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06.16.19

Stuffed/Stacked Panels Sent Back Packing After One-Sided Patent Hearings That Will Convince Nobody, Just Preach to the Choir

Posted in America, Deception, EFF, Law, Patents at 9:08 am by Dr. Roy Schestowitz

“A stacked panel, on the other hand, is like a stacked deck: it is packed with people who, on the face of things, should be neutral, but who are in fact strong supporters of our technology. The key to stacking a panel is being able to choose the moderator. Most conference organizers allow the moderator to select die panel, so if you can pick the moderator, you win. [...] Thus, the “independent” panel ends up telling the audience that our technology beats the others hands down. Get the press to cover this panel, and you’ve got a major win on your hands.”
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Microsoft, internal document [PDF]

TripsSummary: Almost a week ago the ‘world tour’ of patent lobbyists in US Senate finally ended; it was an utterly ridiculous case study in panel stacking and bribery (attempts to buy laws)

THE NEW Director of the U.S. Patent and Trademark Office (USPTO) does not like 35 U.S.C. § 101, but there’s nothing he can do about it. He has already crafted some poor guidelines and it doesn’t change how judges decide cases. To make matters worse, the USPTO got bombarded with very negative comments, perhaps 90% of all the comments, based on some estimates we saw. The patent maximalists try to blame it on the EFF, which means that the EFF is doing something right (rallying supporters who actually support technology rather than litigation).

“The EFF was there, but it was surrounded by dozens of think tanks and lobbyists of litigators.”Sites of patent trolls (sponsored by them) tried hard to amplify this month’s Senate hearings, knowing these hearings were grossly biased, one-sided, and therefore misleading. The EFF was there, but it was surrounded by dozens of think tanks and lobbyists of litigators. It was so profoundly ridiculous that we couldn’t help but respond, repeatedly, even though we said that we’d try focusing on the European Patent Office (EPO) instead.

“Apple is a constant target of high-tech patent assertions, with 58 cases filed against it in the US last year (Lex Machina),” Battistelli‘s friends at IAM write at the moment. But actually, Apple itself is a patent aggressor and bully. Hardly the victim. Taking into account the Eastern District of Texas (EDTX), the EFF has just told this story of trolls whose targets include Apple. To quote:

For years, the Eastern District of Texas (EDTX) has been a magnet for lawsuits filed by patent trolls—companies who make money with patent threats, rather than selling products or services. Technology companies large and small were sued in EDTX every week. We’ve written about how that district’s unfair and irregular procedures made it a haven for patent trolls.

In 2017, the Supreme Court put limits on this venue abuse with its TC Heartland decision. The court ruled that companies can only be sued in a particular venue if they are incorporated there, or have a “regular and established” place of business.

That was great for tech companies that had no connection to EDTX, but it left brick-and-mortar retailers exposed. In February, Apple, a company that has been sued hundreds of times in EDTX, closed its only two stores that were in the district, located in Richardson and Plano. With no stores located in EDTX, Apple will be able to ask for a transfer in any future patent cases.

In the last few days those stores were open, Apple was sued for patent infringement four times, as patent trolls took what is likely their last chance to sue Apple in EDTX.

This month, as part of our Stupid Patent of the Month series, we’re taking a closer look at one of these last-minute lawsuits against Apple. On April 12, the last day the store was open, Apple was sued by LBS Innovations, LLC, a patent-licensing company owned by two New York patent lawyers, Daniel Mitry and Timothy Salmon. Since it was formed in 2011, LBS has sued more than 60 companies, all in the Eastern District of Texas. Those defendants include some companies that make their own technology, like Yahoo, Waze, and Microsoft, but they’re mostly retailers that use software made by others. LBS has sued tire stores, pizza shops, pet-food stores, and many others, all for using internet-based maps and “store location” features. LBS has sued retailers that use software made by Microsoft, others that use Mapquest, some that use Google, as well as those that use the open-source provider OpenStreetMaps.

So it has become a serious problem for Free/Open Source software, even directly. Thankfully, nowadays it’s easier to tackle the underlying patents these trolls leverage. Will any of that change? Not any time soon. We doubt it.

