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05.13.18

Alice/Section 101 is Fine Because Copyrights Already Cover Software and Patents Are Inadequate for Code

Posted in IBM, Law, Patents at 1:48 am by Dr. Roy Schestowitz

But IBM, Watchtroll et al continue to set up lobbying events against Section 101 (not to mention jurist-bashing tactics)

Patent Lawyers' Tears

Summary: The world has moved away from (or beyond) software patenting and companies/firms that rely on such patents try to sabotage progress, sometimes by bashing courts

THE world generally rejects software patents. Sure, the EPO and USPTO make it possible to overcome restrictions using buzzwords and semantic tricks; but courts and appeal boards (BoA/PTAB) aren’t quite falling for it.

“…Bangladesh should reject software patents like the rest of the world (bar China) does.”Hours ago we saw this new article from the Dhaka Tribune. It’s titled “Minister urges for immediate measures to reform IP laws for ICT” (the term “ICT” is one of those notorious buzzwords that the EPO likes to use). But Bangladesh should reject software patents like the rest of the world (bar China) does. Here’s the core paragraph:

Thanking Tina Jabeen for her passionate efforts to secure proper sustenance for the budding startups in the country, Mustafa Jabbar took a trip down the memory lane to elaborate the upward transition of the ICT sector in Bangladesh. “Back in our time there was no procedure to register a software, but when there is a will, there’s way and I kept applying for the patent of my product despite repeated rejections. When I applied for the patent in 1992, there was not a single person in the responsible department who could examine the product,” he told the audience about his struggle to patent the iconic software Bijoy. “Fortunately for me, an official came to my rescue and took the responsibility to inspect. It was in 2004 when I reapplied and it took four full years for me to finally get the patent. However, things have drastically changed and the procedures are way simpler now,” he added.

This almost perpetuates the false assumption that one patent covers an entire program, potentially conflating copyrights with patents. He speaks of a “procedure to register a software” as if patent applications are a registration process.

“He speaks of a “procedure to register a software” as if patent applications are a registration process.”Mythology about patents has become widespread. Patent maximalists like to ‘name-drop’ “innovation”, “protection” and so on. They typically admit that they never even wrote a computer program. They don’t understand programming.

The other day, writing about Tesla's latest legal ordeal, Josh Landau (CCIA) said that “Nikola got it all wrong.”

The “Cult Of Patents” has basically created an untenable situation where stuff covered by copyrights is now being patented too: designs!

To quote Landau:

Last week, Nikola sued Tesla over advanced technology trucks. But it isn’t about the technology. It’s not AC vs. DC or Edison vs. Tesla. It isn’t even about electric vehicles (or hydrogen-electric trucks, Nikola’s chosen technology).

It’s about the shapes of windshields and doors. It’s about design patents.

And Nikola got it all wrong.

[...]

Different curvatures, a gentler rounding at the bottom right corner and a sharper one at the top. The Tesla windshield also exhibits a significantly larger difference between tallest and shortest portions, extending much further down the nose of the truck.

And that’s just the infringement argument. If you want to claim that your wrap windshield patent covers all wrap windshields, I think that Italian automaker Lancia (among many, many others) might have had something to say about that around 40 years ago.

How does one get a patent on mere curves? What would Bézier say? Why are windshield patented? Who’s responsible for such a patent grant?

Unfortunately, among patent maximalists at least, this is considered to be “normal”. They don’t care about patent quality and if they actually do care, it is because they hate patent quality. They actively combat improvement in quality.

“They don’t care about patent quality and if they actually do care, it is because they hate patent quality. They actively combat improvement in quality.”Consider Watchtroll’s tweet from a few days ago: “Matt Troyer from Anaqua predicts Patent No. 10,000,000 will issue on June 18, 2018, and it will be issued to Qualcomm on Application 13/666670.”

This “Cult Of Patents” (Watchtroll/Anaqua in this case) is obsessing over mere numbers rather than substance. They’re diluting and reducing the value of pertinent patents — a dime a dozen at this pace!

The corresponding article is titled “Predicting Patent Number 10,000,000″ and it was composed by Matt Troyer from Anaqua, basically a bunch patent maximlists who profit from an abundance of patents (that’s what their product is for). The greater the number of patents, the more messy the repository of US patents will become. So they sell “solutions”. Now they obsess over the 10,000,000 mark (as laughable as it is; there aren’t 10,000,000 inventions). As readers may recall, they did this some months back and we wrote several rebuttals to their nonsense. It’s not as though the sheer quantity is what’s worth celebrating; they should speak about quality.

“This “Cult Of Patents” (Watchtroll/Anaqua in this case) is obsessing over mere numbers rather than substance. They’re diluting and reducing the value of pertinent patents — a dime a dozen at this pace!”It has, in the meantime, emerged that IBM implicitly attacks the US Supreme Court for doing the right thing about patents (namely improving patent quality) and it also uses former USPTO and IBM staff to lobby on it. We see that the Koch-funded think tankers, people who are paid to attack PTAB, are really boosting David Kappos this month. It’s about IIPCC (US IP & Innovation Policy). Kevin Madigan wrote: “Former @uspto Director Dave Kappos: the US #patent system has been degraded by standard setting organizations that are stacked against innovators [] Qualcomm’s Laurie Self: with the onset of 5G, the patent system must help protect the massive amount of investment in R&D that has revolutionized cellular technology…”

Well, guess who’s behind this event: the former employer of Kappos (IBM), Qualcomm and so on. This whole event is like another think tank — mere scaremongering from IBM, Kappos and others. Watchtroll has just boosted it. Watchtroll plays a major role in this propaganda. They’re perpetuating the lie about “uncertainty” (“uncertainty created by the Supreme Court”) and just prior to it Watchtroll had this article from Manny Schecter (IBM) in which he again attacked Section 101 and the Supreme Court. IBM continues to associate with and write for judge-bashing maniacs who promote patent Armageddon. This, to us, shows that IBM not only promotes software patents but deserves bankruptcy. It’s an enemy of software developers.

