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01.21.17

EPO Abuses Now Make the Netherlands Look Like a Facilitator of Human/Labour Rights Abuses

Posted in Europe, Law, Patents at 2:24 pm by Dr. Roy Schestowitz

Not what Dutch people would wish to be associated with or known for…

Slobodan Milošević
Reference: Milošević and the ICC

Summary: Rather than crack down on human rights abuses, the Dutch government now sends out the signal that it’s an island for those wish to violate human rights whilst enjoying immunity (EPO)

UPLOADED by SUEPO early in the day yesterday was this presentation of Prof. Zegveld [PDF], who represents SUEPO and others who are witch-hunted at the EPO. They uploaded this having probably seen press coverage, some of it in English, some of translated into English (from Dutch), and most if it just in Dutch [1, 2, 3] (it’s everywhere in the press and even television in the Netherlands).

Dutch News, a high-profile English-speaking site in the Netherlands, wrote:

The Dutch Supreme Court has ruled that the Dutch courts cannot intervene in problems at the European Patent Office in Rijswijk because the organisation enjoys immunity as an international organisation.

The patent office approves patents for all 38 countries which are members and has a workforce of 7,000 spread between the Netherlands, Germany, Austria and Belgium.

Glyn Moody quoted from this that “the only option now open is to sue the Dutch state.” The EPO is now being protected by the state. What an embarrassment both to Holland and the EPO.

The EPO is proud to be above the law (and actually BREAK Dutch laws), based on its new statement about it (warning: epo.org link). These villains don’t actually speak about what they did, they just say: “The Supreme Court of the Netherlands has today issued a ruling in a legal case related to a dispute generated by one trade union present at the EPO, SUEPO, against the Office. We welcome this decision by which the Court considers the Dutch courts as not competent to deal with this case, in application of the principle of immunity which is essential for the independence and functioning of any international organisation.”

There are serious, truly serious ramifications for ICC and other institutions on Dutch territories. The ICC, which can now itself commit crimes, won’t even be punished or reprimanded by the government. What kind of signal of low credibility does that send out? It’s like countries that bolster their economy by helping large multinational corporations flagrantly evade tax (Ireland or Luxembourg), or nations that let rich people hide their money from tax authorities (e.g. Switzerland for taxation). Do the Dutch want to be viewed as a safe haven for human rights violators? We previously heard a lot from sources inside the UN (specifically in Switzerland), from those who were close to suicide due to institutional abuse (in WIPO, which is connected to the UN, there have already been suicides due to that). The documents were in French, which is why we never covered/leaked that.

Accompanying the newly-released PDF, SUEPO posted the following message:

Presentation of Prof. Zegveld at the Council of Europe on 13 December 2016 on Jurisdictional Immunity Of International Organisations And Rights Of Their Staff

The use and abuse of immunity by international organisations is apparently a topic not limited to the EPO – although we may have the dubious honour of holding the worst record so far.
On 13 December 2016, the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe tackled the issue in agenda point 9.
SUEPO’s attorney, Prof. Zegveld, was one of the people invited to make a presentation.
We hope that the debate will trigger a (re-)confirmation of the boundaries of immunity, and lead to a strengthening of the enforcement of staff rights.

What is at stake here right now isn’t just the EPO but over 50 international bodies which are based in the Netherlands. The Netherlands wants to be viewed as a guardian of international law (e.g. with ICC), but right now it facilitates human rights abuses. This will certainly be debated by Dutch politicians in the coming days or weeks. Certain political parties in the county rightly deem it a disgrace.

01.20.17

Battistelli is an Autocrat Above the Law and It’s OK, Holland’s High Council Says

Posted in Europe, Law, Patents at 7:40 am by Dr. Roy Schestowitz

Grabbing the EPO by the *****

Battistelli Trump

Summary: Battistelli’s autocratic tendencies will not be challenged by Dutch authorities, in spite of sheer condemnation from many groups all across Europe and the entire world

THERE IS some bad news regarding the EPO, as it turns out that the Dutch court is unwilling to do anything about Eponia’s abuses (the photo in the article has been changed for some reason, but we got a copy and modified it slightly). “Excellent article,” called it an anonymous insider. “Bravo to Mr König and the NRC. Translation desperately needed for our non-dutch speakers…”

“It’s grave news,” Petra Kramer (Dutch speaker) said. “The High Council chose Batistelli’s side.”

Well, Battistelli’s ‘side’ is that he’s immune from the law. It’s hardly a side to be proud of (in the words of the insider: “Greed for money and power was determinant?”) and this decision is not particularly surprising after what the Advocate General said some months back. Kramer will supply us with a full translation of the article from NRC (media behemoth in the Netherlands). We’ll add it below when it is ready.

