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08.20.19

Breaking the Law Has Become the Norm at the European Patent Office

Posted in Europe, Law, Patents at 2:51 am by Dr. Roy Schestowitz

The banality of corruption and illegality

EPO delivery

Summary: The European Patent Office’s ongoing practice of destroying critics/whistleblowers and crushing unions, judges, examiners etc. — as well as threats and bribery of the media — ultimately mean a perpetual state of lawlessness that, if it prevails, will let patent trolls raid the European economy and stall innovation

ANY time we mention Team Campinos/Battistelli lawlessness come to mind; these people are not virtually but practically above the law. Nobody can stop them; they can do anything they want.

“…these people are not virtually but practically above the law.”A year after Battistelli left we don’t really expect him to be held accountable for the corruption. People are sort of expected to forget or forgive. But why? The European Patent Office (EPO) is detached from the EU when it suits the EPO’s managers, e.g. when they commit crimes and don’t want to be held accountable by European institutions. Yesterday, however, they were happy to associate with the EU in Twitter, referring to a sort or endorsement from the EU’s “IPR Helpdesk”.

“There’s a certain sense of rot at the EPO; during the month of August it was almost never mentioned in the media.”The EPO’s attacks on the law may have been ignored or overlooked by EU officials, but what about courts in Germany? Well, the FCC certainly can see the attack on judges, among many other things. SUEPO, the EPO’s staff union, was taking note as recently as yesterday of the likely permanent demise of the UPC (and anything like it) under the section “Other press articles published related to Work/Labour – UPC – Unitary Patent – ILOAT etc.” (further down).

There’s a certain sense of rot at the EPO; during the month of August it was almost never mentioned in the media. IP Kat‘s Riana Harvey just mentioned it in passing yesterday:

The European Patent Law blog examines case T-721/16, heard in the Boards of Appeal of the European Patent Office, which suggested that it was not necessary to reproduce examples, but for the courts to examine the description of the combination of claimed characteristics.

We mentioned this decision before. This is in French.

We don’t suppose they’ll get around to tackling issues such as patent scope or quality; they refuse to even touch the 'Haar question'.

“What we’re seeing here is the collapse of patent certainty in Europe…”As we noted earlier this month, patent trolls flock to Europe, looking to exploit the demise of patent quality. We know what law firms are eager to represent these trolls. One such firm has just pushed to Lexology its so-called ‘advice’ (from Patrick Heckeler in this case). “The European Patent Office considered tracking SWAP derivatives transaction positions non-technical,” wrote these boosters of software patents in Europe, Bardehle Pagenberg. It’s even worse when it comes to European courts, where software patents have almost no chance of survival. What we’re seeing here is the collapse of patent certainty in Europe; too many fake patents or Invalid Patents (IPs) are being granted by the EPO. Campinos did absolutely nothing about this; he even made things worse.

08.17.19

Computer-Generated Patent Applications Show That Patents and Innovations Are Very Different Things

Posted in Law, Patents at 10:00 am by Dr. Roy Schestowitz

Also, this demonstrates that computers aren’t “inventors”; entirely different concepts.

Robotica

Summary: The ‘cheapening’ of the concept of ‘inventor’ (or ‘invention’) undermines the whole foundation/basis of the patent system and deep inside patent law firms know it

SOMETIMES it helps to see even the patent microcosm admitting the obvious truth. A glimmer of honesty is a rare sight inside that microcosm. But they now realise that the legitimacy of the whole system they make a living from is at risk.

Consider "HEY HI" (AI) patents; there are several aspects to it, one of which being computer-generated patents and another being patents on computer code that's said to be "HEY HI" (we wrote about it this morning). We’ve dealt with both of these (there are more) and Barry Eagar left this comment, to be published (authorised by a moderator) this morning:

The rationale behind patent systems is the “quid pro quo”. That is, the concept of encouraging innovation by rewarding innovators with a monopoly. How will an AI module be encouraged to do anything? It seems to me that Dr Thaler has been encouraged by the promise of a monopoly over the production of “inventions”. If the AI module is named as the “inventor”, then the quid pro quo principle is disturbed. It matters not that the AI module is named as a co-inventor. Co-inventorship implies a sharing of the promise of the reward.

It can’t be denied that the AI module has carried out an act of “invention” according to the ordinary English language definition. However, “invention” must mean something different in the context of a patent. It is for that reason that “invention” is defined in some way in most patent legislation. It is codified in Europe and defined more generically in the U.S. Either way, the definition together with the other statutory obligations that must be met for the grant of a patent have been formulated to answer the question: “Should the state reward the inventor(s) with a patent monopoly for the contribution to the technical field?” Those advocating for the allocation of the epithet “inventor” to an AI module in the context of a patent are failing to consider the raison d’etre of the patent system. How do we reward an AI module?

