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02.01.17

The Netherlands With Its Bizarre Decision to Let the EPO Violate Dutch Law, Now in English

Posted in Courtroom, Europe, Law, Patents at 7:43 am by Dr. Roy Schestowitz

Holland fights to market itself as safe haven for unaccountable (and often abusive) organisations

Dutch decision on EPO

Summary: A recent decision on the EPO (from a high Dutch court) is now available for reading in English

OUR previous coverage on this subject, namely EPO management getting away with anything on Dutch territory, pretty much said everything that needed to be said. Here are 5 articles about it (there are more):

Yesterday afternoon we found this update in SUEPO’s Web site. It said the following:

Judgment of the Dutch Court of Cassation issued on 20 January 2017

JUDGMENT OF THE DUTCH COURT OF CASSATION IN SUEPO v EPO ISSUED ON 20 JANUARY 2017
Dutch courts have no jurisdiction in European Patent Organisation dispute
The European Patent Organisation can invoke jurisdiction immunity in a dispute with trade unions. That is the ruling issued by the Supreme Court 5 today, and means the Dutch courts have no jurisdiction to examine disputes brought before them between the European Patent Organisation (EPOrg) and two trade unions: the Trade Union of the European Patent Office (VEOB) and the Staff Union of the European Patent Office (SUEPO). Previous rulings by the court in preliminary relief proceedings and the Court of Appeal in The Hague 10 have been set aside by the Supreme Court.

Original judgment text is in Dutch. English translation is available.

We have local [PDF] copies of both [PDF] English translations. We have uploaded these PDFs for long-term preservation (as SUEPO is under attack and sometimes pressured to censor itself).

01.26.17

US Supreme Court Poised to Limit Patent Scope Even Further and Hamper Trolls-Friendly Courts

Posted in America, Courtroom, Law, Patents at 8:46 am by Dr. Roy Schestowitz

Progress being made… (and the infamous patent on the progress bar would be a thing of the past)

Progress bar

Summary: The steps taken by US Justices, who view patents from a compassionate point of view rather than a maximalist perspective, undo decades of a patent gold rush

THE USPTO became “Great Again” under the latter Obama years (maybe the past three years). “Key Patent Law Decisions Of 2016″, a new article from the patent lawyers’ platform, recalls that “[t]he U.S. Supreme Court and the U.S. Court of Appeals for the Federal Circuit wrestled with a number of important issues of patent law in 2016, including in three Supreme Court opinions (with more on the way) and three en banc Federal Circuit opinions. The issues in these cases were diverse and wide-ranging, including administrative review of patents in the U.S. Patent and Trademark Office (“PTO”) and the International Trade Commission (“ITC”), recognition of a new patent agent privilege, and the Supreme Court’s first design patent decision in more than a century.”

“The patent microcosm is still moaning about decisions that are years behind; it wants a resurgence of patent maximalism, i.e. the misguided belief that the more patents we have, the better off the economy will be (not just their own bottom line).”We have covered most of these and pointed out that SCOTUS limited patent scope in 2016, just as it had done in 2015 and 2014 (Alice, Mayo and so on). This is fantastic news to patent reformers and we hope that reformist policies will persist under Trump. Posted behind paywall yesterday was the article “The Supreme Court’s Impact on Patentable Subject Matter”. The patent microcosm is still moaning about decisions that are years behind; it wants a resurgence of patent maximalism, i.e. the misguided belief that the more patents we have, the better off the economy will be (not just their own bottom line).

The EFF, which has been habitually attacked by the patent microcosm (Watchtroll called it “a leftist anti-patent activist coalition” [1, 2]), has just released a statement titled “EFF To Patent Office: Supreme Court Limits On Abstract Patents Are a Good Thing”; it’s a powerful statement which cites Alice — a decision which is now killing software patents. To quote:

“EFF has submitted comments to the Patent Office urging it not to support efforts to undermine the Supreme Court’s recent decision in Alice v. CLS Bank. The Patent Office had called for public submissions regarding whether “legislative changes are desirable” in response to recent court decisions, including Alice. We explain that, far from harming the software industry, Alice has helped it thrive.

“Every software engineer, system administrator etc. that I speak to absolutely loves Alice. It was belated (by decades) justice to the software profession and it gives many software companies peace of mind.”“When the Supreme Court issued its ruling in Alice, it was a shock to a patent system that had been churning out software patents by the tens of thousands every year. Back in the 1990s, the Federal Circuit had opened the software patent floodgate with its ruling in State Street and In re Alappat. That decision held that any general purpose computer could be eligible for a patent so long as it is programmed to perform a particular function. In Alice, the Supreme Court substantially moderated that holding by ruling that a generic computer is not eligible for a patent simply because it is programed to implement an abstract idea.

