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02.26.17

The Patent Trial and Appeal Board (PTAB) and the Federal Circuit (CAFC) Take on Patents Pertaining to Business Methods

Posted in Courtroom, Law, Patents at 7:19 am by Dr. Roy Schestowitz

This intervention from CAFC can spell doom for some more patent trolls

A business PDA

Summary: Patents on tasks that can be performed using pen and paper (so-called ‘business methods’, just like algorithms) and oughtn’t be patent-eligible may be the next casualty of the America Invents Act (AIA)

THE PAST week was an important week for the subject of patents on business methods (CBM, or covered business method), almost a sibling of software patents. There were also many articles on the subject, including this from the mainstream/corporate media (the Wall Street media in this particular case).

“They just mean to say that business method patents may be rubbish and should not be patentable in the first place.”Ignore the expected bias (publication is joined/connected to big banks by the hip) and disregard the weird and almost incomprehensible headline. They just mean to say that business method patents may be rubbish and should not be patentable in the first place. To quote: “The assertion of a patent against Bank of America, GE Capital Corp. and 40 other financial institutions doesn’t make it a financial business method invention vulnerable to attack in a Patent and Trademark Office special proceeding, an appeals court said Feb. 21 ( Secure Axcess, LLC v. PNC Bank N.A. , 2017 BL 51354, Fed. Cir., No. 2016-1353, 2/21/17 )”

Also from the article: “Patent challengers like the special “covered business method” proceeding because it gives them more options to make invalidity charges, such as on whether the invention is patent-eligible. In November, the U.S. Court of Appeals for the Federal Circuit ruled against Apple Inc.’s argument that a CBM patent includes one whose invention is “incidental” to financial activity. The court’s 2-1 decision Feb. 21 further limited CBM to be more dependent on what, exactly, the patent holder claimed.”

Michael Loney, a PTAB expert from MIP, covered it as follows, taking note of the relevance to PTAB:

The Federal Circuit has concluded “the patent at issue is outside the definition of a CBM patent that Congress provided by statute” in its Secure Axcess v PNC Bank National Association ruling. Judge Lourie wrote a dissent, backing up the PTAB’s determination

The Federal Circuit has reversed the Patent Trial and Appeal Board (PTAB) in secure Axcess v PNC Bank Association.

WIPR‘s article about it was fairly detailed:

The US Court of Appeals for the Federal Circuit concluded that the Patent Trial and Appeal Board (PTAB) adopted a statutory definition of covered business method (CBM) patents that went too far.

In an opinion handed down on Tuesday, February 21 in Secure Axcess v PNC Bank, the court reversed the finding that a patent owned by internet security company Secure Axcess was a CBM.

Secure Axcess challenged a final written decision of the PTAB that held that its patent was a CBM.

The dispute concerned US number 7,631,191, called “System and method for authenticating a web page”.

Now watch the following CBM review, which involves Ericsson’s patent troll, Unwired Planet LLC. Law 360 had this to say about it:

Unwired Planet LLC urged the Federal Circuit on Wednesday to let stand its November decision that held the Patent Trial and Appeal Board is using an overly broad definition of what qualifies under its covered business method patent review program.

In a brief responding to Google Inc.’s request for an en banc rehearing, the company said the appeals court rightly reined in the PTAB’s authority for reviewing patents directed at financial services, arguing that Google and its tech company amici are inappropriately asking a federal appeals…

Patently-O, in the mean time, wrote about CBM reviews as follows, taking stock of AIA (which brought PTAB): “The America Invents Act created a temporary mechanism (8-year) for challenging certain “covered” business method patents. The program will sunset for new petitions in the “Transitional Program for Covered Business Method Patents” (“CBM review”) sunsets on September 16, 2020. The program allows for CBM patents to be challenged on any ground of patentability (e.g., Sections 101, 102, 103, and 112) and is not limited to post-AIA patents.”

This has been a fantastic and very successful program. No business methods should be patentable and the CAFC has been looking into it, in effect (or potentially) axing a lot of patents that should never have been granted in the first place.

02.16.17

EPO Staff Representatives to Escalate Complaint About Severe Injustices to the EPO’s Secretive Board 28

Posted in Europe, Law, Patents at 9:14 am by Dr. Roy Schestowitz

Board 28 escalation

Summary: In a new letter to President Benoît Battistelli it is made abundantly apparent — however politely — that Battistelli’s gross abuses could further complicate things for Battistelli, who is already embroiled in a fight with his predecessor, Roland Grossenbacher

The EPO‘s Board 28, which meets privately, has already admitted that there is a crisis at the EPO (“crisis” is their own word). Do they realise who caused this crisis? Do they care to openly admit this?

“Does a half-brother need to be assassinated in some Malaysian airport before politicians all across European openly denounce Battistelli and demand sanctions against Eponia?”Less than a year ago Battistelli ignored what the Administrative Council had demanded and he miraculously got away with it. It seems like his own ‘bosses’ have become subservient to him. It’s totally absurd. It makes Eponia, at least unofficially, a rogue state. Does a half-brother need to be assassinated in some Malaysian airport before politicians all across European openly denounce Battistelli and demand sanctions against Eponia?

Earlier today someone leaked to us this long (43 pages) document [PDF] from which the above was extracted. There are various noteworthy things about it, including Article 113 which says “[a] complaint may be filed with the Administrative Tribunal of the International Labour Organization in accordance with its Statute once a decision is final, when internal procedures are either excluded or otherwise exhausted.”