That brings us to a much broader question. When and how do we grant personality rights to an AI module? It may be inevitable that we must. Perhaps only then can an AI module be named as an “Inventor” in the context of a patent system.

This was likely said by this Australian attorney, who claims that his practice also covers “software”. When will law firms quit conflating innovations with patents? Eagar speaks of “patent monopoly”, which is quite accurate. But when he speaks of “the concept of encouraging innovation by rewarding innovators with a monopoly” he is not correct; it’s actually encouragement of publication (as opposed to the branch of trade secrets), not “innovation”. The arguments in the copyright domain typically mention “creativity”. But that too is a misnomer. We need to go back to basics and appreciate patent quality, not the number of patents.

Software Patents Won’t Come Back Just Because They’re (Re)Framed/Branded as “HEY HI” (AI)

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

Building another house of cards or patent bubble

AI hype at EPO

Summary: The pattern we’ve been observing in recent years is, patent applicants and law firms simply rewrite applications to make these seem patent-eligible on the surface (owing to deliberate deception) and patent offices facilitate these loopholes in order to fake ‘growth’

THIS site has changed a bit this year. Since springtime we’ve increased focus on GNU/Linux and since last winter we’ve been gradually reducing coverage of U.S. Patent and Trademark Office (USPTO) affairs, focusing instead on the European Patent Office (EPO) under António Campinos, Battistelli‘s friend. There’s still plenty of coverage about 35 U.S.C. § 101 cases in our daily links (which recently became bi-daily) and we habitually write about software patents. It’s just that in the world as a whole, notably in the US, such patents are waning. How does one ‘work around’ Mayo/Alice (SCOTUS)? It’s not simple, but at the examination phase it’s easier to manipulate the examiners into granting patents on algorithms. Days ago Watchtroll once again blasted the Patent Trial and Appeal Board (PTAB), equating its work with “harassment” of “patent owners” [sic], then urging Andrei Iancu to stop or at least curtail inter partes reviews (IPRs). This sort of blowhard nonsense from Watchtroll’s founder simply reveals just how desperate and foolish patent zealots have become.

“The writers at IAM constantly promote these buzzwords, as does the EPO.”Watchtroll, however, does not have a monopoly on such nonsense. And to think that the EPO’s management liaises with Watchtroll is a rather disturbing thought.

The desire to ‘dance’ around the law and grant bogus, abstract patents isn’t new. Methods appear to have increased in number and these typically boil down to semantics and buzzwords.

“It certainly seems like the world of patents is increasingly dominated by marketing phonies and imposters, not technical people. That’s a profound problem.”“Through strategic claim drafting, oil and gas companies can overcome Section 101 and obtain patents covering digital technologies and AI, say Charles Collins-Chase, Jennifer Roscetti and Paul Townsend of Finnegan,” wrote the patent maximalists in “Oil and gas digitalisation: overcoming §101 to obtain valuable patents“. They basically celebrate software patents that are fake patents using buzzwords like "HEY HI" and other nonsense put forth by the likes of Finnegan, a litigation giant that sponsors the likes of IAM. The writers at IAM constantly promote these buzzwords, as does the EPO. What would courts say? They’re not in the business of granting as many patents as possible, so a sober analysis would likely squash such patents. But it’s not cheap; court battles are very expensive.

Citing the EPO’s “Problem-Solution Approach”, patent attorney “MaxDrei” (frequent commenter on EPO matters at IP Kat) wrote about some of these ridiculous "HEY HI" patents that reach the EPO and other patent offices. To quote the comment:

Let us take the two examples and address them like the EPO does, using its Problem-Solution Approach. So, two part form of claim, characterized by…..fractal. Thus, the beverage container I take to be old except that its bumps and dimples are, well, fractal ones.

According to the application as filed, what is the technical problem (X) for which “fractal” is the solution? What is it that fractal bumps do that conventional bump patterns fail to do? We need to know that, so we can scour the prior art universe for hints or suggestions that, if X is your problem, it might be worth rendering your bumps as “fractal”.

Could it be that the only problem we can derive from the application as filed is the problem of finding an alternative? Could it be that the algorithm was also searching the prior art to find an alternative and found it in “fractal”?

As to the candle invention, I can see that random or pseudo-random flickering might command attention more strikingly than metronomic flickering. But again, what is the technical problem (Y) for which the solution is “fractal”?