“Courts have applied Alice to throw out many of the worst software patents. Alice is particularly valuable because, in some cases, courts have applied it early in litigation thereby preventing patent trolls from using the high expense of litigation to pressure defendants into settlements. While we think that the Federal Circuit could do more to diligently apply Alice, it has at least been a step forward.”

Every software engineer, system administrator etc. that I speak to absolutely loves Alice. It was belated (by decades) justice to the software profession and it gives many software companies peace of mind. I personally know some people whose employer/customers got attacked by patent trolls and suffered severely as a result. These patent trolls, as usual, relied on software patents.

Speaking of patent trolls, are they about to lose it all? SCOTUS intends to look into their breeding ground, as Above the Law noted this week, under the title “Leaving The Heartland?”

To quote:

By accepting the case, the Supreme Court has already indicated it is willing to consider the question of whether the Federal Circuit has taken too expansive a view of venue in patent cases. If the Supreme Court decides that restrictive language in the patent venue statute controls, then patent cases will be permitted only in districts where either the defendant is incorporated or has a physical place of business. Since relatively few regular patent defendants meet either criteria in the EDTX, the thought is that the EDTX’s patent litigation well will quickly dry up. Which may be a boon to technology companies located on either coast, many of which would not miss the EDTX one iota. At the same time, the robust infrastructure that has arisen to support patent litigation in the EDTX would be adversely affected, likely to the economic detriment of the region.

Trump will likely nominate if not appoint a Scalia replacement. If all the rest of the Justices keep their seats, then we expect (as do others, including scholars) the Supreme Court to deal a mortal blow to patent trolls

Promising times ahead.

01.23.17

Media Blasts EPO Over Immunity Amid Suicides, Battistelli’s Behaviour Compared to Dominique Strauss-Kahn’s

Posted in Europe, Law, Patents at 6:35 pm by Dr. Roy Schestowitz

When immunity (placing predatory people like Battistelli above the law) costs people their lives…

Dutch people are unhappy to have become the unwitting hosts of infamous rights violators like Battistelli

‘The only thing necessary for the triumph [of evil] is for good men to do nothing.’

Edmund Burke

Summary: Backlash in the Netherlands is growing again, primarily as a result of media reports about the EPO’s abuses against basic rights and the government’s reluctance to put an end to these abuses

THE EPO has modified the headline of its conceited remark on last week’s ruling in the Netherlands (a remark which we remarked on during the weekend). It was modified this morning to remove the word “today’s” and the PR staff was eager to spread the word as if the Office is ever so proud to violate human rights while the Dutch government, which famously welcomes euthanasia, now accepts suicides without any investigation/probe. What does that say about the country? A lot of Dutch people are rightly concerned about the effect this may have (or already had) on their country. We wrote more about that in our prior two articles (since the ruling).

Haar is already becoming a Gulag/Siberia analogy, rendering Battistelli a modern-age Stalin. Someone has already asked: “Any update on the Boards of Appeal being sent to Siberia by Trump of the EPO, PB? I didnt realise Haar was a place in Siberia.”

“Haar is already becoming a Gulag/Siberia analogy, rendering Battistelli a modern-age Stalin.”“Trump of the EPO” seems to be another new nickname for Battistelli.

Quite a few people have noticed the deafening silence from Merpel and others at IP Kat, which has been relatively if not completely silent (except two posts in the past half a year) after the site was censored by the EPO.

“The Supreme Court of the Netherlands delivers its long-awaited judgement on the EPO’s immunity,” one person noted, “and not a peep out of IPKat. How disappointing…”

“The Kat appears to have overlooked this interesting blog posting,” points out this other comment, linking to this Dutch (but English language) coverage that says:

Dutch Supreme Court upholds immunity EPO in conflict with trade unions

The European Patent Office can invoke its immunity from jurisdiction of Dutch courts in its conflict with the EPO trade unions SUEPO and VEOB. The highest court in The Netherlands, the Hoge Raad, has ruled so today. The Supreme Court set aside a decision of the so-called Gerechtshof, which had ruled to the contrary in 2015.

The SUEPO and the VEOB started legal proceedings against the EPO in the Netherlands (where one of its main premises is based), more than three years ago. They argued that that the EPO violated the European Convention on Human Rights (ECHR) by limiting the workers’ right to strike, by blocking mails from the trade unions and by refusing to recognize these. The EPO invoked its immunity from jurisdiction.

[...]