Update: Here is the translation from Kramer:

Patent Office in Rijswijk remains immune

European Patent Office

The European Patent Office in Rijswijk, and its temperamental chief Battistelli, get a lot of criticism. Judges in the Netherlands are not allowed to intervene.

Can an employer in the Netherlands have a private investigator interrogate employees without a lawyer present? Is he allowed to dismiss union leaders or decrease their salary or pension? Is he allowed to refuse to labor inspections after a suicidal employee jumps out of a window of the office?

It all happened at the European Patent Office in Rijswijk. And Dutch judges are unauthorized to decide about the patent office. That’s what the Supreme Court on confirmed on Friday in a long-awaited decision. The Patent Office is an international organization which enjoys legal immunity in the Netherlands, says the Supreme Court.

In other words, the patent office is a kind of legal island in the Netherlands. The Supreme Court verdict is important for all forty international organizations in the Netherlands, such as the International Criminal Court and the European Space Agency. For union SUEPO of the patent office this is a severe setback.

The Bureau approved patent applications and grants patents that are valid in all 38 member countries. With clients such as Philips, Samsung, LG and Siemens, the patent office is important for the European market protection. The agency employs 7,000 specialist, well-paid workers in Germany, Austria, Belgium and the Netherlands.

Temperamental CEO

The patent office is also notorious for his temperamental French President Benoît Battistelli (66). The CEO has long been at war with SUEPO union, which claims to represent half of the staff, but is not officially recognized. Last year, three union representatives have been dismissed and three others have been demoted. SUEPO denounces the pressure of work, authoritarian management and legal status of employees.

The battle hardened when the Hague Court of Appeal ruled in early 2015 that the agency should not limit strikes, union emails should not be blocked and the union must be recognized. Then Minister of Justice Ivo Opstelten (VVD) ordered bailiffs not to execute the judgment in order to ensure the immunity of international organizations: an unusual situation.

The patent office then went in appeal to the Supreme Court, with the support of the Dutch state, which joined as a party. The Netherlands doesn’t want to drive out other international organizations, because it is bad for the reputation of the business climate and the economy. Battistelli delicately reminded the Cabinet last year that his office adds “1 billion” in sales to the Dutch GDP and invests “250 million” in a new high-rise building.

The Supreme Court has reversed earlier judgments of the preliminary court and the Hague Court. Labor rights are sufficiently protected by the internal disputes procedure. They can also appeal to the International Labour Organisation in Geneva.

But the dispute procedure is shaky and the road to Geneva is long, employees say. All that remains now is one solution SUEPO’s lawyer Liesbeth Zegveld said prior to the Supreme Court:

“A lawsuit against the Dutch state because the violation of trade union rights take place on Dutch territory. Does the state do enough to prevent this? The answer is no.”

Exploitation

Next month a parliamentary debate on the working conditions will be held. In a parliamentary debate last month, the patent office has already been criticized by SP and D66 and government parties PvdA and VVD. The PvdA cited the example of exploitation of Libyan and Sudanese staff in London. Didn’t a British judge allow the European Convention on Human Rights to still outweigh the “diplomatic immunity”?

The conflict forces Netherlands in a strange dilemma. The state supported the patent office in the courtroom, but at the same time the government is critical. Secretary Martijn van Dam (Economic Affairs, Labour) recently expressed in a letter his concern about the “difficult relationship between unions and senior management.” During the introductory interview which Van Dam held with Battistelli last year the Frenchman walked out the meeting in anger.

The Dutch patent world is concerned, says a spokesman for Economic Affairs. The Netherlands are represented by Derk-Jan de Groot, director of the Netherlands at the Patent Office. Together with other major patent countries like Germany, France, Sweden, Switzerland and the Netherlands is among the critical countries.

The problem is that the management board of all Member States, the highest body is too big and too diverse to reach a solution. Last year there seemed to have been a revolution, when 26 of the 38 Member States (with 12 abstentions) called Battistelli to a halt. They asked for arbitration in the conflict, cessation of ongoing proceedings against trade unionists and reform of sanctions. But almost all the proposals have been delayed, hence the situation “has not improved,” according to a spokesman for Economic Affairs. One SUEPO member who was overwrought and therefore on sick leave at home, was subsequently fired. It seems that all parties are intent to let Batistelli serve out his second term which ends on June 30 next year.

The patent office welcomes the “confirmation of the legal immunity” by the Supreme Court and “will continue to work to strengthen the social dialogue,” a spokesman said.

