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11.25.18

Patents Are Not Property

Posted in Deception, Intellectual Monopoly, Patents at 5:00 am by Dr. Roy Schestowitz

Summary: The mythology about patents being something one can own and then sell is one among the biggest lies perpetrated and exacerbated in the 21st century, giving rise to ‘extortion factories’ such as patent trolls

THE European Patent Office (EPO) and U.S. Patent and Trademark Office (USPTO) are both run by patent maximalists, Battistelli’s António Campinos and Trump's Iancu. These people view patents as things they’re not. They’re clueless or intentionally wrong, i.e. dishonest.

“They interject themselves into media and create their own propaganda sites, usually with inappropriate terms like “asset” and “property” in the name. So even the very names of these sites are lies.”As Hartwig Thomas put it: “The notion of IP is just a propaganda term which attempts to wrap copyright, trademarks and patents in the respectable cloth of “private property” which is guaranteed in the constitution. But the constitution never meant to guarantee anything like it.”

Josh Landau was quoting Madison on the subject of patents several days ago. To quote:

James Madison is credited with introducing the Patent and Copyright Clause to the Constitution, and defended that clause in Federalist 43, stating “[t]he utility of this power will scarcely be questioned.” But he was well aware that there were dangers to the power, writing in his own papers that the patent monopoly could produce more evil than good.

But it wasn’t just in his private papers that Madison referenced the potential problems patents can create. In the letter to Congress in which he, as President, recommended the establishment of a separate patent office within the Department of State, he also noted those dangers, saying he recommended “further guards [be] provided against fraudulent exactions of fees by persons possessed of patents.”

Patents have since then become like a religion with clergy/preachers who tax everyone; some, without being lawyers, are doing this too (trolls). They interject themselves into media and create their own propaganda sites, usually with inappropriate terms like “asset” and “property” in the name. So even the very names of these sites are lies.

“Even the name of the site and the job/title/role contain the propaganda term. If they repeat the propaganda often enough, they presume, people will eventually believe it. Even politicians, judges and governments…”The headline and each paragraph here, for example, contains the lie and the propaganda term “IP”. That’s just a new example; there are examples like it every day. Even the name of the site and the job/title/role contain the propaganda term. If they repeat the propaganda often enough, they presume, people will eventually believe it. Even politicians, judges and governments…

09.23.18

‘Owning’ Nature, Thanks to Patent Insanity and People Who Profit From That

Posted in America, Intellectual Monopoly, Patents at 7:57 pm by Dr. Roy Schestowitz

Related: Stop Patenting Life, Nature is Not an Invention (you owe nature, you don’t own it)

Some wild poppies

Summary: Questionable patents on things that always existed and are merely being explained or reassembled; those sorts of patents typically serve to merely discredit the patent system and courts too increasingly reject such patents (e.g. SCOTUS on Mayo Collaborative Services and Myriad Genetics, Inc.)

THE subject of patents on life/nature is a hotly-debated one at the EPO; many patents got voided (at least virtually) en masse. The USPTO is a lot more lenient and there are some blogs/sites that proudly promote patents on life (or what they call “patents for life”).

One such site is Patent Docs. Kevin Noonan and Donald Zuhn have just advertised this event which they participate in:

McDonnell Boehnen Hulbert & Berghoff LLP and Patent Docs will be hosting a CLE program on Biopharma Patent Law from 10:00 am to 1:00 pm on October 24, 2018 at the Boston Marriott Cambridge in Cambridge, MA. MBHB attorneys and Patent Docs authors Kevin Noonan and Donald Zuhn…

They had also advertised this event on ‘biosimilar’ patents, set up by patent zealots from the Intellectual Property Owners Association (IPO). “In light of FTC challenges to a series of contemporaneous business deals including patent settlements,” it says, “the future of non-cash forms of compensation” is debated. A few days prior to this Kevin Noonan wrote about a case that we covered before: E. I. du Pont de Nemours & Co. v Synvina C.V.