“It’s time to involve more people in the scrutiny of what has become Europe’s great source of shame.”Well, ILO usually does not help (it just wastes time and then sends back the majority of cases to the kangaroo court). Even when it rules against the EPO’s management Battistelli does not quite obey demands of a fair trial. So what gives? It’s time to involve more people in the scrutiny of what has become Europe’s great source of shame.

Recently, SUEPO produced a translation of a Dutch decision (converted from Dutch into English), revealing just to what degree states which proclaim to uphold justice let the EPO get away with extreme abuse, mistrials, and so on. Here are 8 articles that we wrote about it:

  1. Battistelli is an Autocrat Above the Law and It’s OK, Holland’s High Council Says
  2. EPO Abuses Now Make the Netherlands Look Like a Facilitator of Human/Labour Rights Abuses
  3. Media Blasts EPO Over Immunity Amid Suicides, Battistelli’s Behaviour Compared to Dominique Strauss-Kahn’s
  4. Leaked: Team Battistelli, Exploiting a Controversial Decision From the Netherlands, is Trying to Squash SUEPO
  5. The EPO’s Freedom to Disregard the Law and Abuse Employees is “Being Taken up by the Council of Europe”
  6. “Team Battistelli Continues With Intimidation Tactics”
  7. The European Patent Office Officially Dishonours Justice, So It’s Time for SUEPO to Become Clandestine
  8. Culture of Terror at The European Patent Office Escalates Thanks to Dutch Government’s Complicity

SUEPO wrote about this as well; it published the following public statement in its Web site just over 3 weeks ago:

24 January 2017
ex17002cp

The Supreme Court of the Netherlands upholds the EPO’s immunity

Dear SUEPO members, dear colleagues,

We are disappointed to inform you that the Supreme Court of the Netherlands has decided to uphold the EPO’s immunity in the case brought by SUEPO to complain about infringement of fundamental rights.

This decision has obvious implications for the about 40 international organisations based in The Netherlands, who are now free to violate fundamental rights in the “City of Justice and Peace” if they so wish.

For our part, we maintain that functional immunity is not the same as absolute immunity, but the consequences of this fine but important distinction are apparently lost on many. While we are disappointed with the Supreme Court’s decision, we are also comforted to learn that the issue of immunity of international organization (and abuse thereof) is being taken up by the Council of Europe, a debate in which SUEPO’s counsel participated.

One thing is clear: While, according to the judgment, the Dutch judge cannot do anything about the EPO’s violations of fundamental rights, the findings that such violations occurred remains on the record – a permanent stain on the CV of Mr Battistelli and his associates.

The judgment raises the issue of liability of member states: can they really sign up to international treaties that abolish fundamental rights for so many of their citizens? With the judgment, the EPO goes scot-free – but what are the consequences for the host state itself? Such questions will likely be a matter of discussion in the upcoming parliamentary discussion on the EPO, planned for 9 February.

Anyway, we will review the judgment in detail and assess what the next steps can be. We will keep you informed. For the moment, we wish to thank wholeheartedly our legal team for the tremendous work done during the past years on what was from inception a very complex legal case, as well as you all for the support provided during the worst social crisis of the EPO since its inception in 1977.

The EPO can continue its story-telling to the public, namely that “its door is always open”. The reality is that in 2016 three Union Officials have been dismissed, one severely downgraded. This is anything but social dialogue, and a terrible world-premiere among International Organisations.

Your SUEPO Committee in The Hague


Staff Union of the European Patent Office (SUEPO)
Veraartlaan 8
2288 GM Rijswijk (ZH) The Netherlands

suepothehague@gmail.com

http://hague.suepo.org/epo

Will Board 28 wake up and take action already? Will people who kill innocent animals for fur have the compassion for human beings who are pushed to the verge of suicide (if not suicide)? Frankly, we doubt it. The rogue state has become so rogue that expecting an organ within the EPO to repair the whole Organisation is like expecting North Korea to repair itself from the inside. Outside intervention, probably political intervention, is sorely needed. It won’t happen unless the public becomes better informed and actually demands this from politicians.

02.15.17

Claude Rouiller (ILOAT) and ILO Rulings Effectively Disregarded by the European Patent Office

Posted in Deception, Europe, Law, Patents at 9:27 am by Dr. Roy Schestowitz

Like anyone seriously thought that Battistelli would obey the law, for a change

Claude RouillerSummary: The compositions of kangaroo courts at the EPO continue to be absurd, in spite of a ruling from the International Labour Organisation (ILO), which insisted that change must be made following a lot of mistrials

EARLIER THIS year we heard about escalations in Battistelli’s attack on staff, emboldened by a Dutch court’s decision to maintain Battistelli’s immunity. In December the International Labour Organisation ruled that for a couple of years Battistelli’s EPO had not offered justice to workers] (a hundred if not several hundreds people are affected by this gross injustice).

Of high relevance to this is the following statement from the written determination:

ILO composition of EPO trials

This morning, EPO workers (i.e. colleagues) had disseminated among them information about what had been happening behind the scenes (quiet before the storm?). In a nutshell, Battistelli’s ‘herculean’ actions continue to rattle or threaten staff representatives and thus provide less incentive to keep one’s place there (or even join). These aren’t mere deterrence tactics but union-busting tactics. Anyone can see that.

