Throwing everything that’s left (time and money) at the problem in order to throw democracy away and thwart the law
Summary: The lack of respect for the law, for democracy and for patent scope (quality control) at the European Patent Office has become incredibly difficult to ignore
SOFTWARE patents promotion at the EPO has gotten so bad that it was done twice in one single day. Their official and verified account said “This e-course teaches you all about the patentability of computer-implemented inventions at the EPO” and also said “We will be discussing practice & jurisprudence in software-related patents in Europe & India at this event” (as a reminder, software patents are verboten both in India and in Europe).
“The EPC and the European Parliament are against this, but evidently, under Battistelli in particular, patent scope is out of control and this kind of overt lobbying has become routine.”This was done again for the third time within 24 hours. The EPO openly promotes loopholes for patenting software. The nerve…
It’s a repeat of the above: “This e-course teaches you all about the patentability of computer-implemented inventions at the EPO…” (link to the EPO’s Web site).
Why does this matter? The EPC and the European Parliament are against this, but evidently, under Battistelli in particular, patent scope is out of control and this kind of overt lobbying has become routine. It’s almost becoming a banality. We wrote about this several times last month. The “EPO’s knowledge & expertise” is leaving in droves nowadays (we have reported massive, unprecedented brain drain over the years), yet here again the EPO brags about its “knowledge & expertise”. Who are they trying to kid? Preaching to the converted?
One main problem is, if UPC schemers got their way, a lot of the above would have become easier. Software patenting will be brought to Europe by the UPC, but only if Battistelli gets his way… it would not just be a disaster to software developers but to every single user of software. The consequences would be horrific and devastating. The US, where software patents are ubiquitously used by patents trolls, is a cautionary tale.
“Software patenting will be brought to Europe by the UPC, but only if Battistelli gets his way…”We hope that EPO staff understands why we have opposed the UPC (and its predecessors) all these years. Not much has changed except the name (now it’s “unitary” and “unified” rather than “EU” or “community”). Rebranding never changed the substance and politicians including Battistelli lied about it all along.
Here is a new article from a lawyers’ site. It’s titled “What Does Brexit Mean for the Planned Unitary Patent System in Europe?”
Here is what it says (behind a paywall unfortunately, so only the patent microcosm — those paying for subscription — would be able to read and/or scrutinise it):
The Unitary Patent System and Unified Patent Court had been predicted to come into force in 2017, and it promised to be the biggest change in European patent practice in almost 40 years. Has Brexit killed the whole thing?
In a nutshell, yes! UPC is going nowhere. Does that mean that British members of Team UPC will give up? Of course not. The Corbyn-led Labour party would have no interest in the UPC (see its position on TPP) and should bury the UPC, but watch how Bristows LLP spins that. Another example of selective quoting and misinterpretation or misrepresentations, quoting other members of Team UPC as ‘proof’ of widespread support for upcoming changes? Also see this new one from Bristows LLP (aka Bristows UPC, for marketing purposes). This firm has just published not one but two UPC propaganda pieces. Shame on Bristows for attacking both British and EU democracy. What does that say about Bristows?
Another LLP, this time Pillsbury Winthrop Shaw Pittman LLP, joined in this non-stop UPC propaganda (obviously from patent law firms that stand to gain from the UPC).
“The UPC would be bad for SMEs all across Europe, not just in Britain. Every European citizen should be out in the streets protesting against it, for the same reasons CETA/TPP/TTIP/TISA etc. are widely protested against.”They know a deadline is coming up and the UPC would likely die soon, if not officially in the UK then in the whole of Europe (unless it’s renamed again and repackaged with replacement/s for London). The UPC would be bad for SMEs all across Europe, not just in Britain. Every European citizen should be out in the streets protesting against it, for the same reasons CETA/TPP/TTIP/TISA etc. are widely protested against.
Milan has been mentioned as a likely replacement for London and watch this new tweet from the EPO: “Patent professionals in Italy are welcome at this event,” it says. Notice the interesting choice of venue. █
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It’s hard to say goodbye
Summary: An overview of some of the latest press coverage regarding software patents now that they are difficult to acquire and especially difficult to assert in a court (the higher up, the harder)
SOFTWARE patents are a scourge and a plague. They harm developers all around the world, even those not residing in the US. These patents often boil down to nonsense that’s neither innovative nor novel.
“Like most software patents, here we have a non-inventive step; there’s nothing new about a rating system but because it’s done “on a computer” and “over the Internet” or regarding a vehicle we’re supposed to think it’s innovative and deserving a patent monopoly.”The other day Benjamin Henrion joked, “what an invention!”
He was referring to this blurb that says “Uber files patent application on rating your “ride” https://t.co/HcaLtCUGtJ details seem trite; inventor Ben Kolin https://t.co/gXPvZSAy44″ (direct link).
Like most software patents, here we have a non-inventive step; there’s nothing new about a rating system but because it’s done “on a computer” and “over the Internet” or regarding a vehicle we’re supposed to think it’s innovative and deserving a patent monopoly. What a hard argument to sell…
Another new example of this Uber ‘innovation’ says that: “In big cities, you’d be hard pressed to find someone who never used #Uber. Take a look at their #patent history” (this links to an article by Audrey Ogurchak at Watchtroll’s site).
