll, owing to an inter partes review (IPR) which came from Unified Patents. In their own words (from Friday):

On March 13, 2019, the Patent Trial and Appeal Board (PTAB) issued a final written decision in Unified Patents Inc. v. First Class Monitoring, LLC IPR2017-01932 invalidating claims 1-5, 7, 9, 10 and 16-22 of U.S. Patent 6,014,089 owned and asserted by First Class Monitoring, LLC, a Dominion Harbor subsidiary and a well-known NPE. The ’089 patent, directed to transmitting data via conventional SMS messages over a control channel of a personal communications system transmission protocol, has been asserted against various financial services companies such as Citigroup, Bank of America, USAA, JP Morgan, and PNC.

Microsoft’s patent troll Intellectual Ventures, as it turns out yet again, is still engaging in blackmail in Eastern Texas. Even directly (not the likes of Dominion Harbor). As per the media (also Friday):

A jury in a federal district court in Texas has awarded a patent firm $1.5 million in a dispute with an Old Republic International Corp. unit in a patent infringement case.

The Tyler, Texas, jury on Wednesday decided in favor of Bellevue, Washington-based Intellectual Ventures II LLC, which buys, licenses and develops patents, in its dispute with Old Republic unit Sioux City, Nebraska-based Great West Casualty Co. in Intellectual Ventures II LLC v. Great West Casualty Co.

According to the January 2015 complaint in the case, Great West infringed one of Intellectual Ventures’ patents in connection with its online services and other systems.

Microsoft and Bill Gates are culpable as Intellectual Ventures effectively came from them and was bankrolled by them. To whose benefit?

“It seems clear that Microsoft has not changed. It was all PR, just smoke and mirrors for the cameras.”The Eastern District of Texas is also leveraged yet again against Taiwanese companies. Also from Texas: “Taiwanese Manufacturer of Smartphones Subject to Personal Jurisdiction in Texas in Patent Infringement Case Because of its Allegedly Purposeful Efforts to Serve the US Market Even Though all US Distribution was Orchestrated Independently…”

We already noted the other day that Microsoft goes after another Taiwanese company and it’s about a deal they signed 6 years ago, involving patents Microsoft claims Android and Chrome OS (GNU/Linux) to have infringed. It is starting to seem rather clear that Microsoft joined OIN only after extorting the lion’s share of OEMs that ship Linux-powered products. If they stop paying, Microsoft will sue them. Some “truce”, eh? Here is what Bloomberg wrote about this Microsoft patent extortion as recently as yesterday:

A lot has changed at Microsoft Corp. in the five years since Satya Nadella took over as chief executive officer. But sometimes the past comes roaring back, this time in the form of a patent suit that has gotten nasty.

Microsoft last week sued Hon Hai Precision Industry Co. for failing to pay royalties on intellectual property owned by Microsoft as part of a 2013 deal. Microsoft says Hon Hai, which is also known as Foxconn Technology Group, owes it missed payments and interest. In its filing with a California court, Microsoft alleges that for the past three years, Hon Hai hasn’t submitted the royalty reports required by the 2013 agreement and has refused to submit to an independent audit, which the agreement stipulated in the event of a dispute.

Foxconn’s billionaire chairman Terry Gou earlier this week accused Microsoft of a personal attack on him and his company, terming it a “wrongful” attempt to extract royalties on Android mobile operating software. While Hon Hai is the party named in the lawsuit, Hon Hai only makes iOS devices, and it is Foxconn’s Hong Kong-listed unit FIH Mobile Ltd. that makes Android phones for Huawei Technologies Co., Xiaomi Corp. and other vendors, according to Gou and FIH CEO Calvin Chih.

The amount in question is not significant, according to a person familiar with the dispute who asked not to be identified because the details aren’t public. But neither side wants to back down. Gou doesn’t want to pay and Microsoft wants to make a point that a deal is a deal.

So Satya Nadella is just another Steve Ballmer. His mask keeps falling off. There have been a lot more articles about this (we mentioned only a few of the earlier ones), including “Foxconn CEO: Microsoft’s real target is Huawei” (from the patent trolls’ lobby), “Foxconn lashes out at Microsoft over royalties” (Asian media), “Foxconn rejects Microsoft patent lawsuit” (British media) and “Foxconn rejected patent infringement lawsuit by Microsoft”. Here’s the side of the story which Western media does not like to tell, preceded by Microsoft’s usual nonsense:

Microsoft, in its statement, said that it had signed a contract with the Foxconn’s parent company Hon Hai in 2013 and the lawsuit is relevant to the audit and royalty reporting terms of that contract.