The imaginary person skilled in the art is deemed dispassionately to scour all the prior art, looking for hints or suggestions. Is this not the same as what the machine “inventor” is doing? If it finds any such hint or suggestion, has it executed an act of invention? But then; what if it keeps quiet about where it found its hint or suggestion and instead holds out its feature combination as its own flash of inspiration? Who can deny it?

As we argued earlier this month, this whole “HEY HI” nonsense poses a risk to the very legitimacy of patent systems. There are several reasons for this. But the aspect most troubling to us is the degree to which “HEY HI” gets leveraged as a mere buzzword; just about any algorithm — never mind if machine learning-centric or not — is being cast or framed as “HEY HI” because it does something ‘clever’. It certainly seems like the world of patents is increasingly dominated by marketing phonies and imposters, not technical people. That’s a profound problem. Watchtroll blocked me in Twitter after it had lost an argument over software patents — an argument which incidentally revealed that Watchtroll’s founder doesn’t even know what software is and how it works!

08.10.19

The EPO is Still Violating the EPC Every Day

Posted in Europe, Law, Patents at 1:29 pm by Dr. Roy Schestowitz

It gets away with it because the dictatorship is situated outside the Rule of Law

A dictator

Summary: The dictators of the EPO are routinely violating the law without any consequences to their freedom (or even their careers) and it means that people are rewarded for illegality, not conformity w.r.t. the law

THIS press release, published just before weekend, shows RNA-related patent monopolies from the European Patent Office (EPO), which also grants illegal monopolies on mathematics (“as such”) because Benoît Battistelli and António Campinos measure nothing but quantity. To them, “quality” means “grant fast!”

It’s all about monopoly with patents first, patients... later (if ever). To quote this press release:

Evox Therapeutics Ltd (‘Evox’ or the ‘Company’), a leading exosome therapeutics company, is pleased to announce that the Company has been granted three key patents by the United States Patent and Trademark Office (USPTO) and the European Patent Office (EPO). These three new grants are from one of several foundational patent families held by Evox and further reinforce the Company’s leading position within exosome-mediated RNA therapeutics and targeted exosome drug delivery.

We’re occasionally seeing similar press releases celebrating EPO grants even though many newly-granted European Patents turn out to be bogus. Courts toss them out. They’re not compatible with the EPC — a fast-growing problem which alarmed examiners. They’re aggressively pressured to grant patents against the law or wind up unemployed in a foreign country (which they relocated to just for an EPO job).

“…many newly-granted European Patents turn out to be bogus. Courts toss them out. They’re not compatible with the EPC — a fast-growing problem which alarmed examiners.”The EPO is clearly all in favour of these violations of the law. This new tweet is using hype waves to promote software patents and another new tweet uses lame acronyms. “The number of European patent applications related to autonomous driving has grown 20 times faster than that across all technologies,” it said. Those are mostly software patents or, in other words, fake patents that are illegal to grant.

“This is the kind of thing that harms the EU’s image and gets many people concerned.”Just before the weekend the EPO also retweeted (thus quoted) its “jobs” account as saying: “The EPO is proud to be located in such beautiful European cities as Munich, The Hague, Berlin, Vienna and Brussels (Liaison office). At the end of 2018, 95% of our employees were working in either Munich (3,734) or The Hague (2,643).”

EPO actually tarnished the names of these cities because workers are abused and management commits crimes. Some examiners commit suicide. Some have been driven out of Munich as punishment and one judge was sent to The Hague as punishment for doing nothing wrong (courts repeatedly acquitted him). His colleagues too were punished when Office management made a decision on illegally sending all judges to ‘exile’ and then refusing to even deal with the question of this illegality. What an astounding, large-scale violation of the law. If Europe’s second-largest institution is an outlaw institution, then where does it derive the moral authority from? Or the authority to judge innovation? It’s more like organised crime. Before the weekend one new ‘Kat’ recalled:

The EPLaw Patent Blog reports on a decision of the German Supreme Court on the sufficient disclosure requirement under Article 83 EPC. It finds that the EPO and German practice on the interpretation of this Article are different, and the consequence of this difference is that opposition proceedings before the EPO should be considered in case a revocation relies on the grounds of sufficient disclosure.

