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11.26.17

Raw: Open Letter Regarding Likely Violations of the EPC and Damage to the EPO’s Reputation

Posted in Europe, Law, Patents at 11:54 pm by Dr. Roy Schestowitz

Also see: The European Patent Convention (EPC) is Habitually Being Violated by the President of the EPO

European Patent Convention issues
Full document [PDF]

Summary: The EPO‘s longstanding deviations from the treaty that gave it the power to grant patents (European Patent Convention)

Even PTAB Bashers Expect the US Supreme Court to Defend PTAB in Important Case Which Starts Later Today

Posted in America, Courtroom, Law, Patents at 10:28 pm by Dr. Roy Schestowitz

The voice of Clarence Thomas is expected to play a key role

Clarence Thomas

Summary: The Patent Trial and Appeal Board (PTAB), whose process of IPR as per AIA helps thwart software patents, is expected to be defended by the Justices of the US Supreme Court

SO, starting Monday the US Supreme Court will hear an important case known as Oil States (shorthand). This case helps determine to what degree if any PTAB can correct decisions made to grant (at the USPTO). PTAB has already invalidated thousands of granted patents, many of which were software patents, so this case is important to us.

Three Supreme Court petitions have just been mentioned by Patently-O, which (as we pointed out early on Sunday) spent a lot of time pressuring the Supreme Court to scuttle PTAB. Prior to that the blog had another strategy. The pricipal PTAB basher, Dennis Crouch, now openly admits that he expects PTAB to endure (see third paragraph):

My expectation is that the AIA and [US]PTO’s approach will be upheld in both cases. At oral arguments look for any signals that conservatives will break away from Justice Thomas notion that patent rights are not “core private property” but instead are properly considered lesser franchise rights. In addition, look for consideration of whether the justices are thinking outside-of-patent-law at a bigger picture review of public rights doctrine.

Justice Thomas is currently mentioned in some headlines for sexual abuse allegations (Wikipedia has a whole section about that), but he is correct in this case about patents not being “private property”, as we noted earlier this year when we refuted Crouch.

Oral Arguments in Oil States Energy Services v Greene’s Energy Group (PTAB Case) Are About to Start

Posted in America, Courtroom, Law, Patents at 2:53 am by Dr. Roy Schestowitz

Tomorrow is a big day for the US Supreme Court (SCOTUS)

United States Supreme Court

Summary: The hearings about Oil States will commence tomorrow, probably to secure the Patent Trial and Appeal Board (PTAB) at the end, based on the track record of the Supreme Court’s Justices in recent years

THE USPTO has been compelled to improve its work (notably the quality of patents). PTAB would otherwise invalidate patents granted by the examiners. SCOTUS, moreover, delivered several decisions in recent years which overturned the Court of Appeals for the Federal Circuit (CAFC). It wasn’t just Alice but almost half a dozen different decisions. Not much has changed in SCOTUS except the death of Scalia and arrival of a much younger replacement. So if everything goes as expected, SCOTUS will soon defend PTAB, whose function has been invaluable in the crackdown on patent trolls (and SCOTUS does, in fact, use the term “trolls”). The case about PTAB is known as Oil States Energy Services v Greene’s Energy Group or just Oil States for short. We have published a few dozens of posts about it and the timetable of this case is getting clearer, having already reached the deadline for submission of briefs (advice to the court/Justices).

This case will have historic significance and the patent trolls’ lobby/patent microcosm tried very hard to influence the Justices. Their attempts to incite against PTAB have been documented here in nearly 100 posts. We have a pretty good idea of who did/said what. It’s on record.

Royal W Craig from Baker Donelson Bearman Caldwell & Berkowitz PC is one among many who try to keep abreast new cases, presumably PTAB cases too, and last week he wrote a sponsored essay at IAM [1, 2], in which he claimed: “Google Alerts is a powerful web monitor, provided that users choose appropriate keywords. For example, in order to monitor all precedential Patent Trial and Appeal Board (PTAB) decisions, a Google alert for ‘PTAB’ and ‘Standard Operating Procedure 2′ must be set because the latter is the regulation under which the PTAB designates decisions as precedential.”

We already use such “traps” in order to gather news of interest about patents. We are pretty comprehensive in our coverage and we try to catalog almost everything (coverage is otherwise monopolised by the patent microcosm). Sure, it’s infeasible to cover everything, but setting the bar somewhere (based on relevance/importance) means that nothing of great importance will slip out of sight.

Several days ago when Kluwer Patent Blog was down for the second time in a month (for a considerable length of time) we saw Brian Slater publishing this article about Oil States. He wrote about two more cases:

Three pending cases have the potential to reshape – or even eliminate – inter partes review, a procedure for challenging patent validity introduced by the 2011 America Invents Act (“AIA”). On November 27, the Supreme Court will hear oral argument in two of those cases. In Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, the Court will hear whether IPRs before administrative law judges of the USPTO’s Patent Trial and Appeal Board (PTAB) are unconstitutional. In the second case, SAS Institute v. Matal, the Court will hear whether the PTAB must issue a final written decision on all claims challenged in an IPR petition or whether it may rule on only those claims as to which review was instituted. In the third case – yet to reach the Supreme Court – the Court of Appeals for the Federal Circuit recently decided en banc in Aqua Products that the burden in IPRs is on the petitioner to oppose claim amendments, not on the patent owner to justify them. We address these cases in turn.

