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03.04.19

Today’s Open Invention Network is Run by Former Patent Trolls, Connected to and Backed by Microsoft

Posted in GNU/Linux, Microsoft, OIN, Patents at 1:53 am by Dr. Roy Schestowitz

It is even disclosed upfront

Jaime Siegel

Summary: Turns out that the Open Invention Network (OIN) is nowadays about “Linux” as much (or as little) as the "Linux Foundation" is; it’s all about money and power

IT IS no secret that OIN has origins in a patent bully, IBM, which also gave it its first CEO. It is also no secret that OIN does not oppose software patents. We wrote about it some months ago. It is not, however, noticed by many that the current CEO (Tim Geithner’s tennis partner) used to work in roles that resemble those OIN is supposed to shield against. As Wikipedia notes, “Bergelt was then brought into Motorola Corporation in Schaumburg, IL to establish and serve as General Manager of its Strategic Intellectual Asset Management business unit focused on distilling value from Motorola’s intellectual property. In addition, he served as Director of Technology Strategy during his tenure at Motorola.

“Following his experience at Motorola and coincident with the departure of Bob Galvin from the Motorola Board of Directors, he was recruited by Kelso & Company, the New York-based private equity firm, to manage IP strategy, business development and licensing for its IP-based portfolio company – Cambridge Display Technology (CDT) – in Cambridge, England.

“So the OIN’s main licensing person is a former patent troll basically.”“After establishing the strategy and licensing program at CDT for Kelso, Bergelt was then engaged by Texas Pacific Group (TPG) as a full-time advisor to its Technology Investment Group, until he was recruited by Principal Financial Group to establish and run the first-of-its-kind IP Fund and financial services advisory firm, focused on transforming IP into a viable source of collateral and a fourth lending vertical to complement asset-based lending backed by property/plant/equipment, accounts receivable and inventory.

“During his tenure as the CEO of Paradox Capital, Bergelt worked with professionals from banking and IP law to raise over $350MM in capital that enabled Paradox to pioneer the emergence of IP as a viable asset class in asset-based lending and, in so doing, obviate the necessity for second lien lending into IP-rich companies.”

It was only then that he was recruited by OIN, after he had done some of the very things OIN was supposed to be against. But it gets worse. Having checked who they have added since, I can’t help seeing an MPEG-LA* veteran acting as “Global Director of Licensing”. He also worked for a Microsoft-connected, anti-Linux troll called Acacia. So the OIN’s main licensing person is a former patent troll basically. Wonderful! An OIN so debased that even Microsoft can join it.
____
* MPEG-LA is legally and technically a patent troll (also its CEO), which is working closely with Microsoft and is nowadays using software patents (even in Europe last month) to blackmail companies that ship GNU/Linux/Android.

01.15.19

IBM, Which Will Soon be Buying Red Hat, is Promoting Software Patents in Europe

Posted in Europe, IBM, OIN, Patents, Red Hat at 1:33 pm by Dr. Roy Schestowitz

Red Hat puke

Summary: Even days apart/within confirmation of IBM’s takeover of Red Hat IBM makes it clear that it’s very strongly in favour of software patents, not only in the US but also in Europe

IT HAS been bad enough that US courts got targeted by IBM, which actively lobbies to water down 35 U.S.C. § 101 and the impact of Alice (SCOTUS). We wrote many articles about it. The U.S. Patent and Trademark Office (USPTO) uses the word “customer” to refer to companies like IBM — the same thing the Battistelli-appointed António Campinos does.

They totally distort what patent offices are and what they exist for.

“IBM is using OIN to stonewall opponents of software patents and pretend that Free software developers can and should coexist with them.”As we last noted earlier this week, at the European Patent Office (EPO) patent quality is nowadays just “speed of granting”. It’s just a patent-granting machine. Examination is being narrowed. Calling the speed of granting “quality” is like judging the quality of fine dining in some restaurants by how quickly the food gets served (by that yardstick, junk food or deep-fried “fast food” is of the best “quality”).

Ever since Campinos came to the EPO they’ve been calling algorithms “AI” every day; it’s how they promote software patents in Europe.

We have meanwhile noticed that UPC and software patents boosters speak to IBM. They’re constructing their typical kind of propaganda — lobbying with puff pieces that neglect opposition (not even hiding the agenda and it’s clear who’s sponsoring it). Once again, under the guise of ‘harmonisation’ (the word UPC fanatics like to throw around) and using words like “clarity” (the same thing they say in relation to the US), Patrick Wingrove of Managing Intellectual Property pushes this piece. Watch how IBM promotes abstract patents under the guise of “AI”; Even in Europe, in violation of the EPC…

Lawyers from IBM and other artificial intelligence-focused businesses have welcomed the EPO’s new guidelines, but say kinks in the examination approach to the technology in Europe and elsewhere need to be ironed out and then harmonised

[...]

Shaw at IBM says her company would welcome clarification of AI patenting laws to eliminate ambiguity, such as those associated with patentable subject matter and inventorship.

“It’s always helpful in any guidance issued by patent offices to include a range of pointers and examples, such as the useful output from the EPO and JPO,” she says. “That is especially true in some areas where case law within AI has not yet built up.

IBM needs to quit doing this. Red Hat is being sold to an enemy of Free software if it carries on pushing in this direction. Someone wrote yesterday (linking to our coverage about Finjan): “In the security space, it did them [IBM] well in the sense of selling patents to outright troll Finjan, which in turn used them to lift $12M out of FireEye’s pockets.”

IBM is using OIN to stonewall opponents of software patents and pretend that Free software developers can and should coexist with them. We suppose that this is the future of Red Hat as well.

12.19.18

Software Patents Are Very Weak in the United States

Posted in America, OIN, Patents at 9:14 pm by Dr. Roy Schestowitz

Undoing decades of profoundly misguided policy

Summary: The U.S. Patent and Trademark Office (USPTO) continues along the same path — an encouraging path wherein Section 101 is generally accepted, albeit not by the Director, and the Patent Trial and Appeal Board (PTAB) typically approves/affirms Section 101 rejections; failing that, the courts do the job

THE Open Invention Network (OIN), which has just been described as a “patent protection group”, is perhaps just that. It’s protecting software patents from people like us. Our stance on OIN changed some years back because of Alice, which OIN fails to exploit and IBM actively fights against. IBM is still the most influential player in OIN and it’s not interested in the end of software patents; quite the contrary in fact.

Here are Steven J. Vaughan-Nichols’ views on the latest additions or the latest news from OIN, namely or notably Alibaba. He even uses propaganda terms like ‘IP’ — a term which no doubt this publisher is happy to promote. To quote the opening paragraph:

The American and Chinese trade war is near to boiling. The American attempt to extradite Huawei CFO Meng Wanzhou has failed; China might be behind the Marriott data breach; and China might’ve caused a massive internet disruption. But one perpetual sore point between the US and China — intellectual property (IP) abuse — is taking a step for the better. Alibaba and its affiliate Ant Financial are joining the Open Invention Network (OIN), the pro-open source and Linux patent-protection group.

