Benoît Battistelli meets Siemens
Summary: The neglected (by EPO) Article 4a of the European Patent Convention (EPC) and the European Parliament petition/complaint against the EPO’s crooked management
Now that the internal communications person (i.e. PR) is out and things are heating up against the EPO Vice-President (never mind Benoît Battistelli, the EPO President), the corporate takeover of the patent system in Europe can be slowed down. We have just learned from this European patents maximalism blog that “Philips is among the top-10 Patent Cooperation Treaty (PCT) applicants and the top-3 European Patent Convention (EPC) applicants. Owning about 64,000 patents and filing approximately 1,500 patent applications each year (with a strong focus on the growth areas of health and well-being), much is at stake for the company with the introduction of a Unified Patent Court (UPC) and the Unitary Patent (UP). Philips’ principal IP Counsel Leo Steenbeek told Kluwer IP Law in an interview he hopes financial demands of UP member states won´t lead to unrealistic high renewal fees. Philips won’t opt-out patents when the UPC starts functioning.”
This helps remind us who the EPO really serves. It has become a “protection” apparatus for large corporations, largely at the expense of citizens of Europe. The Unified Patent Court would enable huge corporations to sue a lot of rivals or intimidate them. It would also help patent trolls.
Several months ago a source sent us some information about the neglected Article 4a of the European Patent Convention (EPC), which might be of interest. Article 4a of the EPC deals with very fundamental rules. If any rule it is violated, then there is legal basis on which to file complaints.
As our source put it: “Another example of how the current EPO management (meaning Battistelli and the Administrative Council) has managed to avoid political oversight can be seen by consulting Article 4a of the European Patent Convention according to which: “A conference of ministers of the Contracting States responsible for patent matters shall meet at least every five years to discuss issues pertaining to the Organisation and to the European patent system.”
“This Article,” explained our source, “was introduced into the revised version of the EPC (“EPC 2000”) which entered into force on December 13, 2007.
“However, despite the statutory requirement to hold a ministerial conference at least once every five years, no such conference has been convened since the entry into force of the revised EPC in 2007. The first five year period expired on in December 2012, i.e. on Battistelli’s watch. (He was appointed EPO President in 2010.)”
This would not be the first time that Battistelli dodges or eliminates oversight, as we showed numerous times before. “If you can read French,” said our source, “it may be worth having a look at an interview Battistelli gave to a French magazine in 2012.
“In this interview he boasts (in French) of the “independence” that he enjoys as EPO President.” To quote the interview: «Je n’ai jamais été aussi libre, insiste-t-il. Je n’ai pas de ministère de tutelle, de Parlement, de gouvernement. C’est nous qui fixons les règles, les discutons, les négocions.»
In English: “I have never been so free, he insists. I have no supervisory Minister above me, nor any Parliament or government. It is we who discuss, negotiate and decide on the rules.”
In other words, he has got himself a tyranny. He does not even need to obey rules. “The “we” referred to here seems to mean Battistelli himself and the AC,” remarked our source. As we have demonstrated time after time, the Administrative Council is basically in cahoots rather than independent from Battistelli. It’s a banana republic’s status quo.
“However,” he said, “as can be seen from Article 4a EPC, Battistelli’s arrogant boast that he is not subject to any oversight by ministerial or governmental authority betrays a serious misunderstanding of the legal framework established by the revised EPC.
“Obviously, the intention behind article 4a is to provide for some measure of political oversight of the EPO at ministerial level. It is only by ignoring this provision, i.e. by not taking any measures to convene a ministerial conference despite the statutory requirement to do so, that the EPO President and the AC have been able to evade this kind of political oversight.”
“We wish to revive the petition, preferably not just from Croatia.”The rejected complaint (in the form of a petition) to the European Parliament is worth revisiting in this context, given that some European politicians continue to pursue action against the EPO. We wish to revive the petition, preferably not just from Croatia. There is a certain stereotype and a myth that Topić and his ilk exploit; it’s the myth only Croats are upset at Topić, supposedly because of envy. We need more involvement from people outside Croatia and by providing information in English we hopefully make more people aware of the issues and thus more able to communicate them. Any such communication in support of the previous petition from members of the general public could be useful to encourage the Petitions Committee to investigate the abuse as it would indicate to the Committee that there is a public interest in the issues raised by the Petition outside of Croatia (from where the original petition originates).
