EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

12.12.19

At the EPO Money — Not Quality — is King

Posted in Europe, Patents at 4:12 am by Dr. Roy Schestowitz

EPO FLIERNo. 50

The EPO-FLIER wants to provide staff with uncensored, independent information at times of social conflict

Part 2: Financiers are ruining quality

 

“’I know this would take a lot of planning, but the alternative of rushing the build is far riskier,’ the manager wrote. […] However, Boeing did not slow its rate of production.”1

About 20 years ago, journalist Jerry Useem wrote that “Boeing has always been less a business than an association of engineers devoted to building amazing flying machines.2 In 2015, Boeing nominated a financier as its CEO. Unfortunately, financiers often focus on short-term profits and tend to loot the corporations they run. The Boeing engineers lost power to the financier, who increased prices, laid off workers, reduced quality and spent cash buying back stock – while the company lost its ability to make safe airplanes.

There are many parallels between Boeing and the EPO. A former colleague observed a few years ago that scientists and engineers are always more efficiently led by scientists and engineers3. But the EPO, a public administration whose priorities were once set by the European Patent Convention and implemented by qualified and motivated engineers and scientists, is now in the thrall of bean counters.

The Battistelli administration introduced an anti-career system which generated enormous regular surpluses by reducing salaries and other staff benefits. But these measures ruined the quality of our services. The surpluses have been transferred to the dubious EPOTIF4 investment fund. President Campinos presented a fudged and heavily biased Financial Study to justify the implementation of further cuts in staff benefits.

Similar to the executive team at Boeing, our top management may be quite skilled at generating cash but they seem to understand little about running a public administration. In the past, our activities were focused on delivering high quality search reports and valid patents, now all that matters is increasing output. Production numbers count, not quality.

“’You have a systemic problem in your company. You’re driving profit. You’re not driving quality [...]’” the California Democrat John Garamendi told the Boeing chief executive1.

The EPO is not a company and its budgetary responsibility is not that of a company. Its mission is not to pile up mountains of cash but to serve the public. But the Administrative Council rewards top managers for EPO productivity increases with higher bonuses. The new career system translates these false incentives for managers into false incentives for staff. It has reduced the share of fair pensionable rewards for good work. Now, only (very) high individual output is rewarded – no matter what the quality is. False incentives reward cheating on quality while demotivating everybody who tries to serve the public. As a result, a public service organisation has been turned into a cash-generating machine.

The new career system is not working. It has increased the gap between rewards given to the top producers and the many others who do a good job. Since there is no positive motivation for the majority of staff, the most powerful means left to motivate them is intimidation. The new career system and management by fear have split the staff and destroyed teamwork. Measure 5, as proposed in the EPO’s recently published Financial Measures, would further reduce the share of staff who receive a pensionable reward from 60% to 40%5. These planned additional cuts in benefits will further deteriorate the attractiveness of the EPO as an employer and the quality we deliver to the users of the patent system.

Boeing obtained permission from its regulators to partially certify the safety of its own airplanes. The drive for efficiency led to less safety, which is the major quality aspect of an airplane. At the EPO, the quality of granted patents is measured by the Department Quality Audit (DQA) which reports directly to the president6. In other words, the quality the president is responsible for is certified by himself. And it is the Office which decides who can carry out surveys on applicant satisfaction. Manipulation of the results is easy under the conditions.

Patent applicants have few real alternatives to filing their patent applications with the EPO. That’s why cash continues flowing in. But there is a problem. We are losing our ability to deliver valid patents. If we were in genuine competition, we would lose market share. And if we were to build airplanes, our planes would fall from the sky.

In 2014, when Mr Battistelli led the Office, a former member of our organisation put it like this:

‘”We used to have the spirit of the M.I.T., now we have that of Lehman Brothers”’3

Unfortunately, under President Campinos, the situation continues to deteriorate.

________

3EPO-FLIER No. 26 Moral compass and management’s loss of it (13.06.2016)

4From patent office to investment bank? (07.12.2017)

SUEPO proposals on the New Career System (SUEPO Munich, 26.11.2019)

Internal Audit: A New Quality” (CSC, 30.08.2019)

The EPO’s Strategic Failure 2023

Posted in Europe, Patents at 3:50 am by Dr. Roy Schestowitz

 

EPO FLIER No. 49

The EPO-FLIER wants to provide staff with uncensored, independent information at times of social conflict

Part 1: Potemkin social dialogue

By electing Mr Campinos to become the seventh EPO President, the Council gave him the mandate to renew social dialogue and ease tensions between management and staff1. But Mr Campinos has failed to restore social dialogue2. Even worse, the first reporting exercise3 under the new president marked new lows of fairness and respect for the staff4. And since the president published his Financial Study5 and planned 17 Financial Measures6, the tensions have increased.

Building trust in management decisions?

The 2019 staff survey revealed that only 16% of EPO employees have confidence in senior management decisions (the European benchmark is 66%). The Strategic Plan 2023 (SP2023) wants to build confidence in top management decisions by explaining them through more effective communication (Goal 1, Key Iniative 5).

The president’s frequent announcements have indeed a friendly tone. But explaining bad decisions with nice words and continuously repeating his own point-of-view is not enough. The decisions must become better, they must provide solutions which work, and solve problems which exist.

Bypassing the staff representation

The president had one-to-one meetings with more than 1000 staff members. But despite this effort, the staff survey showed that 63% of the employees still think that too little is done to get the opinion of staff. When decisions are taken, the staff representation is still not involved, and staff opinion and concerns are not duly considered. Pretending to listen is not enough. Staff wants decisions to be prepared through discussions with the elected staff committees. Decisions must be based on facts instead of a “compromise” derived from the administration’s unrealistic assumptions.