“In Judgement 3785,” said an insider, “ILOAT declared the composition of the internal Appeals Committee (ApC) illegal for the years 2014 (partly), 2015 and 2016. With CA/D 18/16, the Office and the Administrative Council reacted and revised Article 36(2) of the Service Regulations in December 2016. Staff representation considers that this proposal is flawed as not responding to the requirement of the ILOAT regarding the balance representation of parties [excerpt of the Judgment can be seen above]. The CSC counterproposal to the B28 remains uncommented so far.”

So the more things ‘change’, the more they stay the same. The person who leaked this to us remarked: “I would suggest that a copy should also be sent to Mr Rouiller, President of the ILOAT [and Former President of the Federal Tribunal (Supreme Court of the Swiss Confederation)] who poignantly declared his satisfaction as the EPO is implementing “some” of the rulings issued by the Tribunal. Sounds like Mr. Rouiller spoke too early. A corrective disapproval would be welcome.”

It turns out, based on letters which are circulating these days, that ILOAT should escalate its actions (not that it has much authority or power over the EPO, as long as immunity remains and Battistelli prevails).

“The nominations made by the CSC in December,” wrote the insider, “were turned down by the President who called in January the 25th on individual elected Staff Representatives to volunteer for the ApC, in accordance with new Article 36(2)(a) ServRegs, last sentence, first alternative. Besides one staff representative, none of the elected Staff Representatives Office-wide responded positively to the call (see exemplary letter below).”

Here is one such letter from one week ago:

Hague justice

Hague justice

“It seems that the President decided to selectively apply its own rules and proceeded on 13 February 2017,” said the insider, “with the drawing of lots (new Article 36(2)(a), last sentence, second alternative) only to complement the three further members of the ApC. And the “winners” are…:

1) ███ ███ (███ ███)
2) ███ ███ (███ ███)
3) ███ ███ (███ ███)

“The Administration was not in a position to indicate who would be a full member and who would be alternate [so folks] are awaiting a decision of the President of the Office about the new complete composition. The mandate of the members will end on 30 June 2017.

“In fine, the ApC is now composed with
· one volunteer* appointed “ex officio”, who was previously member of the declared illegally composed ApC;
· one Staff Representative, who is the complainant of the ILO Appeal which clarified the illegal composition of the ApC;
· and two SRs [staff representatives] with who sent beforehand a letter to the President explaining the reasons why they were not eligible for the job and the drawing of lots.

“It is hard to see how a flawed rule, applied “flexibly” by the captain of the ship, with more than questionable results does serve the interest of Staff and the Office in an adequate and balanced manner?

“Without being a lawyer, under these conditions the quote from the CH [Swiss] delegation in the AC [Administrative Council] takes a particularly acute meaning: “There is a great risk, that we will see ourselves in a short while in the same situation as today”. Just with a more complicated legal situation.

This issue has already been raised (2 days ago) in Munich:

Central Staff Committee Members Munich

Munich
13 February 2017

Dear Mr. President,

We refer to your letter of 26 January 2017, in which you asked all staff committee members to volunteer for a function in the Appeals Committee. We further refer to the email of 10 February inviting all CSC and LSC members to attend a drawing of lots today.

Already when you called for volunteers in December 2014, the CSC sent you a letter explaining why it could not nominate. There were also no volunteer from among the CSC. The same reasons remain valid today. Accordingly, you will have noticed that we did not volunteer this time, either.

At this stage, we would like to notify you that we will not be available for being included in the pool for the drawing of lots. We specifically request that you do not include us in the pool of eligible staff members within the meaning of Article 36(2)(a) ServRegs.

In addition, we wish to draw your attention to the following facts:

1. We stood for election in the Central Staff Committee in 2014. We had no intention to be members of the Appeals Committee, nor was there any such obligation then in the Service Regulations. We have a legitimate expectation to be left to carry out our duties as staff representatives, without being saddled with additional burdens we have never considered taking on.

2. In a meeting with PD43, PD53 and Director 5.3.2. on 8 December 2016, we apparently came to a common understanding about the staff members which would be eligible for sitting in the Appeals Committee, e.g. excluding so-called “repetitive” appellants or members of the Boards of Appeal. The outcome of these discussions as well as our repeated requests to broaden the pool of eligible staff members available for appointment by the CSC were ignored later, most notably in the GCC meeting on 12 December 2016 when you submitted the proposal to amend Article 36 ServRegs.

3. As members of the Central Staff Committee in the biggest place of employment, we are not only dealing with all the central issues which fall under the competence of the CSC, but we are also directly or indirectly advising individual staff members about their rights, and in some cases act as counsels in internal appeals. This role was and is an integral part of our duties as staff representatives. There would be a direct and fatal conflict of interest if we were also to sit in the Appeals Committee. (Please refer to the statement of VP4 and VP5 of 30.09.2014 and to your Communiqué 61.)

4. If you were to coerce us into participating in the Appeals Committee, we would not be able to act impartially as staff representatives. If you were to oblige us to resign from the staff representation to avoid that quandary, you would be violating the principle of freedom of association.

