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05.09.19

Stephen Rowan: From UK-IPO to Operation Coverup of Team António Campinos

Posted in Deception, Europe, Law, Patents at 6:29 pm by Dr. Roy Schestowitz

Grand Theft EPO
“Abuse of Power, Abuse of Law, Suicides, Harrassment and much more…welcome to Grand Theft EPO VI (Battistelli (Psycho), Topić (Suspected Criminal), Ernst (Hypocrite), Kongstad (got fired), Minnoye (Crook), Bergot (Psycho II) and a good many others)”Anonymous

Summary: The Boards of Appeal are unable to stop the ride down the slippery slope of patent maximalism; the Office now congratulates itself for granting a lot of European Patents, including many that aren’t in compliance with the law

THE European Patent Office (EPO) in 2019 still suffers a nepotism epidemic, with former colleagues of António Campinos getting top jobs and even his former 'boss'. Illegal patents (against the EPC) are being granted, e.g. European software patents and the Office lobbies to accomplish the same in the US despite 35 U.S.C. § 101/Alice.

“In the meantime, the repository of European Patents — once the pride of the EPO — is rapidly being ‘polluted’ with patents that aren’t supposed to even exist.”What the heck is going on? We recently learned that it’s now approaching a boiling point and there may be protests/strikes on the way provided SUEPO (the staff union of the EPO) gives the “green light” or EPO staff organises some other way. Based on recent polls (from the EPO itself, even the management), EPO staff is still depressed and demoralised. Earlier today SUEPO noted their similarity to the suicides epidemic in France Telecom (by linking to several new reports on the subject) and as SUEPO noted in April (almost exactly a month ago), quality of work has collapsed (that’s also based on the data from the EPO itself).

What did the EPO do in light of these findings? Namely that about 75% of European Patents are granted in error? The usual. They’re trying to bury facts. The EPO itself has found that a quarter of the patents it grants are fake European Patents (we sometimes call them IPs, Invalid Patents), i.e. those not compatible with EPC and hence unlikely to have any worth in courts. Watch the typical managerial tricks from Stephen Rowan, as explained earlier today by an insider:

In the previous article, Märpel presented the results of the staff survey. One of the concerns of the staff is that with production increases, quality has decreased.

Apparently, our internal quality control (DQA) also noticed. Compliance decreased from 85% to 75% last year. Märpel is not so good at maths, but understands that a quarter of the searches and granted patents do not respect the EPC. Märpel is also not so sure, but believes that this figure puts the EPO behind all other major patent offices.

Management also noticed. They had to.

Common sense would have that management would lower production pressure, maybe set time aside for retraining, etc… This is pretty standard. But not, Stephen Rowan, Vice-President DG1 had a better idea: Collaborative Quality Improvements (CQI).

[...]

In summary, Examiners are supposed to spend more time discussing the files together. They are also supposed to write everything down in a logbook.

There is nothing really wrong with that, except that it is not really related to compliance with the EPC and that the whole exercise costs time. But what time budget do the examiners get? Exactly zero. What was Vice-President Stephen Rowan thinking?

Rowan’s own words, i.e. the management’s spin, are included in the above post.

Meanwhile, IPPro Magazine’s Ben Wodecki has posted this new article about a patent office that still grants patent monopolies on nature itself and life itself — that is, European Patents are given in clear defiance of the EPC. “No Patents on Seeds” speaks out again:

The No Patents on Seeds Group has called on politicians to “take responsibility and to change the law” regarding the patentability of conventionally bred animals and plants.

The group said politicians should make it “impossible to grant patents on conventionally bred plants and animals”.

Johanna Eckhardt of No Patents on Seeds warned that if politicians fail to set limits, then “new facts will be constantly created for patent attorneys, companies and the EPO to make even more profit with such patents”.

She added: “In the near future even food and drink may be patented as an invention.”

Such patent types are prohibited by rule 28(2) for the interpretation of the European Patent Convention (EPC). However, the European Patent Office has come under fire for granting what the groups claim are conventionally bred patents on plants and animals.

The most notable case covering such a patent, T1063/18, saw agrochemical company Syngenta appealing an EPO decision that saw its patent application for a pepper plant denied. The case caused protests outside the EPO’s office building in Munich.

In response, EPO president António Campinos wrote a referral to the Board of Appeals. [sic]

Who or what will stop this lunacy? Can the Board of Appeal, indirectly bossed by Campinos himself, put an end to the practice? We doubt it, but time will tell. In the meantime, the repository of European Patents — once the pride of the EPO — is rapidly being ‘polluted’ with patents that aren’t supposed to even exist. Imagine having a scholarly journal where ‘only’ 3/4 of published papers turn out not to be hoaxes. ‘Only’…

04.27.19

The ‘Technical Effect’ of Attacking the Independence of Judges at the Boards of Appeal and Ignoring/Breaking the Law

Posted in America, Europe, Law, Microsoft, Patents, RAND at 8:28 am by Dr. Roy Schestowitz

Technically Boards of Appeal are still controlled by the EPO’s President (whose positions they’re supposed to scrutinise and sometimes oppose)

António Campinos fair trial

Summary: Europe continues to be threatened by the lawless EPO, which is promoting software patents, FRAND patent trolls, UPC and even more toxic things; judges and the rule of law do not seem to matter anymore (they’re being intentionally discarded because they stand in the way of law firms’ profits and EPO revenue)

Lawlessness is alive and well — even thriving — at the European Patent Office (EPO). How can one expect António Campinos to respect and obey the law when he cannot even discipline/educate/convince his own son that laws are to be obeyed? He himself is showing blatant exhibition of gross nepotism within just months at the Office and likely violations of EU law since his EUIPO days where appointments appear to be sold. It’s all rigged. Laws don’t seem to matter to these people. Campinos ignores the law with more tact (or more smiles). He’s a storyteller. All he can do is lean on his father's name — a person who was apparently not likable except by those at the top. It’s a good decoy. Effective marketing.

