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03.31.19

Technology Groups Implore the Deplorable Patent Office of Iancu and Trump

Posted in America, EFF, Patents at 10:59 pm by Dr. Roy Schestowitz

Old: Andrei Iancu’s Firm Has a History Working With Trump, But Senate Says OK to Him Becoming USPTO Director

Trump and Iancu

Summary: The “New USPTO Patent Eligibility Guidelines,” as Stuart Meyer (Fenwick & West LLP and Bilski Blog) puts it, have been broadly condemned by technical people, unlike lawyers and attorneys who thrive in frivolous litigation

35 U.S.C. § 101/Alice (SCOTUS) has compelled the U.S. Patent and Trademark Office (USPTO) to either stop granting software patents or risk the perception that it is granting patents it knows courts would reject (if a lawsuit was filed).

Last year the USPTO received fewer quantities from its “customers” or “clients” (what it calls applicants) and the number of granted patents decreased (compared to what it had granted the prior year, under Michelle Lee).

Iancu is trying to turn things around by simply ignoring the courts and mistreating the law. Having asked for public feedback (in an open consultation), the vast majority of letters condemn him for it. So the patent maximalists keep pretending it’s all “EFF” (simply because the EFF wrote a blog post on the subject) and days ago Stuart Meyer (Fenwick & West LLP) wrote [1, 2] about it as follows:

Compared with the organizations discussed above, the Electronic Frontier Foundation had quite a different view. EFF, on behalf of “its more than 39,000 dues-paying members,” said that the Guidance “effectively instructs examiners on how to narrow the Alice v. CLS Bank decision instead of how to apply it correctly,” and calls it “contrary to law.” EFF faulted the Guidance for defining ineligible abstract ideas to include only mental processes, mathematical formulas, and methods of organizing human activity; EFF asserted that cases have identified others “that do not neatly fit into those three narrow categories.” EFF also asserted that the Guidance creates “an entirely new and unprecedented step” for eligibility. EFF argued that even if the Federal Circuit can resolve patent-eligibility as a matter of law at the first step, “the same is not true for examiners,” who EFF argued should “conduct the full, two-step patent-eligibility analysis in the first instance” to fend off “a loophole that allows applicants to avoid the inventive concept requirement.” EFF noted that the Guidance sets up a situation in which “examiners will apply a substantially different test than district courts.”

More generally, EFF argued that “Alice has been a critical tool” in helping software developers and users “defend against meritless patent lawsuits and litigation threats.” EFF attributed a rise in R&D spending on “software & Internet” as attributable to Alice; it said the Guidance would “guarantee that patents on basic ideas continue to issue despite Alice, and thus continue to tax and impede research and innovation….”

EFF’s attempt to elicit input from opponents of the guidelines also experienced significant success. The organization’s “Save Alice” campaign provided model language for detractors to paste into their comments, and many individuals did just that. There were about 2,500 comments submitted to the USPTO by individuals, and a sampling suggests that the vast majority of these comments were cut-and-paste from the text EFF suggested for this campaign. By way of comparison, in the “pro-Guidance” camp, a far smaller but still significant number of comments were cut-and-paste from campaigns of one or more inventors’ associations. The number of bespoke comments from individuals paled in comparison to the cut-and-paste numbers.

Also somewhat critical of the Guidance was the Software & Information Industry Association. SIIA noted that its “members have benefitted greatly from the patents they own. Yet they also rely on the limits of patent protection, as those limits preserve and protect their ability to innovate. As such, SIIA’s collective membership sits at the crossroads of the countervailing interests….” SIIA asserted that synthesizing just a few categories from the judicial decisions resulted in pairings of cases and categories that “may or may not fit.” SIIA proposed “a fourth category to capture all precedent,” thereby allowing examiners to reject claims more directly based on a prior judicial opinion. SIIA said that with such a category, examiners would have more freedom to make initial rejections in appropriate circumstances without the need for higher level approval. In addition, SIIA worried that, “By specifying that the abstract idea must be ‘recited on [its] own per se,’ the 2019 Guidance may encourage clever drafting efforts to avoid explicitly reciting an exception in the claim.” SIIA saw this as a departure from prior guidance and the caselaw. Finally, SIIA said that the USPTO “should be clearer with respect to the specificity of the computer implementation necessary to amount to an integrated practical application.”

It is worth noting that technology companies oppose Iancu’s proposal. They also support Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) — another thing that has come under attack from Iancu. In many ways he turned out to be an 'American Battistelli'.

Who likes Iancu? The people who come from the same profession as him. The patent litigation giants are still panicking over Alice and seeing that they are running out of ‘business’ (not many new patent lawsuits are being filed), they regroup and come up with ridiculous new headlines, such as “Who Will Win the Alice Race?”