Despite the president’s frequent declarations that he wants “mature and constructive social dialogue” and “effective partnership with staff representatives and unions”7, he disregarded the CSC’s input8 to his Strategic Plan. Consultation in the General Consultative Committee (GCC) is fake, since the members of the management have no mandate to negotiate9. The planned 17 Financial Measures were developed in secrecy10. When publishing them, the president surprised the CSC as much as the other staff9. When staff representatives pointed out that the Financial Study contained many contradictions, the president replied “I don’t care, I will go ahead anyway.”11

Mr Campinos has copied the strategy for social dialogue from Mr Battistelli. He avoids considering contributions from staff committees and unions. He instead follows the bad example of his predecessor and prepares decisions by discussions in “focus groups” consisting of volunteers being hand-picked by management. Mr Campinos recently added a new class of ‘social communicators’. The team managers were asked to collect feedback from staff on the planned 17 Financial Measures, filter it, and forward it to the management12. The calculation is to bypass2 the elected staff committees, and to split13 the staff, since the Financial Measures affect different groups of employees in different ways.

Conclusions

After more than 20 months of President Campinos, there is still no genuine social dialogue9,14. Bypassing the staff committees is part of the president’s strategy. He thereby undermines staff’s right of being democratically represented. And by doing this in an environment where 58% of staff feel that it is not safe to speak up, while only 27% do15, he fosters a culture of fear2.

The president has prepared his 17 Financial Measures – “the biggest attacks ever”6 on our careers and pensions – in secrecy, without involving or even informing the staff representation. Although the president has conceded that there is no necessity to act now16, during the discussions in the working group on Financial Measures, his representatives stick to the dogma of a € 5.8 billion coverage gap17.

The president’s bold statement in his Strategic Plan that the EPO will “encourage social dialogue in all of its forms”18 and his regular updates7 on social dialogue are mere Potemkin villages.

________

3 “’Rat race 3.0’ Part I: Staff Reporting in the New Career System (NCS) – Total mayhem” (SUEPO The Hague, 01.03.2019, see R.I.P. Kat…)

4 EPO FLIER No. 47 Reporting below the belt (03.06.2019)

5CA/46/19 “Financial Study” and “The Financial Study: Yet another hoax”, parts 1 to 4 (CSC, May – June 2019)

6 “The President’s ‘Publication of Financial Measures’” (CSC, 07.10.2019)

7 Presidential announcement “Social dialogue – My vision” and updates of 04.06.2019, 19.07.2019 and 18.10.2019

8 Open letter “Strategic plan – Input of the CSC” (CSC, 25.01.2019) with contributions to the Strategic Plan

9 Transcript of the staff General Assembly in Rijswijk on 10.10.2019

10 “Report on the demonstration of 23 October 2019” (SUEPO Munich, 28.10.2019)

11 “ACTIONS RESUME – DEMONSTRATION – Wednesday 23 October” (SUEPO Munich, 17.10.2019, see R.I.P. Kat…)

12 This measure also sidelines the directors, whose number shall be reduced by about 50% in the coming years, as recently announced; see Communiqué 03/19 “Adjustments to our organisational structure” (08.10.2019)

13 “The Financial Survey: A divisive exercise” (SUEPO Munich, 06.11.2019)

14 “The President’s Update on Social Dialogue or The battle of the communiqués” (CSC, 09.10.2019)

15 EPO staff survey: concerns about quality, low confidence in management, lack of respect (Kluwer Patent blogger, 07.04.2019)

16 “Different views on the ‘Interview on Financial Study’” (CSC, 29.10.2019)

17 “Report on the second meeting of the WG Financial Measures” (CSC, 02.12.2019)

18 SP2023, Goal 1, Key Initiative 6

 

EPO Promoting Software Patents in Countries Where These Are Illegal

Posted in Europe, Patents at 2:43 am by Dr. Roy Schestowitz

Ready to protect the law and protest this afternoon

The unitary software patents
Image credit: Benjamin Henrion (FFII)

Summary: The EPO’s vision of ‘unitary’ software patents (patents on algorithms in countries that disallow such patents, as per their national laws) won’t materialise, but in the meantime a lot of Invalid Patents (IPs) are granted in the form of European Patents (EPs) and this is wrong

THE European Patent Office (EPO) does not seem to mind the EPC, which it flagrantly violates routinely. It doesn’t care what courts say, either (or Parliament). António Campinos came from EU positions, so he should know better. Battistelli got his EPO job through connections (arguably the INPI job as well) and his current CEIPI job was set up by Campinos, who vacated this position if not reserved it. It’s all corrupt. We find it ironic that a law school is literally run by a criminal now. Are lecturers and students all aware of it? Surely they all know of the Benalla scandals (if not other scandals as well).

“As judges are under attack, the EPC is misinterpreted and distorted (to justify violating it) and the violators misuse diplomatic immunity we end up with illegal European Patents being granted.”The US patent system was shaken by 35 U.S.C. § 101, which nowadays invalidates just about every software patent that lands on a court’s or a judge’s lap. We cover new examples in Daily Links almost every day (no detailed articles due to lack of time). Nothing has changed.

What about Europe? Totally different story. As judges are under attack, the EPC is misinterpreted and distorted (to justify violating it) and the violators misuse diplomatic immunity we end up with illegal European Patents being granted. Who’s to stop it?

Just promoted in Lexology was this item from Kilburn & Strode LLP’s Matt Aldridge and Kristina Cornish (patent litigation). It’s about San Marino ‘outsourcing’ stuff to the EPO (within about 3 weeks):

It was announced at the end of November that, effective 1 January 2020, San Marino has closed the national route and thus will no longer accept European patent applications, or act as a receiving office under the PCT. This does not mean that patent protection in this mountainous microstate is not available, rather that all applications must now be filed directly with the European Patent Office (EPO).

Closing a national route to filing a European application is not new.

A dozen EPC contracting states have already closed their national route, namely:

Belgium, Cyprus, France, Greece, Ireland, Italy, Latvia, Lithuania, Malta, Monaco, the Netherlands and Slovenia.

Any PCT application must go through the EPO in order to obtain protection in these states.