“Well, guess who’s behind this event: the former employer of Kappos (IBM), Qualcomm and so on. This whole event is like another think tank — mere scaremongering from IBM, Kappos and others.”Schecter’s concluding words: “And now, as we embark into the unknown with nearly limitless computing power in the fields of quantum computing, artificial intelligence, cyber security, medical diagnostics, and biotechnology, and in fields that have not even been thought of yet, do we really want to continue with a weakened patent system that throughout our history played such a key role in promoting “the Progress of Science and useful Arts” to bring us to this technologically-advanced state?”

It didn’t take long for Watchtroll’s Gene Quinn to attack the courts again. The following day he published an article titled “Is the Supreme Court anti-patent?”

This is the latest court-bashing or judge-bashing article from Watchtroll. That’s all they have left. Attack the person/s. Just because of Alice.

Speaking of Alice, it was mentioned on the same day as Schecter’s article:

What kinds of trends are you seeing in patent law? The one that’s kind of a little bit of an old story right now is the Supreme Court’s 2014 Alice decision, which says you cannot patent an abstract concept.

That includes software/algorithms.

“This is the latest court-bashing or judge-bashing article from Watchtroll. That’s all they have left. Attack the person/s. Just because of Alice.”Meanwhile, in another public forum (think tank), IAM reported/quoted: “MacKenzie – i might be in a minority but i like where Alice [101] is right now. if you have to read a claim 10 times and you still have no idea what it’s claiming then that’s bad…”

When one has a crooked boss like Battistelli (at the EPO) this means that the examiner gets all confused, grants a patent anyway. Later this weekend we’ll show some of the latest buzzwords and tricks being employed. Scholars Michael Frakes and Melissa Wasserman recently wrote about this phenomenon in relation to the USPTO.

05.06.18

Alice/Section 101 and PTAB Continue to Eliminate Software Patents While Patent Lawyers Attempt to Distract From Oil States (US Supreme Court’s Decision)

Posted in America, Courtroom, Deception, Law, Patents at 11:19 am by Dr. Roy Schestowitz

Previously on Oil States:

A contract

Summary: In an effort to attract more business contracts, patent law firms give the impression that patent maximalism is alive and well in the US; in reality, however, the US undergoes some profound reforms and software patents are as toothless as they have been in recent years, not to mention that their elimination is only accelerating

THE US patent system gives us reasons for cautious optimism. Thus far, a few months down the line, the Director of the USPTO has not done anything abundantly damaging. He is under extreme pressure from the patent microcosm, which is trying to get him to become some sort of patent extremist like a certain disgraced (huge scandal!) judge who calls PTAB “death squads”.

“Software developers aren’t neutral on this subject; they want software patents destroyed.”We have had our share of ups and downs with the USPTO in terms of expectations. A decade ago, for example, we were highly critical of its approach towards software patents. That was back when David Kappos and his predecessor ran it. This was before Michelle Lee did some extraordinary things with the people around her — people who had helped introduce AIA (and with it PTAB).

Professor Michael Risch wrote this blog post a few days ago. He wrote about the impact of patents as a form of publication (for credit, documentation) — more or less the original purpose of patents (temporary monopoly in exchange for publication, preservation of human knowledge). To quote Risch:

How valuable is patent disclosure? It’s a perennially asked question. There are studies, like Lisa’s [colleague], that attack the problem using surveys, and the conventional wisdom seems to be that there are niche areas that read patents, but for the most part patent disclosure holds little value because nobody reads them.

[...]

Even if one does not buy into the strong version of their conclusions, however, this study has a really important real world payoff: publishing patents has an effect. They are seen, and they affect the body of prior art in a way that limits future claims (at the very least) and increases citations (which makes searching easier). This alone is an important function; as Lemley, Sichelman, Wagner, and I argued in prior work, one of the costs of not having software patents through the 1970s was that there was no prior art to knock out all the software patents of the 1990′s. This study confirms this for us.

Risch cites Lemley and others, then claims that software patents as a form of prior art is limited. We’d go further than this and say that there’s no need for prior art, just release of source code. In addition to this, copyrights — not patents — should provide a solution to plagiarism/copycats. Risch’s views on software patents have been covered here for many years and he recently wrote to me about it. He claims to be agnostic on the subject, but we still insist that software patents should be opposed. Software developers aren’t neutral on this subject; they want software patents destroyed.

“It’s like marketing in the form of a video (in the form of an ‘article’ at Mondaq).”Having reviewed the past week’s news, we’re still finding some references to the US Supreme Court. Most of these are self-promotional pieces from patent law firms, i.e. a form of marketing rather than impartial analysis. We’re therefore not going to write so much about that. A few days ago we saw this self-promotional video from Cislo & Thomas LLP. We have never seen anything like this. It’s like marketing in the form of a video (in the form of an ‘article’ at Mondaq). The summary says:

Veteran patent attorney Daniel M. Cislo discusses how patent litigation differs from other types of litigation.

Pure marketing. Why does that even enter news sites?

To give an example of marketing in the form of ‘analysis’ of the US Supreme Court’s latest decision, here’s a little something we caught a few days ago. The US Supreme Court has just declared IPRs Constitutional, but Jason E. Stach and Maureen D. Queler from Finnegan, Henderson, Farabow, Garrett & Dunner, LLP try to spin that as the exact opposite because they’re patent predators. What does their title say? “Oil States Q&A: How Will Other Constitutional Concerns Affect IPRs?”

So the reader may be left with the conclusion that IPRs are still unconstitutional — the very opposite of what the highest court in the United States has just said!

From their outline:

Oil States addressed constitutionality under Article III and the Seventh Amendment, but it did not directly address the other takings and due process issues raised by the Justices. Those issues will need to be addressed in future cases. However, many PTAB judges attended the oral arguments in November, and many more have listened to the argument or read the transcript. The sense in the profession is that the PTAB judges are acutely aware of the concerns raised by the Justices and they are working to quell those concerns. For example, it appears that the PTAB is now more willing to grant parties additional briefing, especially where denying that briefing might raise a due process issue. And since Chief Judge Ruschke has been at the helm, he has not expanded a panel to overturn an earlier institution decision. New Patent Office Director Iancu could also clarify that he will not use stacking as a way to “make sure [his] policies, [his] preferred policies are enforced,” which is what Oil States’ counsel argued predecessors had done.