This adoption of cross-licensing-type attitudes rather than abolishing software patents (i.e. not PTAB-like methods) or eliminating them one by one at PTAB isn’t a good sign. Why not work towards elimination? It shouldn’t be so hard anymore.

Janal Kalis keeps looking for the relatively rare cases where PTAB reverses a decision to grant or reverses a rejection; there’s an effort to demonstrate a disparity and a sort of ‘controversy’, then alleging that the underlying assessment, usually based on Section 101, is problematic. Some days ago he found out that “PTAB [had] Reversed an Examiner’s [Section] 101 Rejection of Claims for a Navigation System in a Patent Application Owned [sic] by Honeywell: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2018000027-11-27-2018-1 …”

So a monopoly got assigned as those above the examiner considered it valid based on Section 101. What would courts say? It’s not likely to ever get that far.

It is rather pathetic that Anticipat, an overzealous opponent of PTAB (no longer so vocal either, so one wonders if it’s a failed/failing business), now resorts to nitpicking — namely selecting one of those relatively rare reversals of an examiner’s decision — to make it sound like an encouraging development which merits “hope” (for patent maximalists). These people generally understand that software patents and business method patents are a waste of time and money, especially in courts. To quote:

There has been much energy focused on the flawed nature of the current Alice/Mayo framework for evaluating patent-eligibility. Even the well-intentioned [sic] desires of USPTO director Andrei Iancu’s to move away from this framework has its limits.

In a recent decision, Ex Parte Pasupulati et al, the Board reversed an abstract idea rejection to a claim directed to integrating an API-based mechanism to a merchant’s website without the merchant having to understand the API or having to know how to code in a language specific to the API. The Board rebuffed the Examiner’s position for both steps.

So it’s a similar situation to the above from Kalis, but it is rare. Ankur Parekh asked Kalis: “Do you have an intuitive sense of reversal and affirmance percentages for 101 at PTAB the last couple of months? Thanks.”

“The latest post on Bilski blog reports that examiners have been affirmed in 92% of 101 appeals recently decided by the PTAB,” Kalis responded. “I think the % of 101 reversals peaked last summer.”

This means that only about 1 in 13 would be reversed. That’s very low actually and we used to write about those things quite routinely early in the year and last year. Courts are even stricter than this, but not many cases get that far because it’s expensive and thus financially risky. But what about lower courts? Welcome to the universe where a nontechnical jury sometimes gets to decide on technical matters. In the following recent example the jury ignored the technical PTAB (its ruling that a patent was invalid). Just like that they got to decide on a case with tens of millions of dollars on the line.

A Delaware jury finds Edwards Lifesciences infringed a transcatheter heart valve technology patent, which was ruled invalid by the PTAB earlier this year

A District of Delaware jury has awarded Boston Scientific $35 million against Edwards Lifesciences in a case involving multiple patents related to transcatheter heart valve technology.

The way things stand, however, abstract patents would rarely get past PTAB and result in any ‘damages’ payment.

Brittany Knight and Anthony Sabatelli wrote for Patent Docs a typical kind of article (for that site), insinuating that a law they do not like needs to “evolve” (i.e. get watered down). Patent maximalists, usually trolls and law firms, still moan about the demise of software patents because of 35 U.S.C. § 101; what they keep saying about Berkheimer is rather meaningless because it has not statistically changed much, especially when one takes into account decreased interest in litigation with software patents, seeing the lack of success in such cases.

Knight and Sabatelli start by explaining things as follows:

Software is a generic term to refer to a collection of data or executing code used by a computer to implement arithmetic operations or logical operations. Back in 1936, Allen Turing, in his landmark paper On Computable Numbers proposed the capable use of instructions (i.e., software) to execute functions through his Turing Machine, an early precursor of the general purpose computer[1]. Today the modern computer is instrumental for complex computations, data analytics, high-powered graphing, simulations, and so on. Although, the development and use of software for these computer functions has become mainstream, determining the patent eligibility of software inventions under 35 U.S.C. § 101 has been less intuitive.

In the wake of the now famous Mayo and Alice decisions, patent subject eligibility is determined through a 2-step inquiry. The first step asks whether, the patent claim is directed to a natural phenomenon, biological process, or abstract idea. Software is generally categorized as being “abstract” because it does not fulfill the more concrete criteria for being a “thing”: i.e., a process, machine, manufacture, or composition of matter. Because software claims often fail the first step of the Mayo/Alice inquiry, the inquiry is next directed to the second part, which determines whether the patent claims add “significantly more” to bring them back within the fold of eligibility. However, meeting this second step has proven challenging in the court of law when it comes to determining patent eligibility of modern computational tools.

Back in the very old days (maybe a decade ago) we still wrote a lot of articles about why software patents are something that should never have been patentable in the first place because it’s more like a rendition and hence it’s suitably covered by copyright law, economically too (no need to undergo a registration process).

Staying on Patent Docs, Michael Borella also wrote about SAP America, Inc. v InvestPic, LLC. The moral of the story? Dare sue a rival with software patents and you’ll end up having to compensate your rival for your false accusation and your fake patent (which is now invalid, too):

We wrote about this case six months ago, regarding InvestPic’s appeal to the Federal Circuit over having its patent invalided under 35 U.S.C. § 101 in the Northern District of Texas. InvestPic did not get the outcome it was looking for. Here, the case is back in the District Court to consider SAP’s motion for recovery of attorney’s fees. As we will see, InvestPic ended up not only with its patent invalidated, but also owing a large chunk of money to SAP.

SAP was originally granted attorney’s fees in 2017, after the District Court ruled, on the pleadings, that InvestPic’s U.S. Patent No. 6,349,291 was invalid under § 101. As noted above, InvestPic appealed and lost.

[...]

This proceeding, however, was put on hold by the Federal Circuit appeal. Now back in the District Court, an order granting much of what SAP requested was issued on December 4, 2018.

SAP requested a total of $939,306.61, which did not include any time from attorneys and staff that worked less than 10 hours on the case. But this amount included time that SAP’s attorney spent on a petition for covered business method review which was never filed. The District Court declined to award fees for the petition.

Also, the District Court found that the rates charged by SAP’s attorneys (“$745.00 – $1,175.00 per hour for partners to $405.00 – $650.00 per hour for associates”) were excessive. In particular, the majority of the partner’s rates were above the 90th percentile for Texas, and the District Court found no evidence to justify the rates being so high. Accordingly, the District Court reduced all partner rates by 35% and all associate rates by 15%. Based on these adjustments, the total amount actually awarded was $679,420.46.

[...]

To further drive home this point, not even the federal courts have been able to crack the § 101 egg. It is well-known that multiple federal judges have commented on the record that Alice was hard to apply in practice. Judge Wu of the United States District Court for the Central District of California criticized Alice for setting forth an “I know it when I see it” test. Judge Pfaelzer, a colleague of Judge Wu, wrote that the Supreme Court’s patent-eligibility cases “often confuse more than they clarify [and] appear to contradict each other on important issues.” More recently, the Federal Circuit’s Judge Plager, wrote that the post-Alice §101 inquiry “renders it near impossible to know with any certainty whether the invention is or is not patent eligible.” And these are just a few examples of judicial confusion. There are more.