We have already written several times about the first petition calling for an independent investigation of Topić’s appointment. The petition was submitted to the European Parliament by a Croatian NGO called Juris Protecta. It stated that an independent (outside) investigation was needed, but none ever took place, even two years later. The petition goes back to 2013 and the reference number for the petition was (and still is) 2848/2013. The original petition contained a request for confidential treatment. This request for confidential treatment was subsequently withdrawn which means that the petition is now a public document. In the mean time, Vesna Stilin (another Croat) had submitted an application to join the Petition as a co-petitioner and she was taking other actions to address these matters, as mentioned in several older articles of ours. The previous meeting of the Petitions Committee of the European Parliament was scheduled for 11 November 2014 and the next one is at the end of this month, so there may be time to submit new petitions, something along the lines of the following words of ours (please don’t just copy). Here is some draft text which could be used as a basis for communicating and conveying thoughts to the Petitions Committee:
I/we refer to Petition 2848/2013  which has been filed with the Petitions Committee of the European Parliament and which calls for an independent investigation of the appointment of Mr. Željko Topić as a Vice-President of the European Patent Organisation. In December the petition was rejected not because it lacked merit but because it was claimed to be within the responsibility of other departments. This response is deeply problematic because the nature of the petitioner’s concerns and the core complaint is that those other departments have been gagged, suppressed, or even abolished by those who are supposed to be overseen. That, as some may argue, is how Topić got into his position in the first place. It means that the European Parliament is the last resort and the only body able to engage in a potent investigation. The European Parliament should consider revisiting these issues, among more issues such as the violation of the European Patent Convention (EPC) [see/refer above].
I/we hereby wish to express my/our support for the 2013 Petition and suggest that a new, more extensive investigation into these matters in undertaken. I/we would be grateful if you could acknowledge in due course that my/our support for the Petition has been registered with the Petitions Committee.
 Ref: Petition No. 2848/2013 filed by Juris Protecta (Croatia).
This is just a suggested draft for a letter to the Petitions Committee of the European Parliament to express support for Petition No. 2848/2013 calling for an independent investigation of the appointment of Mr. Željko Topić as a Vice-President of the European Patent Organisation. We urge for expansion of the original complaint/petition, either by citation or by filing of a new petition (clarifying that it is a followup), as a lot more is known now than was known back in 2013. The European Parliament should be able to find plenty of relevant information in French, German, and English. Benoît Battistelli is quickly moving to crush any kind of oversight and if the European Parliament continues to refuse to intervene, it too would lose legitimacy and potentially be seen/perceived as complicit. Members of the European Parliament need to understand that.
For the moment we don’t know whether or not the petition 2848/2013 will ever be the agenda again. It might therefore be worth filing a fresh petition. We would like to point out here that, in principle, any EU citizen who is interested in this matter can write to the Petitions Committee to express support for petitions. Maybe some of our European readers would take leadership on this matter. Other readers would hopefully be interested in expressing their support for the petition or submitting a new one. Some contact details for the Petitions Committee are as follows:
- Ms Cecilia WIKSTRÖM:
- Mr Pál CSÁKY:
- Ms Rosa ESTARÀS FERRAGUT:
- Ms Roberta METSOLA:
- Ms Marlene MIZZI:
Secretariat of the Committee on Petitions
- Mr David LOWE, Head of Unit:
60 rue Wiertz / Wiertzstraat 60
B-1047 – Bruxelles/Brussels
If you do choose to communicate with a petition, please consider sharing some information with us in the comments below, e.g. a reference number. Organising the action would make it more effective. █
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Summary: Signs that the US is turning against software patents, not just against patent trolls which so-called patent reforms strive to tackle
THE UNITED STATES is improving when it comes to patents sanity because scope is being narrowed, especially when it comes to software patents. We wrote over a dozen articles about it, but the media is still full with so-called ‘reports’ (shameless self-promotion and self service) from patent lawyers, who would deliberately have the public believe that not much has changed. Always remember that patents (as per their mission statement) are supposed to be about publication, innovation, and public interests, not about securing the newly-created jobs of parasitic lawyers and their monopolistic clients.
“Always remember that patents (as per their mission statement) are supposed to be about publication, innovation, and public interests, not about securing the newly-created jobs of parasitic lawyers and their monopolistic clients.”The EFF recently made this good move against software patents, specifically naming software patents as the issue (not “trolls” or “stupid” patents as the EFF habitually addresses the issue).
To quote the EFF: “There are many reasons software patents cause so much trouble. The Patent Office does not do a good job reviewing software patent applications to see if they are claiming something new. And these patents often describe the purported invention with highly vague and ambiguous language. Software patents also tend to claim every way to solve a problem, rather than the particular solution developed by the applicant. This is known as functional claiming. While it may seem like an arcane legal dispute, functional claiming is a key feature of overbroad software patents.”
