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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.

03.12.19

Watchtroll Has Redefined “Trolls” to Mean Those Who Oppose Software Patents (and Oppose Trolls), Not Those Who Leverage These for Blackmail Alone

Posted in America, Deception, EFF, Law, Patents at 8:17 am by Dr. Roy Schestowitz

“EFF Trolls the Patent Office with ‘Save Alice Campaign’” (image below)

EFF Trolls the Patent Office with ‘Save Alice Campaign’

Summary: The controversial change to 35 U.S.C. § 101 guidance is being opposed by the public (US citizens who oppose American software patents), so patent maximalists like Janal Kalis (“PatentBuddy”) and extremists like Gene Quinn (Watchtroll) want us to believe that the public is just “EFF” and cannot think for itself

AT THE end of last year we promised ourselves not to feed the (Watch)trolls, but here they go again, not with the typical attacks on judges; rather, this time around they’re claiming that all these comments, personally submitted to the U.S. Patent and Trademark Office (USPTO) from people against software patents, are just “EFF” (they’re not) just because EFF issued a call for participation in a blog post (as did Watchtroll and others). It’s about the § 101 guidance water-down attempts by Iancu.

Gene Quinn wants us to think that because the EFF told people who oppose software patents and patent trolls to write to the USPTO it therefore means that any comment submitted to that effect came from EFF. Janal Kalis insinuated so explicitly and Watchtroll says it’s a form of “trolling” even if he himself does it all the time (so does Dennis Crouch, who urges people to push/nudge SCOTUS in trolls’ direction).

“To put it in plain terms, USPTO officials asked for input; patent maximalists told people to send such input and so did the EFF. But the patent maximalists now call the EFF a “troll” for doing so (as if it is harassing the USPTO).”Does the blog post from the EFF make them “Trolls”? Really? So opposing software patents is “Trolling”? That’s inverting the meaning of the term and never mind if the USPTO itself asked for such input and advertised the address to write to…

To put it in plain terms, USPTO officials asked for input; patent maximalists told people to send such input and so did the EFF. But the patent maximalists now call the EFF a “troll” for doing so (as if it is harassing the USPTO). Hypocrisy much? What gives? In relation to Janal Kalis (very vocal patent maximalist) we pointed this out as recently as yesterday, comparing it to the conspiracy theories about Google.

“It’s looking really grim for software patents in US courts.”From what we could gather, based on the tweet from Kalis, almost all the comments were against § 101 changes and in favour of Alice. Software patents are widely being opposed. It’s easy to see why Watchtroll is upset and why Quinn took another job, stepping down from “editor” position after two full decades.

There’s a better post titled “As USPTO Oversight Hearing Approaches, Some Questions On Eligibility” and it’s indirectly related to the above. Josh L. (CCIA) said this about the new § 101 guidance yesterday evening:

The new § 101 guidance makes two major changes to examination for subject matter eligibility. First, it requires examiners to classify abstract ideas into one of three categories: mental processes, mathematical formulas, and methods of organizing human activity. Claims directed to an abstract idea not in one of these categories are to be allowed. Second, it bars examiners from considering whether a given claim is directed only to an abstract idea plus routine and conventional technology if the claim is “integrated into a particular application.” If a claim is integrated, but using conventional technology, the guidance would require an examiner to allow the claim. Both changes represent departures from previous examination practice and both appear to present the potential for conflict with case law. CCIA has commented on these disparities, and suggested that the USPTO clarify the guidance to ensure that it helps examiners comply with case law. However, there’s no guarantee the USPTO will make any such changes—for example, the USPTO recently declined to make any changes in response to public comments on the 2018-2022 Strategic Plan.

Given the possibility that the guidance will remain unchanged, it’s important to consider how it might have been applied to patents that we know have been invalidated under § 101 in a district court. A recent set of arguments in Delaware provides a set of three patents of just that type.

In the US, more so in 2018 and in 2019, a lot of patents are now presumed invalid and the damage cannot be undone for decades to come (expiry takes 2 decades). Later today in our daily links we’ll include articles about new court decisions/case outcomes to that effect. It’s looking really grim for software patents in US courts.

03.11.19

US Patent Law Currently Not Changing Much and Software Patents Are Still in Limbo

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

The debate has been ending and it was won by opponents of software patents

Iancu comments
Unable to attract comments itself, Watchtroll urges readers to send comments in support of Iancu’s watering down of 35 U.S.C. § 101/Alice

Summary: Surveying the news, as we still meticulously do (even if we don’t write about it), it seems clear that American courts hardly tolerate software patents and proponents of such patents are losing their voice (or morale)

LAST year we wrote about a dozen articles every weekend only about the US. We responded to worries we had developed, seeing that decisions such as Oil States were in the “big” dockets, threatening to imperil if not halt inter partes reviews (IPRs) — a process akin to oppositions or appeals at the EPO.