As Microsoft take serious approach towards fulfillment of its contractual obligations, so it also expects other companies to be following their contractual commitments seriously too; and Microsoft is working to resolve the disagreement with Hon Hai because of the importance of relationship with the company, Microsoft said in a statement.

Foxconn was previously operating as Hon Hai Precision Industry Co Ltd, and got the global attention after starting assembling iPhones for Apple.

[...]

At the news conference Gou said that Software companies not to bully the manufacturers, and questioned in a Facebook post earlier on Tuesday, why they would not claim from software using vendors to pay for patent royalties.

This is about software patents and about Linux-based operating systems. It seems clear that Microsoft has not changed. It was all PR, just smoke and mirrors for the cameras.

03.14.19

EPO ‘Results’ Are, As Usual, Not Measured Correctly

Posted in Deception, Europe, Patents at 5:07 am by Dr. Roy Schestowitz

EPO treating itself like a for-profit corporation that manufactures and delivers goods/physical items

EPO fragile parcel

Summary: The supranational monopoly, a monopoly-granting authority, is being used by António Campinos to grant an insane amount of monopolies whose merit is dubious and whose impact on Europe will be a net negative

LONGTIME READERS KNOW THAT TECHRIGHTS is not against patents but against patent maximalism (where patents have become like a religion, albeit motivated by interest in legal fees rather than scientific advancement). If patents are a case of “the more, the merrier” (they’re not), why not assign computer algorithms to generate billions of patents every hour, examine these by the billions per hour, and then put these online somewhere? Wouldn’t that take us to other galaxies? Or improve people’s lives?

The number of patent applications declined at the U.S. Patent and Trademark Office (USPTO) last year, the first year of Director Iancu, who is nowadays trying to signal that the Office will become a lot more lenient because quality of patents or merit of a monopoly is “not his department”. But this post isn’t about the US and we’d rather not focus on it. Let’s focus on Europe.

“If patents are a case of “the more, the merrier” (they’re not), why not assign computer algorithms to generate billions of patents every hour, examine these by the billions per hour, and then put these online somewhere?”EPO ‘Results’ (they use this term) are akin to financial results of corporations. They fail to actually measure something meaningful. We wrote many rebuttals (literally dozens) in 2017 and 2018 (about 2016 and 2017 ‘performance’, respectively). In past years we responded to or rebutted many press articles, but it can be an exercise in futility. They’re not really trying to report facts but to repeat what the PR department of the European Patent Office (EPO) tells them to print. Some media organisations had reported the results before the EPO announced these, so there was clearly a degree of prior coordination (if not “collusion”). That’s also true this year (earlier this week), as we noted two days ago. The EPO has been granting bogus software patents, dubbing these “AI” etc. in order to overcome the fact they’re against the EPC. Lots of fake patents have in general been granted, not just software patents. Seeing dozens of shallow, fact-free ‘articles’ about EPO ‘Results’, we’re hardly surprised. See the EPO’s Belgium slant from yesterday (as usual, cherry-picking countries to highlight only favourable figures) and this misleading propaganda (“UK pharma sector continues to grow” is the headline). The EPO has lowered the patenting bar, this does not mean that the sector is growing (never mind how awful a measure of growth patents are).

IP Watch and IAM also participated in relaying the EPO’s texts (even figures!) and IAM has just published this advice for software patents in Europe, courtesy of Carpmaels & Ransford LLP again. The EPO has made it easier to pursue software patents, more so under Campinos, with buzzwords like “AI” that nowadays just refer to “algorithm” or “computer” (nothing more sophisticated than an if-else statement). To quote:

As the law develops, the EPO updates its Guidelines for Examination in order to help patent applicants decide whether their inventions are likely to be considered patentable. Recently, the EPO has added a specific section to the guidelines on AI.