The EFF recently improved its activism in this area, having wasted nearly a decade tackling one patent at a time (so-called ‘busting’), talking about patent trolls, or alluding to patents that are “stupid” rather than ones whose class/type/scope makes them illegitimate. Alas, the “Stupid Patent of the Month” series from the EFF continues. It usually names software patents, but does not refer to them as such. Here is the example from a few days ago:
In the Spirit of the Holidays: It’s Not Too Late for Uber to Avoid Stupid Patent of the Month
Because Uber did just that, Uber is being forewarned of its risk of receiving the Stupid Patent of the Month award. Specifically, Uber has applied for a patent on a form of dynamic pricing, a practice that (even if it didn’t exist before the study of economics) has been heavily in use by various industries, including most famously by airlines, for over 20 years.
Stallman recently published a good list of reasons not to use Uber (the car ride brokering company), but that is a subject for another day. The EFF has provided yet another reason to avoid Uber.
Make no mistake however. The EFF’s lawyers are outnumbered by patents-loving lawyers who flood the media with pro-software patents articles (we are reviewing this on a daily basis). The only exception we have found in the past fortnight was Timothy B. Lee, who published the article titled “Software patents are a disaster. The courts finally did something about it in 2014.” Here are some opening paragraphs:
For two decades, people in Silicon Valley have been complaining about software patents. People would get patents on broad concepts like checking email wirelessly or scanning documents to an email account, and then sue anyone who happened to stumble across the same concept. Thanks to this kind of frivolous litigation, patents in the software industry may actually be discouraging innovation instead of encouraging it.
But until recently, complaints about excessive patenting of software mostly fell on deaf ears. The patent office issued tens of thousands of new software patents every year, and the courts upheld most of them. Congress showed little interest in addressing the issue.
The fiercest pro-software patents sites refuse to talk about the demise of software patents or even call patent trolls “trolls” (they use other words). What they do care about is the patent reform in the US; yes, even patent lawyers’ sites speak about it and some worry about the (rather likely) imminent appointment of Michelle Lee, who is one of them (a lawyer, albeit with a scientific background as a computer scientist). Louis J. Foreman says: “I’m concerned independent inventors, small businesses and the property protections we all depend on are about to become collateral damage as Congress once again tries to crack down on “patent trolls.” The popular definition of a patent troll as used in the congressional debate is a company that doesn’t make any products itself, but that owns patents and tries to make money by accusing other companies of infringement.”
We have seen more of that argument elsewhere, basically complaining that patent trolls are not a problem. As one person put it, “obviously, these guys have never been sued by a patent troll…the Wright Brothers…really?”
It was said in reference to this odd article. “Take a look at the website of the ‘tech’ company 1 of the authors works for,” said one person. It sure looks like those who defend trolls are either trolls themselves or those who work with trolls.
In relation to a patent reform this puff piece from The Hill gave a platform the the BSA (Microsoft front group). One relevant part says:
“I think the change in the Senate is a good thing for patent reform,” said Craig Albright, a top lobbyist with BSA | The Software Alliance. “And that change is important for the prospects of getting patent reform done and it’s one of the reasons why we’re optimistic.”
As we have shown before, when Microsoft and its partners speak about patent reform they don’t speak about eliminating or limiting software patents, which they love dearly. Here is another new article titled “Patent Reform Likely to Succeed in Next Congress” and further commentary from TechDirt:
As we’ve noted recently, a series of Supreme Court decisions over the past decade, culminating in the big Alice v. CLS Bank ruling in July, has clearly put a serious crimp on the patent trolling business. Vague, broad, dangerous patents are falling like flies, new patent trolling lawsuits are on the decline and the US Patent Office is rejecting a lot more questionable software and business method patent applications. All good news. But is it enough?
That is pretty much where favourable coverage ends. The biased media of patent lawyers still dominates the news feeds, aided by large corporations’ press.
Bloomberg, i.e. Wall Street, gives them a platform with which to defend software patents in the wake of Alice v. CLS Bank and blogs of patent maximalists write about it in a self-serving fashion. “Look at those patent guys scared to death about loosing their jobs with the removal of software patents,” wrote the FFII’s President. There is more where it came from (bypassing limitations), glorification of patents and revisionism (disguised as ‘history’) about software patents, as noted in an article we published 2 weeks ago. When Gene Quinn talks about history he speaks of a highly modified version that helps patent lawyers fool judges or lawmakers.