Regardless, the EFF’s Joe Mullin wrote the following some days ago:

xperts Warn Congress: Proposed Changes to Patent Law Would Thwart Innovation

It should be clear now that messing around with Section 101 of the Patent Act is a bad idea. A Senate subcommittee has just finished hearing testimony about a bill that would wreak havoc on the patent system. Dozens of witnesses have testified, including EFF Staff Attorney Alex Moss. Alex’s testimony [PDF] emphasized EFF’s success in protecting individuals and small businesses from threats of meritless patent litigation, thanks to Section 101.

Section 101 is one the most powerful tools patent law provides for defending against patents that never should have been issued in the first place. We’ve written many times about small businesses that were saved because the patents being used to sue them were thrown out under Section 101, especially following the Supreme Court’s Alice v. CLS Bank decision. Now, the Senate IP subcommittee is currently considering a proposal that will eviscerate Section 101, opening the door to more stupid patents, more aggressive patent licensing demands, and more litigation threats from patent trolls.

Three days of testimony has made it clear that we’re far from alone in seeing the problems in this bill. Patents that would fail today’s Section 101 aren’t necessary to promote innovation. We’ve written about how the proposal, by Senators Thom Tillis and Chris Coons, would create a field day for patent trolls with abstract software patents. Here, we’ll take a look at a few of the other potential effects of the proposal, none of them good.

This will hopefully be our last post in this subject (we have already published about half a dozen). Over the past week we’ve kept an eye on Twitter (sadly, a lot of input goes into those social control media sites instead of proper news sites) and here’s what we can report as concisely as possible.

“So it has become a serious problem for Free/Open Source software, even directly.”First of all, the hearings were full of buzzwords. They were, as usual, misusing/misapplying buzzwords like “HEY AI” (AI) to promote fake patents on software. It isn’t just done in Europe but also in the US and in Israel [1, 2] (we mentioned this the other day; that same article has been reposted everywhere they could fling it).

Benjamin Henrion (FFII) quoted and said: “the ILPO adopted the “technical effect” test used in the EU jurisprudence” while there is no European Union involved, only rogue EPO administrative tribunals…”

That’s based on a purely promotional piece, more or less marketing and lobbying by law firms, but it’s still worth entertaining again because we see the same buzzwords brought up in the hearings. As one person put it: “Senate Judiciary Committee on 101: Laurie Hill (Genentech); Genentech pioneers biologics; Under 101/Alice/Mayo, many of these inventions are unpatentable; AI/bioinformatics/biology is the future of medicine but is not patentable.”

“They were, as usual, misusing/misapplying buzzwords like “HEY AI” (AI) to promote fake patents on software.”There it is: “AI”. And again here: “The SCP (Standing Committee on the Law of Patents) at @WIPO has just published a revealing document on AI and Patentability under the title “Background document on patents and emerging technologies”.”

Of course WIPO too participates in the “HEY AI” (AI) hype; that’s just done in order to grant fake patents on maths — no doubt patents that would be rejected if tested by courts.

Henrion also said (having watched these dull hearings): “Till and Coons strongly motivated to restore software patents, citing buzzwords such as “AI”, “quantum computing”, or “5G”…”

He found this tweet: “The AI hype is pervasive and everybody wonders when the bubble will burst, but it is true this technology poses some challenges to patentability…”

It links to this blog post by Leopoldo Belda Soriano. He says “AI” many dozens of times.

“Of course WIPO too participates in the “HEY AI” (AI) hype; that’s just done in order to grant fake patents on maths — no doubt patents that would be rejected if tested by courts.”On the rogue composition of the panels, as expected, much has been said as well. Here’s the list of people. Stacked panels. Very stacked. Patent zealots were (at the time) linking to things like “Final Panelists at Senate 101 Hearing Stress Real-World Effects of Status Quo, Tillis Signals Changes to Draft Text” from Watchtroll’s Eileen McDermott and other blogs like Patently-O.

