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02.19.19

What Happened in the United States Now Happens in Europe: Lots of Patents Turn Out to Be Bunk, Fake, Bogus, Invalid and Thus Worthless

Posted in America, Courtroom, Europe, Law, Patents at 5:09 am by Dr. Roy Schestowitz

Low patent quality has done incredible harm/damage to confidence in the system

Cardboard recycling

Summary: Worthless patents — not opposition to such patents — are the greatest threat to the legitimacy of the patent system, yet bureaucrats fail to heed the warning in the name of short-term profits

HERE AT TECHRIGHTS we’ve been following the U.S. Patent and Trademark Office (USPTO) for more than a decade and a half (I wrote about it long before the site even existed). When I was about 20 I was upset to see Graffiti input on Palm being destroyed by patents. I wrote about it in my personal blog. Such ridiculous US patents could possibly be used by a relic like Xerox to embargo — e.g. via ITC — devices I so often used (I still own and use a Palm PDA). The workaround was known as Graffiti 2, which is vastly inferior. The PDA I use was manufactured in 2003 — the same year Graffiti 2 was introduced, so I’m lucky to have dodged this sabotage by patents. For those who wonder what got me upset at such patents (software patents), that was it. Richard Stallman often attributes the creation of GNU and then the FSF to Xerox printers that upset him. So I share more than my initials with him and we’ve been good friends. We share our views on patents and the European patent system.

Things have changed a lot since, especially in 2014 when SCOTUS ruled on Alice, giving rise to 35 U.S.C. § 101 as we now know it.

“We are saddened to see Europe falling into the same trap that the US had fallen into a few decades ago when the Federal Circuit gave a green light to software patents.”Seeing what happens in the US this year, we’re not even tempted to resume coverage of it. Virtually all cases are concluded the way we’d like them to. Janal Kalis (“Patent Buddy”) is still obsessing over mere patent applications, as PTAB and district courts have nothing for these patent maximalists to celebrate. This week he wrote: “The PTAB Reversed an Examiner’s 101 Rejection of Claims for a Method of Detecting Similar Objects” (the exception).

Usually it’s the other way around. We also note that patent extremists blame “big tech” for the demise of software patents, never mind if “small tech” (firms) too pushed towards that. “They ‘happen’ to be those who also produce a lot of software,” I replied to him, “unlike patent trolls and law firms, so…”

“It is impossible to argue (any longer) that the EPO has no patent quality issues; even the EPO’s management now admits it.”Readers can probably agree that what happened in the US after Alice, more so in recent years as caselaw shaped up, was overwhelmingly positive. Developers were able to focus on actual work rather than hire lawyers.

We are saddened to see Europe falling into the same trap that the US had fallen into a few decades ago when the Federal Circuit gave a green light to software patents. The European Patent Office (EPO) under the leadership of António Campinos is a very vocal booster of software patents in Europe. The managers at the Office, preoccupied and obsessed with so-called ‘production’, are still trying very hard to break the rules (e.g. misinterpret the EPC) and grant bogus patents — European Patents courts would reject such as "blockchain" patents.

The EPO has already admitted these are software patents as so does Bastian Best on Twitter, soon to be retweeted by EPO (official). The EPO reposted this yesterday: “For the blockchain enthusiasts in my network: Koen Lievens does a great job in this video explaining how #blockchain inventions can be #patent’ed at the @EPOorg. Hint: It’s the exact same standard as for any other type of CII.”

What are these people thinking? Bearing in mind the EPO's own admission of quality problems (albeit internally only, for now), shouldn’t they quit this madness? Sooner or later all these patents will fall in an avalanche like Alice in the US.

Meanwhile, judging by yesterday’s long post from IP Kat, the non-impartial and not-so-independent (i.e. partially dependent) EPO appeal boards are hard to rely on as long as Battistelli and Campinos, two crooked patent maximalists, control them. Watch this latest situation:

A recent decision by the EPO Technical Boards of Appeal (TBA) departed from previous boards on how the novelty of the increased purity of a known compound is to be assessed. In T 1085/13, the TBA diverged from previous decisions that established special criteria for determining the novelty of a claim directed to a known compound of increased purity. The decision also ignores the criteria set out in the EPO Guidelines for Examination. These state that to be novel a selection invention must be “purposive”. The decision therefore confirms that the EPO is prepared to depart from its previous positions on the criteria for assessing the novelty of selection inventions. It seems that, for the purpose of assessing novelty, the TBA are now in favour of applying the same novelty criteria to these inventions as to any other type of invention, and nothing further.