01.15.17

Constitutionality as a Barrier and Brexit Barriers to UPC Keep the Whole Pipe Dream Deadlocked

Posted in Europe, Law, Patents at 4:52 am by Dr. Roy Schestowitz

UPC, RIP

Summary: The UPC is still going nowhere fast, but the demise (or death) of the UPC as we know it must not be taken for granted

THE UPC may be unconstitutional (or un-Constitutional) in a lot of states. Does Battistelli care? Well, he hardly cares about the laws, let alone constitutions. According to this or this, quoting the new (and latest) paper from Dr. Ingve Björn Stjerna, “German ratification proceedings comprise several options for bringing the ratification legislation before the German Constitutional Court (“BVerfG”) for a constitutional law review in which the CJEU would be invoked as regards Union law questions by way of a request for a preliminary ruling.”

“We need more Free Open/Source software companies to help us battle the UPC, which would definitely usher in not only patent trolls but also software patents in Europe.”Given Germany’s selfish interests, as we recently noted in relation to Germany's Justice Minister Heiko Maas, we very much doubt the government will care if the UPC turns out to be un-Constitutional. Things have gotten so bad in fact that Maas also flagrantly disregards/ignores EPO abuses (as per German law) on German soil. As for Team UPC, it’s paying for propaganda. These people play dirty. Very dirty.

Thankfully, as we repeatedly pointed out before, the UPC in in a limbo. In fact, based on the abstract of this upcoming FOSDEM talk, Robinson Tryon too agrees with the “limbo” analogy. “With the future of the European Union’s Unitary Patent Court in limbo due to the Brexit,” he writes, “leaders in Free Software owe it to themselves and their companies to be more agile and more prepared to address patent issues…”

We need more Free Open/Source software companies to help us battle the UPC, which would definitely usher in not only patent trolls but also software patents in Europe. Here is the full abstract of the upcoming talk:

Are FOSS Companies Ready to Deal with Patents in the US and Europe?

Most small businesses have no patent strategy. Though many FOSS companies have policies in place regarding copyright and keeping detailed records of code contributions, few have paid enough attention to how patent litigation could affect them. For those FOSS businesses active in multiple countries or looking to expand into an international market, failure to understand the patent ecosystem in each jurisdiction could be a costly mistake.

Most small businesses have no patent strategy. Though many FOSS companies have policies in place regarding copyright and keeping detailed records of code contributions, few have paid enough attention to how patent litigation could affect them. For those FOSS businesses active in multiple countries or looking to expand into an international market, failure to understand the patent ecosystem in each jurisdiction could be a costly mistake.

This talk will use recent cases and ongoing changes in the patent systems of the US & Europe as modern examples for our discussion. We’ll describe the pitfalls that can affect any company, tabulate the costs of litigation, and offer methods businesses can use to reduce overall risk.

With the future of the European Union’s Unitary Patent Court in limbo due to the Brexit, and with no public position on patents from the United States’ next administration, leaders in Free Software owe it to themselves and their companies to be more agile and more prepared to address patent issues — whether they work at a small startup or at a large multinational corporation.

We previously coordinated some action (such as petitioning) regarding the UPC, but seeing how things are moving in the UK (with the business-oriented Madame Tesco leaving to be replaced by Boris Johnson's brother after just months in her job), it seems like the UPC is falling apart anyway, even without some outside intervention.

01.05.17

Watchtroll a Fake News Site in Lobbying Mode and Attack Mode Against Those Who Don’t Agree (Even PTAB and Judges)

Posted in America, Deception, Law, Patents at 6:19 pm by Dr. Roy Schestowitz

Producing nothing, insulting everybody

Watchtroll

Summary: A look at some of the latest spin and the latest shaming courtesy of the patent microcosm, which behaves so poorly that one has to wonder if its objective is to alienate everyone

THE patent reform in the US (AIA, especially after Alice) brought us the blessing known as PTAB, which is responsible for the immediate and permanent elimination of many software patents and the reduction in litigation. It lowered confidence in even more of these software patents (potentially hundreds of thousands of patents).

“”Idiotic”, “impotence”… what next? Will Watchtroll accuse judges and PTAB of rape and pedophilia too?”PTAB continues to scare people who made a living from software patents (not software, just patents). With his habitual insults directed at PTAB, Gene Quinn (Watchtroll) continues to fling criticisms at PTAB, bemoaning the latest decision which he summarises with the word “idiotic” in the image (and IBM’s patent chief actually boosts these people, who also attack judges! See the image at the top!).

“Idiotic”, “impotence”… what next? Will Watchtroll accuse judges and PTAB of rape and pedophilia too? Frankly, these people are a lot more rude than anything we have ever seen and some of those people actually advertise themselves as professionals. “If a machine is patent ineligible bc it is an abstract idea,” Watchtroll wrote in Twitter, “no point in keeping powder dry. The 101 fight is now.”