Just a few months ago, the Federal Circuit ruled 2-1 that § 101 jurisprudence was too murky to be used as the basis of an attorney’s fees award. While the facts between that case and this one differ, the law does not.

Looking at another site of software patents proponents, Charles Bieneman comes to grip with the fact that his profession, patent litigation, will become rather hard now that software patents are worthless in the US and typically drain plaintiffs’ pockets. To quote:

Patent claims directed to establishing online chat sessions are not patent-eligible under 35 U.S.C. §101 and the Alice/Mayo test, said Federal Circuit Judge Bryson, sitting in the District of Delaware, in granting a defendant’s motion to dismiss. Epic IP LLC v. Backblaze, Inc., C.A. No. 1:18-141-WCB (D. Del. Nov. 21, 2018).

Remember when law firms advised people to paint algorithms as “GUI” to get software patents and other patents that are abstract? Well, forget it. That too doesn’t work. Bieneman’s blog colleague Peter Keros wrote about a patent on “remotely monitoring and controlling irrigation equipment”:

Patent claims directed to a remote user interface displaying a plurality graphical user interfaces (GUIs) were held not patent eligible under 35 U.S.C. § 101 in Valmont Industries, Inc. v. Lindsay Corporation, No. 15-42-LPS (D. Del. Nov. 14, 2018). The Court found that the claims of U.S. Pat. No. 7,003,357 were directed to the abstract idea of “remotely monitoring and controlling irrigation equipment” without an inventive concept, granting a motion to dismiss under F.R.C.P. 12(b)(6).

Here’s Bieneman on 35 U.S.C. § 112:

Claims in a patent directed to medical diagnostics were indefinite under 35 U.S.C. §112(b) and Nautilus, Inc. v. Biosign Instruments, Inc. (S. Ct. 2014), said a court in granting summary judgment of invalidity. Lecat’s Ventriloscope v. MT Tool and Manufacturing, No. 1-16-cv-05298 (N.D. Ill. Nov. 20, 2018).

Last but not least, Bieneman writes about 35 U.S.C. § 112 and “a patent examiner’s rejections under 35 U.S.C. § 101 for lack of patent-eligibility”. It’s abundantly clear that software patents are very weak in US litigation (courts). To quote:

The Federal’s circuit has affirmed a Patent Trial and Appeal Board (PTAB) decision in turn affirming a patent examiner’s rejections under 35 U.S.C. § 101 for lack of patent-eligibility, and under 35 U.S.C. § 112 for lack of written description and indefiniteness, of a product-by-process claim directed to “a resource planning forecast product.” In re Downing, No. 2018-1795 (Fed. Cir. Dec. 7, 2018) (non-presidential).

[...]

Finally, and probably of absolutely no solace to the applicant, the court agreed that the recitation of “the end user” was not indefinite for lack of antecedent basis. Even though the term “the end user” was introduced “without an antecedent basis,” the claim only referenced one and user and it was clear who the end user would be. Therefore, the lack of antecedent basis for this term did not render the claim indefinite.

Even district courts, such as the Northern District of California’s court in this particular case, learned to say “no” to abstract, bogus, fake patents or software patents. Bieneman’s blog colleague Nathan Smith wrote about patent claims on “analyzing and automatically categorizing digital images”:

The Northern District of California recently granted a motion to dismiss based on lack of patent-eligible subject matter, under 35 U.S.C. § 101 and the Alice/Mayo test, in claims of U.S. Patent No. 8,350,928, directed to “a system and method for the automatic analysis and categorization of images in an electronic imaging device.” Secure Cam, LLC v. Tend Insights, Inc., No. CV 18-02750-EJD (N.D. Cal. Nov. 14, 2018). The claims of the ‘928 patent were ineligible because, like In re TLI Communications LLC Patent Litigation, 823 F.3d 607, 613 (Fed. Cir. 2016), the claims were directed to the abstract idea of analyzing and automatically categorizing digital images. Further, like TLI, the claims include physical components, such as a digital camera, “but the physical components ‘merely provide a generic environment in which to carry out the abstract idea.’”

Last but not least, over at Watchtroll Robert Levy weighed in on licensing (fancier term for “paying for”) bogus patents, i.e. patents that are not likely to withstand a challenge in a court, e.g. because of 35 U.S.C. § 101/Alice. Levy cites the Alphacap case (covered here at the time):

All too often, the prospective licensee/purported infringer usually doesn’t begin its efforts to acquire the patent(s) until after making disparaging statements about them during negotiations. As an example, consider the time line discussed in the case of Gust, Inc. v. Alphacap Ventures, LLC, No. 2017-2414 (Fed. Cir. September 28, 2018) in which Alphacap Ventures, the purported infringer, demanded re-assignment of the patent owner’s patents as part of a settlement offer, but only after arguing for the invalidity of such patents under 35 U.S.C. § 101.

Eventually a lot of cases come down to this. The underlying patents don’t pass muster and are therefore not worth pursuing in the first place. In the coming days if not weeks we’ll give some more examples like these. It has gotten a tad tiring/dull because the outcomes are mostly the same.

12.13.18

Latest Talk From IBM’s Manny Schecter Shows That IBM Hasn’t Changed and After the Red Hat Takeover It’ll Continue to Promote Software Patents

Posted in IBM, Microsoft, OIN, Patents, Red Hat at 3:00 pm by Dr. Roy Schestowitz

And don’t forget what David Kappos is doing

Manny Schecter
Photo credit: Esteban Minero

Summary: IBM’s hardheaded attitude and patent aggression unaffected by its strategic acquisition of a company that at least claimed to oppose software patents (whilst at the same time pursuing them)

THE SO-CALLED ‘champion’ of the U.S. Patent and Trademark Office (USPTO) was, for a number of decades, IBM, based on the number of granted patents.

As IBM takes over Red Hat (not finalised yet) Red Hat could use a reminder that IBM is hostile to software freedom, free software, sharing etc. because it's a propagandist for software patents and it's aligned with 'IP' extremists' front groups. It’s funding them and it’s leading them.

Less than a day ago this article from a site of patent propagandists (pro-patent trolls, pro-UPC, pro-software patents and so on) was published with this summary: “IBM’s Manny Schecter believes public awareness of intellectual property has increased but there has not been a corresponding increase in understanding” (patents are not property).

He mentioned patents specifically:

On the patent side, people often get confused about various aspects of patents, such as the difference between filing and grant date. “All understandable,” noted Schecter.

Those who are intimately familiar with IP do not necessarily help the situation: a second area of confusion, according to Schecter, comes from the public debate around IP. “We argue vigorously for positions in the intellectual property world, and we have a tendency to use a lot of rhetoric and take a lot of extreme positions in trying to make our point,” said Schecter. “Sometimes we actually want that extreme position and sometimes we are just trying to get our point across.”

Schecter urged the audience to close the gap between awareness and understanding by increasing the level of understanding. “We have to figure out how to optimise the benefit of intellectual property,” he said.