A lot of other legal sites, such as Mondaq, Lexology and Law 360 showed their clear bias. Only patent lawyers write there on this topic and it’s unsurprisingly biased. Some are willing to acknowledge the fact that software patents are in trouble, but they selective pick cases where software patents endure. To quote an example from today: “In discussing computer software patentability, the court stated outright that “software must be eligible under § 101″ and that the Supreme Court has implicitly endorsed the patentability of software, including in Alice. Specifically, the court reasoned that patent law must balance between encouraging creation of new computing solutions and protecting against applying established ideas through a computer environment. Caltech, 156 C.D. Cal. at 9095. The court also interpreted Alice as acknowledging the patent eligibility of software if it improves “the functioning of the computer itself” or “any other technology.””
“No, Mr Crouch,” insists the FFII’s Present, “loading software on a PC does not make it a new machine” (Crouch is one of the most prominent boosters of patents).
Joe Mullin recently showed that not only software patents are dying in the US but patents on genetics too. As Susan Decker from Bloomberg put it: “Myriad Genetics Inc. (MYGN) can’t block competitors’ DNA tests to determine risk for breast and ovarian cancer after a U.S. appeals court said three patents on the tests never should have been issued.
“The patents cover products of nature and ideas that aren’t eligible for legal protection, the U.S. Court of Appeals for the Federal Circuit said in an opinion posted today on the court’s docket. The court upheld a trial judge’s decision to allow the competing tests, including those made by Ambry Genetics Corp., to remain on the market.”
It sure looks like the US improves a lot on the patent front, but reading the lawyers-dominated press won’t quite reinforce this impression.
“Comments will be accepted until March 16, 2015,” says the USPTO regarding the “Interim Guidance on Subject Matter Eligibility”. Three weeks from now we shall receive some new sregarding patent scope in the US and perhaps also find out who is going to head the USPTO,
A public forum will be hosted at the Alexandria campus of the USPTO on Jan. 21, 2015, to receive public feedback from any interested member of the public. The Eligibility Forum will be an opportunity for the Office to provide an overview of the Interim Eligibility Guidance and for participants to present their interpretation of the impact of Supreme Court precedent on the complex legal and technical issues involved in subject matter eligibility analysis during examination by providing oral feedback on the Interim Eligibility Guidance and claim example sets. Individuals will be provided an opportunity to make a presentation, to the extent that time permits.
It is very likely that law firms and large corporations will submit the lion’s share of comments and those who are unaffiliated will be ignored or mostly unaccounted for. Software patents will lose when the wealthy interests against them outweigh the likes of Microsoft. In a world where Free software increasingly dominates (sharing and collaboration among software companies) the vision of a software patents-free world is no fantasy. █
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Not much in terms of changes except the public face
Photo from Asian Pacific Fund
Summary: An update on efforts to reform the patent system in the United States, including the possibly imminent appointment of Michelle Lee to USPTO leadership role
OUR friends over at IP Troll Tracker argue with proponents of patent trolls, including those who try to classify the world’s biggest trolls (firms like Intellectual Ventures) as something else. Apparently, trying to say who qualifies as a patent troll is a controversial issue among those who are in this business and this is why there was hardly any substantial progress on eradication of patent trolls. The de facto definition of “troll” these days is “small actor that uses patents”. It’s about scale, not scope. If you are a massive corporation like IBM and Microsoft, then you somehow can’t qualify as “troll” even when you engage in the very same tactics on a much larger scale.
“If you are a massive corporation like IBM and Microsoft, then you somehow can’t qualify as “troll” even when you engage in the very same tactics on a much larger scale.”This new article from TechDirt speaks of the fight for patent reform by the likes of Newegg, correctly noting that “the company became a leader in fighting back against ridiculous patent lawsuits, going toe-to-toe with some of the biggest trolls around. The company’s Chief Legal Officer, Lee Cheng, has vowed to never settle with a patent troll, and so far has never lost an appeal on a patent claim.”
Another older article from TechDirt cites Professor Bessen and reminds us that Free software projects are directly being harmed and even eliminated by patent trolls (we gave some examples before). To quote the article, via James Bessen, “we [now] learn of how a patent trolling operation by StreamScale has resulted in an open source project completely shutting down, despite the fact that the patent in question (US Patent 8,683,296 for an “Accelerated erasure coding system and method”) is almost certainly ineligible for patent protection as an abstract idea, following the Supreme Court’s Alice ruling and plenty of prior art. Erasure codes are used regularly today in cloud computing data storage and are considered to be rather important. Not surprisingly, companies and lawyers are starting to pop out of the woodwork to claim patents on key pieces. I won’t pretend to understand the fundamental details of erasure codes, but the link above provides all the details. It goes through the specific claims in the patents, breaking down what they actually say (basically an erasure code on a computer using SIMD instructions), and how that’s clearly an abstract idea and thus not patent-eligible.”