“General impressions count and based on a few hundreds of news reports from the past week or fortnight there’s absolutely nothing that counts as a “turnaround” or a “comeback”.”No matter what Iancu does, as expected, at the USPTO, e.g. messing around with 35 U.S.C. § 101 and weakening the Patent Trial and Appeal Board (PTAB), the thing that matters most is that SCOTUS isn’t revisiting Alice-like cases and the Federal Circuit continues to apply Alice-based tests. This morning we took a glimpse at new outcomes that cite Alice, even at the Federal Circuit, deeming the underlying (in-suit) patents invalid.

We generally prefer not to spend time covering US patent cases (especially not pertinent outcomes) as that can be laborious and boring to most readers anyway. General impressions count and based on a few hundreds of news reports from the past week or fortnight there’s absolutely nothing that counts as a “turnaround” or a "comeback". Nothing.

We were actually amused to see that, facing a barrage of comments to the USPTO which oppose changes to § 101 guidance, patent maximalists decided that all of these comments are just “EFF” (similar to claiming that everything that opposes patent trolls is "Google").

As always, some examples or news to that effect can be found in our daily links (we shelve relevant articles and blog posts under the bottom sections while monitoring the situation).

03.08.19

Immunity Stripped by the Supreme Court of the United States, Opening the Possibility of Ending Immunity of the EPO As Well

Posted in Europe, Fraud, Law, Patents at 5:57 am by Dr. Roy Schestowitz

The World Bank, which spends a lot of money on itself (photos below), is not above the law anymore; will the European Patent Office (EPO) also lose its immunity?

World Bank Inside

World Bank Inside

World Bank Inside

Summary: There are signs that the concept of institutional and diplomatic immunity can no longer be justified, not even by the world’s most powerful court (SCOTUS)

T

HE United States’ Patent and Trademark Office (USPTO) is a sort of government body/extension, unlike the supranational European Patent Office (EPO). The USPTO is routinely being sued; and yes, it’s definitely allowed. Just see all the cases in the dockets against Kappos, against Lee, and against Iancu. That is actually a positive thing, not just for lawyers. It means there’s a recourse or access to justice.

“A lot of people do not know or simply do not remember this, but the son of the EPO’s current President attempted to ‘borrow’ his father’s immunity.”The EPO has become a den of corruption. We’ve written nearly 3,000 articles and posts about it. We have published a lot of documents, including leaked ones. Will the EPO ever be held accountable? A lot of people do not know or simply do not remember this, but the son of the EPO’s current President attempted to 'borrow' his father's immunity. What an offensive thing to be doing after crashing a car, putting other people’s lives at great risk. Perhaps he, like his father, thinks that the law doesn’t apply to him. He thinks he can commit serious crimes with impunity.

The EPO, even in 2019, continues to act as though the law does not exist or the law can be made up by the EPO (and routinely violated thereafter by the management, as its own rules it is magically exempted from). Even incidents of fraud are being tolerated as long as it’s EPO management benefiting from the fraud.

A few days ago some EPO insiders floated or passed around this new report:

World Bank’s Legal Immunity Stripped, Opening Door for Lawsuits

The Supreme Court of the United States has rejected World Bank claims of complete legal immunity, ruling that one of its arms can be sued in relation to lending activities.

The 7-1 ruling could also open other American-based international organizations to the threat of lawsuits over financing overseas development.

For the World Bank, it means that it now faces having to defend against a suit by members of a fishing community in Mundra, India, who contend that their homes and livelihoods were damaged by pollution from a coal power plant that was financed by the bank’s private sector lending arm, the Washington, D.C.-based International Finance Corporation.

[...]

Lawyers for EarthRights International, which represents the plaintiffs, say that the World Bank must be accountable if its actions or its negligence harms local populations. The fishing community’s case against the bank will now be allowed to proceed in lower courts in the U.S.

“Immunity from all legal accountability does not further the development goals of international organizations,” said Marco Simon, the General Counsel for EarthRights. “It simply leads them to be careless, which is what happened here.”

Might the Dutch Supreme Court follow? Will any of the courts in Europe quit pretending that the EPO deserves its above-the-law status? Surely it should have lost such a privilege when it routinely broke the law.