He wants a “fight”.

“Telling Watchtroll about software development is an exercise in futility; he doesn’t even know how software works.”Well, the Section 101 fight is over. The patent microcosm lost. Most software patents are dying and this is good because, as Benjamin Henrion put it in his reply, “patents also destroyed software development.”

Telling Watchtroll about software development is an exercise in futility; he doesn’t even know how software works. I debated this in length with him and then he chickened out, blocking me in Twitter.

Watchtroll (a front for the patent microcosm, not just one person) is now lobbying Trump to makes Patent Chaos Again (as expected, with lots more of this lobbying to come).

“These have included enabling the PTO to attack patent validity in a second window,” says the article, “attacking classes of inventions such as software and medical diagnostics…”

“PTAB is a lot more professional because these financial incentives hardly exist, which makes their staff more objective.”Nobody is “attacking” and there is no “fight”. As we pointed out here before, the attorney known as Patent Buddy uses words like “survive”, “kill” etc. rather than use terms that don’t pertain to war. The people actually call PTAB a “death squad!” Picture that for a connotation.

Here is Patent Buddy saying about the above case: “In the MRI-101 Invalidation Decision, the PTAB Reversed the Examiner finding eligibility under 103, but not 101.”

Examiners at USPTO have historically been rewarded to just award lots of patents, irrespective of quality or prior art (which can take a long time to assemble and study). PTAB is a lot more professional because these financial incentives hardly exist, which makes their staff more objective.

Earlier this week we found this lawyers’ site claiming that “[t]he tide may be turning in the Section 101 landscape and it is making waves in the patent practice area.” No, it’s not. The patent microcosm lives in wonderland and only pays attention to a few CAFC decisions that suit their agenda. The article says that CAFC’s “latest rulings on the issue—Enfish v. Microsoft Corp., BASCOM Global Internet Services v. AT&T Mobility, and McRO v. Bandai Namco Games America—possibly signal a new direction for patent eligibility in a post-Alice era. On the damages front, the U.S. Supreme Court grabbed headlines with its highly anticipated ruling in Samsung Electronics v. Apple, the first design patent case to be examined by the Court in over a century. Our panel of experts discussed these issues as well as patent trends on the horizon in 2017.”

“There’s no “win”, it’s not a game. It’s also not a “war” or a “fight”.”We actually debunked this just recently (December 27th), in relation to similar claims about CAFC cases. Less than a handful of cases (less than one hand’s fingers) don’t change years of patent invalidations, including by Judge Mayer, whom Watchtroll is insulting (see above again).

CAFC is soon going to decide whether challenging low-quality USPTO patents (through PTAB) is acceptable, says MIP, noting about a particular case that CAFC “has granted en banc rehearing in Wi-Fi One v Broadcom. The court will consider whether judicial review is available for a patent owner to challenge the USPTO’s determination that the petitioner satisfied the timeliness requirement governing the filing of IPR petitions” (these are the petitions that typically initiate invalidation by PTAB).

Regarding this new article from lawyers’ media, one person wrote, “CAFC vs. PTAB decision discrepancies: Who wins?”

There’s no “win”, it’s not a game. It’s also not a “war” or a “fight”. In fact, most of the time CAFC agrees with PTAB, so the framing of infighting is simply incorrect and inappropriate. To quote the actual article:

Apple Inc. has won at least a moral victory in a fight with the U.S. Patent and Trademark Office over touchscreen technology.

The U.S. Court of Appeals for the Federal Circuit agreed with Apple on Tuesday that the patent office failed to sufficiently explain why Apple’s method for reconfiguring touchscreen icons is unpatentable due to obviousness.

Apple applied for a patent in 2009 on its method of using a sustained touch to activate an icon, which then allows a person to drag the icon to a new location on the screen. A patent examiner found the claim obvious in light of separate prior inventions on sustained touch and dragging. Combining the two inventions “would be an intuitive way” to rearrange touchscreen icons, the examiner concluded and the Patent Trial and Appeal Board affirmed.

This is just one of those exceptions where the CAFC does not fully agree with PTAB and wants the judgment reassessed.

The bottom line is, things are progressing in a positive direction as the US patent system persists in improving patent quality. It’s well overdue. Here we have a new case which “focuses primarily on §101 issues.”

“The bottom line is, things are progressing in a positive direction as the US patent system persists in improving patent quality.”To quote: “The oral argument of the week is MACROPOINT, LLC v. FOURKITES, INC., No. 2016-1286 (Fed. Cir. Dec. 8, 2016) decided by a Rule 36 judgment.”