See this page about the patent: “The Accelerated erasure coding system and method software patent was filed by StreamScale, a patent holding company, and granted by the US patent office in march 2014 (filed july 2013). It claims to own the idea to use SIMD instructions to speed up the computation of Erasure Code. It is a patent-ineligible abstract idea and can be ignored.”
Well, it may be a patent-ineligible abstract idea, but proving in in Court can be costly, especially for a Free software project.
It is being reported right now that Michelle Lee, formerly of Google, is en route to becoming the next head of the USPTO (the pro-software patents sites exploit this to try to promote stronger policy in favour of software patents). “There were no big surprises,” writes Patent Progress, “on Michelle Lee’s nomination as head of the USPTO. The Committee went fairly easy on her with their questions, with the possible exception of Senator Durbin, who admits that he knows nothing about patents or patent law, but seems convinced by his Illinois constituents that there is no patent troll problem.”
Durbin and the likes of him seem to be talking based on (mis)information from lobbyists and funders, not facts. It’s the big corporations talking. Either way, while it’s clear that there is a patent troll problem, there is also a patent scope problem and that’s what trolls tend to exploit. It’s not a surprise that a site like Patent Progress only focuses on patent trolls; see who funds the site by proxy (certain type of big corporations). Another new post from this site states that “Commissioner Brill’s main point was that we shouldn’t wait for the study to be concluded before pursuing legislation against PAEs. There’s no question that the PAE problem exists and is getting worse; she made clear that the new Congress should act immediately after taking office.”
PAE is just a euphemism for troll or shark.
As readers may recall, the Republicans (GOP) spoke about 'reform' on patents roughly one month ago, but nothing was really going to change. Mike Masnick from TechDirt recently published this update that says: “Back in May, we wrote about how, despite pretty much everyone agreeing on a (decent, if not amazing) patent reform bill in the Senate, the whole thing got shot down at the last minute. That was when the trial lawyers called Senator Harry Reid, asking him to kill the whole thing, which he did by telling Senator Patrick Leahy that he wouldn’t allow the bill to go to the floor for a vote. This came after months of detailed negotiations, getting nearly everyone into agreement on the bill, which would have made life at least somewhat more difficult for patent trolls. About a week after that, we pointed out that it seemed likely that the patent trolls had miscalculated badly, because it was widely expected that the Republicans would take control of the Senate in the fall (as they did), and they were more gungho on real patent reform and (obviously) not concerned with what trial lawyers think (mocking trial lawyers being a hobby of Republican politicians).”
To make a long story short, there is still no sign of reform on patents and even if there’s reform some time in the near future, it won’t actually address the problem of patent scope; it only targets “small trolls”, not “big trolls” like Microsoft and Apple, which still can use software patents to imitimate or extort Free software projects, including Android and Linux. █
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Summary: The corporations-serving GOP says that it wants a patent reform, but another reminder is needed of the futility of the suggested changes
THE WALL STREET JOURNAL, a GOP-leaning News Corp-owned paper, says that “Leading GOP Senator Says More Patent Reform on the Horizon”, but as we explained before, this is not an effective reform. Being on the GOP’s agenda, one can expect it to serve large corporations rather than public interests (which GOP is neither sympathetic nor apathetic towards because public interests often conflict with business/rich people’s interests). “The bill,” says the paper, “will likely add new responsibilities on plaintiffs filing patent-infringement suits. Among the possible additions: a provision requiring plaintiffs who lose their infringement lawsuits to pay the defendants’ litigation costs.”
This would be effective in preventing poor people or small businesses from suing, irrespective of their nature (e.g. trolls, startups, individuals). It hardly deters large corporations with a large budget; for them, legal costs are typically slush funds.
“It hardly deters large corporations with a large budget; for them, legal costs are typically slush funds.”This is of course better than no amendments to existing laws, but does it go far enough? It might not be enough to discourage big trolls like Nokia, which the paper above indicates is likely to use software patents for profit (article behind paywall). Nokia is already patent-trolling, with Microsoft’s help, by proxy, e.g. through MOSAID (now renamed “Conversant” because of its bad reputation). The European authorities have already been made aware of this and they warned Nokia.
Nokia seems to be following the footsteps of companies like Qualcomm, which got the attention of some pro-software patents the other day. █
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Summary: A quick roundup of news of interest regarding software patents
THE SO-CALLED ‘Alice’ case has proven to be much more effective than Bilski because although In Re Bilski was sometimes used to eliminate a software patent here and there (examples exist) it happened nowhere as often as after ‘Alice’.