[...]

As far as this Kat is aware, T 1085/13 is the first decision by the TBA to depart from the “special criteria” for purity inventions provided in T 0990/96 (although she is happy to be corrected on this if readers are aware of any earlier decisions).

T 1085/13 also appears to have ignored the criteria for selection inventions established by earlier TBA (and outlined in the EPO guidelines for examination) that a claimed selection must constitute a “purposive selection”. This is in line with other recent decisions of the TBA. It therefore appears that the third criteria for the novelty of selection inventions is being phased out, although this is still not reflected in the most recent EPO Guidelines for Examination. If this really is to be the new position of the EPO, is it not time for these changes to be reflected in the guidelines? This Kat also awaits with interest to see whether this latest decision on purity inventions will be followed by subsequent boards and the Examiners.

Guidelines should be based on law, not so-called ‘production’ aspirations. This is akin to what Iancu does at the USPTO, in effect mimicking Battistelli. Judges are being pressured and condemned.

As further evidence of the decline of quality of patents (EPO and USPTO in this case), watch these two new reports (from yesterday) [1, 2] as they cover something we wrote about some days ago (based on the original press release). The gist of it is, the EPO admits it granted false patents… yet again (not just the USPTO, where such invalidation is a lot more common with Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs)).

To quote the first report:

The European Patent Office (EPO) and the US Patent and Trademark Office (USPTO) have both invalidated patents owned by Immunex Corporation.
The patents cover antibodies that target human interleukin-4 receptors.

Regeneron Pharmaceuticals had opposed the patents, arguing that European patent 2,990,420 and US patent 8,679,487 were invalid due to the insufficiency of disclosure.

The EPO invalidated Immunex’s European patent a day after the USPTO’s Patent Trial and Appeal Board invalidated all 17 claims of the US patent due to obviousness.

Joseph LaRosa, executive vice president of Regeneron, commented: “We applaud decisions by the US and European patent offices this week, which invalidate Immunex’s functional patent claims to antibodies that target human IL-4 receptors.”

The second such report says:

Regeneron Pharmaceuticals (Nasdaq: REGN) has announced two important legal developments invalidating Immunex patents with functional claims to antibodies that target human interleukin-4 receptors (IL-4R).

On Friday, the Opposition Division of the European Patent Office (EPO) revoked wholly-owned by Amgen (Nasdaq: AMGN) subsidiary Immunex’ European Patent No 2,990,420 in its entirety because the claims were invalid for insufficiency of disclosure. This follows a decision by the Patent Trial and Appeal Board (PTAB) of the US Patent & Trademark Office (USPTO) to invalidate all 17 claims of Immunex’ US Patent No 8,679,487 as obvious. These decisions are subject to appeal by Immunex.

Regeneron’s shares closed up 2.17% at $423.79 on Friday, while Amgen dipped 1.51% to $185.50 in after-hours trading.

“We applaud decisions by the US and European patent offices this week, which invalidate Immunex’ functional patent claims to antibodies that target human IL-4 receptors,” said Joseph LaRosa, executive vice president, general counsel and secretary, at Regeneron. “It is our position that Immunex’ functional claims unfairly attempt to claim ownership far beyond the molecules developed, and stifle innovation within the broader scientific community,” he added.

It is impossible to argue (any longer) that the EPO has no patent quality issues; even the EPO’s management now admits it.

02.12.19

USPTO Director Iancu Works for Anti-SCOTUS (Against Section 101) Lobbyists

Posted in America, Law, Patents at 2:58 am by Dr. Roy Schestowitz

Last year: The Patent Microcosm is Trying to Derail Patent Reform and Make Iancu the ‘American Battistelli’

Trump and Iancu

Summary: The United States Patent and Trademark Office Director Andrei Iancu is becoming to the patent system what Ajit Pai is to the FCC or to the broadband industry; there appears to be intentional vandalism and total disregard for the rule of law

HAVING just written about violations of the EPC at the European Patent Office (EPO), let’s look at similar abuses at today’s USPTO, which disregards Federal Circuit decisions and besieges the Patent Trial and Appeal Board (PTAB), the equivalent (more or less) of EPO’s BoA.

“We foresaw this all along, even before he got the job.”Mr. Iancu gleefully violating the laws that govern the Office doesn’t surprise us. We foresaw this all along, even before he got the job. We had been writing about this for over a year.