That same firm (Finnegan) also wants you “[t]o listen to the podcast” by Joshua L. Goldberg, Cory C. Bell and Kevin D. Rodkey. They (Finnegan, Henderson, Farabow, Garrett & Dunner, LLP) focus on SAS Institute v Iancu — the far less relevant decision. From the outline:

In SAS Institute v. Iancu, the Supreme Court addressed the question of, “[w]hen the Patent Office initiates an inter partes review, must it resolve all of the claims in the case, or may it choose to limit its review to only some of them?” The Court found that, contrary to the prior USPTO practice, the Board may not limit institution to only some of the challenged claims. Finnegan attorneys Joshua Goldberg, Kevin Rodkey, and Cory Bell join us now to discuss what happens now.

In summary, Finnegan would rather speak about SAS Institute v Lee (or SAS Institute v Iancu) and when it covers Oil States — the far more important decision — it misleads its audience, spinning the decision as the exact opposite of what it was. Coincidence? Mischief? Misconduct? We’ll let readers decide, but this further erodes/exacerbates the image we already had in our minds (about patent law firms). What about Watchtroll? It’s just hoping that the USPTO will change something. Given Oil States, nothing will change in favour of the patent microcosm. As for SAS Institute v Iancu, it has no considerable impact, just minor (it might slow PTAB a little but not curtail its function).

“The reason Berkheimer gets brought up so often is that they want a software patents resurgence or a PTAB slowdown.”Looking at some other blogs of patent maximalists, Charles Bieneman is 'pulling a Berkheimer' again (he recently tried to coin terms like "Berkheimer Effect"). His blog post is titled “Berkheimer Prompts USPTO to Modify § 101 Exam Procedure”, but this is relatively old news which is still subjected to public input. The patent maximalists are trying to make it sound very final and inevitable; it’s not.

Bieneman didn’t quite stop there; the blog’s colleague, Bryan Hart, later on the day wrote about Oil States. But that was it. They wrote so many posts about Berkheimer (a far less important decision), but only one quick post about Oil States. Intentional? Malicious intent? Self serving? Whatever it is, it’s consistent with the dishonesty that’s plaguing the patent microcosm. Here’s Patent Docs going on about Berkheimer again. They barely talk about Oil States and would rather go back in time (months!) to Berkheimer:

The U.S. Patent and Trademark Office will be offering the next webinar in its Patent Quality Chat webinar series from 12:00 to 1:00 pm (ET) on May 8, 2018. The latest webinar, entitled “Subject Matter Eligibility: Revised Guidance in view of Berkheimer v. HP, Inc.” will be hosted by USPTO Deputy Commissioner for Patent Examination Policy Bob Bahr, will discuss the USPTO’s recently-issued memorandum implementing changes to examination procedure in view of the Federal Circuit’s decision in Berkheimer v. HP, Inc., which provides clarification on the subject matter eligibility analysis.

The reason Berkheimer gets brought up so often is that they want a software patents resurgence or a PTAB slowdown. Jonathan Cohen and Heenal Patel have in fact just given some bad advice on software patents, which are bunk (more or less worthless in courts). Here is what they wrote:

In general, software automation companies offer an attractive set of traits that include high recurring revenue bases, strong profit margins, high barriers to entry and robust cash flow generation, all of which can be protected by software patents.

What matters is that such patents cannot be properly enforced in courts. They’re rejecting these. Nevertheless, quite frankly as usual, it seems as though the USPTO has just granted more such patents; this new press release sounds like algorithms for decision-making processes:

CleanSpark, Inc. (OTC: CLSK), a microgrid company with advanced engineering, software and controls for innovative distributed energy resource management systems, today announced that it has received two new utility patents from the United States Patent and Trademark Office.

The first Patent, “Establishing Communication and Power Sharing Links Between Components of a Distributed Energy System, US 9,941, 696 B2″, awarded 4/10/2018, is a revolutionary patent that specifically addresses CleanSpark’s engineering and data-analytics technologies, processes and procedures. The patent covers CleanSpark’s ability to ‘receive data from a plurality of sources within a microgrid, which is then analyzed to forecast power needs across the microgrid, or a combination of multiple ‘fractal’ microgrids, and then determining whether or when to share power with the requesting module.’

In the following new press release it sounds like algorithms for software-defined storage:

Excelero, a disruptor in software-defined block storage, was assigned US patent #9,971,519 today – its second US patent – governing a technique of performing NVMe access directly from a chip. This intellectual property (IP) will be utilized in upcoming SmartNIC-based versions of its flagship NVMesh Server SAN and provides customers with more efficient ways to use distributed NVMe using the open standard NVMf. Excelero is also in talks with NIC manufacturers about licensing this technology, which will help accelerate not just NVMesh, but also NVMf from any vendor.

We don’t wish to delve into each new patent one at a time, but as the above couple of press releases may show, the USPTO can do just about anything it wants. But what’s a lot more important is what courts will be saying. After Oil States we expect PTAB too — not just courts — to be able to undo such grants.

In conclusion, Oil States remains largely ignored by law firms, which would rather speak about old decisions that better suit their financial agenda. They want to attract clients who may foolishly pursue patents that lack ‘teeth’ in courtrooms. It’s the applicants that suffer financially from these, whereas law firms just register more billable transactions.

Software Patents Are Not Allowed in Canada, But the Patent Microcosm is Trying to Change That

Posted in America, Law, Patents at 6:07 am by Dr. Roy Schestowitz

Federal government to announce ‘patent troll’ crackdown as part of national IP strategy

Summary: In response to new rhetoric if not action from the government of Canada the patent ‘industry’ (notably patent law firms) meddles in national media

WITH the exception of China, software patents are difficult to get and then successfully assert (e.g. in courts) around the world. The rules have become a lot tougher; the USPTO became stricter, the EPO went totally out of control, and SIPO (China) seems to be granting patents on just about anything (they need to create and maintain an illusion of being originators so as to resist trade war pressures).