In addition, the guidelines now include clarification on how inventions directed towards graphical user interfaces are assessed. In summary, if a graphical user interface credibly assists the user in performing a technical task, then the invention is more likely to be patentable. However, if the invention merely provides an improvement from an aesthetic point of view, the EPO will take a negative stance.

That’s just ridiculous! But given what insiders are saying, this has gone on for a while.

“The EPO’s adoption of patent maximalism is going to cost Europe billions in damages; it may, as a side effect, also undermine the very existence of the Office.”We’ll continue to observe press coverage. We’re also seeing some press releases about patent grants, e.g. to HyperSolar [1, 2] and to Checkpoint Therapeutics. Earlier this week the former said:

HyperSolar, Inc. (OTCQB: HYSR), the developer of a breakthrough technology to produce renewable hydrogen, using sunlight and any source of water, today announced that it has received the European Patent Office (EPO) decision to grant the patent entitled “Multi-junction artificial photosynthetic cell with enhanced photovoltages”.

The latter said:

European Patent No. 3035936 specifically covers the compound CK-101 and a broad range of related compounds, salts and pharmaceutical compositions, including various dosage forms of such pharmaceutical compositions. It also covers certain uses of such compounds or salts in treating cancer or a disorder mediated by EGFR or NSCLC, either alone or in combination with an additional anti-cancer and/or cytotoxic agent.

Unlike software, this isn’t really my area/domain, so I can’t reliably comment on novelty. Having said that, one major concern to have is that legitimate patents get mixed with a lot of fake ones and the reputation of European Patents is, in general, eroding. The same goes for presumption of validity.

The EPO’s adoption of patent maximalism is going to cost Europe billions in damages; it may, as a side effect, also undermine the very existence of the Office.

03.12.19

Watchtroll Has Redefined “Trolls” to Mean Those Who Oppose Software Patents (and Oppose Trolls), Not Those Who Leverage These for Blackmail Alone

Posted in America, Deception, EFF, Law, Patents at 8:17 am by Dr. Roy Schestowitz

“EFF Trolls the Patent Office with ‘Save Alice Campaign’” (image below)

EFF Trolls the Patent Office with ‘Save Alice Campaign’

Summary: The controversial change to 35 U.S.C. § 101 guidance is being opposed by the public (US citizens who oppose American software patents), so patent maximalists like Janal Kalis (“PatentBuddy”) and extremists like Gene Quinn (Watchtroll) want us to believe that the public is just “EFF” and cannot think for itself

AT THE end of last year we promised ourselves not to feed the (Watch)trolls, but here they go again, not with the typical attacks on judges; rather, this time around they’re claiming that all these comments, personally submitted to the U.S. Patent and Trademark Office (USPTO) from people against software patents, are just “EFF” (they’re not) just because EFF issued a call for participation in a blog post (as did Watchtroll and others). It’s about the § 101 guidance water-down attempts by Iancu.

Gene Quinn wants us to think that because the EFF told people who oppose software patents and patent trolls to write to the USPTO it therefore means that any comment submitted to that effect came from EFF. Janal Kalis insinuated so explicitly and Watchtroll says it’s a form of “trolling” even if he himself does it all the time (so does Dennis Crouch, who urges people to push/nudge SCOTUS in trolls’ direction).

“To put it in plain terms, USPTO officials asked for input; patent maximalists told people to send such input and so did the EFF. But the patent maximalists now call the EFF a “troll” for doing so (as if it is harassing the USPTO).”Does the blog post from the EFF make them “Trolls”? Really? So opposing software patents is “Trolling”? That’s inverting the meaning of the term and never mind if the USPTO itself asked for such input and advertised the address to write to…

To put it in plain terms, USPTO officials asked for input; patent maximalists told people to send such input and so did the EFF. But the patent maximalists now call the EFF a “troll” for doing so (as if it is harassing the USPTO). Hypocrisy much? What gives? In relation to Janal Kalis (very vocal patent maximalist) we pointed this out as recently as yesterday, comparing it to the conspiracy theories about Google.

“It’s looking really grim for software patents in US courts.”From what we could gather, based on the tweet from Kalis, almost all the comments were against § 101 changes and in favour of Alice. Software patents are widely being opposed. It’s easy to see why Watchtroll is upset and why Quinn took another job, stepping down from “editor” position after two full decades.