Schecter believes that people who say that intellectual property is somehow hurting innovation are really saying is it is not achieving its optimum promotion of innovation.

“If we are actually going to get people understanding intellectual property we have to overcome confusion, we have to overcome misinformation, we have to overcome our own rhetoric and we have to overcome pressure from our clients. Just speak honestly and respectfully. Our innovation economy, our national security, frankly our everyday creature comforts may depend on it,” he said.

Earlier this week the IBM-led (still IBM-centric) Open Invention Network, which is also a booster of software patents, added Alibaba and Ant Financial as members. But rather than add members shouldn’t these people work to abolish software patents? They’re ridiculous! There are, as it turns out, even patent on numbers. At first we thought this was merely satirical, maybe parody. But as this new tweet shows (there’s a picture there): “In 1994, Roger Schlafly, trying to showcase the flaws of US Patents, patented two primes. These primes were used to improve modular division thus saving a lot of time in the Diffie-Hellman method for public-key encryption – critical to secure lots of Internet services at the time…”

Just pay the fee and the monopoly is yours.

The Open Invention Network’s CEO said he was “looking to bring in more Chinese companies,” even if membership is of no use against patent trolls and it merely legitimises software patents. To quote this short new report:

OIN is the largest patent non-aggression community in history. It supports the freedom of action in Linux as a key element of open source software. It is funded by Google, IBM, NEC, Philips, Red Hat, Sony, SUSE and Toyota.

In a recent interview with IPPro, OIN CEO Keith Bergelt said the organisation was looking to bring in more Chinese companies and that in 2018, the total number of OIN licensees “has eclipsed the total number of Japanese licensees”.

According to OIN, as a global leader in ecommerce and cloud computing and a global leader in financial technology, respectively, Alibaba and Ant Financial are “demonstrating their commitment to open source software as an enabler of their platforms and systems”.

They are demonstrating their commitment to patents; there are much better solutions than OIN (more on that in our next post), but large members of OIN aren’t interested in these. Companies like IBM and Microsoft try to shield their software patents or cross-license these under the ‘umbrella’ which is OIN. But such patents should not at all exist in the first place. Moreover, being a member of OIN did not prevent IBM from feeding Microsoft-funded patent trolls.

12.10.18

A Month After Microsoft Claimed Patent ‘Truce’ Its Patent Trolls Keep Attacking Microsoft’s Rivals

Posted in Deception, Microsoft, OIN, Patents at 12:50 am by Dr. Roy Schestowitz

A bird

Summary: Microsoft’s legal department relies on its vultures (to whom it passes money and patents) to sue its rivals; but other than that, Microsoft is a wonderful company!

THE company that spent decades committing crimes and is currently under investigation in the US for “bribery and corruption” nowadays “loves Linux,” according to itself. But does it really love GNU/Linux? Or is it just bribing people (and organisations and publishers) to say so or at least passively accept those who claim so?

About a month ago the Open Invention Network helped spread the "Microsoft loves Linux" lie; days ago it also added another member (“Printing Industry Leader Heidelberg Joins the OIN Community in Support of its Digital Future”) to its pact that is absolutely worthless in the face of patent trolls and other satellite entities. It can do absolutely nothing about those. It even admits so.

We have meanwhile also noticed that the Franklin Pierce Center at the University of New Hampshire School of Law brought in a person from Microsoft. He is still at Microsoft too; he’s Microsoft’s vice president and chief patent counsel, so he’s like an influencer through academia too (Microsoft does a lot of that). To quote these tidbits:

The Franklin Pierce Center at the University of New Hampshire School of Law has announced that Micky Minhas, vice president and chief patent counsel for Microsoft Incorporated, will join the faculty as the Franklin Pierce Distinguished Professor of Intellectual Property Practice. In addition to teaching in both the fall and spring semesters, Minhas will provide strategic guidance on cutting-edge IP curriculum at UNH Law. Minhas will retain his position with Microsoft. For more than six years, he has managed the Microsoft patent group that is primarily responsible for outbound and inbound intellectual property licensing, patent strategy, patent acquisitions and divestitures, and managing patent preparation and prosecution of patents. He is a frequent speaker on patent and patent licensing topics worldwide.

The term “patent licensing” is a euphemism for extortion. Failing that, litigation or other forms of retaliation. This is what Microsoft champions, having done that for over a decade.

Looking at Microsoft-centric news sites (with connections to Microsoft), GeekWire is still grooming Microsoft’s patent troll Nathan Myhrvold, whom Microsoft bankrolled for well over a decade. Intellectual Ventures is being painted as some sort of chef (“Hungry for new art in Seattle? Nathan Myhrvold’s Modernist Cuisine Gallery is a photographic feast”). Rovi, a patent aggressor that is connected to Intellectual Ventures [1, 2, 3], meanwhile brags about taxing Samsung using video software patents. So these trolls are definitely very active. There’s also this report about ongoing lawsuits of Intellectual Ventures. “Attorneys for Intellectual Ventures LLC and JPMorgan Chase & Co. debated a claim of IV’s cybersecurity software patent before a Federal Circuit panel Thursday,” Matt Bernardini wrote.

This “cybersecurity software patent” is just a software patent and it therefore invalid, as per 35 U.S.C. § 101. Just because the U.S. Patent and Trademark Office (USPTO) granted it doesn’t mean it’s legitimate.

And speaking of cybersecurity software patents, Microsoft’s patent troll Finjan (subsidised by Microsoft, partnered with Microsoft) is at it again. This truly malicious troll is filing its next lawsuit (among many) against Microsoft’s rivals in security. The latest target? Qualys. The press release is now everywhere (e.g. [1, 2, 3]. Finjan brags about it aplenty because its sole ‘product’ is lawsuits.

Microsoft claimed patent “truce” a month ago, but its patent trolls keep striking hard at Microsoft’s rivals. They’re being traded like a real company (latest financial reports disappoint despite higher trading) and the word “Sales” gets used as well as the word “Earnings”. They make a troll sound like it actually makes something. There are also new investors in nothing but these lawsuits; the troll is being propped up by BlackRock and by Seizert Capital Partners LLC. We don’t know if Microsoft is connected to these, but it’s widely known that Microsoft invested in this troll and it has already sued or blackmailed more than a dozen Microsoft rivals in this domain. Coincidence?

How about MOSAID (now known as Conversant), which Microsoft funneled tons of Nokia patents to? As expected, it then went after Microsoft’s rivals with patent lawsuits (as usual). Watchtroll wrote about the latest twist as recently as 5 days ago:

On Tuesday, November 20th, the Court of Appeals for the Federal Circuit issued a nonprecedential decision in Google LLC v. Conversant Wireless Licensing, which vacated a decision by the Patent Trial and Appeal Board (PTAB) to uphold the validity of patent claims owned by Conversant after conducting an inter partes review (IPR) proceeding petitioned by Google and LG Electronics. The Federal Circuit panel of Circuit Judges Kathleen O’Malley, Raymond Chen and Kara Stoll found that the PTAB erred in its final written decision by failing to consider the primary argument raised in the original IPR petition.