Whilst this particular change is unlikely to have an impact on most filing strategies (there were only four applications made through the national route in San Marino in 2016), it is worth bearing in mind the potential advantages, and disadvantages, of using a national route when filing in Europe.

Letting a lawless, unaccountable, corrupt entity run or replace one’s national patent system is beyond unreasonable. We saw similar EU ambitions in UPC and those who shape everything were litigation firms, not scientists. There will be a protest against the UPC later today.

We’ve meanwhile noticed this new tweet from the EPO (from half a day ago). The EPO is very blatantly promoting software patents in Europe. It’s doing it again. Illegal patents. To quote: “Patents are granted for new inventions such as products and processes, including inventions carried out using computers. You can read more on #patenting computer-implemented inventions here…” (the cited page talks about “4IR” and “AI” — the usual buzzwords).

Another new tweet from yesterday spoke of “disruptive technologies such as … AI.” (in the cited page).

Yesterday the EPO wrote: “#patentfact: High-quality #patents are assets for inventors because they can help attract investment, secure licensing deals and provide market exclusivity.”

“So why does the EPO attack patent quality,” I replied, citing this EPO leak.

The matter of fact is, the EPO does everything it can to fake ‘production’ — typically by violating the EPC and turning the EPO into a patent ‘printing machine’. This includes patents on mere concepts.

The EPO’s propaganda arm, IAM, is still posting so-called ‘news’ that’s actually lobbying pieces from litigation firms looking to legalise illegal patents such as software patents. “Australian lawyers pushing for software patents,” wrote Benjamin Henrion some hours ago, pointing to this recent article outside the IAM paywall. To quote:

One of the top issues on the agenda for this year’s IPBC Australasia was software patent eligibility – we knew that in the run-up to the event, a Full Bench of the Federal Court of Australia could be issuing a key ruling in the area. As it turned out though, there was no landmark to discuss. To judge from this morning’s panel on the topic, that has created significant frustration among stakeholders.

The closely-watched case was that of Encompass Corporation Pty Ltd v InfoTrack Pty Ltd, in which the claims of two Encompass-owned innovation patents were held invalid (not directed to a “method of manufacture”). The judges dismissed Encompass’ appeal, but passed over the opportunity to set down bright line rules.

Has IAM spoken to actual software developers? No! The usual.

Henrion and fellow technical people will protest in Brussels later today. The yellow shirts are ready (photo copied to the top of this article).

12.10.19

Actions Against EPO Corruption and Unitary Patent (UPC) Injustice/Lobbying

Posted in Europe, Patents at 5:00 am by Dr. Roy Schestowitz

Patent terrorism

Summary: The EPO is apparently going on strike again and an action against the UPC is scheduled for later this week (protest in Brussels)

WE are generally pleased to see/read news about patents in the US because 35 U.S.C. § 101 endures many challenges (another one reported on yesterday; it’s in Daily Links). USPTO-granted software patents won’t withstand scrutiny. Moreover, the USPTO can be sued (as habitually happens). But as long as software patents are being granted in Europe and Team Battistelli/Campinos tries to swap European courts with something that the European Patent Office (EPO) better controls there remains a real threat. Campinos recently pressured judges at the EPO to allow software patents. It’s really that crude and blatant. Is the President of the EPO also the chief judge? Or a whole panel of judges? That would of course be a serious violation of the EPC at every level*.

“Is the President of the EPO also the chief judge? Or a whole panel of judges? That would of course be a serious violation of the EPC at every level.”We are grateful to each and every patent examiner who participated in the recent strike ballot. We imagine that virtually all of them voted for a strike. To quote the couple of comments from RIP Kat (Märpel’s anonymous blog), “Anonymous” said: “Not really correct: 54% participation and 83,2% of the participants in favour of a strike. About 3000 epo staff voted in favor of a strike. In view of the enormous efforts by Campinos to convince staff of the non- existence of the alleged gap, this shows that he clearly did not convince a big part of epo staff and shows a clear failure of his so-called transparent communication strategy.”

“Anonymous Concerned examiner” said (with our emphasis added): “Märpel could also have written that only 417 voted against the strike and for Campinos project. That is little more than the top floors of the Isar building.

“As an examiner, however, I like that the figure is presented as “83″. It reminds me of Article 83 EPC, the one we use when an application document is so unclear that we can’t do anything with it. Maybe it is a symbol of Campinos financial studies?”

Well put, well framed. So we know that technical people at the EPO aren’t happy. They want things to change. From those we’ve spoken to we always learn that examiners also oppose software patents. But they’re under pressure to grant some, even if they know it’s in violation of the EPC (like the EPO’s guidelines themselves).

“The EPO continues to lie about its impact on SMEs, denying the fact that in reality they’re discriminated against and barely get/pursue patents.”“What are the latest trends in self-driving vehicle innovation? This EPO study reveals the most-active companies too,” the EPO tweeted yesterday.

“Way to frame software patents as “Cars” — one of several tricks (“Hey Hi”, “Blockchain”, “IoT”) for painting illegal patents as ground-breaking,” I responded. They also tweeted their usual nonsense about “SMEs”. The EPO continues to lie about its impact on SMEs, denying the fact that in reality they’re discriminated against and barely get/pursue patents.

Our FFII friends at Brussels are meanwhile preparing action on the ground. As Benjamin “NO Software Patents” Henrion put it yesterday, quoting Richard Stallman: “The volunteer activists drifted away, thinking the battle won, but the corporate lobbyists for software patents were paid to stay on the job. Now they have contrived another sneaky method: the “unitary patent” system proposed for the EU…”

“Demonstration against Unitary Software Patents” is planned, Henrion told me yesterday, setting the time and place as follows: “thu 12dec@12h00, Brussels regional parliament (PRB)” (the same time Brits are voting).

“We are calling for a demonstration against the UPC this thursday at noon,” he said, “in front of the Brussels Parliament. UPC is on the agenda the day after.”

This didn’t happen overnight, as he first told me about it last week and yesterday he tweeted: “We are preparing a demonstration against the Unitary Patent Court (UPC) and its patent trolls, stay tuned!”