5. Within the framework of the Working Group on resources for the Staff Committees, a specific budget for external expertise was requested – including lawyers to advise staff. We did so promptly upon taking up our tasks as elected staff representatives, as we realised that we could not cope effectively with all the workload involved in advising staff. PD43 has refused to make such budget and technical means available to us until today. Therefore, the Office itself bears a fundamental responsibility in creating the situation in which we cannot sit in the Appeals Committee.

6. At this point in time, there are even more severe problems of capacity for the remaining members of the CSC in Munich than in the previous years. Contrary to your assurances in CA/4/14 and in Communiqué 48 that the time budget for the staff representation would not be reduced with the introduction of “Social Democracy”, the figures show a massive decline. Moreover, the Office has imposed more and more constraints and hurdles in 2016, making our job exceedingly difficult – particularly for those exonerated from examiner duties only to 50%. It is simply physically impossible to take on (additional) demanding projects like the Appeals Committee. SUEPO members or officials amongst us have been particularly targeted.

Putting us in an impossible bind is not in the best interest of staff, the Office and of its reputation. It is also inadvisable to proceed in any way that could cause the Tribunal to condemn the EPO as it did in judgments 3694 and 3751. We trust that, upon careful reflection, you will not go down this road. We firmly believe that there are other ways to solve the issue, all within the current legal framework. We draw your attention to the letter sent by the CSC on 7 February 2017 (sc17016) which entails proposals which would immediately resolve the deadlock of the Appeals Committee.

From our side, we can only reassure staff, the President, and the Administrative Council that we will not act contrary to well-established legal principles and our ethical principles. We will not bring ourselves into any conflict of interest situation that will harm staff members, produce further undue workloads, and harm the sense of justice in our Office.

Sincerely,

The undersigned CSC members in Munich.

And on the same day at The Hague (we haven’t had time to transcribe):

Hague volunteers

Hague volunteers

Justice cannot ever happen in darkness or in secret (secrecy betrays trust and breeds suspicion), so Techrights believes that the above should be publicised, excepting names. We urge our readers to contact Claude Rouiller (from Switzerland, so English, German and French should be fine) immediately and tell him that Battistelli takes him for a fool. According to this page, his E-mail address may still be claude.rouiller@hispeed.ch. This is the kind of thing that Dutch authorities must become aware of, otherwise the Netherlands will become renowned not for international justice (e.g. ICC) but for the very opposite. It has already become quite a farce which we wrote nearly a dozen articles about. Among them:

  1. Battistelli is an Autocrat Above the Law and It’s OK, Holland’s High Council Says
  2. EPO Abuses Now Make the Netherlands Look Like a Facilitator of Human/Labour Rights Abuses
  3. Media Blasts EPO Over Immunity Amid Suicides, Battistelli’s Behaviour Compared to Dominique Strauss-Kahn’s
  4. Leaked: Team Battistelli, Exploiting a Controversial Decision From the Netherlands, is Trying to Squash SUEPO
  5. The EPO’s Freedom to Disregard the Law and Abuse Employees is “Being Taken up by the Council of Europe”
  6. The Netherlands With Its Bizarre Decision to Let the EPO Violate Dutch Law, Now in English
  7. “Team Battistelli Continues With Intimidation Tactics”
  8. The European Patent Office Officially Dishonours Justice, So It’s Time for SUEPO to Become Clandestine
  9. Culture of Terror at The European Patent Office Escalates Thanks to Dutch Government’s Complicity

Remember that the basis for the High Court’s decision to let the EPO off the hook is the supposed supervision — in the legal sense — by ILO, which obviously continues to not safeguard staff’s rights (too many referrals back to the kangaroo court) as Battistelli virtually snubs the ILOAT. This is part of an ongoing and never-ending pattern. The EPO views itself as above the law and it acts accordingly.

Help put an end to the "Mafia" that the EPO has become. Many people’s lives — not just economic welfare — may be at stake.

02.09.17

Good News on the Patent Trolls Front as Collapse of Such Parasitic Firms Continues, US Government Signals Ongoing Reform

Posted in America, Law, Patents at 9:47 am by Dr. Roy Schestowitz

KEEP CALM AND CRUSH PATENT TROLLSSummary: Judging by some of the latest news and developments, the crackdown on patent trolls is likely to continue this year and the Supreme Court is likely to crush the courts of the Eastern District of Texas

THE STRANGE WORLD of patent trolling has grown only in unpopularity and public disdain. I know people and companies that were personally and legally impacted by these. Thankfully, however, the USPTO took some steps towards tackling this plague, helped by courts including SCOTUS, which is likely to rule against the majority of patent trolls some time later this year.

Sites that speak for trolls (and are funded by some) are not particularly happy. We recently wrote about the RPX debacle and it turns out to be even worse than we thought. RPX is now headless and the head’s “departure, which was confirmed in a press release early yesterday morning, apparently came after a proposal he made to take the business private. According to the release, RPX’s board of directors “conducted a review of the company’s prospects and opportunities and disagrees with Mr Amster’s views on the matter”. Given that, Amster clearly had to go. As we also revealed last Friday, he has been replaced by general counsel Marty Roberts on an interim basis.”

“Sites that speak for trolls (and are funded by some) are not particularly happy.”RPX is not defensive, it’s a parasite or even a troll. It’s also supported by Microsoft, a notorious patent aggressor.