This is about the Federal Circuit (CAFC) and the Patent Trial and Appeal Board (PTAB). The Microsoft-armed troll attacked Google.

CAFC is nowadays more aggressive against these trolls than PTAB; CAFC epically stops Intellectual Ventures (in cases where Intellectual Ventures also sues Microsoft’s rivals in the security space, notably Symantec).

12.05.18

EPO, in Its Patent Trolls-Infested Forum, Admits It is Granting Bogus Software Patents Under the Guise of ‘Blockchain’

Posted in Deception, Europe, OIN, Patents at 5:56 am by Dr. Roy Schestowitz

Does it have data storage somewhere? Patentable! Just claim that it’s “distributed”.

What is the Difference Between a Blockchain and a Database?

Blockchain

Summary: Yesterday’s embarrassing event of the EPO was a festival of the litigation giants and trolls, who shrewdly disguise patents on algorithms using all sorts of fashionable words that often don’t mean anything (or deviate greatly from their original meanings)

YESTERDAY, a day after the embarrassing behaviour had already become evident, Croatian media was having a go again at the corrupt Vice-President of the European Patent Office (EPO). It’s an article about corruption and pedophilia in the Republic of Croatia. We will write about it soon. These cases of corruption are very problematic not only for the reputation of the Office but also that of European Patents. There are many such patents (about a million unexpired ones).

Yesterday there was also an event about blockchains and it was an EPO event. We’ve already written a lot about this subject, e.g. in:

  1. Blockchain and Bitcoin Patents Help Demonstrate How Software Patents Get Used by Giants to Crush Emerging Technologies (‘Threats’)
  2. Blockchain Domain Infested With Software Patents, MasterCard Among the Culprits
  3. Financial Giants Will Attempt to Dominate or Control Bitcoin, Blockchain and Other Disruptive Free Software Using Software Patents
  4. Blockchain Becomes the Target Not Only of Financial Institutions With Software Patents But Also Trolls
  5. Walmart, Bank of America, Allied Security Trust (AST) and the Rush for ‘Blockchain’ Patents

We’re going not to focus so much about what blockchains are; they’re abstract, no doubt, they’re a conceptual thing. Instead we want to focus on what the EPO says an does about blockchains. It’s quite incredible and even disturbing that the EPO is now retweeting the world's most notorious patent trolls and letting them promote software patents in Europe. It’s almost as though patent trolls nowadays control the agenda of the Office. Maybe it can be understood in light of the EPO’s hiring of actual thugs, especially for top positions like hirings themselves. The EPO is perfectly happy to give a platform — keynote even — to people who send me death wishes. The EPO actually retweeted both personal and company’s account of Erich Spangenberg. It doesn’t get any worse.

“The EPO is perfectly happy to give a platform — keynote even — to people who send me death wishes.”This troll has even been mentioned by Team UPC folks. One of them wrote: “My partner Christoph von Praun will tomorrow attend the conference “Patenting blockchain” at the @EPOorg in The Hague. Speakers include @mariekeflament and Claire Weils of @circlepay and @SpangenBlog of @ipwe.”

Team UPC must be very happy to see (in)famous patent trolls on stage. After all, they’re some of the biggest clients of Team UPC. “Today,” wrote another person, “associate Howard Read is attending the #PatentingBlockchain conference at the @EPOorg. The conference explores #IP protection, and in particular the patenting of blockchain technology and its applications in different technical fields.”

“Team UPC must be very happy to see (in)famous patent trolls on stage. After all, they’re some of the biggest clients of Team UPC.”Never mind if it all boils down to software. Here is the EPO’s official account quoting thugs, extortionists, scam artists and trolls [1, 2]. Will Madoff be at the next EPO event?

It is not exactly surprising (or even new) that the EPO promotes software patents under the guise of “blockchains”; it has also just done that with “SDV” and with “AI” when it wrote: “The #patent system can benefit from AI which will make the work of examiners easier. Adding the layer of human intelligence will enable progress.”

So even this blockchains event invokes “AI”. Basically, the EPO now uses a slant on “AI”; it just means algorithms, such as search, mis-framing it all so as to pretend experienced examiners can just be replaced by some machines. Should we also have academic papers automatically generated?

“Basically, the EPO now uses a slant on “AI”; it just means algorithms, such as search, mis-framing it all so as to pretend experienced examiners can just be replaced by some machines.”Watch who opens up this event of the EPO. When clueless, nontechnical politicians ride the waves of buzz and marketing it looks like this [1, 2, 3]. At no point do they demonstrate any comprehension of the underlying concepts. Watch who’s on the panel. The one person there who’s semi-technical comes from OIN, a pusher of software patents (and the "Microsoft loves Linux" lie). He’s there alongside people like Fröhlich (EPO). OIN is being revealed for what it truly is: a shield of the status quo (IBM et al with their lust for “blockchain” patents).

Here’s what the EPO said about him [1, 2, 3, 4]: “The next panel with Mirko Boehm at #OpenInventionNetwork, Benjamin Bai at Ant Financial Services Group/Alipay, Klaus Haft at @hoyngrokh, Richard Bennett at SSM Patent Attorneys & moderated by Michael Fröhlich at EPO will discuss the IP landscape of #blockchain #blockchainpatents pic.twitter.com/EnfjV0cfzN [...] Mirko Boehm: “The fundamental building blocks of #blockchain are open source and will continue to be so in the future. This is how the industry is currently developing. “ #patentingblockchain #blockchainpatents [...] Mirko Boehm at #OpenInventionNetwork: “Over the past 5 years that I have attended EPO events, there has been noticeable progress on the sources of data for prior art and the possibility of identifying it.” #blockchain #blockchainpatents” [...] Where do you see #blockchain in the next 5 yrs? M. Boehm: “It’s a promising technology with drastic impact in the financial & logistics fields” B. Bai: „More patent applications will come. In terms of solving technical bottle necks: The best is yet to come“ #blockchainpatents”

“OIN is being revealed for what it truly is: a shield of the status quo (IBM et al with their lust for “blockchain” patents).”They’re mixing two things, maybe intentionally (the same slant as “AI”); one thing is patents on blockchains and another is use of blockchains to manage patents. So which is it? In this event the separability is virtually non-existent. Here’s the last of this bunch of tweets: “Where do you see #blockchain in the next 5 yrs? Richard Bennett: “I look forward to seeing how the legal framework will developed by the EPO” Klaus Haft : „More activities over next years. In terms of litigation in #blockchainpatents, we’ll see it only after the 5 years.””

That doesn’t even make any sense. What does “litigation in #blockchainpatents” even mean? It means nothing. It’s gobbledygook. Ledgers for court filings?

As Benjamin Henrion (FFII) correctly pointed out: “EPO forgot to invite the critics, OIN was probably invited to justify the “you see, we even asked the point of view of open source”. Disgusting.”

“They’re mixing two things, maybe intentionally (the same slant as “AI”); one thing is patents on blockchains and another is use of blockchains to manage patents.”IAM did the same thing a few months ago. OIN represents large corporations, not the Free/Open Source community. The same is true for the Linux Foundation, but that’s another subject altogether.