“Campinos ignores the law with more tact (or more smiles).”This latest comment at IP Kat discusses how the EPO is still breaking the law or violating the EPC by punishing all judges with an exile to Haar (which is technically not Munich at all):

Yes, I understand that “Landkreis München” does not itself include the city of Munich. Perhaps my question was unclear. What I mean is: why can the meaning of the word “Munich” in the EPC not simply be interpreted to mean “a location which is EITHER in the city of Munich OR in Landkreis München”? i.e. that “Munich”, for the purposes of the EPC, means the combination of the city Munich *and* the Landkreis which shares its name? This way, it is possible to interpret “Munich” for the purposes of the EPC as being broader than the city itself, while still having a well-defined geographical scope.

To draw a comparison (which is, admittedly, imperfect): imagine that the EPC instead said “London”. A narrow interpretation might be that this should mean “the City of London”. A broader interpretation might be that this should mean “anywhere within the 32 London Boroughs” – but (like Landkreis München vis-a-vis the city of Munich) the London Boroughs do not include the City of London. The holistic view would, perhaps, instead be to take the view that “London” means “the City of London or any of the 32 London Boroughs”.

Curiously enough, on the same day Samuel Adams wrote about the EPO illegally attacking the independence of all judges by sending them to exile. To quote Kluwer Patent Blog, a site of patent maximalists:

Not too long ago we learned of a referral question from Technical Board of Appeal 3.5.03 regarding the legal basis for holding oral proceedings before the Boards of Appeal in Haar rather than in Munich.

While it does not directly relate to the legal question in the referral, a relevant consideration was recently published in CA/5/19, which relates to an additional lease for further staff, conference rooms and common areas for the EPO in Haar. The document notes that the building in Haar has been leased for a period of 15 years. In CA/82/16, the total budgetary impact of the lease in Haar, including building adaptation costs, was provided as EUR 40.7 million. The further costs laid out in CA/5/19 for an additional lease contract are EUR 4.8 million, for a total of EUR 45.5 million.

The above was filed under “Traveling Circus” (no kidding!), so we suppose that at this point even Kluwer Patent Blog perceives the EPO to be somewhat of a circus. What a tragedy.

Crossing over to IP Kat, which is still heavily occupied by Team UPC (sometimes more so than Kluwer Patent Blog), over the past few days we saw a lot of coverage there about Fordham IP (at least 7 parts so far). Bristows did many posts about it for IP Kat (Annsley Merelle Ward as the author); it’s an event that is typically funded by Microsoft (more so than anyone else) and Bristows flatters this sponsor, as we noted in past years.

Included in this event, as usual, is the software patents lobby (in which Microsoft plays a considerable role), soon to be promoted or amplified by patent extremists like Bristows or Managing IP, which wrote: “Former Federal Circuit chief judge Paul Michel “bet on both horses”, referring to possible fixes for Section 101 in court and in Congress, during a discussion yesterday at the Fordham IP Conference in New York…”

This is also mentioned in [1, 2] and it’s the typical choir of patent maximalists, the ‘usual suspects’ such as Iancu, Michel and sometimes a USPTO Director turned lobbyist, Mr. Kappos.

In her later parts Annsley Merelle Ward published FRAND advocacy by Richard Vary (Bird & Bird). Bristows has long lobbied for FRAND, usually in IP Kat, as Bristows profits from this agenda. As recently as yesterday, in an article by Amy Sandys of JUVE, we learn of “global licensing company” TQ Delta (euphemism for patent troll or PAE) seeking patent embargoes in the UK. Using patents granted by EPO and the FRAND agenda they try to block companies that actually make something (unlike TQ Delta) from doing business.

Speaking of Bird & Bird and Briwstows, the latest part in this series concerns software patents (covering algorithms) framed as “AI”. Here’s where the EPO stands on on this issue in spite of European law:

Katherine Stephens (Bird & Bird) then talked about the “patentability of artificial intelligence and machine learning”, specifically focusing on the recently updated EPO Guidelines for Examination. According to Katherine, the EPO’s new Guidelines are not a green light for patenting AI, but they are a first step in setting out the rules for a proper balancing exercise. An interesting issue raised in her presentation was whether inventive step and sufficiency thresholds can be expected to change with the rise of AI, assuming that the skilled person should be presumed to have access to AI systems. “Will inventive step be raised so high that nothing will be considered inventive in the eyes of the law, even if it was inventive or surprising to human?”