A belated Happy New Year to all of you! As I reflect on this column, which has gone through various permutations over the past seven years, I am amazed how readership has grown organically via the Tangible IP website from a dozen (including several family members) to more than 15,000 professionals in the IP and business communities.

I must admit, this baby is a real time investment. But every time I think of retiring it, someone new tells me that he or she actually reads it and even enjoys it. Go figure!

A lot of these people will need to change jobs. Some already have. IPO is now training people on PTAB and there’s another new example about “[t]he “new” § 101 landscape in the PTO and District Courts…”

Maybe these people can make a living by invalidating ridiculous patents rather than flood the system with more and more of them (plus lawsuits).

03.13.19

In the Age of Trumpism EFF Needs to Repeatedly Remind Director Iancu That He is Not a Judge and He Cannot Ignore the Courts

Posted in America, EFF, Patents at 2:15 am by Dr. Roy Schestowitz

Trump and Iancu

Summary: The nonchalance and carelessness seen in Iancu’s decision to just cherry-pick decisions/outcomes (basically ignoring caselaw) concerns technologists, who rightly view him as a ‘mole’ of the litigation ‘industry’ (which he came from)

AS WE have noted many times before, the U.S. Patent and Trademark Office’s (USPTO) Director Iancu cannot do anything to change courts' decisions unless he attacks judges the way Battistelli did at the European Patent Office (EPO) — something that he began doing in subtle ways some months back. His agenda was all along very clear to see (no surprise here; Iancu is worse than Ajit Pai and it’s not hard to see why he got this job at the USPTO), but the EFF’s alarmist headlines did not help. We have confidence that 35 U.S.C. § 101 will be upheld by SCOTUS, the Federal Circuit, and the Patent Trial and Appeal Board (PTAB), whose inter partes reviews (IPRs) were also upheld as constitutional (as per the US Constitution) less than a year ago. The EPO, by contrast, no longer respects its ‘constitution’, the EPC. It was in fact promoting software patents in Europe as recently as half a day ago, pretending these patents are “for SMEs” and “medical”. This is why EPO abuses have taken priority for coverage here.

“We weren’t always supportive of the EFF’s approach; in fact, we often condemned it as weak and poorly thought out (from a strategic perspective).”The EFF’s Alex Moss has just published this blog post to say that the US “Patent Office should instruct its examiners to apply [Alice] as well—not to effectively rewrite its own wishes into the Supreme Court’s decision.”

Here’s more:

Last month, we asked EFF supporters to help save Alice v. CLS Bank, the 2014 Supreme Court decision that has helped stem the tide of stupid software patents and abusive patent litigation. The Patent Office received hundreds of comments from you, telling it to do the right thing and apply Alice, not narrow it. Thank you.

Last week, EFF submitted its own comments [PDF] to the Patent Office. In our comments, we explain that Patent Office’s new guidance on patent-eligibility will make it harder—if not impossible—for examiners to apply Supreme Court law correctly. If examiners cannot apply Alice to abstract patent applications, more invalid patents will issue. That’s not only bad for innovation, it also violates fundamental principles of divided government. The Supreme Court interprets laws that Congress passes, not executive branch agencies like the Patent Office.

The Patent Office’s new guidance aims to undermine Alice in two ways. First, the Guidance narrows ineligible abstract ideas to only three possibilities: mental processes, mathematical formula, and methods of organizing human activity. No Supreme Court or Federal Circuit has ever said only three categories of abstract ideas exist. In fact, the Supreme Court in Alice went out of its way to explain that it was not going to “labor to delimit the precise contours of the ‘abstract ideas’ category in this case.”

That omission is not incidental. Instead, of defining a precise “abstract idea” category, the Court endorsed an approach that should be familiar to lawyers: figuring out whether the claims in a given case are abstract, by using past cases. That’s how the Court determined that the Alice patent—which covered the idea of using a third-party intermediary—was abstract. It was similar to other abstract patents, like one on the idea of hedging risk. Following Alice, courts have repeatedly recognized abstract ideas by comparing them to other abstract ideas. That is the method the Supreme Court has approved, and the Patent Office should instruct its examiners to apply it as well—not to effectively rewrite its own wishes into the Supreme Court’s decision.

Nazer, a colleague of Moss, recently moved to Mozilla and last week or the week before that he published an article at the same site that Mullin, now an EFF employee, used to write for. As we noted yesterday, patent extremists want us to believe that everyone who opposes software patents is just “EFF”. We weren’t always supportive of the EFF’s approach; in fact, we often condemned it as weak and poorly thought out (from a strategic perspective). In recent years, however, the EFF openly condemned and focused on software patents, not just trolls. EFF people have also, in general, been supportive of Techrights. There’s a lot in common, except Google money.