“These articles — not too shockingly at all — came from patent maximalists, notably law firms.”What about Canada? Like Russia, Canada is a very large country, but most of it is too cold to be livable so the overall population size is ‘underwhelming’ and the same goes for the number of patents. These two countries aren’t so relevant to WIPO and they aren’t even in IP5 (a small country like South Korea actually is).

Over the past week we’ve seen some more articles about CIPO/Canada, shortly after the Canadian government bemoaned the impact of patent trolls. These articles — not too shockingly at all — came from patent maximalists, notably law firms. They make a lot of money from patent trolls.

Yesterday, for example, Bruce Berman at Watchtroll cited the US Trade Representative (USTR), which is a malicious and imperialistic front group. He kept dropping propaganda terms like “IP”, which the headline contained even twice (“New Canadian IP strategy includes money for IP tools and literacy”). Watch how he attempt to discredit TechDirt and Torrent Freak:

Earlier this year, the UK IP Office (UK IPO) introduced a copyright awareness program with a series of educational animations for students seven to eleven-years-old. “Nancy and the Meercats,” under the Cracking Ideas initiative, met with nasty opposition from the likes of Techdirt and Torrent Freak. They believe that helping children to understand IP right from wrong is little more than brainwashing, which is predictable given the bias in these publications. Techdirt and Torrent Freak often have an IP axe to grind and believe that content and code should be broadly shared, and that piracy is not theft. Concepts foreign to those who actually create.

We have seen similar smears directed at the EFF, typically from patent trolls and occasionally from Watchtroll.

“It always came from law firms.”Canadian media, much to our regret, carried similar propaganda. It always came from law firms. They do not represent Canadian companies. In this particular case it’s Gavin N. Manning, partner at Vancouver’s Oyen Wiggs Green & Mutala LLP. He seems to be giving very bad advice as software patents are bunk, or at least pretty much worthless in courts (both in Canada and the United States). Another new rant about Alice, this time under a headline with buzzwords like “Fintech”? To quote:

In the late 1990s and early 2000s, it was common for broad software patents to be granted. That changed after some notable U.S Supreme Court cases. One is known informally as “Alice.”

In 2007, the Australia-based Alice Corporation held U.S. patents for financial-trading systems in which a third party held funds in escrow to mitigate the risk of non-payment. CLS Bank launched its own similar service and Alice accused CLS of patent infringement. CLS sued, alleging that Alice’s patents were invalid.

In 2014 the U.S. Supreme Court sided with CLS, maintaining that a patent must deliver more than an abstract idea to be valid.

In Canada, “laws of nature, mere scientific theories or abstract algorithms,” including the use of a computer to perform otherwise un-patentable methods, are not patentable.

After Alice, the number of rejected software patent applications soared.

“With the Alice decision and various court decisions that followed, there was a severe effect of limiting the availability of patents, particularly in certain areas, like financial technology,” Manning says.

So stop pursuing it. Problem solved. Another Canadian, Osler Hoskin & Harcourt LLP’s Nathaniel Lipkus, published this nonsense with “IP” in the headline along with “innovators” (another buzzword). We first chose to ignore this, but he has just reposted it in another site, this time a site of patent maximalists (not the first time). It’s that same old nonsense that’s pushing for software patents by evoking “World IP Day” and “Trump”, along with names of Canadian trolls or troll feeders. Here’s what it says on software patents:

Winners in the last decade’s software boom have abided by the misconception that software cannot be patented. Rare is the Canadian business guru who espouses the importance of IP.

It’s not really a misconception and that has nothing to do with “IP” — whatever that even means (not patent law).

All in all, what we’re seeing here is a bunch of patent profiteers from Canada trying to interject software patents into the national agenda, seeing that their government has begun asking some tough questions about trolls.

05.04.18

From Saint-Germain-en-Laye to Strasbourg, Even the European Court of Human Rights (ECHR) Might Side With Nicolas Sárközy’s Thug at the EPO

Posted in Courtroom, Europe, Law, Patents at 5:38 pm by Dr. Roy Schestowitz

English [PDF] | French [PDF]

ECHR on EPO case

Summary: “The ECHR in practice denying staff of IO’s [International Organisation] fundamental rights,” SUEPO reports/recalls this week

A FEW days ago, on the very last day of April, the staff union of the EPO (also known as “SUEPO”) cited an old paper from Robin Silverstein. We’re guessing that it relates to the case against EPO management (‘mini’ Sárközy and his Vice-Presidents), to possibly be taken up by ECHR (we covered it several times last year). Yesterday SUEPO cited another old or undated document, this time the words of ECHR President Guido Raimondi, who is based in Strasbourg. We might soon cover another Battistelli scandal, this time in relation to Strasbourg itself. There’s also another Battistelli scandal in Saint-Germain-en-Laye (to be covered here next week).

All these French connections do matter and are certainty relevant to the EPO; there’s a reason why it took nearly a decade to hold Nicolas Sárközy accountable for pretty serious crimes. Sárközy is said to be the person who helped put Battistelli in charge of the EPO.

“We might soon cover another Battistelli scandal, this time in relation to Strasbourg itself. There’s also another Battistelli scandal in Saint-Germain-en-Laye (to be covered here next week).”Will ECHR hear and deal with EPO abuses? The “[p]osition of ECHR President Guido Raimondi on the case law of the European Court of Human Rights on international Civil Service law,” says SUEPO, includes phrases like the above, including: “In a neighbouring register, the Klausecker case did not lead to a much happier solution for the applicant. In this case, he had been disabled since the age of 18 as a result of an accident that caused him to lose one eye, one hand and part of the fingers of the other hand. Having graduated with a degree in mechanical engineering, he worked as a research assistant at a university. After applying to work at the European Patent Office in Munich and passing the examinations to become a patent examiner there, he was not admitted to the post in 2005 on the grounds that he was not physically fit. He lodged an appeal against this decision with the European Patent Office and then with the Administrative Tribunal of the International Labour Organisation, which were rejected in 2005 and 2007 respectively in so far as candidates for a post are not entitled to lodge appeals of this type. Since the European Patent Organisation (EPO, of which the European Patent Office is a member) enjoys immunity from jurisdiction before the German civil and labour courts, the person concerned brought the case directly before the Constitutional Court, which, in 2006, ruled that his appeal was inadmissible and declared that it lacked jurisdiction to judge it. Subsequently, the European Patent Office proposed to the applicant to have the dispute decided by an arbitral tribunal, an option it refused in 2008 on the ground that this procedure would infringe essential procedural guarantees, in particular the right to a public hearing within a reasonable time. The applicant then brought the case before the Strasbourg Court on the basis of Article 6(1) of the ECHR.