What made this unique was an invalid patent in the context of chemistry:

The Federal Circuit reversed a finding of non-obviousness in a Patent Trial and Appeal Board decision in an inter partes review, in an opinion handed down Monday in E. I. du Pont de Nemours & Co. v. Synvina C.V.

The patent was directed to methods for oxidizing 5-hydroxymethylfurfural or derivatives thereof under reaction conditions specified by the claims (“temperature, pressure, catalyst, and solvent”), to form 2,5-furan dicarboxylic acid (“FDCA”). FDCA can be produced from sugars and thus is considered by the Department of Energy to be a “green” or environmentally beneficial precursor to other materials.

[...]

(Interestingly, the evidence adduced by DuPont in support of standing establishes their intent to willfully infringe should the panel not decide that the PTAB erred in not finding the ’921 patent to be invalid, although the panel was careful to state in a footnote that “we make no judgment on whether DuPont has infringed or is infringing the ’921 patent.”)

A similar article was produced by Dennis Crouch, who revisited the case by saying: “My prior post on DuPont v. Synvina focused on the obviousness of a claimed range in the context of inter partes review (IPR) proceedings. The decision also raises a question of standing — whether the patent challenger DuPont had standing to appeal the IPR decision favoring the patentee Synvina. [...] With the standing requirement met, the Federal Circuit was able to hear DuPont’s argument and agreed that the claims are obvious.”

So the US patent office granted the patent in error. The effect of such errors can be profound; Acorda was recently brought up by Crouch in relation to this (after its shares had collapsed, following Acorda Therapeutics, Inc. v Roxane Laboratories Inc.). Watchtroll wrote about it three days ago and on the same day it wrote about CRISPR-Cas9 patents (life being ‘owned’ by patents, hence a controversial type of patents). To quote: “The Court affirmed a Patent Trial and Appeal Board (“Board”) decision finding there was no interference-in-fact between UC’s patent application and the claims of twelve patents and one application owned by Institute. See Regents of the Univ. of Cal. v. Broad Inst., Inc., No. 2017-1907, 2018 U.S. App. LEXIS 25535 (Fed. Cir. Sept. 10, 2018) (Before Prost, Schall, and Moore, J.) (Opinion for the court, Moore, J.).”

This case received a lot of media attention [1, 2, 3, 4] and the decision [PDF] from the Federal Circuit is widely cited. The US patent system has truly gone insane if things that aren’t inventions but are naturally-occurring can become a private monopoly. People (design-)patent nature now, too. As Crouch noted a few days ago, there are patents on marble!

A natural phenomenon is not patent eligible — neither is a man-made items that is identical to a naturally occurring. The image below sure looks like a natural stone pattern, but is actually an image of an artificial quartz stone slab patented in U.S. Design Patent No. D825,787 that issued in August 2018.

[...]

As per usual standard operating procedures, the USPTO issued the design patent in a first-action-allowance without rejection and without citing must of relevance.

It is pretty incredible that the USPTO lets this slip in, not through. Opioid addiction, as we noted quite recently, was also exploited by patents; a family of billionaires had created lots of drug addicts in the US (with many fatal consequences) and the USPTO is rewarding them for a crisis of their own making with a monopoly on treatment. As Watchtroll put it on Saturday, there’s a Delaware case (the 'new' Eastern Texas) dealing with this and “[t]he Federal Circuit reversed the District of Delaware’s decision to invalidate Orexo’s opioid treatment patent as obvious because obviousness was not proved by clear and convincing evidence.”

Sure then. Make treatment of deadly drug addiction a monopoly too. Maybe drug addicts will then have to commit lots of crimes just to add up the money to get a cure for their addiction. This is an exercise in self-discreditisation by the USPTO.