These are all bogus patents on algorithms, but nowadays the EPO just fakes ‘gains’ by granting patents courts would reject (if they were assessed there, i.e. if there was a lawsuit and a lengthy, expensive challenge to it). Team UPC (Bird & Bird, Bristows etc.) was hoping to effectively abolish or bypass such courts using the UPC, but it didn’t work. As FFII’s Benjamin Henrion put it yesterday in a press release: [via]

Today is World Intellectual Parasites Day, the day where patent trolls rejoice over sucking more blood out of software companies. Patent parasites rejoice over the creation of the european Unitary Patent Court (UPC), which will create an undemocratic monster fully captured by the parasite industry. Patent parasites are also pushing for a rewrite of the laws in the United States, in order to restore software patents, and continue to suck more blood out the software industry.

That’s a satirical slant on World Intellectual Property [sic] Day — a subject we’d rather not covered as we did so in prior years. The EPO kept promoting this propaganda many times yesterday, even retweeting the EUIPO in the process.

04.20.19

Largest Patent Offices Try to Leave Courts in a State of Disarray to Enable the Granting of Fake Patents in the US and Europe

Posted in America, Europe, Law, Patents at 4:00 am by Dr. Roy Schestowitz

Nonsensical patent offices that put the litigation ‘industry’ ahead of the real industry. They’re not representative of the public at all.

French EPO

Summary: Like a monarchy that effectively runs all branches of government the management of the EPO is trying to work around the judiciary; the same is increasingly happening (or at least attempted) in the United States

THE SUBJECT of software patents in Europe goes a long way back. I had written about it before this site even existed, before Brimelow ran the EPO and back in the days another French President (not Battistelli and Campinos) was in charge. He, unlike the latter two, was actually a scientist and one whom the staff generally respected. We wrote a lot about him over the years and showed staff generally respected him (not everyone but many).

The main issue today is that there’s no separation of powers; virtually none. Europe’s patent system became a monstrosity, only limited in part by a court system that is federated and untouched by the EPO’s (and EU’s) clout.

“EPO is also not following the rule of law,” as Benjamin Henrion put it a couple of days ago, and “it is an administration shielded by diplomatic immunity, and cannot be sued for maladministration. And the Commission is supporting this kind of institution for the Unitary Patent, while not even compatible with the treaties…”

“The main issue today is that there’s no separation of powers; virtually none.”The European Patent Office (and Organisation) is just some island inside Europe and it does whatever it pleases, irrespective of the interests and opinions of actual Europeans. Who benefits? Law firms. Not necessarily European ones, either.

Recently we’ve seen lots and lots of ‘articles’ (ads by law firms) about patents on maths, nature, and life. Here in Lexology one can see Bardehle Pagenberg’s Bastian Best continuing his promotion of illegal software patents (as he has done for a decade). Best wrote much more about it a fortnight ago. His employer is probably the loudest proponent of software patents (and has been for quite some time). They even tweeted this before the weekend: “Software patents: How are they examined at the @EPOorg? Here’s our patent attorney @bastianbest explaining the legal framework with simple examples.”

They just look for loopholes and then promote these.

“They just look for loopholes and then promote these.”Kilburn & Strode LLP’s Paul Briscoe and Kristina Cornish meanwhile drool over patents on nature and life — granted illegally or in defiance of the EPC. Kilburn & Strode has also just published this rather crude call to “File! File! File!” So say patent agents who profit from lots of fake patents that are actually worthless but lead to legal bills. File applications, file lawsuits etc. Lexology is full of this nonsense every single day and it says “[t]he clarion call comes from patent attorneys and inventors alike” even though what we have here is lawyers speaking ‘for’ inventors without naming any.

The EPO has meanwhile retweeted this French front group of patent law firms. This year, for the first time, the EPO has been calling for "MedTech" patents — an intentionally misleading term. The EPO pretends software patents are “life-saving” and “for SMEs”, soon to be parroted by this front group which said “Medtech CII event to raise awareness among SMEs…”

It has nothing to do with SMEs, but the EPO and patent maximalists are nowadays cooperating in their shameless propaganda.

We’re meanwhile seeing similar moves in the US. Haynes and Boone LLP’s Chad Hammerlind, for example, has chosen a nonsensical and misleading headline by which to twist the reality surrounding the Federal Circuit. 35 U.S.C. § 101 continues to be followed by courts (see our daily links for the latest examples) and patent maximalists are desperate to find new ways to bypass the courts, in essence pursuing patents they know to be invalid (as per the law).

“It has nothing to do with SMEs, but the EPO and patent maximalists are nowadays cooperating in their shameless propaganda.”Contrary to what these maximalists keep saying in recent days, none of that is changing. The US Congress isn’t bringing software patents back; some readers sent us headsups about it (for Techrights to cover). See the comments at the bottom of this post with a misleading headline from Kevin E. Noonan. These are just a handful of bribed politicians, the usual suspects (the same old ones), trying to push through software patents for their sponsors. They tried and failed. Trying again because it’s spring? There are several more articles like these, e.g. this from Ropes & Gray LLP’s Scott McKeown and several from Watchtroll. Eileen McDermott of Watchtroll says “Change May Be Coming: Members of Congress Release Framework to Fix Patent Eligibility Law,” but they have been saying it for years (around the same time). Each time it makes some headlines it only lasts a few days or weeks but nothing happens at the end; it never happens. It dies after summer recess every time. Each year. What we have here is just a handful of people with ties to the litigation industry who cannot quite tell US Congress what to do on software patents and Eileen McDermott is smart enough to know it. They have tried it for years and failed. As a journalist she should know this. She wrote: “Senators Thom Tillis (R-NC) and Chris Coons (D-DE)—respectively, Chair and Ranking Member of the Senate Judiciary Subcommittee on Intellectual Property—and Representatives Doug Collins (R-GA-9), Ranking Member of the House Judiciary Committee; Hank Johnson (D-GA-4), Chair of the House Judiciary…”

She later wrote another piece titled “Reactions Roll in On Congress’s Proposed 101 Framework: ‘The Right Approach’ or ‘A Swing and a Miss’?”