Putting aside how unethical Uber is (Richard Stallman has a dedicated page about the subject), these software patents from Uber remind us that they are a real problem and several recent tweets or articles spoke about the threat Alice (and invalidations of patents on software) pose to Uber’s market value. As if Uber’s monopolistic practices are something that needs to be guarded…
“It’s sad to see that IBM continues to align with the dark side when it comes to patents whilst actively suing companies using software patents.”With this cautionary tale out of the way, let’s look at some of the encouraging coverage we saw in these past few days (half a week) following the famous ruling against software patents — a ruling that we wrote four articles about (so far). Here is a new article titled “Patents a “terrible fit” for software”. It says: “Copyright is a sufficient system for protecting software and the patent system is a “terrible fit”, a US Federal Circuit judge has said. The comments followed a ruling in the Intellectual Ventures v Symantec patent infringement case”
A lawyers’ Web site too admitted the undeniable; “Software Patents on Shaky Ground With Federal Circuit in Case After Case” said the headline, but the article is behind a paywall. Scott Graham, of Law.com, wrote: “The U.S. Court of Appeals for the Federal Circuit put on what could have been a clinic last week on software patent eligibility.”
Above the Law, another Web site which targets lawyers, published this:
Prominent Pro-Patent Judge Issues Opinion Declaring All Software Patents Bad
Well here’s an unexpected surprise. A lawsuit brought by the world’s largest patent troll, Intellectual Ventures, and handled on appeal (as are all patent cases), by the notoriously awful Court of Appeals for the Federal Circuit (CAFC) may have actually killed off software patents. Really. Notably, the Supreme Court deserves a big assist here, for a series of rulings on patent-eligible subject matter, culminating in the Alice ruling. At the time, we noted that you could read the ruling to kill off software patents, even as the Supreme Court insisted that it did not. In short, the Supreme Court said that any patent that “does no more than require a generic computer to perform generic computer functions” is not patent eligible. But then it insisted that there was plenty of software that this wouldn’t apply to. But it’s actually pretty difficult to think of any examples — which is why we were pretty sure at the time that Alice should represent the end for software patents, but bemoaned the Supreme Court not directly saying so, noting it would lead to lots of litigation. Still, the impact has been pretty widespread, with the Alice ruling being used both by the courts and the US Patent Office to reject lots and lots of software and business method patent claims.
More invalidations of software patents are being reported (coming out from CAFC), but don’t expect lawyers-led or lawyers-fed media to speak about these. One patent attorney wrote: “Fed Circuit Affirms 101 Ineligibility of a Patent Claiming Detection of Unauthorized Access to Medical Information: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1985.Opinion.10-6-2016.1.PDF …”
This decision is only days old and we have not seen it mentioned much.
IBM’s software patents lobbyist in chief, Manny Schecter, is obviously upset. He wrote “No US statute renders software ineligible for patenting,” to which Henrion responded with “Free speech is enough to liberate IBM’s programmers.”
It’s sad to see that IBM continues to align with the dark side when it comes to patents whilst actively suing companies using software patents.
“If one is still in denial about the need for patent reform, then one is delusional or too obsessed with one’s legal invoicing/fees (profits).”LWN, a Linux news site, recognises that we’re moving towards the end of software patents, but a lot in the side of the lawyers (the very vocal minority) are still in denial or in “attack mode”. They are attacking the messenger or the credibility of the judgment in an elaborate attempt to defend software patents. Here we have proponents of software patents at Bilski Blog (cross-posted here) espousing political views to discredit the reform attempts. This was liked by proponents of software patents, as one might expect. To quote the concluding bits: “One of the most common concerns about our government—voiced from all parts of the political spectrum—is that Congress gets too little done. Thus, the worry that a Congressional “fix” to our patent system is not likely anytime soon is understandable. However, problems caused by any real or perceived Congressional dysfunction may be dwarfed by allowing courts to re-write the Patent Act. If there is ever an area where the balancing of interests calls for the legislative process to be involved, it is in our intellectual property system. One person’s view—or even one Court’s view—of a good solution, however well-intentioned, is not the right approach.”
If one is still in denial about the need for patent reform, then one is delusional or too obsessed with one’s legal invoicing/fees (profits). It’s not hard to see what motivates the above.
One can tell that things have become pretty bed for this camp when Martin Goetz is again writing in support of software patents, and moreover chooses Watchtroll as his platform, again. Some background of both Watchtroll and Goetz would help one understand the significance of this. As we are going to show in our next post, some other familiar faces are coming out of the woodwork right now, trying hard to stop patent reform if not a comprehensive overhaul. █
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Reference: Rule of law
Summary: The European Patent Office (EPO) actively undermines democracy in Europe, it undermines the freedom of the press (by paying it for puff pieces), and it undermines the rule of law by giving one single tyrant total power in Eponia and immunity from outside Eponia (even when he breaks his own rules)
THE situation at the EPO has gotten so bad that the EPO is now buying the media for some Milan spin (among other spin) to help sell the UPC to the gullible public officials. This culmination in lobbying demonstrates the moral depravity to which Battistelli and his goons are willing to sink.
The UPC is an assault on EU democracy (and in the UK what we are seeing in that regard is total disregard for the referendum), which is effectively being stolen by lobbyists and patent lawyers of large corporations. The “UPC [is] on the Council agenda of this Friday,” Benjamin Henrion wrote, “I told you so. Italian minister seems to lobby for Milan without even a discussion in Parliament.”
We first wrote about it last night. Italians should protest that day, along with their media (already covered UPC).