Of all the above, Oil States is the only one that can really undermine PTAB and probably won’t. We mentioned the other cases and they did not get anywhere near the same level.

We often assume — perhaps quite safely — that the patent microcosm exaggerates the risks to PTAB in order to assure clients (read: money) that pursuing lots of patents and litigation is still desirable. But it’s nonsense. As we’ve said more than a dozen times before, PTAB is here to stay and given the composition of Justices in SCOTUS, not to mention their past judgments on patents, there's almost no way they’ll torpedo anything associated with the America Invents Act.

One of the new guys at the patent trolls’ lobby (IAM) wants us to think that SCOTUS Justices will scuttle PTAB, but there’s almost no way they’ll do that. Even people from within the patent microcosm occasionally admit that. Maybe if SCOTUS got scrapped and new Justice were selected, only then there might be a chance for Oil States surprises. We instead (as things stand) expect an almost unanimous decision in favour of PTAB’s inter partes reviews.

Anyway, here is what Adam Houldsworth wrote: (remember that these people speak for patent trolls; a de facto front group for them)

The US Supreme Court will next week hear oral arguments in Oil States Energy Services v Greene’s Energy Group, which concerns the constitutionality of inter partes reviews (IPRs) – the controversial USPTO invalidity proceedings introduced by the America Invents Act.

Should the nine justices strike down IPRs it would send shockwaves through the American patent landscape, removing a process that has been condemned by many rights holders and celebrated by others. But, even if they don’t – and the majority opinion seems to be they won’t – the future of the inter partes review will not be guaranteed; it also faces several other political and administrative threats.

Created in 2012 and intended to provide a more effective, streamlined means of expunging dubious patent grants, particularly those owned by so-called “trolls”, IPR hearings have had a huge impact since their inception. At least 6,382 IPR petitions have been filed in the last five years, nearly 70% of which have been instituted. And in 82% of final decisions, at least one patent claim has been found invalid.

Notice the continued pessimism. We have seen that for nearly 6 years. They keep pretending that PTAB is about to go away, but here we are in 2017 and PTAB keeps breaking records (depending on what one measures).

Moving away for a bit from patent extremists, here we have Roger Parloff’s report. The headline isn’t too helpful as it uses the insult of the patent trolls’ lobby, “patent death squads” (the disgraced CAFC judge came up with it), as if PTAB is a murderous thing. Not helpful a framing in the headline, but here are some bits from the article, which isn’t too bad. The hearings commence tomorrow:

The fate of a major patent reform law, enacted in 2011 to improve patent quality, will hang in the balance on Monday, when the U.S. Supreme Court hears a constitutional challenge to one of its key provisions.

The law, the Leahy-Smith America Invents Act (AIA), created a fast, inexpensive, administrative mechanism whereby anyone can ask the U.S. Patent and Trademark Office to reassess the validity of a patent on certain grounds. Since the law came into effect, patent challengers have filed more than 7,700 petitions to trigger the procedure, known as inter partes review (IPR), according to Unified Patents, resulting in the cancellation of more than 20,500 patent claims—components of a patent that can serve as the basis for a lawsuit. Most of these claims were, in fact, being asserted in litigation at the time the IPR petitions were brought—often against multiple defendants. (Unified Patents is a company that tries to protect corporate clients from patent suits by, among things, bringing IPR proceedings.)

Five days ago the New York Times wrote about this too and the headline focused on “trolls” rather than so-called “patent death squads” (shifting the burden to the aggressors, not the defenders). [via]

The accusers in the case, Oil States Energy Services v. Greene’s Energy Group, argue that taking private property is something only a court — not a government agency like the patent office — can do.

It’s hard to tell how the Supreme Court will rule. Patents are not standard-issue private property, like a plot of land. They are granted by the government to encourage innovation, a public good, because inventors might not invent without a period of exclusivity over the fruits of their idea.

[...]

In a brief to the court, the Initiative for Medicines, Access and Knowledge — a nonprofit group arguing for broader access to affordable medicines — argued that the patent office’s panel “is an important and necessary tool in the fight to lower drug prices because it allows the timely removal of unmerited patents, which promotes competition.”

Tahir Amin, a co-executive director of the initiative, added that “there are a lot of patent trolls trying to extort rents from low-quality patents.”

The Supreme Court has in recent years shown itself sympathetic to the argument that patent protections have become too restrictive. On half a dozen occasions since 2013, it has overturned decisions by Federal District Courts granting patent rights over what were ultimately fairly intuitive processes.