It sure looks like many trolls are rotting or dying these days. The father of patent trolling died a few months ago and shortly thereafter his own troll went under. We recently gave some more example of dead (or dying) patent trolls. They’re not publicly-traded entities, so it’s not easy to keep track of such things. Even the world’s largest patent troll, which is connected to Microsoft and was connected to the father of patent trolling, seems to be suffering a collapse (layoffs and founder heading outwards). Microsoft’s own in-house troll was recently decapitated and there too there are layoffs on the way.

“It sure looks like many trolls are rotting or dying these days.”Looking at IAM for some more troll news (they favour the trolls), it turns out that the IP strategist of American Express is quitting and in “IP Zone [he] will continue to make use of its online Virtual Intellectual Property Exchange (VIPEX) tool which IP owners can use to help manage the deal process.”

Sounds like a trolling operation, or a tool for armament of patent trolls. Will it take off? Hopefully not.

In another new post from IAM, which loves the trolling it sees in China, it is being shown that east Asia is quickly becoming a patent trolls hub, as many observers already warned before. Xilinx is now being targeted; its products helped me learn how to develop software at chip design level (I constructed a calculator in just a few days using gate-level design when I was 19).

“Microsoft’s own in-house troll was recently decapitated and there too there are layoffs on the way.”Is there anything that trolls won’t ruin and outright destroy? To quote IAM, “Japanese sovereign patent fund (SPF) manager IP Bridge launched its latest patent assertion campaign at the end of last month, suing fabless chipmaker Xilinx in the Eastern District of Texas.” (EDTX)

Now they do this in Beijing, Tokyo and even Guam. Horrible. We need to be aware of the impact this will have on ordinary people.

Earlier this week Professor Dennis Crouch offered his thoughts on Neil Gorsuch, who is likely to join SCOTUS soon (and will thus rule on patent trolls later in the year; see the aforementioned case). Crouch wrote: “I don’t know if my end-of-April prediction will hold true, but I do expect Neil Gorsuch to become a Justice on the United States Supreme Court. As a 10th Circuit Judge, Gorsuch never decided a patent case, but does have a handful of interesting IP cases.”

“Gorsuch is extremely young for this kind of role (Justice at SCOTUS).”That’s what we too noticed. He’s mostly a mystery when it comes to copyrights, patents etc. One has to wonder how much of a grasp he has in this area. If he is not experienced or properly educated, then patent maximalists will prey on his mind and turn him into another Rader. Gorsuch is extremely young for this kind of role (Justice at SCOTUS).

Writing about where companies stand on killing patent trolls, or at least putting an end to their venue of choice (EDTX), Crouch wrote this quick but detailed post the other day. “Just about everybody is weighing in on #SCOTUS case over #patent venue shopping,” one firm wrote about this. “Here’s an easy breakdown, w/links…”

“Professor Mark Lemley is fantastic and he barely has a conflict of interest, so we hope that SCOTUS will weigh his views accordingly.”“Without the Government Brief,” Crouch noted, “Mark Lemley’s brief (on behalf of 61 professors) may be seen as the most influential. However, I would suggest that the brief loses some amount of its “law professor” credibility by being so one-sided in its statutory construction.”

Professor Mark Lemley is fantastic and he barely has a conflict of interest, so we hope that SCOTUS will weigh his views accordingly. Here is the EFF writing about its own submission:

Supreme Court Must End Texas’ Grip on Patent Cases, Restore Fairness in Court Selection

Washington, D.C.—The Electronic Frontier Foundation (EFF) urged the Supreme Court to overturn a court decision that tilted the scales in favor of patent trolls by making it easier for them to venue shop and file lawsuits in certain courts.

Venue shopping, also called forum shopping, is an insidious practice whereby parties to a lawsuit look for courts with procedures favorable to their cases. Unfortunately, some courts have engaged in an even more insidious practice known as forum selling by actively encouraging patent lawsuits in their districts. For example, a court might adopt plaintiff-friendly procedures and policies that undermine the rights of defendants.

One such court is the Eastern District of Texas, a rural area with almost no manufacturing, research, or technology facilities, where more than one-third of all patent cases in the country were filed last year. That proportion is no accident: patent litigants flock to Texas because the court has put in place a host of procedures that make it difficult for defendants to terminate meritless cases early, while also speeding up the time it takes for cases to go to trial.

Matt Levy has not yet had much to say about it (the submissions, not the subject as a whole), but he wrote this:

Patent Reform Is Back on Congress’ Agenda

Here’s some good news from the House of Representatives.

Levy cites this: “Goodlatte Announces Agenda for 115th Congress” (Judiciary of the White House).

To quote: “We’ll also work on reforms to discourage abusive patent litigation and keep U.S. patent laws up to date. Collectively, these reforms will help alleviate the wasteful burden of unnecessarily expensive litigation costs, thereby freeing small businesses to flourish, unleash innovation, and create new jobs for Americans.”

“We have always been courteous and polite towards Michelle Lee. She did a good job.”So even after the election of Trump there seems to be will to sort things out. That’s an encouraging sign.

Watchtroll, in the mean time, having attacked the Director of the USPTO, “is [still] trying to drum up controversy over the possibility that she might remain,” according to Mike Masnick. We are gratified to see that other people have noticed this too.