09.07.18

IAM Media Engages in Trademark Violations While Trying to Misrepresent Free/Open Source Software in Relation to Software Patents

Posted in Free/Libre Software, IBM, Intellectual Monopoly, Law, OIN, Patents, Red Hat at 4:08 pm by Dr. Roy Schestowitz

The “I” in IAM stands for “Infringement” (apparently)

Summary: The site/group which is trying to lecture us all about “intellectual” “property” is itself failing to respect the relevant laws; to make matters worse, it’s liaising with groups of proprietary software vendors to mislead the public about the relationship between Free/Open Source software (FOSS) and patents, notably software patents

THIS post is about Battistelli’s friends at IAM, which habitually whitewashed EPO scandals and is generally promoting patent trolls’ interests. We’ll have a lot more to say about it this coming weekend.

This quick post is about something which happened earlier today.

The IAM account in Twitter said: “Can open source and patents coexist? That’s what experts from #OpenInventionNetwork, @Workday, @Uber and @RedHat will be discussing at Software IP on October 30 in San Francisco. Get your ticket here http://bit.ly/2QatL0l #SoftwareIP pic.twitter.com/OBUmBrBQqW”

Well, Red Hat is pursuing software patents but calls them "blockchains" amongst other thing; the rest of those in attendance are obviously misfits. Answering the question “Can open source and patents coexist,” of course they cannot, but OIN and the others want them to because they’re proprietary software companies and their front groups. They don’t care about Free software or freedom. They also perturb the meaning of Open Source to suit a primarily proprietary agenda.

IAM is a think tank of patent trolls, Microsoft’s patent trolls included. It also fronts for the patent microcosm, patent litigation ‘industry’ etc. They won’t allow people to use the “F word” (freedom). It didn’t take long for Simon Phipps (OSI President) to say: Interesting there’s no-one from OSI or FSF speaking.” He copies in the OSI and the FSF, the Free Software Foundation’s chief to be more specific or exact.

“By the way,” added an observer, “it got me thinking, isn’t this a case of trademark infringement of OSI’s Logo ? Doesn’t seem to fit those clear guidelines…”

That links to the OSI’s Web site.

Benjamin Henrion then joked that “the (R) has been removed at least.”

So now we know how IAM really feels about “intellectual” “property” (what it calls copyrights, trademarks and patents as though they’re all the same thing). Well, they have since then deleted this tweet, perhaps realising just how serious;y embarrassing this was; thankfully we made a copy and here is a copy of the image from their deleted tweet (the tweet’s text is quoted above):

IAM trademark

They make it seem as though “Open Source” is all giddy about patents. They did this before too. Why does the OSI even participate in anything with such a nefarious lobby group? That says a lot about OIN (nothing positive). We mentioned this before.

07.22.18

Can Trade Secrets Litigation Replace (in Part) Patent Litigation?

Posted in America, Intellectual Monopoly, Patents at 2:30 am by Dr. Roy Schestowitz

Recent: Number of US Patent Lawsuits Was More Than 50% Higher Half a Decade Ago

Patent Lawyers' Tears
Patent Lawyers’ Tears

Summary: Seeing DTSA as an opportunity to combat their competition, more firms now choose to file trade secret cases whereas patent cases continue their sharp decline

WHEN IT comes to software (code), there are copyrights, but there are no patents. Those that get granted rarely survive a court’s challenge or a board’s scrutiny (this is scarcely explored in the EU, but very visible in the US). Don’t expect European Patents on software to be of much use, even if the EPO grants some (a disastrous residue of Battistelli’s trashing of the Office).

“Patents are about publication, whereas secrecy is about concealment of one’s work.”When it comes to software copyrights, or even copyleft, legal action can be taken in cases of plagiarism. If the code is secret, which is often the case, plagiarism is prevented in part by secrecy. Patents are about publication, whereas secrecy is about concealment of one’s work.

After the sharp decline in patent lawsuits there might be a shift in strategy in the US, reducing the role of patent courts and the USPTO. More trade secret disputes to come? We recently wrote about a rise of such cases and associated damages. Professor James Bessen told me that “FEDERAL trade secret litigation is up because there is a new Federal law; but trade secret & noncompete litigation has been rising for a decade…”

“Well, secrecy is far from ideal; in fact, publication in exchange for monopoly (patent) is often better, but not in the domain of software.”Mind Camilla Alexandra Hrdy’s very long new blog post/paper on the subject, Watchtroll’s take from Robert Williams, and Managing IP summary. “A Lex Machina report reveals trade secret case filing figures after passage of the DTSA, as well as the largest ever damages awards and top plaintiff and defendant law firms,” it says.

