Summary: Microsoft’s continued fascination with and participation in the effort to undermine Alice so as to make software patents, which the company uses to blackmail GNU/Linux vendors, widely acceptable and applicable again
OUR longest article yesterday focused on poor advice — either deliberately bad advice or simply influenced by the echo chamber — regarding software patents. The patent microcosm is in growing denial over US courts invalidating software patents granted by the USPTO using Alice, or even patents invalided by PTAB (in much larger numbers).
Some days ago we saw this report from the 2016 International Women’s Leadership Forum, courtesy of patent maximalists.
As can be expected, it was somewhat of an echo chamber not in the gender sense but in the agenda sense. Microsoft was there too and here is the relevant part:
The first practical step, said Julie Kane Akhter of Microsoft, is to learn from cases where the patent has been upheld, such as Enfish, Bascom and Planet Blue.
“In the Enfish patent, for example, they were actually improving the operation of the computer itself,” she stressed. Lessons from the Enfish decision included: the specification was really important; consider identifying the technical problem in the specification; and avoid being too high level in the claims.
She said Enfish provides several practical strategies for applicants: utilise the interview; talk about the technical improvement; and cite Enfish! Lessons from Bascom are: consider discussing prior solutions and their drawbacks; highlight lack of preemption; and keep drafting software applications! And tips from Planet Blue are: argue the examiner has determined the idea in the claims at too high a level; argue the claim is specific enough and improves the technology; and draft claims with realistic scope and technical effect.
For those who forgot or have not been paying attention, Enfish ended up as a pro-software patents caselaw and Microsoft pays David Kappos, former Director of the USPTO, to lobby along those lines. He keeps trying to eliminate Alice (a Supreme Court case) as caselaw. Various patent law firms too still lick their lips over software patents and try to undermine Alice, hoping to ‘rewrite’ it with lower-level cases such as Enfish or Bascom.
On November 30th Dennis Crouch wrote about Microsoft v Enfish (not the other way around), nothing that it “Turns Out the Claims Are Obvious”. This is a PTAB case:
After instituting review, the Patent Trial and Appeal Board found some of the patent claims invalid as anticipated/obvious. On appeal, PTAB factual findings are generally given deference but legal conclusions are reviewed without deference. After reviewing the claim construction and rejections, the Federal Circuit affirmed in a non-precedential decision.
It’s no secret that Microsoft’s software patents are rubbish; their low quality was the subject of many old articles here. Moreover, the company’s selective and hypocritical views on software patents were noted here way back in the i4i days. In another new article by Dennis Crouch he says that “PTAB judges are so well trained in the complexity of technology and patent law,” which is probably something that most patent courts lack.
“It’s no secret that Microsoft’s software patents are rubbish; their low quality was the subject of many old articles here.”Microsoft is still promoting software patents and in the words of MIP: “Great first panel at #ipwomen Forum discussing practical steps for software patents post-Alice & overcoming S101 objections @MicrosoftIP pic.twitter.com/cGWe9qrGPh” (Microsoft hates Linux too, except when it taxes it with patents, in which case it’s more tolerable to “MicrosoftIP”, the troll entity of the corporation). The people who covertly extort and blackmail Linux on behalf of Microsoft — all this while shaping patent law for the company’s bottom line — are also mentioned here. To quote: “It’s the @MicrosoftIP networking break at the #ipwomen Forum. Time to make some new contacts! pic.twitter.com/YwajQuWadV”
To be fair, Microsoft is part of a broader movement here. But it’s role is notable. Microsoft is a key player in this.
The following crossposted article [1, 2], for instance, tries to leave Alice behind. Another crossposted article [1, 2], this one titled “No Abstract Idea Where Invention Cannot be “Practiced in the Abstract”,” is also composed by the patent microcosm and the aim is similar. All the above entities generally wish to restore the patentability of software in the US. Also see the new article titled “The Current State of Computer Software Patentability” (behind paywall). What they all have in common is dissatisfaction with the new status quo — one wherein software is barely patent-eligible, or at least barely defensible in the patent sense in the courts. Patent lawyers pretend to care for inventors, but they just want to undermine Alice to patent software without barriers. See this article of one law firm; what they mean by “weather” does not take into account the risk of one getting sued but the chance of one to obtain a patent. Very one-sided a take, as usual. Software developers should stop patenting software as it’s a waste of time/money, even if such patents can sometimes be granted (only to be lost after a long and expensive legal battles). New PTAB cases on patents, such as this one [1, 2] (on reasonable diligence), remind us that sometimes patents will be invalidated even before they reach the court, i.e. even without the patent holders choosing to assert these offensively. Is is worth the risk? Patent lawyers can brag about “privilege” all they want (see new examples [1, 2]), but all they are after is a universal tax on software, extracted from patents nobody needs or wants. In the case of Free software such as Linux, this tax prevents redistribution, so it is inherently incompatible and antithetical.