Now, watch what the EPO said about Benjamin Bai [1, 2]: “Benjamin Bai: “You cannot patent the fundamental #blockchain technology, however you can patent value added services based on blockchain” #blockchainpatents #patentingblockchain [...] #Blockchain is still a young technology both from a regulatory perspective and patent litigation perspective. It needs the space to grow. But we don’t want to see litigation killing innovation, says Benjamin Bai #blockchainpatents #patentingblockchain”

That thing about “patent value added” is completely nonsensical; these are still software patents, but the Office is corrupt enough to grant them (examiners are threatened to). Never mind if courts would reject them (if it reached that far). Painting algorithms with “blockchain” brushes isn’t a new concept, but this time they do a whole conference/forum to promote this practice.

“That thing about “patent value added” is completely nonsensical; these are still software patents, but the Office is corrupt enough to grant them (examiners are threatened to).”Notice how, as per this EPO tweet, they even admit those patents are “CII”: “Richard Bennett at SSM Patent Attorneys: “In the field of CII, patent attorneys try to get broad claims while limiting only those features for defining the envisaged invention. “ #blockchainpatents #patentingblockchain”

They then retweet this buzzwords salad — typical keyword/buzzword stuffing from proponents of abstract patents: “blockchain, AI, smart contracts, IoT, interoperability…”

Georg Weber and Yann Ménière, who are loyal pushers of software patents (whom Battistelli put in high places in order to grant such patents illegally), are at it again.

“Georg Weber and Yann Ménière, who are loyal pushers of software patents (whom Battistelli put in high places in order to grant such patents illegally), are at it again.”The EPO retweeted this thing: “”The world will be tokenised”. Great insights from @mariekeflament & Claire Wells of @circleinvest and Georg Weber & Yann Ménière of @EPOorg at #patentingblockchain conference in The Hague this morning. pic.twitter.com/XlwCpy3Og9 – At European Patent Office”

So based on lies and deliberate misinterpretation of the EPC they grant patents on something they call “blockchain”; will courts honour such patents? No, even those in the audience are sceptical. Gabriele Mohsler of Ericsson is quoted by the EPO as saying: “At the moment the most pertinent challenge is drafting a good application which will hold in front of the court.”

They’re openly recognising that the courts know these are bunk software patents. So Mohsler then speaks of “the technical effect.” The EPO quotes her as follows: “Gabriele Mohsler shares two tips based on her experience at @Ericsson: drafting claims in an indirect way and better understanding of the technical effect. #blockchainpatents #patentingblockchain”

The term “technical effect” has always been laughable nonsense. We’ve been joking for it for years. The EPO retweeted someone who said “Blockchain patent filings 2008-2018 dominated by China and the US. Numbers growing rapidly!”

“The term “technical effect” has always been laughable nonsense. We’ve been joking for it for years.”That’s just because the term is rather new, just like “cloud”. Distributed databases go a very long way back. There’s prior art. As the EPO admits: “The first patent filing including the actual word #blockchain happened in 2012, says Claire Wells at @Circlepay #blockchainpatents #patentingblockchain”

But it goes a long way back; the words/terminology were just different. Wells then said it is “hard to protect it on an open source basis” (whatever that even means). The EPO wrote: “Claire Wells @Circlepay: “The ethos behind #blockchain took a libertarian stand, but in order to enable to derive value, it is very hard to protect it on an open source basis” #blockchainpatents #patentingblockchain”

Again, this is pretty meaningless and vague. Yes, many blockchain implementations are Free/Open Source software. Now they just try hard to strap software patents (“CII”) onto these. Here they are using the term “CII” again. In the EPO’s words: “The EPO practice of examining #blockchain inventions is predictable, harmonised and offers legal certainty. It is documented in the CII guidelines and is entirely based on case law from the BoA #blockchainpatents #patentingblockchain”

“…many blockchain implementations are Free/Open Source software. Now they just try hard to strap software patents (“CII”) onto these.”They clearly know what they’re doing here.

“If a court in France finds blockchain unpatentable under the EPC,” Henrion (FFII) wrote (referring to an actual court ruling from France), “will the EPO adapt [sic] its practice?”

“Of course not,” I responded. “The EPO repeatedly ignored courts, attacked courts, attacked judges (driving them almost to suicide), and broke the law like it’s a hobby/sport.”

Another person (FFII in Sweden) wrote: “So are records on a blockchain ever since IBM and EPO bent the rules for patent inflation. Its not inventions. Its an abstract exercise in monopolizing language and math that causes risks and harm to society and innovation.”

“He is promoting hype around “blockchain”, but at the same time he labels it “CII”.”In case there’s any doubt, even the EPO’s Vice-President from Spain is admitting explicitly that it’s about granting patents on software (“CII”). In the EPO’s own words: “Alberto Casado, EPO VP Operations : “There are many conferences about blockchain, but this one was the very first ever about #patentingblockchain. I would like to thank everybody for making this good exercise possible” #blockchainpatents pic.twitter.com/cLu7dI2Ybw [] Blockchain inventions are part of CII. The EPO is well prepared for assessing patentability in CII, says Alberto Casado #blockchainpatents #patentingblockchain [] Alberto Casado, EPO VP Operations: Thank you for being with us today. Applicants, scientists, researchers, attorneys – We have learnt a lot from you. #blockchainpatents #patentingblockchain”

He is promoting hype around “blockchain”, but at the same time he labels it “CII”. Remember the EPO’s Lievens? He’s now quoted as saying: ”We at the EPO need to be ready for this #blockchain “invasion” in other fields…”

“…it certainly seems like nothing but an echo chamber of patent maximalists, led by literal patent trolls who even admit that they favour software patents and that blockchain patents are just software patents.”What other fields? The blockchains are just software.

Surveying who the EPO has retweeted (e.g. this thing), it certainly seems like nothing but an echo chamber of patent maximalists, led by literal patent trolls who even admit that they favour software patents and that blockchain patents are just software patents. They also admit their uncertainty about courts’ approval.

Finally came the closing words in the late afternoon. It doesn’t seem as though António Campinos attended. At no point was he mentioned.

In summary, trolls from the United States (who used fake patents to shake down thousands of businesses) are now the ‘face’ of the EPO. How fitting.

12.02.18

35 U.S.C. § 101 Continues to Crush Software Patents and Even Microsoft Joins ‘the Fun’

Posted in America, Courtroom, Microsoft, OIN, Patents at 4:32 pm by Dr. Roy Schestowitz

Software patents are truly a threat to Free/Open Source software

“Steve Jobs threatened to sue me, too. [and also] Bill Gates and Steve Ballmer. They’d flown in over a weekend to meet with Scott McNealy. [...] Bill skipped the small talk, and went straight to the point, “Microsoft owns the office productivity market, and our patents read all over OpenOffice.” [...] Bill was delivering a slightly more sophisticated variant of the threat Steve had made, but he had a different solution in mind. “We’re happy to get you under license.” That was code for “We’ll go away if you pay us a royalty for every download” – the digital version of a protection racket.”