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.

02.16.19

Nobody But Patent Trolls and Litigators Will Benefit From the Corruption of the European Patent Office

Posted in EFF, Europe, Patents at 11:45 am by Dr. Roy Schestowitz

They profit from the chaos they are creating, abusing the authority given to them

EPO on a plane

Summary: IAM, EPO leadership, Iancu and the rest of these raiders are enabling corruption and facilitating or supporting a racket; that money they collect comes at the expense of future victims of their “clients” or “customers” (that’s what they call applicants, to whom they grant dubious monopolies as a matter of urgency)

THE DIRECTION the European Patent Office (EPO) has taken since António Campinos inherited Office is no different from Battistelli’s. One Frenchman just inherited another’s task. He inherited a policy that he has no problems with; he has also inherited all the worst elements of the U.S. Patent and Trademark Office (USPTO), notably software patents which we will deal with separately in our next post.

“The EFF, as it turns out, belatedly realises Iancu was all along trouble.”About a week ago the management of the EPO made it obvious that it works for overseas patent trolls; European businesses aren’t a priority. As patent maximalists have just put it : “The EPO and the Licensing Executives Society International have signed a memorandum of understanding with the intention of enabling innovators to make better use of the EPO system [...] The president of the EPO, António Campinos, and the president of the Licensing Executives Society International (LESI), François Painchaud, have signed a memorandum of understanding on bilateral cooperation at LESI’s Winter Planning Meeting in Miami.”

“Licensing” just means taxing and those who are doing this represent patent mills rather than innovators. On that same trip there were other revealing activities attributed to Campinos; he also met Andrei Iancu on that visit. Aseet Patel wrote in Watchtroll 2 days ago that “Andrei Iancu has led the charge to improve predictability of patent-eligible subject matter.” Rather the opposite; he promotes granting fake patents that are predictably bunk, reducing the legal certainty associated with US patents.

Over the weekend we’ve surveyed some of the latest software patents to be thrown out by US courts or get wrongly granted by the Office. This gross disparity shows that the USPTO departed from the rule of law (like EPO under Battistelli). The EFF, as it turns out, belatedly realises Iancu was all along trouble.

“The patent trolls’ lobby (IAM) responded to the EFF by speaking for trolls, heckling trolls’ exposers, and generally being strident as usual.”Authored by Joe Mullin under “Patent Trolls” (after had spent nearly a decade covering the subject) was this article (“Entrepreneurs Tell USPTO Director Iancu: Patent Trolls Aren’t Just ‘Monster Stories’”) on which he later expanded: “For 10 years as a journalist, I listened to entrepreneurs, big & small, complain of patent troll extortion. @uspto director Iancu is wrong to deny the harms that PAEs (trolls) cause. Proud to publish this letter from 24 biz owners who wouldn’t stay quiet…”

The EFF said: “The director of the @uspto has said patent trolls are nothing more than “monster stories.” Today, we’re publishing a letter signed by 24 small businesses that makes clear patent trolls are all too real.”

From the corresponding post:

Patent trolls aren’t a myth. They aren’t a bedtime story. Ask a software developer—they’re likely to know someone who has been sued or otherwise threatened by one, if they haven’t been themselves.

Unfortunately, the new director of the U.S. Patent and Trademark Office (USPTO) is in a serious state of denial about patent trolls and the hurt they cause to technologists everywhere. Today a number of small business owners and start-up founders have submitted a letter [PDF] to USPTO Director Andre Iancu telling him that patent trolls remain a real threat to U.S. businesses. Signatories range from mid-sized companies like Foursquare and Life360 to one-person software enterprises like Ken Cooper’s. The letter explains the harm, cost, and stress that patent trolls cause businesses.

Patent trolls aren’t a thing that happens once in a while or an exception to the rule. Over the past two decades, troll litigation has become the rule. There are different ways to measure exactly what a “troll” is, but by one recent measurement, a staggering 85 percent of recently filed patent lawsuits in the tech sector were filed by trolls.

That’s almost 9 out of 10 lawsuits being filed by an entity with no real product or service. Because the Patent Office issues so many low-quality software patents, the vast majority of these suits are brought by entities that played no role in the development of the real-world technology they attack. Instead, trolls use vague and overbroad patents to sue the innovators who create products and services. This is how we end up with patent trolls suing people for running an online contest or making a podcast.

This is unfortunately what also happened at the EPO.