“Has CCIA flipped sides again, as it previously did after Microsoft had paid it millions of dollars?”Much to our surprise, Matt Levy (CCIA) has decided to give articles to pro-software patents sites — a departure from his usual tune. He gives false hope to software patents hopefuls like Watchtroll readers and also IAM readers. Has CCIA flipped sides again, as it previously did after Microsoft had paid it millions of dollars? █
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Summary: Further analysis of the latest rulings from the ILO — decisions that were long expected
THE EPO does not quite respect the principles of the Rule of Law and justice. It’s a mirage or an illusion. We covered it on Thursday, based on the latest ILO decisions.
The “ILO sends European Patent Office Director Battistelli flying,” EPSU which has been involved recently writes about this judgment (in Twitter earlier this evening), as it “Validates complaints [of] staff…”
This links to an article that a handful of EPO insiders told us about. One person said ““every single internal appeal” handled by the Appeals Committee in its current composition from Oct 14 to today legally flawed…”
William New from IP Watch wrote:
The judgments are “remarkable” for several reasons, said the source who wished to remain anonymous.
First, they show that the ILO is trying to clarify formal errors that upset procedures and cause major problems, said the source. In addition, both express criticism of the current EPO president, the source said.
Judgment No 3796 clarifies that “every single internal appeal” handled by the Appeals Committee in its current composition – from October 2014 to today – is legally flawed, the source said. That means that many cases will have to be dealt with again, after a new internal appeals system is created, the source said. To fix the flaw, the president will have to ask the CSC to nominate members for the committee, but because two members of the Appeals Committee have been demoted after disciplinary procedures were launched against them by the administration, the CSC has refused to act. “The ILO judgment puts pressure on” Battistelli to make concessions to the CSC, the source added.
In addition, under Judgment No. 3785, complaints by several hundred staff members against the new career system will have to be revisited, and those judgments will be delayed. Both decisions will likely figure into the 14-15 December AC meeting “since they show that employees’ justice is currently denied at the Office,” the source noted.
All of this is “bad for the reputation and credibility” of the European patent system, said the source. It’s also bad for the image of responsible governments such as France, the Netherlands and Germany, so “there will be a lot of pressure on the delegations to finally fix some issues.”
The latest fictional diary from the EPO is based on the above. Many people are likely to speak about this for quite some time to come. █
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De facto martial law under King Battistelli (like Erdoğan in Turkey)
Summary: The EPO has quickly descended into a police state, but the supervisors of Battistelli (national delegates) have thwarted or at least postponed his incredible pursuit of imposition by the highest-ranking governor (himself) on everyone, effectively removing all power from the previous executive, legislative, and judicial branches of the EPO (Organisation), under the pretense that this is necessary for the Office to function effectively (e.g., to maintain order and security, or to provide core services)
SOMEONE recently leaked to us an opinion on the Investigation and Disciplinary Guidelines
[PDF, 17MB] (or disciplinary and investigation guidelines) proposed for Battistelli’s chinchillas (the Administrative Council, or AC for short) to pass to him on a silver platter, probably for continued persecution of perceived ‘enemies’ and union-busting activities. We saw some portions of discussions about it, in particular after this failed to pass (the chinchillas found some backbone for a change). “A Game Changer” is what one person called it (alluding to the UK delegation which expressed its feeling that this could be a “game changer”), but it wasn’t long before Battistelli resumed union-busting activities, in defiance of the chinchillas’ opposition (he doesn’t care what they say, he just does whatever he wants anyway). “It seems that as the result of a coordinated effort by the AC delegates, both the Investigation and Disciplinary guidelines proposed by the EPO have been removed from the AC agenda,” said one person. There’s some background to all this, namely “the somewhat unfruitful discussion in the Board 28,” which is definitely aware of the crisis at the EPO*.