Watchtroll, its striking lack of any comments lately and its connections to Iancu notwithstanding (those too are well documented), has just published “Iancu Highlights U.S. Role in the Future of Innovation in Remarks at U.S. Chamber’s [COC] Global IP Index Reception”. Gene Quinn of Watchtroll basically reveals that Iancu now revels in the presence of this crooked bunch. He is aligning with corrupt COC. Surprising? No. Remember who he got this job from; it was crooked Trump. He got this job after his firm had worked for Trump (hallmark of corruption) and now he is serving the litigation ‘industry’ rather than the Office he works ‘for’ (similar to the pattern of FCC, EPA and so on).

“How typical of these people, who routinely attack judges for their decisions (Quinn has a long and extensive track record doing just that).”What does COC say? Well, the usual. But rather than amplify the lies, as the corporate press around the world has done over the past week, let’s just say that it’s the same as what we saw before, e.g. [1, 2, 3]. It’s lobbying for patent trolls’ interests. “Following are remarks delivered by United States Patent and Trademark Office Director Andrei Iancu at the event, after being introduced by GIPC President and CEO,” Quinn wrote. He also typed up some nonsense titled “The ‘Iancu Effect’ Won’t Matter if Not Supported by the Courts or Congress” (the ‘Iancu Effect’?!). So basically they say that the USPTO can just disregard the law (“Courts or Congress”) and the expectation is that lobbying by COC et al can change what “Courts or Congress” do. How typical of these people, who routinely attack judges for their decisions (Quinn has a long and extensive track record doing just that). They also attack politicians rather crudely for ‘daring’ (or finding the courage) to promote science and technology rather than patent trolls.

“Iancu is already angering groups that are supported by technology firms.”Sadly, we live in bizarre times when agencies tasked with regulation actually do the exact opposite or what they were supposed to do. The USPTO is becoming just that under Iancu’s oversight. It tarnishes the reputation of the USPTO in the same way Ajit Pai destroys what’s left of the FCC and various people do at the EPA. There are many other examples like these across the US government. The likes of COC are allowed to toy around with public policy and the same goes for the Koch Brothers. COC’s index is based on self-serving lies and a couple of weeks ago a Wall Street press apparatus also perpetuated the myth that innovation happens or exists only when there are patents (expensive; large companies can get lots of bogus ones). What is the goal of today’s USPTO? Does it not realise that there’s a crisis of confidence in US patents due to a torrent of false grants (those that had been granted over the past decade or two)?

Iancu is already angering groups that are supported by technology firms. “The @uspto proposal is an example of the agency putting its thumb on the scale in favor of #patent applicants at the expense of the public,” United for Patent Reform wrote this week, linking to the EFF’s recent piece about Iancu. There’s a new article from Joe Mullin/EFF video about “How Justus Decher Beat a Patent Troll”. It was published yesterday and said:

Thousands of patent lawsuits are filed each year, and most of them deal with computer technology and software. Nearly 90 percent of those high-tech patent lawsuits are filed by shell companies that offer the public no products or services whatsoever. These patent-assertion entities, also known as “patent trolls,” simply enrich their owners by extracting money from operating companies.

In recent years, the Supreme Court has limited patent venue abuses, made fee-shifting easier, and most importantly, made it easier to throw out bad software patents in its Alice v. CLS Bank decision.

Patent troll lawsuits hurt real small businesses owned by regular people, most of whom don’t have the millions of dollars that would be required to defend themselves through a patent trial. We created our “Saved by Alice” project to tell their stories—the stories of company founders and entrepreneurs, who were able to keep on innovating because of the Alice decision.

The “Saved by Alice” project is a good initiative against software patents. Those patents are typically leveraged by trolls against a large number of small companies; the large targets can afford a legal challenge.

“It won’t mean a comeback of software patents but of bogus ones.”Want to stop a patent troll and make money at the same time? Unified Patents is looking to leverage prior art rather than 35 U.S.C. § 101/Alice (SCOTUS) against a troll. In its own words (half a day ago), it is “seeking prior art for US 7,010,508 owned by and asserted by Landmark Technology, LLC, a well-known NPE.” There’s a thousand-buck award.

The bottom line is, many bogus patents are still being granted by the USPTO and rather than improve patent quality Iancu is seeking to lower quality even further. That would, as we argued a month ago, cause a crisis of confidence. It won't mean a comeback of software patents but of bogus ones.