Was the public consulted on this? Why does the media, which was paid by the EPO, support this with some puff pieces that involve Team UPC? How corrupt can things get and when will European politician start to genuinely care? And not just because they perceive it as an opportunity to promote their political party, e.g. in France…
The Battistelli regime has gotten so oppressive recently that SUEPO is silent (not a single word for three weeks) and the attack on the appeal boards intensifies behind closed doors (the secretive Board 28). “This Office has really become a banana republic,” one comment says today. “Looks like a last, desperate attempt of Battistelli and his henchmen to avoid that at the next AC the disciplinary case is closed,” this person notes, in relation to the news about Battistelli trying to prevent the scapegoat from getting his job back (or basically return to work before the end of his term). Here is another new comment about it:
If the matter were not so serious for the accused (or should that be former accused and/or victim?), this Wile E Coyote-esque persistence would draw a chuckle.
As one person has pointed out, late filed submissions are required to be prima facie relevant and OK, maybe, if you can give us another reasoning because the one you have come with isn’t good enough, isn’t normally the procedure to follow.
I note that, in the Social Study (?), PWC have found that the office’s actions have met the requirement of the EPO’s legal framework. The mind boggles about what wouldn’t.
We wrote about the PWC 'study' just after its release on Friday. It’s hogwash. It’s just ammunition for lobbying in next month’s Administrative Council’s meeting (there are also court rulings from the Netherlands coming up very soon).
One person added that “there is no “Res Judicata” at the EPO, nor does ILO-AT require this of its member organisations (and the EPO is not a member of ILO-AT).”
Another person remarked on “the issue of res judicata” as follows:
They would not go for the same accusations.
Actually, rumors were circulating around the last meeting of the AC that the president had a completely new strategy to deal with the suspended member of the AC, since the first one did not work.
A new accusation would have been made according to which the suspended member had discussed with an external IP lawyer a case in front of the BoA, thus contravening the requirement of confidentiality for anyone working at the office.
That would have been considered as “misconduct” – the punishment for which we all know is dismissal.
I have no further details – such as “when did this discussion take place”, “was at an informal meeting”, “which proof did they have”, “did the office require the Lawyer to testify” or anything else.
I understand the defense of the suspended member was aware of these rumors.
We shall be keeping a close eye on this. If anyone out there has access to internal affairs of Board 28, please consider getting in touch with us. Information lapses and secrecy currently achieve nothing but harm staff. This also harms the EPO as a whole by making redemption improbable. █
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Summary: The vultures that are patent law firms keep circling around PTAB and hoping to destroy it, if not from the outside then from the inside, potentially regressing and ruining great progress for US patent quality since Mayo and Alice
THE Patent Trial and Appeal Board (PTAB) has been invaliding software patents in large numbers. It’s hardly surprising that proponents of such patents hate PTAB with a passion. They would destroy it if they could. They’re still trying.
Watch blowhard Watchtroll attacking his government for actually adding/embedding some quality control in the patent system, even insulting people in the process (his latest ‘masterpiece’ is titled “Happy Birthday AIA: Celebrating an Unmitigated Disaster and the Destruction of American Innovation”). The same site also attacks AIA right now. It’s America Invents Act (AIA) which brought PTAB into existence. Here is what the USPTO wrote about AIA the other day, under the title “Five Years of Patent Pro Bono Success”. The Director of the PTO praises or at least marks a milestone which gave birth to PTAB (a good thing), but not everyone agrees, especially greedy lawyers. Watch this new article titled “AIA at 5 Years: PTAB’s Tectonic Change in Patent Litigation”. Published in Wall Street media, the article quotes lawyers but not the people affected (programmers or scientists for instance). What a wonderful way to generate a one-sided sob story for law firms.
As we have noted here for a number of years, PTAB is crushing software patents and this is a good thing. Michael Loney has had some decent coverage about it and “Pondering four years of PTAB proceedings” is one of his latest articles about it. He notes that there will be a “bar association solely dedicated to the Patent Trial and Appeal Board,” but quite unfortunately it “has been formed by more than 45 law firms” (i.e. the wolves guarding sheep). Is that really necessary? Here is the press release about it and another article titled “New bar association focuses on US Patent Office’s PTAB” (from a rather decent news source, for a change).
Anyone who fails to see the sheer bias of patent law firms against the PTAB must not have paid attention. Here is a new example, this one from Michael Dever of Buchanan Ingersoll & Rooney PC, where patent law firms basically call “trolls” people who crush invalid patents that should never have been granted in the first place. They reject the term trolls when it comes to abusive entities that are bullying small companies but happily use the term to refer to invalidation of invalid patents. They also, by connotation, blame this on PTAB (IPRs).
Well, after a lot of PTAB coverage Michael Loney managed to speak to the recently-appointed chief judge of PTAB. This judge, according to Loney, “believes his biggest challenge is taking the Board into a new introspective phase. He talks to Michael Loney about rule changes, PGRs’ potential, Cuozzo, motions to amend and ditching the death squad reputation” (a reputation created by nasty law firms in the first place, as we noted here many times before).
Does this judge, David Ruschke, care to see that patent law firms are his enemies? They’re trying to destroy AIA, PTAB, and even his own job. They compare people who assess patents and ensure quality to “death squads” (and those who petition for review “trolls”).