“Curiously, based on what we learned, Battistelli grossly violated/ignored what was decided on because “in clear terms delegates insisted that no decision should be taken on presently running disciplinary procedures until the new procedure is put in place!””As a result of this rejection (Battistelli not getting what he demanded), the opinion will be taken into account and the proposals revised for next month’s meeting. There seems to be growing interest in improving protections for staff representatives and union leaders. Has the coin finally dropped? Is the AC realising that Battistelli is totally out of control?
Curiously, based on what we learned, Battistelli grossly violated/ignored what was decided on because “in clear terms delegates insisted that no decision should be taken on presently running disciplinary procedures until the new procedure is put in place!”
Well, Battistelli fired a staff representative regardless. What a mockery to the AC. The tyrant is so insecure that he doesn’t care what the rules say. Delegates from Switzerland, France, Britain and the Netherlands in particular got snubbed by Battistelli. Isn’t it time for them to fire him already?
“Delegates from Switzerland, France, Britain and the Netherlands in particular got snubbed by Battistelli.”As staff representatives explicitly put it, “there is no specific safeguard for Staff representatives or Union officials in disciplinary procedures, especially when the complaints are filed directly by the President or a high official [like Bergot] acting under his authority.”
In relation to the person whom Battistelli brutally fired this month, representatives wrote at the time that he had been “downgraded in Jan 2016 (against the recommendation of the Disciplinary Committee). In fact, the Office has launched investigation and disciplinary procedures against several other Staff representatives as well, affecting negatively their health.”
EPO workers are also citizens of European nations. Their human rights cannot simply be disregarded when they visit Eponia**. █
* The summary results of the 75th Board 28 meeting said that “The new proposals were welcomed, but nevertheless no common understanding could be reached on the right to remain silent and on other issues. The President had strong reservations on this issue, insisting on the necessity to ensure an efficient procedure to fight fraud and harassment, and reserved the possibility to withdraw the package from the agenda.”
** Incidentally, later today Julian Assange will have his rights revisited and his lawyers currently (overnight) spread around this image (copied below).
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Sweeping changes continue to sweep up the patent mess in the USPTO
Summary: News about Microsoft’s love of [patents against] Linux, the persistent issue of patent maximalists guiding US patent law, and an update regarding the Patent Trial and Appeal Board (PTAB) that cleans up the mess left by these aforementioned actors
SOFTWARE PATENTS have always been our primary focus, since the site began exactly 10 years ago.
“I’m not talking about software patents, whose disappearance I would welcome,” said the author of this new article titled “The End of Intellectual Property?”
Patent practitioners must understand that in order for their profession to maintain legitimacy (positive public perception) they need to ensure that patents are granted only on things where patenting can be justified, economically in particular. Not every thing in existence should be patented. That’s just common sense, as authors who studied the effects of monopolies explained in scholarly work for decades if not centuries. Patent law — like copyright law — must examine/study the broader effects, including the externalities.
Today’s article is a mix of news found and collected over the past week. We present the news in no special order.
Microsoft Still Evil and Dangerous
Microsoft is lobbying against Alice (and for software patents, as usual). How do we know? This report from last week reminds us that Microsoft is a nasty, malicious company that intends to continue to sue rivals using software patents. To quote: “As Microsoft’s Micky Minhas sees it, Alice may be dissuading IP owners from other countries from patenting their products here, placing the US at a disadvantage. As China considers accepting patents for business methods, the US is heading “in the opposite direction,” he said.”
Does that mean that China’s patent system is getting better? No, it’s getting worse and patent trolling has gotten a foothold there, as we so often/habitually noted this year. Looking at what Microsoft actually continues to do, consider this new and timely article titled “No, Microsoft does not love open source” (published by the corporate media about a week ago). To quote the key part:
I used to follow Microsoft’s intellectual property Twitter account in order to see exactly how much Microsoft loved open source as it bragged about all the people it had coerced into signing patent agreements. I guess someone realized that crowing about that was not a great idea, because today the feed tweets puff pieces about how great software patents are and how they drive innovation (through litigation).
The truth is that Microsoft’s principal open source strategy hasn’t changed and probably never will. The point of open source to Microsoft (or any other company) is to give you an on-ramp to its platform. For Microsoft, that platform is morphing from Windows to Azure, so of course Microsoft has dialed back its rhetoric toward Linux. If you read Microsoft hates Linux, then you probably won’t host your VMs on Azure — same deal if you have a choice between two virtual private clouds. Duh, Microsoft loves Linux … on Azure. Why wouldn’t it?