Expect a lot of coverage about this case in days to come. Trials by media aren’t a ‘thing’ at SCOTUS, but certainly the patent trolls’ lobby (sites like IAM and Watchtroll) will try to intervene and influence the outcome. They have already been doing this for months. Even Patently-O joined in, revealing itself as more interested in patent trolls than in patent quality. These sites/blogs would even defend the most outrageous among patents.

As a side note, “IPR” should only mean inter partes review, not this nonsense which is a propaganda term, “Intellectual Property Right”. The other day we saw this article titled “The Importance of IPR protection”. Based on the headline alone one can tell that it’s shallow. Sadly, such is most coverage regarding patents. It’s basically marketing and lobbying (for profit) rather than journalism.

11.20.17

Team Battistelli’s Attacks on the EPO Boards of Appeal Predate the Illegal Sanctions Against a Judge

Posted in Europe, Law, Patents at 4:39 am by Dr. Roy Schestowitz

A shocked Battistelli

Summary: A walk back along memory lane reveals that Battistelli has, all along, suppressed and marginalised DG3 members, in order to cement total control over the entire Organisation, not just the Office

LAST night we wrote about the EPO‘s latest attack on the boards, which have already been relegated to the ‘suburbs’ of Munich (Haar). It’s like Battistelli does not want these boards to exist, or wishes to overburden them to the point where they become useless for assurance of patent quality (prior art search and the like). He cannot legally knock them out of existence because of the EPC, but the EPC does not say anything about punishing them relentlessly, so Battistelli will probably get away with it. Now that his departure is almost imminent it’s ever more unlikely that he’ll lose his immunity and himself be subjected to disciplinary actions. 6 weeks from now he and Bergot will officially put the axe to long-term contracts. In other words, 6 months before he’s gone he’s totally destroying any prospects of the EPO ever recovering or salvaging the talent it once had.

Disturbing. To say the least.

We very much doubt the press will cover our findings regarding the Haar ‘party’, which is a sad display of irony if not black comedy. The press repeatedly ignores important stories and developments, as recently as weeks ago. Even comments on the matter might not get through. Here’s yesterday’s report of censorship in IP Kat (or maybe slow moderation by Bristows, or perhaps approval only after a complaint about it). “Censorship is never good,” the comment said. And yes, it’s about the boards. It often seems as though these matters cannot be brought up at IP Kat anymore, as people’s names cannot safely be mentioned (this limits useful debate). Truths are now “personal attacks”. To quote the comment at hand:

Why has my comment relating to recent case re entitlement of priority at the EPO not been accepted?

Is it because I mentioned the plea of a well known specialist about the fact that the EPO should only looking whether there is identity of invention?

I considered my comment as showing that the problem is not a specific one of British courts. No more, no less.

Censorship is never good.

We have meanwhile dug some archives and found the following letter from 3 years ago. We believe it demonstrates how, even before the ‘house ban’ of a judge (Battistelli broke the rules), the boards had come under attacks from Battistelli. This is for readers to judge:

DG3 nominees

Dear Mr Battistelli,

On 12.08.2014 you informed staff of your decision to reduce the “administrative tasks“ performed by the members of the Boards of Appeal and of the Enlarged Board of Appeal. The administrative tasks concerned are the participation in selection boards for procedures external to DG3 and in the work of other bodies under the Service Regulations. In practice, this decision heavily affects nominations in selection boards and in the Disciplinary Committee, where the staff representation used to rely on colleagues from DG3 to provide some independence in those procedures in the past.

As to the reasons, you referred to “possible consequences resulting from the discussion” on the interlocutory decision R 19/12 by the Enlarged Board of Appeal.

As we understand it, the Enlarged Board decided in decision R 19/12 that the obligation imposed on the Vice-President DG3 (VP3), when acting as a high-ranking officer directly under the President, to consider and support efficiency and productivity goals to be reached by the Office may conflict with his duty, when acting as a member of the Enlarged Board of Appeal, to review decisions of the Boards of Appeal as an independent judge and, in so-doing, to contribute to the development of the case law as regards the protection of the procedural rights of the parties. In other words, the Enlarged Board saw in decision R 19/12 a potential conflict of interest between VP3′s managerial and judicial responsibilities.

We do not see such a general potential conflict in the involvement of DG3 members in selection boards, in the Disciplinary Committee or in other bodies under the Service Regulations, essentially because DG3 members have no managerial responsibilities in other DGs.

We therefore respectfully ask to be informed why you consider decision R 19/12 to be relevant to their involvement in those tasks.

We further respectfully ask to be informed why you considered that the obligation to consult the General Consultative Committee in accordance with Article 38 ServRegs did not apply to your decision.

As we now know, this Disciplinary Committee became a farce around that time. Grant Philpott, a thin-skinned advocate of software patents with background in the British Army, was Chairman of the notorious Disciplinary Committee (which ILO deemed to be unsuitably composed months after its union-busting activities had ‘decapitated’ SUEPO).