Now, watch this latest article from Loney. It sounds as though he tries to slow PTAB down. Managing IP just won’t let them bury those software patents without FUD, will it? “Much of the talk since the Patent Trial and Appeal Board (PTAB) became active concerned how the Federal Circuit would deal with appeals of Board proceedings,” Managing IP says. That’s hardly a problem because in case of a backlog they can hire more staff or just proceed to more IPRs (in the interim). “The first question,” Managing IP says, “was would the appeals board be able to cope, given the unexpected popularity of PTAB filing. This is still an open question, with some strain beginning to show.”
That’s total nonsense. If they have growing demand for reviews (IPRs), then they should hire more people. It’s as simple as that. It’s a non-issue.
Holders of worthless software patents can run away to CAFC (which created software patents in the US) after PTAB does its work; that gives them no guarantees and that is absolutely fine. They don’t have this privilege carved in stone.
Here is Patently-O having a go at CAFC on PTAB initiation decision. It says that the “court also sided with the Board on Wi-Fi’s substantive argument – affirming the Board decision that the prior art anticipates.”
In other words, as one might expect, CAFC too decided that PTAB does the right thing.
One more article from Managing IP now speaks about the effect of PTAB on biotechnology/pharmaceutical patents — apparently a growth area of appeals. To quote:
Biotechnology/pharmaceutical companies were slow to use the Patent Trial and Appeal Board. This is now changing, though this patent type has lower institution and invalidation rates
The birth of the infamous “patent death squad,” (the PTAB, for those less inclined to dramatic flair), has had powerful effects on patent holders. But while the technology sector dove headfirst into the uncharted waters, biotech and pharmaceutical companies hung back for some time.
The PTAB was, at first, a mystery, and then was filled mostly with challenges against what some practitioners refer to as “junk patents”, so those seeking to invalidate valuable pharmaceutical patents were reluctant to try their luck before the Board. AIA petitions can also be high risk-high reward.
Putting aside the sob stories and the repeated use of the smear (“patent death squad,” as even Managing IP calls it), what we have here are unjust patents that were erroneously granted facing the axe, potentially saving many people’s lives (once invalided, opening the door to generics for instance). See this crude new rant from IAM, which is protesting the UN’s request that life should be put before patents. Also see this blog post about Teva’s recently-invalided patents (covered here last week). To quote: “In the last two weeks, the PTAB has invalidated three patents covering Copaxone®, a multiple sclerosis drug marketed by Teva with annual sales of over $3 billion. Challenged by generic manufacturers Mylan and Amneal, the patents specifically covered a long-acting form of Copaxone®, known as “3-times-a-week COPAXONE® 40 mg/ml,” which Teva developed when the original version of Copaxone® was coming off patent protection.”
So one rich company might enjoy fewer monopolies and poor people might enjoy better access to drugs they need to survive. How is that a bad thing given that these patents should never have been granted in the first place?
PTAB serves an important function and that’s why a patent reform (AIA) introduced it in the first place. If patent law firms get their way, they will ultimately destroy, diminish or reduce the capacity of PTAB. They’re no friends, they’re vultures. █
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Summary: Some privacy takeaways from the analysis of Bretton Woods Law (commissioned by EPO staff) and more examples of serious privacy violations inside the European Patent Office
PRIVACY is significantly eroded by authoritarian regimes for the purpose of crushing dissent and the European Patent Office (EPO) is no exception. Eponia is highly authoritarian and it even hired autocrats like Željko Topić for top positions. A lot of the illegal surveillance inside the EPO began or culminated around the time people were chatting about criminal charges against him (for sure a story worth telling one day).
A letter was sent to Heiko Maas, Federal Minister of Justice and Consumer Protection in Germany, just over a couple of months ago. “A SUEPO lawyer addressed Heiko Maas and informed him of the latest reforms and developments at the EPO,” explained an insider. Suffice to say, Maas has done virtually nothing (he has a reputation for this in Germany), but let’s assess the privacy violations based on another legal office. A few days ago we saw the following new comment in IP Kat:
The EU data protection Regulation does not apply everywhere in Europe. For example, the European Patent Organisation (EPO) has its own data protection Regulation.
The document “BREACHES OF BASIC AND FUNDAMENTAL RIGHTS AT THE EPO” by Bretton Woods Law (Specialists in Public International Law) explains (from page 17 to 23) why the EPO data protection regulation fails to meet the standards of both EU data protection law and the national data protection laws of the Contracting States.
Summary of deficiencies in the current EPO data protection framework:
- Fundamental rights: The reference to the respect of fundamental rights had been removed from the EPO data protection regulation (page 18).
- Lack of independent oversight: At the EPO there is no independent supervisory authority. The EPO president supervises himself the data processing he has implemented. (page 21)
- Change of purpose: The EPO data protection regulation allows the EPO President unilaterally to decide that data may be processed for purposes other than those for which they have been collected.(page 21)
- Transmission to recipients outside the European Patent Organisation: The EPO President may authorise a transfer or a set of transfers of personal data to a third country or international organisation which does not ensure an adequate level of protection.(page 21)
- Lack of any effective means of redress in circumstances where the rights of data subjects are infringed (see pages 22 and 23 – the intervention by the German data protection authorities).
A wide range of personal data from both patent applicants and EPO staff are processed at the EPO. The situation at the EPO falls far below the standards expected and the rights enjoyed by citizens in the rest of Europe.