Microsoft may even be willing to accept open source that’s tied to its technologies, but not directly to its platform. Generally these will be “children’s edition” versions like .Net Core. I’m not saying Visual Studio for Linux isn’t progress, but is anyone really itching to run .Net on Linux? I mean, after the outrageous commercial success of Mono (/sarcasm), are any of you going, “Woo-hoo, I want to write .Net code and run it on Linux”? Bueller? Bueller? Anyone?
Now, about those lawsuits — Microsoft likes it both ways: Embrace on one hand, and get tidy patent settlements on the other. People who work at Microsoft say it’s a big company, and as with all big companies, the left hand doesn’t know what the right hand is doing. Actually, that would be dismal management — if “we love open source” was really part of Microsoft’s strategy.
As evidence that Microsoft loves open source and Linux, last year Microsoft noted some long-running lawsuits that it wasn’t really winning and dropped them. Repositioning “we cut our losses” to “because we love you” is good PR. Respect! But let’s talk about real change.
For those who think that Microsoft has changed, be sure to check if media coverage changed rather than Microsoft itself. We wrote quite a few articles this year about new instances of Microsoft blackmail using patents, targeting companies which distribute Linux devices.
Patents That Harm Society
There is a new paper (more than a fortnight old by now, which in academic terms/by academic standards is very little) that focuses on patent litigation. Litigation is rarely indicative of success; rather, litigation is invoked when there is a failure and when parties fail to agree about patents. Who benefits from all this the most? Patent lawyers of course, at both sides (offensive and defensive). Here we have a new report about a patent lawsuit against solar panel company . Earth Solar Power, a Chinese solar panel company, got sued. Does the environment benefit from it? Certainly not. What does public interest say about all this? Also see this report about Octane. “Ninth Circuit’s en banc ruling says a case in which fee-shifting is appropriate is “simply one that stands out from others with respect to the substantive strength of a party’s litigating position”,” to quote MIP. Where does the public stand on this? Whose fees are “shifting” and who pays the price for all these lawsuits? Here is another new MIP article, this one speaking about a lawsuit with a decision composed by Justice Ginsberg. It’s not a new case, but here’s what MIP says:
In 2014, the US Supreme Court heard Petrella v Metro-Goldwyn-Mayer, which asked the same question of copyright law. In a majority opinion written by Justice Ginsberg, the Court decided that laches should not be an available defense in copyright infringement cases. The Court has recently shown a tendency to want to maintain consistency across the branches of IP law. In this case the Justices will have to interpret whether the statute creates a statute of limitation for damages in patent infringement cases, or if this is not established, whether laches are needed to effect this limitation upon suit delays.
Baby products are not improving because of lawsuits like this (see context in this article) and certainly society loses a lot. Maybe the problem is that too many patents are being granted in too many domains.
Tastelessly enough (in our view), Professor Crouch now uses his student Zachary Kasnetz to criticise a decision he doesn’t seem to approve of. Crouch is part of that crowd (or the insulated choir) that wants us that believe that more patents mean more success, more innovation, or whatever. His blog is usually quite informative (with detailed graphs and everything), but he is clearly subjective and he has become a symptom of a patent system led and steered by maximalists, not moderates. Some of them have become so greedy that they burn down the system and alienate the public. No wonder the connotation with patents among many members of the public isn’t quite so positive. Many now find “patents” synonymous with “trolls” rather than light bulbs, innovation, etc.
Here is a new article where Crouch shows the proportion of abandoned patent applications in the US going down over time. Is this indicative of a patent quality problem? Remember that the real number is FAR higher than what's shown by Crouch, around 92% if one considers revisions and re-applications. Here is another Crouch article about “USPTO Allowance Rate” and further commentary about it (“What is the Steady-State Patent Allowance Rate?”). In recent years, based on these figures, the USPTO got ever more terrible at rejecting bogus patents. David Kappos as Director (now lobbyist) made things ever more dire.
Courts Meet Avalanche of Bogus Patents
The USPTO has created a mess. It certainty did, but it profited from it. It’s obvious at whose expense and to whose gain. The incompetence (top-down, management instructing examiners) now overloads the PTAB staff and leads to a sort of ‘scatterback’ that falls back on courts. Only lawyers and trolls win here.
How did it all happen and what does the USPTO plan to do about it now? Well, based on Patently-O (Crouch’s blog), the “USPTO Proposed to Revise Rule 56″. David says in this article, while linking to a PDF, that the “announcement is here. I will be submitting comments before the 12/27 deadline, and so if you have any ideas or thoughts, please post away.”
