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06.16.19

Stuffed/Stacked Panels Sent Back Packing After One-Sided Patent Hearings That Will Convince Nobody, Just Preach to the Choir

Posted in America, Deception, EFF, Law, Patents at 9:08 am by Dr. Roy Schestowitz

“A stacked panel, on the other hand, is like a stacked deck: it is packed with people who, on the face of things, should be neutral, but who are in fact strong supporters of our technology. The key to stacking a panel is being able to choose the moderator. Most conference organizers allow the moderator to select die panel, so if you can pick the moderator, you win. [...] Thus, the “independent” panel ends up telling the audience that our technology beats the others hands down. Get the press to cover this panel, and you’ve got a major win on your hands.”
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Microsoft, internal document [PDF]

TripsSummary: Almost a week ago the ‘world tour’ of patent lobbyists in US Senate finally ended; it was an utterly ridiculous case study in panel stacking and bribery (attempts to buy laws)

THE NEW Director of the U.S. Patent and Trademark Office (USPTO) does not like 35 U.S.C. § 101, but there’s nothing he can do about it. He has already crafted some poor guidelines and it doesn’t change how judges decide cases. To make matters worse, the USPTO got bombarded with very negative comments, perhaps 90% of all the comments, based on some estimates we saw. The patent maximalists try to blame it on the EFF, which means that the EFF is doing something right (rallying supporters who actually support technology rather than litigation).

“The EFF was there, but it was surrounded by dozens of think tanks and lobbyists of litigators.”Sites of patent trolls (sponsored by them) tried hard to amplify this month’s Senate hearings, knowing these hearings were grossly biased, one-sided, and therefore misleading. The EFF was there, but it was surrounded by dozens of think tanks and lobbyists of litigators. It was so profoundly ridiculous that we couldn’t help but respond, repeatedly, even though we said that we’d try focusing on the European Patent Office (EPO) instead.

“Apple is a constant target of high-tech patent assertions, with 58 cases filed against it in the US last year (Lex Machina),” Battistelli‘s friends at IAM write at the moment. But actually, Apple itself is a patent aggressor and bully. Hardly the victim. Taking into account the Eastern District of Texas (EDTX), the EFF has just told this story of trolls whose targets include Apple. To quote:

For years, the Eastern District of Texas (EDTX) has been a magnet for lawsuits filed by patent trolls—companies who make money with patent threats, rather than selling products or services. Technology companies large and small were sued in EDTX every week. We’ve written about how that district’s unfair and irregular procedures made it a haven for patent trolls.

In 2017, the Supreme Court put limits on this venue abuse with its TC Heartland decision. The court ruled that companies can only be sued in a particular venue if they are incorporated there, or have a “regular and established” place of business.

That was great for tech companies that had no connection to EDTX, but it left brick-and-mortar retailers exposed. In February, Apple, a company that has been sued hundreds of times in EDTX, closed its only two stores that were in the district, located in Richardson and Plano. With no stores located in EDTX, Apple will be able to ask for a transfer in any future patent cases.

In the last few days those stores were open, Apple was sued for patent infringement four times, as patent trolls took what is likely their last chance to sue Apple in EDTX.

This month, as part of our Stupid Patent of the Month series, we’re taking a closer look at one of these last-minute lawsuits against Apple. On April 12, the last day the store was open, Apple was sued by LBS Innovations, LLC, a patent-licensing company owned by two New York patent lawyers, Daniel Mitry and Timothy Salmon. Since it was formed in 2011, LBS has sued more than 60 companies, all in the Eastern District of Texas. Those defendants include some companies that make their own technology, like Yahoo, Waze, and Microsoft, but they’re mostly retailers that use software made by others. LBS has sued tire stores, pizza shops, pet-food stores, and many others, all for using internet-based maps and “store location” features. LBS has sued retailers that use software made by Microsoft, others that use Mapquest, some that use Google, as well as those that use the open-source provider OpenStreetMaps.

So it has become a serious problem for Free/Open Source software, even directly. Thankfully, nowadays it’s easier to tackle the underlying patents these trolls leverage. Will any of that change? Not any time soon. We doubt it.

Regardless, the EFF’s Joe Mullin wrote the following some days ago:

xperts Warn Congress: Proposed Changes to Patent Law Would Thwart Innovation

It should be clear now that messing around with Section 101 of the Patent Act is a bad idea. A Senate subcommittee has just finished hearing testimony about a bill that would wreak havoc on the patent system. Dozens of witnesses have testified, including EFF Staff Attorney Alex Moss. Alex’s testimony [PDF] emphasized EFF’s success in protecting individuals and small businesses from threats of meritless patent litigation, thanks to Section 101.

Section 101 is one the most powerful tools patent law provides for defending against patents that never should have been issued in the first place. We’ve written many times about small businesses that were saved because the patents being used to sue them were thrown out under Section 101, especially following the Supreme Court’s Alice v. CLS Bank decision. Now, the Senate IP subcommittee is currently considering a proposal that will eviscerate Section 101, opening the door to more stupid patents, more aggressive patent licensing demands, and more litigation threats from patent trolls.

Three days of testimony has made it clear that we’re far from alone in seeing the problems in this bill. Patents that would fail today’s Section 101 aren’t necessary to promote innovation. We’ve written about how the proposal, by Senators Thom Tillis and Chris Coons, would create a field day for patent trolls with abstract software patents. Here, we’ll take a look at a few of the other potential effects of the proposal, none of them good.

This will hopefully be our last post in this subject (we have already published about half a dozen). Over the past week we’ve kept an eye on Twitter (sadly, a lot of input goes into those social control media sites instead of proper news sites) and here’s what we can report as concisely as possible.

“So it has become a serious problem for Free/Open Source software, even directly.”First of all, the hearings were full of buzzwords. They were, as usual, misusing/misapplying buzzwords like “HEY AI” (AI) to promote fake patents on software. It isn’t just done in Europe but also in the US and in Israel [1, 2] (we mentioned this the other day; that same article has been reposted everywhere they could fling it).

Benjamin Henrion (FFII) quoted and said: “the ILPO adopted the “technical effect” test used in the EU jurisprudence” while there is no European Union involved, only rogue EPO administrative tribunals…”

That’s based on a purely promotional piece, more or less marketing and lobbying by law firms, but it’s still worth entertaining again because we see the same buzzwords brought up in the hearings. As one person put it: “Senate Judiciary Committee on 101: Laurie Hill (Genentech); Genentech pioneers biologics; Under 101/Alice/Mayo, many of these inventions are unpatentable; AI/bioinformatics/biology is the future of medicine but is not patentable.”

“They were, as usual, misusing/misapplying buzzwords like “HEY AI” (AI) to promote fake patents on software.”There it is: “AI”. And again here: “The SCP (Standing Committee on the Law of Patents) at @WIPO has just published a revealing document on AI and Patentability under the title “Background document on patents and emerging technologies”.”

Of course WIPO too participates in the “HEY AI” (AI) hype; that’s just done in order to grant fake patents on maths — no doubt patents that would be rejected if tested by courts.

Henrion also said (having watched these dull hearings): “Till and Coons strongly motivated to restore software patents, citing buzzwords such as “AI”, “quantum computing”, or “5G”…”

He found this tweet: “The AI hype is pervasive and everybody wonders when the bubble will burst, but it is true this technology poses some challenges to patentability…”

It links to this blog post by Leopoldo Belda Soriano. He says “AI” many dozens of times.

“Of course WIPO too participates in the “HEY AI” (AI) hype; that’s just done in order to grant fake patents on maths — no doubt patents that would be rejected if tested by courts.”On the rogue composition of the panels, as expected, much has been said as well. Here’s the list of people. Stacked panels. Very stacked. Patent zealots were (at the time) linking to things like “Final Panelists at Senate 101 Hearing Stress Real-World Effects of Status Quo, Tillis Signals Changes to Draft Text” from Watchtroll’s Eileen McDermott and other blogs like Patently-O.

