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08.15.18

Open Invention Network (OIN) Member Companies Need to Become Unanimous in Opposition to Software Patents

Posted in Law, OIN, Patents at 3:31 am by Dr. Roy Schestowitz

OIN still going with the flow of millionaires and billionaires who fund it, not Free/libre software developers

Opposition

Summary: Opposition to abstract software patents, which even the SCOTUS and the Federal Circuit nowadays reject, would be strategically smart for OIN; but instead it issues a statement in support of a GPL compliance initiative

THE USPTO is still granting software patents, never mind if courts continue and persist in rejecting these. OIN still generally supports software patents, albeit shyly. It doesn’t talk about that ‘too’ much. Just look at the member companies of OIN, especially founding members; some of these companies actively pursue their own software patents and IBM is blackmailing companies with these.

“OIN still generally supports software patents, albeit shyly.”Yesterday OIN issued this press release [1, 2] under the title “Open Invention Network Member Companies Unanimous in Support of GPL Cooperation Commitment” and what’s odd about it is that they talk about software licences rather than patent licences. The GPL is dealing with copyright (mostly), albeit GPLv3 indirectly deals with patents too. So it’s interesting that OIN now talks about the GPL rather than patent policy. From the opening paragraph:

Open Invention Network (OIN), the largest patent non-aggression community in history, announced today that its eight funding members – Google, IBM, Red Hat, SUSE, Sony, NEC, Philips, Toyota – have committed to rejecting abusive tactics in the enforcement of open source licenses by adopting the GPL Cooperation Commitment. The unanimous support of OIN’s funding members to this commitment reflects the strong belief that responsible compliance in open source licensing is important and that license enforcement in open source ecosystems comes with a cultural expectation that all parties will behave reasonably. OIN encourages each one of its over 2,500 licensees, as well as all participants in the open source community, to follow the example of the OIN funding members and adopt the GPL Cooperation Commitment.

Well, if you support GPL, dear OIN leadership, you will also push for abolishing software patents. As things stand at the moment, serial GPL infringer Microsoft uses software patents against OIN members. This malicious company is still pursuing such patents — abstract patents with which it is blackmailing companies. To give an example from yesterday’s news, Microsoft now uses/rides the “blockchain” hype [1, 2] to patent software. “To this end,” said one article, “Microsoft filed two patents with the U.S. Patent and Trademark Office back in June last year. The report came to light Thursday via a report published by the Office. [...] A trusted execution environment could also be very crucial in the verification of blockchain transactions on a common network or platform. This is especially reliable in the environment where the various pre-authorized transactions must interact.”

“Maybe if OIN bothered putting its weight behind the movement to abolish such patents, there would be better legal certainty/security for “Open” things (OIN stands for “Open Invention Network” after all, so surely it should care).”This is so obviously software and our next post will deal with examiners failing to reject these sorts of patents. Maybe if OIN bothered putting its weight behind the movement to abolish such patents, there would be better legal certainty/security for “Open” things (OIN stands for “Open Invention Network” after all, so surely it should care).

08.14.18

Patent Lawyers Writing Patent Law for Their Own Enrichment Rather Than for Innovation

Posted in America, Europe, Law, Patents at 6:03 am by Dr. Roy Schestowitz

Anathema, antithetical to the very concept/purpose of patents

A payment

Summary: We have become detached from the original goals and come to the point where patent offices aren’t necessarily run by people qualified for the job of advancing science and technology; they, unlike judges, only seem to care about how many patents get granted, irrespective of their quality/merit

THE conundrum which lawmakers sometimes face depends on who pays (or bribes) them. We recently wrote about Orrin Hatch, sponsored the most by the pharmaceutical industry, trying to make pharmaceutical patents immune/exempted from Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs). The USPTO is itself run by a lot of lawyers, not just scientists; look who has been appointed its Director.

There has always been this danger that nontechnical people (like Battistelli and Campinos) would doom patent offices, making them little more than litigation pipelines, preparing the patents for lawsuits, even frivolous ones.

“There has always been this danger that nontechnical people (like Battistelli and Campinos) would doom patent offices, making them little more than litigation pipelines, preparing the patents for lawsuits, even frivolous ones.”“The UK will also be excluded from the EU’s unitary patent framework,” says a British magazine this week, perpetuating the false belief that something constructed by lawyers for personal gain is actually worthwhile for all of us. But more importantly, however, there is no such framework. The Unified Patent Court is dead, irrespective of Brexit. It never existed and it doesn’t seem as though it ever will.