Jonathan I. Schwartz, Sun

Summary: The Court of Appeals for the Federal Circuit (CAFC) and even courts below it continue to throw out software patents or send them back to PTAB and lower courts; there is virtually nothing for patent maximalists to celebrate any longer

AS promised earlier today, here’s a quick outline of the smashing of software patents, erroneously granted by the U.S. Patent and Trademark Office (USPTO) only to be squashed in district (lower) courts, the higher court (Federal Circuit, CAFC) and the Patent Trial and Appeal Board (PTAB), where inter partes reviews (IPRs) are undertaken.

As usual, it’s hard to find even a single example of a software patent withstanding scrutiny at a higher court (CAFC or SCOTUS). Those are rare exceptions — ones that patent extremists would tout for many months if not years.

“An appeal would likely have this decision overturned because of the district’s notoriety.”Looking at the blog dedicated to advocacy of software patents (it’s a law firm’s blog), Mark St. Amour looks downwards to the notorious Eastern District of Texas for examples — however rare — of software patents finding feet (until CAFC throws them out if defendants can afford justice). He found this: “In IDB Ventures, LLC v. Charlotte Russe Holdings, Inc. (2:17-CV-660-WCB-RSP), the Eastern District of Texas highlighted the effectiveness of showing that a patent claim is directed to a specific improvement to computer functionally for overcoming a challenge based on 35 U.S.C. § 101.”

An appeal would likely have this decision overturned because of the district’s notoriety. Charles Bieneman, a colleague of Amour apparently, meanwhile admits that gifting (or a gift certificate) is not an “invention” just because you do it “on a computer” or “over the Internet”; why does the USPTO grant such laughable software patents in the first place?

To quote Bieneman (this is in Delaware, not Texas):

Patent claims directed to electronic gift certificates are not patent-eligible under 35 U.S.C. § 101 and the Alice/Mayo test, according to a US magistrate judge’s recommendation to grant a Rule 12(b)(6) motion to dismiss. Coqui Technologies, LLC v. Gyft, Inc., No. 17-777-CFC-SRF (D. Del. Nov. 16, 2018). The court found that claims of U.S. Patent No. 7,580,864, entitled “Method for circulating an electronic gift certificate in online and offline system,” were “directed to the abstract idea of selling, gifting, and using electronic gift certificates” without an additional inventive concept.

Another new pick/highlight comes from the District in California, which finds software patents pertaining to “User Interface Features Not Patent-Eligible,” according to Mike McCandlish. Thanks to 35 U.S.C. § 101, as usual…

Finding a lack of technical innovation, a court held claims for three features for a user-vehicle interface to be directed to patent-ineligible abstract ideas under the Mayo/Alice test and 35 U.S.C. § 101. Thunder Power New Energy Vehicle Development Co. Ltd. v. Byton North America Corp., No. 18-cv-03115-JST (N.D. Ca., Oct. 31, 2018).

Plaintiff, Thunder Power, alleged infringement by Defendant Byton of claims of Patent Nos. 9,547,373, 9,563,329, and 9,561,724. Byton moved to dismiss, contending that the asserted claims failed to recite patent-eligible subject matter under 35 U.S.C. § 101. The court granted the motion to dismiss.

Did Watchtroll find anything new that it can trumpet and shout about? No, not really. It returned to a month-old case, Ancora Techs. v. HTC Am., Inc.

The firm behind the outcome is still celebrating in paid articles and seeing how Watchtroll is still falling back on the HTC case (old news that it covered several times before) is rather revealing. There has been nothing for them to brag about for a very long time. “The Federal Circuit,” they said, “recently [sic] reversed the Western District of Washington’s grant of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure where the district court held that the claimed subject matter was ineligible for patenting under 35 U.S.C. § 101.”

“Did Watchtroll find anything new that it can trumpet and shout about? No, not really.”They say “recently” about something roughly a month old. They find it noteworthy because it’s a CAFC case, but Watchtroll is begrudgingly coming to accept that the high court, CAFC, is even stricter than PTAB when it comes to software patents as software patents almost always come there just to be thrown away. As Steve Brachmann put it a few days ago, “Federal Circuit Vacates PTAB Decision That Video Messaging Patent Claims Were Nonobvious” (most patent maximalists just tried to ignore it as it doesn’t suit their agenda).

Funnily enough, Rachel Elsby, Rubén Muñoz and Dorian Ojemen (Akin Gump Strauss Hauer & Feld LLP) would have us believe that CAFC gives or offers “tips” but that’s actually shameless self-promotion from them. We spotted this earlier today and our only comment is amusement. “On Wednesday, November 14th,” they argued, “the Court of Appeals for the Federal Circuit issued a nonprecedential decision in WhatsApp, Inc. v. TriPlay, Inc., which vacated a final written decision terminating an inter partes review (IPR) proceeding and remanded the case back to the Patent Trial and Appeal Board (PTAB).”

Wow. So basically it’s back to PTAB. What a ‘victory’…

CAFC very much insists that software patents are bunk and void. Here’s a new example titled “Fed. Circ. Won’t Reconsider Nixing Robotics IP Under Alice” (Section 101 basically).

“CAFC very much insists that software patents are bunk and void.”“The Federal Circuit has refused to reconsider its September ruling that parts of four robotics patents asserted against Invensys Systems Inc. and other automation companies are invalid,” Law360′s Matthew Bultman wrote. His colleague Tiffany Hu wrote that “Microsoft scored a win Tuesday when the Patent Trial and Appeal Board invalidated a technology company’s patent covering a way to attach conversation point reminders for mobile contacts…”

When Microsoft doesn’t blackmail the competition using software patents it is trying to invalidate others’. Precious.

Speaking of Microsoft’s patents, OIN has just recalled Microsoft’s history when it comes to such patents and the Irish media covered it as follows some days ago:

“OIN was conceptualized about 15 years ago largely in response to some activities that Microsoft was involved in. Microsoft funded litigation by a company called SCO against Red Hat, IBM and Suse. While these three companies were sued for violations of copyrights, the litigation triggered a concern around broader IP risks.

There was a belief that patents could be used to slow or stall the progress of Linux. The rhetoric from Balmer and Gates historically had been very negative about Linux being a ‘cancer’ and that it would be eradicated. It was for hobbyists. It would never be used for mission-critical applications. It wouldn’t scale. All the things ironically that IBM said against personal computing 20/25 years before. It was eerily similar. It’s what happens when you control the market and can’t make sense of what you see so you retreat to fear, you retrench to control.”

Reuters’ Jan Wolfe, who routinely covers patent matters, took note of another defeat for notorious patents. CAFC has gutted fake patents of a patent troll from Canada (WiLAN). To quote:

A federal appeals court on Wednesday said it would not reconsider an earlier decision that likely doomed patent litigation cases the licensing firm WiLAN Inc brought against industrial automation companies Rockwell Automation Inc, Schneider Electric SE and the Emerson Electric Company.