As if the U.S. Patent and Trademark Office (USPTO) sets the rules for Congress or some people who profit from patent maximalism get to decide on the law which governs them.

Surely McDermott can see what’s happening here, partly in light of comments such as: “As is evident from these comments, reasonable people can differ. Unfortunately the Supreme Court will have the last word (absent amending the Constitution, which won’t happen over a patent question). The Court is not final because it is infallible but rather it is infallible because it is final. And I don’t ever see getting a bunch of patent lawyers on the Court, which may be the only way to bring sanity to this area of the law.”

Dennis Crouch joins the ‘fun’. Yesterday he was trying hard (yet again) to promote this software patents’ alleged ‘revival’ in the US. All these patent maximalists never in their entire life wrote a single line of code. And here they are lending a voice to the politicians who suit their agenda (while demonising the rest). To quote Crouch:

Basics of the framework are to create a defined, closed list of subject matter category exclusions: Fundamental scientific principles; Products that exist solely and exclusively in nature; Pure mathematical formulas; Economic or commercial principles; Mental activities. Under the framework, a patent would not be eligible based upon “simply reciting generic technical language or generic functional language.” At the same time, the framework suggests that “practical applications” should be patent eligible. Finally, the framework calls for a divide-and-conquer approach — making clear “that eligibility is determined by considering each and every element of the claim as a whole and without regard to considerations properly addressed by 102, 103 and 112.”

Surely these patent maximalists’ ‘blogs’ know that it isn’t “new” or “news” at all. Days ago Crouch’s site linked to this article from Malathi Nayak dated March 26th, 2019. It says “Sens. Thom Tillis and Chris Coons have outlined four principles for new patent eligibility legislation in a message to technology and pharmaceutical company representatives and others in advance of a fourth closed-door meeting on their effort.”

“They have been doing this for years (especially Coons) and it never got anywhere.”Their latest press release is dated April 17th, 2019. It involved nontechnical politicians, funded by corporations, working as fronts for law firms. But they call it “bipartisan” (misdirection).

Suffice to say, the patent trolls’ lobby (IAM) participated in this push, but kept it behind paywall (out of critics’ sight). To quote the tweet: “At a well-attended meeting in Washington DC on Wednesday attempts to frame legislation for the reform of the Section 101 patent eligibility regime in the US ran into familiar problems.”

They have been doing this for years (especially Coons) and it never got anywhere. We’ve meanwhile noticed that Gene Quinn came back the other day, only to attack PTAB i.e. the usual. Attacking judges. Watchtroll’s specialty. That there’s a USPTO revolving doors problem isn’t surprising and it’s a shame that Watchtroll does not disclose who it works for, either. That would kind of give away the hypocrisy (“A Story of Ethics and Optics: Former PTAB Judge Matt Clements Now Works for Apple”).

Speaking of nepotism, Iancu has come under fire again.

“Things work a lot better at present than they did before; unless you’re a patent lawyer…”United for Patent Reform wrote: “EFF states that @USPTO’s eligibility guidance “effectively instructs examiners on how to narrow the #Alice v. CLS Bank decision instead of how to apply it correctly,” and calls it “contrary to law.” Read their full comments…”

The EFF has moved on since. In the latest “Stupid Patent of the Month” (titled “How Landmark Technology’s Terrible Patent Has Survived” and composed by Joe Mullin because Daniel Nazer left to join Mozilla) the EFF slams circus clown Iancu whom Donald Trump gave a job after his firm had worked for him. To quote Mullin:

There’s an increasing insistence from the highest echelons of the patent world that patent abuse just isn’t a thing anymore. The Director of the U.S. Patent Office, Andre Iancu, has called patent trolls—a term for companies that do nothing but collect patents and sue others—mere “monster stories,” and suggested in a recent oversight hearing that it was simply name-calling.

But whatever you call them—trolls, non-practicing entities, or patent assertion entities—their business model, which involves stockpiling patents to sue productive companies rather than making goods or services, continues to thrive. It’s not hard to find examples of abusive patent litigation that make clear the threat posed by wrongly-issued patents is very real.

Take, for instance, the patents that Lawrence Lockwood owns. These patents have been used to sue companies, large and small, for nearly 20 years now. Through his company Landmark Technologies and his earlier company PanIP, more than 100 lawsuits have been filed against businesses—candy companies, an educational toy maker, and an organic farm, to name a few. Because these companies engage in “sales and distribution via electronic transactions,” or use an automated system “for processing business and financial transactions,” Landmark says they infringe one of its patents.

Those lawsuits don’t account for the other companies that have received licensing demands, but have not been sued in court. The numerous threats made with Lockwood’s patents are made clear both by news accounts of Lockwood’s activity, as well as the several small business owners that have reached out to EFF after being targeted by Lockwood’s patents.

