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12.09.18

The Quality of European Patents Continues to Deteriorate Under António Campinos and Software Patents Are Advocated Every Day

Posted in America, Europe, Free/Libre Software, Law, Patents at 9:15 am by Dr. Roy Schestowitz

Even several times per day, as shameful as it may seem

EUIPO outsourcing

Summary: The EPC in the European Patent Office and 35 U.S.C. § 101 in the USPTO annul most if not all software patents; under António Campinos, however, software patents are being granted in Europe and the USPTO exploits similar tricks

DISREGARD for the rule of law is pretty normal at the EPO. There are endless examples of it and a broad range of aspects to it. We spent years covering that. Today, however, we would like to focus on how the EPO (as well as the USPTO) gets to grant software patents, never mind if courts dismiss these.

Mostly illegal software patents that pertain to my research field (computer vision) are being openly promoted and bragged about by today's EPO. This did not happen under Battistelli; this is a Campinos thing. We cannot stress often enough that as far as software patenting is concerned Campinos seems a lot worse than Battistelli; judging by how often the EPO promotes such patents under the leadership of Campinos (as opposed to Battistelli’s). It is a race to the bottom. Just before the weekend the EPO wrote: “The number of European patent applications relating to self-driving vehicles increased by 330% between 2011 and 2017.”

A few days ago a news report was published under the headline “GM Patents the Blockchain Solution for Driverless Cars”.

“We cannot stress often enough that as far as software patenting is concerned Campinos seems a lot worse than Battistelli; judging by how often the EPO promotes such patents under the leadership of Campinos (as opposed to Battistelli’s).”Combining two buzz/hype waves, blockchains and SDV (the EPO’s buzzword/term of choice), these people nowadays facilitate and permit patents on software. Software patents are bogus however. They’re likely worthless too as most judges would laugh them out of court (if it ever gets this far).

And speaking of blockchains, which the EPO promotes patents on (misleadingly-named event, which is actually about patents but doesn’t explicitly say so), mind this new article from Swiss media (in French). The headline speaks of blockchains and “open source”; a French-speaking Free software (“open source”) developer just said: “Software patents, the end of free software…”

By granting patents on blockchains the EPO blatantly tramples/stomps on Free/Open Source software, which is fundamental to the adoption of blockchains.

We understand that the Campinos-led EPO saw a hype wave and decided to ride/surf it, but at what cost? The concept of blockchains is being brought up even by those who don’t understand it; several days ago Forbes published “Blockchain For Business: This Startup Thinks It Solves All Of Blockchain’s Worst Problems” (marketing disguised as an article).

This is eerily similar to the “AI” hype, which resurfaced about a year ago. Everyone started rebranding things “AI”, years after they had rebranded everything “smart” and “cloud” or whatever (more buzzwords to be mentioned below).

“By granting patents on blockchains the EPO blatantly tramples/stomps on Free/Open Source software, which is fundamental to the adoption of blockchains.”Even the lawyers admit it’s just hype/buzz. This new article from a law firm starts with this sentence : “Artificial Intelligence (AI) is a loaded technology buzzword that comes in different forms in various commercial products.”

Yes, it’s a buzzword. So far this month we’ve seen an “Artificial Intelligence Trading Expert” [1, 2] (just using algorithms; nothing new) and this article titled “‘Buzz about AI’ lends to Linguamatics win”. Calling mere algorithms “AI” is now as commonplace as can be. Here is an example from a few days ago: “Artificial intelligence technology has helped build software that can analyze videos for better capturing of events, understanding patterns and surveillance.”

“Everyone started rebranding things “AI”, years after they had rebranded everything “smart” and “cloud” or whatever…”All of these examples (above) mention patents and “AI”. Everything is being called “AI” these days… for marketing purposes. “iCAD Announces FDA Clearance of ProFound AI™ for Digital Breast Tomosynthesis,” says this new press release. Here comes the Allied Security Trust (AST) and the “AI” hype; lots of bogus patents as usual. But… “AI”! So it’s innovative!

Software potentially puts the patent ‘industry’ in the ashtray; so they call software “AI” now, as usual (because they’re technically inapt). “Wave Computing®,” states another new example, “the Silicon Valley company that is accelerating artificial intelligence (AI) from the cloud to the edge…”

All the above are from the past fortnight alone; “AI” and “patents” everywhere. It is intentional. As we recently noted on numerous occasions, even the USPTO has swallowed the “AI” hype and offers it as a route towards software patentability. An article by Sameer Gokhale (Oblon, McClelland, Maier & Neustadt, LLP) makes it very obvious. They’re pretty shameless about it.

“As we recently noted on numerous occasions, even the USPTO has swallowed the “AI” hype and offers it as a route towards software patentability.”How about “Smart” and “IoT”? These are two more buzzwords recently embraced everywhere (globally even).

“Smart devices in IoT need a smarter patenting strategy,” IAM’s new headline says. Just keep stuffing buzzwords like “smart” and “IoT” in hope of enabling software patents, right?

“This article provides a comprehensive report on the challenges faced in patenting technology in the Internet of Things domain,” it says. It’s a domain that just means devices with an Internet connection. It’s far too vague, intentionally so.

We are meanwhile seeing European law firms trying hard to find all sorts of ways to patent software. Philip M. Nelson and Ronald J. Schoenbaum (Knobbe Martens), for example, have published [1, 2] “Will New PTO Guidance Be The Antidote to Alice In The Medical Device Patenting Process?”

“We are meanwhile seeing European law firms trying hard to find all sorts of ways to patent software.”Here they go again with “Medical Device”, two cheeky terms combined to associate software with “life-saving” and “physical” (even when it boils down only to code).
Marks & Clerk’s Thomas Prock has just published “A feather in one’s app: why the UK could lead the way for medical app patents” (similar talking point). It adds the buzzword “app”…

Suyoung Jang, Cheryl T. Burgess and Mauricio Uribe (also of Knobbe Martens) are still pushing anti-Section 101 lies. It’s that classic software patents propaganda, spread at all costs (even to multiple publishers that charge for it; it’s cross-posted [1, 2] again). They’re using the fata morgana that is "Berkheimer and Aatrix"; the latter became known for little more than that patent lawsuit (Aatrix is mostly/only mentioned in relation to patents, even when it’s not about patents) and the former became a placeholder for “I don’t like Alice and Alice sucks because fact-finding.”