So the EPO’s and German practice on the interpretation of Article 83 EPC are different, finds Germany’s highest court! The EPO basically stopped following or obeying the EPC. This post (the new one above) cites an older post from EPLAW that said:

Art 83 EPC (= sufficiency of disclosure) before the German Courts and the EPO: (still) no harmonization, by Dr. Hans-Peter Felgenhauer (Former Technical Member of the Boards of Appeal) and Dr. Tobias Wuttke (Meissner Bolte)

In the recently published decision of the German Supreme Court dated 8 January 2019 (docket no. X ZR 58/17), it was decided that the European patent EP 1 070 223 (“patent in dispute”) discloses the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art (= Art 138 (1) b) EPC). This finding might likely have been different if the patent in dispute had not been challenged with a nullity action but with opposition proceedings at the EPO.

[...]

However, under the EPO practice, it is necessary but not sufficient to meet this requirement in order to meet the requirements of Art 83 EPC (= Art 138 (1) b) EPC). According to governing EPO practice, it is further required that this one way to carry out the invention allows the invention to be performed in the whole range claimed, see CLBA II.C.4.4.

According to the decision T1223/15 “for assessing the second condition, that the above disclosure allows the invention to be performed in the whole range claimed, it must first be ascertained what the scope of the claimed range is. The latter involves in the present case an issue of claim interpretation.

“In particular, that pursuant to established case law, the skilled person,
when considering a claim, should rule out interpretations which do not make technical sense, and should try to arrive at an interpretation of the claim that takes into account the whole disclosure of the patent, see CLBA, II.A.6.1”.

The decisions above are reached not by independent jurors but ones who are terrorised, in violation of the EPC, by Office management (i.e. those who are accused of breaking the law/rules). It’s a classic constitutional crisis wherein one branch squashes all the others. There’s no oversight at all, only an illusion of it.

We continue to observe a large European institution which flagrantly ignores court rulings and routinely violates many of the laws that govern it. This is the kind of thing that harms the EU’s image and gets many people concerned.

08.06.19

The Eric Lundgren Case and Similar High-Profile Plea ‘Bargains’ (Aaron Swartz and Marcus Hutchins)

Posted in Courtroom, Law, Microsoft at 5:16 am by Dr. Roy Schestowitz

Overview

Microsoft’s Declaration of War on Recyclers

The Legal Aftermath

Pending review and research


Innocence Is Irrelevant
Reference: Innocence Is Irrelevant

Summary: Unjust and at times fatal plea ‘bargain’ tricks are being leveraged against people who fight ‘the system’; Eric Lundgren has come to realise he’s one of these people

The other day we saw Eric Lundgren replying to Marcus Hutchins; it wasn’t long after Hutchins had said:

Me: “Now my case is over the stress should subside and i can fina…”
My Lawyer: “Just a friendly reminder that you need to pack up your entire apartment, say bye to all your friends, then move across the fucking sea. Sometime this week would be good.”

Hutchins will be walking around for the rest of his (long to go!) life with a “felony” crest/emblem/badge/mark/stamp/livery. It’s a stain. It’ll never go away. It’s hard to find employment as in some cases it is not legal to hire people with a conviction/criminal record/felony. He’s on the record as admitting guilt only after he had been blackmailed into it with the plea ‘bargain’ trick/machinations. We mentioned this many times in our daily links over the past couple of years.

“I was watching a documentary called “The Internet’s Own Boy – The Story Of Aaron Swartz” – I wish he was still with us… I was glued to the documentary in hopes of gaining some insight that might help my plight. Then the narrator says, “And then he hung himself” and I just sat there dumbfounded…”
      –
Lundgren and Hutchins have that problem in common now. “Before I went to prison,” Lundgren told me the other day, “I was watching a documentary called “The Internet’s Own Boy – The Story Of Aaron Swartz” – I wish he was still with us…”

“I think I mentioned the similarity to you already,” I told him, as “legal bills burdened his family, so he ‘saved’ them” (by killing himself).

“It was crazy,” Lundgren continued, “he got hit with the exact same level of Federal Charges that I was facing and I was so eager to hear how he was going to get out of it! I was glued to the documentary in hopes of gaining some insight that might help my plight. Then the narrator says, “And then he hung himself” and I just sat there dumbfounded…”

And “they do this to other people,” I interrupted him to say. “Chelsea Manning is the latest…” (they impose massive daily fines on her and her family for merely refusing to testify against Julian Assange even though she rightly sticks to her Constitutional rights).

“Assange [may] still have some savings,” I said, “so I think he can cope with legal bills…”

And “then comes the plea “bargain”,” I said. And “the US did this to a Brit too [...] he was released 1-2 weeks ago (“MalwareTech”) [...] he has felony now [but] they gave him a “bargain” [of] time served (2 years) [...] after he helped stop the damage caused by Microsoft/NSA back doors (WannaCry)” (this is based on our latest informal conversation).