“US trade secret case filing jumped 30% in 2017,” the headline says.

Well, secrecy is far from ideal; in fact, publication in exchange for monopoly (patent) is often better, but not in the domain of software.

04.26.18

World IP Day, a Propaganda Opportunity for Patent Maximalists, is Becoming More About Feminism

Posted in Deception, Europe, Intellectual Monopoly, Patents at 6:55 pm by Dr. Roy Schestowitz

Conflating an extremist agenda with noble civil rights causes

Summary: The annual nonsense which is called “World IP Day” is being put in a dress for no purpose other than giving a moralistic aspect to it — one that patent maximalists (predominantly male) do not deserve

THE United States (or USPTO), as well as WIPO and others, have promoted an annual propaganda day. They call it “World IP Day” and the term “IP” is itself a form of propaganda because it contains two misnomers that allude vaguely to a bunch of separable laws, including but not limited to patent law. Throughout the day today we saw quite a few heckles thrown at “World IP Day”. A lot of people understand that it’s a pile of self-serving nonsense.

“Throughout the day today we saw quite a few heckles thrown at “World IP Day”. A lot of people understand that it’s a pile of self-serving nonsense.”Just earlier today IAM announced “inductees into the IP [sic] Hall of Fame” and earlier today Managing IP published this list of “The Top 250 Women in IP” [sic]. Timing was not a coincidence. We don’t believe so anyway. I asked my wife about it and she agrees. Feminism is being hijacked here.

In the latter, notice the agenda that got interjected. “World IP Day” is nowadays being used not only as a propaganda opportunity for patents; it’s now including the feminism theme so if you oppose the ‘IP’ propaganda, then maybe you’re ‘sexist’… watch what IP Kat published some hours ago under the headline “Celebrating female inventors on World IP [sic] Day!”

Several hours ago IP Watch published “World IP Day: Women Are Celebrated But Gender Gap Persists” (as if it’s about gender rather than ‘IP’ [sic]).

“We are rather worried to see what patent maximalists have resorted to. Patent quality is their enemy.”Watch how the EPO used the “female” angle for something that has nothing to do with it. Yes, the EPO too did this (before linking to Campinos’ EU-IPO, to the same effect*).

US patent maximalists wrote about it also [1, 2], taking advantage of it to promote patent maximalism (like software patents). Hours ago the EPO was again promoting software patents in the US (or its event that promotes this).

“Feminism is sometimes being hijacked if not exploited by patent maximalists.”We are rather worried to see what patent maximalists have resorted to. Patent quality is their enemy. PTAB and BoA in the EPO/Europe (almost analogous functions) are under attack by them and Battistelli is just trying to make them redundant, hoping he can replace them with a UPC-type regime and let many bogus patents slip in (pass the sieve of already-overworked examiners). Hours ago the EPO wrote: “The EPO’s Boards of Appeal aim to reduce the number of pending cases from 9 000 to below 7 000 by 2022.”

Funny how the EPO never mentions that this is accomplished by making appeals more expensive, making it harder for judges to do their jobs, and so on. It also fails to mention that their report bemoans the status quo, claiming that they’re understaffed.

But never mind appeals. Never mind patent quality. Today is “World IP Day”, so we must celebrate “IP” — whatever that actually means. Patents? Copyrights? Trade secrets? Trademarks? Whatever it may be, to heckle “World IP Day” is nowadays akin to bashing posts/articles about it, many of which focus on equal opportunities, women inventors, etc. We think that’s intentional. Feminism is sometimes being hijacked if not exploited by patent maximalists.
____
* Campinos is the next Frenchman to take over the EPO. It’s a very French office these days and earlier today the EPO retweeted INPI (France), after it was promoting Battistelli’s event in France. Yes, it’s that one very special event that lets him grab a ‘suitcase’ of cash, EPO money in fact, and wheel it over to his other employer (in France). The UK-IPO also assists this agenda and the EPO retweeted it today. They’re all in this together.