The patent trolls lobby (IAM) responded to the EFF by speaking for trolls, heckling trolls’ exposers, and generally being strident as usual. It wrote a bunch of tweets like this: “The @unifiedpatents report the EFF links to states that 60% of high-tech litigation was instituted by PAEs last year. The EFF chooses to claim that 85% was instituted by Trolls, which is actually the percentage Unified allocated to all NPEs. Maybe @joemullin could explain why.”

IAM is literally funded by patent trolls and also by the EPO’s PR firm. IAM is almost literally an extension of the EPO’s PR department and it’s also lobbying Iancu, who spoke alongside Battistelli at IAM events.

“The EPO’s President and Iancu really don’t seem to get it. They’re consciously aiding trolls.”Josh from CCIA ended up feeding the troll (or the patent trolls’ lobby) [1, 2, 3] by stating: “But a number of individual inventors operate as trolls. (Eg, Landmark Technology, which Unified classes as an NPE – individual inventors and which accounts for a significant chunk of that category all by itself.) [...] And the individual trolls tend to be far more prolific than actual individual inventors when it comes to lawsuits. So, while some portion of that 25% may be the kind of inventors you describe, the clear likelihood is that the majority are trolls. To me, Joe’s piece holds. [...] If an individual inventor doesn’t practice their patent and seeks to enforce it, aren’t they definitionally an NPE?” (they are, by definition)

The EPO’s President and Iancu really don’t seem to get it. They’re consciously aiding trolls. A day ago the EPO wrote (linking to its “SME” nonsense, pretending to exist in the name/interests of the “small guy”): Negotiation is the preferred way to solve potential infringement issues; litigation is regarded as a last resort.”

“Negotiation” is sometimes merely a euphemism for blackmail and extortion, I’ve told them — something that the EPO facilitates with low-quality and incorrect grants for patent trolls. These prey the most (or most effectively) on SMEs that aren’t able to afford a legal fight (day in court), so they end up settling over patents they know to be bogus.

There’s meanwhile this new article by Toby Hopkin and Mark Roberts (J A Kemp) in which they speak of PCT. They say that “granted EP patent may be used to streamline prosecution before other national patent offices of interest,” but what if this European Patent is a fake one? Only blackmailing patent trolls benefit. This goes back to Battistelli with his notorious “Early Certainty” (preliminary decisions before facts are even known). To quote:

In 2014, the EPO launched the Early Certainty initiative to speed up the patent granting process. This initiative has resulted in speedier establishment of search reports and a shorter examination procedure. As can be seen from the chart, the result is that the number of EP patents granted since the launch of the initiative has increased far more quickly than the number of patent applications filed. This is confirmed by our experience, in which a quicker turnaround time has been noticeable, with an increasing number of applications proceeding to grant directly after a response to the search report is filed.

While options exist to slow down prosecution if desired, this increased prosecution speed opens up a new possibility for an international filing strategy. The strategy proposed below shows that a granted EP patent can be secured before the 30/31m deadline for further PCT national phasing, especially where a positive WO-ISA is issued by the EPO.

The granted EP patent may be used to streamline prosecution before other national patent offices of interest, especially if a national patent office is part of a Patent Prosecution Highway (PPH) agreement. For example, the IP5 PPH covers the five biggest patent offices, namely China, Japan, Korea, the United States and the EPO.

We’ve already written a great deal about the problems associated with “Early Certainty” and PPH. They’re basically rushed ‘judgments’ or leap towards conclusions before facts are even assessed. We’ve already seen how that’s misused for raids and embargoes, including at the EPO. Later it turns out that the underlying EPs are bogus.

02.07.19

Donald Trump’s ‘Swamp’ Inside the U.S. Patent and Trademark Office is Not Obeying Courts, It’s Even Disregarding the Law

Posted in America, EFF, Law, Patents at 7:09 am by Dr. Roy Schestowitz

‘Swamp’ of vast proportions and Trump’s own making

Vikingland

Summary: In spite of the fact that US courts continue to reject software patents (even more so this year, at least so far) people like Iancu and fellow appointees (with connections to patent trolls and Trump) pretend that 35 U.S.C. § 101 is a problem which needs to be overcome

THE EPO scandals should have become familiar to longtime readers. The Office basically operates outside the rule of law, it attacks judges, and it routinely violates the rights of its own staff. It’s run by autocrats and dictators who are well connected (the current President, for instance, is an old friend of his predecessor).