“As regards the lack of access to German courts, the Court finds, first of all, that granting the EPO immunity from jurisdiction before the German courts was intended to ensure the proper functioning of that international organisation and thus pursued a “legitimate aim”. In determining whether limiting the applicant’s access to German courts was proportionate to that objective, the Court considers it decisive to determine “whether there was any other reasonable means of effectively protecting his rights under the Convention”. However, it considers that the applicant did have another means at his disposal, since he had been offered participation in arbitration proceedings. The Court notes in particular that, under the arbitration contract proposed by the EPO, the arbitrators would have decided the dispute on the basis of the rules which the ILO Administrative Tribunal would have applied had it been competent. In its view, the mere non-public nature of the hearing before the arbitral tribunal – where the parties could be represented by counsel – did not make the arbitration procedure a “poor substitute for proceedings before a national court”.

“Since the applicant had another reasonable way to protect his rights under the ECHR, the limitation of his access to the German courts was proportionate; this first part of the application is therefore rejected for manifest lack of foundation.

“All these French connections do matter and are certainty relevant to the EPO; there’s a reason why it took nearly a decade to hold Nicolas Sárközy accountable for pretty serious crimes.”“Turning then to the complaint concerning a lack of access to the procedures of the European Patent Office and the ILO Administrative Court and the shortcomings of those procedures, the Court notes that, in the light of its traditional case-law, Germany could be held liable in the present case only if the protection of fundamental rights offered by the EPO to the applicant had been “manifestlydeficient”. However, by offering Mr. Klausecker to participate in an arbitration procedure, the EPO had provided him with another reasonable means of having his complaint examined on the merits. Consequently, the Strasbourg Court considers that the protection of fundamental rights within the EPO has not “manifestly failed” in this case and therefore also declares inadmissible the second part of the application.”

There’s a lot more in there (10 pages in the translation of the original). Assuming SUEPO’s site is resilient (with Battistelli leaving the Office in less than 2 months), we haven’t chosen to make local copies. Battistelli is soon going to Strasbourg, which is where his next employer is based, not just ECHR. Incidentally, Strasbourg is also where Battistelli’s ‘bulldog’ (Željko Topić) faces legal ordeals. The case was filed in Strasbourg because Croatia’s courts are notoriously unresponsive and the system served to cover up Topić’s abuses (because they go all the way to the top, i.e. the national government). Can a ‘French’ court in Strasbourg be expected to deliver justice in a case which implicates so many powerful people in France, perhaps also a former President, a Parisian Mayor and so on?

05.02.18

How the Patent Microcosm and Patent Extremists Cover Oil States More Than a Week Later

Posted in America, Courtroom, Law, Patents at 3:45 am by Dr. Roy Schestowitz

Patent extremists still attack jurists, decisions and courts; the patent microcosm pretends not to know about it or attempts to distract from Oil States (e.g. by covering only the other decision)

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

Summary: With the Supreme Court approving the actions of the Patent Trial and Appeal Board, i.e. lending even more legitimacy to Inter Partes Reviews (IPRs), responses are expected to be either silence, personal attacks, or distraction tactics

JUST over a week ago the Supreme Court delivered two decisions that would impact the USPTO forever (or at least the foreseeable future). Both decisions were about PTAB, the Patent Trial and Appeal Board. The main decision dealt with the big question about IPRs (whether these were Constitutional).

“The main decision dealt with the big question about IPRs (whether these were Constitutional).”Not to our surprise, patent extremists still attack this decision. First they attempted to distract from it, now they’re back to judge-bashing.

Finnegan, a very large law firm (Finnegan, Henderson, Farabow, Garrett & Dunner, LLP is its full name), does not appear to have said much about these decisions (neither of these). Doris Johnson Hines just went along hyping up Aatrix Software v Green Shades (yet again!) and her colleagues Daniel F. Klodowski, David C. Seastrunk and Michael R Galgano have just spoken about PTAB and IPRs without even bringing up the elephant in the room. Strange. From their outline:

The Patent Trial and Appeal Board issued 67 IPR and CBM Final Written Decisions in March, including decisions following remands from the Federal Circuit, cancelling 760 (83.33%) instituted claims while declining to cancel 121 (13.27%) instituted claims. Patent owners conceded 31 claims (3.40%) through motions to amend or disclaimer in cases reaching a final decision. For comparison, the cumulative average rate of instituted claims cancelled in IPR and CBM Final Written Decisions is about 75%.

These statistics are generally valuable. We cited previous months’ statistics to show the might of PTAB.

One can criticise Finnegan for its lobbying, but at least we’ve never seen Finnegan attacking judges or court decisions. That’s just the ‘domain’ of Watchtroll, a site that attracts and radicalises patent extremists. Yesterday it wrote about a PTAB IPR with appeal to the Federal Circuit (Apator Miitors ApS v Kamstrup A/S). It was about legitimacy of evidence:

Appellee Kamstrup A/S (“Kamstrup”) filed an IPR, and the Board instituted review of the challenged patent. Apator attempted to swear behind a cited prior art reference and submitted an inventor declaration and three emails with attachments to support the earlier conception date. The Board noted that there were no indicia in the body or header of the emails indicating what files were attached or what the attachments disclosed. The Board also noted that the only evidence that a file was attached to these emails was the inventor declaration. Accordingly, the Board rejected Apator’s attempt to swear behind the reference.

On appeal, the Federal Circuit considered whether there was substantial evidence to support the Board’s finding that Apator failed to sufficiently corroborate the inventor’s testimony of conception prior to the effective filing date of the prior art reference.

[...]

Unwitnessed emails and drawings, alone, cannot corroborate an inventor’s testimony of conception.