Henrion took note of IBM’s role in these hearings when he wrote: “Senate hearing: IBM has also used super low quality software patents such as a diff between 2 contact lists to extract money from Groupon [] Qualcomm says they want to patent encoding algos such as OFDM, you could infringe them with a pen and paper https://en.wikipedia.org/wiki/Orthogonal_frequency-division_multiplexing … [] At least americans are pretty clear about software patents, and not this CII mess…”

Henrion carried on speaking about IBM: “Nokia and IBM thanks Tillis and Coons for an “open legislative process”, while the interventions are all stacked by the patent community [] Not inviting small companies nor software developers “reminding those present that they had specifically invited Apple, Google, Microsoft, Oracle and Dell, who declined to come in favor of being represented by industry associations.”

Jan Wildeboer, who will soon be an IBM employee, expressed concerns about policies that are actually supported by IBM: “51 pages on so-called #FRAND licensing of Standard Essential Patents (SEP) by CEN/CENELEC. And they manage to completely avoid the simple question of how such schemes would work for #OpenSource implementations (Hint: it’s not possible IMHO). https://www.cencenelec.eu/news/workshops/Pages/WS-2019-014.aspx …”

“On the rogue composition of the panels, as expected, much has been said as well.”All these patents on maths are highly problematic. They oughtn’t be granted. On went Henrion: “Michael Blankstein of Scientific Games wants to restore software patents for games, and wants US to avoid copying the European Patent Convention, which explicitely bans computer programs, and rules for playing games [] Cyborg patents logic to compress data, wants to see Alice abolished https://cyborg.co/tech/intellectual-property [] John D. Vandenberg says Alice is not a mess, says the proposed bill will restore software patents…”

Alice actually restored order. How is elimination of fake patents not a positive thing? For patent trolls it certainly isn’t… but should they count?

The CCIA’s main patent person soon weighed in as well, followed by Henrion: “The “innovation” is using existing data mining techniques on data sets to determine a correlative relationship. Is that what we want to promote with patents? [] [Spot the disconnect: Tillis/Coons, op-ed: “We have no intention of overruling that central holding of the Myriad decision.” Tillis/Coons, bill: ‘No implicit exceptions to subject matter eligibility shall be used and all cases regarding those exceptions are abrogated.” [] Also, Tillis made it a point to complain that tech didn’t come. Given that the 4-1 stacked panels today on other issues, is it any wonder those companies didn’t want to show up?”

“That’s just political corruption (check who’s bribing Coons for this bill).”The funding of Coons (over a million bucks from lawyers and liars) means that lying is part of the show. As Henrion explained: “Lawyers always win when they own the “patent reform”, law firms sending donations to Senators @ChrisCoons , I guess “Small Businesses” don’t donate enough…”

That’s just political corruption (check who’s bribing Coons for this bill). It’s quite blatant and obvious.

“ACLU popping up a banner against genes patents at the senate hearing on the patent maximalist bill,” Henrion added, “where are the protesters against software patents?”

Here’s a photo of it.

ACLU banner

On the other hand we could also quote some patent maximalists, to whom these stacked hearings were a festival of joy; one of them said: “Senate Judiciary Committee on 101: Sean Reilly (Clearing House); Financial Services Industry has strong interest in strong patent system; 101/Alice has killed low quality patents; Clearing House opposes any changes to status quo.”

“The sponsors called these initiatives of theirs “bipartisan” to give an illusion of widespread consent, but what they really meant was, they got a couple of politicians from two ‘opposing’ (corporate) parties inside their pockets.”Another one quoted “George, Invitae (1:11:00): “As you consider legislative proposals, instead of abrogating 150 years of precedent case law [e.g. fixing 101], I believe the right approach is to start where the law is correctly working…” https://www.judiciary.senate.gov/meetings/the-state-of-patent-eligibility-in-america-part-iii …”

Working for who? Lawyers? Trolls? Science? Anyway, these hearings are now nearly a week behind us. As we’ve said right from the very start, we don’t expect these to change anything. The sponsors called these initiatives of theirs “bipartisan” to give an illusion of widespread consent, but what they really meant was, they got a couple of politicians from two ‘opposing’ (corporate) parties inside their pockets. So much for ‘public’ support…

2019 H1: American Software Patents Are as Worthless as They Were Last Year and Still Susceptible to Invalidation

Posted in America, Law, Patents at 7:36 am by Dr. Roy Schestowitz

End of spring, end of software patents

End of spring

Summary: With a fortnight left before the second half of the year it seems evident that software patents aren’t coming back; the courts have not changed their position at all

THE YEAR 2019 was supposed to be all about the European Patent Office (EPO) and GNU/Linux — the latter topic we’ve neglected in recent years and are gradually catching up with (e.g. concerns about the Code of Conduct). One single aspect we still watch at the USPTO is 35 U.S.C. § 101, which we hope remains in tact for many years to come. Last year and the year before that it became abundantly clear that suing with software patents in the US was a losing bet, especially if appeals were to reach the Federal Circuit. SCOTUS kept declining to even revisit the subject and last year it reaffirmed the status of the Patent Trial and Appeal Board (PTAB) and inter partes reviews (IPRs). Nothing has really changed since then. In our daily links we include stories about cases that support this claim; as we shall show later, even attempts to bypass or change the law will most likely fail. As Janal Kalis put it the other day: “In re Gitlin (Fed. Cir. 2019) The CAFC upheld the PTAB’s holding of patent ineligibility under 101/Alice; The CAFC ignored the USPTO eligibility guidelines: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1461.Opinion.6-13-2019.pdf …”

“The Federal Circuit remains stubborn and strong in the face of smears and strong-arming by patent maximalists.”Rightly so; that’s just more of the usual. Courts refuse to be sort of manipulated if not bullied by the likes of Battistelli and Campinos, who not only lobby for software patents in Europe but also abuse judges who stand in their way.

Eileen McDermott, this year’s new editor of Watchtroll, published “Federal Circuit to University of Minnesota: No State Sovereign Immunity For You” (we omit all links to Watchtroll this year).

Again, as above, that’s just more of the same. Patents cannot be shielded from justice using such ‘scams’. I got threatening letters from facilitators of these 'scams' as recently as last year.

So here we are in the middle of 2019 (two weeks left). The Federal Circuit remains stubborn and strong in the face of smears and strong-arming by patent maximalists. Former chief judges cannot quite change Sharon. Sharon Prost is the Chief United States Circuit Judge. She has done splendid work since taking over, whereas those former judges became little more than lobbyists — a matter we’ve criticised many times before. So did Benjamin Henrion (FFII) and few other people, who can differentiate/tell apart judge-bashing from reasonable things, e.g. highlighting ethical breaches like those which forced removal/resignation of Sharon’s predecessor (IAM wanted him appointed at to top again).

“Patent maximalism is warning in the US.”The way things stand, we see no reason to spend entire weekends covering US patents (as we did in past years). Patent maximalists’ sites such as The National Law Review and JD Supra reflect upon the new status quo; many US patents are presumed invalid and it takes a lot of effort to just keep these “alive” (the term they use, equating them with organisms); these patent law firms/lawyers, who author these pieces, obviously address their clients, trying to persuade them to get fake patents, avoid delays, and then keep these “alive”; they want more money to keep these fakes “alive” (e.g. for blackmail purposes):

Patentees may obtain additional PTA if the USPTO’s calculation of “applicant delay” includes a period of time during which the patentee could have taken “no identifiable effort” to avoid. However, the onus is entirely on the patentee to identify and correct the USPTO’s error.

This is one aspect among several that weaken US patents and at some stage these law firms will need to ‘come clean’ and admit to clients that the patent bubble has burst and their services aren’t worth the high price anymore. The number of US patents granted last year was a decrease compared to the prior year (we’re not sure about the number of applications), which may suggest that the Office too is aware of that. Patent maximalism is waning in the US.