Those who pretend that the boards were “asking for it” or deserved punishment engage in artistic revisionism of history. Battistelli never wanted them. He wanted to destroy them, having already destroyed several other auditory jobs.

11.19.17

Patent Trolls Based in East Texas Are Affected Very Critically by TC Heartland

Posted in America, Law, Patents at 3:19 pm by Dr. Roy Schestowitz

Of relevance and recent: US Patent Trolls Are Leaving and the Eastern District of Texas Sees Patent Cases Falling by More Than Half

Argument analysis: Justices hear horror stories about venue for patent litigation
Reference: Argument analysis: Justices hear horror stories about venue for patent litigation

Summary: The latest situation in Texas (United States District Court for the Eastern District of Texas in particular), which according to new analyses is the target of legal scrutiny for the ‘loopholes’ it provided to patent trolls in search of easy legal battles

According to Lex Machina, which is an invaluable service as we said yesterday, there may be a massive patent troll in the making. Several days ago the patent trolls’ lobby said that Alan Loudermilk is behind the entity named 511 Technologies, based in Marshall, Texas (where many of the trolls reside). It’s not actually a company, even if it has the word “Technologies” in its name (we recently wrote about other trolls that do this). Loudermilk, who founded this troll, has since then created what looks like another troll, Ginocchio Properties LLC, based in the same place. Will TC Heartland help squash these? We certainly hope so, but in the meantime, we have this to worry about:

Among the segments Maxell no longer operates in is magnetic tape cartridges. Once one of the most recognisable products under the Maxell brand, the company shuttered the division in 2014. That decision left only Fujifilm and Sony competing in the market, and according to USPTO assignments records from September, it is the former company that has benefitted patent-wise from its erstwhile rival’s withdrawal. Maxell transferred 53 US patents related to magnetic tapes to Fujifilm in two separate assignments on 1st September. Notably, Fujifilm is locked in a litigation fight with Sony over that same technology. As this blog detailed last week, the two sides are currently contesting an ITC investigation that could have huge implications for the availability of SEP injunctions in that venue going forward.

[...]

Loudermilk’s most recent venture is 511 Technologies, Inc, which filed 11 patent suits over the past two years against companies including Huawei, Qualcomm and Microsoft, all of which have resulted in either a voluntary or stipulated dismissal, according to Lex Machina. Previously, he was CEO of Solid State Storage Solutions, Inc, which acquired a portfolio of patents from Japan’s Renesas and asserted them against eight companies in 2011 and 2012 before transferring a portion of them to Acacia two years ago.

We wrote a lot about Acacia over the years. It is connected to Microsoft and it has repeatedly attacked GNU/Linux, which makes this troll particularly interesting to us. Another firm of interest is Rovi, which is connected to another Microsoft patent troll, Intellectual Ventures. According to news from four days ago, the ITC was called to potentially ban products. “Rovi asked the ITC to investigate the importation of certain digital video receivers and hardware and software components that use the inventions claimed in its patents,” said the report. “Both complaints were filed by Rovi right before it agreed to acquire TiVo…”

Going back to Texas, there are serious and perfectly relevant questions about its fate (and the fate of patent trolls that are based/stationed there, at least on paper). “Texas law of unfair competition by misappropriation improperly extends to offer patent and copyright protections,” Patently-O said a few days ago. This could get serious because it deviates from the national law:

On the patent side, the court cited to Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989) statements that state laws that offer “substantially similar” protections are preempted by federal patent law and thus not enforceable.

As with copyright law, the appellate panel here suggested that torts that require “deceit” or “improper means” will be acceptable, but laws that focus simply on protecting the investment in product development and marketing will be preempted.

Of even greater interest, however, is TC Heartland, which is only months old and has already caused a collapse in litigation at Texas. The US will certainly be tougher on patent trolls after TC Heartland got told off at the highest level. This positive development (which is good for US technology companies) was mentioned by Dennis Crouch a few days ago when he said:

Regardless of this technicality, the rule appears now that district courts should be considering and granting improper venue decisions moving forward.

“Federal Circuit says TC Heartland changed the law,” heralded another site of patent maximalists. The USPTO refuses to tackle patent trolls (no financial incentive to do so), but judges certainly will take on the issue and it’s pleasing to see. Quoting Managing IP:

The Federal Circuit has granted Micron’s mandamus petition stating: “We conclude that TC Heartland changed the controlling law in the relevant sense: at the time of the initial motion to dismiss, before the Court decided TC Heartland, the venue defense … based on TC Heartland’s interpretation of the venue statute was not ‘available’”

Obviously it’s all known and visible to patent trolls, who prefer to maintain a low profile and extort/blackmail companies behind the scenes (avoiding challenge from judges like the above). Whether trolls get eradicated by a series of rulings depends on Congressional action (or inaction) too. That’s where lobbying comes into play. We’ll deal with that in our next post.