03.11.18

Patent Maximalists Cause a Crisis of Legitimacy for Patent Law

Posted in Intellectual Monopoly, Law, Patents at 11:13 pm by Dr. Roy Schestowitz

A crisis

Summary: The patent extremists who nowadays equate monopolies on mere ideas to “property” and “rights” gradually cause the public to lose respect for patents, more or less in the same way copyright maximalists (and copyright trolls) cause the population to seek alternatives (both legal and illegal)

THE concept of “intellectual property” is a vague one, especially because it’s a misnomer, sometimes abbreviated as “IP” or “IPR” (a third misnomer, “rights”) to avoid actual debate about suitability of pertinent words. I believe in trademarks. I see their purpose (when not overused, as often happens, granting monopolies on singular dictionary words). Copyrights are important too; they’re essential in management of software code, even if slanted as copyleft (which derives its ‘teeth’ from copyright law). Patents as originally envisioned (when conceived) typically pertained to physical inventions which required labour to produce and reproduce (or mass-produce), not mere thoughts/ideas.

“Patents as originally envisioned (when conceived) typically pertained to physical inventions which required labour to produce and reproduce (or mass-produce), not mere thoughts/ideas.”Terms like “IP” or “IPR” aren’t helpful; they’ve become propaganda terms that dodge a serious, adult debate and open-minded assessment of rationale. These equate a monopoly with a “right” and a “property”. Monopoly is neither of those things.

At the end of last month, on February 26th to be precise, August Debouzy’s François Pochart, Lionel Martin and Mathilde Rauline were lumping together totally and entirely different things. They used the word “IP” in their article titled “One IP standard to rule them all” and only later on they broke that down into what they actually truly meant:

All the useful data for all IP rights (patents, trademarks, designs, software …) as well as contracts are coded. Tags are provided for a very large majority of cases or facts: among them the social form of the applicant or its nationality, further the internal references to the case, the applicable law, the fact that it is a divisional application for patents or the language of the technical field for brands, the procedural deadlines, and many more.

Well, “patents, trademarks, designs” (and copyrights, trade secrets etc.) have different laws associated with them, so no serious debate can be conducted under a banner like “One IP standard to rule them all”.

“Terms like “IP” or “IPR” aren’t helpful; they’ve become propaganda terms that dodge a serious, adult debate and open-minded assessment of rationale.”This is symptomatic and quite so typical among law firms.

Jeffer Mangels Butler & Mitchell LLP’s Stanley M. Gibson wrote about Gemshares LLC v Arthur Joseph Lipton the other day, regarding challenges to validity of patents. Here’s a portion from the article:

GemShares LLC filed a patent infringement action against Arthur Lipton and Secured Worldwide, LLC (SWW) on U.S. Patent No. 8,706,513 B2 (the ‘513 patent). The ‘513 patent is entitled “global investment grade for natural and synthetic gems used in financial investments and commercial trading and method of creating standardized baskets of gems to be used in financial and commercial products.”

According to the district court, Lipton became a one-fifth owner of GemShares in 2013, while the patent application was pending. Lipton executed an operating agreement that included a term requiring him (and other GemShares members) to disclose and present to the company opportunities related to or likely to be competitive with GemShares’ business.

Putting aside the abstract-sounding patent (maybe a business method), what we have here is a couple of LLCs (typically entities that do not produce anything concrete) bickering over patents. The one sure thing is, lawyers will win. Lawyers will pocket a lot of money in the process, which is an attempt to challenge the patent’s validity and an (counter)attempt to outright block such a challenge. Shouldn’t it be a perfectly reasonable thing to question a patent’s validity? The US Supreme Court would indirectly decide on that quite soon in Oil States. Remember that, contrary to the nonsense from Crouch et al (regarding this case), patents are not property. Oil States is about IPRs, which challenge not “ownership” but the validity of some granted monopoly.