The EPO has said virtually nothing about the UPC for over a month now. Moreover, it’s not desirable to Britain or any other country. Only to patent lawyers and trolls. These ‘unitary’ patents are of no real value for SMEs, for instance, and more often than not companies that aren’t even European want these.

Here’s the relevant part:

33. The UK will depart the EU’s intellectual property regime, with EU trademarks ceasing to have British application. The UK will also be excluded from the EU’s unitary patent framework.

Which doesn’t even exist?

Over in the US, Watchtroll constantly complains. It moans, even on Monday, about anything at all which reduces patent scope and improves the quality of patents (based on obviousness in this case). Such is the nature of the litigation ‘industry’. It always wants more and more patents — even low-quality ones — to saturate the system and hammer on the dockets (of courts).

Gene Quinn is again lobbying the PTO, trying to tell it what the rules should be. He said “the rule the MPEP should be revised to contain is this: “The prior art reference (or references when combined) must teach all the claim limitations. Only in the most extraordinary of situations where the missing claim limitation is ‘unusually simple and the technology particularly straightforward’ is it appropriate for common sense to be relied upon to supply a missing claim limitation.””

Dennis Crouch said that “[t]he USPTO has quietly proposed adding new annual bar dues ($240 – $410) for patent practitioners as well a continuing legal education (CLE) requirement. The proposal is buried in the Table of Proposed Fees that will serve as the basis for an upcoming September 6, 2018 PPAC meeting on fees.”

These are indoctrination programs for patent maximalists (“practitioners”). They’re people who look to make money out of patents without actually creating anything, i.e. they’re not practitioners per se. Joseph Herndon wrote about the fee increases over at Patent Docs:

On August 8, 2018, Director Iancu issued a letter to the Patent Public Advisory Committee notifying of proposed fee increases at the U.S. Patent and Trademark Office, and institution of new annual fee for active patent practitioners.

The Director stated that the fee increases are needed to ensure commitment to fiscal responsibility, financial prudence, and operational efficiency.

This is a patent fee proposal open for comment at this stage, and the Director stated that it is anticipated that the fee adjustments resulting from this effort will not be implemented until the January 2021 timeframe. Generally, there are across the board fee increases, and the USPTO stated that given the nearly three-year gap between the implementation of the last fee adjustments and the anticipated effective date of this fee setting effort, a five percent increase to fees is similar to fees rising by 1.6 percent annually.

At the end of last year two scholars, Michael Frakes and Melissa Wasserman, explained why the patent office lost touch with reality. If wasn’t for SCOTUS and the Federal Circuit issuing judgments that reduce confidence in granted patents, the patent office would still be awarding loads of nonsensical patents. In Europe the courts have come under an unprecedented attack; the patent office waged a war on judges and made it harder to reach justice for judges might dare point out the decline in the quality of patents.

08.11.18

Thomas Massie’s “Restoring America’s Leadership in Innovation Act of 2018” (RALIA) Would Put the US Patent System in the Lions’ (or Trolls’) Mouth Again

Posted in America, Law, Patents at 3:28 am by Dr. Roy Schestowitz

Patent maximalism would gradually corrode if not doom the patent system, making US patents obsolete and lawsuits frivolous

3 big cats

Summary: An anti-§ 101 and anti-PTAB bill from Rep. Thomas Massie (R-KY) strives to remove quality control; but by handing the system back to patent trolls he and his proponents simply strive to create more business of litigation, at the expense of innovation

THE Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs), typically affirmed by the Federal Circuit and largely defended by management of the USPTO, which is more than just Iancu, is a little bit like the appeal boards at the EPO. The job of PTAB is assuring quality of patents. PTAB is used to stop or prevent frivolous patent litigation with abstract patents — something which increasingly happens in Europe, as we've just noted.

Earlier this month PTAB accomplished the following thing, which was celebrated yesterday by Unified Patents. Mr. Jain wrote:

On August 3, 2018, the Patent Trial and Appeal Board (PTAB) terminated IPR2017-01672 pursuant to a joint request filed by Quantum Stream Inc. (a subsidiary of XpresSpa, AKA Form Holdings) and Unified Patents. U.S. Patent 9,047,626, the subject of the IPR petition, relates to systems for delivering content, such as a digital video program, to a user device.