It is not likely at all that the decision will lessen the tensions between the trade unions and the EPO president however. Last year Battistelli, widely criticized for his dictatorial behaviour, fired several SUEPO union members, though he has always maintained their activism had nothing to do with it. Moreover, last June Battistelli pushed through a controversial reform of the Boards of Appeal, and he tried to intervene in judicial proceedings concerning the removal from office of a BoA-member. Increased pressure from (parts of) the EPO’s Administrative Council, which is supposed to supervise Battistelli, nor external reports on the social situation at the EPO have led to improvements. After its most recent meeting in December 2016, the Administrative Council reported: ‘Underlining the need to improve the social dialogue, the Council mandated its Chair to work together with the Board 28 and the Office on concrete proposals in the first half of 2017.’

‘King’ Battistelli possibly gets more power in the mean time, as this new comment says: “The latest rumor about Minnoye is that he will not be replaced after he leaves. There will just be a vice-president “at interim”, meaning somebody who is chosen by BB and reports directly to him. There are quite a few of these “at interim” positions for managers lately.”

“There were recently yet more suicides, but the EPO did not even mention these.”Minnoye is the one responsible for saying that even if the Dutch court ruled against the EPO, the EPO would simply ignore/disregard the ruling. How long before the Dutch authorities realise that they shoot themselves in the foot by implicitly stating that institutions on their territories can violate human rights, including courts which supposedly guard human rights (like ICC)? Dutch attorneys and their clients are already very concerned about the EPO.

Battistelli, according to this new comment, is in certain ways similar to Dominique Strauss-Kahn, in the immunity and bad behaviour sense, not just the nationality. Let that sink in for a moment. The commenter wonders why the EPO is “allowed to violate human rights, to harass individuals, to push their victims to suicide.”

There were recently yet more suicides, but the EPO did not even mention these.

Here is the full comment, posted by “Tulips from Amsterdam”:

The judgement of the Supreme court of the Netherlands is obviously a good news.
After the Dominique Strauss-Kahn case, French diplomats feared that it would be impossible to violate human rights abroad anymore.
Hope comes back.
Obviously they have to avoid the USA but the Netherlands is the new dreamland.
The Supreme court of the Netherlands gives full immunity/impunity.
Psychopaths with diplomatic status are allowed to violate human rights, to harass individuals, to push their victims to suicide.
Dutch police covers his ears. The Dutch government covers his eyes. The Dutch Supreme court covers his mouth. (don’t hear, don’t see and don’t speak)
The victims suicide. The psychopath is laughing.
Welcome to the Netherlands.

We invite our Dutch readers to get in contact/touch with their elected officials (politicians) and petition them for change in behaviour. This mirrors or echoes what we see with Maas in Germany, where there is new coverage about the latest developments. Heise Online’s Stefan Kremp wrote about it this afternoon (accurate translation is needed).

Things are starting to boil over at the EPO. It didn’t take long and it won’t be the end of it. No problems have been resolved at all, so under the surface it’s only getting worse.

01.21.17

EPO Abuses Now Make the Netherlands Look Like a Facilitator of Human/Labour Rights Abuses

Posted in Europe, Law, Patents at 2:24 pm by Dr. Roy Schestowitz

Not what Dutch people would wish to be associated with or known for…

Slobodan Milošević
Reference: Milošević and the ICC

Summary: Rather than crack down on human rights abuses, the Dutch government now sends out the signal that it’s an island for those wish to violate human rights whilst enjoying immunity (EPO)

UPLOADED by SUEPO early in the day yesterday was this presentation of Prof. Zegveld [PDF], who represents SUEPO and others who are witch-hunted at the EPO. They uploaded this having probably seen press coverage, some of it in English, some of translated into English (from Dutch), and most if it just in Dutch [1, 2, 3] (it’s everywhere in the press and even television in the Netherlands).

Dutch News, a high-profile English-speaking site in the Netherlands, wrote:

The Dutch Supreme Court has ruled that the Dutch courts cannot intervene in problems at the European Patent Office in Rijswijk because the organisation enjoys immunity as an international organisation.

The patent office approves patents for all 38 countries which are members and has a workforce of 7,000 spread between the Netherlands, Germany, Austria and Belgium.

Glyn Moody quoted from this that “the only option now open is to sue the Dutch state.” The EPO is now being protected by the state. What an embarrassment both to Holland and the EPO.

The EPO is proud to be above the law (and actually BREAK Dutch laws), based on its new statement about it (warning: epo.org link). These villains don’t actually speak about what they did, they just say: “The Supreme Court of the Netherlands has today issued a ruling in a legal case related to a dispute generated by one trade union present at the EPO, SUEPO, against the Office. We welcome this decision by which the Court considers the Dutch courts as not competent to deal with this case, in application of the principle of immunity which is essential for the independence and functioning of any international organisation.”