There’s a better post titled “As USPTO Oversight Hearing Approaches, Some Questions On Eligibility” and it’s indirectly related to the above. Josh L. (CCIA) said this about the new § 101 guidance yesterday evening:

The new § 101 guidance makes two major changes to examination for subject matter eligibility. First, it requires examiners to classify abstract ideas into one of three categories: mental processes, mathematical formulas, and methods of organizing human activity. Claims directed to an abstract idea not in one of these categories are to be allowed. Second, it bars examiners from considering whether a given claim is directed only to an abstract idea plus routine and conventional technology if the claim is “integrated into a particular application.” If a claim is integrated, but using conventional technology, the guidance would require an examiner to allow the claim. Both changes represent departures from previous examination practice and both appear to present the potential for conflict with case law. CCIA has commented on these disparities, and suggested that the USPTO clarify the guidance to ensure that it helps examiners comply with case law. However, there’s no guarantee the USPTO will make any such changes—for example, the USPTO recently declined to make any changes in response to public comments on the 2018-2022 Strategic Plan.

Given the possibility that the guidance will remain unchanged, it’s important to consider how it might have been applied to patents that we know have been invalidated under § 101 in a district court. A recent set of arguments in Delaware provides a set of three patents of just that type.

In the US, more so in 2018 and in 2019, a lot of patents are now presumed invalid and the damage cannot be undone for decades to come (expiry takes 2 decades). Later today in our daily links we’ll include articles about new court decisions/case outcomes to that effect. It’s looking really grim for software patents in US courts.

EPO’s Latest ‘Results’ Show That António Campinos Has Already Given Up on Patent Quality and is Just Another Battistelli

Posted in Deception, Europe, Patents at 7:39 am by Dr. Roy Schestowitz

…And the EPO’s PR People Write the Press Articles

Bureau of Engraving and Printing
Reference: Bureau of Engraving and Printing

Summary: The patent-granting machine that the EPO has become reports granting growth of unrealistic scale (unless no proper examination is actually carried out)

THE European Patent Office (EPO) is driving into a wall at full speed. António Campinos took over from Battistelli, but he’s still pressing the pedal for full throttle, adding yet more advocacy of European software patents in defiance of courts, Parliament, EPC and so on. Europe will pay for it. Businesses and people will get sued; frivolous lawsuits (or pre-settlement).

“Europe will pay for it. Businesses and people will get sued; frivolous lawsuits (or pre-settlement).”The EPO doesn’t care about patent quality anymore. Not one iota!

Here is yesterday’s post from Dr. Thorsten Bausch, a patent attorney. He remarks on the EPO’s shallow effort to divert away from discussion about patent quality in examination in Europe (focusing on speed instead). To quote:

The signals from the contracting member states and earlier user feedback were also mixed, thus raising the question what the EPO will now do with all of this. Spoiler: the EPO document provides no hint whatsoever in any direction; it merely lists the main arguments provided by both opponents and proponents and thus allows everybody to develop an informed own opinion.

For background, in autumn 2017, the EPO presented a proposal bearing the slightly unfortunate, if not downright misleading, title „User-driven Early Certainty“ (UDEC) offering applicants the possibility to postpone the start of substantive examination by a maximum period of 3 years. Let us forget about the title and focus on the substance and the rationale behind it. It was to provide applicants more time, where needed, to decide about the economic relevance and scope of protection for an invention before incurring significant prosecution and validation costs.

I must say that I always found this rationale quite sensible and liked the idea. This may possibly have to do both with my national and my technical background. In Germany such a possibility has existed for ages (more than 50 years, see §28b PatG 1968) and has never since caused a lot of problems or discussions, at least as far as I can remember. One can also hardly argue that the option of deferred examination has greatly harmed innovation or stifled competition in Germany, which was a fear expressed by some opponents against the EPO’s proposal for flexible timing of examination (abbreviated FTE in the following). And in my technical field, i.e. chemistry and pharmaceuticals, I am constantly reminded on how many inventions never make it to market for regulatory or economic reasons and how many applications are dropped in the course of the examination proceedings despite a positive evaluation of patentability by the EPO. If an opportunity existed to defer the examination of these applications at applicant’s request, I do not see why this would cause any harm to the public or applicant’s competitors. And the EPO would have more capacity to examine the urgent applications faster.