This is seemingly a software patent. It should not have been granted. But patent maximalists beg to differ; they mislead the media and mislead politicians about this. Only days ago Odessa American celebrated with the “Cult of Patents” as if “innovation” and “patent” (monopoly) are the same thing (see “Marketing Evolution Awarded Patent Recognition for Latest Innovation”), not to mention spin with “Smart…Smart…Smarter” in headlines such as this new article’s headline. Sadly, these patent maximalists still have a grip on the media. Rep. Thomas Massie wants to make a mess of the US patent system [1, 2, 3] and the media helps him promote his new bill, “Restoring America’s Leadership in Innovation Act of 2018” (RALIA). It’s a misnomer (should say “Litigation”, not “Innovation”), as Josh Landau (CCIA) has just explained, arguing that “RALIA Would Take Us Back To The Patent Law Stone Age” because:

At the end of June, Rep. Thomas Massie (R-KY) introduced the “Restoring America’s Leadership in Innovation Act of 2018,” H.R. 6264 (RALIA). RALIA, rather than restoring American innovation, aims to overturn the advances in American patent law that help protect innovation. Last week, I addressed Rep. Rohrabacher’s ‘Inventor Protection Act’ (IPA) [1][2], and I’ve previously covered the STRONGER Patents Act[1][2]. Now we can turn to the third member of this group of anti-innovation bills, RALIA.

Here’s the gist of it. The AIA? Gone. Decades of court decisions fine-tuning the balance between the patent reward and the impacts of the government-granted monopoly that a patent represents? Gone. RALIA even gets rid of the 18 month publication rule, which makes no sense if you want to promote progress—it only matters when it comes to promoting patents, a fact the bill actually admits.

[...]

RALIA includes an amendment to § 101 as well. This amendment appears to be based on the IPO and AIPLA proposals, which Patent Progress has covered in the past.[1][2]. The basic idea? Let’s make everything patentable, no matter if it would prevent anyone from accessing a basic scientific building block or represents nothing more than an abstract idea stripped of any structure.

These proposals come from interest groups that claim that § 101 “is not meant to provide the standard for deciding whether a particular technical advance should receive patent protection.” But that statement is wrong—that’s exactly what § 101 is for. And I’m not alone in this view. Back in June, USPTO Director Andrei Iancu agreed, describing § 101 as a determination of “what specifically, as a country, do we want to exclude from patenting.” There’s active discussion on what falls into that category, but it simply isn’t serious for AIPLA to suggest that § 101 isn’t intended to prevent certain types of patents.

As Patent Progress stated when these proposals first came out, they don’t promote progress, just patents that will block basic research and overbroad patents that claim an abstract idea. The only beneficiaries will be those who assert low-quality patents; it certainly won’t benefit progress of the useful arts.

RALIA is still being promoted in some media circles, we’re assuming at the behest of law firms. Those who value innovation in the US know that PTAB and § 101 aren’t the problems; they’re part of the solution.

08.02.18

IBM’s Patent Aggression Celebrated by Law Firms, Condemned by Technical People

Posted in Deception, IBM, Law, Patents at 5:03 am by Dr. Roy Schestowitz

2016: IBM Comes Under Growing Scrutiny for Increasingly Acting Just Like a Patent Troll Amid Layoffs

Ginni Rometty

Summary: The predator which IBM has become under Ginni Rometty is rightly perceived as a dangerous parasite; sites of the litigation ‘industry’, however, treat IBM like some sort of champion, giving it speaking positions, media platforms and anything else it needs to espouse supposed virtues of software patents and shakedown with such patents (low-quality or bunk patents in large numbers)

THE decline of IBM led to a rush for patents. IBM has long dominated the USPTO ‘charts’, having pursued some of the most laughable patents (widely mocked by technical people on the Internet over the past 2 decades). Some of these patents were voided and let go of by IBM after they had caused a negative atmosphere (bad press).

But don’t think that IBM is being condemned by the “litigation community”; to them, IBM is some sort of “hero”, having “proven” that “monetisation” with “intellectual property” still “works”.