Here’s a report about it, “Marcus Hutchins, malware researcher and ‘WannaCry hero,’ sentenced to supervised release” (NSA and Microsoft officials — not Hutchins — should have been sentenced to prison, at the very least for their WannaCry culpability; it’s them who made the back doors that caused hospitals to be shut down; their actions actually killed a lot of people).

“How dare this young British man ‘interfere’ with WannaCry, which was mostly developed by the NSA? Stay out, little fella’! Adults only here!”The above article (from one and a half weeks ago) was written by a former Microsoft UK staffer/intern who had blocked me in Twitter. So it’s not likely he’ll explain the back doors nature of it all (or Windows). The state wants to ‘bury’ it all and ‘make an example’…

How dare this young British man ‘interfere’ with WannaCry, which was mostly developed by the NSA? Stay out, little fella’! Adults only here!

WannaCry is an exploit, a back door(ing) facility; it was leaked from the NSA and Microsoft knew about it as it’s telling the NSA about zero-days without even fixing them. WannaCry is an SMB-level exploit. It killed lots of people, shut down hospitals worldwide, and caused billions of dollars in financial damage. And guess who was threatened with life in prison for it… the man who stopped it!

“No good deed shall go unpunished, especially if it hurts profit. This world be damned, we’ll pollute it if there’s a coin to be made outta this.”
      –Anonymous
In the case of Lundgren, who got arrested and was threatened with life behind bars? Not the people responsible for deadly pollution but the person who combats this pollution. As someone put it in response to our article yesterday (Microsoft employees have already ‘infiltrated’ these comments): “No good deed shall go unpunished, especially if it hurts profit. This world be damned, we’ll pollute it if there’s a coin to be made outta this.”

The following old (but still viral) meme comes to mind as a rather appropriate and apt analogy:

Facebook vs WikiLeaks

There’s lots more coming in the series, so stay tuned. The exact structure (outline) hasn’t been determined yet. We’re thinking along the lines of: 1)
Silencing Media (how Microsoft gagged publishers). 2) Court Mischief (how Microsoft possibly ‘bought’ the outcome). 3) Legal and Financial Ramifications (the dangers of this precedent). Expect photos and legal documents (copies of them).

08.01.19

The Boards’ (of Appeal) Fear of Enforcing the Law (EPC) Will Doom the European Patent Office

Posted in Courtroom, Europe, Law, Patents at 4:07 pm by Dr. Roy Schestowitz

It’s just a big bubble waiting to burst

Big bubble

Summary: The Convention on the Grant of European Patents 2000 (EPC 2000) is totally meaningless judging by the actions of today’s EPO and the scope of European Patents; this means that a bubble is being inflated pending an inevitable implosion

European Patent Office-granted patents (EPO patents or European Patents, EPs) are rapidly losing their value, just like USPTO-granted patents after 35 U.S.C. § 101.

Team Campinos/Battistelli doesn’t think long-term; like CEOs of companies all they care about is quarterly or annual “targets”; quality isn’t part of it and one might call quality an “obstacle” (it slows things down when all one is willing to measure is “products”, numerically).

“Over at Lexology, Marks & Clerk’s Donald McNab misses the point that the EPO attacked all these Boards that are supposed, in principle, to govern things from a legal perspective, as per the EPC. They’re toothless now.”The EPO was supposed to be self-correcting, but the EPC was violated in many possible ways. There’s no separation of powers. Last month we saw EPO ‘justice’ in a nutshell — a stacked panel of judges refusing to even deal with the question of the EPC being violated (instead deeming the very question ‘inadmissible’). Who are they kidding?

Over at Lexology, Marks & Clerk’s Donald McNab misses the point that the EPO attacked all these Boards that are supposed, in principle, to govern things from a legal perspective, as per the EPC; they’re toothless now. They cannot do their job. But Marks & Clerk, being the patent maximalist it has always been, chose to focus on upcoming rule changes:

In a meeting of its Administrative Council on 26 and 27 June, the European Patent Office (EPO) approved new Rules of Procedure for its Boards of Appeal (RPBA), which will come into force on 1 January 2020 (“RPBA 2020”). This approval comes after a consultation process, which saw 140 comments made on a first draft and a conference held in Munich in December 2018 to discuss a second draft, amendment of which has led directly to the RBPA that will now come into force. Although the full effect of these rules on practice before the EPO, not only in appeals but probably also in first instance proceedings, will only become clear once these rules have come into effect, it is generally understood that the new rules are likely to be more burdensome on parties than the existing rules and we recommend that cases presently on appeal at the EPO, or which may be the subject of appeals, be reviewed as soon as possible in case potentially beneficial action may be taken before the new rules come into effect.