“Having reviewed this week’s tweets and articles, it seems clear that patent maximalists lack any “good” news from CAFC, PTAB and district courts, so they obsess over rare and exceptional patent application anomalies (situations where PTAB and examiners do not agree).”We have been seeing similar patterns in the Office across the Atlantic lately. Many top-level appointments are patent maximalists with history working for patent trolls. The Director's firm had worked for Donald Trump before Trump gave him the job. The main person of the Patent Trial and Appeal Board (PTAB) has since then been removed (or compelled to leave), the Federal Circuit‘s (CAFC) judgments are being ignored (or cherry-picked at best), and 35 U.S.C. § 101 (Section 101) is being worked around in spite of Alice (SCOTUS). This means that examiners end up granting many patents in error.

Having reviewed this week’s tweets and articles, it seems clear that patent maximalists lack any “good” news from CAFC, PTAB and district courts, so they obsess over rare and exceptional patent application anomalies (situations where PTAB and examiners do not agree). Watchtroll (the patent trolls’ and software patents advocacy site) has just published “Bioinformatics Innovations Thrive Despite 101 Chaos”; but Section 101 is order, not chaos. Unless you’re a parasitic lawyer whose business is litigation and blackmail. Patently-O has just moaned about another Alice/Mayo case (Section 101). They just don’t get their way, do they?

EFF and other groups [1, 2] have been promoting this new post of Daniel Nazer from the EFF on why software patents are problematic, along with a call for action on Section 101 (at the Office):

The Supreme Court took a major step in cutting back on abstract software patents when it issued its landmark ruling in Alice Corp. v. CLS Bank. Since then, courts have thrown out hundreds of patents that never should have issued. Unfortunately, the Supreme Court’s ruling is under threat. The Patent Office has proposed new guidance that, in our view, is inconsistent with Alice and would lead to a renewed flood of bogus patents. Please join us in submitting comments asking the Patent Office to abandon this plan.

EFF critics like to frame it in the context of Google (not entirely wrong any longer), but the issue is very much real and the concern is very broad. Using a dozen of so software patents in Eastern Texas, for instance, one parasite targets Google right about now and Patently-O reports that Google is hoping to shift venue (anything but Texas). Patently-O has also just amplified Trump SOTU lies on so-called ‘IP’ (as did IP Watch).

“…where were groups like the EFF back then? Nowhere. They obstructed legitimate opposition to this whole “swamp” situation.”The bottom line is, the Office and Trump are the main issue, not the courts. At the moment it’s only the Director of the U.S. Patent and Trademark Office (USPTO) who gleefully defies caselaw [1, 2]. It’s a shame that groups like EFF or CCIA are too polite to call for his resignation; before he got the job we had repeatedly opposed his appointment (the nomination came from Trump and his notorious, corrupt cabinet); where were groups like the EFF back then? Nowhere. They obstructed legitimate opposition to this whole “swamp” situation.

02.01.19

Stupid Acquisition of the Month (or Year): Red Hat Selling Itself to the World’s Biggest Lobbying Power for Software Patents

Posted in EFF, GNU/Linux, IBM, Patents, Red Hat, Servers at 3:36 am by Dr. Roy Schestowitz

Recent: Latest Talk From IBM’s Manny Schecter Shows That IBM Hasn’t Changed and After the Red Hat Takeover It’ll Continue to Promote Software Patents

Manny Schecter
Photo credit: Esteban Minero

Summary: “Stupid Patent of the Month” is an abstract patent of IBM, a company that is about to take all of Red Hat’s patents while it’s actively bullying lots of companies using software patents and also selling software patents to notorious patent trolls

WHEN the announcement/proclamation of the prospective acquisition of Red Hat was first announced we were cautiously optimistic (it soon turned out that Red Hat had considered selling itself to Microsoft). We were hopeful that IBM would change course, but seeing the latest Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) and patent lawsuits in district courts and the Federal Circuit it seems clear that IBM continues gaming the U.S. Patent and Trademark Office (USPTO), lobbying politicians for software patents and so on. They even recruited the former Director of the Office as a lobbyist (David Kappos). We’re going to have to become more vocal given IBM’s continued lobbying for software patents and ongoing bullying with patents on algorithms, even against small entities like online shops/retailers (as the latest IPRs reveal). They’re extorting legitimate businesses using likely illegitmate patents, knowing the cost of invalidating these patents may be too great for these businesses (they might choose to settle, instead). What is going on at the top (management) of IBM? It’s like they don’t give a damn whether Red Hat is becoming a part of them. What is Red Hat’s reaction? So far silence. I asked a few prominent employees, who prefer not to comment (maybe fear of losing their job). I know some people from Red Hat who follow me online; not even one tried to comment/explain/excuse IBM’s behaviour when it comes to this. It’s all silence.

“IBM’s patent policy is extremely incompatible with Red Hat’s.”IBM has been lobbying for abstract patents even in Europe, where software patents aren’t generally allowed (European Patent Office (EPO) President António Campinos does not care what the law says, however, as he’s just another Battistelli with extra secrecy).