Another German has just published a report about Munich I Regional Court, where Qualcomm comes to discover that many of its European Patents are bunk. “It’s also very, very likely that the EPO will revoke those patents,” he wrote, “in which case Qualcomm will have to appeal the Opposition Division’s decision to a Technical Board of Appeal. All of his is taking time, but those cases are pretty clearly going nowhere.”

“The EPO doesn’t care about patent quality anymore. Not one iota!”Well, they know that these patents might never be challenged as it’s too expensive (especially when patents are leveraged in bulk). Herein lies the danger of the EPO’s overpatenting strategy — one that foreign companies are all too eager to exploit while they can.

This brings us to this morning’s “news” (or ‘news’ with scare quotes). Yesterday the EPO wrote: “Tomorrow is the day we will announce the Office’s achievements in 2018. Stay tuned to learn about the key players in innovation.”

“These “achievements” are the granting of false, low-quality, bogus, bunk and fake European Patents,” I told them, “that will cost the innocent accused parties billions in legal fees. Well done, EPO!”

The EPO has already signaled that it accepts all sorts of crazy patent applications (e.g. algorithms as “AI”), so guess what happened? The rubber-stamping operation reports ‘growth’ (in likely invalid monopolies). This was published this morning in the EPO’s site (warning: epo.org link) and then this tweet: “The EPO Annual Report 2018 is out! Demand for patent protection reaches a new high: 4.6% growth in applications filed and 21% more European patents granted.”

“The EPO has already signaled that it accepts all sorts of crazy patent applications (e.g. algorithms as “AI”), so guess what happened? The rubber-stamping operation reports ‘growth’ (in likely invalid monopolies).”“European Patent quality has collapsed and these numbers confirm it,” I told them. Curiously enough before they even published these results to the public there were already press articles about it in the US (Bloomberg) and Ireland (Irish Times). Those articles were published before the EPO even announced the results, which means that PR people had coordinated these articles in advance. As usual…

The takeaway is that the EPO is granting loads of invalid European Patents. But it’s expensive to invalidate these. So large multinationals exploit this corruption of the EPO’s goals. “U.S. companies submitted a record number of patent applications to the European Patent Office in 2018, retaining the country’s status as the most prolific filer,” said the outline from the US. A very high proportion of these won’t be really examined because the EPO has transformed into “rubber-stamping” status. Insiders say so too. The Irish article was eerily similar (same ‘script’) and it was pure spin; no doubt there are more like it right now (more such spin, more articles) and days to come will accompany that slant, just like every year; we shall see who just repeats PR talking points and who actually investigates the claims and puts them in context/perspective.

“Lowering patent quality and granting loads of monopolies is not a success story but a growing danger to Europe.”What are patents-centric ‘news’ sites doing? EPO PR.

Friday’s PR blitz/charm offensive (see our rebuttal in this post) led to puff pieces and PR like this from IPPro Magazine’s Ben Wodecki, who now serves as PR amplifier of EPO management. His colleague is the one who typically gives a voice to SUEPO.

And here we have Managing IP, another longtime megaphone of EPO management (including Battistelli himself), amplifying patent maximalism agenda:

In-house counsel at Barclays and Amadeus, plus a director at the EPO discussed the conundrum of global patent eligibility at a Managing IP conference in London

Yes, go on and suck up to EPO management, just like IAM and others. Wait and watch the amount of spin we shall see this week about EPO “success”. Lowering patent quality and granting loads of monopolies is not a success story but a growing danger to Europe.

03.09.19

From Patents on Chewing Gum to Toothpaste Patents: How the EPO Came to Focus on Speed and Volume, Not Quality

Posted in Deception, Europe, Patents at 12:56 pm by Dr. Roy Schestowitz

“The people who are running the Office are to patents what the Trump administration is to climate science.”

Canine dental hygiene

Summary: There’s still no proper quality control in place for European Patents — a severe problem which will only further exacerbate the legal uncertainty associated with all European Patents

THE European Patent Office (EPO) continues to intentionally dodge a debate about patent quality and instead focuses on speed, which is meaningless (by this yardstick, instant grant is “best”, involving no examination whatsoever). An article was published yesterday to highlight a problem with the EPO’s so-called ‘study’ (number of respondents also relatively low). To quote:

Only 627 EPO users answered the survey; more than 300 said they would be in favour of a procedural option for postponing examination.