“Today’s EPO is rotting with corruption and fake patents (that bear no presumption of validity).”António Campinos may not say much on the subject, but his actions in a leadership position are revealing. The EPO’s Twitter account has just quoted Campinos as saying: “In my time at the EPO I’ve been able to rely on the expertise, dedication and commitment of an experienced staff to help in the transition process…”

What transition? Some staff calls him “mini Battistelli” and some claim that he’s even worse than Battistelli; it’s clear that nothing is changing, except for the worse. Today’s EPO is rotting with corruption and fake patents (that bear no presumption of validity). Staff cuts are implemented (he did the same in another agency) by means of limited (with time limits) contracts, longterm hiring freeze and encouragement of early departure/retirement.

12.06.18

The European Patent Office Remains a Lawless Place Where Judges Are Afraid of the Banker in Chief

Posted in Courtroom, Europe, Law, Patents at 8:34 am by Dr. Roy Schestowitz

Related: Ingve Björn Stjerna Has Just Warned That If Team UPC and the European Patent Office Rigged the Proceedings of the German Constitutional Court, Consequences Would be Significant

Fair trial

Summary: With the former banker Campinos replacing the politician Battistelli and seeking to have far more powers it would be insane for the German Constitutional Court to ever allow anything remotely like the UPC; sites that are sponsored by Team UPC, however, try to influence outcomes, pushing patent maximalism and diminishing the role of patent judges

THE underlying issues at the European Patent Office (EPO) have not been addressed at all. They just rotated the face, swapping one Frenchman with another, António Campinos. In a 20-year period it's expected that almost 17 years will be French-led at the EPO. How ridiculous is that? A reader of ours calls it "La famiglia".

“It’s almost as though Wingrove just writes whatever Bristows’ main office tells him to write and the headline says “Constitutional Court ruling rumours spread” as if this “spread” somehow means there’s truth to it; for all we can tell, the only ones “spreading” it are propaganda sites like the one Wingrove writes for.”We are well aware that the Constitutional Court in Germany (FCC) is assessing the situation. It isn’t helping that UPC propaganda sites (connected to the EPO and Team UPC) are perpetuating falsehoods. Patrick Wingrove is the latest to do this in a patent propaganda site which keeps spreading false rumours that are baseless and created out of thin air by Team UPC. It’s really bad, but we suppose it says a lot about their journalistic standards. They have none; they just have sponsors and an agenda to sell. “Talk is building of a decision from the German Constitutional Court before year-end,” Wingrove wrote, “the UK House of Lords heard evidence about Brexit’s effect, and the Italian Council of Ministers approved national legislation to adopt the Unitary Patent Regulation and the UPCA…”

What is the source for all this? Team UPC. It’s almost as though Wingrove just writes whatever Bristows’ main office tells him to write and the headline says “Constitutional Court ruling rumours spread” as if this “spread” somehow means there’s truth to it; for all we can tell, the only ones “spreading” it are propaganda sites like the one Wingrove writes for. It’s wishful thinking and lobbying; it’s totally baseless and already refuted by the court.

There are many aspects to the complaint, presumably 4 main ones; one of the concerns is that UPC judges are controlled by (re)appointment policy, leaving them subservient to crooked circles like Battistelli’s. It’s not hard to see what Battistelli thinks of justice and judges. There’s ample documentation of that. It’s almost 2019 and the EPO Boards of Appeal still do not have independence; Campinos has changed nothing after corrupt Battistelli illegally attacked judges (the latest update is rather grim, claiming that Judge Corcoran was admitted into a psychiatric hospital).

Nobody wants to go through what Corcoran experienced, so nowadays the boards may seem spineless and subservient to those it rules on (the Office). Kluwer Patent Blog, which recently mentioned Corcoran’s condition, said yesterday that a “EPO Board of Appeal decides plants can be patentable after all” (ridiculous) and to quote:

Those who thought that the battle on patenting of plants had gotten a final blow by the amendment of the European Patent Convention last year and the approach of the EPO examination following that (see this post), have not counted on the EPO Boards of Appeal.

The discussion on the patentability of plants has a long history within the EPO, which culminated in the amendment of Rules 27 and 28 EPC by the Administrative Council entering into force on 1 July 2017 (see this post). This amendment followed a Notice of the European Commission of 3 November 2016, indicating that the Biotech Directive 98/44 should have been interpreted as that plants obtained by essentially biological processes are not patentable.

There is meanwhile another controversy brewing; Doctors Without Borders have just issued the following statement:

Six organizations appealed today the European Patent Office’s September decision to uphold US pharmaceutical corporation Gilead Science’s patent on the key hepatitis C drug sofosbuvir. The appeal—filed by Médecins du Monde (MdM), Doctors Without Borders/Médecins Sans Frontières (MSF), AIDES (France), Access to Medicines Ireland, Praksis (Greece), and Salud por Derecho (Spain)—states that the European Patent Office (EPO) should revoke Gilead’s patent because it does not meet the requirements to be a patentable invention from a legal or scientific perspective.

The appeal comes exactly five years after sofosbuvir was first approved for use in the US, where Gilead launched the drug at $1,000 per pill, or $84,000 for a 12-week treatment course. The corporation has made more than $58 billion from sales of the drug and its combinations in the last five years.

Catherine Saez (Intellectual Property Watch) soon followed with this coverage:

Six organisations, including Médecins Sans Frontières (MSF, Doctors Without Borders), today appealed a European Patent Office decision to uphold Gilead Science’s patent on hepatitis C drug sofosbuvir.

In September, the European Patent Office (EPO) upheld Gilead’s patent on sofosbuvir in an amended form (IPW, Public Health, 13 September 2018).

MSF, along with Médecins du Monde (MdM), AIDES (France), Access to Medicines Ireland, Praksis (Greece) and Salud por Derecho (Spain), filed an appeal requesting that the EPO revoke Gilead’s patent. They argue it lacks the patentability requirement “from a legal or scientific perspective,” according to an MSF press release. The filed appeal document was not available at press time.