The above reminded us of what the EPO does with Europatis — a scandal which we covered here last year in the following articles:
- Jacques Michel (Former EPO VP1), Benoît Battistelli’s EPO, and the Leak of Internal Staff Data to Michel’s Private Venture
- Europatis: “Turnover of €211,800 and Zero Employees”
- Loose Data ‘Protection’ and Likely Privacy Infringements at the EPO: Here’s Who Gets Employees’ Internal Data
- Summary of the EPO-Europatis Series
- Revolving Doors of High-Level EPO Management: Jacques Michel and the Questel Deal With the EPO
Privacy violations are so serious inside the EPO that detailed accounts of mock trials or investigations are being ‘leaked’ by EPO management to the media, in order to essentially defame the accused (a judge in one case). One of the reasons for strong data protection around one’s medical record is the potential for blackmail and discrimination. In light of this we’re reminded of a document we saw several months ago (it’s a letter to Mr. Topić actually). It spoke about the unacceptable state of medical data protection at the EPO (it would be totally unthinkable at the USPTO). Here is the complete text
European Patent Office | 80298 MUNICH | GERMANY
Mr Željko Topic
Vice President DG4
European Patent Office
Central Staff Committee
Comité central du personnel
Tel. +49 -89- 2399 – 4355
+43 -1-52126 – 305
+49 -30-25901 – 800
+31 -70-340 – 2028
Reference: sc16075cl –0.3.1/4.3
Nomination of Ms R. de Greiff as Director Health and Safety
Dear Mr Topic,
On 24 March 2016 you announced on the Intranet the appointment of Ms Raffaella de Greiff as new Director Health and Safety with effect from 1 April 2016, this after serving as ad interim Director of one of the two EPO medical departments since Dr Koopman retired almost two years ago.
Ms de Greiff has a degree in “industrial relations” but no medical qualification. A non-medical person can manage a medical unit, but normally only subject to certain strict requirements:
● medical confidentiality is respected;
● non-medically qualified managers do not have access to any medical information;
● medical files and H&S staff when handling such files remain under the direct supervision of medical doctors;
● medical doctors remain free to carry out their medical duties without interference from managers in medical issues.
So far, the Office has not introduced any such formal guarantees and safeguards.
We refer in particular to the Gazette of January 2016, page 20, which includes a diagram showing that the units that administer such medical files (“Medical advisory and general administration” and “Occupational health and safety”) are under the direct authority of the Health & Safety Director and not of the medical doctors (medical advisor or OH physician), who instead appear to enjoy a consultancy role. The whole Health & Safety department led by Ms de Greiff is in turn under the authority of Ms Bergot (PD Human Resources). This new structure is problematic in several respects.
Firstly, Ms de Greiff is neither bound to nor protected by the Hippocratic Oath. If Ms Bergot, as her superior, demanded access to information from the medical file of a staff member (be it a MAU or an OH file), then Ms de Greiff would not have the authority to refuse such an order; neither would she be able to intervene if PD43 were to obtain medical information by other means.
In other words, the strict confidentiality of staff medical files kept in the EPO can no longer be guaranteed.
Secondly, medical doctors are responsible for ensuring the confidentiality of any and all medical data in their possession. If it cannot be guaranteed that non-medical personnel will not have access to medical information, then medical ethics oblige the doctors not to enter or amend any staff data, collected either by themselves or by external doctors working for the EPO, in the EPO medical databases. If they did nonetheless, they would risk losing their medical license.
Under such circumstances, it is unclear how the EPO medical department is supposed to function properly.
Thirdly, we have already raised a number of questions concerning the MAU which to date have never been answered. With the new structure, similar concerns now also apply to the former Occupational Health Department.
We respectfully request you to acknowledge receipt of the above
observations and take a position on them.
The Central Staff Committee
Mr B. Battistelli; President of the EPO
Ms Dr Bosch and Mr Dr Schüder
Ms R. de Greiff
Ms E. Bergot
This medical data protection letter, contained in the original PDF, has the signatures of many staff representatives, not just SUEPO representatives. This is an important letter regarding a serious problem which is widely known about (word of mouth and more). When will the EPO realise that this is totally unacceptable in the 21st century? In this particular case the abuse of privacy of staff cannot even be excused/justified using a war on unions/dissent/whistleblowers. It’s just an authoritarian regime’s dream. █
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Summary: Software patent lawyers and software patent trolls are still active in the United States, even if the climate is unfriendly to them after the Supreme Court’s decision on Alice and § 101
WITH § 101 and Alice (2014), it’s now abundantly apparent that things have changed. It’s rather common for software patents to simply die, either at the courts or at PTAB. As patent trolls rely so heavily on software patents, they too are suffering and now there’s a plan for an “IPO Webinars on Section 101″. To quote a patent maximalism site: “The Intellectual Property Owners Association (IPO) will offer two one-hour webinars entitled “Section 101 – The Way Ahead”. The first webinar, concerning the impact of § 101 on the software industry, is being offered on August 10, 2016 from 2:00 to 3:00 pm (ET). Stephen Durant of Schwegman, Lundberg & Woessner, P.A.; Michelle Macartney of Intellectual Ventures, LLC…”
Well, Steven Lundberg's firm, which we last mentioned in April, is one of the worst offenders and one of the most vocal proponents of software patents. They even have a dedicated blog and lobbying on the matter. The world’s largest patent troll (and Microsoft’s troll) Intellectual Ventures taking part in pro-software patents event is also noteworthy. It really shows what the Intellectual Property Owners Association has been reduced to; it’s like a think tank for lobbyists, parasites and trolls.