There are serious, truly serious ramifications for ICC and other institutions on Dutch territories. The ICC, which can now itself commit crimes, won’t even be punished or reprimanded by the government. What kind of signal of low credibility does that send out? It’s like countries that bolster their economy by helping large multinational corporations flagrantly evade tax (Ireland or Luxembourg), or nations that let rich people hide their money from tax authorities (e.g. Switzerland for taxation). Do the Dutch want to be viewed as a safe haven for human rights violators? We previously heard a lot from sources inside the UN (specifically in Switzerland), from those who were close to suicide due to institutional abuse (in WIPO, which is connected to the UN, there have already been suicides due to that). The documents were in French, which is why we never covered/leaked that.

Accompanying the newly-released PDF, SUEPO posted the following message:

Presentation of Prof. Zegveld at the Council of Europe on 13 December 2016 on Jurisdictional Immunity Of International Organisations And Rights Of Their Staff

The use and abuse of immunity by international organisations is apparently a topic not limited to the EPO – although we may have the dubious honour of holding the worst record so far.
On 13 December 2016, the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe tackled the issue in agenda point 9.
SUEPO’s attorney, Prof. Zegveld, was one of the people invited to make a presentation.
We hope that the debate will trigger a (re-)confirmation of the boundaries of immunity, and lead to a strengthening of the enforcement of staff rights.

What is at stake here right now isn’t just the EPO but over 50 international bodies which are based in the Netherlands. The Netherlands wants to be viewed as a guardian of international law (e.g. with ICC), but right now it facilitates human rights abuses. This will certainly be debated by Dutch politicians in the coming days or weeks. Certain political parties in the county rightly deem it a disgrace.

01.20.17

Battistelli is an Autocrat Above the Law and It’s OK, Holland’s High Council Says

Posted in Europe, Law, Patents at 7:40 am by Dr. Roy Schestowitz

Grabbing the EPO by the *****

Battistelli Trump

Summary: Battistelli’s autocratic tendencies will not be challenged by Dutch authorities, in spite of sheer condemnation from many groups all across Europe and the entire world

THERE IS some bad news regarding the EPO, as it turns out that the Dutch court is unwilling to do anything about Eponia’s abuses (the photo in the article has been changed for some reason, but we got a copy and modified it slightly). “Excellent article,” called it an anonymous insider. “Bravo to Mr König and the NRC. Translation desperately needed for our non-dutch speakers…”

“It’s grave news,” Petra Kramer (Dutch speaker) said. “The High Council chose Batistelli’s side.”

Well, Battistelli’s ‘side’ is that he’s immune from the law. It’s hardly a side to be proud of (in the words of the insider: “Greed for money and power was determinant?”) and this decision is not particularly surprising after what the Advocate General said some months back. Kramer will supply us with a full translation of the article from NRC (media behemoth in the Netherlands). We’ll add it below when it is ready.

Update: Here is the translation from Kramer:

Patent Office in Rijswijk remains immune

European Patent Office

The European Patent Office in Rijswijk, and its temperamental chief Battistelli, get a lot of criticism. Judges in the Netherlands are not allowed to intervene.

Can an employer in the Netherlands have a private investigator interrogate employees without a lawyer present? Is he allowed to dismiss union leaders or decrease their salary or pension? Is he allowed to refuse to labor inspections after a suicidal employee jumps out of a window of the office?

It all happened at the European Patent Office in Rijswijk. And Dutch judges are unauthorized to decide about the patent office. That’s what the Supreme Court on confirmed on Friday in a long-awaited decision. The Patent Office is an international organization which enjoys legal immunity in the Netherlands, says the Supreme Court.

In other words, the patent office is a kind of legal island in the Netherlands. The Supreme Court verdict is important for all forty international organizations in the Netherlands, such as the International Criminal Court and the European Space Agency. For union SUEPO of the patent office this is a severe setback.

The Bureau approved patent applications and grants patents that are valid in all 38 member countries. With clients such as Philips, Samsung, LG and Siemens, the patent office is important for the European market protection. The agency employs 7,000 specialist, well-paid workers in Germany, Austria, Belgium and the Netherlands.

Temperamental CEO

The patent office is also notorious for his temperamental French President Benoît Battistelli (66). The CEO has long been at war with SUEPO union, which claims to represent half of the staff, but is not officially recognized. Last year, three union representatives have been dismissed and three others have been demoted. SUEPO denounces the pressure of work, authoritarian management and legal status of employees.