Joe Mullin (EFF) has meanwhile named and shamed some more fake patents granted by the USPTO even though software patents are bogus, worthless, and harm society, science etc. This is the latest “Stupid Patent of the Month”:

In some fields, software bugs are more than the proverbial pain in the neck. When software has to ensure that an airplane lands safely, or that a pacemaker keeps operating, there’s no room for error.

The idea that mathematical proofs could be used to prove that software is error-free has been around since the 1970s, and is known as “formal verification.” But like a lot of technologies that some visionaries saw coming, it took time to develop. In recent years, computing power has become cheap enough for formal verification to become practical for more software applications.

Unfortunately, last month, the field had a monkey wrench thrown into it, in the form of U.S. Patent No. 10,109,010, which the patent office awarded to a U.K.-based company called Aesthetic Integration Ltd.

Claim 1 of the patent describes creating mathematical “axioms”—formal mathematical statements—that describe a computerized trading forum. The patented method then describes analyzing, with a “computer assessment system … the mathematical axioms that describe the operation of the trading forum.” In other words, the patent describes using formal proofs to check for bugs in a “computerized trading forum.” It’s formal verification—just applied to the financial services industry.

Of course, Aesthetic Integration didn’t invent formal verification, nor did the company invent the idea of software powering a “trading forum.” The company has apparently created software that utilizes formal verification in the financial services space, and that software might be perfectly good. But the Patent Office has effectively allowed the company to patent a whole sector of formal verification.

[...]

Ultimately, the ’010 patent reflects a broader problem with Patent Office’s failure to apply a meaningful obviousness standard to software patent applications. We have explained before that the Patent Office is all too willing to hand out patents for using known techniques in a particular field. Flow charts and whirligigs can make a concept look new when it isn’t—especially when a patent owner fills its application with obscure language and “patentese.” The Federal Circuit has also encouraged this through its hyper-formalistic approach to obviousness. The end result is an arms race where people rush to patent routine software development.

Perhaps one day the USPTO will stop issuing such patents. Patent quality is very important, more so than revenue of the Office.

“In a better world there would be far fewer patents, albeit ones that are strong, solid, and defensible based on public interest and scientific merit (as opposed to law firms’ and Office revenue).”Michael Risch has just cited this relatively new paper from Christopher Anthony Cotropia (University of Richmond’s School of Law) and David L. Schwartz (Northwestern University’s Pritzker School of Law), introducing it as “Patents Used in Patent Office Rejections as Indicators of Value” and remarking:

The quest for an objective measure of patent quality continues. Scholars have attempted many, many ways to calculate such value, including citations, maintenance fee payments, number of claims, length of claims, and so forth. As each new data source has become available, more creative ways of measuring value have been developed (and old ways of measuring value have been validated/questioned).

From the abstract of the corresponding paper:

The economic literature emphasizes the importance of patent citations, particularly forward citations, as an indicator of a cited patent’s value. Studies have refined which forward citations are better indicators of value, focusing on examiner citations for example. We test a metric that arguably is closer tied to private value—the substantive use of a patent by an examiner in a patent office rejection of another pending patent application. This paper assesses how patents used in 102 and 103 rejections relate to common measures of private value—specifically patent renewal, the assertion of a patent in litigation, and the number of patent claims. We examine rejection data from U.S. patent applications pending from 2008 to 2017 and then link value data to rejection citations to patents issued from 1999 to 2007. Our findings show that rejection patents are independently, positively correlated with many of the value measurements above and beyond forward citations and examiner citations.

It is interesting that they study Section 102 and 103 rejections (prior art and obviousness) but not Section 101 rejections — the subject recently explored by Colleen Chien and Jiun Ying Wu based on a lot of data. In a better world there would be far fewer patents, albeit ones that are strong, solid, and defensible based on public interest and scientific merit (as opposed to law firms’ and Office revenue).

11.24.18

Team UPC Refuses to Stop Lying, Pays Money to Spread Its Unified Patent Court (UPC) Lies in the Media

Posted in Deception, Europe, OIN, Patents at 1:41 am by Dr. Roy Schestowitz

Summary: The last hope of software patents (bypassing national courts that keep rejecting such patents) may be coming to an end and not even sponsored self-promotional posts can resurrect such hopes

THE European Patent Office (EPO) — we cannot emphasise strongly enough — barely mentions the UPC any longer. António Campinos mentioned it at most a couple of times since becoming the EPO’s President back in July. Sure, Campinos actively promotes software patents in Europe — patents that aren’t legitimate (that’s why they try to replace the current court system with the UPC, which the EPO has more leverage over).

“Sure, Campinos actively promotes software patents in Europe — patents that aren’t legitimate (that’s why they try to replace the current court system with the UPC, which the EPO has more leverage over).”Yesterday we spotted an article titled “Sind Ihre Produkte vor patentrechtlichen Angriffen und „Trollen“ sicher?” in German media. It’s about the UPC, which has been de facto dead for nearly a year, thanks in part to the constitutional complaint in Germany. There are several other factors in the mix, one of which is Brexit.

Team UPC’s Jane Lambert wrote yesterday on Twitter, in light of leaked Brexit documents: “The section on IP in the leaked political declaration in @TheGuardian__ makes no mention of British participation in the #UPC after the transition period and leaves no room for it so ratification and spend on rent and fitting out Aldgate East has come to 0 https://www.theguardian.com/politics/2018/nov/22/brexit-leaked-political-declaration-in-full …”

There’s “no need to kick this dead horse and businesses in the UK do not want it anyway, only trolls and litigators,” I told Lambert.

“It’s about the UPC, which has been de facto dead for nearly a year, thanks in part to the constitutional complaint in Germany.”Bristows has meanwhile promoted the delusion of Italy magically replacing the UK (that would require a massive overhaul and it’s impractical). “Italy’s Council of Ministers approves amendment of IP Code to implement unitary patent and UPC system,” it wrote, citing itself (see rebuttal in this earlier post). To make matters worse, Bristows has apparently just paid to spread its lies to news feeds. It is the first time in months that they say anything at all about UPC.

The reality of the matter is, UPC is dead, which means that courts will continue to reject software patents and reject the gross misrepresentation of the EPC (the EPO keeps trying to justify patents on algorithms this way, snubbing courts).

Yesterday the EPO wrote: “Last chance to register for our “Global patenting and emerging technologies” conference. Don’t miss out on an inspirational day…”

“It was bad enough that OIN legitimised software patents in the US; is it doing the same in Europe now?”By “emerging technologies” the EPO means algorithms, which are not patent-eligible (but today’s EPO ignores the law and the rules anyway). It then wrote: “What does the IP landscape look like in the area of #blockchain? Mirko Boehm from the Open Invention Network, Benjamin Bai from Ant Financial Services Group, Klaus Haft from @HoyngRokh and Richard Bennett from Schwabe Sandmair Marx will discuss that here: http://bit.ly/EPOblockchain18″

Shame on OIN for participating in patent trolls-infested events of the EPO where software patents are promoted and disguised by hype waves. We have totally lost respect for OIN. It was bad enough that OIN legitimised software patents in the US; is it doing the same in Europe now?

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