If the patent microcosm thinks that a handful of not-so-familiar politicians will miraculously change patent law, then the patent microcosm refused to learn from the past. Technical people will stand in their way and 2019 will be yet another year of failed ‘reform’ attempts. Things work a lot better at present than they did before; unless you’re a patent lawyer…

04.09.19

Who Does the Legal System Really Serve or Favour in European Patent Disputes?

Posted in Courtroom, Europe, Law, Patents at 2:05 am by Dr. Roy Schestowitz

People like myself are being denied access to the underlying facts

Florian on Ericsson
Image credit: Florian Müller

Summary: People who oppose software patents are being denied access to the courts, the media and so on; the EPO keeps getting away with serving patent trolls, e.g. those that are connected to large companies such as Ericsson (as above)

THE existence of software patents in Europe is a threat to all programmers. Why are they being granted? It’s illegal. The European Patent Office (EPO) has not had a scientist as President for over a decade now. António Campinos is a former banker, Battistelli is a politician and Brimelow is regarded or considered to be a public servant (vague term). This is a problem because it means that people with no clue are responsible for bad decisions, having perhaps been instructed by (or consulted) law firms, legal departments, and even patent trolls. They barely ever meet any scientists. It’s like they don’t care about the impact of patents on science and technology — an impact which is rather intricate.

“It’s like they don’t care about the impact of patents on science and technology — an impact which is rather intricate.”Yesterday, responding to this new post that said “IP [sic] has become ever more concentrated into the hands of capitalism’s high temple – the corporation,” Australian attorney Mark Summerfield said: “Not only is this true, it is possible to track the transition historically.”

He added the following, linking to his blog:

There is data on this in Australia, that I think may be unique globally. Last year I worked with IP Australia to generate data (using a machine learning system) going back over 100 years distinguishing between corporate and individual applicants. The results show a clear transition during the period between the first and second world wars, between dominance of individual applicants (i.e. the inventor as patentee) and corporate applicants (i.e. the employer as patentee).

I think that this data is fascinating, and I would love to see it linked to economic or sociological research. However, there does not seem to have been much interest in this to date.

An article presenting this data (with links to the source) can be found on my blog: https://blog.patentology.com.au/2018/05/new-data-released-by-ip-australia.html

This is a real problem. The patent system has been rigged.

Yesterday, for example, a famous patent blogger (Florian) wrote: “An Ericsson privateer named #OptisWireless opposed a petition I filed last year for access to a Federal Patent Court case file, arguing that I’m “a blogger known for positions critical of the #patent system.” Court ruled in favor of my petition: screenshot #privateering #patents” (screenshot at the top).

Ericsson keeps a bunch of these patent trolls around. We wrote about these before. I happen to know that Florian attempted to crack open some more ‘worm jars’ (secret or scarcely-explored patent disputes in his country) only to be fought by corporate lawyers and judges, who are terrified by people like us, the critics and sceptics. No transparency. Florian had sent me some legal documents to show reactions. It would be jaw-dropping it I didn’t already know that it is a system of powerful people; it’s a system that discriminates against ‘poor’ ‘activists’, unlike greedy and monopoly-centric corporations. The above just serves to show what we patent realists face in a court of law.

Speaking of Ericsson, watch how the patent trolls’ lobby (literally funded by trolls), a site called IAM, is publishing Ericsson propaganda (composed by Ericsson itself). They promote a large thicket of bogus patents, mostly software patents, wrapped up using buzzwords such as “IoT” (published Monday at 2PM). Ericsson tries to distance itself from the extortion, so it uses trolls in various parts of Europe to bully just about everyone, even Chinese companies. It’s a protection racket.

Where does the EPO stand on all this? Well, yesterday it promoted software patents again, using hype waves as usual. “Over 300 participants from around the world attended our conference on #patentingblockchain,” it said.

Benjamin Henrion looked at the cited document [PDF] and quoted “Klaus Haft, attorney-at-law at Hoyng Rokh Monegier, added that open source does not mean patent-free #blockchain #swpats …”

Software patents and “open source” (Free/libre software) can never coexist and they know it. IBM-centric and Microsoft-connected front groups lie to us about it.

Meanwhile, the EPO is also intentionally conflating inventions with patents. It does so every single day (almost) and yesterday it wrote: “This guide is intended to help you avoid many of the common mistakes associated with inventions” (they mean patents).

Words like “inventions” are commonly being misused by these people. Here is an example from yesterday (article titled “Pam Bryer: Scots have never lost the urge to invent”). The corporate media is really that awful* and it is not being composed by journalists.

The Scotsman is regularly used for patent propaganda (marketing/sales as “news”), usually from Marks & Clerk LLP. This includes software patents promotion and lawyers’ lies about UPC prospects. We covered that before and named The Scotsman as a culprit. Generally, this so-called ‘news’ paper may be good in other sections, but by posting such crap it does its reputation a great disservice. In this case, patent extremists smear Scotland to cause Scots to come to their employer, Marks & Clerk LLP, and ask for patents (thinking it’s the same as inventions). Just look at the insulting headline. It’s worth noting that only at the very end the disclosure comes: “Pam Bryer is a patent attorney for Marks & Clerk LLP” (so it is marketing and should be labeled as such).