At the turn of the new year, seeing that the founder of Watchtroll (Gene Quinn) stepped down as chief editor after 2 decades, we said we would not link to Watchtroll anymore (sending it traffic), not even to rebut its torrent of nonsense. Looking at the latest articles, however, we continue to see more nonsense. “Winning Strategies for Getting Past the Five Types of Patent Examiner” is the title of a new post from Watchtroll. They view examiners as enemies who need to be undermined or fooled/manipulated. How revealing. How anti-scientific of them. Another new post from Watchtroll says “Canada Patent Law Changes Are Bad News for Patent Owners”; by that it means Canada does the right thing and more parasitic lawyers would be out of a job and would likely need a career change.

“Unless the Board of IBM flushed them and replaces them with more Red Hat-like mentality, Red Hat will generally be part of the problem, part of the threat to software development and perhaps to GNU/Linux at large.”Gene Quinn of Watchtroll has just made it abundantly clear, once again, that IBM has not changed because in “IBM Calls for an End to the ‘Legal Fiction’ of Current 101 Law” we’re seeing not even a mild difference/deviation from the old agenda. The outline says: “This marks the final installment in my four-part interview with IBM’s Vice President and Assistant General Counsel Mark Ringes and Chief Patent Counsel Manny Schecter. I found our conversation fascinating and want to thank them both again for their time and insight. Below, we conclude with an in-depth discussion on how the U.S. patent system is affecting startups and the state of enforceability following Director Iancu’s Section 101 Guidance.”

So these are the people at the top of IBM. Unless the Board of IBM flushes them down and replaces them with more Red Hat-like mentality, Red Hat will generally be part of the problem, part of the threat to software development and perhaps to GNU/Linux at large.

“Stupid Patent of the Month” has just been published by Joe Mullin, who joined the EFF about a year ago after he had covered patent trolls a great deal in the media (and he did a good job, unlike the loads of stenography from law firms that dominate patent coverage). Some hours ago he published this post:

In the smartphone era, “distracted driving” is a serious, and well-known, problem. Official warnings about poor driving habits are as old as the automobile itself. The New York Times published a Pulitzer-winning series on distracted driving back in 2009.

Increasingly, technological assists are available for those seeking to manage their smartphone’s distractions while in the car. Apple integrated a “do not disturb while driving” mode into iOS 11, and Google has long had similar functionality in its Android Auto app. Multitudes of third-party smartphone apps exists to address the issue. Finally, more than 50 companies are working on what may be the ultimate solution to distracted driving: autonomous vehicles.

Unfortunately, the U.S. patent system creates warped incentives for emerging software fields like road-safety features. Rather than competing in a challenging space, some players are seeking broadly-worded patents, then hope to sit back and extract profits later.

That may be the strategy of the International Business Machine Corp., which has acquired more U.S. patents than any other company for decades now. This week, IBM was awarded U.S. Patent No. 10,191,462, describing a “Vehicle electronic receptionist.”

This is far from the first time IBM is shown to have pursued (and received) bogus patents on software. None of this seems to be changing following the takeover of Red Hat. This, in turn, makes us rather concerned about Red Hat’s future direction. IBM’s patent policy is extremely incompatible with Red Hat’s.

01.20.19

The EFF Must Return That ‘Internship’ Money to Google or It Would Disgrace the Patent Reform Movement (by Association)

Posted in America, EFF, Google, Patents at 1:42 am by Dr. Roy Schestowitz

Poisoning and harming the perception of impartiality

Wallet with money

Summary: Whether real or perceived, the EFF’s alleged bias is at stake now that Google money — not just money from a billionaire (Cuban) — lands on its lap; it can, by extension or association, serve to discredit patent reformers

PATENT maximalists like to pretend that Google is being everything and that everyone who challenges the status quo at the U.S. Patent and Trademark Office (USPTO) is a Google ‘shill’. This is totally untrue, however, but late on Friday I pointed out that EFF had taken money from Google, whereupon somewhat of a Web storm erupted (here’s one example among many). This has started a long discussion and some discord (even some members of the EFF’s Board are now dissenting) and there’s risk that Federal Circuit and Patent Trial and Appeal Board (PTAB) bashers will exploit it. Rather than dwell/focus on the details of what the EFF did (that would be rather counterproductive), let’s just say that the EFF now needs to do the right thing and revoke/return that money of Google. It not only undermines the perception that the EFF fights for privacy; it also emboldens those who accuse EFF — and by extension patent reform — of working for Google.