So basically policy is being shaped by those who profit from it. We don’t expect public interest groups to have anything to say. Here is the nasty Watchtroll pushing his own agenda with this article about a “new memorandum on software eligibility”. Want to guess what Watchtroll will tell them?
Here is Watchtroll bemoaning the CAFC for smashing about 90% of software patent cases that it deals with. These people just can’t help themselves. Whenever the system tries to correct itself they panic and try to keep it ruined, as from ruin comes more business to them (consulting, applications, litigation etc.) and it’s frustrating to think that the public pays the price for all this unproductive chaos. The public pays, these people pocket it all.
The mess created by the USPTO, which granted patents on software for a number of decades (because it got greedy), scatters back on CAFC now. We see a growing number of reports about it. Kyle Bass, a person whom patent maximalists like to hate, goes on a PTAB winning streak ahead of the winter break. By invalidating crappy patents (granted by USPTO in error) he actually makes money. While opportunistic and selfish, at least it helps keep applicants honest (out of fear). Here is how MIP put it the other day. “The Coalition for Affordable Drugs has notched a flurry of PTAB wins in the past two weeks. The next decisions will not come until the new year,” Michael Loney wrote.
Drugs being more affordable is a good thing, right?
Here is another new update about PTAB, courtesy of Mr. Loney:
The past four months have been stable for Patent Trial and Appeal Board filings, while October saw the Federal Circuit giving another ruling on reviewability of IPR institution in Medtronic, the PTAB issue Kyle Bass and printed publication decisions, and the USPTO propose fee increases and changes to patent agent privilege
The monthly numbers of Patent Trial and Appeal Board (PTAB) petitions filed for the past four months have been within a 14-petition range, after displaying volatility at the start of the year.
There is no sign of stopping at PTAB and we are gratified to know that those who attack PTAB (Watchtroll for example) are not succeeding. In another report from MIP it’s stated that the “Federal Circuit [is] falling behind as PTAB appeals stack up,” confirming what we saw other sources claim. IAM ‘magazine’, in the mean time, has a new “Report” (usually paid) which shows that CAFC further limits patent scope (not just impacting software but also logic circuit designs) and it leaves us very hopeful. Is this combination of CAFC and PTAB, inheriting the ‘genes’ of the SCOTUS, going to make software patents a thing of the past everywhere? It’s definitely an attainable future. We’re partly there already.
What got a lot of this reform rolling was the America Invents Act (AIA), which brought PTAB just a few years before Alice. According to Patently-O,”AIA Patents [are] Approaching 50% of newly issued patents” and here is what they mean by AIA Patents:
By the end of the calendar year, most newly issued US utility patents will be considered “AIA Patents.” AIA-patents are examined under the first-to-file rules of the America Invents Act of 2011 and are also subject to potential post-grant-review proceedings. The chart below shows results from a random sample of 7,300 recently issued patents.
Soon enough there might not be many software patents left (not already expired) and Alice/Section 101 accomplished more than just software patents abolition, based on this report about industrial machines. It seems too good to be true, but it’s true. This is why patent law firms are hopping mad.
The US patent system is still messy, but we are optimistic and we believe it’s getting better; most developments these days are positive ones. █
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Summary: The obnoxious company that is promoting Microsoft and software patents in a country that needs neither makes the headlines again (Financial Express)
THE SUBJECT of software patents in India has not been explored here in a while. It seems safe to say that the latest massive effort/push/lobbying by Microsoft, IBM et al failed and India will continue to reject/decline/refuse to patent software.
“Tata has spent years pushing for software patents and promoting Microsoft’s interests/lock-in.”The Microsoft partners from Tata (or TCS), however, are still lobbying for software patents in India, in essence painting themselves a foe of the country’s interests. Based on this new article (published earlier today): “In yet another instance of saying no to exclusivity for innovations in software development, the country’s patent office has rejected a patent application by Tata Consultancy Services (TCS) seeking protection to its claimed invention relating to organisation and development of technical documents, with few defects, minimal effort and less cost.”