Novagraaf’s Philippe Vigand has meanwhile written about the EPO getting another chance to eliminate software for good. “The EPO’s Enlarged Board of Appeal is to consider the patentability of computer-implemented inventions in the context of appeal T0489/14,” he wrote. Will he mention that the appeals board lacks independence and may therefore not be able to judge impartially? An issue that the judges themselves keep complaining about?
_____
* We’ve just noted the lack of coverage about EPO corruption. Due to an ‘economic’ nature of this greedy society and publication ‘industry’, a lot of so-called ‘news’ these days is just “tweets”, ads, computer-generated crap, self-promotional nonsense and intentional falsehoods/fabrications with agenda in mind. Really bad state of affairs. Honesty may be dead.

04.03.19

The Court of Appeals for the Federal Circuit (CAFC) ‘Disses’ Iancu’s Guidance on 35 U.S.C. § 101, Sides With the Supreme Court (Alice) and Caselaw

Posted in America, Law, Patents at 2:07 am by Dr. Roy Schestowitz

Andrei Iancu dissed
35 U.S.C. § 101/Alice (SCOTUS) as seen by CAFC is, as expected, a ‘scary monster story’ to Donald Trump's man

Summary: The high court that decides on patents (CAFC) has just let it be known that it won’t bother with Andrei Iancu’s little stunt whose sole purpose is to facilitate granting of more fake patents, such as software patents (by circumventing § 101)

THE U.S. Patent and Trademark Office (USPTO) under deplorable Andrei Iancu arrogantly chooses not to obey the Federal Circuit. Yes, it’s similar to Battistelli at the EPO, but that’s a separate matter (for our next post). Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) are besieged, but they carry on. Unified Patent has just announced the hiring of several more people, who certainly will deal with IPRs. IPRs are the law, they’re protected by SCOTUS, and are an integral part of AIA.

“Kalis and others in the patent extremists’ ‘community’ nowadays have a new strategy: claiming CAFC is ‘fed up’ with § 101.”What’s noteworthy is that, as Professor Lemley has just noted, ‘Fed Cir makes clear that PTO guidelines on patent eligibility don’t get any deference in court: “While we greatly respect the PTO’s expertise on all matters relating to patentability, including patent eligibility, we are not bound by its guidance.”‘

This is the source document [PDF] and the screenshot is included at the top.

This is especially worth noting because Janal Kalis, a vocal patent maximalist, has cherry-picked another bit to frame it differently. He’s trying to claim that CAFC is dissenting against 35 U.S.C. § 101, based on almost nothing (maybe a sentence from one judge). Kalis and others in the patent extremists’ ‘community’ nowadays have a new strategy: claiming CAFC is ‘fed up’ with § 101. This is hardly supported by any evidence, however, but rather an incident or two, maybe a few words in some text. Like Judge Moore’s statement last year (about intervention at another, unspecified level, as we covered at the time).

“They cherry-picked a decision or two.”What CAFC actually did say is rather damning; they tacitly note that Iancu is defying caselaw for the sake of software patents and patent trolls who use these for blackmail. We don’t expect Iancu’s stunt to really change anything; consider the fact that the vast majority comments the Office has received oppose his proposal. Meanwhile, Bill Abrams at Watchtroll says § 101 is wrong because he doesn’t like it (“Request for Amici: Tell the Supreme Court to Clarify Section 101″). There’s nothing to clarify, Alice already did just that. Mayo did too. But the patent microcosm is losing its mind and looking for reprieve. Another new Watchtroll blurb is not supported by evidence (“Recent Cases Show Federal Circuit Is Concerned About ‘Over Abstracting’ Rejections of Method/ Process Patents”). No, not really. They cherry-picked a decision or two. We still watch this stuff closely, we’ve put some recent case outcomes in our daily links, and what Watchtroll says isn’t supported by evidence. They cherry-pick what suits them. Speaking of cherry-pickers, in our last daily links we included a short rebuttal to Anticipat, which shifted attention from IPRs to mere patent applications so as to frame things misleadingly — the same thing Kalis does a lot. We’re not really supposed to be covering US patent cases this year, but this one was particularly worth noting and there was a lot to debunk.

04.02.19

EPO Judges Lack Independence and the Internal Courts Are Seen to be Lacking Legitimacy (Decisions’ Validity) Under António Campinos

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

UIMP event 2014

Summary: ‘Club Med’ is still intimidating judges at the EPO; this means that under the current management no sense of law, order and justice can ever be assured, only pretense thereof

THE European Patent Office (EPO) has a toxic legacy, a criminal legacy, or a “difficult legacy” as JUVE has just put it. It’s a legacy of corruption. Profound corruption. We haven’t even stopped covering the corruption associated with Topić, who left the Office a few months ago.

One reader asked us, “do you recognise this man?”

Several readers have told us about it. We will say more on him later. It’s Topić’s latest venture in Zagreb. There’s some criminal stuff going on (lawsuits and investigations), so maybe he just wants to come across as “professional”. Is this thug from the EPO trying to turn connections into “bizniz”?

One reader spoke of “any resemblance with” Topić, noting the above Web site. We’ll have more to say about it soon (many of the relevant articles are in east European languages). Topić snubbed and dodged courts for about a decade, refusing to even attend after he had been summoned. He misused EPO immunity and was a living example of the EPO’s attitude towards courts and judges.