Intellectual Property Watch has also just published “OECD Report Presents Policies To Balance Innovation With Access To Medicines” and they mean patents rather than innovation (they try to make it synonymous for propaganda’s sake or self-serving purposes). To quote:

The Organisation for Economic Cooperation and Development (OECD) has released a new report that presents policy options for countries to strike a better balance between promoting financial incentives for pharmaceutical innovation and ensuring affordable access to medicines. Finding this balance, the report explains, will be essential for ensuring the sustainability of health systems.

Where have the board been when it comes to stopping abstract patents on mathematics and actually enforcing the EPC? The EPO has just finished an event that promotes software patents in Europe and all that Intellectual Property Watch wrote about it was this puff piece, based on this misleading outline (warning: epo.org link) that the EPO published yesterday. To quote:

The number of blockchain inventions is mushrooming, and the European Patent Office wants to ensure it handles the increasing patent applications consistently, officials said at a 4 December conference that brought together around 350 patent examiners and practitioners.

Only them? Well, the EPO is no longer shy to break the law and to promote software patents provided it uses surrogate names and terms. That’s a problem, but who’s going to stop this when one President controls everything, attacking judges and even turning his boss into his assistant in a few weeks? As some insiders rightly claimed, Campinos now makes himself even more powerful than Battistelli and if the FCC was ever to approve the UPCA, things would go truly mental, giving a corrupt Office power over courts in the whole of Europe.

12.03.18

The Patent Trial and Appeal Board (PTAB) Not Falling for Attempts to Prevent It From Instituting Challenges

Posted in Courtroom, Law, Patents at 6:21 pm by Dr. Roy Schestowitz

Summary: In the face of patent maximalists’ endless efforts to derail patent quality the tribunal keeps calm and carries on smashing bad patents

SUPPORTED by SCOTUS and the Federal Circuit, inter partes reviews (IPRs) at the Patent Trial and Appeal Board (PTAB) have long (years) applied 35 U.S.C. § 101 to invalidate software patents erroneously granted by the Patent and Trademark Office (USPTO). PTAB combined with Alice has been a very possible emergence and development for software developers (programmers/coders), as opposed to patent trolls.

“Attempts to undermine IPRs so as to save fake patents have not been successful.”As the week begins we already see Janal Kalis mining USPTO documents, hoping to find some positive news. All he found was this exceptional case wherein “The PTAB Reversed an examiner’s 101 Rejection of Claims for inventory management in a patent application owned by Baker Hughes: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017006294-11-13-2018-1 …”

We can assume that in all other new cases PTAB affirmed the examiners’ rejections or ‘overturned’ (reversed) an acceptance.

Understandably, those who are accustomed to making a living from lawsuits aren’t happy. PTAB thwarts frivolous lawsuits.

Consider this new tweet which says: “Do [Section] “101 panels” exist? Director of TC 3600 Business Methods – Tariq Hafiz – provides priceless insights for effectively dealing with the @USPTO…”

So I told him that the term “101 panels” is as meaningless a concept as “don’t spit chewing gum on the pavement” department. Section 101 is the law and patents on “Business Methods” are bunk, no matter what the USPTO says. It’s down to the courts, eventually. They have the final say, provided one can afford the long and arduous process.

Authored by Robert Jain last week was this PTAB headsup regarding Unified Patents and RPX (there’s commonality in how they file IPRs — a subject we covered several times before). Attempts to undermine IPRs so as to save fake patents have not been successful. As Jain explained:

On October 19 the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims in Unified Patents Inc. v. Realtime Adaptive Streaming, LLC, IPR2018-00883, rejecting Realtime’s argument that Unified’s members were unnamed real-parties in interest. In its first Unified decision discussing Applications in Internet Time, LLC v. RPX (AIT), the Board rejected arguments that Unified’s Content Zone members were unnamed RPIs, finding that would overextend the AIT analysis and the common law…

Unified Patents is again offering money to help invalidate the patent of the patent troll Telebrands. To quote:

On November 29, 2018, Unified added a $1,000 contest to PATROLL seeking prior art for US Patent No. 9546775 which has been asserted on multiple occasions by Telebrands Corp. (an NPE). The ’775 patent, generally related to a decorative laser light system, has been asserted in 7 district court cases.

Any patent troll that can be squashed by PTAB won’t be missed (disarming them is enough as all they have is patents and without patents they cannot sue). A few weeks ago, based on this other post, Unified Patents turned to the USPTO for “registered [...] service mark Unified Patents® under Registration No. 5,605,486, recognizing that Unified Patents® has earned industry goodwill and developed a reputation distinguishable and protectable in the marketplace.”

We have long been supportive of Unified Patents, having recognised that the majority of what they do has a positive effect on the ‘innovation terrain’; they remove a lot of patent trolls from the ‘zone’.

12.02.18

The Anti-Section 101 (Pro-Software Patents) Lobby Looks at New Angles for Watering Down Guidelines and Caselaw

Posted in America, Law, Microsoft, Patents at 3:10 pm by Dr. Roy Schestowitz

Section 101 (35 U.S.C. § 101) withstands endless lobbying against it

Section

Summary: By focusing on jury trials and patent trolls the proponents of bunk, likely-invalid abstract patents hope to overrule or override technical courts such as the Patent Trial and Appeal Board (PTAB)

IT SHOULD NOT surprise anyone that USPTO officials who came from the litigation ‘industry’ are upset at the Federal Circuit under Chief Judge Sharon Prost. As we shall show in later posts, she too has come under criticism if not attacks from the usual suspects. For those who forgot or haven’t been following these affairs, Sharon Prost replaces a corrupt Chief Judge who was caught red-handed and is nowadays lobbying along with patent maximalists. They really hate Section 101, which basically invalidates just about any software patent.

A patent maximalist called Janal Kalis has just noted that “PTAB Affirmed an Examiner’s [Section] 101 Rejection of Claims in a Thompson Reuters Patent Application for Docketing: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017005527-11-07-2018-1 …”

This is the usual; whenever PTAB gets involved and Section 101 is brought up the likelihood of invalidation/rejection is very high. Berkheimer has changed practically nothing.