Henrion took note of IBM’s role in these hearings when he wrote: “Senate hearing: IBM has also used super low quality software patents such as a diff between 2 contact lists to extract money from Groupon [] Qualcomm says they want to patent encoding algos such as OFDM, you could infringe them with a pen and paper https://en.wikipedia.org/wiki/Orthogonal_frequency-division_multiplexing … [] At least americans are pretty clear about software patents, and not this CII mess…”

Henrion carried on speaking about IBM: “Nokia and IBM thanks Tillis and Coons for an “open legislative process”, while the interventions are all stacked by the patent community [] Not inviting small companies nor software developers “reminding those present that they had specifically invited Apple, Google, Microsoft, Oracle and Dell, who declined to come in favor of being represented by industry associations.”

Jan Wildeboer, who will soon be an IBM employee, expressed concerns about policies that are actually supported by IBM: “51 pages on so-called #FRAND licensing of Standard Essential Patents (SEP) by CEN/CENELEC. And they manage to completely avoid the simple question of how such schemes would work for #OpenSource implementations (Hint: it’s not possible IMHO). https://www.cencenelec.eu/news/workshops/Pages/WS-2019-014.aspx …”

“On the rogue composition of the panels, as expected, much has been said as well.”All these patents on maths are highly problematic. They oughtn’t be granted. On went Henrion: “Michael Blankstein of Scientific Games wants to restore software patents for games, and wants US to avoid copying the European Patent Convention, which explicitely bans computer programs, and rules for playing games [] Cyborg patents logic to compress data, wants to see Alice abolished https://cyborg.co/tech/intellectual-property [] John D. Vandenberg says Alice is not a mess, says the proposed bill will restore software patents…”

Alice actually restored order. How is elimination of fake patents not a positive thing? For patent trolls it certainly isn’t… but should they count?

The CCIA’s main patent person soon weighed in as well, followed by Henrion: “The “innovation” is using existing data mining techniques on data sets to determine a correlative relationship. Is that what we want to promote with patents? [] [Spot the disconnect: Tillis/Coons, op-ed: “We have no intention of overruling that central holding of the Myriad decision.” Tillis/Coons, bill: ‘No implicit exceptions to subject matter eligibility shall be used and all cases regarding those exceptions are abrogated.” [] Also, Tillis made it a point to complain that tech didn’t come. Given that the 4-1 stacked panels today on other issues, is it any wonder those companies didn’t want to show up?”

“That’s just political corruption (check who’s bribing Coons for this bill).”The funding of Coons (over a million bucks from lawyers and liars) means that lying is part of the show. As Henrion explained: “Lawyers always win when they own the “patent reform”, law firms sending donations to Senators @ChrisCoons , I guess “Small Businesses” don’t donate enough…”

That’s just political corruption (check who’s bribing Coons for this bill). It’s quite blatant and obvious.

“ACLU popping up a banner against genes patents at the senate hearing on the patent maximalist bill,” Henrion added, “where are the protesters against software patents?”

Here’s a photo of it.

ACLU banner

On the other hand we could also quote some patent maximalists, to whom these stacked hearings were a festival of joy; one of them said: “Senate Judiciary Committee on 101: Sean Reilly (Clearing House); Financial Services Industry has strong interest in strong patent system; 101/Alice has killed low quality patents; Clearing House opposes any changes to status quo.”

“The sponsors called these initiatives of theirs “bipartisan” to give an illusion of widespread consent, but what they really meant was, they got a couple of politicians from two ‘opposing’ (corporate) parties inside their pockets.”Another one quoted “George, Invitae (1:11:00): “As you consider legislative proposals, instead of abrogating 150 years of precedent case law [e.g. fixing 101], I believe the right approach is to start where the law is correctly working…” https://www.judiciary.senate.gov/meetings/the-state-of-patent-eligibility-in-america-part-iii …”

Working for who? Lawyers? Trolls? Science? Anyway, these hearings are now nearly a week behind us. As we’ve said right from the very start, we don’t expect these to change anything. The sponsors called these initiatives of theirs “bipartisan” to give an illusion of widespread consent, but what they really meant was, they got a couple of politicians from two ‘opposing’ (corporate) parties inside their pockets. So much for ‘public’ support…

06.09.19

Corporate Front Groups Like OIN and the Linux Foundation Need to Combat Software Patents If They Really Care About Linux

Posted in EFF, GNU/Linux, Kernel, OIN, Patents at 8:44 am by Dr. Roy Schestowitz

The EFF does more for Linux than groups that drape themselves in Tux logos and even put “Linux” in their name

Alex Moss, EFF

Summary: The absurdity of having groups that claim to defend Linux but in practice defend software patents, if not actively then passively (by refusing to comment on this matter)

A NEW week is about to commence. No more bogus ‘hearings’, which are stacked and stuffed with lobbyists and think tanks like IBM’s David Kappos (his handlers now include Microsoft as well because it’s funding his front group). We don’t expect the law to change, but they had their little show for a few days. The audience of patent extremists loved it! They had even paid for it [1, 2].