“Remember that, contrary to the nonsense from Crouch et al (regarding this case), patents are not property.”We are frankly appalled by some of the spin that comes from the patent microcosm. These people just aren’t honest; this dishonesty is necessary for them to continue to make buckets of money. There are upcoming lobbying events on the subject of IPRs, e.g. “Webinar on Paragraph IV Litigation and IPRs” and “FCBA Program on IPR Estoppel” (suppression of challenge) and guess who’s attending. These are all echo chambers of the patent ‘industry’. They want no patents challenged; they’re patent maximalists and absolutists.

Dealing with Solutran, Inc. v US Bancorp et al, CBM estoppel was last week considered by Docket Navigator. When a company sues you with a patent and when you show that the patent is obvious (and thus bogus), can that company then attempt to suppress or prevent judges from seeing the evidence of obviousness? As Docket Navigator put it:

The court denied plaintiff’s motion in limine to exclude evidence of obviousness because CBM estoppel did not apply to an entire statutory basis.

Got that? It’s like some of those ludicrous court cases where the defendant is prevented from presenting evidence in his/her defense. That happens a lot in military courts or in cases pertaining to “national security” (with the classic excuses that a legal defense might be to the detriment of “national security”, or in practice embarrass the state).

“Patents have, in general, gotten a bad name among programmers because they’re sick of software patents, which they neither needed nor wanted.”We often wonder how patent lawyers sleep at night knowing that their occupation often involves subversion of justice rather than defense of the system’s integrity. Maximalists are the opportunistic vandals. We’re not against patents (we never were!); for their legitimacy or perceived legitimacy (acceptance among the public) they need to follow strict rules and be open to scrutiny. A lot of the general public already shows flagrant disdain for copyright law because of copyright maximalists who just exploit copyright law for censorship, complete control of the Internet, mass surveillance (in the name of catching ‘pirates’) and so on.

Treat patent law with respect; or else risk breaking this entire cornerstone of so-called ‘IP’. Patents have, in general, gotten a bad name among programmers because they’re sick of software patents, which they neither needed nor wanted.

10.22.17

The Darker Past of the Next President of the EPO – Part IV: Links Between CGD (Former Employer of António Campinos) and the INPI

Posted in Europe, Intellectual Monopoly, Patents at 12:19 am by Dr. Roy Schestowitz

Everything comes together

INPI and banks
Large (legible) version

Summary: More information about connections between CGD and the Portuguese Intellectual Property Office (INPI)

THE next President of the EPO isn’t quite what he seems. There are things about him which he isn’t eager to disclose, hence our series about his past.

Previous parts of this series are as follows:

Campinos and his supporters boasted/showed off his experience in the field of “IP” (they intentionally don’t say trademarks, which are not the same as patents). But what does his track record in trademarks really show? This is the subject of today’s final part of this series.


Some interesting details about links between CGD and the Portuguese Intellectual Property Office (Instituto Nacional da Propriedade Industrial – INPI) have been unearthed on the official Web site of the INPI.

An undated press release posted on the INPI Web site reports on the establishment of a “strategic partnership” agreement between Caixa Capital, a venture capital company of CGD Group, and INPI for the promotion of technology-based entrepreneurship.

The collaboration protocol was signed the Chairman of the Board of Directors of Caixa and by the President of INPI, António Campinos.

Campinos took up his position as President of the OHIM in Alicante (now EUIPO) on 1 October 2010 just three months after Battistelli had been installed as President of the EPO.

This means that the press release must date from some time between 2005 and 2010, in other words from the time that Campinos was Director of the INPI.

Translation of the text of the undated press release:

Technology-based entrepreneurs with easy access to financial resources

Caixa Capital, a venture capital company of CGD Group, and INPI have established a strategic partnership agreement for the promotion of technology-based entrepreneurship.

This agreement aims to support national inventors, creators and entrepreneurs in the protection and economic valuation of their innovations, in particular by promoting the availability and facilitating access to financial instruments and resources to enable them to realise business ideas.