The EPO’s Boards of Appeal have exclusive jurisdiction to decide upon appeals against so-called first instance decisions handed down by other departments of the EPO, for example decisions in oppositions to granted European patents and decisions refusing European patent applications. The RPBA are binding upon the Boards, “provided that they do not lead to a situation which would be incompatible with the spirit and purpose of the [European Patent] Convention” (Article 23 RPBA, unamended).

[...]

There are still further changes that will come into effect on 1 January 2020, which we have not discussed. These include the possibility for Boards to issue decisions in which the reasons are given in abridged form or partially abridged form; and timescales for Boards to issue decisions. Additionally, if a Board’s rapporteur is asked to do so by the Board’s Chair, (s)he will assess whether or not more than one appeal should be handled together or whether any appeals should be taken out of turn, seemingly for reasons of overall procedural economy.

[...]

Lastly, in view of the future importance of decisions from first instance proceedings on appeal proceedings, not to mention that of the minutes of any first instance Oral Proceedings, these (both decisions and minutes) will need to be considered to a greater extent than before, to minimise the possibility that subject-matter presented on appeal may be regarded as an amendment, which could potentially be inadmissible.

So “inadmissible” again? Does anyone still believe that the rule of law prevails at the EPO? Not even EPO staff believes that anymore. Alluding to the Enlarged Board of Appeal decision G05/83, Tim Fitzgerald and Michael Finney (IP Gateway Patent and Trade Mark Attorneys and Bennett & Philp Lawyers, respectively) have just mentioned Swiss-type patent claims, affirming our observation that the EPO became extremely lenient when it comes to patent quality:

Swiss-type claims were originally approved by the Swiss Patent Office as a mechanism to allow for protection of a new therapeutic use of a known compound (i.e., second or further medical use), given prohibition of claims to methods of medical treatment.[1] The claim format was subsequently accepted at the European Patent Office (EPO) and affirmed in the Enlarged Board of Appeal decision G05/83. In particular, the Enlarged Board held that it was “legitimate in principle” to allow Swiss-type claims where the formulation was for a specified new and inventive therapeutic application, even where the process of manufacture did not differ from known processes using the same active ingredient.

Under the provisions of the Convention on the Grant of European Patents 2000 (EPC 2000), claims in the format “Compound X for use in treating condition Y” (‘European use format’) are construed as use-limited for novelty purposes, and Swiss-type claims are no longer allowable in Europe.[2] Nevertheless, previously issued European patents containing Swiss-type claims have the potential to remain in force until at least 2031.[3] In recent years, there has been substantial judicial assessment of infringement requirements for Swiss-type claims of existing European patents, including in the UK.[4]

The Boards of Appeal of the European Patent Office cannot be viewed as an independent judiciary anymore. It’s not their fault, either. The Office colluding with a supine Administrative Council did this and terrorising the Boards’ judges sure leads to acceptance of whatever the Office wants. Unless one wishes to risk unemployment, demotion, slander and even public mobbing.

“The number of applications is already decreasing, so how can Campinos demonstrate any growth for much longer? Expect layoffs or something similar. It’s the cost of mismanagement.”What has meanwhile emerged (also today) is an upcoming patent case. The UK Supreme Court might soon throw out some more questionable European Patents granted by the EPO (it throws out many such patents these days). There’s one particular patent at stake here. It still exists because of the EPO Boards of Appeal:

Entyvio is an anti-integrin used to treat ulcerative colitis and Crohn’s disease. Entyvio recently outperformed Abbivie’s Humira in a ulcerative colitis phase 3b clinical trial and sales of Entyvio reached $1.37 billion in the nine months to December 2018. Roche claimed that Entyvio infringed its European patent EP 2 007 809. The patent had been maintained in amended form by the EPO Boards of Appeal following an opposition by GSK and Novartis (T1784/15). Takeda denied infringement and brought a revocation action in the UK courts against the patent.

The patent related to a modified antibody structure that reduced the capacity of the antibody to cause unwanted cell death. Particularly, Claim 1 of the patent related to a glycosylated human monoclonal antibody, characterised by the fucose content of its sugar chain: at least 99% fucosylation (as measured by LCMS peptide mass analysis). Although not mentioned in the patent in words, Roche argued that the high level of fucosylation abolished the ability of the antibody to cause cell death (as shown in the Figures of the patent).