That’s not to say that the EFF is rogue; but there’s room for corruption and even the perception of corruption needs to be avoided. Here’s what the EFF posted just before the weekend on the issue of patents; key EFF staff, as we’ve noted before in the latest on Uniloc, challenged this patent troll and reported on the latest outcome:

A federal judge has ordered that prolific patent troll Uniloc cannot hide its shell games from the public. After EFF filed a motion to intervene seeking access to sealed court records, Judge William H. Alsup of the Northern District of California has ordered [PDF] that the relevant documents should be made public. Judge Alsup stayed his order for two weeks, however, to give Uniloc an opportunity to appeal to the Federal Circuit. We are pleased by the court’s ruling and will defend it if appealed.

The sealed documents have an importance far beyond this case. As Judge Alsup suggested in court, Uniloc appeared to be using complex machinations to hide its patents or its assets, possibly to avoid being hit with sanctions. The public has a right to know who owns patents, especially patents like the ones Uniloc claims to own, since the company has claimed its patents entitle it to payments from a vast array of technology companies.

In the underlying cases, Uniloc has sued Apple alleging that its iPhones and iPads infringe a number of its patents. For example, Uniloc claims that Apple infringes U.S. Patent No. 7,092,671, because “iPads incorporate software that causes an iPad, in response to a user’s selection, to transfer a telephone number wirelessly to a nearby iPhone which dials the selected number.”

In a heavily redacted motion to dismiss, Apple appears to argue that Uniloc entities and Fortress Investment Group LLC divided rights in the asserted patents in a way that means the Uniloc entities no longer had a legal right to sue for infringement. We say “appears” because the public cannot see most of the briefing and evidence. Because the redactions (requested by Uniloc) make it impossible to understand the dispute, we moved to intervene to seek public access.

A colleague, Alex Moss, wrote about PTAB as follows:

The exclusive rights granted by a U.S. patent create monopolies that can threaten innovation. We all benefit from the pro-innovation effects that come from cancelling monopolies that should not exist. That’s why the 2012 America Invents Act broadly allows “[a]ny person other than the patent owner” to challenge a patent at the U.S. Patent and Trademark Office.

But what if the government itself was banned from asking for this type of patent challenge? That would mean patent holders can demand big payments from government agencies, with access to taxpayer funds—yet those same agencies wouldn’t be able to efficiently test whether the patents are valid.

Now, the Supreme Court is poised to consider the question. EFF has filed an amicus brief, explaining that the government should be able to bring challenges in the Patent Office, based on century-old legal principles, as well as public policy concerns today. Limiting the government’s ability to challenge invalid patents efficiently deprives the public of these benefits for no good reason.

Many inter partes reviews (IPRs) leverage 35 U.S.C. § 101 to eliminate software patents; having said that, if courts get the feeling that the above amicus brief is indirectly funded by large firms rather than a public interest/s group, matters can backfire. I’ve already strongly urged the EFF, on numerous occasions so far this weekend, to walk away from Google. It’s pretty obvious that when it comes to the privacy stance of the EFF (maybe not copyrights) Google is completely and utterly incompatible with the EFF’s values. The EFF’s founder died not so long ago; what would he say if he saw this?

10.20.18

Unified Patents Demolishes Some More Notorious Patent Trolls and Offers Bounties to Take Down More of Them

Posted in EFF, Patents at 4:08 pm by Dr. Roy Schestowitz

Older: Unified Patents Puts $2,000 Bounties on Prior Art, Seeking to Defang Texan Patent Trolls That Are Active In Spite of TC Heartland

Bounty

Summary: Even though the new management of the US patent office treats patent trolls as a non-issue, groups that represent technology firms work hard to improve things (except for the litigation zealots)

THE epidemic of patent trolls in the US has slowed down and suffered some blows in recent years (TC Heartland being more recent and pretty major because it’s a SCOTUS ruling). But the epidemic or this plague isn’t a done deal. It’s not over yet.

“This is Iancu speaking about patents amassed not only by the millions (in the US alone) but as much as 10 million, with the majority of these granted in recent decades when the system lost sight of its original goal/s.”Trump-appointed (likely due to nepotism) USPTO “Director Andrei Iancu lauds risk takers, calls patent troll narrative ‘Orwellian doublespeak’,” Watchtoll wrote in yesterday’s headline, which sort of quote-mines a speech to the patent microcosm in which he also said: “This is 10 million patents in just over 200 years. And this is not just a number. Though sure enough, 10 million is a nice, round number. But more importantly, 10 million is the accumulation of creativity of such magnitude and concentration the likes of which humanity has never seen.”