He noted that the comments against a system for postponing examination “highlighted the downsides for third parties and the public at large that would be caused by prolonging the pendency of applications”.

In this regard, any results would need to be “viewed with care” according to Watson as “third parties would be less likely to comment on a change to patenting procedures than regular patent applicants”.

Watson concluded that he was “not convinced” the data showed an overwhelming need for an overhaul.

Well, the pendency of patent applications isn’t really the main problem; it should hardly be a problem at all as it’s accuracy and precision that matter. Making the wrong judgment is the real problem — a problem that the EPO is unwilling to address, let alone entertain. It denies that a quality problem even exists. The people who are running the Office are to patents what the Trump administration is to climate science.

Sadly for António Campinos and ‘chums’, people are noticing the decline in quality and expansion of scope that now vastly exceeds what’s allowed as per the EPC (e.g. software patents which are basically mathematics and patents on life, both tackled in 35 U.S.C. § 101 at the U.S. Patent and Trademark Office (USPTO) after SCOTUS ruled on Alice and Mayo half a decade ago).

“Making the wrong judgment is the real problem — a problem that the EPO is unwilling to address, let alone entertain. It denies that a quality problem even exists.”UDL Intellectual Property’s [sic] Simon Mitchell has just mentioned a subject we wrote about yesterday. If the EPO falsely asserts it can grant patents on life and nature in defiance of its founding document and European Parliament, courts will just throw out these patents and reduce confidence in European Patents, in turn reducing “demand” for them (yesterday the EPO actually used the word “demand” as though it is a corporation selling something).

We have meanwhile found out, based on a pair of press releases [1, 2] (one a correction), that not only did the Office recently grant a laughable patent on chewing gum; now there’s toothpaste. Next on the menu: patents on food recipes?

To quote the company: “Patent No. 2563316 [is] entitled, “Toothpaste for Allergic Desensitization via the Oral Mucosa.” The patent includes claims to the approach of combining allergenic proteins with toothpaste.”

“That’s the same kind of thing Theranos said after the USPTO had given it patents and EPO hailed/lauded the founder, a literal fraud, as champion of innovation.”So they are blending a couple of chemicals. Innovation!

The CEO of this company is quoted as saying: “The grant of this key patent further validates the novelty of the OMIT platform and enables us to accelerate the development of new options for allergy sufferers.”

That’s the same kind of thing Theranos said after the USPTO had given it patents and EPO hailed/lauded the founder, a literal fraud, as champion of innovation.

03.08.19

The Tide Has Turned Against Patents on Life in Europe

Posted in Deception, Europe, Patents at 5:22 am by Dr. Roy Schestowitz

Flora and fauna aren’t inventions

Sad hyena

Summary: “No Patents on Seeds” continues to challenge the utterly bizarre notion that plants, animals and even seeds or embryos are human inventions; thinly-veiled propaganda sites of law firms that profit from such lunacy try to discredit “No Patents on Seeds”

HAVING just commented on software patents being granted by and promoted by the European Patent Office (EPO), let’s examine where they stand on another outrageous kind (or family) of patents. Soon after 'Teffgate' the subject is resurfacing again, thanks to “No Patents on Seeds”.

“EPO lettuce patent hit by opposition from pressure group,” IPPro Magazine wrote some days ago (we mentioned it on Wednesday). “Pressure group No Patents on Seeds has filed an opposition against a European patent on lettuce claiming it is derived from convention breeding,” they said in the opening sentence, repeating the term “pressure group” to describe “No Patents on Seeds” as if it’s some notorious lobbyist that bullies or bribes officials. Why the negative connotation? Doesn’t the pressure come from thugs of Monsanto/Bayer and their lawyers who claim they own life and intimidate if not bankrupt small farmers around the world?

Life Sciences Intellectual Property Review, a propaganda (or “pressure”) site for patents on life, has also just commented on it, dubbing “No Patents on Seeds” an “Activist group” in the headline (first two words) and same in the article. “Activist” is a label once explained by Jacob Appelbaum (Wikileaks) as derogatory; media like The Guardian, he argued, uses the word “activist” to insinuate one lacks legitimacy of a journalist, scientist, historian etc. From the article in question:

Activist group No Patents on Seeds has filed an opposition against a patent on lettuce, owned by Dutch food supplier Rijk Zwaan Zaadteelt.