Judging by recent rulings from the same court, there’s a good change the patent and the lawsuit will be thrown out (at the highest court in Britain). There’s also this new update on the German Supreme Court (BGH) deciding in relation to the EPC (“The European Patent Office (EPO) has developed a standing practice with regard to the enablement requirements (Art. 83 EPC) with regard to claims…”), but it’s behind a paywall. Many predict — and quite rightly in fact — that in the coming years the gross discrepancy between the EPC and EPO will become visible in courts outside EPOnia, reducing legal certainty and valuations of EP portfolios. The number of applications is already decreasing, so how can Campinos demonstrate any growth for much longer? Expect layoffs or something similar. It’s the cost of mismanagement.

Laughable Patents That Are Used for Frivolous Litigation Are Sometimes Sponsored by Taxpayers

Posted in America, Courtroom, Law, Patents at 3:23 pm by Dr. Roy Schestowitz

The patent bubble harms everyone but litigation firms

Dark bubble

Summary: There are profound issues with the status quo which permits baseless lawsuits to be filed aplenty, sometimes based upon patents that ought not exist in the first place

THE truly ridiculous claims that the CCIA responded to earlier today serve to show that the U.S. Patent and Trademark Office is a source of blackmail and embargo. It’s not hard to see who benefits the most from that. The underlying patents need not even be valid ones (except on the surface).

Here is the latest “Stupid Patent of the Month”. The EFF’s Elliot Harmon comments on laughable US patents (or software patents) granted by the USPTO, only to be reassessed under 35 U.S.C. § 101 if one can afford the challenge. To quote “Someone Is Suing Companies for Using SMS Messages in 2019″: (published earlier this week)

This month’s Stupid Patent of the Month deals with SMS (short messaging service), a technology that goes back to the mid-1980s. Modern-day SMS messages, typically bundled with mobile phone services, have been around since 1992, but one company believes that you should have to pay a licensing fee simply to incorporate them into your app or service.

That company is Anuwave, which recently sued cryptocurrency exchange Coinbase (PDF) for infringement of US Patent 8,295,862. That’s only the most recent suit: Anuwave has sued dozens of companies since 2015 for alleged infringement of the patent—Symantec, Avast, and Bitdefender, just to name a few that have faced lawsuits.

Anuwave’s patent is on a software application using SMS to check for information—for example, for use on a device that can send and receive SMS messages, but doesn’t have an Internet connection. Anuwave alleges that Coinbase infringed the patent by letting users perform tasks like checking their balance via SMS.

“Yet another software patent,” Benjamin Henrion added, was on “an on-screen display that showed which cellular network each call in the call log was associated with,” as per this post about prior art invalidation (not the same as 35 U.S.C. § 101, likely a possibility as well):

In 2016, a major Chinese smartphone manufacturer came to us with a problem. The company was being sued by a competitor, also based in China, for patent infringement, and they would soon have to appear in court to defend themselves. The penalties for patent infringement can potentially be very painful—fines reaching into the millions of dollars, followed by costly licensing fees or, even worse, an injunction prohibiting further use of the patented technology.

We keep coming across these truly laughable patents. Why are these even being granted in the first place? And who to? As it turns out, based on this report, “[f]ive major retailers, including Amazon.com Inc and Walmart Inc, were sued on Tuesday by the University of California over what it called the “existential threat” when foreign manufacturers infringe schools’ patents. [...] It has also asked the U.S. International Trade Commission to open a probe into the retailers’ conduct, saying the retailers have failed to require their suppliers to honor the university’s patents. None of the retailers immediately responded to requests for comment. Filament LED light bulbs are sometimes called “Edison” or “vintage” bulbs because they resemble light bulbs created by Thomas Edison that have glowing filaments visible inside. They became widely available only in the last five years in the United States, where sales in 2019 are expected to top $1 billion, according to court papers.”

“Universities have turned into Patent Trolls,” Benjamin Henrion wrote about patent trolls that leverage these patents on publicly-funded research. First comment, he notes, pointing to this discussion: “But I agree: You get public funding, your research is public domain…”

We said that many times in the past. Taxpayers are funding work which is in turn being turned into patents, passed to patent trolls who then attack those very same taxpayers. It’s like a major scam, a swindle.

07.29.19

The American Patent Microcosm Models Its Lobbying for Software Patents Based on the EPO’s Ongoing Violations of the EPC

Posted in America, Europe, Law, Patents at 2:02 am by Dr. Roy Schestowitz

The “Evil Cows” meme seems appropriate

Evil Cows

Summary: There are worldwide consequences to the EPO’s gross violations of the very rules that govern its existence; the patent zealots who profit from misuse/abuse of the patent system couldn’t care any less (in fact they cheer for that)

THE António Campinos-run European Patent Office (EPO) continues to grant software patents in Europe, apparently more easily than even the U.S. Patent and Trademark Office (USPTO) grants them. So say various law firms, facing the ‘woes’ (to them) of 35 U.S.C. § 101/Alice (SCOTUS).