Henrion is still preparing this protest (same day as British election) and needs to interact with those who attend. There’s lots at stake and having just earned television coverage in Belgium (an event he organised), one can hope the UPC protest can accomplish something similar.
_____
* Incidentally, Rose Hughes (AstraZeneca UK litigation team) has just published this ‘Katty’ post about T 2037/18. The ‘Kats’ used to write a great deal about the fact that judges had come under attack and lost their independence. But not anymore. From the EPO’s Boards of Appeal that totally lack independence:

T 2037/18 is an EPO Boards of Appeal case that considers how much an opponent needs to prove in the Notice of Opposition itself. The case related to a dispute between Bombardierand Siemens regarding Bombardier’s EP patent (EP2619063) for a train carriage. Siemens cited a train (the TDR Series 460) as prior art against the patent, alleging prior use by Bombardier’s customer Transregio Deutsche Regionalbahn (TDR). The case centred around whether the transfer of the train from Bombardier to TDR could be considered to have taken place under conditions of confidentiality. Crucial questions in the case were a) on which party the burden of proof should be laid and b) whether this burden was on the opponent in the Notice of Opposition. Another key question was whether the burden of proof placed on Siemens in opposition had been the equivalent of asking them to prove a negative (or more philosophically speaking, had it been like asking the opponent to prove the existence of the philosophical “celestial teapot”).

The Opposition Division (OD) did not consider the information provided by Siemens on the TDR 460 train to be enough to substantiate the opposition. The OD particularly considered that the process of transfer between Bombardier and TDR should be considered as having taken place under conditions of implied confidentiality. The OD thus found that the burden of proof had been on Siemens to demonstrate the lack of such conditions of confidentiality between Bombardier and TDR in the Notice of Opposition. In the absence of any such proof the opposition was considered inadmissible.

The appeal case explored the issue of whether the burden of proof really should be viewed as resting with the opponent in such a case.

There’s more in there on what was decided on “existence of confidentiality agreements”; as usual, Hughes conveniently ignores the fact that the decision may lack legitimacy due to judges lack of autonomy — an issue they themselves have repeatedly complained about.

12.09.19

Demonstration Against Unitary Software Patents, Thursday 12 Dec in Brussels

Posted in Europe, Patents at 3:51 pm by Dr. Roy Schestowitz

UPC banana

Summary: FFII’s call to demonstrate against the UPC

FFII calls to demonstrate against Unitary Software Patents, the third attempt to impose software patents in Europe. Software patents are a threat to small- and medium-sized software companies that cannot defend themselves. The UPC (Unified Patent Court) is an international court made outside of the European Union, which would have the last word on the question of software patenting. The court would favour “patent trolls” which steal our jobs and extort money.

  • Location: Parlement Régional Bruxellois, Rue du Lombard 69, 1000 Brussels
  • Time: from 12H00 to 14H00
  • Consignes: take a ring of keys with you which make noise, preferably the “keys of the kingdom”
  • Tshirts: we will bring new yellow tshirts “NO Unitary Software Patents”
  • Organisateur: Benjamin Henrion, FFII eV, @zoobab
  • Contact: zoobab at gmail.com, +32 484 566109

Manifestation contre le Brevet Logiciel Unitaire, jeudi 12 décembre à Bruxelles

FFII appelle à manifester contre le Brevet Logiciel Unitaire, la troisième tentative de valider les brevets logiciels en Europe. Le Brevet Logiciels sont des dangers pour les petites entreprises du secteur, qui ne peuvent se défendre. La Cour UPC est une cour internationale captive située au dehors de l’Union Européenne, et aura le dernier mot sur la question des brevets logiciels. La Cour UPC favorisera les “trolls des brevets” qui volent nos emplois.

  • Lieu: Parlement Régional Bruxellois, Rue du Lombard 69, 1000 Bruxelles
  • Heure: de 12H00 à 14H00
  • Consignes: pensez à prendre un trousseau de clefs qui fait du bruit, les clefs du royaume
  • Organisateur: Benjamin Henrion, FFII eV, @zoobab
  • Contact: zoobab at gmail.com, +32 484 566109
  • Tshirts: nous amenerons des tshirts jaunes “NO Unitary Software Patents”

Fin.

Mandatory Education for Those Who Use and Misuse Buzzwords Would Go a Long Way

Posted in America, Europe, Patents at 12:45 am by Dr. Roy Schestowitz

Patent maximalists are among the biggest culprits

Buzz me up!
Buzz me up!

Summary: In an age of substitution — where marketing terms replace meaningful words and concepts — it has gotten more difficult to have honest debates, for example about the scope of patents

OVER THE past year the European Patent Office (EPO) often promoted software patents disguised not only as “hey hi” (AI) but also “blockchains” (in both cases there are two aspects to it; one pertains to patent searching and another to patent applications). Hours ago we found this report which talks about blockchains (the real thing) and bemoans the gold rush to patents on algorithms. To quote:

Over the last few years, the number of patent applications filed for blockchain technology has been on the rise globally, with the U.S dominating the charts. According to reports, the notable patent filers in the blockchain technology space have been banks. But, don’t patents question the very existence of blockchain? A technology that is supposed to be open, permissionless and transparent?

Along the same lines, James Gong, the Co-founder of LongHash, has said that “patents go against the spirit of blockchain technology.” In the latest LongHash post, Gong stated,

Not only that; in the US that goes against 35 U.S.C. § 101 (which USPTO administrators like to sweep aside and ignore). In Europe we have Team Campinos/Battistelli misusing the term — a concept they clearly don't even understand (see this talk from Campinos, complete with nonsense such as “CII”, “4IR”, “IoT”, “AI” and “Blockchain”).

“Off-the-shelf implementations of algorithms such as these have long been available, even before Microsoft’s GitHub existed (the article perpetuates the idea that GitHub is the only thing which counts).”We’ve entered a dangerous era in the patent world. WIPO (UN) issues reports that glorify patents on buzzwords (“hey hi”), they’re always calling everything “IP” (patents are not property) and they deliberately conflate things, such as blockchains for storage and search and blockchains as precondition for patent grants (pseudo-novelty to bypass strict limits on patenting).