06.15.19

Code of Conduct Explained: Partial Transcript – August 10th, 2018 – Episode 80, The Truth About Southeast Linuxfest

Posted in Free/Libre Software, GNU/Linux, Law at 2:05 am by Dr. Roy Schestowitz

Ask-NoahSummary: “Ask Noah” and the debate on how a ‘Code of Conduct’ is forcibly imposed on events

This a partial transcript from the August 10th, 2018 interview on Ask Noah (Episode 80), with Jeremy Sands entitled, The Truth About Southeast Linuxfest. Below is a partial transcript, lightly edited.

This transcript was prepared by a longtime contributor to the site, who deemed it relevant.

[01:16:10]
JS [Jeremy Sands]: Let’s get to all the things you don’t want to hear about … politics.

The Code of Conduct, it’s been a thing for the last couple of years it’s been pushed pretty aggressively in the open source sphere and other areas totally unrelated to open source as well but the Code of Conduct is kind of a series of guidelines as to what is and isn’t acceptable behavior at an event and what the repercussions are for transgressing those rules et cetera.

Part of the way SELF reorganized after it hit that bankruptcy wall from the party debacle was it’s actually and I’ll get to this in a little bit later it’s not as easy as it might sound to be a 501(c)(3)

“The people pushing Codes of Conduct that have several examples and depending on who it is and their own personal view and there are several out there floating around I want to say one of the bigger ones that’s pushed is the contributor covenant I think I have that right.”[01:17:00]

as a Free Software organization. In fact the IRS is deeply, deeply distrustful of 501(c)(3)s that are Free Software filings. Not my words, the words of Cat Almon [sp?] and I’ll get to that in detail later. But essentially as part of reorganizing, it became abundantly clear that since I was already self-employed, it was dramatically, radically cheaper. like orders of magnitude cheaper, for SELF to simply be a quote-unquote for-profit tucked under my existing LLC that I already knew and already operate and already have to do books for. But deliberately operated in such a way where profit is not part of the equation. I like to say, for profit but deliberately bad at making profit. Because as it turns out because of the way the IRS deals with 501(c)(3)s from Free Software filings, it’s way cheaper to be for profit and deliberately bad at making profit than it is to be non-profit and really, really good at not making profit. Government. So my first reaction, so that was basically my way of saying I have some skin in in the game here. Like if something goes horribly wrong that lands on me. So my first reaction wasn’t well let me read this over my first reaction was I’m going to hand this to a lawyer, and so I did. The people pushing Codes of Conduct that have several examples and depending on who it is and their own personal view and there are several out there floating around I want to say one of the bigger ones that’s pushed is the contributor covenant I think I have that right. I think that was the one I took and had a lawyer review. His words to me were if I were a judge I would ask you just who the hell you thought you were trying to rewrite the law for your little fiefdom and just where you obtained the wisdom of how things should be run around here greater than the collective wisdom of the electorate and the officials that represent them. I didn’t really have a good answer for that. His advice was to be an arbitrator and to resist the temptation to be a judge, and a jury and executioner because when you do that you have essentially entered yourself into the legal fray. He said what you really want to be is a peace broker. You want to resolve the conflict without a determination of guilt either way. Even if it seems painfully obvious who is guilty. You just want to achieve peace. If you can’t do that his recommendation for the safest legal course was simply to eject all parties involved from the event. He said I know as I say that that’s a terrible thing because statistically speaking at least half the people you just ejected were totally innocent. That’s a terrible thing to have to do. But it’s also, legally speaking, from my point of view as a lawyer advising you as counsel, the wise thing to do. He also said you’re running around running an event, how much of your mental capacity can you really bring to bear to slow things down and seriously consider everything unfolding. Not a bad point you’ve got there. My response to the Code of Conduct and it being pushed upon me was to simply ignore it. I ignored it, didn’t put anything up there but eventually the shouts become loud enough that you have to do something. Because it becomes something if you do not have one you will be asked repeatedly about it. And eventually, the act of answering those questions becomes so tedious that you might as well have a policy even if your policy is we don’t have a policy. Because in the absence people are just going to ask questions and insert their own fears into that vacuum. For not having, I think our first official code of conduct policy was kind of a pithy one liner it was kind of a, I won’t, I’ll get it wrong, you can go, I’m sure it’s on archive.org somewhere , but it was more or less don’t be a butthead. If I want to paraphrase it that was more or less our code of conduct.

“My response to the Code of Conduct and it being pushed upon me was to simply ignore it. I ignored it, didn’t put anything up there but eventually the shouts become loud enough that you have to do something.”NC: Then if you need help learning what a butthead is then if you think something might be in question of concern just don’t do that thing and you’re probably pretty safe.

JS: Yeah, so, unbelievably I was actually threatened in private at other events for this for not having a code of conduct that some people deemed acceptable. And not from random people the very first person to threaten me has been a speaker at SELF I think every year and because I accept talks blindly they keep getting talks because I’m not holding that against them because I don’t know who they are when I select the talks. So if nothing else you can’t accuse me of bias in selecting speakers given that I keep selecting a speaker who threatened me. There’s the downside by the way of selecting blind. But because of this when I go to other events to promote SELF or to speak I simply do not have private conversations with strangers any more even people who I somewhat know I will keep other people around me to be witnesses now and it’s terribly tragic that I even have to say that and it’s even more tragic that if you go looking around online I am not the only one who does that any more and that’s even more sad. Given that I got a nasty backlash simply for not having a Code of Conduct that a lawyer told me you would be a fool to have, I started asking why are people pushing this what’s the real message here? And if you start looking around online Googling for Codes of Conduct and insert your own pejorative here, cons, downsides, alternative views, it’s hard not to eventually stumble into a guy named Paul M Jones. He is apparently somewhat infamous as someone who is a vociferous advocate against some Codes of Conduct. If you want to read up about him he is in the PHP-FIG framework interoperability group I think I got that right

“Yeah, so, unbelievably I was actually threatened in private at other events for this for not having a code of conduct that some people deemed acceptable.”NC: We’ve actually had Paul on the show and interviewed him about his views on the Code of Conduct and part of his presentation and all that and we’ll have that linked in the show notes as well.

[01:24:00]

JS: So if you want to read up on some of that nasty past that made him infamous just go read the PHP-FIG it’s all there it’s a mailing list. But my personal take after having skimmed through it was infantile, petty, and a poo-flinging fest that is how I would describe a lot of the just childish battles that occurred over that. So I got put into contact with him and to get his take and given how he has this reputation you might be expecting the worst but not only was he not Hitler and I say that only somewhat tongue in cheek given the nastiness of our political discourse these days but I actually found him to be reasonable and measured and well spoken and that the next year when I was selecting talks there was one on the darker side of the Code of Conduct and blindly I selected it and it was Paul who submitted it. So he gave a talk at SELF on Codes of Conduct and some of the downsides of some of those Codes of Conduct. Boy if you thought it was political before simply by not having an acceptable Code of Conduct the act of having someone speak out against the concept of a Code of Conduct in some cases caused enormous backlash. The fact that it was Paul M Jones giving that talk ramped it up a couple notches. So just for having him speak his personal opinion at SELF there was a targeted smear campaign on social media directly going after SELF’s biggest sponsors telling them to no longer support our event. And it worked. They successfully chased off multiple sponsors. I know of at least two for sure because they they contacted me disagreeing with the decision of their own superiors to no longer support SELF. One of which came back to me with a demand, not their own, but of their superiors, that for them to sponsor the next year, one third of all speakers would have to be female. How can I possibly guarantee you one third of anything, gender, color, nationality, religion, whatever shallow collectivist thing you’re fixated on when I select the talks blindly based upon merit. I can’t even tell you whether or not I can qualify for your demand until after I’ve selected talks because I don’t even know who I’m selecting. In the words of the person who made those demands to me

[01:27:00]