Alice Remains a Strong Precedential Decision and the Media Has Turned Against Software Patents

Posted in America, Law, Patents at 2:28 pm by Dr. Roy Schestowitz

Judge Paul Redmond MichelPublishers too, after all, have come under attacks from software patents (which retired Judge Paul Redmond Michel, shown to the left, continues to defend, even in his retirement)

Summary: The momentum against the scourge of software patents and the desperation among patent ‘professionals’ (people who don’t create/develop/invent) is growing

TWELVE years ago Europe decided on a ban/policy against software patents. 3.5 years ago something similar happened in the United States, owing largely to a panel of judges (Justices) whose decisions in recent years — on patents at least — we are thoroughly pleased with. Alice is, to us, a blessing. It’s something we have been striving for since inception. We therefore need to guard Alice, shielding it from the constant barrage that’s almost always yielded by the patent microcosm, i.e. people who do nothing but patents (handling of patents, not actual invention).

Mainstream Media Against Software Patents

Alice is, to us, a blessing. It’s something we have been striving for since inception.”A couple of days ago the New York Times said regarding “subsidies for the financial sector’s risk-taking” that it’s wrong, as well as “overprotection of software and pharmaceutical patents” (the article is about “Myths of the 1 Percent: What Puts People at the Top”). It’s very good to see that even the so-called journal of record highlights the problem with software patents. Another site, Biotech Blog, said a few days ago that “[i]n some industries (e.g. software), patents are often seen as a nuisance.”

Rightly so. Software patents must be banned universally if the will of actual software developers is to be honoured.

“Software patents must be banned universally if the will of actual software developers is to be honoured.”“This is not a matter of software patents,” said another mainstream site last week. “This is a matter of a monopoly.”

They speak about “The Frightful Five” — a term which alludes to Alphabet-Google, Amazon, Apple, Facebook, and Microsoft.

Lawyers Learning to Accept That Software Patents Are Kaput

The lawyers’ media too is coming to grips with Alice. A couple of years ago these sites still pretended that Alice was a temporary “issue” to be overcome, but now they’ve found the integrity/honesty/morals/courage to treat Alice as de facto law. In Two-Way Media, for example (mentioned earlier this month), Alice was once again reaffirmed by the Federal judges (one level below the Supreme Court) and it’s a precedential decision. The National Law Review said this:

In issuing its precedential decision earlier this month in Two-Way Media v. Comcast, the Federal Circuit affirmed a Delaware district court determination that four data streaming patents were directed to ineligible subject matter pursuant to § 101 and the Alice framework. The four related patents (U.S. Patent Nos. 5,778,187, 5,983,005, 6,434,622, and 7,266,686) describe methods and systems for streaming audio/visual data over a communications system (e.g., the Internet) and, in particular, a scalable architecture for delivering real-time information to a number of users, including a control mechanism allowing for management and administration of users intended to receive the real-time information.

Excellent!

§ 101/Alice has also invalidated some more software patents in Smart Systems Innovations (patent troll), as noted a few days ago in Lexology (another pro-software patents platform). To quote:

Recently however, the Federal Circuit dealt Smart Systems a major setback in Smart Systems Innovations, LLC v. Chicago Transit Authority, 873 F.3d 1364 (Fed. Cir. 2017). In this case, Smart Systems alleged that the Chicago Transit Authority (CTA) infringed four of Smart Systems’ patents. CTA moved for judgment on the pleadings, arguing that the patents’ claims were ineligible under § 101 because they were directed at abstract ideas. See Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014). Smart Systems responded by arguing that the patents sped up processing at turnstiles, i.e. the claims were patentable because they improved a process.

Under Alice, courts must use the following two part test when analyzing a claim’s patent eligibility under 35 U.S.C. § 101: (i) is the claim directed to an abstract idea, and if so, (ii) are there any claim limitations or combination of claim limitations that constitute an inventive concept? The post-Alice cases in the Federal Circuit are not the picture of clarity, and there remains a great deal of uncertainty regarding what is a patent-ineligible abstract idea. It is, however, generally understood that claiming a general-purpose computer that performs an abstract processes will be directed to an abstract idea, whereas improvements to a computer or technological process will not.

It must be tough for patent lawyers. It is going to get tougher for them to honestly advise clients to pursue patents on software. The climate has changed profoundly. All they can offer clients is a bunch of tactics for dodging § 101/Alice at the examination phase, i.e. before a thorough test of claims is undertaken. To quote from the above: “This case underscores the importance of careful claim drafting for software-related patents. Prosecution counsel should be careful to adequately describe how particular solutions are achieved, not just recite the solutions.”

“It must be tough for patent lawyers. It is going to get tougher for them to honestly advise clients to pursue patents on software.”But still, that may not help fully fool the judges. The plaintiff would be confronted by expert witnesses who can see past the buzzwords and weasel words. Software patents are just software patents, no matter the framing/posting/casting.