Hours ago we also saw that Womble Bond Dickinson (US) LLP’s Theodore Claypoole had published this nonsense in Lexology and other patent maximalists’ journals. It uses the term “Open Source” along with “IP” and “Machine Learning” (what many in this profession call “hey hi”). To quote:

Businesses know that machine learning systems and artificial intelligence programs can be customized to meet a company’s specific needs. Most are at a loss to know how to begin developing them. Many are worried about teaching a machine learning system their pivotal secrets and losing rights to the system itself.

We have talked and written extensively on the risks of artificial intelligence that many business executives may be too intimidated to seek its rewards. This hesitation is unwise and unnecessary.

Probably the best way to resolve these concerns is for companies to start building their own AI for improving internal processes. While the prospect may seem foreign and scary, a universe of open source tools exists to make it easier.

Off-the-shelf implementations of algorithms such as these have long been available, even before Microsoft’s GitHub existed (the article perpetuates the idea that GitHub is the only thing which counts). I know this as someone who worked in that area for over a decade and a half. The above perpetuates several other falsehoods, which basically glorify statistical analysis, training and pattern matching as something new and innovative when it face it goes many decades back. The main difference is the availability or cost of computational resources available to us at scale.

“Our society is quickly devolving into a pool of marketing terms (“apps”, “cloud” and so on), so having meaningful technical discussions — e.g. in the patenting domain — is too difficult. The lawyers prefer it that way (BlahLaw).”It seems reasonable to conclude that patent offices and law firms could really use some training or education about those buzzwords they keep dropping. Public officials too could use some lessons to avoid being bamboozled. Our society is quickly devolving into a pool of marketing terms (“apps”, “cloud” and so on), so having meaningful technical discussions — e.g. in the patenting domain — is too difficult. The lawyers prefer it that way (BlahLaw).

12.07.19

Fake European Patents (on Algorithms) Leading to Fake Embargoes

Posted in Courtroom, Europe, Patents at 11:21 pm by Dr. Roy Schestowitz

35 U.S.C. § 101 would void corresponding USPTO patents

A dreamworld corporate

Summary: Law firms have gotten their way in Germany; instead of supporting the productive workers the patent system is nowadays promoting the litigation ‘industry’ and it ought to be corrected

CITING Sueddeutsche Zeitung (SZ), which used to cover European Patent Office (EPO) scandals, my online friend said that “BlackBerry wins German patent injunctions against Facebook, WhatsApp, Instagram over four (most likely invalid!) software patents” (he pinged Facebook and pinged “Ip2Innovate” about it).

“The Munich I Regional Court ordered a #patent injunction against #Facebook, #WhatsApp, #Instagram,” he said in another tweet. “It’s feature-specific but still, those are simply #softwarepatents that shouldn’t even be allowed in Europe. Germany needs patent reform badly! #BlackBerry is a troll.”

“It doesn’t matter if the software we developed is proprietary or Free software. It doesn’t even matter if we develop software or merely use it.”We’ve said that for years and we hope he will help us (Techrights, FFII etc.) fight back against fake software patents in Europe — an urgent and growing problem!

“I am stunned that the court didn’t stay all five cases over serious doubts concerning the validity of those patents,” he wrote. “When I looked at the claims of the patents-in-suit earlier this year, I quickly concluded that they’d all be highly likely to be annulled…”

This is a pretty decent article about a serious problem. It’s a good article about fake European Patents on software. If the Office grants invalid patents (IPs) that are abstract and incompatible with the EPC, we all suffer as a result. It doesn’t matter if the software we developed is proprietary or Free software. It doesn’t even matter if we develop software or merely use it.

“..they want lenient courts that accept — i.e. presume to be valid in a great rush — invalid patents and then grant injunctions for quick settlements (embargoes/sanctions can be ruinous enough to lead to it, irrespective of justice/truth).”Citing 5 European Patents, he names the following accused functionalities: showing two chat histories in parallel, automatically identifying user profiles containing partly identical data, sharing messages from the chat history, displaying chat history while text is being edited, chatting during gameplay.

There are actually European Patents on those things! Not only are these abstract; they are also trivial and there’s likely ample prior art.

From his post:

Sueddeutsche Zeitung (SZ), a Munich-based newspaper, reported yesterday evening on a set of Germany-wide patent injunctions that BlackBerry–once a smartphone maker, now basically a patent troll–just obtained against Facebook and its WhatsApp and Instagram subsidiaries over a total of four different patents covering chat features.

The injunction is provisionally enforceable. If BlackBerry posts a bond or makes a deposit, it can enforce the injunctions at this stage, though Facebook can appeal to the Munich Higher Regional Court and is, in parallel, challenging the validity of those patents before the Federal Patent Court of Germany. But Facebook has already told the media that the affected services–Facebook Messenger, WhatsApp, Instagram–wouldn’t go out of service in Germany: workarounds have been prepared, so the related features would have to be removed.

BlackBerry sued Facebook (with a focus on Facebook Messenger rather than the social media stream) and those two subsidiaries over five different patents, which I listed earlier this year and will list again further below.

[...]

I am stunned that the court didn’t stay all five cases over serious doubts concerning the validity of those patents. When I looked at the claims of the patents-in-suit earlier this year, I quickly concluded that they’d all be highly likely to be annulled by the Federal Patent Court of Germany (which also happens to be based in Munich, which is sort of the Capital of the Patent Movement, at least for Europe). That’s partly because software as such isn’t patent-eligible in Europe. While the courts rarely ever invalidate a patent as a whole on that basis, they do exclude any non-technical features from their novelty and non-obviousness analysis–and it’s hard to see how anything novel or inventive could be found in those patent claims that isn’t just software stuff without a technical effect. I already operated a chat service (as part of an online gaming network) in the 1990s and wrote an IRC client in 2000, so I know a lot of the prior art from hands-on experience.