“Given that I got a nasty backlash simply for not having a Code of Conduct that a lawyer told me you would be a fool to have, I started asking why are people pushing this what’s the real message here?”this doesn’t seem to do anything more than merely check a box. That was their own words to me, when delivering these demands. And everyone immediately asked me in private after they hear this talk who is it what’s the company could you tell me? I don’t want to tell you because I don’t want to attract the poo-flinging the other direction at the company. Because it isn’t necessarily the views of the company. It might just be one person in a position of power or as I like to say a cat bird in HR or in marketing who has purchase authority power and they’re using those levers of power to achieve their own means. And to kind of prove this point of how counter-productive it would be to attack the company that made the demand more than a dozen employees from that company that very year decided to come to SELF on their own dime as supporting attendees on their own dime and enjoy the event freely as much as they could without their own company’s backing. So the company formally wasn’t there. All the employees were still there. For me what was insightful was the one time when the rubber really met the road. when it comes to Codes of Conduct. And there are no winners in this story. There are only losers. I had an employee of a sponsor who was at the event it was at the Sheraton so it is in the more recent history of the event but I can’t name off the top of my head which year. This person had diversity in their official job title and they approached me, at SELF, face to face. to say that if our even did not have

[01:29:00]

“So somebody is insulted and this person who was previously so concerned about the safety and well-being of these attendees and your lack of concern for their safety is more concerned about the PR ramifications than the actual event or the actual safety?”an acceptable Code of Conduct to their standards and at the time we had already put in our pithy don’t be a butthead equivalent Code of Conduct. He said that is not acceptable to our standards. And if you do not have one that is acceptable to our standards and he offered again the contributor covenant, the one the lawyer said don’t do that that, they would not be back as a sponsor. And that would be a permanent decision until we acquiesced to that demand. The very next day one of their employees put a business card down the shirt of a female attendee on his way out of the venue. I had an eye witness report from another sponsor and not just any random person but a really smart one a person who is a rising FOSS celebrity who goes on major national shows to talk about FOSS. And I had an actual physical business card in my hand. So with the smoking gun of the business card and an eye witness report I went to be the ax man that the job required of me at the time. I went and pulled in the gentleman with diversity in his official title. I informed him of what happened and I informed him that that person was banned from the event until further notice and specifically by that I mean indefinitely and what was the first thing to spout out of his mouth in response? It wasn’t how is she, how can we help, how can we resolve this. The first response was quote and I quote, “why did it have to be us?”

NC: So somebody is insulted and this person who was previously so concerned about the safety and well-being of these attendees and your lack of concern for their safety is more concerned about the PR ramifications than the actual event or the actual safety?

JS: Shocking. Somebody who claims to care about others really only cares about themselves. Sounds like they would make a great politician. Saddening. Yeah. That response says more than I probably ever could. Now I ended with a bit of a wry, “that didn’t take a Code of Conduct, did it?”

NC: So you said this to the employee?

JS: That was my last word as he left the building. I had him turn around and said that didn’t take a Code of Conduct, did it?

NC: Fantastic. Absolutely fantastic.

JS. He had no response to that. And I was absolutely thrilled to spike the football in his face like that. Because I felt he was duplicitous in the nature of his actions versus his proclaimed beliefs. I enjoyed spiking the football there immensely.

[01:32:00]

Until not even an hour later when I realized I just banned the wrong employee. The business card that was put down the female attendee’s shirt was not the person who did it. It was a co-worker of that person.

NC: It still does not excuse his response though.

JS: Accurate. Very accurate. On top of that this means that the eye witness report from that very intelligent very amazing person was wrong. And they had no explanation for that. And as it turns out this is something any judge or cop could tell you eye witness reports are notoriously unreliable and inaccurate. This is why by the way it is a good idea to put cameras on cops because even trained police officers have a hard time getting eye witness reports correct.

NC: Sure.

[01:33:00]

JS: Insert delete expletive with many, many exclamation points here. fsck let’s to a file system check

NC: Ok. I think everybody gets that joke.

JS: So that is one of the greatest mistakes I’ve ever made. Because I nearly destroyed an innocent person’s career and the lawyer was as right as ever. I was too busy managing an event. I wanted the problem to go away. I didn’t slow down and think skeptically every step of the way and try to be an arbitrator, not a judge. I got swept away in the moment and I nearly ruined that man’s career. If it wasn’t the woman who had the card put down her shirt coming back and saying, “I don’t think that’s him. Could you show me photos?” And then by this time corporate HR is involved from the company in question. When corporate HR is involved you know you’ve entered a new level of Hades and thankfully we eventually got it right but I can’t imagine the horror that that person must have lived in for a day or so while they were in limbo being summarily lynched while being innocent. So yeah. Points to the lawyer and no points to me for following his advice I won’t make the same mistake twice though. So another thing that comes along with this weird politicalized Code of Conduct thing and again I despise labels because people remove nuance and insert group think when you apply a label but speaking as a generalization because I think as a generalization it does apply. The kind of person who would push these contributor covenant style code of conduct would also be a person who would tend to be more likely to self describe themselves as say a social justice warrior or a progressive. So I’m not saying that agenda is right or wrong but I am saying it is an agenda. The bizarreness is the dichotomy of response you get along these lines. So, for example, the Geek Feminism Wiki started an article tracking females speakers in FOSS events and praising the SouthEast LinuxFest for having so many.

[01:36:00]

“So, for example, the Geek Feminism Wiki started an article tracking females speakers in FOSS events and praising the SouthEast LinuxFest for having so many.”One of the members who was a speaker at SELF that year asked us what we did to have so many female speakers. They were quite shocked when we replied “nothing”. We, ok, almost nothing. Technically we did invite / voluntold Wendy Seltzer to come back and talk. She’s an amazing person. She works with the EFF She may still be on the board of directors for Tor at the time she was and because she’s not as thoroughly embedded in the Linux community as others because for her it is a legal thing, she’s a legal mind not a Linux mind. And that’s where she’s coming into Linux space from, from the law side. And so she’s not normally tapped into this community so we reached out because she might not normally keep herself in this sort of community but we want to hear what she has to say. So that was the only thing we did. We solicited her specific talk. That was it. Now this may have contributed in some part

[01:37:00]

to other FOSS events in the immediacy. Like in the immediate year after that thing went up some other community based events went all out like all female keynotes, all female talk days, all female talk tracks. Like it started becoming a thing within some subsets of the FOSS community events. As though this, I like to call them genitalia based bragging rights. And yes I deliberately say that to be demeaning because I just don’t see the relevance of genitalia to content. Maybe that’s just me. Put more blatantly. At SELF, at least while I’m selecting speakers, genitalia is irrelevant, not part of the form to submit a talk, and if you do submit it, it’s probably in a field which I’ve truncated when I select the talks so I can select them blindly. More into the dichotomy stuff. I was asked by a prominent Google employee, at SELF, how we were able to have so many black people at SELF. Now they said African-American but there’s people in South Africa who apply that label but that label does not fit in the context you are expecting it to be. White’s not a bad term. Black shouldn’t be a bad term either. It’s a simple adjective. So they wanted to know how I quote-unquote did it having so many black people at self and to me this was a segfault. The perspective was so foreign, it was a thought I had literally never even entertained, not even anything tangentially related entertained. For me the thought was, promote the event as best I can, and as wide as I can and whoever shows up shows up. So I looked around and if anything I thought the number of black people there would be less than I would expect from a random sampling for the area. But whatever. I guess I’ll try to help you. So I asked him, well where are you holding the events that you’re holding that you’re not getting this many black people to attend. And the response was “Portland”.

NC: Well, sure, what was your response?

JS: Have you considered holding your event somewhere where black people actually live?

NC: That’s fantastic.