Watchtroll, which is currently attacking Director Lee (Watchtroll authors have attacked Lee a lot, at least 4 times in just a fortnight [1, 2, 3, 4]), has become an embarrassment to the patent microcosm. It is very much eager to show its true colours and by extension this serves to alienate the Judiciary, the Office, etc. We have always been courteous and polite towards Michelle Lee. She did a good job. Also see Matt Levy's good words to Lee. Now contrast this with what Masnick wrote:

I recognize that many (especially regular Techdirt readers) will assume from the title above that the question is a rhetorical one in response to the latest craziness around a stupid trademark or awful patent. But, no, we mean that literally. You see, right before the Trump inauguration, it was widely reported that Michelle Lee would stay on as the Director of the US Patent and Trademark Office. That was undeniably good news. For all the complaints we have about the USPTO, Lee has done a fairly amazing job running that office, and seems to be one of the first Patent Office directors who actually understands how patents can do serious harm to innovation. Keeping her on would be a really good sign. After seeing the stories claiming that she was staying, we’d mostly moved on. However, Politico reporter Nancy Scola sent me down something of a rabbit hole after tweeting that it’s basically impossible to know who’s in charge of the Patent Office right now.

[...]

As for the PTO’s own website, Quinn rightly points out that its leadership page still lists out a number of other individuals who have announced resignations and are no longer there, but whose profiles are still on the website. The Commerce Department seems to be refusing to comment to anyone who asks (I’ve sent in my own question) and it’s quite unclear if Michelle Lee really is the director.

If you look through the fairly long list of articles by Quinn on the subject, it’s quite clear that he (as someone who is not a fan of Lee) is hoping that she’s been pushed out, and is trying to drum up controversy over the possibility that she might remain. But the lack of any clarity from anyone… is bizarre. Quinn’s most recent post on the subject notes that while no one seems willing to say who’s running things, Lee “continues to be seen” in the building. That would certainly support the theory that she’s staying.

We suppose that sooner or later, maybe within a number of weeks, Lee’s position will be confirmed, the Web site will be updated, and Lee will continue to make the patent system “Great Again”, rather than make litigation and/or trolls “Great Again”.

Video: 123rd Session of ILO Tribunal Judgments Session Talks About EPO

Posted in Europe, Law, Patents, Videos at 4:36 am by Dr. Roy Schestowitz

Sending cases back to the lion’s den (EPO) is hardly helping…

Staff demo

Summary: The ILO has done little or nothing to redeem/protect EPO staff, except pointing out that the EPO itself offers no justice (not that ILO does much better)

UNDER limited viewership (see that awkward notice at the bottom*) the ILO has just published this video (we have made a local copy just in case, as access restrictions might be enforced and we might want to crop out bits of it later).

Here it is as embedded and streamable (via Google):

The English decisions are starting at 1:33:20 and some were mentioned in this post last night.

We lack the time to comment on the above, but it’s mostly self explanatory anyway. We have a UPC petition on its way and there’s a lot of news from the US regarding patents, but EPO remains our top priority for now (as nobody else seems genuinely willing to cover the subject and media blackout facilitates the abusers).
_____
* “This video is unlisted,” it says when one hits the Share bottom. “Be considerate and think twice before sharing.”

02.07.17

The European Patent Office Officially Dishonours Justice, So It’s Time for SUEPO to Become Clandestine

Posted in Europe, Law, Patents at 8:15 am by Dr. Roy Schestowitz

Is the European Court of Human Rights the next stop for this megalomaniac and autocrat?

EPO screw is loose

Summary: The war waged by Battistelli against his own staff escalates even further as the reign of terror continues, some believe as means of scaring the union leaders until they resign or lose their voice, let aside their independence which is long gone

THE ORIGINAL idea behind a civilised, reputable EPO is that it should honour rules/guidelines, but not even its President can honour his very own rules (Code of Conduct). To make matters worse, this so-called ‘President’ treats so-called ‘judges’ (a phrase from Donald Trump this week, for those who don’t follow US politics) like clowns that can be flagrantly ignored at will. Even the highest court in the Netherlands is being treated like a joke or a circus by Battistelli and his manic protectors. Trump’s disdain for judges is well-documented (like calling a US-born judge Mexican, then dismissing his judgment because he wasn’t pleased with his supposed background, or more recently firing the Attorney General for saying exactly the same thing that dozens of other judges/solicitors have ruled since). Battistelli is allegedly hoping to be the head of UPC, which is a theoretical framework that would issue judgment enforceable in Europe and beyond! Only a lunatic would give the EPO — and more so Battistelli — any additional legal powers. His Napoleonic mindset belongs in the Dark Ages.

When the EPO came into existence it already had a staff union. SUEPO in fact predates the EPO itself (subjected to definition) and it exists to ensure that the staff plays a role in decision-making. Under Battistelli, however, just about every high-profile member (notably leader) of SUEPO was warned and/or severely punished. Battistelli simply refuses to grasp the concept known as “separation of powers” — a problem which also extends to other parts of an Organisation he does not even lead (e.g. the appeal boards). He threatens and witch-hunts even his own overseers, most recently Roland Grossenbacher.

Lately, SUEPO members/leaders were apparently so mortified that they resigned. Shortly afterwards Team Battistelli went on the prowl/attack again, targeting yet another person in a raid that might resemble East Germany [1, 2].