The battle hardened when the Hague Court of Appeal ruled in early 2015 that the agency should not limit strikes, union emails should not be blocked and the union must be recognized. Then Minister of Justice Ivo Opstelten (VVD) ordered bailiffs not to execute the judgment in order to ensure the immunity of international organizations: an unusual situation.

The patent office then went in appeal to the Supreme Court, with the support of the Dutch state, which joined as a party. The Netherlands doesn’t want to drive out other international organizations, because it is bad for the reputation of the business climate and the economy. Battistelli delicately reminded the Cabinet last year that his office adds “1 billion” in sales to the Dutch GDP and invests “250 million” in a new high-rise building.

The Supreme Court has reversed earlier judgments of the preliminary court and the Hague Court. Labor rights are sufficiently protected by the internal disputes procedure. They can also appeal to the International Labour Organisation in Geneva.

But the dispute procedure is shaky and the road to Geneva is long, employees say. All that remains now is one solution SUEPO’s lawyer Liesbeth Zegveld said prior to the Supreme Court:

“A lawsuit against the Dutch state because the violation of trade union rights take place on Dutch territory. Does the state do enough to prevent this? The answer is no.”

Exploitation

Next month a parliamentary debate on the working conditions will be held. In a parliamentary debate last month, the patent office has already been criticized by SP and D66 and government parties PvdA and VVD. The PvdA cited the example of exploitation of Libyan and Sudanese staff in London. Didn’t a British judge allow the European Convention on Human Rights to still outweigh the “diplomatic immunity”?

The conflict forces Netherlands in a strange dilemma. The state supported the patent office in the courtroom, but at the same time the government is critical. Secretary Martijn van Dam (Economic Affairs, Labour) recently expressed in a letter his concern about the “difficult relationship between unions and senior management.” During the introductory interview which Van Dam held with Battistelli last year the Frenchman walked out the meeting in anger.

The Dutch patent world is concerned, says a spokesman for Economic Affairs. The Netherlands are represented by Derk-Jan de Groot, director of the Netherlands at the Patent Office. Together with other major patent countries like Germany, France, Sweden, Switzerland and the Netherlands is among the critical countries.

The problem is that the management board of all Member States, the highest body is too big and too diverse to reach a solution. Last year there seemed to have been a revolution, when 26 of the 38 Member States (with 12 abstentions) called Battistelli to a halt. They asked for arbitration in the conflict, cessation of ongoing proceedings against trade unionists and reform of sanctions. But almost all the proposals have been delayed, hence the situation “has not improved,” according to a spokesman for Economic Affairs. One SUEPO member who was overwrought and therefore on sick leave at home, was subsequently fired. It seems that all parties are intent to let Batistelli serve out his second term which ends on June 30 next year.

The patent office welcomes the “confirmation of the legal immunity” by the Supreme Court and “will continue to work to strengthen the social dialogue,” a spokesman said.

01.15.17

Constitutionality as a Barrier and Brexit Barriers to UPC Keep the Whole Pipe Dream Deadlocked

Posted in Europe, Law, Patents at 4:52 am by Dr. Roy Schestowitz

UPC, RIP

Summary: The UPC is still going nowhere fast, but the demise (or death) of the UPC as we know it must not be taken for granted

THE UPC may be unconstitutional (or un-Constitutional) in a lot of states. Does Battistelli care? Well, he hardly cares about the laws, let alone constitutions. According to this or this, quoting the new (and latest) paper from Dr. Ingve Björn Stjerna, “German ratification proceedings comprise several options for bringing the ratification legislation before the German Constitutional Court (“BVerfG”) for a constitutional law review in which the CJEU would be invoked as regards Union law questions by way of a request for a preliminary ruling.”

“We need more Free Open/Source software companies to help us battle the UPC, which would definitely usher in not only patent trolls but also software patents in Europe.”Given Germany’s selfish interests, as we recently noted in relation to Germany's Justice Minister Heiko Maas, we very much doubt the government will care if the UPC turns out to be un-Constitutional. Things have gotten so bad in fact that Maas also flagrantly disregards/ignores EPO abuses (as per German law) on German soil. As for Team UPC, it’s paying for propaganda. These people play dirty. Very dirty.

Thankfully, as we repeatedly pointed out before, the UPC in in a limbo. In fact, based on the abstract of this upcoming FOSDEM talk, Robinson Tryon too agrees with the “limbo” analogy. “With the future of the European Union’s Unitary Patent Court in limbo due to the Brexit,” he writes, “leaders in Free Software owe it to themselves and their companies to be more agile and more prepared to address patent issues…”

We need more Free Open/Source software companies to help us battle the UPC, which would definitely usher in not only patent trolls but also software patents in Europe. Here is the full abstract of the upcoming talk:

Are FOSS Companies Ready to Deal with Patents in the US and Europe?