Those who claim that Section 101 is losing its potency or that CAFC is at war with PTAB or anything like that are being extremely dishonest and typically — if not always — they are the ones directly profiting from these misconceptions/distortions.

Watchtroll and its ilk need to go away or not be taken seriously. Time after time we have demonstrated that the site’s purpose is to attack those who don’t agree (even judges!) and sometimes to organise 'echo chamber' events so as/in which to lobby officials.

Watchtroll is to the patent world what Trump is to civilised politics.

12.26.16

With the Demise of Software Patents and Likely Soon Patent Trolls (Based on SCOTUS), Trump Appointments Matter Even More

Posted in America, Law, Patents at 4:17 pm by Dr. Roy Schestowitz

Justice nominations for the US Supreme Court (SCOTUS) will play a big role, and some Justices truly worry about Trump

Trump attacking judges
Reference: Trump escalates attack on ‘Mexican’ judge (this ‘Mexican’ judge was born in Indiana actually)

Summary: In light of Trump’s awkward history with judges (e.g. attacking them) one can hope that upcoming patent cases at the highest court won’t be affected by his pro-big corporations agenda

THE PATENT landscape in the US has changed a lot in recent years, especially after AIA (half a decade ago). Software patents, for instance, are a dying breed. This does not mean that things will continue to improve; they can get a lot worse as soon as a new President is inaugurated, to the chagrin and regret of many Americans. Lobbying of Trump has already begun, for instance by the Internet Association (large corporations, not what it sounds) and by IPO. They want the old order of things and they represent a threat to software developers.

AIPLA, another such entity which acts like a think tank (like oil companies in favour of offshore drilling), is telling the USPTO that they want more secrecy. It makes sense for them. As Patently-O put it the other day, “I would say even after/if the USPTO adopts a rule, be very careful if you have patent agents communicating directly with clients, without supervision of a lawyer, because there’s also the possibility that a court won’t follow the Queen’s University case and hold there is no privilege, anyway. That’s already happened in Texas.”

Well, as new articles continue to stress (the latest being, e.g. [1, 2, 3, 4, 5]), Texas may soon end its status as trolls’ capital, but only if SCOTUS rules rationally. This is yet another blow to the ‘old guard’; it represents patent progress and improvements that favour ordinary people, not oligarchs like Trump and a lot of his prospective cabinet members.

We urge people to support groups like the EFF, which growingly mention software patents and openly oppose these. Latest from the EFF’s Daniel Nazer [1, 2] is this article about this month’s “Stupid Patent”, which he explains as follows:

As you head home for the holidays, perhaps passing through a checkpoint or two, take some time to think about U.S. Patent No. 6,888,460, “Advertising trays for security screening.” The owner of this patent, SecurityPoint Holdings, Inc., has sued the United States government for infringement. SecurityPoint recently won a trial on validity [PDF] and the case will now proceed to a damages phase. So, unless the validity decision gets overturned on appeal, we’ll soon be paying tax dollars for the idea of moving trays on carts.

[...]

In a trial before the Court of Federal Claims, the government argued that this claim was obvious because moving trays using carts was well-known in many contexts. The court disagreed. The court suggested that even if using carts to move trays was well-known, the government needed prior art specifically for security checkpoints (arguably the government had such evidence, but the court disagreed on that point too).

In fairness to SecurityPoint, evidence at trial suggested that it had developed a good system for managing trays and carts within the confined space of an airport security checkpoint. But the patent’s claims are far broader than any specific solution. This is something we often see in patent law: someone develops a (fairly narrow) innovation, but then broadly claims it, capturing things that are well-known or banal. This sort of claiming hurts follow-on inventors who develop their own ideas that wouldn’t infringe any narrower claim, and weren’t invented by the patent holder. But because the broader claim is allowed, their own inventions become infringing. Here, claim 1 is not limited to any particular kind of cart, tray, or scanner. The claim really reads on using a couple of carts to move trays and, in our view, should have been found obvious.

Nazer’s colleague at the EFF has meanwhile advised institutions like universities not to give their patents to trolls. They actually mean “patents”, not “inventions” (as the headline puts it). These are not the same thing. “Research funded by the United States government should benefit everyone,” the EFF explains. “That’s why EFF so strongly supports the idea of writing an open access requirement for federally funded research into the law as soon as possible. It’s also one reason why we recently launched Reclaim Invention, a campaign asking U.S. universities to rethink their patenting policies. It’s crucial that federally funded research be made available to the public so that anyone can read and use it, not just people with institutional connections. But even if the public can read government-funded research, patents on inventions that arise from it can still fall into the wrong hands and undermine the public interest.”