“…whenever PTAB gets involved and Section 101 is brought up the likelihood of invalidation/rejection is very high.”So what will those patent maximalists do about Section 101 and about PTAB? “Despite Misleading Question, Berkheimer Case Has Legs at the Supreme Court,” Dennis Crouch says. Crouch himself is a very vocal patent maximalist and opponent of Section 101. And no, he’s just trying to sway the court’s stance, having long promoted software patents and patent trolls. The EFF has also just urged the Justices at SCOTUS to examine the case because they want closure (the court repeatedly declines to revisit the subject). Crouch mentioned “go[ing] to a jury.” To quote: “In my view, the question presented by HP’s attorneys intentionally creates confusion as the Federal Circuit did not rule (1) that eligibility is a question of fact; or (2) that any aspect of the eligibility question goes to a jury. Rather, the Federal Circuit has repeatedly ruled, including in Berkheimer, that the question of “eligible subject matter is a question of law.” I’ll also note that no court following Berkheimer has seen eligibility itself as a question of fact or attempted to get a jury verdict on the issue. I contacted David Salmons (counsel of record for HP) to see what I’m missing about the misleading question, but he did not respond.”

He was later admitting a mistake, citing patent troll Finjan. These Berkheimer pushers (who are software patents boosters) cite Microsoft’s patent troll Finjan in relation to letting a nontechnical jury decide on patents (a big mistake). His mea culpa:

In my recent Berkheimer post, I wrote that “that no court following Berkheimer has … attempted to get a jury verdict on the issue.” Turns out that I’m potentially wrong.

In the pending case of Finjan, Inc. v. Juniper Network, Inc. (N.D. Cal. 2018), Judge Alsup has ordered a jury trial on the “inventive concept” question. In its order, denying summary judgment, the court found that the Claim 10 of Finjan’s U.S. Patent No. 8,677,494 was directed to the abstract idea of “collecting data, analyzing data, and storing results.” (Alice Step 1). However, the court decided to wait for trial to determine the inventive concept question…

Looking at this troll’s affairs, it’s pretending to be an actual company, it attracts some investment, and it speaks of ‘sales’ when all it really does is litigation. This is the kind of firm that needs to go bankrupt because it’s a classic troll.

“Logical arguments about the scientific contribution of such patents (or detriment thereof) don’t seem to bother them. A facts-based, evidence-based discussion just doesn’t appeal to these people.”Jury trials, as we have been pointing out several times over the past year, are more likely to get things wrong; jury trials are not suitable for technical matters involving patents, which they don’t understand (particular scientific disciplines). This is misapplying one principle of law to granting of a monopoly. Juvan Bonni, who works with Crouch, has incidentally just promoted these two recent papers. One of these is sort of ‘court bashing’ by Cambridge Technology Law (a push against PTAB); they just loathe patent quality, so they try to discredit the court and AIA. How typical. More lobbying as “papers” (the Koch Brothers sponsor some other attacks on PTAB, using ‘scholars’ in institutions they sponsor). The second of those two speaks of juries in patent litigation. Watchtroll has meanwhile taken this further with N. Scott Pierce (Saul Ewing Arnstein & Lehr, LLP), who repeats the same arguments (more or less). What we find noteworthy here is that almost a year later (10 months) they are still pushing Berkheimer, engaging in revisionism about Oil States (no matter what SCOTUS ruled this past summer) and obsess over faulty jury trials (based on misinformation) so as to discredit the court. Logical arguments about the scientific contribution of such patents (or detriment thereof) don’t seem to bother them. A facts-based, evidence-based discussion just doesn’t appeal to these people. They never wrote a single line of code.

11.19.18

The U.S. Patent and Trademark Office Must Be Based on Justice, Not Profits

Posted in America, Europe, Law, Patents at 12:15 am by Dr. Roy Schestowitz

It’s all about money now, not invention

Trump and Iancu

Summary: With obviousness grounds, prior art and tests for how abstract ideas may be, there’s no excuse left for patent maximalism; will patent offices listen to courts or defy caselaw (in pursuits of fulfilling greed)?

THINGS have taken a turn for the worse since Donald Trump put an old business ally in charge of the U.S. Patent and Trademark Office (USPTO). “USPTO Director Andrei Iancu speaks on [Section] 101 and USPTO affairs at the 10th annual patent law and policy conference at @GtownTechLaw,” the USPTO wrote. The CCIA‘s chief patent person soon responded. “Well, so far,” he said, “this is Iancu saying “let’s listen to Rich, not SCOTUS.” We’ll see what the guidance says, but so far the speech sure sounds like it’ll be contrary to established case law.”

“It’s all about legal bills and patent income (the performance of the Office is measured using a misleading, misguided yardstick).”Who cares about courts and judges anyway? It’s all about legal bills and patent income (the performance of the Office is measured using a misleading, misguided yardstick).

Law360‘s coverage by Jimmy Hoover now says that the “USPTO [is] Testing AI Software To Help Examiners ID Prior Art” as if prior art is the main issue. As we recently explained on a couple of occasions, it is not. Focus on quality instead. Better yet, the USPTO should teach examiners to better apply Section 101 and reject all software patents before courts do so (at huge expense to defendants wrongly accused). From the report: “The U.S. Patent and Trademark Office is testing new software that gives patent examiners additional tools to identify whether a patent application incorporates existing technology, USPTO Director Andrei Iancu said Thursday…”

Still addresses the wrong issue, doesn’t he?

“Does the USPTO care about justice? Does it pay attention to the courts? No, not really…”Abstract or not (or original or not), patents can also be squashed for just being darn obvious (§ 103). “Woss argued that the asserted claims were invalid under 35 U.S.C. § 103 grounds for obviousness,” Watchtroll noted in relation to TRX Fitness Equipment. In a separate article, one regarding § 103 as well, Watchtroll also complains that the notorious patent associated with Restasis is a “victim” because it’s a fake patent “under 35 U.S.C. § 103 grounds for obviousness.” Up in flame (see picture), says Watchtroll, even though many people’s lives may be saved due or owing to the Federal Circuit‘s judgment.

Does the USPTO care about justice? Does it pay attention to the courts? No, not really…

How about public interests? Some patents literally kill.