Ellie Mertens, a New York-based contributor to a patent maximalists’ site, wrote that “IBM’s win in its first patent suit to go to jury trial in 20 years may make efficient infringers think twice before rejecting licensing agreements, its lawyer John Desmarais says…”

“The ‘patent troll in chief’ is now being celebrated by the patent trolls’ lobby, IAM.”So only amplifying IBM’s side of the story? As usual? “A jury awarded IBM $82.5 million in damages on July 27 for Groupon’s wilful infringement of four of IBM’s patents that relate to enabling e-commerce,” Mertens added. Did Mertens pursue Groupon too for a comment? It’s hard to tell because of the paywall. The Chicago Tribune wrote about this too (by Christopher Yasiejko), as did a lot of corporate media. We gave some examples of coverage when we mentioned the calls for an IBM boycott.

The ‘patent troll in chief’ is now being celebrated by the patent trolls’ lobby, IAM. Days ago it wrote: “We are thrilled to have @IBM’s Cynthia Seal join us as a speaker for this year’s Patent Licensing (San Francisco, September 18). Get your ticket today to hear her discuss the good, the bad, and the ugly of #PatentLicensing.”

Guess who covered the IBM aggression for IAM. It was patent extremist Richard Lloyd. This is what he said under the biased headline “IBM counsel hails big win against Groupon as another sign that the US patent pendulum is swinging back” (again amplifying the aggressors’ messages, never the defendants’). To quote:

The lead counsel representing IBM in its recently decided case against Groupon has characterised the company’s court victory on Friday in the dispute as a “shot in the arm for all licensors”. John Desmarais was speaking to IAM shortly after the verdict was handed down by the jury in the Delaware federal district court, which ruled that Groupon had willfully infringed on four e-commerce patents owned by the tech giant and ordered it to pay $82.5 million in damages.

Cynthia Seal and John Desmarais. These are the sorts of people whose side IAM is taking. Maybe IAM and IBM are similar not only in the acronym sense.

“Technical people aren’t so gullible, however, so they can see IBM for what it has really become.”As we noted before, the patents in question (those used against Groupon) are highly dubious. So are these patents, just mentioned the other day in a tweet which said: “Where #blockchain meets #drones: #IBM #patent US9875592B1: “The drone may perform an authentication procedure by scanning the person (or people) through visual, audio, biometric, or other means, and may send a signal to grant or deny access.””

That’s yet another software patent, but they ‘dress that up’ as “blockchain”.

Anyway, our main concern is that the media got stuffed by IBM, its lawyers, its front groups, and so-called ‘journalists’ who rather than study the underlying facts merely asked some law firms (patent maximalists) in order to relay the narrative IBM wants. Technical people aren’t so gullible, however, so they can see IBM for what it has really become.

07.27.18

Correspondence With Dražen Petrović Reveals That ILO-AT is Indeed an Employer’s Court, Favouring EPO Management Over EPO Staff

Posted in Europe, Law, Patents at 12:46 am by Dr. Roy Schestowitz

Not a labourers’ court but a labourers’ foe, which drains their money under the assumption that fair trials are possible and employers would comply with an unfavourable outcome (some don't, without facing any consequences)

Cicero's Use of Judicial Theater
Reference: Cicero’s Use of Judicial Theater

Summary: What’s publicly advertised as access to justice for aggrieved employees in international institutions seems to boil down to injustice perpetuated and rubber-stamped, or unfavourable rulings (against employers) not being followed

THE face-saving tactic/strategy of the EPO, namely hiding behind the face of António Campinos, doesn’t impress us because we more or less understand what goes on behind the scenes. 12 days ago, for example, we showed the EPO’s management fighting to just 'intercept' or underline/thwart (for lack of a better word) the ILO cases. Justice isn’t the goal; they just waste stakeholders’ money on lawyers, trying to ‘win’ cases at all costs, draining complainants’ savings using legal bills. This is pure evil. This is known as legal bullying and staff should go public with this kind of stuff. It appears to be part of a pattern and a trend, which we assume SUEPO is well aware of already.

We’ve managed to obtain recent correspondence which sheds light on human rights aspects of all this, starting with the following from ILO-AT:

Dear ██████

Complaint No. ████

Further to my email of 12 July 2018 concerning your 13th complaint please be advised that the President of the Tribunal has approved your request to reply to the EPO’s comments.

I therefore ask you to send me six copies of your reply to the EPO’s comments by Monday, 20 August 2018.

The procedural requests mentioned in your emails of 12 and 16 July 2018 have no legal basis.