This recent comment (19th of February, 2019) from “Anonymous Old examiner” reminds us of Questel [1, 2] in relation to last week’s (last Friday) shutdown of eDossier [1, 2, 3]. “This has happened before,” s/he said. “The office had a project called ELFOS, which was quite similar to the eDossier. It never worked and was scrapped in 1995 and replaced by a more primitive clunky system called Phoenix. We still use that one. ELFOS was a pet project of Jacques Michel, a French national who was then VP of The Hague. Jacques Michel came crom Questel, a French consulting firm in IT. It was reported that Questel was involved in the ELFOS project.”

We’ve already mentioned Questel in relation to French nepotism. How much of the EPO’s funds get ‘laundered’ in this fashion? When will someone — anyone — be held accountable?

03.05.19

The EPO Technical/Enlarged Board of Appeal Would, Potentially (If It Enjoyed Actual Independence), Serve a ‘European Alice’ and Eliminate All/Most Software Patents in Europe

Posted in Courtroom, Europe, Law, Patents at 10:46 am by Dr. Roy Schestowitz

Original/full (see the part about AMBA below): English [PDF] | German [PDF]

Boards of Appeal concern

Summary: For over half a decade the judges at the EPO have lacked the independence they need to appropriately govern patent scope; this is a very serious issue because it means that EPO corruption might in fact be the principal barrier in the face of software patents’ abolition

SEEING that the United States now deals (at the highest level) with copyright cases and no patent scope cases (fee shifting does not interest us much, but that can definitely imperil patent trolls), we will press on with our ever-increasing focus on the European Patent Office (EPO). It seems safe to say that nothing is going to change the status quo when it comes to software patents in the US, at least for the time being. Rather than delve into inter partes reviews (IPRs) and Federal Circuit cases (a few mentioned in our daily links this morning; US patent news has been relegated to this), patent maximalists obsess over Patent Trial and Appeal Board (PTAB) interactions with examiners regarding mere applications. Focus on what they distract from, not what they distract with. As always. Lies by omission are in law firms’ toolbox of the ‘trade’.

In Europe, unlike the US, software patents are still a major issue. The EPO advertises these every day, at the very least in Twitter (sometimes elsewhere, too). Florian Müller, who had campaigned against such patents a decade and a half ago in Europe, recently told me that he found these EPO tweets disturbing.

“In Europe, unlike the US, software patents are still a major issue. The EPO advertises these every day, at the very least in Twitter (sometimes elsewhere, too).”Team UPC and boosters of software patents in Europe (like Janal Kalis in another continent) took note of what could, in theory, become somewhat of a European Alice (35 U.S.C. § 101/SCOTUS), at least at the EPO level (not European courts, which António Campinos lacks control over). It would be very tricky for Campinos to simply ignore BoA, let alone smack some more judges in acts of overt retribution.

This is what “Patently German” (calling himself after patents) wrote a few days ago about the ‘simulation’ patent (actually a computer program):

The outcome of the referral has in my view implications far beyond simulation programs, for example also to inventions based on machine learning (ML). If you replace in the referral questions “simulation” by “machine learning process”, the same issues arise.

There can be no doubt: If the first two questions of the referral are not answered in the affirmative by the EBA, applicants of various types of computer-implemented inventions in Europe will be in trouble.

So even the software patents zealots acknowledge the importance of this referral, warning that a particular outcome could and would sweep away “various types of computer-implemented inventions [i.e. software patents] in Europe…”

“So even the software patents zealots acknowledge the importance of this referral…”I’ve come across only a few more posts/articles like the above. Certainly there are more on the way because of the possible ramifications. Coverage will, without a shadow of a doubt, be dominated by the patent microcosm. We wrote about it twice before [1, 2] (citing only the patent microcosm), noting in particular the judges’ lack of independence since the start of the term of Campinos. Even the judges admit this and bemoan this. Can they rule in defiance of patent maximalists without putting at jeopardy their job (or extension of tenure)? No, not as things stand. As “EPO Observer” put it a short while ago in this comment: “Haar has been chosen on purpose to remind the board members that they would pay the consequences of unwelcome decisions. So I expect the reminder to work and the members of the Enlarged Board to take the right (for the management decision) , confirming the lawfulness of the relocation to Haar.” Remember what happened to Judge Corcoran (hospitalisation). There are some more new comments of interest there. It’s all about the lack of the Boards’ independence and SUEPO linked to this earlier this week. The EPO has long been a dictaorship and one that violates its own rules.

The above speaks of the Enlarged Board of Appeal, but the same applies to the Technical Board of Appeal.