Most small businesses have no patent strategy. Though many FOSS companies have policies in place regarding copyright and keeping detailed records of code contributions, few have paid enough attention to how patent litigation could affect them. For those FOSS businesses active in multiple countries or looking to expand into an international market, failure to understand the patent ecosystem in each jurisdiction could be a costly mistake.

Most small businesses have no patent strategy. Though many FOSS companies have policies in place regarding copyright and keeping detailed records of code contributions, few have paid enough attention to how patent litigation could affect them. For those FOSS businesses active in multiple countries or looking to expand into an international market, failure to understand the patent ecosystem in each jurisdiction could be a costly mistake.

This talk will use recent cases and ongoing changes in the patent systems of the US & Europe as modern examples for our discussion. We’ll describe the pitfalls that can affect any company, tabulate the costs of litigation, and offer methods businesses can use to reduce overall risk.

With the future of the European Union’s Unitary Patent Court in limbo due to the Brexit, and with no public position on patents from the United States’ next administration, leaders in Free Software owe it to themselves and their companies to be more agile and more prepared to address patent issues — whether they work at a small startup or at a large multinational corporation.

We previously coordinated some action (such as petitioning) regarding the UPC, but seeing how things are moving in the UK (with the business-oriented Madame Tesco leaving to be replaced by Boris Johnson's brother after just months in her job), it seems like the UPC is falling apart anyway, even without some outside intervention.

01.05.17

Watchtroll a Fake News Site in Lobbying Mode and Attack Mode Against Those Who Don’t Agree (Even PTAB and Judges)

Posted in America, Deception, Law, Patents at 6:19 pm by Dr. Roy Schestowitz

Producing nothing, insulting everybody

Watchtroll

Summary: A look at some of the latest spin and the latest shaming courtesy of the patent microcosm, which behaves so poorly that one has to wonder if its objective is to alienate everyone

THE patent reform in the US (AIA, especially after Alice) brought us the blessing known as PTAB, which is responsible for the immediate and permanent elimination of many software patents and the reduction in litigation. It lowered confidence in even more of these software patents (potentially hundreds of thousands of patents).

“”Idiotic”, “impotence”… what next? Will Watchtroll accuse judges and PTAB of rape and pedophilia too?”PTAB continues to scare people who made a living from software patents (not software, just patents). With his habitual insults directed at PTAB, Gene Quinn (Watchtroll) continues to fling criticisms at PTAB, bemoaning the latest decision which he summarises with the word “idiotic” in the image (and IBM’s patent chief actually boosts these people, who also attack judges! See the image at the top!).

“Idiotic”, “impotence”… what next? Will Watchtroll accuse judges and PTAB of rape and pedophilia too? Frankly, these people are a lot more rude than anything we have ever seen and some of those people actually advertise themselves as professionals. “If a machine is patent ineligible bc it is an abstract idea,” Watchtroll wrote in Twitter, “no point in keeping powder dry. The 101 fight is now.”

He wants a “fight”.

“Telling Watchtroll about software development is an exercise in futility; he doesn’t even know how software works.”Well, the Section 101 fight is over. The patent microcosm lost. Most software patents are dying and this is good because, as Benjamin Henrion put it in his reply, “patents also destroyed software development.”

Telling Watchtroll about software development is an exercise in futility; he doesn’t even know how software works. I debated this in length with him and then he chickened out, blocking me in Twitter.

Watchtroll (a front for the patent microcosm, not just one person) is now lobbying Trump to makes Patent Chaos Again (as expected, with lots more of this lobbying to come).

“These have included enabling the PTO to attack patent validity in a second window,” says the article, “attacking classes of inventions such as software and medical diagnostics…”

“PTAB is a lot more professional because these financial incentives hardly exist, which makes their staff more objective.”Nobody is “attacking” and there is no “fight”. As we pointed out here before, the attorney known as Patent Buddy uses words like “survive”, “kill” etc. rather than use terms that don’t pertain to war. The people actually call PTAB a “death squad!” Picture that for a connotation.

Here is Patent Buddy saying about the above case: “In the MRI-101 Invalidation Decision, the PTAB Reversed the Examiner finding eligibility under 103, but not 101.”

Examiners at USPTO have historically been rewarded to just award lots of patents, irrespective of quality or prior art (which can take a long time to assemble and study). PTAB is a lot more professional because these financial incentives hardly exist, which makes their staff more objective.