Where are the supposed “Linux” groups? They never even submit a single brief! Never! Even ACLU got involved in this patent debate (well outside the ACLU’s scope of operations), not to mention CCIA.

Any comments from the “Linux” groups? No, nothing. Absolutely nada.

OIN is probably in favour of software patents (same side as Microsoft and IBM), so it prefers to just keep its mouth shut. Its leadership now includes patent trolls. It’s just farcical considering their Linux- and Tux-themed initiatives, which in the past they claimed would help Linux (looking for ways to induce Linux coexistence with software patents).

“Any comments from the “Linux” groups? No, nothing.”People need to seriously ask themselves why the Linux Foundation and OIN never do even as much as issue a statement on this subject (takes a lot less effort than preparing briefs or preparing for hearings in Senate). Their silence merely enables if not empowers those who pose the greatest threat to Linux, GNU and Free software in general.

Suffice to say, last week’s hearings were all just a farce; our latest response to it mentioned Benjamin Henrion's (FFII) remarks as well as the EFF's (which posted the above photo in Twitter). Henrion is rightly upset. “EFF and others are just decoration,” he argued, “senators @ChrisCoons and @senthomtillis have no intention to seek for the right barriers to protect software developers from patents. Those hearings are just a joke! No software developer was even invited!”

They just try to give an appearance (or perception) of balance; or to shallowly lend legitimacy to these hearings. We saw similar hearings in past years and these had just about nobody (zero people) with ‘dissenting’ views; obviously nobody did anything technical, it was a consistent, monotonic parade of lawyers/attorneys.

“We saw similar hearings in past years and these had just about nobody (zero people) with ‘dissenting’ views; obviously nobody did anything technical, it was a consistent, monotonic parade of lawyers/attorneys.”As I told Henrion this morning: “Where was the Linux Foundation in these hearings? Did IBM (Manny) keep Zemlin in his little pocket? Software patents are a threat to Linux too.”

“I think that 99% people did not look past the organization’s name and got a rude shock last fall when LT [Linus Torvalds] was temporarily kicked out and then brought back in under reduced authority,” one reader told us about the “Linux” Foundation (another reader of ours calls it “the Linux-destroying Foundation” for about 5 years now).

Henrion is still the President of the FFII, but it’s underfunded and barely active. This means that operations like the “Linux” Foundation, which has an annual income of about $100,000,000, basically suck up all the capital (and voices) to do just about nothing for Linux (in this domain). Even the EFF doesn’t have anywhere near this kind of budget and yet it does something on the matter. Why?

“Why is the OSI quiet? What about OIN and the Linux Foundation? They’re worthless. Bloody worthless as we say here… and worse — they’ve morphed into organisations that arguable undermine people’s freedom.”The U.S. Patent and Trademark Office (USPTO) sent some nontechnical people to speak (obviously only in support of the bill), but the supposed ‘defenders’ of Linux, groups like OIN and the Linux Foundation, could not bother in any way whatsoever? Not even a short statement? Check out the Boards and the management, not to mention key members; they don’t actually oppose software patents, not even when momentum to squash these for good is already there. At the moment, software patents face unprecedented legal uncertainty in the United States’ courts, owing to 35 U.S.C. § 101/Alice (SCOTUS); by asserting such patents against a suspected (merely accused) party not only are you at risk of losing these patents; in some cases you’re forced to then pay all the legal expenses of the accused. So litigation is rarely a good option with these. Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) made it easier to squash litigation and the Federal Circuit very rarely accepts software patents as valid (there were rare exceptions in recent years).

Why is the OSI quiet? What about OIN and the Linux Foundation? They’re worthless. Bloody worthless as we say here… and worse — they’ve morphed into organisations that arguable undermine people’s freedom.