“If only European people were as active in their opposition to abstract patents as they are in opposition to the copyright ‘reform’ in the EU…”European software patents need to be buried once and for all, not just in the US but in Europe, too. If legal certainty associated with such patents gets obliterated (like in the post-Alice US), there will be no more lawsuits — or far fewer lawsuits — not to mention fewer such applications. Nobody really wants or needs patents that are duds. Even as ‘trophies’, these can be very expensive to earn and maintain. They’re hard to sell, too.

We certainly hope that the situation w.r.t. software patents in Europe might change some time soon. The sad thing is, programming gurus and habitual programmers don’t seem bothered enough to protest, let alone speak out. If only European people were as active in their opposition to abstract patents as they are in opposition to the copyright ‘reform’ in the EU — a subject Florian Müller has been covering a lot lately (with much impact)…

03.01.19

Lesson From the United States: Overly Permissive Patent Policy (Maximalism) Can Drive Technology Companies Away

Posted in America, Europe, Law, Patents at 12:44 am by Dr. Roy Schestowitz

Rodney Gilstrap wanted to attract plaintiffs to his town; instead he drove actual companies away

Rodney Gilstrap

Summary: Technological ‘wastelands’, or places where science and technology firms choose not to have business (shops/operations/staff/services/hosting), are the main legacy of a lawyers-centric patent policy; EPO must pay careful attention or drive away innovation

On the heels of our previous post about software patents promotion under António Campinos at European Patent Office (EPO) let’s look very briefly at what happens in the U.S. Patent and Trademark Office (USPTO).

“Making a country/state/superstate (like EU) friendly to patent trolls and abstract patents simply means that real businesses will go away (or choose not to come); they might be replaced by parasites such as trolls and the arrival of parasitic lawyers who represent the trolls. “The CCIA‘s Josh Landau has just written this post about Apple’s Texas exodus; we wrote about it twice recently (the past few days), on both occasions highlighting the danger this poses to Europe. It is a cautionary tale. Making a country/state/superstate (like EU) friendly to patent trolls and abstract patents simply means that real businesses will go away (or choose not to come); they might be replaced by parasites such as trolls and the arrival of parasitic lawyers who represent the trolls.

In Landau’s own words:

Last week, it was widely reported that Apple plans to close its retail stores in the Eastern District of Texas in order to avoid facing patent lawsuits in the district. Given that a single patent lawsuit can easily cost just as much as opening an Apple store (estimated at $8-10 million per store), even if Apple wins the lawsuit, it probably wasn’t a difficult financial decision for Apple: move the stores out of the district and avoid being subject to litigation in a notoriously patent-owner friendly jurisdiction.

But it’s one thing for Apple to close a couple stores in Dallas suburbs. Apple has the financial resources to absorb that cost and the national presence to be able to forgo a store in the Eastern District.

What about a local store located in the Eastern District? (As I covered last week, small business are already frequently targeted by non-practicing entities.) Or a tech startup in Austin, located in the Western District of Texas—a venue already being touted as the next Eastern District?

Yet another reason for Apple to abandon East Texas (as it does), as per this report from earlier this week (with emphasis added):

According to the firms, they were discussing licensing the patents to Apple with the company as recently as January 2017. However, no agreement was formally reached. Optis does not appear to have developed the technology itself. Instead, it purchased many of the patents from companies including Ericsson, Samsung, and LG.

The patent lawsuit was filed against Apple in East Texas. The claimants are requesting a jury trial. A previous case involving the same court and many of the same LTE patents fined Huawei $10.6 million in damages.

East Texas as usual. And this latest “Dallas Invents” post is a symptom of the problem; they mistake patents for inventions. It’s a litigation pipeline and a deterrence.

“They just know that software patents have no legitimacy, so they wrap these up in different paper (“AI”).”Europe ought to get wise and reject this American/Texan policy, seeing it has led to nothing but trouble. After TC Heartland (
SCOTUS) and 35 U.S.C. § 101/Alice a lot of this newly-formed 'litigation' industry is also collapsing, leaving the country and the state with little of anything. 2018 was a really hard time for patent zealots (unlike minimalists) as a lot of patents got invalidated and lawsuits went nowhere. Litigation rates have collapsed. Janal Kalis, a patent maximalist, is still (this week) obsessing over patent applications (not even patents!) because rarely does the Federal Circuit overrule/overturn the Patent Trial and Appeal Board (PTAB). Watchtroll is meanwhile promoting software patents under the cynical guise of “AI” in “Japan Patent Office Case Examples on Artificial Intelligence Offer Guidance for Other Offices on Treating AI Inventions” (link omitted by intention). They just know that software patents have no legitimacy, so they wrap these up in different paper (“AI”).

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