Good. Tata has spent years pushing for software patents (see e.g. [1, 2]) and promoting Microsoft's interests/lock-in. We hope that our readers in India (a large proportion of our readers is from there) will push back against the likes of Tata. The country is better off without such corporations. Tata is often peripheral/adjunct/extension of foreign multinationals and it’s not alone. This harms Indian startups. █
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Throwing everything that’s left (time and money) at the problem in order to throw democracy away and thwart the law
Summary: The lack of respect for the law, for democracy and for patent scope (quality control) at the European Patent Office has become incredibly difficult to ignore
SOFTWARE patents promotion at the EPO has gotten so bad that it was done twice in one single day. Their official and verified account said “This e-course teaches you all about the patentability of computer-implemented inventions at the EPO” and also said “We will be discussing practice & jurisprudence in software-related patents in Europe & India at this event” (as a reminder, software patents are verboten both in India and in Europe).
“The EPC and the European Parliament are against this, but evidently, under Battistelli in particular, patent scope is out of control and this kind of overt lobbying has become routine.”This was done again for the third time within 24 hours. The EPO openly promotes loopholes for patenting software. The nerve…
It’s a repeat of the above: “This e-course teaches you all about the patentability of computer-implemented inventions at the EPO…” (link to the EPO’s Web site).
Why does this matter? The EPC and the European Parliament are against this, but evidently, under Battistelli in particular, patent scope is out of control and this kind of overt lobbying has become routine. It’s almost becoming a banality. We wrote about this several times last month. The “EPO’s knowledge & expertise” is leaving in droves nowadays (we have reported massive, unprecedented brain drain over the years), yet here again the EPO brags about its “knowledge & expertise”. Who are they trying to kid? Preaching to the converted?
One main problem is, if UPC schemers got their way, a lot of the above would have become easier. Software patenting will be brought to Europe by the UPC, but only if Battistelli gets his way… it would not just be a disaster to software developers but to every single user of software. The consequences would be horrific and devastating. The US, where software patents are ubiquitously used by patents trolls, is a cautionary tale.
“Software patenting will be brought to Europe by the UPC, but only if Battistelli gets his way…”We hope that EPO staff understands why we have opposed the UPC (and its predecessors) all these years. Not much has changed except the name (now it’s “unitary” and “unified” rather than “EU” or “community”). Rebranding never changed the substance and politicians including Battistelli lied about it all along.
Here is a new article from a lawyers’ site. It’s titled “What Does Brexit Mean for the Planned Unitary Patent System in Europe?”
Here is what it says (behind a paywall unfortunately, so only the patent microcosm — those paying for subscription — would be able to read and/or scrutinise it):
The Unitary Patent System and Unified Patent Court had been predicted to come into force in 2017, and it promised to be the biggest change in European patent practice in almost 40 years. Has Brexit killed the whole thing?
In a nutshell, yes! UPC is going nowhere. Does that mean that British members of Team UPC will give up? Of course not. The Corbyn-led Labour party would have no interest in the UPC (see its position on TPP) and should bury the UPC, but watch how Bristows LLP spins that. Another example of selective quoting and misinterpretation or misrepresentations, quoting other members of Team UPC as ‘proof’ of widespread support for upcoming changes? Also see this new one from Bristows LLP (aka Bristows UPC, for marketing purposes). This firm has just published not one but two UPC propaganda pieces. Shame on Bristows for attacking both British and EU democracy. What does that say about Bristows?
Another LLP, this time Pillsbury Winthrop Shaw Pittman LLP, joined in this non-stop UPC propaganda (obviously from patent law firms that stand to gain from the UPC).
“The UPC would be bad for SMEs all across Europe, not just in Britain. Every European citizen should be out in the streets protesting against it, for the same reasons CETA/TPP/TTIP/TISA etc. are widely protested against.”They know a deadline is coming up and the UPC would likely die soon, if not officially in the UK then in the whole of Europe (unless it’s renamed again and repackaged with replacement/s for London). The UPC would be bad for SMEs all across Europe, not just in Britain. Every European citizen should be out in the streets protesting against it, for the same reasons CETA/TPP/TTIP/TISA etc. are widely protested against.
Milan has been mentioned as a likely replacement for London and watch this new tweet from the EPO: “Patent professionals in Italy are welcome at this event,” it says. Notice the interesting choice of venue. █
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It’s hard to say goodbye
Summary: An overview of some of the latest press coverage regarding software patents now that they are difficult to acquire and especially difficult to assert in a court (the higher up, the harder)
SOFTWARE patents are a scourge and a plague. They harm developers all around the world, even those not residing in the US. These patents often boil down to nonsense that’s neither innovative nor novel.