Iancu has truly become an ‘American Battistelli’; the chief judge of the Patent Trial and Appeal Board (PTAB) is no longer the chief judge. Reminiscent of anything?

“If patent offices diverge further and further away from caselaw, then they risk breaking the patent system as a whole. Patents granted by offices would be presumed invalid as if it’s just a filing mechanism.”As someone anonymous has just put it in relation to the European Patent Office (EPO), “If you were Patrick Corcoran and the ILOAT would have not yet rendered its judgement, would you “consider reaching an amicable settlement with the Office”?” (to use the insulting proposal of António Campinos).

If patent offices diverge further and further away from caselaw, then they risk breaking the patent system as a whole. Patents granted by offices would be presumed invalid as if it’s just a filing mechanism.

11.17.18

The European Patent Office Comes up With a Plethora of New Buzzwords by Which to Refer to Software Patents

Posted in Europe, Law, Patents, RAND at 12:08 pm by Dr. Roy Schestowitz

European authorities play along with a “Study on the interaction between Open Source Software and FRAND” (these are not compatible)

A muscle car
They now proudly grant patents on computer vision (my field), which is basically mathematics

Summary: The permissive attitude towards software patents in Europe is harmful to software developers in Europe; the officials, who never wrote a computer program in their entire life, pretend this is not the case by adopting marketing techniques and surrogate terms

THE GRANTING of software patents in Europe appears to have accelerated under António Campinos as President of the European Patent Office (EPO), or at least advocacy thereof.

This is very troubling in light of the fact that the US goes in the opposite direction, with 35 U.S.C. § 101 used to routinely squash such patents, citing Alice (SCOTUS) — a subject we’ll focus on tomorrow.

“This is very troubling in light of the fact that the US goes in the opposite direction, with 35 U.S.C. § 101 used to routinely squash such patents…”As shown in [1] below (several readers have independently alerted us about it), the European politicians now actively participate in this toxic agenda and OIN seems very happy with this (it calls FRAND proponents “charities” now), being a proponent of software patents itself. We’ve seen some troubling statements in relation to [1] and various tweets on the subject have been abound (FFII, OIN, Red Hat etc.). Is violation of the EPC considered acceptable now? Not only at the EPO but also the EU/EC?

Just before the weekend we saw the EPO promoting “AIpatents” (as it does every day; it has done this for months, more so under Campinos). Here’s one example: “Key discussions and insights from our conference on patenting #AI are available here. Take a look if you are interested in #artificialintelligence: http://bit.ly/AIpatents”

Here’s another new “AIpatents” tweet: “Experts from industry, academia and the IP world discussed possible future considerations for patent laws in view of #artificialintelligence at this recent conference: http://bit.ly/AIpatents”

“Just before the weekend we saw the EPO promoting “AIpatents” (as it does every day; it has done this for months, more so under Campinos).”Then came “IoT”: “Interested in the #InternetOfThings & standard-essential patents? At this conference, you can discuss this trending topic with experts from all around the world: http://bit.ly/indoeur pic.twitter.com/XAON4cTF8F”

Many so-called ‘IoT’ patents (basically software on devices) are just software patents. Pure and simple. How about “blockchains”? It’s not just a buzzword (unlike “AI” and “IoT”), but it’s a hype wave. The EPO wrote: “What is the examination practice at the European Patent Office of #blockchain technology? Find out at this conference in the Hague: https://bit.ly/2PGRp79″

Now there’s also "SDV", the latest of many three-letter acronyms that the EPO paid to manufacture or at least spread through the media (we’ve seen about a dozen ‘reports’ about this, not just in English, and they all boil down to EPO PR, naming António Campinos personally). The EPO has just tweeted: “Europe and the US are the global leaders in self-driving vehicle innovation. See which European countries filed the most applications for this technology here: http://bit.ly/SDVstudy #SelfDriving #FutureOfCars pic.twitter.com/Jnk1Qlep3P”

“Many so-called ‘IoT’ patents (basically software on devices) are just software patents.”Then there’s “4IR”. Yesterday the EPO tweeted: “Join the discussion on patenting some of today’s most dynamic areas of innovation at this conference in Munich, co-hosted with @GoI_MeitY: http://bit.ly/indoeur pic.twitter.com/xjDm3QcWyh”

This links to a page about “emerging technologies” (warning: epo.org link) that starts as follows: “The 4th Industrial Revolution continues to gather momentum, and the digital transformation is affecting all aspects of life, as shown by the EPO’s report on “Patents and the Fourth Industrial Revolution”. Information and Communication Technologies (ICT) are converging with all traditional areas of technology.

“Notice that buzzwords ‘salad’; most if not all refer to algorithms.”“This provides opportunities for emerging technologies such as Artificial Intelligence, capable of “Machine Learning” and optimising systems too complex for manually programmed algorithms; and Blockchain, for digital-speed processing of secure transactions.”

Notice that buzzwords ‘salad’; most if not all refer to algorithms. It’s a pretty shallow deceptive layer.

Additionally, widely promoted by patent maximalists is this Watchtroll article from Andrea Perronace (epi); here’s how he’s described by his own bio: “European Patent Attorney and has been working in the IP field for 17 years. [...] Andrea is a full member of the ICT Thematic Group of the European Patent Practice Committee (epi) and participates in EPI’s Guidelines’ and ICT subcommittees e whose aim is to submit to the EPO proposals for improvement of the Guidelines for Examination. As an epi delegate, he was a speaker at the “Patenting Artificial Intelligence” Conference at the European Patent Office in Munich, May 30, 2018.”

To quote: [via]

The new Guidelines entered into force on November 1, 2018. Like the previous edition, this year’s Guidelines include substantial and valuable improvements with regard to guidance on the eligibility of computer-implemented inventions (CII). These sections of the Guidelines have been discussed with the European Patent Institute (epi), in particular with the ICT Thematic Group of the European Patent Practice Committee within the epi. The EPO website includes a useful html index for the Guidelines, including those sections relating to computer-implemented inventions.

He even uses the term “CII” and the headline says “Computer-implemented inventions”; much of the rest is a lot of buzzwords, which surely EPO examiners have become familiar with.