05.30.19

Proposed Legislation From Senators Tom Tillis and Chris Coons Will Perish as Usual, Just Like UPC in Europe

Posted in America, EFF, Europe, Law, Patents at 8:36 am by Dr. Roy Schestowitz

The United States has its own ‘Team UPC’ and the likes of Battistelli at the EPO

Coons bribed

Summary: A great deal of attention is being paid to a bill that’s extremely unlikely to result in anything because it’s very unpopular, even among sponsors of Congress (not just the public at large)

AT THE START of the year the EFF warned that software patents would make a "comeback" because the Trump-appointed Director of the U.S. Patent and Trademark Office (USPTO) wanted to water down 35 U.S.C. § 101. As we explained at the time, this would have no bearing on actual courts. Since then the courts have indeed lashed out. So the threat was clearly overhyped, as we’ve explained many times since. Let’s look at the data. Have software patents made a comeback? Not really, not in courts anyway. SCOTUS isn’t revisiting the subject (even when asked), the Federal Circuit applies Alice routinely, and the Patent Trial and Appeal Board (PTAB) is still doing its job as shown by inter partes reviews (IPRs) figures, which are publicly accessible. Patent maximalists thus started focusing on ex parte reexaminations, also part of America Invents Act (AIA) but inherently different from IPRs (which are a lot more powerful). We’ve seen some misleading posts from Anticipat (and have not linked to them) and yesterday Janal Kalis wrote: “The PTAB Affirmed an Examiner’s 101 Rejection of Claims in a Patent Application Owned by Stanford Univ. for Analyzing Digital Medical Records” (such patents still routinely perish, but the likes of Kalis typically ignore the evidence and focus on reversal of decisions when software patents are allowed, not rejected).

Alex Moss (EFF) has just published something titled “A Terrible Patent Bill is On the Way” and here’s what it said (déjà vu as it happened in prior years):

Recently, we reported on the problems with a proposal from Senators Coons and Tillis to rewrite Section 101 of the Patent Act. Now, those senators have released a draft bill of changes they want to make. It’s not any better.

Section 101 prevents monopolies on basic research tools that nobody could have invented. That protects developers, start-ups, and makers of all kinds, especially in software-based fields. The proposal by Tillis and Coons will seriously weaken Section 101, leaving makers vulnerable to patent trolls, and other abusers of the patent system.

The draft legislation does remove a few aspects of the earlier proposal, but it has the exact same effect: it will erase more than a century of Section 101 case law—including the recent decision in Alice v. CLS Bank—and take away courts’ power to restore them.

It’s yet another post from the EFF in which the threat is, in our assessment, overblown somewhat. They merely give more visibility to something which doesn’t deserve it (and wouldn’t have earned it otherwise). Well, we wrote about it last week (after the CCIA too had written about this); it is pushed by a few bribed politicians (paid by the litigation ‘industry’, ‘bought’ for these laws), not “Congress” as Mike Masnick (TechDirt founder) puts it in “Congress Now Pushing ‘Bring Back The Patent Trolls’ Bill”. They merely had a little meeting, whereupon patent maximalists pretended it was some major news or development. To quote Masnick:

Back in April we warned about a truly terrible plan by some in Congress to obliterate the last few years of the Supreme Court fixing our broken patent system, and flinging the doors wide open to patenting genes, medical diagnostics, and software (all of which the Supreme Court has mostly rejected as abusive and monopolizing nature). One had hoped that after having explained to them how disastrous such a bill would be, that its backers might think carefully in crafting the final bill. Instead, Senators Tom Tillis and Chris Coons, along with Reps. Hank Johnson and Steve Sivers instead decided to double down with a bill that would massively stifle innovation.

There are some decent comments on there, e.g. from “That Anonymous Coward”:

Who wants to help me get a patent shoved through on running for an elected office & accepting money to pass laws favorable to those paying me??
Considering what other patent trolls have earned we could bankrupt congress.

At the start of the year we insisted that this idiocy would not pose a great threat because courts just carry on as usual, based on caselaw (not Congress), and these bills (as above) are nothing new. We don’t even want to give them attention/visibility anymore; they’re going to perish on their own.

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.

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