What I have been able to find out is that BlackBerry, represented by Quinn Emanuel (a great firm that has not so great clients at times), had to narrow multiple patent claims-in-suit during the infringement proceedings just to address the court’s concerns over non-novelty. There are two problem with German patent infringement courts in the context to grant or deny a stay pending a nullity action. First, they apply an unreasonably high standard (and the “guru” from the Dusseldorf appeals court who has been promoting that high standard for many years more aggressively and fanatically than anyone else recently made dozens of employees of a small company lose their jobs–with Quinn Emanuel again on the enforcing side–over a patent subsequently held invalid). Second–though in many cases that’s even more important than the standard–they take only non-novelty (anticipation) arguments seriously and largely refuse to consider obviousness contentions (lack of inventive step) for no good reason (if they can rule on infringement without appointing expert witnesses, they certainly could also assess the existence of absence of an inventive step, but they just don’t want to).

Patent zealots from Mannheim, Düsseldorf and Munich (where António Campinos succeeded Battistelli) want us to think that everything is OK and even thriving. For the litigation ‘industry’? Sure. They don’t seem to care too much about the validity of granted patents; moreover, they want lenient courts that accept — i.e. presume to be valid in a great rush — invalid patents and then grant injunctions for quick settlements (embargoes/sanctions can be ruinous enough to lead to it, irrespective of justice/truth).

Unitary Patent (UPC) Died Along With the Credibility of Managing IP and the Rest of the UPC Lobby

Posted in Deception, Europe, Patents at 5:55 am by Dr. Roy Schestowitz

August 2019: Managing IP as Team UPC’s Megaphone and Lobbying Front

Managing IP lying

Summary: It is pretty astounding that Team UPC (collective term for people who crafted and lobby for this illegal construct) is still telling us lies, even in the absence of underlying supportive facts, and pressure groups disguised as “news sites” latch onto anything to perpetuate an illusion of progress (even in the face of a growing number of major barriers)

THE European Patent Office (EPO) may seem quiet judging by lack of media coverage (nobody covered the outcome of the strike ballot; the fact is, five out of six voted for a strike). We’re supposed to think that António Campinos magically put an end to the Battistelli era just by virtue of coming to Munich.

EPO examiners are too smart to believe anything substantial changed (and/or for the better). The new guidelines, in effect since last month, compel examiners to grant more illegal software patents while their reward for this ‘production’ is actual reduction in renumeration. Where is the EPO going? “Collaborative Quality Improvements” (CQI), formerly known as “Team Collaboration Project,” shows that the Office isn’t really interested in examiners [1, 2]. They become more like official clerks than scientists. Their pay, their working conditions and employment benefits are accordingly gnawed away. They’re devalued as individuals and as professionals. Ask them. They’ll tell…

“EPO examiners are too smart to believe anything substantial changed (and/or for the better).”The litigation ‘industry’, on the other hand, is rather satisfied. Seeing the ‘growth’ in patents (a meaningless measure in its own right) they foresee lots of lawsuits, even frivolous ones. Seeing that ‘pesky’ courts get in their way, however (dismantling the European Patents), they still hope to remove that ‘annoying’ obstacle. They want a court that they better control with rules that they themselves drafted. That’s the UPC and the UPCA seems like a zombie document. It’s an ‘agreement’ that many people and even nations disagree on/with. Misled and bribed politicians, along with frightened and bribed press, helped Team UPC.

The litigation ‘industry’ and its lobbyists have not given up. They want us to think that UPCA being torpedoes is actually ‘great’! They say it works in their favour or to their benefit — something along the lines of celebrating the flu as a blessing in disguise, “making one stronger.”

AWA’s Niklas Mattsson and Louise Jonshammar (UPC hopefuls, based on the firm’s track record) have just published this piece (“German decision on UPC expected in early 2020″), echoing articles that said something similar about 2018, 2019 and so on. This headline is based solely on an improper telephone ‘interview’ — in a foreign language — with a judge that even the court sought to distance itself from [1, 2, 3]. We’ll come back to this in a moment. One must pay attention to the way Team UPC front group Managing IP squeezes this one ‘interview’ for weeks. They still talk about is every day. Managing IP has just spoken about “[a]n exclusive interview with Justice Huber of the German Federal Constitutional Court and the results of our survey on mental health and wellbeing were among the most read…”

“They lionise Justice Huber and shower him with praises, even fake badges and nonsense like “IP STARS”.”Managing IP is a patent zealots’ front group disguised as a “news” site. Its history when it comes to the UPC is very well documented here. They actively played a role and meddled in various ways. They met and spoke to Battistelli several times over the years. They set up pro-UPC lobbying events for the EPO. They published classic ‘fake news’ about the UPC (false predictions with no underlying source or evidence). We’ve also just noticed that over in Twitter they’re trying to ‘reward’ the judge with ‘honours’, e.g. here (there’s more). They lionise Justice Huber and shower him with praises, even fake badges and nonsense like “IP STARS”. Watch who they give these “crowns” to; it’s rather revealing. Watchtroll has just published “Gene Quinn Named One of the 50 Most Influential People in IP by Managing IP” and their list features Justice Huber (whom they elevate in Twitter). They’re also glorifying Microsoft’s Erich Andersen, who ‘reciprocates’ with a link in Twitter. Patent extortion against GNU/Linux ? Yes, reward! Chris Coons pushing for software patents and against patent justice (and courts)? Quick! Reward and special mention also!

“The people who nowadays publish their ‘reports’ could just go back to ‘uni’ and study how the patent systems actually work instead of just printing whatever law firms (which pay Managing IP) tell them to write.”Managing IP is basically a prank ‘news’ site, composed by people with no qualifications in the said area. As more writers leave (high turnover there) they hired increasingly less experienced people. We don’t want to name names here, but one can check and verify this for oneself. The people who nowadays publish their ‘reports’ could just go back to ‘uni’ and study how the patent systems actually work instead of just printing whatever law firms (which pay Managing IP) tell them to write.