It was also announced during the signing of the protocol, the creation of the Invention Award of the Year, to be launched in the first quarter of 2010 within a fair that will showcase inventions and other intellectual creations registered with INPI.

It is also planned to jointly organise a series of Academy-Industry meetings, with the aim of facilitating the transfer and valorisation of the research results developed by the entities of the National Technological and Scientific System.

The collaboration protocol was signed by Eng. Faria de Oliveira, Chairman of the Board of Directors of Caixa and Dr. António Campinos, President of INPI.

A more recent press release from January 2015 reports on a further and much more far-reaching “collaboration protocol” between the INPI and CGD.

Translation of the text of the January 2015 press release:

INPI and CGD sign Collaboration Protocol

Taking into account INPI’s strategic orientation, to promote cooperation with national organisations and entities with a view to increasing Portuguese business competitiveness and strengthening the use of Industrial Property among the academic, scientific and business communities, it was signed on 5 January of 2015, a Protocol of Collaboration between INPI and Caixa Geral de Depósitos.

The Protocol, in addition to establishing the terms of the partnership between the two entities, also intends to implement the following activities:

- Sharing of statistical information related to Industrial Property rights, made available by INPI;

- Sharing of publicity materials made available by INPI;

- Organisation of training actions in matters of Industrial Property, within the framework of the activities promoted by the Industrial Property Academy of INPI;

- Participation in events and publicity actions organised by CGD.

If the INPI and CGD deem it appropriate to pursue the objectives set out in the Protocol, other forms of cooperation may be established, duly agreed upon and introduced in an addendum to the Protocol.

23 January 2015

An earlier press release from February 2011 reveals that the INPI had already been closely involved in events and publicity actions organised by CGD.

In this case, the event in question was the “INVENTA – Caixa prize” which is an “Inventor of the Year” award of the kind which will be familiar to observers of the EPO. Of course the Portuguese event is a small-scale one and far more low key than the “European Inventor of the Year” ceremony.

By a curious coincidence, the “personalities” who turned up for the “INVENTA – Caixa Prize” ceremony in Lisbon in February 2011 included none other than EPO President Benoît Battistelli. Maybe this is where he got his inspiration for his EPO extravaganza?

Translation of the text of the February 2011 press release:

INVENTA – Cash Prize | INPI – Winners

The winners of INVENTA – Caixa Prize | INPI.

In a ceremony held yesterday at Caixa Geral de Depósitos headquarters in Lisbon, the sector and absolute winners of INVENTA – Caixa Prize | INPI.

INVENTA.com

PT Innovation with the patent “High Performance Discovery Device for Content Transmission”

INVENTA.san

University of Coimbra with the patent “Nouveaux derives de porphyrine, notamment chlorines et / or leurs applications en therapie photodynamique”

INVENTA.eco

Oon Recycling Solutions with the patent “Transforming food oil used in candles”

Overall Winner

University of Coimbra with the patent “Nouveaux derives de porphyrine, notamment chlorines et / or leurs applications en therapie photodynamique”

The sector winners will be awarded a prize of 15,000 euros and the overall winner a prize of 25,000 euros.

The prizes were delivered by the following personalities:

Dr. Maria Leonor Trindade of the National Institute of Industrial Property;

Dr. Jorge Tomé of Caixa Geral de Depósitos;

Dr. Luís Portela from Health Cluster Portugal;

Dr. Diogo Vasconcelos of the Portuguese Association for the Development of Communications;

Prof. Daniel Bessa from COTEC and

Dr. José Honório from the Business Council for Sustainable Development,

all members of the jury,

the President of CGD Faria de Oliveira,

the President of the Office for Harmonization of the Internal Market António Campinos,

the President of the European Patent Office Benoît Battistelli and

by the Secretary of State for Justice and Judicial Modernization José Magalhães.

To all candidates, nominees, sector winners and absolute winner, INPI presents its congratulations.

25 February 2011

A Portuguese press article from May 2017 (see the top) reported that CGD had been successful in a trademark dispute between CGD and the Spanish-owned Caixabank. The dispute involved the “Caixa” trademark.