“Collective punishment or simply a threat to all judges?”António Campinos may have sent Topić away, but he replaced him and others with former colleagues, including his boss. Authored by Mathieu Klos of JUVE Patent nearly a month ago and cited by SUEPO yesterday (very belatedly) is this report about Battistelli’s legacy of injustice. He did endless damage to the EPO’s integrity and reputation; Campinos repaired nothing at all and judgments from courts inside the EPO (Organisation) can no longer be trusted. Klos says that “the move” to Haar is viewed by judges “as a disciplinary action by Battistelli.”

Collective punishment or simply a threat to all judges? Here are some portions from the article:

In the summer of 2016, controversial former EPO president Benoît Battistelli, along with the organisation’s 38 member states, decided to largely separate the Boards of Appeal from the EPO. This was due to strong criticism from the European patent community that the court was no longer independent, or immune of influence, from the EPO president – important, given that the Boards of Appeal review decisions made at the EPO.

As a result, since 2016 the Boards of Appeal has been run by its own president, who exercises a high degree of self-administration

And at the end of 2017, as part of the new measures the court and its employees moved to Haar from the EPO main building in Munich. In many public commentaries, and in interviews with JUVE Patent, employees of the Boards of Appeal saw the move as a disciplinary action by Battistelli.

However, now the Enlarged Board of Appeal has the power to review this measure. Within the context of Articles 6 and 15 of the European Patent Convention, a new the question has arisen. Does Haar belong to Munich or not?

[...]

The case which has led to such far-reaching consequences is just one of many in IPCom’s patent processes, to force the mobile industry to take a licence on the NPE’s patents.

In 2008, for example, the NPE of Munich-based patent attorney Bernhard Frohwitter engaged Nokia in a large series of disputes. In the following years, IPCom also filed disputes against Deutsche Telekom and Vodafone, among others.

This decision, which concerns a notorious patent troll, may affect a lot of ongoing cases/referrals, as Klos points out in his article. Will that also include the big decisions on software patents (simulation) and patents covering plants, seeds and animals (life/nature)?

Rose Hughes has just published “BREAKING: President to refer the patentability of plants produced by essentially biological processes to the EBA”; well, it’s hardly “breaking” (almost 5 days old) and we wrote about it several times before.

Campinos, aided by the supine Council (formerly led by the person Campinos now bosses), is just looking for ways to dodge prior decisions and make it seem like a lawful process. This is the same EBA that his appointer, corrupt Battistelli, sent to exile in Haar. They know what Campinos wants them to say. They were previously reprimanded repeatedly by Battistelli and Kongstad (his “chinchilla), so what impartiality can be expected?

According to Article 112 EPC, the President of the EPO may refer a point of law to the EBA, in order to ensure uniform application of the law, or if a point of law of fundamental importance arises,”where two Boards of Appeal have given different decisions on that question”.

Unless this Kat has missed something, there have not been conflicting decision from the TBAs on the issue of the products produced by essentially biological processes since the issue was determined in G 2/12 (Broccoli/Tomato II). So on what grounds could the issue be referred by the President?

[...]

It is also noted that the EBA has form in finding referrals by the President as inadmissible in the absence of conflicting decisions from the Boards of Appeal (e.g. G 3/95). The case law therefore suggests that any referral by the President, citing legal developments such as statements from the European Commission, is unlikely to be accepted by the EBA. In fact, it seems highly probable that the EBA will consider the issue to have already been fully decided in G 2/12 (Broccoli/Tomato II).

None-the-less, the President’s proposal apparently “received broad and overwhelming support from almost all Contracting States”. The President’s thus plans to “proceed swiftly to submit the referral”.

The general consensus is that this is an outrage which reflects badly on the Council, too. To our surprise, even patent maximalists aren’t happy. Here’s CIPA on R27/28 Biotech (“CIPA Position Paper on the Patenting of Plants in Europe”) [PDF]. “CIPA’s position is that the above-mentioned conflict (between judicial interpretations of the EPC and Rule 28(2) EPC) should be solved in a lawful manner,” it concludes. Remember that CIPA is a loud proponent of UPC and it has done photo ops with corrupt Battistelli.

At the end of the day we remain stuck with a court that cannot do its job because of institutional corruption at the Office — corruption that has already spread to the Council as well. Are appeals independently ruled on? How about oppositions?

“A three-member panel of the European Patent Office’s (EPO) Opposition Division upheld patent EP 2,949,335,” The Pharma Letter wrote yesterday. To quote just the headline (it’s paywalled with free signup):

EPO upholds patent on Copaxone 40mg

Would there be potential consequences (to one’s job) in case of rejection? Those should be legitimate questions…

The EPC is no longer respected by the EPO. It’s not hard to see that. The Boards (appeal boards) have pointed this out for half a decade (since 2014 when Judge Corcoran, their colleague, came under attack). Yet Meissner Bolte’s Jasper Werhahn does not seem to fully understand that (EPO has already abandoned and abolished the EPC — its founding document).

EPO is a wholly and entirely rogue institution that robs Europe to enrich a few executives at the top.

We’ve sadly come to a point where neither the UPC nor the Boards can serve justice. One was supposed to substitute the other, but as things stand the EPO is superseding the law anyway. There’s no sense of justice or even mere order. We’ve meanwhile taken note of this new blurb from De Berti Jacchia Franchini Forlani Studio Legale’s Giulia Beneduci. “Unitary Patent Package” is not “implemented” as she claims because UPC is dead. It’s the same propaganda line Bristows used last month. Intentionally misleading framing that involves Italy…

What would work towards fixing the EPO? For a start, all management needs to be flushed down (too much nepotism up there at the top), the Boards need to be brought back to Munich, and their fear from this clannish EPO management obliterated for good. Otherwise, all we have is musical chairs, swapping positions on the deck of the Titanic.