Yours sincerely,

Dražen Petrović
Greffier/Registrar
4, route des Morillons
1211 Genève 22
Suisse

Here’s the response:

Dear Sir or Madam,

With regard to your e-mail here below I respectfully request to extend my term
for reply to 120 days from now and to stay the proceedings in my ██ case no.
██████ during the procedural term for reply in case no. █████

Reasons:

1. My chronic illness, see letter by OH physician,

2. Recent pain in my right wrist under examination/treatment (since my last procedural term, see recent e-mail by my GP which I feel unable to translate currently*

3. Frequent stomach pain due to severe nervous stress caused by the EPO’s procedural conduct, slight gastritis recently diagnosed, see recent gastroenterologist’s report*

4. The EPO’s two(!) professional(!) lawyers had 90 days for their reply. In view of the principle of equal treatment of the parties I should normally be granted a term double as long as that granted to them, as I am just one(!) former employee, not a professional lawyer and also ill.

Please confirm receipt for this e-mail.

Sincerely yours,

██████

The ILO-AT set another 30-days term for reply after the EPO had a term of 90 days for their last submissions. This isn’t the first time they do this to this complainant and they probably do the same thing to other complainants.

Extension requested by the complainant resulted in this:

Dear █████

Complaints Nos ████ and ████

I acknowledge receipt of your email of 20 July 2018.

I shall consult the President of the Tribunal on your request to extend the time limit for sending me your reply to the EPO’s comments to your further submissions on your ████ complaint (AT ████).

If the President grants the above request for extension, we shall then seek the views of the EPO’s counsel on your application to stay the proceedings on your ████ complaint (AT █████) for the duration of that extension. The President will decide on that application inlight of the views of both parties.

Yours sincerely,

Dražen Petrović
Greffier/Registrar
4, route des Morillons
1211 Genève 22
Suisse

This is the latest:

Complaints no. █████ and ████

Dear Sir or Madam,

With regard to your e-mail of 24 July 2018: The procedure indicated by you here below is much too slow, given that you set me a term of 30 days only, until 20 August 2018, for my reply in re AT ████. This way I cannot make use of my rights under Article 5.1 of the Tribunal’s Rules to plead my own case. On █████ 2017 you swiftly extended my term of reply the following day. In
view of my chronic illness with proven recent aggravation (see attachments of this year to my e-mail of █████) I respectfully request a prompt extension of my term of reply also now.

In view of the Tribunal’s generally presumed independence it is not to the EPO to determine or even influence the Tribunal’s procedural decisions in my cases.

Sincerely yours,

██████

There seems to be some ‘circulation’ for this case, as it’s one of many that became more famous (or notorious). Quite a few people became familiar with this case, so ILO-AT can no longer keep it secret/confidential. In the above, the compliant is being implicitly refused an extension once more. This happened repeatedly at an earlier stage in various cases. Thereby staff rights under Article 6 ECHR as well as under Article 5.1 of the Tribunal’s Rules were violated.

“What good is a ruling without actual enforcement of it? Is an ILO-AT decision legally-binding only when employers win and mere judicial theatre when employees win a case?”No matter what they do, EPO complainants are being thrown around, compelled to spend a lot of time and money on cases that would likely go nowhere because, as SUEPO puts is, ILO-AT is an “employer’s court”. SUEPO and some SUEPO members are obviously keeping abreast of all this; in fact, that’s how the information gets leaked to us. It is being passed around and unless ILO (Guy Ryder, Dražen Petrović and the rest of them) care about their reputation, things will only exacerbate over time. This is, inadvertedly, becoming a case of ILO scandals, not just EPO scandals. Many nowadays feel as though ILO merely protects EPO management. It isn’t even enforcing rulings against EPO management, e.g. Judge Corcoran, SUEPO leaders and so on. What good is a ruling without actual enforcement of it? Is an ILO-AT decision legally-binding only when employers win and mere judicial theatre when employees win a case? This sort of judicial deficit can’t really be reported to anyone because ILO (UN) is itself immune, hence in a certain sense beyond and above the law.

07.19.18

Australia Says No to Software Patents

Posted in Australia, Law, Patents at 9:24 am by Dr. Roy Schestowitz

Australian flag

Summary: Rokt is now fighting the Australian patent office over its decision to reject software patents; Shelston IP, an Australian patent law firm (originally from Melbourne), already meddles a great deal in such policies/decisions, hoping to overturn them

LEAVING aside the EPO and USPTO, two of the world’s largest English-speaking patent offices, there has been some news from Australia, where IP Australia (the Australian patent office) told stakeholders that software isn’t really patent-eligible anymore. We’ve seen several articles about this lately (we mentioned some a week ago) and Lawyerly is the latest to spread the news and shed light on it. “Rokt’s software innovative but not patentable, IP Australia tells court” is the headline. Here’s the key part: “An invention that simply puts “a business method or scheme into a computer” is not patentable, the Commissioner of Patents told a court Wednesday on the first day of a highly anticipated trial over a rejected software patent application by marketing tech startup Rokt.”