Dozens of law firms threw pieces of misinformation at the media shortly after the ‘Alice’ determination (we covered a large number of examples at the time), trying to deny that it had any impact on software patents. These were attempts at a self-fulfilling prophecy, but they were proven wrong. Now that ‘Alice’ is cited and used — successfully — in elimination of software patents in the United States the lawyers’ sites take another defensive approach such as this or that. Being lawyers’ sites, the headline “Section 101 Attack” (implying that the attackers are those who are against monopoly on algorithms) is not too shocking. They are trying to advise patent lawyers how to circumvent the new restrictions, with an introduction such as the following: “On November 3, 2014, in Cal. Inst. Of Tech. v. Hughes Communications., 2014 U.S.. Dist. LEXIS 156763 (C.D. Cal. 2014), Judge Mariana Pfaelzer penned the most thorough defense of software claims attacked under s. 101 that I have seen since State Street Bank. The opinion is also useful since it both continuously cites – and often distinguishes or explains Mayo—and because it is very critical of the analytical framework employed by the same court in McRO (Planet Blue) v Namco, a September decision on which I posted earlier. (A copy of this decision can be found at the end of this post.)”
If you are against software patents, then the patent lawyers view you as “attacking” them. Yes, it’s not those who monopolise and sue who are the attackers, but those who are trying to defend themselves. This wording is found in some of the highest tier legal papers, which probably shows just what level of contempt patent lawyers have for society at large.
Here is another legal publication writing not only about patenting software but also copyrighting it (applicable by default). It refers specifically to India, en ever-growing software giant where imperialistic lawyers (whose clients are rich multinationals) would just love to impose monopolies nf software (it’s usually non-Indian companies that can afford to file for patents and file lawsuits there, obviously against Indian people and businesses). India will hopefully never follow the trajectory of the US by embracing patents on algorithms.
Pay attention to this new Apple patent on a trivial software idea:
Apple has a new patent granted today by the USPTO (via AppleInsider) that details a method by which it can detect and keep track of mobile network dead zones via crowdsourced information. The technology is designed to give device makers and network operators a way to easily identify and counter low signal zones, by building out their network where it needs the most work.
Apple is increasingly becoming a software patents-wielding parasite, not a producing company. Thankfully, the US seems to be tackling the practice of patent trolling right now and Steph just got “a tip from an anonymous source that a certain company received a request from an NPE to permit disclosure of a license agreement to the FTC.”
We do not really believe that the FTC will be effective at tackling patent trolls, but at least it’s trying. There are signs of improvement and it’s not too delusional to allege or predict a wide-ranging patent reform, even with GOP majority. █
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Summary: The Grand Corporations Party, or the political party which serves large businesses that are funding it, continues to just focus on a mirage of a ‘reform’ rather than tackle the real issues where culprits include very large businesses such as Microsoft and Apple
THE GRAND CORPORATIONS Party (GOP), which is more pro-corporations than the Democrats, would have us believe that it will make the patent system better. Well, better for who exactly? Large corporations? It’s obvious that patent trolls harm large corporations, but what about the interests of individual people and what about massive corporations that are patent parasites? We have written so much about this subject for years and we nearly got sick of it when the corporate press only ever spoke about patent trolls as the issue but never about patent scope.
Here we have a new example of corporations that manufacture drugs that they sell at about a thousand times the production cost, having pretended to have done so much to deserve this while asking governments for protectionism. Here is the good find from TechDirt, which got a snapshot of the evidence before it vanished:
Yesterday afternoon, the twitter feed for “LillyPad,” which is Eli Lilly’s “policy” blog and Twitter feed, excitedly tweeted out a quote from Stefan Oschmann, an executive at pharmaceutical competitor Merck, who was just elected as the new head of the International Federation of Pharmaceutical Manufacturers & Associations (IFPMA) — basically, the big pro-pharma lobbying group. The tweet is no longer there, because LillyPad deleted it, but here’s a screenshot I took apparently seconds before it disappeared…
But it appears that Eli Lilly (and IFPMA) have no interest in being intellectually honest or having such a discussion. No, they’ve decided to stick to the ridiculous and bogus corporate line that patents are all butterflies and roses, and do no harm at all. What a wasted opportunity — even if it helped show the true colors of the current leadership of the pharmaceutical industry.
See the comments in there as well. Patents on drugs are probably some of the patents that are even more nasty and evil (they kill people) than software patents.