03.26.19

Dimitris Xenos on Unconstitutional Supranational Arrangements for Patent Law: Leaving Out the Elected Legislators and the People’s Participatory Rights

Posted in Deception, Europe, Law, Patents at 4:08 am by Dr. Roy Schestowitz

By Dimitris Xenos, School of Law and Social Sciences, University of Suffolk, Ipswich, UK

Dimitris Xenos paper on the European patent system

Summary: A new paper from a British scholar proves to be timely because of the EPO’s violations of the European Patent Convention (EPC) and failed push to force-feed Europe with the unconstitutional Unified Patent Court (UPC)

THE European Patent Office (EPO) has long granted patents in defiance of the EPC and Parliament? Who’s to stop it? It’s structurally above the law, as it has even demonstrated in the highest Dutch court. Who can compel António Campinos to stop granting software patents in Europe? The Parliament/Commission asked for that to stop and it also asked for patents on life/nature to no longer be granted. Did the EPO listen? No, it only pretended to. To keep up appearances.

“The Parliament/Commission asked for that to stop and it also asked for patents on life/nature to no longer be granted. Did the EPO listen? No, it only pretended to. To keep up appearances.”Well, a new paper has just been published [1, 2] to deal with some profound questions. Its author, writing in Twitter this week, spoke of ‘unitary’ patents among other things. It’s “a constitutional examination of the European patent system as well as of unitary patent,” he summarised. Remember that the UPC has already been ruled unconstitutional in the Hungarian court. For Germany this ruling is an ongoing affair. No other country even checked! They didn’t bother checking the constitutional status of what they’re ratifying.

We worry greatly that the EPO is a ‘monster’ out of control. It just grants patents on everything conceivable with the goal of increasing revenue, as we’ve just noted. When the public fights back, e.g. protests in Germany, the EPO invokes its magical “supranational” status. Notice how, as recently as yesterday, press in Munich (IPPro Magazine) referred to “No Patents on Seed” as a “pressure group” (the headline is “Pressure group calls for ending to EPO plant patent ‘legal chaos’”). They keep referring to public interests as “pressure group” and did it several times in recent weeks. We saw that in IPPro Magazine and another site that used similar language. From the article:

Pressure group No Patents on Seed’s report covering conventionally bred patents granted by the European Patent Office (EPO) called for an end to “the legal chaos”.

The report details the plant patents granted by the EPO in 2018 and at the beginning of this year. It called for an end to “further monopolisation of resources for producing our daily food” and “the legal chaos at the EPO”.

No Patents on Seeds’ report also stressed the need for patents granted on processes of genetic engineering to have their scope confined to the specific technical processes.

Patents that cover the process of conventional breeding, as well as on plants an animals derived are prohibited by rule 28(2) for the interpretation of the European Patent Convention (EPC).

According to the report’s findings, around 60 new patent applications covering conventionally bred plants were filed, but none were granted to companies Bayer, Syngenta, or DowDuPont, who have allegedly broken rule 28(2) of the EPC with plant-related patents at the EPO on previous occasions.

No Patents on Seeds alleges that the EPO “was afraid of further public protests against these patents and therefore refrained from granting them”.

The group’s report stressed that EPO president António Campinos “needs to stop ongoing proceedings to ensure that no further such patents are granted”.

Didn’t the European authorities (let alone the EPC) make themselves clear enough? Does Campinos intend to keep pretending he’s above the law and the Office can just do as it pleases? And then it wants to also assert control over the court system, EU-wide (UPC)? Amazing. Dictatorial.

03.19.19

Where the USPTO Stands on the Subject of Abstract Software Patents

Posted in America, Courtroom, Law, Patents at 12:38 pm by Dr. Roy Schestowitz

The Office hands out fool’s gold

Some gold

Summary: Not much is changing as we approach Easter and software patents are still fool’s gold in the United States, no matter if they get granted or not

THIS is a very quick update regarding the U.S. Patent and Trademark Office (USPTO). The gist of it all? Well, nothing is changing, certainly not at the courts. We have been watching closely all sorts of case outcomes; all have them bar few have reached the predictable kind of outcome.

Watch out as patent maximalists aren’t telling the whole story. They habitually ignore or hide everything which doesn’t fit their agenda.

Robert Schaffer and Joseph Robinson over at Watchtroll have nitpicked or cherry-picked a Federal Circuit (CAFC) case regarding the patent troll PersonalWeb ‘Technologies’ because it is a rarity; it is a high court’s reversal after a Patent Trial and Appeal Board (PTAB) after a successful inter partes review (IPR). We also noticed (yesterday) that patent maximalists hope to compel SCOTUS to reconsider a case that resembles Alice (basis of 35 U.S.C. § 101) while cherry-picking a CAFC case similar to Mayo. We said we’d not cover pertinent American patent cases, so for the time being we’re just observing and adding those to our daily links. It is very much possible if not highly likely that nothing at all will change; the US government was simply asked to comment about a pending appeal and there’s no guarantee SCOTUS will go ahead; even if it does, this might simply serve to double down on Alice, even further strengthening the precedent.

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