This in its own right wasn’t entirely bad (it was an external writer), but later in the day Watchtroll was once again attacking judges and Justices because they’re not patent extremists. This time, yet again, it was over Oil States. Why does IBM even associate with these judge-bashing extremists? And just 3 hours apart, i.e. a few hours later, they once again bashed the decision using their own fictional propaganda term, “intellectual property.”

We can’t quite say we’re surprised. This is typical Watchtroll.

Compare that to what law firms are saying (those that chose to comment on Oil States). Clifton E. McCann and Kent A. Fagan (Thompson Hine LLP) are only partly wrong. Certainty wasn’t their issue with PTAB; they just wanted PTAB eliminated for a flood of lawsuits and low-quality patents (which PTAB helps thwart). To quote their article:

In light of these decisions, a PTAB challenge may now be a more useful and cost-effective option for companies that are (a) paying a royalty for use of a questionable patent or (b) being prevented from offering a new product or service by a competitor’s questionable patent.

[...]

A company can expect to receive a final PTAB decision on validity within 18 months of filing the IPR petition. However, as discussed above, patent owners often agree to forfeit or narrow their patents early on during the proceeding.

The headline and premise are both a little odd. They speak of the cases as if duration was the main issue; it wasn’t. The headline says “Supreme Court Decisions Bring Needed Certainty to PTAB Challenge Process” and it looks like the same “certainty” lie they generally use against Alice/Section 101 (alleging that they lack “clarity” or “certainty” rather than simply hate Alice).

The patent microcosm, commenting on this exactly one week after the decisions (i.e. yesterday), is still trying to control the narrative. Here is what Skadden, Arps, Slate, Meagher & Flom LLP published yesterday (“Supreme Court Rulings Signal Significant Changes to Post-Issuance Patent Reviews”). Richard P. Gilly and Gregory J. Winsky (Archer & Greiner P.C.) chose not to comment at all (on Oil States) and instead deflect to the far less important decision — a pattern which we commented on last week.

Jonathan B. Tropp and Woo Sin Sean Park (Day Pitney LLP) wrote a reasonably OK article which does not distract from the main outcome and impact of Oil States. Here is what they said:

In Oil States Energy Servs., LLC v. Greene’s Energy Grp., 584 U.S. ____ (2018), the Supreme Court upheld the constitutionality of the inter partes review (IPR) process before the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office (PTO). Since the enactment of the Leahy-Smith America Invents Act (AIA) in 2011, the PTAB and its administrative law judges have determined the validity of claims in thousands of patents in trial-like proceedings. After its patent was invalidated in an IPR proceeding, one patent owner, appellant Oil States, challenged the statute’s delegation of adjudicative authority to the PTO and argued that patents, as properties, could only be revoked by Article III courts. Writing for the 7-2 majority, Justice Thomas held that a patent is the grant of a public right, and IPR “is simply a reconsideration of that grant.” Oil States, slip op. at 7. Thus, patent validity can be determined by an agency rather than a court.

[...]

What Oil States Means to You

The Oil States decision was narrowly decided, leaving open the possibility of future challenges to the IPR process; for now, however, it preserves the status quo, in which IPR and other AIA proceedings remain popular vehicles for defendants of patent infringement suits to challenge patents expediently. Notwithstanding Justice Gorsuch’s lament in dissent, echoing the late Justice Scalia, that “no doubt, dispensing with constitutionally prescribed procedures is often expedient,” id. at 2, the PTAB is expected to remain a primary venue for challenging patent validity, with relatively quick turnaround and experienced administrative judges.

We’ll carry on tracking responses to this ruling; it’s one thing that the decision came out and another thing how it’s broadly interpreted because that shapes consensus. They’d rather talk endlessly about Aatrix and 'pull a Berkheimer'.

Not Enough Opposition/s to Wrongly-Granted European Patents

Posted in Europe, Law, Patents at 1:59 am by Dr. Roy Schestowitz

Examiners know there's a problem as justice cannot prevail

EPO quality letter

Summary: The relative lack of oppositions to patents which are being granted in a rush (and under pressure to met “targets”) may mean that any sense of justice will be overlooked, not only inside the EPO but also outside the EPO

THE EPO is creating a legal minefield. European Patents (EPs) are granted too leniently — a result of decline in patent quality — basically emulating the same mistakes the USPTO made in recent decades (until patent reform). This means that access to justice in the patent sense will become as poor as EPO staff’s access to justice. It means that mobs like patent trolls can harass European companies even if they do not infringe/touch a patent or the patent in question is just questionable (expensive to prove that in court though).

Yesterday an EPO insider wrote about the concept of “Floating in a legal vacuum,” quoting documents that SUEPO had shared: “How can it be that while states are individually obliged to respect fundamental human rights, they can jointly create international institutions that are entitled to ignore them?”

“Are appeals and oppositions even possible when people like Battistelli can harass Board judges (appeals)? Or retaliate against Office staff (oppositions)?”SUEPO published two large documents recently; these pertain to exemptions from law for EPO management, but what about patents that get issued and those impacted by such patents? Are appeals and oppositions even possible when people like Battistelli can harass Board judges (appeals)? Or retaliate against Office staff (oppositions)?

Not too long ago there was a successful opposition to a patent on life. Yes, the EPO had been granting patents on life itself, but in one case (at least one) EPO staff rejected the patent. It was about CRISPR. Professor Jake Sherkow of New York Law School has just written about a CRISPR patent appeal in the US. He said that this “demonstrates that patents covering even revolutionary technology can be legally mundane and still have significant real-world impact,” having not actually opposed this practice.

But another post on the subject of appeals came from the US yesterday. It was the CCIA writing about the EPO, which is rare. “Approximately 4% of European patents are opposed, and of those, approximately 32% of oppositions are not instituted,” Josh Landau wrote yesterday. To quote the relevant paragraphs:

EPO Oppositions and Nullity Proceedings

In Europe, rather than inter partes review and district court litigation on validity, there are opposition proceedings at the European Patent Office (EPO) and nullity proceedings in European national courts.

Oppositions

Oppositions are the most similar European procedure to U.S. post-grant proceedings like IPR. So it’s instructive to examine how many European patents are opposed and the outcomes of those oppositions.