Yesterday, judging by this comment, it became apparent that some brave SUEPO members/leaders might pursue their battle with Battistelli in Strasbourg, where Battistelli’s right-hand man already faces corruption indictments. The comment said: “So what happens now? Having exhausted all available routes under national law in the Netherlands, can SUEPO take an alternative route and sue the EPO and/or the Dutch government in the European Court of Human Rights?”

Another person said that “a case against the Netherlands at the ECtHR would be the most obvious next step…”

Yes, I would imagine that a case against the Netherlands at the ECtHR would be the most obvious next step… hence the reference to Strasbourg in my earlier comment.

The case law of the ECtHR (including Matthews v. The United Kingdom) would seem to be in SUEPO’s favour. Also, the Supreme Court’s judgement, combined with ILO-AT’s judgement 1542, would appear to make it possible for SUEPO to ask the ECtHR for a ruling.

It should now be obvious to all that the EPC lacks the checks and balances that might enable a (single) Council of Europe Member State to ensure that it meets its obligations under the ECHR (with regard to the EPO employees in its territory). In theory, this could lead to liability (at least for EPO host states) for entering into an international agreement that contravenes the ECHR.

Indeed, I believe that it is very important that the ECtHR provides a ruling on this point… otherwise it will establish a precedent whereby Council of Europe Member States can escape their obligations under the ECHR merely by setting up international organisations (and providing them with immunities) for the purpose of conducting activities that would otherwise be illegal within the territories of those Member States.

The following followup rightly points out the political angle/aspect, which we have already commented on in articles like the following:

Dutch authorities must be afraid that if Battistelli is held accountable, then this might somehow scare other international institutions that are grounded on Dutch territories (they can always relocate to Geneva, for instance). Here is the comment:

Given that they will have read the lower court’s decision, the Supreme Court clearly was aware of this point. Also, it is hard to believe that SUEPO would not have raised the very same point in their arguments before the Supreme Court. However, the thing that I find hardest to believe is that the Supreme Court would gloss over this point by using one of the most unconvincing excuses I have ever seen.

Never let the legal niceties get in the way of a politically loaded judgment …

“Reign of Terror” wrote about our articles:

Yes, I would imagine that a case against the Netherlands at the ECtHR would be the most obvious next step… hence the reference to Strasbourg in my earlier comment.

Dream on. As reported on Techrights Battestelli’s IU goons are on the prowl in the The Hague. Do you seriously think that anyone will risk taking such a court action under these circumstances?

Some time ago we already said that it’s time for SUEPO officials to go fully or partially clandestine. Given the constant attacks by a lunacy-ridden President and abusive high-level management, SUEPO would fully justified in doing so.

The following comment says that if the “President is taking action that is deliberately designed to stop SUEPO,” that would be “almost verging on the criminal.”

To quote:

Are you suggesting that Monsieur le President is taking action that is deliberately designed to stop SUEPO (or intimidate SUEPO against) initiating new legal actions? If so, then that is a very serious allegation indeed.

Taking advantage of overly-broad privileges and immunities granted to you is one thing. Going beyond that, by taking action specifically designed to deny individuals (or a union) access to justice in respect of rights enshrined in the ECHR would be something quite different… almost verging on the criminal.

Here is the reply:

Are you suggesting that Monsieur le President is taking action that is deliberately designed to stop SUEPO (or intimidate SUEPO against) initiating new legal actions? If so, then that is a very serious allegation indeed.

Yes that is exactly what I am suggesting.

Taking advantage of overly-broad privileges and immunities granted to you is one thing. Going beyond that, by taking action specifically designed to deny individuals (or a union) access to justice in respect of rights enshrined in the ECHR would be something quite different… almost verging on the criminal.

And what are you going to do about it?
Call the cops ?

At the EPO, another person wrote, “[t]o extrapolate to campaigns of terrorising is a large step.” Well, how so? It has exactly that effect. Staff officials (representatives) are afraid of management, instead of management being afraid of staff officials. They got it all backwards. To quote:

Indeed there is hyperbole and there is Hyperbole! I’m not sure what the IU rumours are but I’ve not heard anything untoward recently. Of course, investigations are by mgt decree secret and to reveal is to offend but there is one generally known case currently which does not appear to be controversial from what has leaked out. To extrapolate to campaigns of terrorising is a large step. The real problems should not be diluted by a misguided (or perhaps worried) reaction.

“SUEPO insider” then said…

wrt ECHR: guys let them breathe. They have to held elections in MUC and TH and there is 6 months from the date of the High Court jugement to lodge the complaint there.

Trust them : good things come at the right time

We certainly hope that this will be escalated to ECHR because not only the EPO is at stake but every international institution and Europe’s reputation are at stake. This is why we are willing to spent so much time and effort covering the subject.

02.06.17

US Supreme Court Nominations by Trump Administration Will Impact Patent Law (and Scope) in 2017

Posted in America, Law, Patents at 7:32 am by Dr. Roy Schestowitz

Neil Gorsuch
Reference: Neil Gorsuch

Summary: Supreme Court nominee Neil Gorsuch (likely to fill Scalia’s shoes) and potentially more Trump nominations/appointments will determine policy and help decide the scope of patents in the United States later this year

“Supreme” decisions like Alice matter a lot in the United States. The US Supreme Court has had a profound impact on software patenting, for example, even more than 2 years down the line.