“It’s rather common for software patents to simply die, either at the courts or at PTAB.”In writing about Technicolor, the trolls-funded 'news' site IAM did not bother mentioning that MPEG-LA is a parasitic patent troll. The editor, who wrote this article, denies that trolls exist (like people who deny climate change). MPEG-LA and related patent pools (mentioned therein and covered here in the past) pass a massive tax to the public, in the name of software patents even when these patents do not exist (and are not legitimate). Companies that latch onto MPEG-LA to extract revenue from the public are nothing but leeches. They don’t innovate, they just look for a patent troll like MPEG-LA to act as a proxy and bully any company which streams video (or helps stream video) without paying millions of dollars in unjust tax. Even Mozilla became a victim of this. What a waste of money for a FOSS company and a project like Firefox.
Speaking of trolls, IBM increasingly acts like one and it relies on software patents for this. Using the words “PTAB Attack” (another negative-sounding term like “killer” or “death squad”) a patent attorney wrote that “IBM’s Online Reservation Patent Survives PTAB Attack: https://dlbjbjzgnk95t.cloudfront.net/0822000/822630/ipr2016-00604_institution_decision_12.pdf”
“Companies that latch onto MPEG-LA to extract revenue from the public are nothing but leeches.”The cited PDF is 25 pages long and in it it’s “ORDERED that, pursuant to 35 U.S.C. § 314(a), an inter partes review is not instituted for claims 1–8, 11, 12, 14–21, 24, 25, 27–34, 37, 38, 40–45, 47–49, 51–57, and 60–66 of U.S. Patent No. 5,961,601.” The Petitioners are Richard Zembek and Gilbert Greene. The patent owner (or firm representing him/her/them) is Andrew Heinz and/or Kevin McNish.
What we have here is a reminder that PTAB is not always the ultimate remedy. Having said that, there are also the courts to fall back on, so if IBM resorts to lawsuits rather than just saber-rattling, the patent can still die (at very high cost to the defendant though, possibly lasting several years after a number of appeals).
The latest in a high-profile case against Apple suggests that VirnetX‘s patent lawsuit which it won against Apple isn’t the end of it because “TX Ct [Texas court] Vacated VirnetX $625M Award Against Apple; Ordered Two New Trials: https://dlbjbjzgnk95t.cloudfront.net/0823000/823395/https-ecf-txed-uscourts-gov-doc1-17518671566.pdf”
Texas again. It figures.
“What we have here is a reminder that PTAB is not always the ultimate remedy.”In other news, Patently-O wrote last night about Illumina’s battle against Ariosa Diagnostics. It’s one of those controversial patents on genetics (i.e. on life) and Professor Crouch wrote: “The essence of the conflict is whether Illumina’s U.S. Patent No. 7,955,794 is covered by the “Core IP Rights” licensed as part of a 2012 supply agreement. Illumina argues that ‘794 patent was not licensed and, when Ariosa refused to pay a license fee, sued Ariosa for patent infringement. Ariosa’s counterclaim of breach of contract and other covenants stem directly from the infringement allegations.”
Sadly, as seen above, there is a persistent (if not also growing) element of confrontation around software patents and other dubious patents because the USPTO lost touch with patent scope and granted nearly anything that came in — the same mistake that Battistelli now makes at the EPO. █
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EPO management even lies to EPO staff about its rulings, which are based on highly dubious proceedings
Summary: Hearings in The Hague begin (or resume) tomorrow, but whatever the outcome may be, Team Battistelli arrogantly reminded us that it would refuse to respect rulings from the highest court at The Hague, much like China’s government
THE links in yesterday’s daily summary (we posted two summaries yesterday) contain a couple dozen stories about China refusing to honour a ruling from The Hague. Maybe it’ll be a convenient subject for discussion on Battistelli’s next SIPO journey as the EPO too ignores The Hague, except when it comes to setting up branches near The Hague. EPO management is about to go on trial again (Supreme Court) and according to this report it will begin tomorrow. SUEPO is understandably quiet as preparations are required.
Lawlessness at the EPO has become the standard. Laws and rules are habitually broken (even by the President himself), external trials are snubbed, independent judges are crushed, and internal ‘justice’ uses bogus or fabricated evidence in order to implement anything the President asks for. Writing about the immunity of Battistelli, one person shared the following:
Indeed, no. He even enjoys more immunity than “us employees”, as he gets full diplomatic immunity according to the Vienna agreement… Even from his sending state, as all member states must accord it to him….
The president alone proposes the agenda, but the moment the AC meeting has started, the AC can amend and change the agenda. They can remove topics, add topics, change the order. But only with majority vote. (The AC approves the agenda.)
The topics as preliminary published and set by the president is therefore a mere proposal and non-binding to anyone.
“The president alone proposes the agenda, but the moment the AC meeting has started, the AC can amend and change the agenda,” says the above. But they quite evidently did not. Battistelli has managed to totally distract everyone from the abuses for which he and his goons come under fire from courts at The Hague. Who needs immunity when one controls the agenda of a meeting that only takes place 4 times a year? The game is rigged. Writing about the “outmanoeuvred” hypothesis (Battistelli manipulating the Administrative Council), one person asks: “Really? With only one vote against (NL) and two abstentions (HU, IT)? C’mon…”
This serves to show just how rigged it all was. They didn’t even discuss the pressing issues like Battistelli’s abuses and demands from Battistelli. Later on a debate developed around whether Battistelli got what he wanted or not. It went like this:
…the latest amended document isn’t perfect, but it is a million miles from what Battistelli wanted.
He’s presented three or four proposals over the last 18 months. Each time the AC has told him to go back and think again. That’s why it has taken so long.