JS: So I went ahead and pulled up the most recent census data. Black people are approximately 35% of metropolitan Charlotte, North Carolina. They are 6% of metropolitan Portland, Oregon. Diversity indeed. I believe Chris Rock had a joke to this effect about Minnesota, Prince, and Kirby Puckett. And I’m going to have a

[01:40:00]

moment of silence here for my broken heart from Kirby Puckett beating the Braves in game seven of the world series. And if you’re looking at the slide deck, I’ve included a link to the direct current comparison between those two metropolitan area’s ethnicity breakdown. Here’s my real life code of conduct conclusions. The rules aren’t nearly as important as the people in charge of enforcing them. Bad behavior is already illegal. Serious transgressions should be met with legal responses. Do the people in charge have the wisdom to avoid being judge and or jury and or executioner. Will you keep your wits about you under intense pressure even when as an organizer you are on day two, day two and a half, maybe day three with little to no sleep. Will you pursue what is right and fair

[01:41:00]

“It’s weird, but you get a large sample size eventually weird things happen.”as event organizer and not what is merely expeditious to make the problem go away. That was a lot of negative that I just unloaded over the previous fifteen minutes or so. So I don’t want you to get the wrong conclusion. Let’s put this in its proper statistical context. Based upon my own data itself you’re approximately five to eight times more likely not to make it to SELF because of a serious car wreck or a serious plane issue, plane maintenance, a missed connection, whatever, than you are to be harassed. And the car one is kind of unreal. We have had at least one or two speakers or staff members either not make it or make it late because of an auto wreck every year. And this past year one of our core team actually had their car totaled on the way to SELF with a carload of SELF equipment and that by the way was part of what set everything organizationally back because that was a carload of equipment we needed. And that set us back almost half to two thirds of a day. You’d be surprised. If you’re worried about your safety at SELF for heaven’s sake drive slow and look around when you’re driving. Because that’s the thing that’s going to get you. Ok. And now for something completely different. And I would like to say that I hope this is the first, last, and only time that I have to be political in the context of this event and organizing it. But I do hope that other event organizers found that valuable. Because that is the kind of information I tried to pull out of other organizers to find out what had happened to them how they had dealt with it what policies worked

[01:43:00]

what policies didn’t and if you try to broach that subject with other event organizers they clam right up. It’s information that does not flow as freely as you might expect from a Free Software group and what I’d like to say is people say that’s terrible the particular woman who had the business card shoved down her shirt, any sufficiently large sample size eventually yields highly implausible results. It’s the whole sampling problem. It’s kind of how it only takes something like 15 to 20 people in a room before two people have the same birthday. It’s weird, but you get a large sample size eventually weird things happen.

Jeremy Sands and his experience may relate to what we published a couple of days ago and earlier this year.

06.01.19

Senate Hearings on 35 U.S.C. § 101 Will Almost Certainly Fail to Bring Back Software Patents

Posted in America, Law, Patents at 12:52 pm by Dr. Roy Schestowitz

‘Scholarly’ work, funded by billionaires with personal agenda

Koch gift for SMU

SMU's David O. Taylor, Associate Professor of Law at SMU Dedman School of Law

Summary: The push for software patents will carry on, financed by law firms craving a lot of lawsuits; Industry-funded scholars, especially oil-funded ones, aren’t likely to sway the outcome and persuade politicians; but they are going to try anyway

THE state of 35 U.S.C. § 101 is largely unshaken. Courts continue to cite it (we’ve provided many new examples in our daily links lately) in order to squash software patents. The U.S. Patent and Trademark Office (USPTO) may not be too keen on 35 U.S.C. § 101, especially the lawyers at the Office, but this disdain and arrogance have no impact on judges. They carry on doing their job.

“We could go on and on talking about the people in the panels, but let’s wait and see what they say, then remark on pertinent points rather than affiliations of the messengers alone.”Gene Quinn of Watchtroll has come back for a post; he is still delusional or dishonest (the latter is intentional). “The One Word that Will Help Restore the U.S. Patent System,” he writes in his latest inane headline. The patent system still exists and works, it’s just saner (the courts). Parasites dislike that. That’s where Quinn derives income from. Daniel Hanson’s “Distinguishing Colloquial Obviousness and Legal Obviousness” (also published in Watchtroll just before the weekend) is more of the same; they just don’t like any form of challenge to patents. They want a lawless system with no assessment at a court (i.e. justice). They want a “wild west” of patent trolls. Eileen McDermott of Watchtroll has meanwhile posted a piece titled “The Lineup: Who We’ll Hear from in the First Two Senate Hearings on Section 101 Reform” (this was mentioned by Patently-O and others as well, cited in our last batch of daily links).

Well, Koch-funded 'scholars' included in the panels would mean that the Kochs are indirectly buying laws to suit their agenda, not to mention funding for Senators Tillis and Coons and the lobbying front of David Kappos, who is also there in the panels. Professor Mark Lemley will be there also. He is outspoken and openly against patent trolls. “RPX data shows that practicing entity patent lawsuits have stayed pretty stable, with the decline in patent litigation coming almost exclusively from patent trolls,” wrote Professor Lemley last week. He too is tracking such numbers (independently from RPX) and we have mentioned him here rather habitually (e.g. [1, 2]). What we expect to happen in this Senate hearings about 35 U.S.C. § 101 is more of the same; people funded by law firms will pretend that the sky is falling, whereas others will describe the status quo as favourable to innovation, as opposed to litigation. We could go on and on talking about the people in the panels, but let’s wait and see what they say, then remark on pertinent points rather than affiliations of the messengers alone.

The CCIA is meanwhile highlighting a patent troll that went bankrupt (Shipping and Transit); the person behind it has “had other NPEs he could fall back on,” the CCIA claims. “Sirianni, while conducting Shipping and Transit’s campaign, was also conducting a similar litigation campaign under the name Eclipse IP…”

Here are some details:

Remember Shipping and Transit? The notorious NPE went bankrupt last year after its campaign against everyone from transit app developers to city transit authorities hit a few potholes. Following a decade-long licensing and litigation campaign leveraging the high cost of patent litigation, including one year in which it filed more patent suits than anyone else, a series of attorney’s fee awards from successful defendants shut Shipping and Transit down.

While this might be viewed as a setback for Peter Sirianni, one of Shipping and Transit’s co-owners, he had other NPEs he could fall back on. Sirianni, while conducting Shipping and Transit’s campaign, was also conducting a similar litigation campaign under the name Eclipse IP, now known as Electronic Communications Technologies LLC (ECT). (Eclipse’s patents are prosecuted and ‘invented’ by the same attorney that prosecuted Shipping and Transit’s patents, another tight tie between the two entities.) A total of 213 cases were filed by Eclipse between 2011 and 2018, making it another prolific filer.

But after a recent settlement, Eclipse has agreed not to sue any California entity on any IP it owns as of the settlement date.

Shipping and Transit was covered here before; at the moment these kinds of patents are pretty much worthless and the last time we mentioned these patents of Shipping and Transit they were sold for nothing. We don’t really expect these patents to ever regain any value. Neither does Shipping and Transit.

Software patents, at least American ones, seem like more of a liability than an asset (in our next daily links we’re going to include this 35 U.S.C. § 285 case, wherein a patent was rendered invalid under 35 U.S.C. § 101 and the claimant pressured to pay the defendant’s legal fees).

Meanwhile there’s this new post from James Korenchan, Michael Anderson, and Yukio Oishi. Courts in the US and in Japan are both sceptical of software patents, but the patent offices (USPTO and JPO) grant such patents anyway, under some shallow constraints/conditions. To quote:

To call the recent history of patent eligibility in the U.S. tumultuous might be an understatement. The U.S. Patent and Trademark Office (USPTO) and the courts have wrestled for years over how to guide examination of claims under § 101. Court cases — particularly, those from the Federal Circuit — have provided differently-nuanced interpretations as to what constitutes an abstract idea and what elevates a claim to the realm of “significantly more.” The USPTO typically then follows suit by periodically updating its subject matter eligibility guidance. However, in practice, the manner in which examiners apply the case law of the courts and the guidance issued by the USPTO can be a mixed bag, often to the chagrin of practitioners.

Under the most recent subject matter eligibility guidance issued by the USPTO on January 7, 2019, the USPTO attempted to clarify part two of the Alice Corp. test.[4] According to the guidance, “a claim is not ‘directed to’ a judicial exception if the judicial exception is integrated into a practical application of that exception.” Thus, the guidance provides clarification to the previous test on step two of the Alice Corp. test as to what constitutes “significantly more” than the judicial exception.