Gross Violations of the EPC at the European Patent Office as Principal Priority Turns Against Science and Technology

Posted in Europe, Law, Patents at 2:05 am by Dr. Roy Schestowitz

Defining oneself using the very opposite of the truth

EPO mission

Summary: What good is the law if violation of the European Patent Convention (EPC) is so routine at today’s European Patent Office (EPO), which exploits its immunity to operate outside the rule of law and pursue nothing but cash (selling patents/monopolies that are invalid in courts)?

OUR next post will deal with the U.S. Patent and Trademark Office (USPTO) under Iancu following the 'Battistelli model', i.e. attacking/ignoring judges. But before we get to that, shall we take a look at the latest EPO madness? We shall.

First of all, there are overt violations of the EPC when the EPO grants patents on life. Those were never meant to be granted or even considered for a grant. Miraculously enough, however, nature and life are now regarded as “inventions” (whose?) and Kilburn & Strode LLP’s Nick Bassil has just published this piece about the EPC allowing patents on "essentially biological process". What has the patent world sunk to?

“Remember when the EPO actually did a better job pretending it existed to advance science and technology rather than law firms?”As Kluwer Patent blogger noted only a few hours ago, “Teff patents declared invalid [means] ‘great news’ for Ethiopia” — a subject we covered last week. To quote Kluwer: “A court in the Netherlands has ruled that two Dutch patents for processing teff, a kind of grain which has been used for thousands of years to make injera, the fermented pancake that Ethiopians eat with their meals, are null and void. The Ethiopian government has welcomed the verdict. The patents had led to outrage in Ethiopia, where teff is widely considered to be a part of the national cultural heritage. They were also in the way of Ethiopian exports to the European market, where this so-called ‘ancient grain’ or ‘superfood’, just like quinoa for example, enjoys a growing popularity. But the conflict about the Dutch patents has now ended with the verdict of the District Court in The Hague, where an infringement case had been filed in 2014 by the holder of the teff patents, the company Ancientgrain, against a rival, bakery giant Bakels. The court ruled that both patents are invalid due to lack of inventive step. The method to bake bread from the flour ‘is a very common baking method that belongs to the general professional knowledge’ and the mixing of different grains ‘can be considered to be part of general professional knowledge’ and therefore not be considered inventive.”

Notice that a legal battle was needed here. A government needed to spend a lot of money in court to show that the EPO was out of touch. How many people are able to do this? Also, is this good use of the limited budget of Ethiopia?

This, basically, is the outcome of gross violation of the EPC. This is what the EPO does to its reputation worldwide, including in Africa.

The European Patent Convention is being so routinely violated by the EPO these days, so any book on the matter (“Visser’s Annotated European Patent Convention” has just been advertised by Kluwer Patent Blog’s Andrea Sommer) may already be obsolete. The EPO is a rogue institution led by corrupt people. They just don’t care what the law says. Funny how Kluwer Patent Blog is selling books for Kluwer, eh? Many of their recent blog posts are nothing but links that advertise buying services from Kluwer (with paywalls). This blog is a mess. The ad from Sommer speaks of references to “CEIPI courses” (Battistelli) and it would have us believe that we need some book to understand the EPC, which the EPO no longer obeys anyway. “In summary,” Sommer writes, “also in 2019, the “Visser’s Annotated European Patent Convention” is a must!”

Well, it’s “a must” for Kluwer (the employer) because at a rate of £86.00 for just one copy, it would be paying Kluwer quite a lot of money.

Kluwer Patent Blog isn’t always ads and lobbying (e.g. for the UPC). Thorsten Bausch, for a fact, is the exception. He has a sobering bunch of views on the UPC and the EPO and he has just published this blog post regarding an important ethical aspect of European Patents (EPs). As we recently explained, some wrong EPs can end up killing women with breast cancer (monopoly pricing) and these EPs are sometimes granted in violation of the EPC (judges lacking independence means it will slip through them anyway; can they oppose patent maximalism when they’re controlled by bankers and politicians like António Campinos and his master?).