“This was achieved in the face of great pressure and constant lobbying from law firms.”Fantastic! Well done, Australia!

This was achieved in the face of great pressure and constant lobbying from law firms. We wrote about it dozens of times over the years and named some of the culprits. In Australia we’ve seen Shelston IP quite a lot recently, attacking the policy and smearing officials for doing the right thing. Shelston IP went further than this and attempted the same thing in New Zealand, where software patents have never been allowed.

Earlier this week we saw Shelston IP rearing its ugly head again in Mondaq and in Lexology (we presume paid placements). Shelston IP (Shelston IP Pty Ltd being its full name), the loudest bunch of lobbyists for software patents down under (Australia and New Zealand), are clearly still meddling in New Zealand’s policies (but they’re Australian!). They’re targeting the Intellectual Property Office of New Zealand (IPONZ). Here’s what they wrote:

As seasoned patent scribes, who have between us covered almost everything of significance coming out of New Zealand over the past 15 years, the manner in which a recent article resonated was somewhat unexpected. The article didn’t cover the new Patents Act 2013, poisonous divisionals, the TPP, or even Eminem supposedly suing the NZ Government for copyright infringement – rather, it related to the proposed “Advancement” patent. On reflection, recent goings-on in Australia regarding the will they/won’t they nature of the “Innovation” patent cull probably served to bring the notion of Australasian second-tier patents more into the global IP focus than it might otherwise be. Nonetheless, given that we’ve fielded a few recent questions of the “what’s happening?” variety, this seems like an opportune time for a quick update.

[...]

Pre-history of the Advancement Patents Bill

New Zealand’s new Patents Act 2013 took effect from 13 September 2014. Any complete application filed in the Intellectual Property Office of New Zealand (IPONZ) following commencement of the new legislation is subject to patentability standards substantially aligned with international norms. Such standards include examination for inventive step and represent a perceptible increase with respect to those prescribed under the outgoing Patents Act 1953, under which a second-tier patents regime was never needed.

Why the impression that New Zealand never “needed” a second-tier patents regime?

Under the outgoing Patents Act 1953, inventive step was not examined, which in effect, meant that one could often obtain a New Zealand standard (20 year) patent for the same “low level” invention that if pursued before the Australian Patent Office may only have been worthy of an Innovation (8 year) patent. With the advent of the Patents Act 2013, this was no longer true. Indeed, the balance had been effectively reversed.

[...]

Under New Zealand’s 1953 Act, one could essentially take an invention/innovation worthy only of an Australian Innovation patent (8-year term) and use it to obtain a New Zealand standard patent (20 year term); this facility has been removed with the advent of the Patents Act 2013. However, in so doing, a New Zealand patent applicant having only a low-level invention is left with no fallback position, for there is currently no second-tier patent system.

Whereas the legislative space for a New Zealand second-tier patent system and the economic drivers for its adoption have been well known and publicised, Dr Parmar now provides a political impetus that had previously been lacking.

As we wrote earlier this summer, these so-called ‘free’ ‘trade’ ‘agreements’ are being used to shoehorn law changes that would harm the general public for multinational corporations’ gain. We definitely need to watch out for the possibility that they’ll pull something off in the same sense (and means) Team UPC strives to in Europe. The above too uses the term “unitary” and it’s not a coincidence.

07.18.18

“Trade Secrets” Litigation Rising in the Wake of TC Heartland, Alice, Oil States and Other Patent-Minimising Decisions

Posted in America, Law, Patents at 6:02 pm by Dr. Roy Schestowitz

The Justices have collectively made patent litigation less attractive a tactic

Drawing
Back to the drawing board

Summary: Litigation strategies are evolving in the wake of top-level decisions that rule out software patents, restrict venue shifting, and facilitate invalidation of patents even outside the courtroom

THE USPTO deals with two laws: patents and trademarks. Copyrights are managed by a separate office, suitably named the U.S. Copyright Office, and “Trade Secrets” (we put that in quotes and capitalised intentionally) are being dealt with by courts (this law was revised some years ago in Defend Trade Secrets Act (DTSA)). Those things aren’t the same; they’re inherently very different and calling them all “IP” is part of the propaganda peddled by law firms.