“After the attack on judges from the Boards of Appeal we very much doubt any of the Boards of Appeal can confront the EPO over this gross abuse of power to grant patents, even in defiance of courts, Parliament, and the founding document of the Office/Organisation, the EPC.”We’re not sure if this disturbing trend can be stopped, but we at least hope to highlight it. Mitscherlich PartmbB’s Christian Rupp has just published this article about a decision of the Boards of Appeal (T0642/14), but it has nothing to do with the above. After the attack on judges from the Boards of Appeal we very much doubt any of the Boards of Appeal can confront the EPO over this gross abuse of power to grant patents, even in defiance of courts, Parliament, and the founding document of the Office/Organisation, the EPC.

Related/contextual items from the news:

  1. JRC stakeholder consultation on open source software and standardisation

    In the context of the on-going Study on the interaction between Open Source Software and FRAND (Fair, Reasonable And Non-discriminatory) licensing in Standardisation we carry out a survey with interested stakeholder groups.

    [...]

    Deadline: 30 November 2018.

11.15.18

Berkheimer or No Berkheimer, Software Patents Remain Mostly Unenforceable in the United States and the Supreme Court is Fine With That

Posted in America, Law, Patents at 12:38 pm by Dr. Roy Schestowitz

Summary: 35 U.S.C. § 101, which is based on cases like Alice and Mayo, offers the ‘perfect storm’ against software patents; it doesn’t look like any of that will change any time soon (if ever)

THE NEW management of the U.S. Patent and Trademark Office (USPTO) is rather hostile towards 35 U.S.C. § 101, which it is hoping to change in complete defiance of caselaw or by cherry-picking Federal Circuit decisions (only those which suit the Director’s bias). The USPTO must raise patent quality, not lower it.

“They try to overturn or at least override Alice. 4.5 years later they’re still not successful.”A few days ago Watchtroll’s Steve Brachmann said that the “Supreme Court Refuses Another 101 Patent Eligibility Appeal” (this was the headline. Yes, Alice is here to stay. SCOTUS gives the middle finger to software patents, even after Trump added a couple of new Justices. “On Monday, November 5th,” Brachmann noted, “the U.S. Supreme Court denied a petition asking the Court to take up Real Estate Alliance Ltd. v. Move, Inc., et. al. on appeal from the Court of Appeals for the Federal Circuit (CAFC). The case becomes just another example in a long line of patent appeals involving questions of patent eligibility the Supreme Court has decided to sidestep instead of offering clarity for what some believe has become an unintelligible test for patent eligibility.”

They will carry on trying; each time there’s a petition like this sites like Watchtroll, IAM, Patently-O and so on try hard to solicit briefs. They try to overturn or at least override Alice. 4.5 years later they’re still not successful. Chasing shadows.

Then there’s the Berkheimer case, which the above sites boosted for almost half a year before they finally gave up. As we noted several times before, citing relevant/supporting data, Berkheimer has not really changed invalidation rates of abstract software patents; it could, in theory, but it did not (or barely did, if at all, for reasons we explained before). Weaker patents aren’t even being enforced anymore because confidence associated with their validity is very low.

The “EFF, together with the R Street Institute,” the EFF said yesterday, “has filed an amicus brief [PDF] urging the Supreme Court to grant certiorari, and fix yet another flawed Federal Circuit decision.” To quote:

This year, we celebrated the fourth anniversary of the Supreme Court’s landmark ruling in Alice v. CLS Bank. Alice made clear that generic computers do not make abstract ideas eligible for patent protection. Following the decision, district courts across the country started rejecting ineligible abstract patents at early stages of litigation. That has enabled independent software developers and small businesses to fight meritless infringement allegations without taking on the staggering costs and risks of patent litigation. In other words, Alice has made the patent system better at doing what it is supposed to do: promote technological innovation and economic growth.

Unfortunately, Alice’s pro-innovation effects are already in danger. As we’ve explained before, the Federal Circuit’s decision in Berkheimer v. HP Inc. turns Alice upside-down by treating the legal question of patent eligibility as a factual question based on the patent owner’s uncorroborated assertions. That will just make patent litigation take longer and cost more because factual questions generally require expensive discovery and trial before they can be resolved.

Even worse, Berkheimer gives patent owners free rein to actually create factual questions because of its emphasis on a patent’s specification. The specification is the part of the patent that describes the invention and the background state of the art. The Patent Office generally does not have the time or resources to verify whether every statement in the specification is accurate. This means that, in effect, the Berkheimer ruling will allow patent owners to create factual disputes and defeat summary judgment by inserting convenient “facts” into their patent applications.

[...]

Our brief explains that Berkheimer is wrong on the law and bad for innovation. First, it exempts patent owners from the rules of federal court litigation by permitting them to rely on uncorroborated statements in a patent specification to avoid speedy judgment under Alice. Second, it conflicts with Supreme Court precedent, which has never required factfinding deciding the legal question of patent eligibility. Third, it threatens to undo the innovation, creativity, and economic growth that Alice has made possible, especially in the software industry, because Alice empowers courts to decide patent eligibility without factfinding or trial.

So the EFF wants to overturn Berkheimer, we get it, but at what cost/risk? If Berkheimer was to be upheld at this level (with two new Justices), that might jeopardise the status quo. Berkheimer can be mostly ignored because as we last noted about a fortnight ago, it’s barely even mentioned anymore (only about once a week, despite being the same year).

Alice/35 U.S.C. § 101 has actually been a very positive development; as per Professor Chien's (and Jiun Ying Wu's) paper, the litigation 'industry' very habitually spreads lies and sensationalises 35 U.S.C. § 101 (to make it seem as though all patents are suddenly void and the sky is falling). Professor Michael Risch, citing Colleen Chien (Santa Clara) and her student Jiun Ying Wu, has just written about “Measuring Alice’s Effect on Patent Prosecution,” citing a paper by the wrong URL. His outline of it:

The essay is a short, easy read, and the graphs really tell you all you need to know from a differences-in-differences point of view – there was a huge spike in medical diagnostics rejections following Mayo and software & business patent rejections following Alice. We already knew this from the Bilski Blog, but this is comprehensive. Interesting to me from a legal history/political economy standpoint is the fact that software rejections were actually trending downward after Mayo but before Alice. I’ve always thought that was odd. The Mayo test, much as I dislike it, easily fits with abstract ideas in the same way it fits with natural phenomena. Why courts and the PTO simply did not make that leap until Alice has always been a great mystery to me.