“Like most software patents, here we have a non-inventive step; there’s nothing new about a rating system but because it’s done “on a computer” and “over the Internet” or regarding a vehicle we’re supposed to think it’s innovative and deserving a patent monopoly.”The other day Benjamin Henrion joked, “what an invention!”
He was referring to this blurb that says “Uber files patent application on rating your “ride” https://t.co/HcaLtCUGtJ details seem trite; inventor Ben Kolin https://t.co/gXPvZSAy44″ (direct link).
Like most software patents, here we have a non-inventive step; there’s nothing new about a rating system but because it’s done “on a computer” and “over the Internet” or regarding a vehicle we’re supposed to think it’s innovative and deserving a patent monopoly. What a hard argument to sell…
Another new example of this Uber ‘innovation’ says that: “In big cities, you’d be hard pressed to find someone who never used #Uber. Take a look at their #patent history” (this links to an article by Audrey Ogurchak at Watchtroll’s site).
Putting aside how unethical Uber is (Richard Stallman has a dedicated page about the subject), these software patents from Uber remind us that they are a real problem and several recent tweets or articles spoke about the threat Alice (and invalidations of patents on software) pose to Uber’s market value. As if Uber’s monopolistic practices are something that needs to be guarded…
“It’s sad to see that IBM continues to align with the dark side when it comes to patents whilst actively suing companies using software patents.”With this cautionary tale out of the way, let’s look at some of the encouraging coverage we saw in these past few days (half a week) following the famous ruling against software patents — a ruling that we wrote four articles about (so far). Here is a new article titled “Patents a “terrible fit” for software”. It says: “Copyright is a sufficient system for protecting software and the patent system is a “terrible fit”, a US Federal Circuit judge has said. The comments followed a ruling in the Intellectual Ventures v Symantec patent infringement case”
A lawyers’ Web site too admitted the undeniable; “Software Patents on Shaky Ground With Federal Circuit in Case After Case” said the headline, but the article is behind a paywall. Scott Graham, of Law.com, wrote: “The U.S. Court of Appeals for the Federal Circuit put on what could have been a clinic last week on software patent eligibility.”
Above the Law, another Web site which targets lawyers, published this:
Prominent Pro-Patent Judge Issues Opinion Declaring All Software Patents Bad
Well here’s an unexpected surprise. A lawsuit brought by the world’s largest patent troll, Intellectual Ventures, and handled on appeal (as are all patent cases), by the notoriously awful Court of Appeals for the Federal Circuit (CAFC) may have actually killed off software patents. Really. Notably, the Supreme Court deserves a big assist here, for a series of rulings on patent-eligible subject matter, culminating in the Alice ruling. At the time, we noted that you could read the ruling to kill off software patents, even as the Supreme Court insisted that it did not. In short, the Supreme Court said that any patent that “does no more than require a generic computer to perform generic computer functions” is not patent eligible. But then it insisted that there was plenty of software that this wouldn’t apply to. But it’s actually pretty difficult to think of any examples — which is why we were pretty sure at the time that Alice should represent the end for software patents, but bemoaned the Supreme Court not directly saying so, noting it would lead to lots of litigation. Still, the impact has been pretty widespread, with the Alice ruling being used both by the courts and the US Patent Office to reject lots and lots of software and business method patent claims.
More invalidations of software patents are being reported (coming out from CAFC), but don’t expect lawyers-led or lawyers-fed media to speak about these. One patent attorney wrote: “Fed Circuit Affirms 101 Ineligibility of a Patent Claiming Detection of Unauthorized Access to Medical Information: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1985.Opinion.10-6-2016.1.PDF …”
This decision is only days old and we have not seen it mentioned much.
IBM’s software patents lobbyist in chief, Manny Schecter, is obviously upset. He wrote “No US statute renders software ineligible for patenting,” to which Henrion responded with “Free speech is enough to liberate IBM’s programmers.”
It’s sad to see that IBM continues to align with the dark side when it comes to patents whilst actively suing companies using software patents.
“If one is still in denial about the need for patent reform, then one is delusional or too obsessed with one’s legal invoicing/fees (profits).”LWN, a Linux news site, recognises that we’re moving towards the end of software patents, but a lot in the side of the lawyers (the very vocal minority) are still in denial or in “attack mode”. They are attacking the messenger or the credibility of the judgment in an elaborate attempt to defend software patents. Here we have proponents of software patents at Bilski Blog (cross-posted here) espousing political views to discredit the reform attempts. This was liked by proponents of software patents, as one might expect. To quote the concluding bits: “One of the most common concerns about our government—voiced from all parts of the political spectrum—is that Congress gets too little done. Thus, the worry that a Congressional “fix” to our patent system is not likely anytime soon is understandable. However, problems caused by any real or perceived Congressional dysfunction may be dwarfed by allowing courts to re-write the Patent Act. If there is ever an area where the balancing of interests calls for the legislative process to be involved, it is in our intellectual property system. One person’s view—or even one Court’s view—of a good solution, however well-intentioned, is not the right approach.”