“Various high-profile sites also regard/consider Watchtroll a “troll” (not just lobby for patent trolls) and perceive the site as too intellectually-dishonest to even link to; but apparently with Team Battistelli and Iancu it’s absolutely fine.”The Federal Circuit, citing SCOTUS, does not care what Andrei Iancu says about 35 U.S.C. § 101. He’s not a judge, but he attacks tribunals such as the Patent Trial and Appeal Board (PTAB) because of inter partes reviews (IPRs). It is very reminiscent of what Battistelli did 5 years ago. PTAB has been besieged (chief judge removed) and together with the litigation lobby — people like David Boundy [1, 2] — Iancu tries to discredit PTAB as a whole. Patently-O linked to this newly-revised paper from AIPLA Quarterly Journal a couple of hours ago. This one too is from Boundy.

“Recently (as recently as a week ago) Watchtroll did a series with the EPO which calls for software patenting and suggests ways to make that easier.”Iancu nowadays does to the rule of law what the EPO did to the EPC. In Watchtroll he and EPO officials have recently given ‘interviews’. For those who don’t know, Watchtroll is as radical as one can get in the patent sphere — it’s the only site we refuse to even link to because of its radical views. It’s attacking judges, politicians and officials who care about science as opposed to patent trolls and litigators. Various high-profile sites also regard/consider Watchtroll a “troll” (not just lobby for patent trolls) and perceive the site as too intellectually-dishonest to even link to; but apparently with Team Battistelli and Iancu it’s absolutely fine.

Recently (as recently as a week ago) Watchtroll did a series with the EPO which calls for software patenting and suggests ways to make that easier. Some hours ago Michael Borella, a proponent of software patents (he doesn’t develop software, he’s in the litigation ‘industry’), wrote about how EPO (mal)practices help the USPTO find excuses to grant abstract patents in defiance of Alice. To quote:

On July 1, the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office (USPTO) designated four of its recent 35 U.S.C. § 101 decisions as informative. Each of these decisions came down after and applied the USPTO’s 2019 Revised Patent Subject Matter Eligibility Guidance. Two resulted in claims being found eligible, and two had the opposite outcome. While not binding on other PTAB panels or examiners, these cases are helpful in understanding how the PTAB is applying the Guidance. In particular, the PTAB appears to be utilizing the Guidance in a fashion that is similar to how the subject matter eligibility inquiry is employed in the European Patent Office and certain other jurisdictions — as consideration of whether the claimed invention is a technical solution to a technical problem.

[...]

There are a few lines of reasoning running through these four cases that are worth pointing out. For the two that were found meet the requirements of § 101, the claims therein are narrowly focused and provide a technical solution to a technical problem. For each, the technical problem and technical solution were described in the specification, and explicitly reflected in the claim language. On the other hand, for the two cases that failed the Alice test, the PTAB specifically stated that the claims were not addressing technical problems, and were broadly drafted.

This suggests that the PTAB may be following a variant of the European view that eligible subject matter must be directed to a technical solution to a technical problem. If so, that is problematic because there is no requirement in U.S. patent law that § 101 be applied so rigidly. In fact, the Federal Circuit found the claims in DDR Holdings v. Hotels.com to be eligible despite their being focused on a technical solution to a business (non-technical) problem.

This just comes to show how connected things are; EPO corruption is actively being exploited in another continent to harm software developers, bypass the courts, and help patent trolls.

“They break the rules and hope that buzzwords can help to obscure their illegal agenda.”As we mentioned the other day, IAM also paid some lip service to this agenda when it painted software patents as "blockchain" patents and hours ago blockchain enthusiasts linked to that; those are fake patents or abstract patents riding hype waves and exploiting officials whose sole objective is granting as many patents as possible. To quote:

South Korea has the highest blockchain patent grant rate, according to London-based law firm Withers & Rogers. Meanwhile, Japan comes at a distant second, intellectual property business media platform IAM reports on July 23.

It was actually the EPO, not the USPTO, which organised a whole event (with an American patent troll on the panel) to advance software patents under the guise of “blockchain”. It had done the same thing with "hey hi" (AI) — just as the EPO did with Watchtroll last week. They break the rules and hope that buzzwords can help to obscure their illegal agenda.

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