Some universities, desperate for cash (especially in periods of privatisation — the Trump way!), are hoping to make a ‘quick buck’ out of patents that the public actually paid for. This is going to become a bigger issue if schools and universities operate more and more like businesses in the coming years, enjoying no status like they did decades or centuries ago. It means that some universities, with staff that receives public grants, will become litigation mills, directly or indirectly (via trolls).

Speaking of desperate appeals for cash, this new article about Chapter 11 Bankruptcy (a process Trump has gone through plenty of times to secure his billions) says that last “week’s corporate news roundup includes the holding by a U.S. federal appeals court that secured indenture noteholders were entitled to a make-whole premium notwithstanding the issuer’s chapter 11 bankruptcy case, the addition by companies in their securities filings with the SEC of risk factors relating to the outcome of the U.S. Presidential election, and the termination by the PTAB of IPR proceedings as to patent claims between Microsoft Corporation and Enfish LLC, resulting in a non-appealable win for Enfish.”

This goes under “TERMINATION OF ENFISH-MICROSOFT INTER PARTES REVIEW PROCEEDINGS IMPLIED AS UNAPPEALABLE AFTER FEDERAL CIRCUIT DECISION AGAINST MICROSOFT” (a case we covered here before).

In our last article we reminded readers that after Enfish the Court of Appeals for the Federal Circuit (CAFC) ruled repeatedly against software patents, including in very high-profile cases. Unless the Supreme Court with some Trump-appointed Justices chooses to reverse Alice (won’t happen any time soon based on the dockets), it is safe to say that political impact on patent law is still just a distant threat.

“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president. For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”Justice Ginsburg

12.15.16

Great News From the United States: The Supremes May Finally Serve a Fatal Blow to Patent Trolls

Posted in America, Law, Patents at 8:46 am by Dr. Roy Schestowitz

Litigation scope challenged in TC Heartland v Kraft Food Brands Group (after Alice tackled patent scope).

Family farm
End of the road for the notorious patent mess that only law firms consistently profited from?

Summary: The US Supreme Court’s Justices may soon put an end to the business model or the modus operandi of patent trolls

AS WE NOTED earlier this week, the US is no longer a good environment in which to be a patent parasite. Watch what happened to Apple after the Supreme Court had intervened (yes, it’s still in the news!), not just to small parasites that are commonly known as patent trolls. It’s rather revealing and the numbers from a new paper of Lemley et al reaffirm the trend.

All those recent SCOTUS decisions with yet more decisions to come (e.g. Lexmark, which is also still in the news, courtesy of John C. Bacoch and William R. Boudreaux from Brinks Gilson & Lione and MIP’s Natalie Rahhal) serve to show that SCOTUS, in its current composition (Justices), is rather intolerant towards patent bullies.

The reforms in the US (regarding patents) seem to be working out and weeding out “Patent Trolls Central”, the Eastern District of Texas (EDTX). Here is how Patently-O has just put it: “Goodbye E.D.Texas as a Major Patent Venue”

The headline may be sensationalist and premature, but here is how Patently-O justifies it:

In a case with the potential to truly shake-up the current state of patent litigation, the Supreme Court has granted certiorari in the patent venue case TC Heartland v. Kraft Food (SCT Docket No. 16-341). An 8-0 reversal of the Federal Circuit is quite likely, although my headline is likely premature.

Michael Loney, writing from New York, has also just covered the subject:

Supreme CourtThe US Supreme Court has granted cert to TC Heartland v Kraft Food Brands Group. The court will review the Federal Circuit law that allows a high concentration of patent cases in one district.

We wrote about this case before and so has the EFF (many times). For the uninitiated, EDTX boasts courts that are intentionally tolerant of plaintiffs, software patents and trolls. That’s how they used to attract ‘business’ or ‘clients’ (parties being sued or suing) and that’s why many patent law firms are based (or relocated to) there.

12.06.16

Endgame for Battistelli at the European Patent Office (EPO)

Posted in Europe, Law, Patents at 8:17 am by Dr. Roy Schestowitz

Guess Who is Trying to Retroactively ‘Legalise’ His Own Abuses Now…

Battistelli with Scud

Summary: Battistelli turns bad into worse by spitting on the very notion of accepting justice (from the highest court in The Hague or even the UN in this case)

THE system in Europe is often assumed to be vastly superior to many of the world’s systems. We used to take pride in the EPO being so much better than the USPTO and, among many things, rejecting software patents. We cannot say this anymore because Battistelli’s role model these days seems to be SIPO in China (where the quality of patents is about as low as it can get, it’s just an assembly line of papers). Battistelli “is boxing out of the corner now,” one reader told us in relation not only to the social issues but also the technical issues (patent maximalism is a disease that keeps spreading to the EPO). Applicants quickly realise that the value of EPs is sinking. Why would they even bother with pricey new applications, let alone renewals? Many of them won't. They’re gradually waking up to the destruction left behind by Battistelli (rushed examination, brain drain, etc.) and the injustices demonstrated by miscarriage of justice not just against clients [sic] but against hundreds if not thousands of EPO employees (approximately/at least a hundred cases in just 2 years, some impacting multiple employees per case).