“Trade Secret/s” litigation is up whereas patent litigation is down very sharply because the latter is simply too risky to the plaintiff. "Trade Secret" 'damages' can, moreover, be much higher, vastly exceeding patent calculations. Here are some numbers from a new blog post:

The basics: Federal Trade Secret litigation is up about 30% following enactment of the Defend Trade Secrets Act (DTSA) in 2016. (1134 cases filed in 2017). The DTSA created a federal cause of action for trade secret litigation and resulting original jurisdiction in federal court for the federal claims. Prior to the DTSA, state-law trade secret claims found their way into federal court either via supplemental jurisdiction (typically linked to an a federal IP claim) or via diversity jurisdiction (parties from different states).

“The trade secrets dilemma” is IP Kat‘s latest title of a blog post — a post “drafted by Andrew McWhirter (Brodies Solicitors) concerning a recent Scottish trade secrets decision: Bilfinger v Edinburgh Tram Inquiry.”

“Trade Secret” is not just a US thing; different countries, however, implement or enforce that differently, using their own sets of laws, which can (and do) change over time.

Will we be seeing a departure from overzealous patent trolling in the coming years or decades? “Trade Secrets” aren’t the type of thing which can be passed to trolls.

Patent trolls are, as a matter of fact, dying in the US. Their patent litigation, more so after TC Heartland (at SCOTUS), is being shifted out of their comfort zone, typically Eastern Texas. Take note of this new example, wherein “Storage Units Do Not Satisfy Second Prong of Cray Test for Establishing “Regular and Established Place of Business”,” as per the summary. This is happening in New York:

Earlier this year, in CDX Diagnostic, Inc. v. United States Endoscopy Group, Inc., District Judge Nelson S. Roman of the U.S. District Court for the Southern District of New York granted a Motion to Dismiss for Improper Venue pursuant to Federal Rule of Civil Procedure 12(b)(3) filed by Defendants United States Endoscopy Group, Inc. (“Defendant”) and John Does 1-30. In its Motion, Defendant argued that the patent infringement action filed by Plaintiffs CDx Diagnostic, Inc.; Shared Medical Resources, LLC; and CDx Medical IP, Inc. against Defendants should be dismissed for improper venue. In particular, while Defendant conceded sales of allegedly infringing product into the Southern District of New York, it argued that Plaintiffs had failed to demonstrate that Defendant has a regular and established place of business within the Southern District of New York.

They keep coming up with ‘artistic’ (laughable is probably a more suitable term) ways to justify dragging the defendant to other states. It has gotten a lot harder after TC Heartland. If anything, TC Heartland has caused districts which are favourable/beneficial to patent trolls to lose actual, real business. Different rules apply to foreign companies.

The US should, in general, celebrate the demise of patent maximalism. It has done no good for the country, only for a bunch of parasites and bullies, notably trolls and their law firms. And what about public interest? Letting perfectly fine products, as per this new development in Tinnus Enterprises, LLC et al v Telebrands Corporation et al, go to waste because of patents? To quote Docket Navigator’s latest docket report:

The court granted plaintiffs’ motion for a preliminary injunction and denied a retailer defendant’s request to sell its remaining inventory of the accused product.

All this because of patents? Before the decision even had an appeal opportunity (e.g. to the Federal Circuit)? That’s very much like ITC imposing embargoes in defiance of Patent Trial and Appeal Board (PTAB) rulings, voiding the patents in question after an inter partes review (IPR). How does the public ever benefit from embargo, lack of choices and so on?

07.15.18

Cautionary Tale: ILO Administrative Tribunal Cases (Appeals) ‘Intercepted’ Under António Campinos

Posted in Europe, Law, Patents at 11:03 am by Dr. Roy Schestowitz

UIMP event and FTI Consulting

Summary: The ILO Administrative Tribunal (ILO-AT) is advertised by the EPO‘s management as access to justice, but it’s still being undermined quite severely to the detriment of aggrieved staff

THE NEW President of the EPO, António Campinos, is still not complying with ILO-AT judgments. It’s problematic for a lot of reasons and sources of ours already give up on him (or concede hope that he will fix things that matter). Actions are needed; it has already been half a month.