The Grand Corporations Party (“Republican”) is now shaping the USPTO and patent law to better suit large corporations, based on numerous reports such as these:
A Republican takeover of the U.S. Senate has brightened prospects for an effort to fight frivolous patent litigation, although the path to success is far from clear, sources close to the lobbying effort said on Wednesday.
The House of Representatives easily passed a bill in December to cut down on abusive litigation brought by patent assertion entities, or “patent trolls”: companies that buy or license patents, then aggressively pursue licensing fees or file infringement lawsuits.
That legislation, backed by technology companies like Cisco Systems Inc and Google Inc, stalled in the Senate amid opposition from drug companies and, crucially, lack of backing from Democratic Senate Majority Leader Harry Reid.
A centerpiece of the effort was a provision that encouraged judges hearing patent cases to award fees to the winners of infringement lawsuits.
Stop talking about “patent trolls” and talk more about patent scope. Here is another relevant report:
On the plus side for tech, with the GOP taking over the U.S. Senate, patent reform efforts received new life, as Mike Allen of Politico noted this morning.
“Now we’ll find out if Washington can move on patent reform, drone use and other big issues,” says the business press of News Corp. (owned by a billionaire to serve his and GOP-leaning agenda and Wall Street’s interests, i.e. the very top of the top 1% of earners). What kind of patent reform? All they ever talk about is “patent trolls”. They seem to mind the problem with patents only when theose benefiting are not funding (i.e. bribing) Senate/Congress. █
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Summary: Reports about patent trolls and scope of patents serve to show what the foes of Free software are up to right now
WE HAVE spent almost half a year covering analyses of the Alive case because it may signal the demise of software patents in the United States (home of software patents). Lawyers were consistently denying it would have an impact on granting/rulings, but facing the real facts they must now admit that they were wrong. One patent-wielding parasite, a law firm called Barnes & Thornburg LLP, wrote an article in a few sites of lawyers, concluding: “For patent litigation, the data are not as clear as the USPTO data, but data suggest that § 101 challenges to issued patents are becoming more common—as well as more likely to succeed. New patent litigation filed in September 2014 (329 cases) was a 40% reduction compared to September 2013 (549 cases).7 Over the past few years, new patent litigation cases are reduced over the summer but increase again in September. However, a post-summer increase did not happen this year. Although correlation does not equal causation, the Alice decision may make patent holders hesitant to file new litigation due to not wanting to proceed with possible invalid claims under § 101. However, Alice is not the only factor. The America Invents Act provided an alternative pathway to challenge patents–2003 inter partes reviews (IPRs) and 240 covered business method reviews (CBMs) have been requested since September 16, 2012.8 In the first two years, the PTAB has found all challenged claims invalid in 65% of the 126 final decisions. Thereby, there are most likely several contributing factors leading to the decrease in patent litigation, whereby Alice is probably one of several factors.”
What’s nice about this analysis is that it very much contradicts what many law firms foresaw or turned into what was their failed self-fulfilling prophecy. Things are not working out too well for them now. The incentive to patent software is now decreasing and based on this new analysis, even the government is now trying to stop the parasites:
Scanner Patent Troll Slapped On The Wrist By FTC; Told To Stop Misleading Behavior.
For a few years now, the FTC has talked about taking on patent trolls. In 2011, 2012 and 2013, we heard stories about the FTC putting patent trolls “on notice” and getting ready to crack down on them for deceptive practices. Last year, it finally “launched an investigation” into certain patent trolls, starting with notoriously crazy patent troll MPHJ, famous for its rather aggressive form of trolling, using a questionable patent on “scan-to-email” technology, sending out thousands of demand letters from a range of shell companies, telling lots of small businesses that they had to pay between $900 to $1200 per employee if they had a scanner with the “scan-to-email” function (most modern scanners).
Another troll and parasite, the Microsoft-connected MOSAID, is now mentioned in the site of one of the few patent lawyers who early on warned — correctly to his credit — that Alice would do a lot to harm software patents. Check out this part:
John Lindgren, President and CEO of Conversant (formerly MOSAID Technologies), was also on the first panel. He concurred that “the calculus has changed.” He and others on the panel recognized what everyone in the industry has been speaking about, namely that the market for acquiring patents is dead, at least from the point of view of the patentees. The agreement on the panel was that well run non-practicing entities are in a particularly good position to start accumulating patents at a steep discount. Lindgren also predicted that we will see consolidation of the industry both with respect to private and public companies in the NPE or patent monetization space. I concur completely. Recently I wrote about the inevitable rise of super trolls, or super patent trolls. The market is not going away and the actions of Congress and the Supreme Court, which have made individual patents worth far less, and portfolios likewise worth far less, will ultimately work to create the monster that all of this anti-patent activity was intended to prevent. But that is always what happens when politicians attempt to regulate an industry that they don’t understand and Judges are more interested in playing the part of super legislators.