“Applicants quickly realise that the value of EPs is sinking.”What the EPO does about this "crisis" (in the Board's own words) is the equivalent of shuffling chairs at the deck of the Titanic. Watch what is showing up in today’s news:

The EPO is expected to refuse to record assignments that do not satisfy the foregoing requirements.

Accordingly, we believe that in the future all assignments should be signed by all parties. Regarding the cases where an assignment has been executed but has not been recorded at the EPO, and where the assignment document was only signed by the assignor(s), you may consider obtaining a second signature from a representative of the assignee acknowledging acceptance of the rights. As another alternative, it might be possible for both parties to sign a “confirmatory assignment” to confirm that an assignment that took place on a date prior to the effective date of these new guidelines.

Given the low quality of patents at the EPO (granted in recent years, not the older ones which have not yet expired), putting more barriers and limitations is the last thing that should be on the agenda. Sooner or later, suggest internal figures, the backlog or pile will have dried up, making the Office underworked and rendering thousands of EPO examiners redundant.

Based on the latest decisions from ILO (or ILO-AT), the Office will also have to spend a lot of time and resources on new ‘trials’. This would involve even more people who otherwise should be carrying out their duties as examiners. Look what a sordid mess Battistelli has created. He should resign, but that alone would not solve all the issues.

“Lacking any sense of shame, Battistelli proposes that the Administrative Council, which was supposed to kick him out years ago, should amend the internal law of the EPO relating to not only the Appeals Committee but also lots of other bodies (including the Disciplinary Committees).”Looking at Battistelli’s appalling reaction to these decisions (leaked here yesterday), the lies are beyond amazing. The guy must be crazy and he’s unable to take responsibility. Instead he’s trying to hold unions whom he’s busting accountable. To him, the fact that there was gross injustice for years is the fault of the Central Staff Committee, which was not nominating representatives for the Appeals Committee. Battistelli has publicly (in the Intranet) accused them of “failure to comply with statutory obligations,” in the same way that he defamed various other people or groups in the Intranet as recently as one month ago (we leaked the example about Mr. Prunier).

Lacking any sense of shame, Battistelli proposes that the Administrative Council, which was supposed to kick him out years ago, should amend the internal law of the EPO relating to not only the Appeals Committee but also lots of other bodies (including the Disciplinary Committees). To quote Battistelli, “if the Central Staff Committee, despite an invitation to do so, fails to make appointments to these bodies, the President shall take appropriate steps to ensure and make the necessary appointments, such as calling for volunteers or drawing lots from among eligible staff members.”

“WIPO looks like very small potatoes in comparison to this.”So basically, Battistelli now tries to ‘legalise’ his own abuses after he committed these abuses. How does that not make Eponia a Banana Republic or rogue state way ahead of even Turkey in 2016? The ‘King’ basically places himself above the law, allegedly buys votes, and refuses to accept a simple judgment even from a UN agency (it’s the only tripartite UN agency). WIPO looks like very small potatoes in comparison to this.

To quote (verbatim) what Judgment 3785 actually said on page 6: “While it is true that the fundamental functions of that body must not be paralysed, it is also true that the body itself cannot be changed through a changed composition. The balance sought to be achieved by the composition of this body, which includes members appointed by the Administration and the staff representation, is a fundamental guarantee of its impartiality. That balanced composition is an essential feature underpinning its existence. Without it, it is not the Appeals Committee.”

12.05.16

Microsoft’s Push for Software Patents Another Reminder That There is No ‘New’ Microsoft

Posted in GNU/Linux, Law, Microsoft, Patents at 2:47 am by Dr. Roy Schestowitz

Microsoft post-Alice

Summary: Microsoft’s continued fascination with and participation in the effort to undermine Alice so as to make software patents, which the company uses to blackmail GNU/Linux vendors, widely acceptable and applicable again

OUR longest article yesterday focused on poor advice — either deliberately bad advice or simply influenced by the echo chamber — regarding software patents. The patent microcosm is in growing denial over US courts invalidating software patents granted by the USPTO using Alice, or even patents invalided by PTAB (in much larger numbers).

Some days ago we saw this report from the 2016 International Women’s Leadership Forum, courtesy of patent maximalists.