It doesn’t seem to matter that the Technical Board of Appeal lacks independence. It admits this. Now it throws aside oppositions to likely invalid patents that are enshrined as EPs to benefit only very rich people. Or, as Bausch put it yesterday:

Two members of the formulation patent family stand out: EP 1 250 138 and its divisional EP 2 266 573. Both patents refer to a specific formulation of the antiestrogen drug fulvestrant and its use in the treatment of breast cancer via intramuscular injection. The ‘138 patent was granted based on claims directed to the formulation as such. A subsequently filed opposition was rejected and the patent maintained as granted. On appeal, however, a third party introduced a new reference (“McLeskey”) that was said to disclose a formulation falling under the claims of EP’138 and thus appeared to be highly relevant in regard to these claims. However, this formulation was only used in the quite different context of an exploratory mechanistic study looking at a different (estrogen-independent) type of breast cancer, against which this formulation showed no efficacy even at extremely high doses, when given to transfected mice via weekly subcutaneous injections. McLeskey also contained no data about the physical properties of the formulation, its pharmacokinetics and, in particular, its safety, its efficacy against estrogen-dependent breast cancer and the duration of its effect.

Following the introduction of “McLeskey”, the Board of Appeal remitted the case back to the first instance where AstraZeneca amended the claims of EP‘138 into “formulation for use” claims, arguing that the use of McLeskey’s formulation for the treatment of breast cancer was neither disclosed in McLeskey nor obvious therefrom. The Opposition Division agreed and maintained EP‘138 in the thus-amended form. As the sole opposition had been withdrawn before the OD’s decision and no appeal was filed, this decision became final.

[...]

But the story continues. AstraZeneca appealed the first instance EPO decision relating to EP’573, and oral proceedings took place before the Technical Board of Appeal 3.3.01 on 23.1. and 24.1.2019. These proceedings ended with a significant success for AstraZeneca: The Board of Appeal ruled that the decision by the opposition division is set aside and that the oppositions are rejected. That is, the EP‘573 patent was maintained as granted.

Whose interests are served by today’s EPO? Remember that these boards’ lack of independence is, in its own right, a violation of the EPC. The granting authority seems to be in charge of everything, even justice itself. It’s like putting the “executive” in charge of “legislature”.

IPPro Magazine has just remarked on the EPO working for the litigation 'industry' in another continent — a disturbing development we covered some days ago. To quote:

The European Patent Office has signed a bilateral cooperation agreement with the Licensing Executives Society International (LESI).

The agreement was signed by EPO president António Campinos and LESI president François Painchaud during LESI’s Winter Planning Meeting in Miami, Florida.

The agreement is aimed at helping innovators make better use of the European patent system and will remain in effect for a period of five years.

Campinos said the agreement “will help innovators see the business opportunities that IP can create”.

He added: “The main goal of our agreement is to enable current and future innovators to make better use of the patent system by overcoming barriers such as lack of knowledge about IP and commercialisation options.”

So one French president (François Painchaud) meets another (Campinos), appointed by another (Battistelli). But whose interests are served? Licensing Executives Society International (LESI). Great. Remember when the EPO actually did a better job pretending it existed to advance science and technology rather than law firms?

02.07.19

Donald Trump’s ‘Swamp’ Inside the U.S. Patent and Trademark Office is Not Obeying Courts, It’s Even Disregarding the Law

Posted in America, EFF, Law, Patents at 7:09 am by Dr. Roy Schestowitz

‘Swamp’ of vast proportions and Trump’s own making

Vikingland

Summary: In spite of the fact that US courts continue to reject software patents (even more so this year, at least so far) people like Iancu and fellow appointees (with connections to patent trolls and Trump) pretend that 35 U.S.C. § 101 is a problem which needs to be overcome

THE EPO scandals should have become familiar to longtime readers. The Office basically operates outside the rule of law, it attacks judges, and it routinely violates the rights of its own staff. It’s run by autocrats and dictators who are well connected (the current President, for instance, is an old friend of his predecessor).

“Having reviewed this week’s tweets and articles, it seems clear that patent maximalists lack any “good” news from CAFC, PTAB and district courts, so they obsess over rare and exceptional patent application anomalies (situations where PTAB and examiners do not agree).”We have been seeing similar patterns in the Office across the Atlantic lately. Many top-level appointments are patent maximalists with history working for patent trolls. The Director's firm had worked for Donald Trump before Trump gave him the job. The main person of the Patent Trial and Appeal Board (PTAB) has since then been removed (or compelled to leave), the Federal Circuit‘s (CAFC) judgments are being ignored (or cherry-picked at best), and 35 U.S.C. § 101 (Section 101) is being worked around in spite of Alice (SCOTUS). This means that examiners end up granting many patents in error.