[...]

When claims are deemed “software-related,” the determination takes a slightly different form and involves a two-part inquiry.[11] First, the examiner evaluates the claimed invention from a non-software focused standpoint. In other words, the patent eligibility of a software-related invention evaluated using this standpoint should not rest on the fact that the invention involves software. Thus, the examiner first determines whether the invention stands on its own, and is patent eligible notwithstanding the software aspect. But if the examiner is unable to make this first determination, the examiner then evaluates the invention with a heavier emphasis on the software aspects of the claim.

From a non-software focused standpoint, a software-related invention is likely to be found to be patent-eligible when it involves (i) “concretely performing control of an apparatus (e.g., an engine, a washing machine, a disk drive), or processing with respect to the control” or (ii) concretely performing information processing based on the technical properties of an object (e.g., physical, chemical, or electrical properties).[12] Interestingly, even claims that involve “software for causing a computer to execute a procedure of a method,” or “a computer or system for executing such a procedure” are often found to be patent eligible in Japan without further inquiry.[13]

[...]

For software-related claims, the Japanese standard as a whole, and particularly the software-focused standard, allows for a certain type of patent protection in Japan that is not currently available in the U.S.: program claims. A “program claim” is distinct from a computer readable medium (CRM) claim and was introduced into Japan Patent Law in 2002 to address the issue that a CRM claim does not cover a situation where a software program is provided to a user, not by a CRM such as a CD-ROM, but rather by the user downloading the software program over a network.[16] In the JPO examination handbook, the JPO provides the following example forms that program claims can take, which U.S. practitioners will certainly note as being quite different from the scope of what is patent eligible in the U.S.[17]

[...]

A clear understanding of Japanese patent law in the areas of software and business methods can help practitioners avoid missteps and better represent companies who have or seek to have patent protection in Japan. For example, even when U.S. patentees pursue software-related claims in Japan, they often attempt to do so with CRM-style claims and do not consider whether they should file program claims. In fact, due to how unfavorably U.S. patent law is on business methods, and how risky U.S. patent law can be on software claims, U.S. patentees often forego pursuing patent protection in these areas altogether. Thus, U.S. practitioners and patent applicants alike should be aware of all the particular advantages of Japanese patent law in these areas and reach out to a Japanese associate if any other advice is needed. After all, it could be worthwhile for both parties.

Years ago we wrote about the demise of software patents in Japan, a courtry heavily influenced by the US after the Second World War. We have since then focused a lot more on the European Patent Office (EPO), seeing that it was not only granting software patents in Europe but also lobbying other countries/continents to adopt such patents. It still does it under the leadership of António Campinos, who comes from EU bureaucracies and ought to know better (than to violate the EPC).

05.30.19

Proposed Legislation From Senators Tom Tillis and Chris Coons Will Perish as Usual, Just Like UPC in Europe

Posted in America, EFF, Europe, Law, Patents at 8:36 am by Dr. Roy Schestowitz

The United States has its own ‘Team UPC’ and the likes of Battistelli at the EPO

Coons bribed

Summary: A great deal of attention is being paid to a bill that’s extremely unlikely to result in anything because it’s very unpopular, even among sponsors of Congress (not just the public at large)

AT THE START of the year the EFF warned that software patents would make a "comeback" because the Trump-appointed Director of the U.S. Patent and Trademark Office (USPTO) wanted to water down 35 U.S.C. § 101. As we explained at the time, this would have no bearing on actual courts. Since then the courts have indeed lashed out. So the threat was clearly overhyped, as we’ve explained many times since. Let’s look at the data. Have software patents made a comeback? Not really, not in courts anyway. SCOTUS isn’t revisiting the subject (even when asked), the Federal Circuit applies Alice routinely, and the Patent Trial and Appeal Board (PTAB) is still doing its job as shown by inter partes reviews (IPRs) figures, which are publicly accessible. Patent maximalists thus started focusing on ex parte reexaminations, also part of America Invents Act (AIA) but inherently different from IPRs (which are a lot more powerful). We’ve seen some misleading posts from Anticipat (and have not linked to them) and yesterday Janal Kalis wrote: “The PTAB Affirmed an Examiner’s 101 Rejection of Claims in a Patent Application Owned by Stanford Univ. for Analyzing Digital Medical Records” (such patents still routinely perish, but the likes of Kalis typically ignore the evidence and focus on reversal of decisions when software patents are allowed, not rejected).

Alex Moss (EFF) has just published something titled “A Terrible Patent Bill is On the Way” and here’s what it said (déjà vu as it happened in prior years):

Recently, we reported on the problems with a proposal from Senators Coons and Tillis to rewrite Section 101 of the Patent Act. Now, those senators have released a draft bill of changes they want to make. It’s not any better.

Section 101 prevents monopolies on basic research tools that nobody could have invented. That protects developers, start-ups, and makers of all kinds, especially in software-based fields. The proposal by Tillis and Coons will seriously weaken Section 101, leaving makers vulnerable to patent trolls, and other abusers of the patent system.

The draft legislation does remove a few aspects of the earlier proposal, but it has the exact same effect: it will erase more than a century of Section 101 case law—including the recent decision in Alice v. CLS Bank—and take away courts’ power to restore them.

It’s yet another post from the EFF in which the threat is, in our assessment, overblown somewhat. They merely give more visibility to something which doesn’t deserve it (and wouldn’t have earned it otherwise). Well, we wrote about it last week (after the CCIA too had written about this); it is pushed by a few bribed politicians (paid by the litigation ‘industry’, ‘bought’ for these laws), not “Congress” as Mike Masnick (TechDirt founder) puts it in “Congress Now Pushing ‘Bring Back The Patent Trolls’ Bill”. They merely had a little meeting, whereupon patent maximalists pretended it was some major news or development. To quote Masnick:

Back in April we warned about a truly terrible plan by some in Congress to obliterate the last few years of the Supreme Court fixing our broken patent system, and flinging the doors wide open to patenting genes, medical diagnostics, and software (all of which the Supreme Court has mostly rejected as abusive and monopolizing nature). One had hoped that after having explained to them how disastrous such a bill would be, that its backers might think carefully in crafting the final bill. Instead, Senators Tom Tillis and Chris Coons, along with Reps. Hank Johnson and Steve Sivers instead decided to double down with a bill that would massively stifle innovation.

There are some decent comments on there, e.g. from “That Anonymous Coward”:

Who wants to help me get a patent shoved through on running for an elected office & accepting money to pass laws favorable to those paying me??
Considering what other patent trolls have earned we could bankrupt congress.

At the start of the year we insisted that this idiocy would not pose a great threat because courts just carry on as usual, based on caselaw (not Congress), and these bills (as above) are nothing new. We don’t even want to give them attention/visibility anymore; they’re going to perish on their own.

05.26.19

Much Ado About Senators Tillis and Coons (Who Failed in 2017 and in 2018)

Posted in America, Deception, Law, Patents at 12:21 am by Dr. Roy Schestowitz

Politicians ‘bought’ by the “legal industry” work for the “legal industry” (as if law is up for sale, a form of bribery and overt corruption)

Coons bribed
It’s not bribery if they call it “campaign contributions” (right?)

Summary: The patent microcosm is attempting to buy laws that supersede the US Supreme Court (SCOTUS) and remove/weaken U.S.C. § 101 as well as PTAB while their blogs and sponsored ‘articles’ serve as lobbying vehicles

AT the end of last year and again at the start of this year we repeatedly stated we’d cover American patent affairs a lot less. Especially pertinent court cases, as opposed to affairs and policies at the U.S. Patent and Trademark Office (USPTO). We still put many news references about US patent cases in our daily links, usually without further remarks (most show 35 U.S.C. § 101 being applied to squash bogus US patents; the Federal Circuit cites Alice/SCOTUS).

“Without a doubt software patents are a bad idea; just ask actual software professionals. Ask them!”We don’t wish to dwell on or spend too much time covering the latest nonsense from Senators Tillis and Coons. We thought they had disappeared already (as they typically do when this subject comes up), but the patent microcosm refuses to let go. It’s treating old news as ‘new’, so let’s just do a quick rebuttal.