So anyway, going back to AWA’s Niklas Mattsson and Louise Jonshammar, here’s what they say: (the firm apparently promoted this for a fee)

In an interview with IP industry publication Managing IP, Justice Huber of the German Federal Constitutional Court stated that the UK’s decision to leave the EU was of no concern to him and that, depending on the time it takes him and the other judges to deliberate, it is his intention for the Court to issue a decision on the complaint against German ratification of the Unified Patent Court Agreement (UPCA) in early 2020.

However, any decision from the German Federal Constitutional Court may still be delayed as the Justice Ministry previously expressed in a letter that the government will not ratify the UPCA until the implications of Brexit are clear.

Moreover, the court itself distanced itself from this inadequate ‘interview’, made memorable by use of words like “bullshit”. Why did a judge speak to a pressure group? Because he was pressured?

“Germany needs patent reform badly. The German patent litigation system is not just broken: it was ill-conceived and it’s been prone to abuse all along,” argues Florian Müller this month (days ago), stressing in his headline that “it would be unconstitutional in other countries” [1].

“This thing was ‘constructed’ (in a conspiratorial fashion) by law firms from France, Germany, and the UK (some of them have branches in several if not all of these countries).”“UPC will heavily influenced by Germans and their broken patent system, which favour patent trolls and is out of reach for SMEs,” Benjamin Henrion said about this article yesterday, followed by the hashtags #upc #germany and #trolls (seems apt). He has meanwhile also noted: “Unitary Software Patents ratification coming to Brussels Parliament, when do we get an opinion from the Belgian Constitutional Court about making adhoc rules of procedure for a court, which is against ECHR art6, justice made by LAW…”

He mentioned this to me yesterday and I told him that Brussels doesn’t matter to it; nobody expected Brussels (EU) to be the source of resistance, unlike the Spaniards, Czechs, Hungarians, Poles and so on. This thing was ‘constructed’ (in a conspiratorial fashion) by law firms from France, Germany, and the UK (some of them have branches in several if not all of these countries). Brussels is being an extension of EU authorities here, i.e. German/French Eurocrats.

“The EPO is not at all for SMEs!!! Leaks prove otherwise, as do basic sanity checks and scholarly work.”Suffice to say, those law firms don’t know or care about SMEs. They just don’t. They constantly lie about SMEs, as does the EPO. The EPO released several more tweets about “SMEs” this past week, a little #IPforSMEs fluff and then some more about #IPforSMEs (we’ll spare readers the shallow and repetitive content of these “tweets”). We’ve seen this more than once a day an average (used to be once in a couple of days or thereabouts, so it is increasing in frequency). Here’s some more tweeting about “SMEs”: “Up to two-thirds of inventions developed by SMEs & protected by European #patents are commercially exploited – around half exclusively by the SME itself & half with a partner, usually from another European country.”

That’s a rather meaningless and intentionally misleading bit of statistics. One might wrongly interpret that as two-thirds of SMEs being in favour of the status quo. The EPO together with the EUIPO recently released equally ridiculous claims. Causations and correlations get played like fire.

The EPO is not at all for SMEs!!! Leaks prove otherwise, as do basic sanity checks and scholarly work.

Yesterday the EPO tweeted: “Regular searches in #patent databases allow companies to monitor competitors and reveal opportunities for future innovations.”

“These are universal realities when it comes to the patent systems and that’s not unique to Europe.”“That also makes them liable with treble damages (willful infringement),” I responded, “but you leave that inconvenient fact out, don’t you? #IPforSMEs hashtag a total misfit here.”

“Even if you are not obliged to appoint a professional representative when applying for a #patent,” the EPO also tweeted yesterday, “it may still be helpful to consult one.”

“Very expensive and small businesses haven’t in-house ones,” I responded, “so they wind up wasting a fortune on advice from disloyal (external) people…”

These are universal realities when it comes to the patent systems and that’s not unique to Europe. Also check (based on publicly available data) what proportion of patents goes to SMEs.

“Also check (based on publicly available data) what proportion of patents goes to SMEs.”UPC would further damage SMEs, which barely if at all operate outside their home country and thus have a lot more to lose than to gain from multinational litigation.

Over at Kluwer Patent Blog (comments) Richard Gillespie wrote: “I find it surprising that the UPC has attracted so much more attention than the four EPO-related cases before the BVerfG – the result of these cases could have a far greater impact on out profession than the UPC-related case.”

And “Concerned observer” responded:

In my view, the answer to your question is that, in a large part, this is due to complacency that is based upon the assumption that the BVerfG will hesitate to reach a conclusion that could force Germany to exit such a long-established (and deeply embedded) international treaty as the EPC.

There may well be an element of truth in that assumption. However, whilst I do not claim any familiarity with constitutional law in Germany, it appears to me that another possible outcome is that the BVerfG’s ruling requires the German government to negotiate amendments to the EPC … which amendments could have significant effects. For this reason alone, I believe that it would be unwise to assume that none of the complaints in the EPO-related cases will be upheld.

Moreover, we already have examples of the independence of the EPO’s “judiciary” being compromised (in the Corcoran case, twice). Also, the Enlarged Board of Appeal is currently pondering a case (G 3/19) where the eventual ruling will provide direct evidence on the question of whether the EBA remains truly independent of the EPO’s President and Administrative Council. Given the (potential) breaches of the rule of law at the EPO in these cases, it seems to me that the BVerfG could well be justified in upholding at least some of the constitutional complaints relating to the EPO. Whether they will go as far as finding the current structure of the EPO unconstitutional remains to be seen … but it appears that there is no room for complacency on this point.

“Thanks for the reply,” Richard Gillespie later responded, “I think your [sic] right on this.”

“Concerned observer” later added:

I have been waiting years now for a plausible answer to the even more fundamental question of how the UPC can simultaneously meet the requirements of Article 267 TFEU (where preliminary references are only admissible if they are made by a “court or tribunal OF a Member State”) whilst being based upon an Agreement that allegedly establishes an INTERNATIONAL court (which permits the participation of a non-Member State).