Having reviewed this week’s tweets and articles, it seems clear that patent maximalists lack any “good” news from CAFC, PTAB and district courts, so they obsess over rare and exceptional patent application anomalies (situations where PTAB and examiners do not agree). Watchtroll (the patent trolls’ and software patents advocacy site) has just published “Bioinformatics Innovations Thrive Despite 101 Chaos”; but Section 101 is order, not chaos. Unless you’re a parasitic lawyer whose business is litigation and blackmail. Patently-O has just moaned about another Alice/Mayo case (Section 101). They just don’t get their way, do they?

EFF and other groups [1, 2] have been promoting this new post of Daniel Nazer from the EFF on why software patents are problematic, along with a call for action on Section 101 (at the Office):

The Supreme Court took a major step in cutting back on abstract software patents when it issued its landmark ruling in Alice Corp. v. CLS Bank. Since then, courts have thrown out hundreds of patents that never should have issued. Unfortunately, the Supreme Court’s ruling is under threat. The Patent Office has proposed new guidance that, in our view, is inconsistent with Alice and would lead to a renewed flood of bogus patents. Please join us in submitting comments asking the Patent Office to abandon this plan.

EFF critics like to frame it in the context of Google (not entirely wrong any longer), but the issue is very much real and the concern is very broad. Using a dozen of so software patents in Eastern Texas, for instance, one parasite targets Google right about now and Patently-O reports that Google is hoping to shift venue (anything but Texas). Patently-O has also just amplified Trump SOTU lies on so-called ‘IP’ (as did IP Watch).

“…where were groups like the EFF back then? Nowhere. They obstructed legitimate opposition to this whole “swamp” situation.”The bottom line is, the Office and Trump are the main issue, not the courts. At the moment it’s only the Director of the U.S. Patent and Trademark Office (USPTO) who gleefully defies caselaw [1, 2]. It’s a shame that groups like EFF or CCIA are too polite to call for his resignation; before he got the job we had repeatedly opposed his appointment (the nomination came from Trump and his notorious, corrupt cabinet); where were groups like the EFF back then? Nowhere. They obstructed legitimate opposition to this whole “swamp” situation.

01.27.19

January Closes as Another Month (Among Many Months) of No Turnarounds on Software Patents

Posted in America, Law, Patents at 12:46 pm by Dr. Roy Schestowitz

Drink to that!

Three beers

Summary: Positive outlook for the year as nothing is really changing in favour of the patent microcosm that’s preying on companies in the United States

AT the dawn of the new year (and end of last year) we said we would focus on the European Patent Office (EPO) and no longer focus on USPTO matters unless or until there’s a threat of software patents rebound. A month later there’s no change at all. 35 U.S.C. § 101 remains in tact albeit Iancu hopes to water it down [1, 2], SCOTUS issues decisions on totally unrelated questions (one more a week ago), a former Federal Circuit chief judge expresses only a desire for a rebound in 2019 (wishful thinking over at Watchtroll), and Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) continue unabated. Patent maximalists just cherry-pick exceptional cases where PTAB overturns examiners’ decisions to reject (those are still very few, less than a handful per week). That being the case, we’ll continue to observe developments and outcomes of cases in US patent courts. But we probably won’t cover them here. Hopefully we’ll never need to because assuming nothing changes (for the worse), we can focus on other topics.

01.22.19

Software Patents Are a Dying Breed, So Marks & Clerk and Other Legal Monoliths Promote the EPO’s Buzzwords (Loopholes)

Posted in Europe, Law, Patents at 7:07 am by Dr. Roy Schestowitz

Anything to promote bunk/junk patents

Marks & Clerk

Summary: Patents that courts would almost certainly reject (and invalidate) are routinely promoted as “AI”, “SDV” and similar acronyms and buzzwords, either misleading or intentionally misplaced (nowadays “AI” is often just a synonym for “machine” or “algorithm”)

THE atmosphere of buzzwords worries us. Everywhere one looks in the media, especially technology media, it’s all buzzwords. Maybe that’s because real journalism is dying and reporters get replaced by the marketing/PR industry and by extension law firms looking to market their services in the respective domains. Readers who are technical quite likely know what those buzzwords are and some of these were covered here before.

“This patent litigation giant, Marks & Clerk, is helping the EPO promote software patents on computer vision (my area)…”Here in Techrights we no longer keep track of all the software patents tweets (they don’t say “software patents” explicitly but instead use buzzwords) that have been far more abundant and frequent since António Campinos took over as President. Yesterday we saw this new article from Marks & Clerk’s Philip Cupitt (the patent maximalists if not extremists*). Weeks ago we explained how the European Patent Office’s (EPO) corruption — and avoidance of the law in general — nowadays helps the U.S. Patent and Trademark Office (USPTO) similarly dismiss the courts/caselaw, proceeding to grant software patents that aren’t legally solid (courts would almost certainly can these).