Earlier this week we found this lawyers’ site claiming that “[t]he tide may be turning in the Section 101 landscape and it is making waves in the patent practice area.” No, it’s not. The patent microcosm lives in wonderland and only pays attention to a few CAFC decisions that suit their agenda. The article says that CAFC’s “latest rulings on the issue—Enfish v. Microsoft Corp., BASCOM Global Internet Services v. AT&T Mobility, and McRO v. Bandai Namco Games America—possibly signal a new direction for patent eligibility in a post-Alice era. On the damages front, the U.S. Supreme Court grabbed headlines with its highly anticipated ruling in Samsung Electronics v. Apple, the first design patent case to be examined by the Court in over a century. Our panel of experts discussed these issues as well as patent trends on the horizon in 2017.”

“There’s no “win”, it’s not a game. It’s also not a “war” or a “fight”.”We actually debunked this just recently (December 27th), in relation to similar claims about CAFC cases. Less than a handful of cases (less than one hand’s fingers) don’t change years of patent invalidations, including by Judge Mayer, whom Watchtroll is insulting (see above again).

CAFC is soon going to decide whether challenging low-quality USPTO patents (through PTAB) is acceptable, says MIP, noting about a particular case that CAFC “has granted en banc rehearing in Wi-Fi One v Broadcom. The court will consider whether judicial review is available for a patent owner to challenge the USPTO’s determination that the petitioner satisfied the timeliness requirement governing the filing of IPR petitions” (these are the petitions that typically initiate invalidation by PTAB).

Regarding this new article from lawyers’ media, one person wrote, “CAFC vs. PTAB decision discrepancies: Who wins?”

There’s no “win”, it’s not a game. It’s also not a “war” or a “fight”. In fact, most of the time CAFC agrees with PTAB, so the framing of infighting is simply incorrect and inappropriate. To quote the actual article:

Apple Inc. has won at least a moral victory in a fight with the U.S. Patent and Trademark Office over touchscreen technology.

The U.S. Court of Appeals for the Federal Circuit agreed with Apple on Tuesday that the patent office failed to sufficiently explain why Apple’s method for reconfiguring touchscreen icons is unpatentable due to obviousness.

Apple applied for a patent in 2009 on its method of using a sustained touch to activate an icon, which then allows a person to drag the icon to a new location on the screen. A patent examiner found the claim obvious in light of separate prior inventions on sustained touch and dragging. Combining the two inventions “would be an intuitive way” to rearrange touchscreen icons, the examiner concluded and the Patent Trial and Appeal Board affirmed.

This is just one of those exceptions where the CAFC does not fully agree with PTAB and wants the judgment reassessed.

The bottom line is, things are progressing in a positive direction as the US patent system persists in improving patent quality. It’s well overdue. Here we have a new case which “focuses primarily on §101 issues.”

“The bottom line is, things are progressing in a positive direction as the US patent system persists in improving patent quality.”To quote: “The oral argument of the week is MACROPOINT, LLC v. FOURKITES, INC., No. 2016-1286 (Fed. Cir. Dec. 8, 2016) decided by a Rule 36 judgment.”

Those who claim that Section 101 is losing its potency or that CAFC is at war with PTAB or anything like that are being extremely dishonest and typically — if not always — they are the ones directly profiting from these misconceptions/distortions.

Watchtroll and its ilk need to go away or not be taken seriously. Time after time we have demonstrated that the site’s purpose is to attack those who don’t agree (even judges!) and sometimes to organise 'echo chamber' events so as/in which to lobby officials.

Watchtroll is to the patent world what Trump is to civilised politics.

12.26.16

With the Demise of Software Patents and Likely Soon Patent Trolls (Based on SCOTUS), Trump Appointments Matter Even More

Posted in America, Law, Patents at 4:17 pm by Dr. Roy Schestowitz

Justice nominations for the US Supreme Court (SCOTUS) will play a big role, and some Justices truly worry about Trump

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

Summary: In light of Trump’s awkward history with judges (e.g. attacking them) one can hope that upcoming patent cases at the highest court won’t be affected by his pro-big corporations agenda

THE PATENT landscape in the US has changed a lot in recent years, especially after AIA (half a decade ago). Software patents, for instance, are a dying breed. This does not mean that things will continue to improve; they can get a lot worse as soon as a new President is inaugurated, to the chagrin and regret of many Americans. Lobbying of Trump has already begun, for instance by the Internet Association (large corporations, not what it sounds) and by IPO. They want the old order of things and they represent a threat to software developers.