The word “caixa” in Portuguese means something like a cash desk (similar to the Spanish “caja” or French “caisse”) so it seems somewhat surprising that such a generic term can be protected by trademark. But with the right connections to your local Intellectual Property Office it seems that nothing is impossible these days.

07.02.17

Professor Pamela Samuelson Debunks the Concept of ‘IP’ by Separating Copyrights From Patents and Demonstrating That Copyrights Are Sufficient for Software

Posted in Intellectual Monopoly, Patents at 11:18 am by Dr. Roy Schestowitz

Various approaches for assessment of copyright infringement (in software) are outlined by an academic from Berkeley who specialises in copyrights

Pamela SamuelsonSummary: In a paper entitled “Functionality and Expression in Computer Programs: Refining the Tests for Software Copyright Infringement” Samuelson (shown on the right) explains that working around copyright infringement isn’t as trivial as proponents of software patents want us to believe

IT IS often said here that software developers need not rely on any patents because copyrights already provide sufficient protection from gross plagiarism. The same is true for prose.

Pamela Samuelson, linking to her guest post from May, did some scholarly work on the subject. Pamela Samuelson was even cited by proponents of software patents, who added: “Rediscovered 1991 PTO/Copyright Office study concluded that #copyright & patent are mutually exclusive re software”

“It is often said here that software developers need not rely on any patents because copyrights already provide sufficient protection from gross plagiarism.”Yes, software is covered by copyrights but not by software patents in most of the world and after Alice (2014) it seems ever more evident that developers should focus on copyright assignment rather than pricey patent applications. It’s interesting (albeit not too surprising) that she chose Patently-O as her platform, preceded by “Professor Samuelson’s newest article Functionality and Expression in Computer Programs: Refining the Tests for Software Copyright Infringement, is forthcoming in the Berkeley Technology Law Journal.”

Does this mean people should quit using buzzwords like “IP”? Wherein even trade secrets and trademarks are lumped into the same pile?

Some proponents of software patents have since deleted their reference to that, but Manny Schecter from IBM cited Samuelson and twisted what she showed by stating: “And yet some think (wrongly) that #copyright is a substitute for #patent protection…”

“Does this mean people should quit using buzzwords like “IP”?”They don’t say “substitute” and either way, this totally misses the point of what she argued. IBM, being a patent bully, can’t help lobbying everywhere in the world for software patents. Such IBM spin on an article, which — in our assessment — proves the very opposite, says a lot about IBM.

“German courts in the seventies said the same,” the FFII’s President told him. So there’s nothing unusual about what Samuelson has shown.

“This Article offers both praise and criticism of the approaches taken thus far to judging software copyright infringement, and it proposes an alternative unified test for infringement that is consistent with traditional principles of copyright law and that will promote healthy competition and ongoing innovation in the software industry.”
      –Pamela Samuelson
For those wishing to read the complete article, it is here (direct link to the 65-page PDF although directs may lead to static HTML). The abstract says: “Courts have struggled for decades to develop a test for judging infringement claims in software copyright cases that distinguishes between program expression that copyright law protects and program functionality for which copyright protection is unavailable. The case law thus far has adopted four main approaches to judging copyright infringement claims in software cases. One, now mostly discredited, test would treat all structure, sequence, and organization (SSO) of programs as protectable expression unless there is only one way to perform a program function. A second, now widely applied, three-step test calls for creation of a hierarchy of abstractions for an allegedly infringed program, filtration of unprotectable elements, and comparison of the protectable expression of the allegedly infringed program with the expression in the second program that is the basis of the infringement claim. A third approach has focused on whether the allegedly infringing elements are program processes or methods of operation that lie outside the scope of protection available from copyright law. A fourth approach has concentrated on whether the allegedly infringing elements of a program are instances in which ideas or functions have merged with program expression. This Article offers both praise and criticism of the approaches taken thus far to judging software copyright infringement, and it proposes an alternative unified test for infringement that is consistent with traditional principles of copyright law and that will promote healthy competition and ongoing innovation in the software industry.”

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