Remember that originally BB had planned to ask the AC for a final decision way back at the March 2015 AC meeting. But then the controversy over the house ban of a BoA member blew up, so he realised that he wasn’t going to get all his own way. So instead of a final decision, he merely asked the AC for an opinion on CIPA’s suggestion that he should delegate powers to a new President of the Boards of Appeal. (Do you really think that BB liked the idea of delegating power to someone else?)
Further proposals followed, but weren’t good enough. Eventually, in February/March this year there was a huge bust-up, where the AC told BB that his proposal was still not acceptable, so Board 28 would tell him what it should say. Even then, during the June AC meeting they further amended what he had produced.
Of course, on each occasion BB’s PR machine has issued a communique on the AC’s behalf, saying that the AC was extremely happy with his proposals. But do you seriously believe everything you read in official communiques?
One person asked, “could it be that BB [Battistelli] is creating side-shows about issues that really do not matter that much to him” or distracts from abuses against his staff? Here is the full comment:
I fear that your comments rather reveal what I was most afraid of, namely a perception amongst some representatives to the AC that it is enough that BB has been battered back from his (apparently) preferred position on certain issues.
Let me be clear: avoiding an even more ridiculous alternative can hardly be counted as a “victory” if the outcome is still ridiculous. Also, has the AC not considered that, if BB were being particularly cunning, he might well make all of his initial positions so ridiculous that what ends up being passed by the AC nevertheless still gives him (at least) what he had secretly hoped for?
There is also the possibility of “sacrificial pawn” tactics. That is, could it be that BB is creating side-shows about issues that really do not matter that much to him, simply in order to ensure that he keeps a free hand on the issues that are truly important? Having to make some small concessions on minor issues is not such a high price to pay for ensuring you achieve your ultimate objectives.
I now understand more about how events have come to pass, but that additional knowledge has done nothing other than give me less cause for optimism. This is because my worst fears have been confirmed: the President really does control the agenda and is making fools of the representatives to the AC who oppose him. Also, with seemingly total immunity, it seems that the President really has nothing to fear… not even committing acts that, if judged under national laws, might land him in jail.
I really hope that there is someone out there who can figure out a way of fixing this, because I fear that there is worse to come for the European patent system if BB is neither jettisoned nor brought to heel.
The following comment said that the “latest outcome” is what Battistelli “wanted all along” as the appeal boards lost their independence (the EPO lied about it).
sorry but I can’t agree that the latest outcome is what BB wanted all along. I fear you have been taken in by his constant propaganda that the AC thinks he is wonderful and accepts everything he says.
All you can really say is that the AC could have done more on some of the issues. But viewed objectively, while the outcome is not perfect, neither is it favourable for BB.
The debate missed the point that Battistelli controls people by appointment now. The latest comment said this:
Can you really claim to know what BB wanted all along? I am not saying that I can either, but the point that I was making is that his tactics may be a lot more manipulative than is currently perceived. Perhaps, unlike me, you have not had your eyes opened to the fact that there are some individuals out there who will make a huge fuss (and fight tooth and nail) about an issue that really is of little consequence to them, simply in order to improve their negotiating position on other points.
From my perspective, the conclusion that “neither is it favourable to BB” just does not cut the mustard. I would instead have preferred a sane and sensible reform of (the rules of conflict of interest for) the Boards of Appeal – whereas the reform that we got does not meet either of those criteria.
Compromise is of course a very “European” way of doing things, and is no doubt essential in fora such as the AC. All I am saying is that just realise when you are being played – and when it is time to stand up to bullying behaviour and draw a line in the sand that shall not be crossed. Breaching provisions of the EPC and making threats to the EBoA really ought to have been such a line.
“Breaching provisions of the EPC and making threats to the EBoA,” as the above put it, are just two among dozens of Battistelli abuses. In tomorrow’s hearing only few among these will be considered by the court. If Battistelli was found guilty for only one of those dozens of abuses, he would not obey the ruling. That would only further embarrass the Office. █
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Learning from bad aspects or what has gone awry in the patent world
Summary: A mishmash of news about patents, mostly regarding the United States, and what can be deduced from that at the moment
THIS coming week promises to be rather big and historic, at the very least in Europe. It’s not just because of Brexit and its impact on the UPC but also because of the Administrative Council’s meeting. Big news is definitely afoot. In order to get some less important news out of the way in preparation for tomorrow (I’m getting back home after 3 days’ holiday), below are bits and pieces of relevance. It’s all from outside Europe.
“With patent ‘quality’ like this, why even pretend that the USPTO does legitimate quality (or novelty) assessment?”
USPTO’s Neglect of Patent Quality a Bursting Bubble
IAM, which is preaching under the guise of 'journalism', actually bemoans not the quality of USPTO patents being terrible and truly worth of cleanup by PTAB. Instead, it keeps moaning about the ‘worth’ of patents, as if not quality control is the problem but lenience of courts etc. “Judge Newman alone again as she warns of devastating loss of public confidence in US patent system” is the latest headline. IAM being IAM, it’s amusing to see how shallow the agenda is to see.
“It sure looks like pride is harder to derive these days from USPTO employment.”For details about the low quality of today’s USPTO patents, see the new article titled “General Mills Granted A Design Patent On A Tortilla Bowl Because Why Even Pretend Anymore?”