Then, also as recently as yesterday, we saw another Marks & Clerk article, this one with the “self-driving vehicle (SDV)” buzzword that the EPO has been promoting.

This patent litigation giant, Marks & Clerk, is helping the EPO promote software patents on computer vision (my area), never mind if that’s in clear defiance of the EPC, violating the fundamentals of patent scope; buzzwords to bypass the law basically…

With investment announcements coming thick and fast, and testing taking place on ever more roads, might 2019 be the year of the self-driving vehicle (SDV)?

A recent statistical release from the European Patent Office (EPO) might suggest so, or at the very least suggest that momentum is building in this important sector. In 2017, the last year in which figures are available, the EPO saw nearly 4000 patent applications related to self-driving vehicles – up from 922 applications in 2011.

This is a staggering 330% increase in just 6 years! To put it into context, filing in this area has grown more than 20 times as fast as patent applications generally at the EPO.

They are just reclassifying patents. We recently saw a similar article in the US — one in which they basically classified many patents on algorithms as “AI”, then crafted headlines claiming that in recent years there were hundreds of thousands of patents on “AI”; the EPO and the USPTO both use this trick — a subject covered here several times towards the end of last year.
_____
* Among the articles we previously wrote about Marks & Clerk (loud proponents of patent maximalism in Europe, including the UPC):

  1. Marks & Clerk is Still Pushing Patent Maximalism Agenda in Europe and Britain, Including UPC/UPCA/Unitary Patent (UP)
  2. Marks & Clerk Blames Battistelli’s Victims, the Boards of Appeal, Whose Job Guarded Patent Quality
  3. UPC Puff Piece in the Scottish Media is Just an Advertisement by Marks & Clerk

01.06.19

As Expected, Director Iancu Tries to Water Down the Examiners’ Guidance in Revised Patent Subject Matter Eligibility Document

Posted in America, Law, Patents at 2:59 am by Dr. Roy Schestowitz

…And patent maximalists are delirious, never mind if this merely widens the gap between caselaw (courts) and examination practice

Blind Leading the Blind
Blind Leading the Blind

Summary: In defiance of courts’ rejection of software patents, the Trump-appointed Director (whose firm had worked for Trump before the appointment) metaphorically sticks up his middle finger and ignores judges; the main casualty, however, will be legal certainty and the perception of patent justice

THIS year we are reducing our volume/frequency of coverage regarding the United States Patent and Trademark Office (USPTO). As we explained before, software patents are more or less dying in the US not because of the Office but because of the courts. The signs are everywhere and not even patent maximalists are denying it (not anymore; they did in past years). Nutter McClennen & Fish LLP’s Todd Gerety, for example, has just published this article that says: “Over the years, patents have issued on numerous games, including iconic favorites such as Monopoly® (1935), Battleship® (1935), Rubik’s Cube® (1983), Rock’em Sock’em Robots® (1966), Twister® (1969), and Simon® (1979). Although there is no per se rule under current U.S. patent law against the patenting of games, it may be more challenging today to obtain patents on certain games due to the patent eligibility requirements of 35 U.S.C. § 101.

“For example, the Federal Circuit recently affirmed a final decision of the Patent Trial and Appeal Board (“Board”) holding a claimed method of playing a dice game using dice having non-conventional markings to be patent ineligible under 35 U.S.C. § 101. See In Re: Marco Guldenaar Holding B.V. (Fed. Cir. 2018). Specifically, the court agreed with the Board that the claimed method recites the abstract idea of “rules for playing a game” and lacked an inventive concept sufficient to transform the claim into patent eligible subject matter.”

Obviously, as anyone can tell, patents on computer games are just software patents that should never have been granted in the first place. Games are a kind of software.

“So the Trump “swamp” is trying to defy court rulings and bring back software patents rebranded as “computer-implemented inventions”.”The Office, however, not to be mistaken for actual courts, doesn’t seem to care. The number of new patents declined last year (but it’s still far too high) and judging by Patently-O‘s assessment of the government shutdown, we might expect that number to decline further this year. “Once funds run out, the PTO is looking for ways to keep the doors open enough to continue to accept new application filings — while shutting down examination and PTAB activities,” Dennis Crouch wrote. “It is likely that a special PTO funding bill would receive bipartisan support — keeping the patent office rolling while other government services are shut-down.”