Announced yesterday, March 6, the activist group has opposed EP 2,966,992 B1, a patent covering lettuce seeds, plants and the harvest of lettuces that grow in a hotter climate.

According to No Patents to Seeds, the trait is supposed to be helpful in adaption to ongoing climate change and the seeds are derived from conventional breedings without any involvement of genetic engineering.

Earlier this week an article by Michael Dow (Madderns Patent & Trade Mark Attorneys) was published under the headline “Are plants patentable in Europe?”

The fact that questions like these are even being asked is significant as it highlights a low level of quality assurance at the EPO. To quote:

The rules keep changing over whether plants or plant products obtained by means of an essentially biological process are patentable in Europe.

Under Article 53(b) EPC (and Article 4 Biotech Directive), European patents shall not be granted in respect of plant varieties or essentially biological processes for the production of plants. Originally, this was interpreted to extend to plants and plant products obtained by means of an essentially biological process.

This was challenged in Broccoli/Tomatoes I ( G 0002/07 & G 0001/08) and Broccoli/Tomatoes II ( G 0002/12 & G 0002/13), following which, it was allowable to have a product claim directed to plants or plant material such as a fruit, even though the plant or plant material might be obtained by an essentially biological process, which is not patentable.

The European Commission considered the issue ( 2016/C 411/03) and took the view that the EU legislator’s intention when adopting the Biotech Directive was to exclude from patentability products (plants and plant parts) that are obtained by means of essentially biological processes.

The Administrative Council of the EPO then introduced Rule 28(2) to modify Article 53(b) EPC. Rule 28(2) states that European patents shall not be granted in respect of plants exclusively obtained by means of an essentially biological process.

So the European Commission does not seem to matter to the EPO, whose terrified-by-the-office judges were willing to reopen the floodgates to these dubious patents.

As we said several times last year, such patents do not contribute to innovation and they only serve to discredit the Office and provoke the public (which occasionally protests in front of the Office).

03.04.19

Unitary Patent (UPC/A) Constitutional Complaint Can be Decided in a Matter of Years (If Ever)

Posted in Deception, Europe, Patents at 1:08 pm by Dr. Roy Schestowitz

Bristows should be disbarred for endlessly lying, manipulating the processes and even worse things

A sleepy cat

Summary: Blogs like IP Kat are still beholden to and controlled by Team UPC/Bristows; the same goes for Kluwer Patent Blog because of the blog’s ownership; when facts are assessed by firms other than Bristows, however, the story is entirely different

OUR regular readers can probably remember, as we mentioned it about a dozen times, that Bristows had intentionally spread false rumours at the later part of last year. Their staff did this repeatedly. It’s a classic but nefariously lobbying tactic, akin to AstroTurfing or what people nowadays call “fake news”.

Team UPC at IP Kat (Bristows) has just — a mere couple of hours ago — pushed agenda of patent trolls and FRAND and Brian Cordery (also Bristows) pushed SPC agenda at around the same time at Kluwer Patent Blog. It’s all related, albeit indirectly, to their UPC agenda and in the former case to software patents in Europe.

Hours ago we also saw Mark Bell of Dehns (Team UPC) pushing UPC promotion in a paid ‘article’. These ‘unitary’ patent fantasists have lost a grip/sight of reality, but at least this one is refuting Bristows by casting doubts on the decision’s year, as did JUVE when it said no oral appeals had taken place and it may take long (2020). Bristows pushed this nonsense about 2019 in lots of Web sites; it was almost always Bristows (in other people’s blogs or quoted in some news sites), but Bell says it’s not even certain that a decision will come this year (see headline). To quote:

Once again, the German Federal Constitutional Court (BVerfG) has listed the “Constitutional Complaint” against German ratification of the Unified Patent Court Agreement (UPCA) on the cases to be decided for the coming year. Followers of this saga will be aware that the case was on the 2018 list but was not heard.

While it appears likely that the UPCA case will now be heard this year (the judge assigned to the case appears to be close to completing the earlier cases on his list), it is still uncertain whether and when this will lead to the UPC being established.

[...]