Another new article, this one from Christopher M. DiLeo and Derek M. Abeyta, speaks in support of patent trolls and offers tips for dodging Alice towards the end: [via]

On October 16, 2017, the Federal Circuit affirmed the district court’s ruling that the claims in Secured Mail Solutions LLC, v. Universal Wilde, Inc. (“Secured Mail”) were directed to patent-ineligible subject matter under 35 U.S.C. § 101. This ruling provides another data point as to what level of concreteness and specificity courts should consider when analyzing patent-eligibility questions under § 101.

[...]

This decision reminds applicants that claims can be found patent-ineligible at the motion to dismiss stage based solely on intrinsic evidence gathered from the written description. Secured Mail at 13. At this time, the courts do not seem willing to engage in any formal claim construction and the court can “simply conclude[] from the claims that they [are] directed to patent-ineligible subject matter.” Id. at 13. Applicants concerned with § 101 challenges should consider articulating technical details in the specification as courts seem willing to make an eligibility determination early in litigation with little, if any, evidence beyond the issued patent.

When preparing a patent application, it may be desirable to ensure that the claims provide sufficient details that can demonstrate what is inventive about the individual claim elements or the processes involving those elements. The claims should also include details that can be traced to further descriptive text included in the body of the application. Including these in the specification can support the ways that the claim elements recited are more than generic processes that are simply being applied or implemented by generic hardware. Patent eligibility can be bolstered by focusing claims on a specific means or method and claiming specifically how those means improve computer functionality, rather than simply an existing process that could, in theory, be performed without computer implementation entirely. Consider including special rules or details within the claim limitations to further ground the claimed features.

Notice the tone. All they can do now is suggest ways of getting around the law/rules. What does that say about them?

IAM a Megaphone to § 101 and AIA Bashers

Suffice to say (and as we shall show later tonight), IAM cannot keep its mouth shut about the Supremes/§ 101/Alice — something which IAM apparently views as an abomination because of the target audience. Litigation professionals bemoan barriers to litigation (§ 101 in this case) and IAM says that Bristol Myers Squibb’s Henry Hadad claims Section “101 reform clearly needs to be addressed by Congress, not going to be done by the courts” (they try to bypass the law and simply lobby/bribe officials).

“There’s a malicious lobby which tries hard to undermine the Supreme Court’s decision. This lobby is funded by the “usual suspects”.”IAM also wrote about former CAFC Chief Paul Michel (another maximalist* like Randall Ray Rader, who succeeded him) that he had said something to the effect of: “If you ask members of Congress and their staffers what they think about patents they r going to tell u 3 myths – most patents r invalid, most lawsuits r abusive and most patent owners asserting patents who are not practising them r abusers…”

These are NOT myths, that’s just the truth and it’s hard for patent maximalists to accept that. We’ll say more about Michel and the context of these remarks later on. There’s a malicious lobby which tries hard to undermine the Supreme Court’s decision. This lobby is funded by the “usual suspects”.
_____
* He even writes for patent extremists’ sites like Watchtroll and Patently-O (less radical than Watchtroll).

11.16.17

EPO Continues to Disobey the Law on Software Patents in Europe

Posted in Europe, Law, Patents at 5:00 am by Dr. Roy Schestowitz

Eponia Star Wars
Source

Summary: Using the same old euphemisms, e.g. “computer-implemented inventions” (or “CII”), the EPO continues to grant patents which are clearly and strictly out of scope

TO say that the EPO operates as though it’s above the law would be an understatement. We have covered many dozens of examples to that effect.

Our original gripe/complaint about the EPO was solely about software patents in Europe. This actually started under Battistelli’s predecessor, more so after her “as such” debacle, but here we are almost a decade later and the EPO continues to disregard the rules. It just refers to software patents as “CII” in order to give the impression that algorithms are “inventions”.

Yesterday, the EPO’s buddies at IAM published this article which was immediately thereafter copied across from IAM to its new “partner” site. Jacobacci & Partners’ Andrea Perronance repeated the term “CII” (they don’t even want to say “software”, so they say “computer” instead) and here is the core of it. It came into effect a fortnight ago:

The European Patent Office Guidelines 2017 were recently published on the European Patent Office (EPO) website. They entered into force on November 1 2017.

Like the previous edition, this year’s guidelines include substantial, extensive and comprehensive improvements with regard to guidance on the eligibility of computer-implemented inventions (CII) parts. These parts have been discussed with the European Patent Institute (epi), in particular with the CII sub-committee of the European Patent Practice Committee.

The changes appear mainly in Parts F-IV and G-VII of the European Patent Convention Guidelines (the Patent Cooperation Treaty Guidelines are also available) and deal with the presentation of information eligibility and patentability. There is also a substantial revision of one example of eligible/non-eligible, patentable/non-patentable subject matter in CII, as asked and suggested by epi (see relevant article in epi Information 1/2017).

Why is this still even up for debate and why is the European Patent Institute there and not any software developers? It says a lot about the underlying intentions. It has nothing whatsoever to do with science or innovation. It’s just about cash for the EPO and the patent ‘industry’. This is just wrong.