But no such bill exists yet. In another new post Crouch alluded to the new guidelines or a set of rules that does not impact courts, only examiners. Watchtroll wrote about it too, as did various patent maximalists in Twitter. “The USPTO has finally released the Revised Patent Subject Matter Eligibility Guidance (Section 101 Guidance),” one wrote. “USPTO 2019 Revised Patent Subject Matter Eligibility Guidance” makes two primary changes to how patent examiners apply the first step of the U.S. Supreme Court’s Alice/Mayo test, which determines whether a claim is “directed to” a judicial exception,” said another.

So the Trump "swamp" is trying to defy court rulings and bring back software patents rebranded as “computer-implemented inventions”. So what? The courts won’t care; they’ll keep rejecting such patents, only to reduce confidence in US patents (lowering legal certainty). So what is being achieve here? The United States Patent and Trademark Office has just issued a fake/dubious patent again. Why does it issue patents on abstract ideas? We still see plenty of new examples every day, but we won’t mention them all because we want to reduce focus on this subject (so as to save time).

Michael Loney, another patent maximalist, wrote about what he called “2019 Revised Patent Subject Matter Eligibility Guidance” as follows:

The guidance makes two primary changes to how patent examiners apply the Section 101 test, while the USPTO also announced guidance for the applying Section 112 to computer-implemented inventions

The USPTO has announced revised guidance for subject matter eligibility under Section 101. The Office also announced guidance on the application of Section 112 to computer-implemented inventions.

Loney soon proceeded to promoting software patents agenda in a site of patent extremists and predators:

New USPTO guidance makes two primary changes to how patent examiners apply the Section 101 test, while guidance for applying Section 112 to computer-implemented inventions was also announced

The USPTO has announced revised guidance for subject matter eligibility under Section 101. The Office also announced guidance on the application of Section 112 to computer-implemented inventions.

Patent Docs has not yet commented on this; it did, however, post 5 adverts last night, including this one which includes: “What steps should patent counsel take to minimize the likelihood of § 101 rejections?”

At the Office or the courts? The matter of fact is, one can still get software patents from the Office (maybe more easily now than before, thanks to the biases of Iancu), but courts are tougher than ever on such patents. In fact, they now deal with some of the ‘better’ software patents (because litigation rates have collapsed), yet the success/failure ratio remains steady.

Keep on promoting software patents, Mr. Iancu, at the expense of the credibility of the Office Donald Trump put you in charge of.

01.02.19

The Real Harm of Really Bad European Patent Grants

Posted in America, Apple, Asia, Europe, Law, Patents at 5:51 pm by Dr. Roy Schestowitz

The EPO is measuring speed rather than quality of work

Measuring

Summary: Patents that are of questionable validity/legitimacy do incredible harm/damage to the market; the EPO, however, is willing to look the other way while its rogue policies break the economy and remove products from the market

LAST MONTH Qualcomm dominated the news about patents. As Taro Yaguchi (Keisen Associates) put it, “Qualcomm And Apple Fighting In China Over Software Patents” and they fought elsewhere too, including in Europe (there was a widely-publiced ban on older models of iPhone). This was so widely reported/covered that we saw no urgent need to mention it (I was actually in Germany at the time, hence offline). Currently, only China is (still) a large economy that allows (explicitly) software patents. As we showed before, Qualcomm actively advocates software patents, which it then uses to embargo rivals’ products (or products of those unwilling to pay for questionable patents).

This brings us to the António Campinos-led European Patent Office (EPO), where software patents are being granted, not to mention all sorts of questionable patents on life and nature. As an insider noted earlier today, Team UPC publicly admits that European Patents granted by the EPO are of poor quality — a subject that Campinos won’t tackle. He just met the people in question and sought to remove the causes of criticism — whatever that means. He specified no actual plan. In the words of a Team UPC firm:

Furthermore, the remarkably high fees for a patent application and the EPO’s large reserves are rightly criticised. It cannot be that the EPO tends to want to make profits. Especially if you end up paying for mistakes with heavy fees.

And not only attorneys and lawyers, but also patent experts from the industry express criticism. According to the JUVE Patent Survey 2018, they want more professionalism. Only a few are behind the idea of the fastest possible registration process.

The EPO nowadays acts like a money-printing machine; it prints out monopolies, so what’s not to like? It’s just minting lots of rubbish, causing a gross hyperinflation of patents in Europe. Who will suffer? Certainly European companies on the receiving end of frivolous lawsuits.

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