Fortunately, the EPO makes available detailed statistics on exactly these questions. Approximately 4% of European patents are opposed, and of those, approximately 32% of oppositions are not instituted. 27% of oppositions result in a final decision invalidating all claims of the patent, while the remaining 40% of patents are modified in some form and maintained as patents. (EPO opposition statistics appear to omit patents where the parties settled mid-proceeding.) Each year, the EPO handles approximately 4,000 oppositions, meaning that approximately 1,100 European patents are invalidated in their entirety on a yearly basis.

This means that about 96% of patents face no opposition; with Battistelli almost doubling the number of granted patents, how would that even be feasible? Even for companies to keep abreast of all those granted patents while still being productive at work…

What we see here is collective erosion of the notion of law or justice in the patent system. Yesterday we called it the "banana republic model"; it’s a system gone awry. A lazy man with barely any experience in patents or sciences has been put in charge of a patent-printing machine.

05.01.18

The Software Patenting Hopefuls Still Hope to Convince Patent Examiners (or the USPTO’s Leadership) to Keep Granting Software Patents Which US Courts Repeatedly Reject

Posted in America, Law, Patents at 8:12 am by Dr. Roy Schestowitz

Any bogus (or ‘toxic’) patent which gets granted because of short-term profit motives can cause millions if not billions in damages (to potentially innocent parties), so think carefully before a grant…

Toxic

Summary: Serving patent trolls for the most part (nefarious actors that dodge the courts by going after defenseless individuals and/or companies), the US patent office still hands out software patents and law firms — in addition to their front groups like IPO, IPLAC and AIPLA — try to urge the US Patent and Trademark Office Director Andrei Iancu to water down § 101

AT risk of repeating ourselves many dozens of times, whereas the USPTO continues to grant software patents, US courts do not tolerate these. It renders many granted software patents obsolete if not worthless. Patent trolls can still utilise these, provided that the party which they extort is poor and unlikely to take matters to courts. They can do this over and over again. They typically lose their patent/s when they pick on a party a little ‘too’ large — one that disputes the legitimacy of the patent/s and gets PTAB/courts to invalidate it/these.

“Will Iancu be a ‘drone’ for these patent maximalists, being a patent maximalist himself (he came from a law firm)? It’s a real danger.”What does this tell us? The courts declining to affirm software patents isn’t enough. US patent examiners should do the same. No software patents should be granted at all in the first place.

Section 101/Alice brought us a step close to that. It’s not too surprising that patent trolls and their lawyers seem to be moaning the most. Actual technology firms seem to be happy with patent reforms and as HTIA (front group for technology firms) has just put it (quoting the EFF): “Alice has threatened the trolling business model so much that it keeps facing threats, in both courts and Congress.”

Section 101/PTAB rants come mostly from lawyers who are close to patent trolls, such as Mr. Gross, who said: “PTAB at it again, conflates roles of claims and specification in rejecting #patent claims under 101: “claims recite abstract conceptual advice as to results to be achieved devoid of TECHNOLOGICAL IMPLEMENTATION DETAILS” https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016005871-04-23-2018-1 … details are in SPEC, not CLAIMS” (shouting is normal for him).

There are rants like these every day from him. He’s connected to the Texas-based patent troll Dominion Harbor, whose site he uses to attack the EFF.

Anyway, an EFF-connected news site (reposting articles about patents for the EFF) has just published this timely article titled “USPTO Suggests That AI Algorithms Are Patentable, Leading To A Whole Host Of IP And Ethics Questions” (we wrote about it last month).

Iancu et al are just lawyers, so they don’t quite understand that “AI” is basically just a very old (but recently-revived) buzzword that refers to mere algorithms that achieve ‘cleverness’. To quote TechDirt:

The world is slowly but surely marching towards newer and better forms of artificial intelligence, with some of the world’s most prominent technology companies and governments heavily investing in it. While limited or specialist AI is the current focus of many of these companies, building what is essentially single-trick intelligent systems to address limited problems and tasks, the real prize at the end of this rainbow is an artificial general intelligence. When an AGI could be achieved is still squarely up in the air, but many believe this to be a question of when, not if, such an intelligence is created. Surrounding that are questions of ethics that largely center on whether an AGI would be truly sentient and conscious, and what that would imply about our obligations to such a mechanical being.

[...]

Again, this seems to be a misunderstanding of what an algorithm is. The organization and ordering of a series of math equations is not human invention. It is most certainly human ingenuity, but so was the understanding of the Bernouli Principle, which didn’t likewise result in a patent on the math that makes airplanes fly. Allowing companies and researchers to lock up the mathematical concepts for artificial intelligence, whatever the expected incentivizing benefits, is pretty clearly beyond the original purpose and scope of patent law.

But let’s say the USPTO and other governments ignore that argument. Keep in mind that algorithms that govern the behavior of AI are mirrors of the intelligent processes occurring in human brains. They are that which will make up the “I” for an AI, essentially making it what it is. Once we reach the level of AGI, its reasonable to consider those algorithms to be the equivalent of the brain function and, by some arguments, consciousness of a mechanical or digital being. Were the USPTO to have its way, that consciousness would be patentable. For those that believe we might one day be the creators of some form of digital life or consciousness, that entire concept is absurd, or at least terribly unethical.

It’s nice to see these rebuttals regarding patents on algorithms even in sites like TechDirt (they rarely speak explicitly about software patents). It certainly seems like the patent microcosm still fights hard for a resurgence of such patents. Yesterday for example, Smith Amundsen LLC published something titled “Software Patent Clarity Not (Yet) Found” (the key word here is “Clarity” if not “Yet”).

This is a classic lie from the patent microcosm — a classic lie that accompanies loaded statements and questions. There’s no lack of clarity over software patents — they’re just refusing to accept the facts because that means money. They also use the word “yet” as if to suggest that it’s inevitable that Section 101 will be watered down and they’ll be back to patenting algorithms at ease. From the article:

Last week, the Senate Judiciary Committee held an oversight hearing on the U.S. Patent and Trademark Office (USPTO). Newly-appointed Director Andrei Iancu provided refreshing dialogue for inventors—especially those in the software industry—indicating that much needed support for software patents is high on his agenda. But where do we stand today?