Each country has a high or supreme court (take for example this new “report” about the Supreme Administrative Court in Taiwan about prior art investigations), but in some cases the impact of rulings is greater than in others. As Alice (or In Re Bilski) served to show, we cannot just ignore what is happening. Refusal to revisit Alice-like cases assures us a software patents-hostile environment/atmosphere for quite some time to come.

There are additional decisions coming up which involve patents. Lexmark, for example, (mis)uses patents to take control over products that it ‘sold’ to people — a subject last revisited a week ago by Patently-O, which wrote: “”In these cases, the most important brief is often the amicus filing by the U.S. Government. Here, the brief USG brief was filed on January 24 by President Trump’s newly appointed acting solicitor general (Noel Francisco) who (like Obama’s SG) has taken the position of supporting the challenger (Impression) against the patentee (Lexmark) and the Federal Circuit. Time will tell whether this stance is more generally predictive of the new administration’s stance on patent rights and patent enforcement.”

This is an example where someone appointed by Trump takes a position not favourable to the patent aggressor/maximalist. One might treat that as a positive sign. We still try to figure out what Neil Gorsuch, whom Trump wants to join US Supreme Court (SCOTUS), thinks about patents. There is very scarce evidence in that area and no doubt the composition of SCOTUS (basically about a dozen people) will help determine quite a lot in years to come. Another Supreme Court case was mentioned some days ago by MIP, which wrote:

The Supreme Court granted cert for the cross-petitions of Sandoz and Amgen on January 13, and will later this year will hear its first biosimilars case since the Biologics Price Competition and Innovation Act (BPCIA) came into effect.

In its petition, Amgen, represented by Deanne Maynard of Morrison & Foerster, wrote that in enacting the BPCIA, Congress “established procedures to control and streamline patent litigation” between biosimilar applicants and reference product-makers.

We welcome any feedback/input one might have about Gorsuch’s views on patents, but in the mean time we’ll have to wait and see some judgments.

02.05.17

Culture of Terror at The European Patent Office Escalates Thanks to Dutch Government’s Complicity

Posted in Europe, Law, Patents at 7:48 am by Dr. Roy Schestowitz

By refusing to play a role in investigation and enforcement (against the EPO’s flagrant disregard of the law), in spite of overwhelming evidence, the Dutch authorities have made themselves increasingly liable

Concerns over 'terror' Patent Office

Summary: The unaccountability of Team Battistelli, emboldened by immunity even in the face of criminal charges, makes one wonder if Europe has created a ‘monster’ in the EPO

WE STILL TRY TO CATCH UP with comments in IP Kat, in particular because anonymous posters dump some information about the EPO over there (albeit a lot less frequently since the site stopped covering EPO scandals). There is a culture of censorship and self-censorship at the Office. Techrights, for example, is permanently banned by the EPO and IP Kat was banned for a day, whereupon it stopped covering the EPO scandals (self-censorship). The culture of fear, moreover, leads a lot of the employees to self-censorship and the union has almost gone ‘underground’ (barely any updates, not to mention resignations).

I have been an activist for free speech for a long time; we have in fact received about 35,000 comments in this site and I never deleted even one (even utterly rude and abusive comments). A fortnight ago somebody attempted to silence me with legal threats (this made it into the media [1, 2, 3, 4] and got some comments [1, 2, 3]), but it backfired, just as when the EPO attempted similar tricks. As far as we know, it’s likely that the EPO bullies quite a lot of publications/journalists/bloggers with threats; we know for a fact it also did this to SUEPO. Now it tries to gag staff by a culture of terror and intimidation, as we noted here the other day.

“Latest IU victim,” told us a source regarding this new example, causes so much fear inside the Office that other people are silenced. The Dutch media recently called it the ‘terror’ patent office (Telegraaf) and here is the information we have about it:

I hereby confirm that yet another colleague became victim of the IU. He works in The Hague, and he is not a union leader. There is hardly any SUEPO union leader left, so the IU needs fresh victims to prove their existence.

It is sad that the IU annoys yet another innocent man, a friendly and appreciated colleague, father of 3 kids. EPO staff are increasingly scared. This is mental torture for us all, and the Dutch high court recently decided that it would not protect them.

For Battistelli this must be a sweet dream, using mafia tactics to punish some so that all others shiver and work harder. Sure the administrative council will pay him another fat bonus.

Looking at the latest from IP Kat (comments of course, as IP Kat is too terrified to even mention the subject), we have this:

It is clear that the Dutch court has (conveniently!) overlooked ILO-AT’s judgement 1542, which stated that:
“a complaint is receivable only if it is about an individual official’s status as an employee of the organisation, not about the collective interests of trade unionists”.

Maybe the Dutch Supreme Court ignored ILOAT 1542 because it wasn’t brought to their attention by the lawyers pleading the case?

Another person wrote: “Just as you should never confuse the law with common justice, intelligence should not be confused with common sense. Some of the brightest people in the world have no idea how to cross the road!”

We are very sadden to see the Dutch authorities succumbing to a lunatic dictator like Battistelli and we already wrote about it in the following posts (among more):

The EPO scandals have helped expose serious abuses in international bodies, in Germany (watch what Maas is — or isn’t — doing), in the Netherlands, and by extension in Europe. If EPO is allowed to get away with it and Battistelli’s boss acts like his pet chinchilla, what will the world think of Europe?

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