Another important finding is that 101 apparently hasn’t destroyed any other tech areas the way it has software and diagnostics. Even so, 10% to 15% rejections in other areas is a whole lot more than there used to be. Using WIPO technical classifications shows that most areas have been touched somehow.

In a Patent Trial and Appeal Board (PTAB) inter partes review (IPR) just noted by James Korenchan, the notorious Eastern District of Texas (EDTX/TXED) rejected a 35 U.S.C. § 101 challenge; time to escalate this to CAFC then?

Plaintiff CyWee Group Ltd. (“CyWee”) sued Defendants Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc. (collectively, “Samsung”), asserting various claims of U.S. Patent No. 8,441,438 (the ’438 patent) and U.S. Patent No. 8,552,978 (the ’978 patent) (a child of the ’438 patent). Samsung responded with a motion for summary judgment of invalidity of all asserted claims under 35 U.S.C. § 101. Last week, Circuit Judge William C. Bryson (sitting by designation in the Eastern District of Texas) denied the motion.

The claims of the asserted patents generally involve using a particular combination of sensors of a “3D pointing device” to gather raw data points representative of a position of the device, and then inputting those data points into a mathematical formula to determine an orientation of the device in a spatial reference frame. As an example, a 3D pointing device can be a mouse or other controller used to play video games such that, when a user moves the device, a pointer on the screen moves along with the orientation of the device.

As we noted in our previous post, it is nowadays fashionable to bash the courts, including CAFC. Dennis Crouch continues to belittle the Federal Circuit (the court) and SCOTUS (TC Heartland) because he supports patent trolls and harassers; he fails to even hide that…

His latest rant is titled “Get that Case Out of Here! Federal Circuit Continues to Allow Mandamus Actions to Cure Improper Venue” and the tone resembles his many rants about decisions with no written opinions/decisions. To quote this latest one:

The outcome of this case is simple: Oath doesn’t have to defend a patent infringement lawsuit in E.D.N.Y. because that location is an “improper venue.”

Under TC Heartland (2017), patent owners in patent cases now have a fairly limited set of options for filing infringement actions.

[..].

TC Heartland falls directly in line with the prior supreme court decision in Fourco Glass (1957). However, during the interim, the Federal Circuit had expanded its definition of proper venue to include any court that has personal jurisdiction over the defendant. Thus, for someone who studies only Supreme Court law, TC Heartland was a continuation of an unchanged law. On the other hand, the case was a major shift for those of us whose gaze is directed to the Federal Circuit (and practical district court litigation). The Federal Circuit has identified the latter frame of reference as appropriate — holding that TC Heartland was a change in the law. In re Micron Technology, Inc., 875 F.3d 1091 (Fed. Cir. 2017). The Micron decision was important because it prompted district courts to revisit the venue question even if the issue was seemingly waived.

What’s the alternative? CAFC ignoring the higher court? The highest court, too? Perhaps Dennis Crouch would like to join his friends at Watchtroll and routinely attack the Supreme Court, too. Wouldn’t that be classy?

11.14.18

WIPO Corruption and Coverup Mirror EPO Tactics

Posted in Europe, Law, Patents at 12:58 am by Dr. Roy Schestowitz

Older: The Dark Side of WIPO and Attempts to Suppress Information Mirror the EPO’s Tactics

When Exposing A Crime Is Treated As Committing A Crime, You Are Being Ruled By The Criminals Themselves.

Summary: Suppression of staff representatives and whistleblowers carries on at WIPO and the EPO; people who speak out about abuses are themselves being treated like abusers

THE suppressions at the European Patent Office (EPO) are profound. These involve a total lack of transparency (worse than before), including gagging of staff representatives. The EPO’s management keeps pretending that this isn’t happening, but only based on a bunch of nonsense (doublespeak). It remains true that the EPO lies to staff and to journalists (the public).

“It remains true that the EPO lies to staff and to journalists (the public).”Barney Dixon’s article which was cited by SUEPO on the same day (as publication) is the latest SUEPO-related coverage from IPPro Patents. Misleading article headline is followed by the part at the end which balances it somewhat, if not outright refutes it (EPO doubles down on “staff rep email ban,” unlike what’s being suggested in the headline and start/middle). To quote IPPro Patents:

The European Patent Office has partially ended a ban on mass emails to EPO staff from staff representatives.

Under immediate EPO past-president, Benoît Battistelli, a blocking system was introduced to occlude all mass emails to staff from staff representatives, including the Central Staff Committee (CSC), local staff committees, and the Staff Union of the EPO (SUEPO).

In a communiqué to staff on 5 November, Campinos revealed that staff representatives would now be able to send mass emails for “certain purposes”.

He explained: “In the scope of our regular discussions, staff representatives have requested authorisation to send mass emails to all staff.”

[...]

According to SUEPO sources, under all previous EPO presidents the CSC, local staff committees and SUEPO were all about to send messages without limitation.

The sources said it was not in any staff representatives culture to abuse this power with too much or aggressive content.

The sources explained that since SUEPO could issue “reasoned and substantiated critics about his wrongdoings, Battistelli decided to go for an office-wide ban of all emails from the staff representatives”.

The sources added that Campinos wanted to “give staff and the public the feeling that he is re-establishing the censored channels of communication, whereas in facts, this is not the case”.

“Mass emails are limited to two calls for general assemblies per year and not allowed for other day-to-day topics, which are precisely those of great concerns for the entire workforce since they impact on them.”

As we explained before, António Campinos blatantly blocks any meaningful communication because the quotas correspond to annual or biannual meetings.

“What we see from Campinos right now reaffirms what we saw before; people who observe corruption aren’t able to speak, not safely anyway. This merely perpetuates the corruption.”There’s now a new example of similar suppressions at WIPO.

“WIPO,” one reader told us, is in many ways “same as EPO,” citing the following letter from the 3 staff federations regarding the case of Mr. Wei Lei.