Software can be patented and is patented fairly frequently. But, software provides a unique challenge to patent applicants in most instances; below is a quick tutorial (or refresher) on what you can expect from the software patent examination process.

[...]

Software architects and developers appreciate the complexity and novelty of their work, but the USPTO isn’t always as understanding.

Notice that last sentence. It’s another classic lie from the patent microcosm (courtesy of Smith Amundsen LLC in this case). They are trying to sell the illusion that software developers want software parents. It’s a lie. It’s a terrible lie and surely they know it.

Another example from yesterday came through Patent Docs. It’s basically patent lawyers and trolls’ front groups trying to bring back software patents under the guise of ‘fixing’ the law. Here’s what they said:

In a letter sent to U.S. Patent and Trademark Office Director Andrei Iancu earlier this month, the Intellectual Property Law Association of Chicago (IPLAC) presented its proposal for a revised version of 35 U.S.C. § 100. IPLAC described its proposal as a harmonized version of revisions to § 101 proposed by the Intellectual Property Owners Association (IPO) and American Intellectual Property Law Association (AIPLA), which IPLAC indicated “represent the most straightforward and comprehensive revisions to Section 101.” In crafting a harmonized version of § 101, IPLAC sought “to combine the recommendations from IPO and AIPLA into a single proposal furthers the current dialog regarding possible Section 101 revisions that can address the ambiguity and uncertainty recent Supreme Court precedent has created.”

Will Iancu be a ‘drone’ for these patent maximalists, being a patent maximalist himself (he came from a law firm)? It’s a real danger.

In the meantime, based on another article from yesterday, MasterCard continues to pursue bogus software patents that should not at all be granted because they’re nonsensical, abstract, mere ideas etc. The patent maximalists love the “blockchain” buzz and so do companies like MasterCard, which is part of a trend of patenting financial things under the guise of “blockchain” ([cref 108126 MasterCard is also on the receiving end of nuisance patent lawsuits). Here is what the article said:

MasterCard has filed a patent for a system to speed up the activation of new nodes in a blockchain, in an application published by the U.S. Patent and Trademark Office (USPTO) April 26.

The application, which was first filed on October 24, 2016, outlines that the current difficulty facing new nodes – a computer connected to the blockchain network that stores a copy of the blockchain – is that they are required to individually verify a massive amount of data in order to activate. The patent states that new nodes must verify “thousands, millions, or even billions of transaction records […] in a vast number of different blocks” that may have accumulated over time in a given blockchain, generating a significant delay before each new node can begin to participate in the network.

[...]

Overall, the company appears to be vigorously pro-blockchain, yet anti-Bitcoin: in Oct. 2017, the company’s CEO scorned non-government issued cryptocurrencies as “junk.” This March, a senior MasterCard executive reiterated that the company is receptive to central bank-issued digital currencies only.

How could such patents be granted by the USPTO? How could examiners not see that these are software patents and thus ineligible under Section 101? Either way, with or without Iancu, we need to ensure that US patent examiners (aided by PTAB these days) refuse to grant such patents. Put in the wrong hands (as many “blockchain” patents already have been [1, 2]), they would cause financial devastation.

04.30.18

The Federal Circuit Bar Association (FCBA) Sets Up Stuffed/Stacked Panels About Oil States and SAS Institute

Posted in Courtroom, Deception, Law, Patents at 2:04 am by Dr. Roy Schestowitz

The Federal Circuit Bar Association (FCBA)

Summary: The Federal Circuit Bar Association panels exclude actual inventors; in other words, views on patents are only permitted if one works for the patent ‘industry’ (patenting, litigation and so on), not those who are supposedly being ‘protected’

THE Court of Appeals for the Federal Circuit (CAFC) became pretty good in recent years (after Randall Rader had left to become some sort of a lobbyist because he got caught in serious misconduct). We generally support CAFC because nowadays it hands down decisions largely in compliance with the SCOTUS. The USPTO bases its guidelines on SCOTUS and CAFC, so this is important. It’s the law-setting process. It defines patent scope and practices.

So imagine our disappointment when a couple of hours ago Patent Docs advertised the Federal Circuit Bar Association’s (FCBA) stacked panel about Oil States and SAS Institute, two decisions that are only 6 days old (we already wrote 6 articles about them, some of which were rather long). Here they are again, in order of publication:

Watch this outline about the panel (in their own words):

he Federal Circuit Bar Association (FCBA) will be offering a webcast entitled “The Supreme Court Decided Oil States & SAS Institute: Now What?” on May 2, 2018 from 3:00 pm to 4:00 pm (EST). Emily Johnson of Amgen, Inc. will moderate a panel consisting of Allyson Ho of Morgan Lewis & Bockius LLP, Christopher Suarez of Williams & Connolly LLP, Gregory Castanias of Jones Day, and Russell Cass of Clark Hill PLC. The panel will discuss the Supreme Court’s decisions in Oil States and SAS Institute, including their holdings and the issues left for another day, potential implications for patent owners and petitioners involved in IPR proceedings, anticipated changes to PTAB adjudication of IPR challenges, likely impact on district court litigations and appeals to the Federal Circuit, the next expected constitutional challenges to IPR proceedings, and potential consequences of labeling patent grants as “public rights” and “public franchises.”

So it’s basically just a bunch of law firms; yes, scientists and technologists are shut out, as usual. Emily Johnson comes from Amgen, whose patent aggression we covered here before (e.g. [1, 2]). The panel itself is composed of just 4 law firms. Nothing else!

The Federal Circuit Bar Association also has this ‘webcast’ coming. Patent Docs has just advertised it as follows, noting that Matal will be there (Matal came to be the temporary/interim Director of the USPTO after Lee had been bullied out). To quote:

…panel consisting of Joe Matal of the U.S. Patent & Trademark Office…

So this one, for a change, won’t be completely dominated by just a bunch of law firms. It’s about Helsinn v Teva. The question remains, however, how can the Federal Circuit Bar Association be taken seriously when its panels exclude actual inventors? Who is the system for?

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