Without a doubt software patents are a bad idea; just ask actual software professionals. Ask them! Who wants these patents? Typically lawyers. So-called ‘patent professionals’. Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) are a good idea because they help squash software patents that ought not exist. Thus, it’s hardly surprising (it’s very much predictable) that the so-called ‘patent professionals’ want PTAB obliterated along with 35 U.S.C. § 101. Follow the money; it’s about litigation dollars.

As someone put it the other day [1, 2]: “You don’t like patents. That’s a fine position to take. OSS is based entirely on patent law. If you want free software, you are free to continue wanting that. It’s a good thing, too. But [...] companies can be sued for any software they produce if the copy and patent rights are not indemnified. Starting about 1980, when US laws changed, the world of open source (not free) software has created donations to ensure that users of patents and copyright could not be sued…”

At the moment, with Alice/35 U.S.C. § 101 in place, the risk is greatly reduced. This also means that lawyers are becoming ever more obsolete. We don’t need them and we can spent more time coding. We sleep better. We share code.

Lawyers, suffice to say, aren’t happy. They think they’re entitled to the job of preying on our trade. They want their “share” (legal bills) — in essence a tax on abstract things.

Here we see Michael Borella of the litigation lobby eager to bring software patents back. Eileen McDermott of Watchtroll says “Draft Text of Proposed New Section 101 Reflects Patent Owner [sic] Input” (Watchtroll wrote a few more posts to that effect before the weekend).

Borella’s blog colleague, Kevin E. Noonan, is also having a go at it (with a sponsored copy at JD Supra for extra audience). So this pack of patent maximalists is currently very busy trying to give visibility to bad bills that have failed for years (to bring software patents back to the US).

What these patent extremists call “Bipartisan” (e.g. here, a site advocating patents on life) isn’t really that; it just has two politicians from two parties. They’re involved in particular interests/sectors, not party tribalism. It’s an attack waged by the litigation ‘industry’ against everyone else. That has nothing to do with political parties.

One can certainly expect Janal Kalis to amplify all the above. Mr. Kalis cites anything he can get his hands on to prop up the ludicrous bills. But don’t expect Kalis to cite those whom he doesn’t agree with (he even blocked me in Twitter, where I never block anyone). Here we have CCIA’s Josh Landau with a rebuttal titled “Senators Tillis and Coons Draft Fundamentally Flawed § 101 Legislation” (pretty long). To quote:

Today, staff from Senators Tillis and Coons will sit in a room with a group of stakeholders—primarily patent lawyers and lawyers from the pharmaceutical industry—and discuss their recently released draft for a § 101 bill.

That draft bill reflects little of the careful input that has been provided to the Senators over the course of the past five months, including hundreds of pages of data and suggestions explaining the concerns that the proposed legislation creates.

Instead, they’ve produced a bill that would eliminate hundreds of years of case law and replace it with untested, unclear language that will fail to provide crucial protections against vague, abusive patents. At the same time, the draft legislation would create completely new uncertainties about what is and is not patentable—the exact opposite of the predictability that Senator Tillis claims to want to promote.

So the only ‘news’ is that they decided to “sit in a room with a group of stakeholders,” that’s all. Benjamin Henrion apparently panicked about it and wrote: “US law proposal to restore software patents, stacked “meetings” with no software developer on board “stakeholder meetings on the Hill (next June 4th, 5th and 11th)…” (citing, via this tweet, an ‘article’ from Scott McKeown, basically preaching from a law firm). Any substance to it? Let’s see. To quote: “U.S. Senators Thom Tillis (R-NC) and Chris Coons (D-DE), Chair and Ranking Member of the Senate Judiciary Subcommittee on Intellectual Property, and Representatvie Doug Collins (R-GA-9), Ranking Member of the House Judiciary Committee, Hank Johnson (D-GA-4), Chairman of the House Judiciary Subommittee on Intellectual Property and the Courts, and Steve Stivers (R-OH-15) released a bipartisan, bicameral draft bill that would reform Section 101 of the Patent Act.”

“The patent microcosm can go on and on speaking about their new ‘cult leader’ Coons and misuse words like “bipartisan”; but what they’re proposing is extremely unpopular and will likely vanish later this summer, just like it did last year and the year before that.”This is, again (as before), just a handful of people. To pass a bill they’d need hundreds of politicians. Prof. Dennis Crouch wrote: “The proposal also suggests further language be added to construe the statute “in favor of eligibility” and to expressly eliminate the non-statutory exceptions to eligibility.”

But why would anybody support this? How is this different from what Coons attempted in 2017 and then again in 2018 (in vain)? That’s just a broken old record, trying again what has repeatedly failed. The only ‘news’ here is that a bunch of people gathered in a room and spoke the usual nonsense about “Patent Owners” [sic] (they're not really owners).

Why will this bill not progress? Because there’s a lot of opposition to it. The law firms have lobbyists, sure, but so do technology firms and most are happy with the way things are.

A few days ago Mike Masnick was referring to Nielsen’s software patents by the correct term, “Patent Monopolies”. He sought to demonstrate what we’re dealing with here and said:

And it’s still using patent claims to stifle competition. Back in 2016, Nielsen bought Gracenote for $560 million just three years after it had been sold for $170 million. Just what could have represented so much value for Nielsen? Well, just a couple months before Nielsen bought Gracenote, Gracenote had sued a company called Sorenson Media for patent infringement. Sorenson Media had an “automatic content recognition” ACR platform for measuring viewers of TV broadcasting — exactly the market Nielsen wishes to maintain its monopoly over.

How did that turn out? Well, Sorenson declared bankruptcy last fall (in large part due to an incredibly stupid contract it had signed), but I’m sure the cost of a patent lawsuit didn’t help. Oh, and in February, Nielsen bought up Sorenson’s assets at firesale prices.

And that’s not all. Last year another small competitor, ErinMedia, sued Nielsen, claiming antitrust violations and that Nielsen was using “predatory practices designed to prevent competitive entry by companies like ErinMedia.” A few weeks later, the company announced that it was effectively shutting down, noting that Nielsen had “chilled” its ability to close an investment round.

Oh, and remember Arbitron? The company that was at issue back in the 1960s? Nielsen bought them a few years back, leading the FTC to put some conditions on the deal in hopes that it would not “substantially lessen competition.” So far that doesn’t seem to be working.

And that brings us to the latest Nielsen use of patents against an upstart competitor. Last fall, Nielsen sued upstart competitor Samba TV, claiming patent infringement. The patents at issue — 9,066,114, 9,479,831 and 9,407,962 — all are incredibly vague and generic, and appear to be the kind of patents that aren’t supposed to be allowed in a post-Alice world.

A decade ago we wrote about Nielsen in relation to Microsoft. In more recent years Nielsen made headlines in relation to its aggressive patent strategy, which it resorted to amid its demise. The likes of Nielsen probably give a lot of business to law firms, but they aren’t innovating. People generally understand that now and hence there’s growing hostility to what’s colloquially known as “patent trolls” — an epidemic in the US. The patent microcosm can go on and on speaking about their new ‘cult leader’ Coons and misuse words like “bipartisan”; but what they’re proposing is extremely unpopular and will likely vanish later this summer, just like it did last year and the year before that. We wrote many articles on this topic in past years.

05.16.19

Stanford’s NPE Litigation Database Makes a Nice Addition in the Fight Against Software Patent Trolls

Posted in America, Law, Patents at 3:55 am by Dr. Roy Schestowitz

NPE Litigation Database

Summary: As the United States of America becomes less trolls- and software patents-friendly (often conflated with plaintiff (un)friendliness) it’s important to have accurate data which documents the numbers and motivates better policy; The NPE (troll) Litigation Database is a move towards that and it’s free to access/use

THE courts system in the United States may be in flux (Donald Trump makes it a lot worse in a lot of ways), but for the time being it continues to reject software patents. Every single 35 U.S.C. § 101 case we come across (and put in our daily links) seems to result in invalidation. This has, predictably, harmed patent trolls (who depend on such patents).