This is Iancu speaking about patents amassed not only by the millions (in the US alone) but as much as 10 million, with the majority of these granted in recent decades when the system lost sight of its original goal/s. “10 million is the accumulation of creativity of such magnitude and concentration the likes of which humanity has never seen,” says a lawyer. Actually, a patent represents monopoly, not necessarily innovation and creativity (which as a lawyer he cannot recognise).

Either way, the above statement demonstrates that the current Director — unlike his predecessor — has no problem with trolls. Like Watchtroll, he refuses to recognise that they exist or that they’re a problem.

Let’s remember that Iancu is not a judge, however, so the more he deviates from what courts are saying (or keep saying), the steeper the decline in US patent certainty and therefore the value of pertinent US patents.

The EFF meanwhile presses on with its fight against patent trolls, having just mentioned AlphaCap again.

Daniel Nazer calls them “Patent troll AlphaCap Ventures” (mentioned here before several times last year) in yesterday’s post of his at the EFF’s Web site. To quote:

Patent trolls know that it costs a lot of money to defend a patent case. The high cost of defensive litigation means that defendants are pressured to settle even if the patent is invalid. Fee awards can change this calculus and give defendants a chance to fight back against weak claims. A recent decision [PDF] from the Federal Circuit has overturned a fee award in a case involving an abstract software patent on crowdsourcing. This disappointing ruling may encourage other patent trolls to file meritless cases.

Patent troll AlphaCap Ventures claimed that its patent covered various forms of online equity financing. It filed suit against ten different crowdfunding platforms. Most of the defendants settled quickly. But one defendant, Gust, fought back. After nearly two years of litigation in both the Eastern District of Texas and the Southern District of New York, AlphaCap Ventures dismissed its claim against Gust. The judge in the Southern District of New York ruled that AlphaCap Ventures’ attorneys had litigated unreasonably and ordered them to pay Gust’s attorneys’ fees. Those lawyers then appealed.

A disgusting thug and patent troll known as Global Equity Management (SA) Pty Ltd (GEMSA) also surrenders at last, having already trolled a lot of companies and SLAPPed the EFF. The patent was later thrown out and the EFF sued it back/reciprocally after SLAPP. Watch what Unified Patents has just accomplished:

On October 17, 2018, the Board issued an order terminating IPR2017-01467 pursuant to a joint settlement request filed by Unified Patents and Global Equity Management (SA) Pty. Ltd. (“GEMSA”) (an NPE). U.S. Patent 6,690,400, directed to a graphical user interface (GUI) displaying graphics representing various partitioned storage devices in a computer, has been asserted in multiple district court cases, 35 of which were pending at the time of settlement.

Unified Patents is looking for information, notably prior art, which can help thwart some more patent trolls. This time there’s a $1000 award to those who can show basis for demolishing the patent troll Express Mobile:

On October 18, 2018, Unified added a $1,000 contest to PATROLL seeking prior art for US Patent No. 9928044, the latest patent asserted in a wave of litigation filed by Express Mobile Inc. (an NPE). The ’044 patent generally relates to a method and system for displaying a website on a mobile device. The contest will expire on January 18, 2019.

Another new bounty stands at $2000 (yes, two thousand bucks) for anyone who can help demolish a patent troll that was paid a lot by Microsoft (Uniloc). To quote:

On October 15, 2018, Unified added a $2,000 contest to PATROLL seeking prior art for US Patent No. 6470345, owned and asserted by Uniloc USA, a well-known NPE. The ’345 patent, titled “Replacement of substrings in file/directory pathnames with numeric tokens,” generally relates to a system and method for a file directory system. The contest will expire on January 14, 2019.

Uniloc has been suing Apple quite a lot lately. We wrote about it quite a few times. This troll, Uniloc, keeps flinging more lawsuits and patents at Apple and based on some new reports HP patents have just landed on some troll’s lap, which is suing:

  • Apple sued over FaceTime technology

    Granted to Hewlett-Packard Development Company in 2013, U.S. Patent No. 8,539,552 for a “System and method for network based policy enforcement of intelligent-client features” details techniques for controlling services in packet-based networks. Described in the IP’s main claims are methods for messaging policy enforcement including signaling, authentication and routing to correct services based on stored information.

  • Patent trolls sets sights on Apple with FaceTime lawsuit

    The patent in question, AppleInsider reports, covers intelligent-client features in IP telephony networks and more specifically relates to how a pair of devices can communicate with one another on a packet-based network.

These are patents based on old work of HP, but they’re being used/leveraged by trolls. It’s not possible for Apple to sue HP to deter/discourage such action. Therein lies the nasty nature of trolls and they need to be stopped, no matter what Iancu thinks. Unified Patents works for the interests of the Unified States, whereas Iancu (born in Hungary) works for the interests of patent lawyers’ unions.

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