As can be expected, it was somewhat of an echo chamber not in the gender sense but in the agenda sense. Microsoft was there too and here is the relevant part:

The first practical step, said Julie Kane Akhter of Microsoft, is to learn from cases where the patent has been upheld, such as Enfish, Bascom and Planet Blue.

“In the Enfish patent, for example, they were actually improving the operation of the computer itself,” she stressed. Lessons from the Enfish decision included: the specification was really important; consider identifying the technical problem in the specification; and avoid being too high level in the claims.

She said Enfish provides several practical strategies for applicants: utilise the interview; talk about the technical improvement; and cite Enfish! Lessons from Bascom are: consider discussing prior solutions and their drawbacks; highlight lack of preemption; and keep drafting software applications! And tips from Planet Blue are: argue the examiner has determined the idea in the claims at too high a level; argue the claim is specific enough and improves the technology; and draft claims with realistic scope and technical effect.

For those who forgot or have not been paying attention, Enfish ended up as a pro-software patents caselaw and Microsoft pays David Kappos, former Director of the USPTO, to lobby along those lines. He keeps trying to eliminate Alice (a Supreme Court case) as caselaw. Various patent law firms too still lick their lips over software patents and try to undermine Alice, hoping to ‘rewrite’ it with lower-level cases such as Enfish or Bascom.

On November 30th Dennis Crouch wrote about Microsoft v Enfish (not the other way around), nothing that it “Turns Out the Claims Are Obvious”. This is a PTAB case:

After instituting review, the Patent Trial and Appeal Board found some of the patent claims invalid as anticipated/obvious. On appeal, PTAB factual findings are generally given deference but legal conclusions are reviewed without deference. After reviewing the claim construction and rejections, the Federal Circuit affirmed in a non-precedential decision.

It’s no secret that Microsoft’s software patents are rubbish; their low quality was the subject of many old articles here. Moreover, the company’s selective and hypocritical views on software patents were noted here way back in the i4i days. In another new article by Dennis Crouch he says that “PTAB judges are so well trained in the complexity of technology and patent law,” which is probably something that most patent courts lack.

“It’s no secret that Microsoft’s software patents are rubbish; their low quality was the subject of many old articles here.”Microsoft is still promoting software patents and in the words of MIP: “Great first panel at #ipwomen Forum discussing practical steps for software patents post-Alice & overcoming S101 objections @MicrosoftIP pic.twitter.com/cGWe9qrGPh” (Microsoft hates Linux too, except when it taxes it with patents, in which case it’s more tolerable to “MicrosoftIP”, the troll entity of the corporation). The people who covertly extort and blackmail Linux on behalf of Microsoft — all this while shaping patent law for the company’s bottom line — are also mentioned here. To quote: “It’s the @MicrosoftIP networking break at the #ipwomen Forum. Time to make some new contacts! pic.twitter.com/YwajQuWadV”

To be fair, Microsoft is part of a broader movement here. But it’s role is notable. Microsoft is a key player in this.

The following crossposted article [1, 2], for instance, tries to leave Alice behind. Another crossposted article [1, 2], this one titled “No Abstract Idea Where Invention Cannot be “Practiced in the Abstract”,” is also composed by the patent microcosm and the aim is similar. All the above entities generally wish to restore the patentability of software in the US. Also see the new article titled “The Current State of Computer Software Patentability” (behind paywall). What they all have in common is dissatisfaction with the new status quo — one wherein software is barely patent-eligible, or at least barely defensible in the patent sense in the courts. Patent lawyers pretend to care for inventors, but they just want to undermine Alice to patent software without barriers. See this article of one law firm; what they mean by “weather” does not take into account the risk of one getting sued but the chance of one to obtain a patent. Very one-sided a take, as usual. Software developers should stop patenting software as it’s a waste of time/money, even if such patents can sometimes be granted (only to be lost after a long and expensive legal battles). New PTAB cases on patents, such as this one [1, 2] (on reasonable diligence), remind us that sometimes patents will be invalidated even before they reach the court, i.e. even without the patent holders choosing to assert these offensively. Is is worth the risk? Patent lawyers can brag about “privilege” all they want (see new examples [1, 2]), but all they are after is a universal tax on software, extracted from patents nobody needs or wants. In the case of Free software such as Linux, this tax prevents redistribution, so it is inherently incompatible and antithetical.

“Has CCIA flipped sides again, as it previously did after Microsoft had paid it millions of dollars?”Much to our surprise, Matt Levy (CCIA) has decided to give articles to pro-software patents sites — a departure from his usual tune. He gives false hope to software patents hopefuls like Watchtroll readers and also IAM readers. Has CCIA flipped sides again, as it previously did after Microsoft had paid it millions of dollars?

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