Given the speed with which arguments have been generated by the UPC’s proponents on other points of law that threaten the viability of the UPC project, I believe that the long period over which not even a remotely plausible answer to this question has been provided can now be taken as strong evidence of the non-existence of any such answer. However it is evident that even non-compliance with EU law (ie the creation of a court that would destroy the integrity of the EU’s legal order) is no deterrent to those seeking to make the UPC a fait accompli.

My guess is that the proponents of the UPC are envisaging a situation in which the CJEU will keep the show on the road by delivering a judgement that, no matter how unconvincingly, glosses over the fundamental incompatibilities between the Agreement and EU law. Sadly, such a travesty is not as implausible as it ought to be. This is because there is evidence that, where there is enough political will, even immovable legal obstacles can be overcome (think, for example, of the decision of the Supreme Court of the Netherlands which ruled that recourse to ILO AT – which only accepts after the fact complaints from individuals – is an adequate recourse for those seeking to exercise their right to COLLECTIVE bargaining).

With this in mind, perhaps the most important question to answer here is why are the proponents of the UPC so seemingly confident that the political will is there to push their pet project over what should (for the sake of maintaining the integrity of the EU’s legal order) be an insurmountable obstacle? In other words, how can they be so confident that the politicians will support their project no matter what untold damage it might cause?

This is one of those cases where both the articles and all the comments are reasonable. Team UPC is more or less ‘shut out’ of this discussion, so there’s clarity, honesty, and common sense, not blind jingoism and lies (like whatever we see from AWA and Managing IP).

The above was only mentioned and quoted selectively by Team UPC. We supposed they don’t really want people to see it.

“Team UPC is more or less ‘shut out’ of this discussion, so there’s clarity, honesty, and common sense, not blind jingoism and lies (like whatever we see from AWA and Managing IP).”As a side (but nonetheless important) note, Henrion has taken some time off work to fight the UPC or will do so very soon.

They might rename (again) the UPC and retry for the next 10 years. We need to keep watching. “We need to go on campaign mode against to defeat the Unitary Patent monster,” Henrion explained. “Will take some days off to make an urgent plan of attack #swpat #upc #smes”

“Imagine the public reaction if Anthony Joshua claimed that his loss to Andy Ruiz II earlier this year was actually a “good” thing because of the ‘rematch’.”We don’t quite share his alarmist tone. We think that UPC died more than 2 years ago and those who still entertain it are “playing with the corpse” (as the saying goes). Henrion points to this page of feedback on EU policy that reveals patent trolls and their front groups (and law firms, e.g. Team UPC lobbyists). “Full of patent trolls here,” Henrion said, but yes, it’s hardly surprising. This is what we’ve been seeing for years and this is why UPC managed to get as far as it had (until its death). We’re not particularly concerned about the UPC anymore, seeing that its loudest proponents take very early retirement, IAM quit talking about it (almost), and the ringleader Ramsey has the audacity to say that all these setbacks are actually “good” (as if a loss is actually a win). “Failure is success if we learn from it,” Malcolm Forbes said. But what was learned by Team UPC? Nothing. Imagine the public reaction if Anthony Joshua claimed that his loss to Andy Ruiz II earlier this year was actually a “good” thing because of the ‘rematch’.

Related/contextual items from the news:

  1. Injustice is a built-in feature of Germany’s bifurcated patent litigation system — it would be unconstitutional in other countries

    I am presently researching the most appalling miscarriage of justice that ever occurred in a German patent case: dozens of people lost their jobs over a patent–held by a publicly-traded U.S. corporation–that later got invalidated by the Federal Patent Court of Germany (a problem commonly referred to as the “injunction gap”). That patent-in-suit is either (if construed broadly) clearly invalid or (if construed narrowly) not infringed by the accused product, but could not reasonably be held valid and infringed at the same time. The case raises questions not only about the outcome but also about the reasoning and the circumstances that led to it. There’s even a secondary question that reminds me of why Federal Circuit Chief Judge Rader resigned. But as the issues are so very serious, and the fallout from the facts being published might be massive and lasting, I’m making every humanly possible effort to analyze the matter with utmost diligence. That’s why it’s too early to provide names, but when the time is right, I will. The case number contains “39.” Interestingly, the presiding judge of the appellate panel that made the related decision mentioned it in passing last month, in a conspicuously defensive way, and the audience had no idea why he made a reference to a case they hadn’t ever heard of…

    Germany needs patent reform badly. The German patent litigation system is not just broken: it was ill-conceived and it’s been prone to abuse all along, but abuse has become so rampant that the time is ripe for change. The situation is unsustainable, and the system doesn’t really deliver justice.

    Right now there’s only one leading German patent infringement court of first instance that I believe does a stellar job under the circumstances, and that’s the Landgericht Mannheim (Mannheim Regional Court). Many years ago I thought the court was too plaintiff-friendly, but by now it’s my favorite one. To a far greater extent than their counterparts in other German venues, the Mannheim judges–whose understanding of technical issue is unsurpassed–have realized just how irresponsible it is to let patent holders enforce invalid patents all the time. In Mannheim, there are judges who deserve an honorary doctorate in (at least) radio frequency electronics and have the expertise to figure out when a patent is likely invalid as granted, coupled with the backbone to stay such cases (while we’re on this subject, I found out they recently also stayed one Broadcom lawsuit against BMW and one against Daimler, both over non-standard-essential patents). It will be interesting to see how they address the issue of component-level licensing in Nokia’s automotive SEP cases.

« Previous entries Next Page » Next Page »

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channels: Come and chat with us in real time

New to This Site? Here Are Some Introductory Resources

No

Mono

ODF

Samba logo






We support

End software patents

GPLv3

GNU project

BLAG

EFF bloggers

Comcast is Blocktastic? SavetheInternet.com



Recent Posts