It is the UK government’s position that it intends for the UK to stay part of the unitary patent system following Brexit. The official guidance omits to comment on what might happen should, as is looking likely, the UPC fail to be established before the UK leaves the EU.

What happens after Brexit is currently unknown, so it is difficult to say with any confidence whether the German constitutional challenge and the UK leaving the EU will prevent the UPC from being established, prevent the UK from participating in the UPC or everything will proceed as planned. The latter in particular would require a number of legal hurdles to be overcome.

The latest developments surrounding Brexit have only further reduced chances of UPC ever materialising, as we recently explained. It’s probably safe to say that the UPC is dead unless there’s some major mischief (again) in the making [1, 2]. Bristows is the boy who cried “wolf!” not thrice but literally hundreds of times (that we’ve noticed). Who would be foolish enough to take their word seriously and what’s the threshold for getting disbarred/sanctioned? They give lawyers a really bad name. They’re chronic liars.

03.01.19

Why Justin Simpson is Wrong About Software Patents

Posted in Australia, Deception, Patents at 1:43 am by Dr. Roy Schestowitz

CEO and Patent Attorney at Billtrader Pty Ltd

Summary: Yet another boring article lectures us on why software patents are ever so wonderful, based on people who make a living from software patents without having written any software/code

TECHRIGHTS already wrote/published a lot of articles about why software patents are bad. I’ve been writing on the subject since a decade before Alice/35 U.S. — i.e. when the U.S. Patent and Trademark Office (USPTO) had to begrudgingly accept that software patents almost always perish in American courts; the same is happening in European courts, never mind if the EPO promotes software patents in Europe under the guise of “AI”, “4IR”, “ICT”, “CII” “Blockchain”, “IoT” and all sorts of other ridiculous buzzwords.

“It’s some new (albeit tiring, repurposed) propaganda from Justin Simpson.”We were therefore a little curious to see a CEO and Patent Attorney at Billtrader Pty Ltd (small firm) publishing this piece titled “A new type of patent: the software patent”; Australia’s litigation ‘industry’ has been writing more and more about it lately (see this index of articles), but this one page is 15MB in size (yes, 15 megabytes for just a few paragraphs of text; very bad implementation). It’s some new (albeit tiring, repurposed) propaganda from Justin Simpson. Debunking this propaganda is very easy, albeit highly time-consuming (due to length), so let’s just break apart two consecutive paragraphs and dissect these.

“Debunking this propaganda is very easy, albeit highly time-consuming (due to length), so let’s just break apart two consecutive paragraphs and dissect these.”Simpson wrote: “Software has value. Google, Facebook, and Amazon are software companies.”

Water also has value (billions of people depend on water for their very survival) and utilities/water treatment companies make billions of dollars each month. Should we patent water?

“Their core value is created by the clever software they have built.”

Software that is covered by copyrights and is often kept secret (proprietary) anyway. The above three companies very rarely use patents to sue, unlike IBM and Microsoft.

“Those three companies alone are worth nearly $2 trillion. That’s nearly double the GDP of my home country, Australia.”

“Water also has value (billions of people depend on water for their very survival) and utilities/water treatment companies make billions of dollars each month. Should we patent water?”Is he trying to imply that it’s the patents that add up to value? Putting aside the fictional aspects of these speculative valuations…

“So why is it that software is not patentable?”

Well, because empirical evidence does not support claims that they’re needed for innovation and copyright alone already covers the need. There have been a lot of studies about it (scholarly, too).

Here is his explanation however:

“The reason is that the courts must base their decision on existing laws and past cases that were written well before software was invented. Laws that could not have envisaged the nature and role software plays in modern society.”

Similar arguments are being made for patents on life and nature. Will he defend patents on human beings too? Or seeds?

“Articles like these have become common and they’re always pretty shallow.”These boring old arguments (nothing novel about them; every sentence or paragraph is dingo droppings) aren’t going to sway or convince anyone but the target audience of the site, with its patentism (like a religion revolving around worship of patent monopolies).

So the bottom line from Mr. Simpson is, make software patents possible and “bam!” Suddenly the GDP of Australia will be tripled. Right? It’s all about him looking for more clients (more billing opportunities), earning at the expense of people who actually write code.

Articles like these have become common and they’re always pretty shallow. Pure marketing (shameless self-promotion).

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