Incidentally, the same site also published this take on patents in Denmark, courtesy of Accura Advokatpartnerselskab’s Morten Bruus and Christoffer Ege Andersen. Software patents are banned in Denmark, as can be expected (they’re banned in just about every European nation, as least in principle). But there are tricks around that. Remember that the DKPTO’s chief until 1.5 months ago was Battistelli’s protector, who immediately entered the private sector after he had allegedly been pushed out (maybe for conflict of interest) and turned out to have lied about retirement.

Anyway, from the relevant sections:

To what extent can inventions covering software be patented?

In general, software as such is not patentable (Section 1(2) of the Patents Act). However, it is possible to patent software as part of a patent whose subject matter is a process. Further, software is patentable if it has the potential to bring about, when run on a computer, a further technical effect that goes beyond the normal physical interactions between the program and the computer.

To what extent can inventions covering business methods be patented?

In general, business methods as such are not patentable (Section 1(2) of the Patents Act). That said, business methods can be patented as part of a patent whose subject matter is a process. However, jurisprudence shows that it is difficult to invent business methods that essentially differ from known methods, which is why patents are rarely granted for business methods.

To what extent can inventions relating to stem cells be patented?

Stem cells that have an inherent ability to create human life (so-called ‘totipotent stem cells’) cannot be patented, whereas pluripotent and multipotent stem cells can be patented, as they cannot create human life.

That last part is a reminder of the fact that, just as EPs got invalidated in bulk for being inappropriately granted (on organisms), one day EPs on software too may get invalidated in bulk. We are waiting for that day.

That same site also mentioned former French colony Tunisia, whose special arrangement with the EPO we published in full a couple of months back. Marks & Clerk, writing in Lexology, say this:

From 1 December 2017, it will become possible to validate European patents in Tunisia.

Until now, patent protection in Tunisia could only be obtained as a national patent filed directly or by national phase entry from a PCT application. From December, applicants wishing to file in Tunisia will be able to do so via a European patent application.

Who would that be useful for if not few of Battistelli’s French friends? No disrespect for Tunisia, but it’s hardly known for EPs, let alone patents in general. Such validation agreements make the EPO look feeble and pathetic. Battistelli and his cronies have already traveled to sign such deals in countries with not a single EP! What’s the point?

11.15.17

Patent Trial and Appeal Board (PTAB) Defended by Technology Giants, by Small Companies, by US Congress and by Judges, So Why Does USPTO Make It Less Accessible?

Posted in America, Law, Patents at 7:36 am by Dr. Roy Schestowitz

It’s not like the Patent Office desperately needs more money (there’s excess)

United States Patent and Trademark Office
Reference: United States Patent and Trademark Office at Wikipedia

Summary: In spite of the popularity of PTAB and the growing need/demand for it, the US patent system is apparently determined to help it discriminate against poor petitioners (who probably need PTAB the most)

LAST week the US government dealt with a serious issue we had been writing about for a number of months. CCIA, as it turns out, submitted a letter to the House Judiciary Subcommittee On IP [sic] and yesterday wrote this post:

Yesterday, we submitted a letter for the record to the House Judiciary Committee Subcommittee On Courts, Intellectual Property and the Internet. This letter, written in response to testimony submitted for the Subcommittee’s hearing on Sovereign Immunity and IP, provides the details of our analysis of the patents which Josh Malone and Phil Johnson identified as showing a disagreement on validity between the PTAB and federal courts. In contrast to their allegation of 200 patents, the real figure is far lower. Of the 3,056 patents reviewed by the PTAB which were also at issue in litigation in federal district courts, there are 43 cases (just over 1%) in which the PTAB and a district court have disagreed with one another.

[...]

Conclusion

The data, when correctly understood, shows that the PTAB only rarely disagrees with the federal courts when both review the validity of the same patent. The data also shows that the two venues only rarely review the validity of the same patent. We believe the Subcommittee’s work will benefit from this understanding of the extreme infrequency with which the PTAB and a district court reach different conclusions.

Additionally, based on information that William New wrote about, “US Congress Members Signal Move To Block Allergan Patent Deal With Tribe” (Mohawk).

To quote the part which is not behind paywall:

Members of a US congressional subcommittee on intellectual property held a hearing last week that appeared aimed at finding ways to stop companies from “renting” the sovereignty of Native American tribes in order to avoid a process that can lead to the invalidation of patents. Elected officials called a deal between Allergan pharmaceutical company and a northeastern tribe a “sham” and a “mockery”, and signalled the start of the legislative procedure to prevent such deals.

Notice the use of the words “sham” and “mockery”. There’s also “scam” — a popular term in various blogs and comments. A Federal judge called it a “sham”.

One might expect the USPTO to heed the warning and make PTAB even stronger, but instead, based on this post from Patently-O and another one from New’s publication, the USPTO reduces access to PTAB by means of fee hikes.

New wrote:

The United States Patent and Trademark Office (USPTO) today issued changes to some patent fees, including increases in certain areas, including the cost of using the inter partes review process. Following feedback from users, the office went with some proposed increases, while keeping others at existing levels despite proposals to increase them, it said.