Notice that they have renamed. Conversant is probably an attempt to dodge the bad publicity.
MOSAID is of interest to us because Microsoft has been trying to use it as a proxy, a bit like SCO. Microsoft arranged for MOSAID to receive many of Nokia’s patents, whose optimal and expected target would of course be Android/Linux. Our goal should be to eliminate such patents, not only such nasty trolls, as we are already seeing, as pointed out in the previous post, how protectionism is pursued in the courts, especially corrupt ones like CAFC. █
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Summary: A roundup of patent news and in particular news pertaining to software patents, trolls that threaten Free software, and media bias
EVERY NOW and then Techrights covers examples of patents — not necessarily software patents — which show how ridiculous the patent system has become, especially the USPTO.
Some days ago the EFF wrote about a patent on how to film a yoga class — a patent similar in some sense to Amazon’s patent on photographing objects with a white background at the back.
EFF recently learned about a patent that covered a method of filming a yoga class. We reviewed the patent and discovered that it was just as ridiculous as it sounded. Despite our familiarity with absurd patents and our concerns about cursory review at the Patent and Trademark Office (PTO), we were still surprised that this one issued. It seemed the so-called “invention” wasn’t the kind of thing that should be patented at all—or at the very least, was not something novel or nonobvious. Yet another stupid patent, and winner of our October accolades.
Another new article from the EFF says that a “patent troll [was] hit with double fee award”. “Lumen View is a typical patent troll,” says the EFF. “Armed with a vague patent on “facilitating bilateral and multilateral decision-making,” it sent out aggressive letters demanding payment. It refused to explain how its targets actually infringed its patent. Instead, it made shakedown offers it knew would be less than the cost of defending a lawsuit. When startup FindTheBest spoke up about Lumen View’s tactics, the troll asked for a gag order. Thankfully, Judge Denise Cote of the Southern District of New York refused the troll’s censorship demand.”
Now everyone is against patent trolls. The plutocrats’ paper, Forbes, calls them “Non-Practicing Entities” in this “interview Shawn Ambawni the COO of Unified Patents.” (not to be confused with the proposed European Unified Patent Court)
“Unified Patents” issued some numbers on decrease in patent litigation although its numbers where not quite as encouraging as those from Lex Machina and they tried to paint it as a troll issue, not a patent scope issue. Here is the original spin with the “NPE” euphemism for trolls.
Instead of chastising the real patent aggressors, corporate media likes to pick on companies like Google (because Google stopped pursing real reform). It’s just too popular to pick on Google and not companies that are aggressive with patents and use them against Google, e.g. Apple, Oracle, and Microsoft.
The corporate media, USA Today for example, continues to reveal its support for abusive litigation with patents by big companies and trolls (referring to trolls as “NPEs”) and a patent maximalists’ Web site writes about Wi-LAN, a very notorious troll, as though it’s an “NPE” too:
Japan’s ROHM Semiconductor has entered into an agreement with Wi-LAN which will see it transfer a portfolio of patents to the Canadian firm. This is the latest deal in which a Japanese technology company – traditionally a very conservative bunch when it comes to aggressive IP monetisation – has teamed up with an NPE in an effort to improve returns from its patents.
From the same patent maximalists’ site comes an interview where Lemley says: “The tech industry is not monolithic – Apple and IBM, and increasingly Microsoft, are actually now fairly vocal proponents of patents as they become sort of more mature companies and see their market share being taken away by others. My guess is that if you asked engineers in the software world they would say, maybe not universally, but almost to a person, we’re on a roll lets just get rid of them.”
In other news about trolls, Acacia has just been defeated and here is an interesting observation about Intellectual Ventures (both are Microsoft-connected):
How can they have more subsidiaries than IV? Or rather, how can their fewer-than-IV-subsidiaries have filed more lawsuits than IV’s? It’s possible and highly likely because Joe’s a very thorough guy and wouldn’t say that if it weren’t true. It’s just surprising that I didn’t know that because I pride myself on knowing all the things about all the trolls.
One sure thing is, patent trolls and big trolls such as Microsoft continue to be defended by some of the largest (and corporations-run) media, leaving everyone in a state of anxiety and disarray. The patent system as it stands at the moment serves virtually nobody except the richest people and richest corporations. It’s a system of protectionism. █
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