AIPLA, another such entity which acts like a think tank (like oil companies in favour of offshore drilling), is telling the USPTO that they want more secrecy. It makes sense for them. As Patently-O put it the other day, “I would say even after/if the USPTO adopts a rule, be very careful if you have patent agents communicating directly with clients, without supervision of a lawyer, because there’s also the possibility that a court won’t follow the Queen’s University case and hold there is no privilege, anyway. That’s already happened in Texas.”

Well, as new articles continue to stress (the latest being, e.g. [1, 2, 3, 4, 5]), Texas may soon end its status as trolls’ capital, but only if SCOTUS rules rationally. This is yet another blow to the ‘old guard’; it represents patent progress and improvements that favour ordinary people, not oligarchs like Trump and a lot of his prospective cabinet members.

We urge people to support groups like the EFF, which growingly mention software patents and openly oppose these. Latest from the EFF’s Daniel Nazer [1, 2] is this article about this month’s “Stupid Patent”, which he explains as follows:

As you head home for the holidays, perhaps passing through a checkpoint or two, take some time to think about U.S. Patent No. 6,888,460, “Advertising trays for security screening.” The owner of this patent, SecurityPoint Holdings, Inc., has sued the United States government for infringement. SecurityPoint recently won a trial on validity [PDF] and the case will now proceed to a damages phase. So, unless the validity decision gets overturned on appeal, we’ll soon be paying tax dollars for the idea of moving trays on carts.

[...]

In a trial before the Court of Federal Claims, the government argued that this claim was obvious because moving trays using carts was well-known in many contexts. The court disagreed. The court suggested that even if using carts to move trays was well-known, the government needed prior art specifically for security checkpoints (arguably the government had such evidence, but the court disagreed on that point too).

In fairness to SecurityPoint, evidence at trial suggested that it had developed a good system for managing trays and carts within the confined space of an airport security checkpoint. But the patent’s claims are far broader than any specific solution. This is something we often see in patent law: someone develops a (fairly narrow) innovation, but then broadly claims it, capturing things that are well-known or banal. This sort of claiming hurts follow-on inventors who develop their own ideas that wouldn’t infringe any narrower claim, and weren’t invented by the patent holder. But because the broader claim is allowed, their own inventions become infringing. Here, claim 1 is not limited to any particular kind of cart, tray, or scanner. The claim really reads on using a couple of carts to move trays and, in our view, should have been found obvious.

Nazer’s colleague at the EFF has meanwhile advised institutions like universities not to give their patents to trolls. They actually mean “patents”, not “inventions” (as the headline puts it). These are not the same thing. “Research funded by the United States government should benefit everyone,” the EFF explains. “That’s why EFF so strongly supports the idea of writing an open access requirement for federally funded research into the law as soon as possible. It’s also one reason why we recently launched Reclaim Invention, a campaign asking U.S. universities to rethink their patenting policies. It’s crucial that federally funded research be made available to the public so that anyone can read and use it, not just people with institutional connections. But even if the public can read government-funded research, patents on inventions that arise from it can still fall into the wrong hands and undermine the public interest.”

Some universities, desperate for cash (especially in periods of privatisation — the Trump way!), are hoping to make a ‘quick buck’ out of patents that the public actually paid for. This is going to become a bigger issue if schools and universities operate more and more like businesses in the coming years, enjoying no status like they did decades or centuries ago. It means that some universities, with staff that receives public grants, will become litigation mills, directly or indirectly (via trolls).

Speaking of desperate appeals for cash, this new article about Chapter 11 Bankruptcy (a process Trump has gone through plenty of times to secure his billions) says that last “week’s corporate news roundup includes the holding by a U.S. federal appeals court that secured indenture noteholders were entitled to a make-whole premium notwithstanding the issuer’s chapter 11 bankruptcy case, the addition by companies in their securities filings with the SEC of risk factors relating to the outcome of the U.S. Presidential election, and the termination by the PTAB of IPR proceedings as to patent claims between Microsoft Corporation and Enfish LLC, resulting in a non-appealable win for Enfish.”

This goes under “TERMINATION OF ENFISH-MICROSOFT INTER PARTES REVIEW PROCEEDINGS IMPLIED AS UNAPPEALABLE AFTER FEDERAL CIRCUIT DECISION AGAINST MICROSOFT” (a case we covered here before).

In our last article we reminded readers that after Enfish the Court of Appeals for the Federal Circuit (CAFC) ruled repeatedly against software patents, including in very high-profile cases. Unless the Supreme Court with some Trump-appointed Justices chooses to reverse Alice (won’t happen any time soon based on the dockets), it is safe to say that political impact on patent law is still just a distant threat.

“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president. For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”Justice Ginsburg

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