If one is still in denial about the need for patent reform, then one is delusional or too obsessed with one’s legal invoicing/fees (profits). It’s not hard to see what motivates the above.
One can tell that things have become pretty bed for this camp when Martin Goetz is again writing in support of software patents, and moreover chooses Watchtroll as his platform, again. Some background of both Watchtroll and Goetz would help one understand the significance of this. As we are going to show in our next post, some other familiar faces are coming out of the woodwork right now, trying hard to stop patent reform if not a comprehensive overhaul. █
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Reference: Rule of law
Summary: The European Patent Office (EPO) actively undermines democracy in Europe, it undermines the freedom of the press (by paying it for puff pieces), and it undermines the rule of law by giving one single tyrant total power in Eponia and immunity from outside Eponia (even when he breaks his own rules)
THE situation at the EPO has gotten so bad that the EPO is now buying the media for some Milan spin (among other spin) to help sell the UPC to the gullible public officials. This culmination in lobbying demonstrates the moral depravity to which Battistelli and his goons are willing to sink.
The UPC is an assault on EU democracy (and in the UK what we are seeing in that regard is total disregard for the referendum), which is effectively being stolen by lobbyists and patent lawyers of large corporations. The “UPC [is] on the Council agenda of this Friday,” Benjamin Henrion wrote, “I told you so. Italian minister seems to lobby for Milan without even a discussion in Parliament.”
We first wrote about it last night. Italians should protest that day, along with their media (already covered UPC).
Was the public consulted on this? Why does the media, which was paid by the EPO, support this with some puff pieces that involve Team UPC? How corrupt can things get and when will European politician start to genuinely care? And not just because they perceive it as an opportunity to promote their political party, e.g. in France…
The Battistelli regime has gotten so oppressive recently that SUEPO is silent (not a single word for three weeks) and the attack on the appeal boards intensifies behind closed doors (the secretive Board 28). “This Office has really become a banana republic,” one comment says today. “Looks like a last, desperate attempt of Battistelli and his henchmen to avoid that at the next AC the disciplinary case is closed,” this person notes, in relation to the news about Battistelli trying to prevent the scapegoat from getting his job back (or basically return to work before the end of his term). Here is another new comment about it:
If the matter were not so serious for the accused (or should that be former accused and/or victim?), this Wile E Coyote-esque persistence would draw a chuckle.
As one person has pointed out, late filed submissions are required to be prima facie relevant and OK, maybe, if you can give us another reasoning because the one you have come with isn’t good enough, isn’t normally the procedure to follow.
I note that, in the Social Study (?), PWC have found that the office’s actions have met the requirement of the EPO’s legal framework. The mind boggles about what wouldn’t.
We wrote about the PWC 'study' just after its release on Friday. It’s hogwash. It’s just ammunition for lobbying in next month’s Administrative Council’s meeting (there are also court rulings from the Netherlands coming up very soon).
One person added that “there is no “Res Judicata” at the EPO, nor does ILO-AT require this of its member organisations (and the EPO is not a member of ILO-AT).”
Another person remarked on “the issue of res judicata” as follows:
They would not go for the same accusations.
Actually, rumors were circulating around the last meeting of the AC that the president had a completely new strategy to deal with the suspended member of the AC, since the first one did not work.
A new accusation would have been made according to which the suspended member had discussed with an external IP lawyer a case in front of the BoA, thus contravening the requirement of confidentiality for anyone working at the office.
That would have been considered as “misconduct” – the punishment for which we all know is dismissal.
I have no further details – such as “when did this discussion take place”, “was at an informal meeting”, “which proof did they have”, “did the office require the Lawyer to testify” or anything else.
I understand the defense of the suspended member was aware of these rumors.
We shall be keeping a close eye on this. If anyone out there has access to internal affairs of Board 28, please consider getting in touch with us. Information lapses and secrecy currently achieve nothing but harm staff. This also harms the EPO as a whole by making redemption improbable. █
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