“Every single 35 U.S.C. § 101 case we come across (and put in our daily links) seems to result in invalidation. This has, predictably, harmed patent trolls (who depend on such patents).”“I’m pleased to announce the Stanford NPE Litigation Database,” Prof. Lemley wrote this week. “We have coded every patent plaintiff in every suit from 2007 through 2017 into one of thirteen different categories. The database is open to anyone who wants to do research on patent litigation.” It can be found here (NPE Litigation Database). It was mentioned here in passing earlier this week after Prof. Risch had mentioned it.

Patent trolls are on the decline/demise, but they haven’t gone away. The patent extremists try hard to pave the way for their comeback.

Case of point? Watchtroll speaks of “House IP Subcommittee Discusses Section 101” in yesterday’s roundup about U.S. Patent and Trademark Office (USPTO) matters and discussions in the Congress/House. Coons et al might try to change things, but they have no support and Joe Mullin of the EFF has just issued a call for public input. This is a third year/attempt to screw the patent system on behalf of patent trolls and this year too it has already fallen off the news/headlines (same as in previous years around the same time). To quote Mullin:

There’s no published bill yet, but Senators Thom Tillis (R-N.C.) and Chris Coons (D-Del.) have published a “framework” outlining how they intend to undermine Section 101 of the U.S. patent law. That’s the section of law that forbids patents on abstract ideas, laws of nature, and things that occur in nature.

Section 101’s longstanding requirement should be uncontroversial—applicants have to claim a “new and useful” invention to get a patent—a requirement that, remarkably, Tillis and Coons say they will dismantle.

In recent years, important Supreme Court rulings like Alice v. CLS Bank have ensured that courts give full effect to Section 101. That’s given small businesses a fighting chance against meritless patents, since they can be evaluated—and thrown out—at early stages of a lawsuit.

Check out the businesses we profile in our “Saved by Alice” page. Patent trolls sued a bike shop over message notifications; a photographer for running online contests; and a startup that put restaurant menus online. It’s ridiculous that patents were granted on such basic practices—and it would be even more outrageous if those businesses had to hire experts, undergo expensive discovery, and endure a jury trial before they get a serious evaluation of such “inventions.”

Listen to our interview with Justus Decher. Decher’s health company was threatened by a company called MyHealth over a patent on “remote patient monitoring.” MyHealth never built a product, but they demanded $25,000 from Decher—even before his business had any profits.

Why is the Tillis-Coons proposal moving forward? Pharmaceutical and biotech companies are working together with lobbyists for patent lawyers and companies that have aggressive licensing practices. They’re pushing a false narrative about the need to resolve “uncertainty” in the patent law. But the only uncertainty produced by a strong Section 101 is in the profit margins of patent trolls and the lawyers filing their meritless lawsuits.

As we said weeks ago, the media barely mentions this anymore and it’s going nowhere, just like in 2017 and 2018. Quite frankly, we believe that merely ignoring this would be the better approach. There’s no headway and any sort of coverage would likely seem beneficial to this dying/zombie legislation proposal, which we sometimes compare to the UPC.

The EFF can now cite data from the NPE Litigation Database to put together its case for Section 101 and PTAB. The people behind the database are not in favour of software patents.

05.09.19

Stephen Rowan: From UK-IPO to Operation Coverup of Team António Campinos

Posted in Deception, Europe, Law, Patents at 6:29 pm by Dr. Roy Schestowitz

Grand Theft EPO
“Abuse of Power, Abuse of Law, Suicides, Harrassment and much more…welcome to Grand Theft EPO VI (Battistelli (Psycho), Topić (Suspected Criminal), Ernst (Hypocrite), Kongstad (got fired), Minnoye (Crook), Bergot (Psycho II) and a good many others)”Anonymous

Summary: The Boards of Appeal are unable to stop the ride down the slippery slope of patent maximalism; the Office now congratulates itself for granting a lot of European Patents, including many that aren’t in compliance with the law

THE European Patent Office (EPO) in 2019 still suffers a nepotism epidemic, with former colleagues of António Campinos getting top jobs and even his former 'boss'. Illegal patents (against the EPC) are being granted, e.g. European software patents and the Office lobbies to accomplish the same in the US despite 35 U.S.C. § 101/Alice.

“In the meantime, the repository of European Patents — once the pride of the EPO — is rapidly being ‘polluted’ with patents that aren’t supposed to even exist.”What the heck is going on? We recently learned that it’s now approaching a boiling point and there may be protests/strikes on the way provided SUEPO (the staff union of the EPO) gives the “green light” or EPO staff organises some other way. Based on recent polls (from the EPO itself, even the management), EPO staff is still depressed and demoralised. Earlier today SUEPO noted their similarity to the suicides epidemic in France Telecom (by linking to several new reports on the subject) and as SUEPO noted in April (almost exactly a month ago), quality of work has collapsed (that’s also based on the data from the EPO itself).

What did the EPO do in light of these findings? Namely that about 75% of European Patents are granted in error? The usual. They’re trying to bury facts. The EPO itself has found that a quarter of the patents it grants are fake European Patents (we sometimes call them IPs, Invalid Patents), i.e. those not compatible with EPC and hence unlikely to have any worth in courts. Watch the typical managerial tricks from Stephen Rowan, as explained earlier today by an insider:

In the previous article, Märpel presented the results of the staff survey. One of the concerns of the staff is that with production increases, quality has decreased.

Apparently, our internal quality control (DQA) also noticed. Compliance decreased from 85% to 75% last year. Märpel is not so good at maths, but understands that a quarter of the searches and granted patents do not respect the EPC. Märpel is also not so sure, but believes that this figure puts the EPO behind all other major patent offices.

Management also noticed. They had to.

Common sense would have that management would lower production pressure, maybe set time aside for retraining, etc… This is pretty standard. But not, Stephen Rowan, Vice-President DG1 had a better idea: Collaborative Quality Improvements (CQI).

[...]

In summary, Examiners are supposed to spend more time discussing the files together. They are also supposed to write everything down in a logbook.

There is nothing really wrong with that, except that it is not really related to compliance with the EPC and that the whole exercise costs time. But what time budget do the examiners get? Exactly zero. What was Vice-President Stephen Rowan thinking?

Rowan’s own words, i.e. the management’s spin, are included in the above post.

Meanwhile, IPPro Magazine’s Ben Wodecki has posted this new article about a patent office that still grants patent monopolies on nature itself and life itself — that is, European Patents are given in clear defiance of the EPC. “No Patents on Seeds” speaks out again:

The No Patents on Seeds Group has called on politicians to “take responsibility and to change the law” regarding the patentability of conventionally bred animals and plants.

The group said politicians should make it “impossible to grant patents on conventionally bred plants and animals”.

Johanna Eckhardt of No Patents on Seeds warned that if politicians fail to set limits, then “new facts will be constantly created for patent attorneys, companies and the EPO to make even more profit with such patents”.

She added: “In the near future even food and drink may be patented as an invention.”

Such patent types are prohibited by rule 28(2) for the interpretation of the European Patent Convention (EPC). However, the European Patent Office has come under fire for granting what the groups claim are conventionally bred patents on plants and animals.

The most notable case covering such a patent, T1063/18, saw agrochemical company Syngenta appealing an EPO decision that saw its patent application for a pepper plant denied. The case caused protests outside the EPO’s office building in Munich.

In response, EPO president António Campinos wrote a referral to the Board of Appeals. [sic]

Who or what will stop this lunacy? Can the Board of Appeal, indirectly bossed by Campinos himself, put an end to the practice? We doubt it, but time will tell. In the meantime, the repository of European Patents — once the pride of the EPO — is rapidly being ‘polluted’ with patents that aren’t supposed to even exist. Imagine having a scholarly journal where ‘only’ 3/4 of published papers turn out not to be hoaxes. ‘Only’…

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