In the interests of patent quality, the USPTO ought to make PTAB even more affordable, not less accessible (more expensive). Here is the full press release:

USPTO Finalizes Revised Patent Fee Schedule

WASHINGTON – The U.S. Department of Commerce’s United States Patent and Trademark Office (USPTO) today issued a final rule, “Setting and Adjusting Patent Fees during Fiscal Year 2017” to set or adjust certain patent fees, as authorized by the Leahy-Smith America Invents Act (AIA). The revised fee schedule is projected to recover the aggregate estimated cost of the USPTO’s patent operations, Patent Trial and Appeal Board (PTAB) operations, and administrative services. The additional fee collections will support the USPTO’s progress toward its strategic goals like pendency and backlog reduction, patent quality enhancements, technology modernization, staffing optimization, and financial sustainability.

In response to feedback from patent stakeholders, the USPTO altered several of the fee proposals presented in the Notice of Proposed Rule Making (NPRM). The key differences between the NPRM and the final rule are:

  • In response to stakeholder concerns, the USPTO reduced both plant and design issue fees from the levels proposed in the NPRM. Still, the large entity plant issue fee increases to $800 (+$40) and the large entity design issue fee increases to $700 (+$140). Plant and design patents do not pay maintenance fees, and the majority of plant and design applicants are eligible for small and micro entity fee reductions, which remain available.
  • Stakeholder feedback suggested that increased appeal fees could discourage patent holders’ access to increasingly important USPTO appeal services. In response, the USPTO elected to maintain the existing Notice of Appeal fee at $800 instead of increasing it to $1,000 as proposed in the NPRM. Likewise, the fee for Forwarding an Appeal to the Board increases to $2,240 (+$240) instead of $2,500 as proposed in the NPRM. The revised fees still do not fully recover costs, but taken together should allow continued progress on reducing the backlog of ex parte appeals.  Since the 2013 patent fee rulemaking, ex parte appeal fees have enabled the PTAB to hire more judges and greatly reduce the appeals backlog, from nearly 27,000 in 2012 to just over 13,000 at the end of FY 2017. Additional appeals fee revenue will support further backlog and pendency reductions.
  • Increases to the PTAB AIA trial fees are aimed at better aligning these fees with the USPTO’s costs and aiding the PTAB to continue to meet required AIA deadlines. The Office’s costs for Inter Partes Review requests are consistently outpacing the fees collected for this service.  These fee adjustments seek to more closely align fees and costs. Trial fees and associated costs still remain significantly less than court proceedings for most stakeholders.
    • Inter Partes Review Request Fee – up to 20 Claims increases to $15,500 (+$6,500)
    • Inter Partes Review Post-Institution Fee – Up to 15 Claims increases to $15,000 (+$1,000)

Other fee changes proposed in the NPRM remain the same.

For the full list of the patent fees that are changing and more information on fee setting and adjusting at the USPTO, please visit http://www.uspto.gov/about-us/performance-and-planning/fee-setting-and-adjusting.

PTAB is important and the cost of petition matters, especially to small companies which are being targeted by trolls and have limited budget. PTAB defends them from patent trolls and software patents without having to go through courts and appeals, which can add up to hundreds of thousands if not over a million dollars in fees (no matter the outcome).

IAM says that according to Google’s Suzanne Michel, “from [a] tech perspective IPRs have been very effective at reducing a lot of litigation” (direct quote from IAM but not Suzanne Michel). She is right.

United for Patent Reform‏ also quotes a report/opinion piece (HTIA’s John Thorne) which we mentioned a week ago: “PTAB and IPR have provided a relatively inexpensive & rapid way for @uspto to take a second & impartial look at the work of examiners & strike down patents that should have never issued in the first place…”

Hence our stubborn defense of PTAB.

Yesterday, IAM noted or highlighted yet another case of PTAB being used to thwart dubious patents, even if the petitioner is a large company (PTAB bashers like to obsess over such points).

The world’s largest oil and gas company Saudi Aramco has filed an inter partes review (IPR) against a Korean petrochemical business in what is a highly unusual move by one of the energy majors.

The Saudi national oil giant, which produces 12.5 million barrels per day, has brought the IPR against SK Innovation, which started life as the Korea Oil Company before morphing into a broad-based energy and chemicals business. The patent in question, number 9,023,979, relates to a method of preparing epoxide/CO2 polycarbonates and was issued in 2015.

It’s not clear what has prompted the review – there is no ongoing patent litigation between the two companies, which might mean that it is related to licensing negotiations that have broken down and Saudi Aramco has brought the IPR in order to gain some leverage in the talks.

[...]

Halliburton is among the most active of these, with 36 IPRs including 32 this year, mostly against its rival Schlumberger. Baker Hughes meanwhile has been involved in 27 IPRs either as petitioner or patent owner.

This should not be mistaken for the Supreme Court case regarding Oil States, but it certainly seems similar in certain aspects.

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