“Any resemblance to EPO, is purely coincidental,” our reader joked. The old pattern ensues: gag the messenger, discredit the messenger, intimidate the messenger. Here is the letter, dated yesterday:

13 November 2018

Dear Mr. Gurry,

We are writing to you on behalf of the three staff federations of the UN common system, CCISUA, FICSA and UNISERV, representing 120,000 international civil servants worldwide, regarding what would appear to be a serious act of reprisal against Mr. Wei Lei, who holds a D2 Chief Information Officer position at WIPO and who is also the Vice-President of the WIPO Staff Association. We have been informed that the WIPO Administration has suspended Mr. Lei (an Australian national) from duty and given him seven days to respond to a charge letter, following what seems to be a tainted investigation conducted by WIPO into an alleged ATM bank card fraud.

Mr. Lei has been accused by WIPO of having used a colleague’s ATM bank card to withdraw CHF 300 from that person’s bank account at the UBS bank ATM on the WIPO premises. Mr. Lei denies the accusation and neither UBS nor the Swiss authorities have provided WIPO with any evidence or record that would substantiate the accusations.

The staff federations find all of this rather strange given the context. Mr. Lei was a key witness in the investigation carried out by the UN Office of Internal Oversight Service (OIOS) into the alleged misconduct (procurement corruption) by you as WIPO Director General. A violation of the standards of conduct was substantiated by the OIOS; however, Member States decided not to take any action against you. Following the investigation, you apparently received an unredacted copy of the OIOS report, thereby exposing the witnesses to retaliation – this is contrary to standard investigative practice at WIPO.

We have been informed that Mr. Lei has already been investigated twice over the last two years and cleared of any wrongdoing during both investigations.

Furthermore, he is not the only staff representative at WIPO being subjected to such type of investigation or undergoing alleged harassment. We understand that Mr. Christopher Mason, President of the WIPO Staff Association (WSA), would seem to be the subject of yet another such investigation and Mr. Olivier Steele, another Vice-President of the WSA, has allegedly been informed that his fixed- term contract will not be renewed after 31 January 2019, because of a negative performance evaluation and his supervisor’s explicit disapproval of his activities as a staff representative, despite the fact that he has provided twenty years of loyal service to the Organization. Additionally, the case of Ms. Miranda Brown, former D2-level Strategic Adviser to the WIPO Director General and a prominent, blacklisted whistleblower who was forced out of WIPO, has still not been settled by the WIPO Administration, despite renewed legal action.

Mr. Lei, having been refused whistleblower protection by the WIPO Ethics Office appealed, in accordance with the WIPO whistleblower protection policy, to the UNOPS Ethics Office which subsequently granted him the status of whistleblower and the protection which is supposed to be accorded thereto. Moreover, the UNOPS Ethics Office concluded that an independent investigation must be conducted at WIPO to investigate the reported retaliation against Mr. Lei for having been a key witness against you in the above-mentioned OIOS investigation. We have been informed that this long- awaited investigation has finally been initiated but that the Terms of Reference may have been manipulated in breach of WIPO policy.

It has now come to our attention that WIPO’s current investigation of Mr. Lei may be flawed and that the so-called evidence may possibly have been manipulated or otherwise clearly does not prove his culpability beyond a reasonable doubt.

We understand that, for all of the above reasons, Mr. Lei has filed a complaint with the Geneva Prosecutor General and has expressly requested and volunteered to have his privileges and immunities lifted so as to allow the competent Swiss authorities to conduct a proper and independent investigation. It seems, however, that WIPO has repeatedly refused to lift Mr. Lei’s privileges and immunities preventing the Swiss authorities to proceed with the investigation. Despite its inability to obtain cooperation from the UBS bank, WIPO has apparently concluded the investigation and initiated disciplinary processes against Mr. Lei for serious misconduct that is likely to result in his summary dismissal.

Against the backdrop of allegations, OIOS investigations, WIPO investigations focused on staff representatives, reported retaliation and the decision of the UNOPS Ethics Office that Mr. Lei must be protected from retaliation; it makes it increasingly difficult to give credibility to any investigation conducted by WIPO.

In line with an organization’s duty of care to its staff and to ensure that Mr. Lei is provided a fair and independent investigation conducted by the Swiss authorities which can interact with the bank concerned, the staff federations strongly encourage you to lift Mr. Lei’s privileges and immunities in order to allow the Swiss authorities to conduct an independent investigation into the alleged ATM bank card fraud. We urge you, in our capacities as Presidents of the three UN common system staff federations, to immediately suspend the disciplinary proceedings against Mr. Lei until the UNOPS evaluation in regards to retaliation is completed, an investigation by the Swiss authorities has taken place and the matter is finalized. We also urge you to suspend all actions against other elected WSA officials until WSA’s complaint against the WIPO Administration has been settled by ILOAT.

Failing to do so can only lead the three staff federations to conclude that this and other investigations against staff representatives at WIPO are contrived in order to silence any voice of criticism or respectful dissident opinion. We would therefore insist that all ongoing forms of retaliation against the WIPO Staff Association, whistleblowers and staff at WIPO who raise allegations of misconduct by WIPO Administration be stopped immediately.

Lastly, we are alarmed that the policies in place at WIPO to protect staff from retaliation are still not functioning.

We shall continue to monitor this issue closely.

Yours sincerely,

Ian Richards
President
Coordinating Committee for
International Staff Unions and
Associations (CCISUA)

Brett Fitzgerald
President
Federation of International Civil
Servants’ Associations
(FICSA)

Steve Towler
President
United Nations International
Civil Servants’ Federation
(UNISERV)

cc. Ambassador Esmael Baghhai of Iran, Chairman, WIPO Coordination Committee
WIPO Member States
Mr. António Guterres, Secretary-General of the United Nations
Executive heads of FICSA, CCISUA and UNISERV member organizations
Member staff associations/unions of FICSA, CCISUA and UNISERV

Gurry — like Battistelli — is a thug who (mis)uses immunity to avoid accountability if not arrest for corruption. What we see from Campinos right now reaffirms what we saw before; people who observe corruption aren’t able to speak, not safely anyway. This merely perpetuates the corruption.

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