To quote the opening part alone: “While we’ve talked in the past about how absurd design patents can get, it’s worth pointing out that, hey, shit’s not getting any less absurd, people. Design patents, as opposed to utility patents, function more like trademarks. The idea is that the “invention” in the case of design patents are supposed to be unique outputs of what might otherwise not be unique inventions that are then said to act as some sort of single-source invented thing. Honestly, the whole concept smells of a workaround on the actual purpose of patent law and it tends to function that way as well. How else do you explain the design patent granted on a toothpick with some lines carved into it, for instance? Or Apple’s design patent on the animation of turning a page within an ebook? Rewarding exclusivity to these types of “inventions” that barely work up the sweat of an “inventor” should seem absurd to you, as should the frequency with which the public is left wondering where exactly the “invention” is in any of this.”
“Patent lawyers everywhere have been trying to spread software patents to just about everywhere on the planet, irrespective of what software developers are saying.”With patent ‘quality’ like this, why even pretend that the USPTO does legitimate quality (or novelty) assessment? We were recently contracted in relation to someone who works for the USPTO and does not wish to be described as such. It sure looks like pride is harder to derive these days from USPTO employment. Today’s USPTO is not what it used to be; rubber-stamping millions of patent applications for large corporations whose managers become USPTO Directors isn’t so scientific anymore.
Trying to Push Software Patents Into India
Patent lawyers everywhere have been trying to spread software patents to just about everywhere on the planet, irrespective of what software developers are saying. Last week, for example, Germany’s Bastian Best asked: “Targeted advertising is patentable in India if a piece of hardware is claimed?” Software patents are not legal in India, but Kenneth Saldanha, one of those hoping to change that, wrote:
A Software Patent in India is a tricky issue. First of all, let us understand what a Patent is. A patent is essentially a set of rights granted to a person in respect of something new (an invention) created by him. This ‘something new’, under the Indian law i.e. the Patents Act, 1970 is called an ‘invention’ and includes a software as well.
No, not really. India’s Patents Act excludes that and those hoping to change that are the same people who say software patents are possible and legal in Europe (or Germany, which is consistently more lenient on the matter). Even Battistelli’s EPO cannot change that, not without the UPC or some other new loophole.
Microsoft Bought a Patents Dud and Engages in Trolling (Through “Microsoft Tech Licensing”)
“Put another way, Microsoft acts like a patent troll (Microsoft Tech Licensing is technically a patent troll).”“At a glance,” IP Watch wrote some days ago, “Microsoft’s portfolio of US patents currently stands at approximately 50,000, compared to LinkedIn’s US patent portfolio of 1,085. Microsoft is well known for asserting its patent rights and has even created a licensing entity Microsoft Tech Licensing Ltd.”
Put another way, Microsoft acts like a patent troll (Microsoft Tech Licensing is technically a patent troll). We wrote over a thousand posts on this subject alone.
Even Microsoft-connected sites have already explained why “Microsoft’s LinkedIn Acquisition Is a Bad Move”. Compare that to other failing companies (LinkedIn had gotten into serious issues before Microsoft placed a bid) that actually have a lot of patents. As IAM put it the other day: “In terms of IP value creation Blackberry is one operating company worth keeping a close eye on. The Canadian tech giant has a huge portfolio of assets – around 38,000 – and has a brand with global cachet; but it is slowly withering in its legacy handset market and is transitioning away from manufacturing devices.”
“Will software patents ever make a comeback in the US? We sure hope not.”We previously wrote explanatory posts on how BlackBerry (or RIM) was becoming a patent troll. Thankfully, many of their patents would no longer be valid or possible to uphold in a court of law. Not in the US and not even in Canada (home country). See the paper “Patents and the Wealth of Nations” by Stephen Haber from Stanford University, published almost 2 months ago.
The Fight Against Patent Trolls Continues
“There are even uglier aspects inside law firms which focus on/pertain to patents and their clients.”Writing about the pro-patent trolls Halo decision, a comment from someone called Mike at IP Kat says that “influential Senator Orrin Hatch has filed an amendment to a funding bill criticizing the Supreme Court’s decision in Halo. Basically, it states that Congress considered the Seagate test and did not act to change it, thus Congress’ intent is for the Seagate test to govern.”
Destruction of Software Patents Continues
Remember some old news about CAFC ruling against software patents, in this case a “patent infringement claim filed by software company Rosebud.” There have been so many such cases since, including a lot from the court that initially authorised software patents in the US. Will software patents ever make a comeback in the US? We sure hope not.
The Ugly Side of Patent Practice
A few days ago Patently-O wrote about “Sexism in Patent Practice”, taking note of what’s characterised as “stories of appalling sexism. Each had been taken as the assistant for the actual lawyer. Each had been called things like “missy” and the like. And each had experienced this at high levels of practice, in recent years, not at some point long ago.”
“That’s where particular patents (or patent holders) do not just have ethical issues but also criminal/forensic issues.”There are even uglier aspects inside law firms which focus on/pertain to patents and their clients. “Commission finally targets Patent Boxes as tools of fiscal evasion,” Benjamin Henrion wrote, “not sure they cover EU2EU transfers” (reference in
europa.eu). Prior to it, Francisco Moreno wrote about this as well, but in Spanish (“Exit taxation en paquete anti-evasión de la Comisión:si sacas patentes fuera de la UE pagarás en función de su valor”), his native language.
This serious subject was covered here before [1, 2, 3, 4, 5, 6]. That’s where particular patents (or patent holders) do not just have ethical issues but also criminal/forensic issues. █
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