Earlier this year we saw links to some tweets of somebody called Anette Koch, who came out in Twitter, revealing grievances she had experienced at the EPO. Just before the weekend we saw more links (or retweets) from EPO-connected accounts to documents that we decided to publish yesterday. These documents, or rather a two-page letter (E-mail/s), confirmed our suspicions that when it comes to justice Campinos and Battistelli might be indistinguishable.

“These documents, or rather a two-page letter (E-mail/s), confirmed our suspicions that when it comes to justice Campinos and Battistelli might be indistinguishable.”So we attempted to contact the person in question. It wasn’t hard because the E-mail appeared in the above documents. We now have a better understanding of what’s going on and would like to share what the EPO under Campinos is doing.

“The EPO attempts to jeopardize three of my cases with the Tribunal by arbitrarily re-starting them in internal appeal and inviting me for comments,” Koch responded to my E-mail, “[so] of course I will comment to the Tribunal only. Please note that the Tribunal did not refer them back to the EPO, i.e. the EPO acts on its own initiative.”

Remittance before judgments can even be reached? That’s odd. How many more people might this be done to? It wouldn’t be so shocking if the EPO, under instructions from high-level management (maybe Campinos himself or HR itself), is just mass-mailing this to a lot of complainants.

“I am sick and tired of this type of bullying,” Koch told me, “I have pain in my stomach and in my right wrist currently, so I have to be short.”

“Remittance before judgments can even be reached?”It doesn’t look as though the EPO changes in any concrete way under Campinos. I gave him a chance, I really did; I wanted to think that things were going to improve at least in the sense that the social climate might change. But they’re still panicking. Staff still suffers. SUEPO representatives, victims of union-busting efforts, are still in limbo.

It’s worth noting that the document (or documents, a few E-mails) was produced well after Campinos had taken over and, if so and considering the circumstances, who is most culpable (or to blame) here? The legal department, HR, or someone else?

Campinos has been President since the first of July. The documents (E-mails) are dated 9th of July and 10th of July, respectively. While the decision mentioned could still have been taken by Mr. Battistelli, the new President should normally have been informed. He is welcome to stop this.

“While the decision mentioned could still have been taken by Mr Battistelli, the new President should normally have been informed. He is welcome to stop this.”The crucial legal points are: (i) a lower judicial instance cannot re-start a case under appeal on its own initiative (notwithstanding the non-judicial character of the EPO which is a party to these cases), (ii) in the E-mails the IAC clearly threatens to adopt the current procedural rules (it points to them), i.e. all its members can be nominated by the President only or determined by lots. To adopt the current rules contravenes the principle of non-retroactivity, obliging the EPO to follow the Service Regulations at the time of filing internal appeals at which part of IAC members were still to be nominated by the CSC (where’s the IAC’s “independence” otherwise?).

“The effect of such E-mails on my health is significant,” Koch told me, “i.e. pain in my stomach, neck, wrist and elbow.”

It’s bad enough that the EPO’s poor facilities have already caused many disabilities at the EPO (we wrote about it before). It’s even worse that those people get ‘discarded’ once the EPO ‘breaks’ them and these people are then denied access to justice. What kind of employer is this? Persistent rumours suggest that the EPO isn’t even hiring anymore; it only pretends to, i.e. it’s wasting people’s time and making them nervous without any prospects of a job.

“This further reaffirms SUEPO’s allegation (from a couple of weeks back) that ILO-AT “remains very much an employer’s court” (not employees’) because it’s often doing whatever EPO management wants it to do.”Remarking on the above, Koch replied to our query by asserting that “the main aim of all this is of course to prevent treatment of my cases in substance by the Tribunal, by having them referred back to the IAC, i.e by delay. This would be another catastrophe, and I have to do everything I still can to prevent this [...] it’s about the EPO’s and partly the ILOAT’s way of proceeding, not about me in person [...] Yet it is new (in my cases) and utterly absurd that the IAC simply restarts cases in internal appeal on its own motion, even without the Tribunal referring them back to the IAC (at least SUEPO did not report such cases yet).”

This further reaffirms SUEPO’s allegation (from a couple of weeks back) that ILO-AT “remains very much an employer’s court” (not employees’) because it’s often doing whatever EPO management wants it to do. It doesn’t really feel impartial and decisions get delayed at the request of the EPO.

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