Gates and his friend are not having the last laugh
Summary: Intellectual Ventures founder leaves after an exceptionally large round of layoffs, despite recent subsidies from Sony and Microsoft
As noted in the previous post, software patents are gradually going away (if trends are to be judged). Not too long ago we showed how Intellectual Ventures laid off much of its staff after the Alice ruling (amid other ongoing issues). The layoffs were widely reported on and now we learn that Detkin is leaving while saying that “market is tough right now”. It is hilarious because he refers to extortion as a “market”. The news about his departure is excellent news, but he probably won’t go to prison for extortion and a pyramid scheme.
Here is the word from the site which targets trolls but not patent scope:
Here’s some schadenfreude for your Monday: seems that Peter Detkin is leaving Intellectual Ventures. As I noted about a year ago, IV has been having a tough time, although it’s not clear why Detkin is stepping down.
It is worth noting that Sony and Microsoft recently paid more money to Intellectual Ventures in order to keep it afloat. It is also worth noting that Microsoft and Sony share investments in other massive patent trolls and they also share a role in crimes, outlined in part by [1,2,3] (below) and revelations about Sony threatening journalists while launching DDOS attacks. As Will Hill put it the other day:
Inside the Perception Management and Censorship Machine: The Sony Crack Yields Evidence of More Sony Criminal Conduct
Techdirt reports political corruption and bribery against Google by all the major movie studios, all missed by the incompetence or malice of The Verge, a Microsoft mouthpiece. Big publishers are insatiable censors interested only in maintaining their dominant position as determiners of world culture. Google’s efforts to please them only served evil.
The Microsoft press also focuses on Hollywood celebrities and personalized trivia. While it’s nice to learn that Sony executives are racist pigs with a 0.01% sense of privilege and power, hundreds of articles like this will pollute the name space and make it difficult to find real news later.
email exchanges also included racially insensitive remarks about President Obama and derisive comments about Hollywood heavyweights like Kevin Hart and Adam Sandler.
Microsoft often pollutes name spaces and is probably coming to the rescue of their big publisher pals. Microsoft is also persistent censorship threat. They are the biggest issuer of DMCA take down requests, a prolific briber of public officials, university professors, and they created an entire search engine by spying on Windows users to know what results scrape from Google. If you want to know just how dishonest a company they are read their training manuals about subverting the press 
Sony themselves are using every botnet and cracking tool at their disposal to stop people from sharing their leaked emails. Amazon Web Services is also being used to censor the files. It’s not about movies, it’s about the embarrassment of power.
The company is using hundreds of computers in Asia to execute what’s known as a denial of service attack on sites where its pilfered data is available … Sony is using Amazon Web Services, the Internet retailer’s cloud computing unit, which operates data centers in Tokyo and Singapore, to carry out the counterattack … individuals who attempted to access the torrent file encountered bogus “seeds” — or computers — that sapped the resources of their software …
There’s a great deal of fear mongering and BS going on. While the attack was typical Windows malware, the FBI is reported to say it’s really sophisticated and that 90% of businesses and governments are open to similar attacks. If you don’t use Windows, you don’t have to worry about this one. The FBI also says there is no connection to North Korea, but that’s being brought up about as often as Iraqi weapons of mass destruction.
Sony is a criminal company as has been obvious since their nasty music CD root kit fiasco. Not only did they root millions of computers, which must have included sensitive “protected” military, government and health care systems, they committed criminal copyright infringement by using GNU software to make it. As Richard Stallman noted at the time,
Sony didn’t comply with all that [the GPL]. That’s commercial copyright infringement, which is a felony. They’re both felonies, but Sony wasn’t prosecuted because the government understands that the purpose of the government and the law is to maintain the power of those companies over us, not to help defend our freedom in any way.
If you did not believe him then, Snowden and other brave people are providing you with plenty of proof.
One more area where Sony and Microsoft intersect is patent attacks on Google, among other attacks of other types. See the new report titled “Leaked Emails Reveal MPAA Plans To Pay Elected Officials To Attack Google”. A lot of companies, including Facebook which uses the same lobbyists as Microsoft, pressure politicians to harm Google, a steward or guardian of some important FOSS projects, including Linux-based operating systems.
In other news from the above site (the original is unfortunately behind a paywall), there is a new breed of troll which Matt Levy explains as follows:
Here’s the scenario: a patent troll files a suit (or suits) and wins a big judgment. Another company then files an inter partes review petition with the PTAB against the patent troll’s patent and demands a payoff from the patent troll in exchange for withdrawing the petition. If the troll doesn’t pay, it risks losing its patent in the IPR.
I would be more upset about this if I could stop laughing, although it’s hardly a positive development. It can’t be good to have more trolls, even if their victims are patent trolls. Unless of course this new twist helps spotlight dysfunctionality in the patent system for the new Congress.
It’s like extortion against extortion and it is not going to work (blackmail is inherently a problem). It’s like trying to extinguish terrorism using terrorism. █
Related/contextual items from the news:
Every year, legal representatives from seven of the biggest movie studios in the country gather in Sherman Oaks, California to talk about all things anti-piracy. Which isn’t surprising; it’s their livelihood, after all. But what does leaves a sour taste in your mouth is their plan to spread the DMCA-dispensing gospel: With shadowy back room dealings and skewed facts.
According to an email in the leaked inbox of Sony Pictures General Counsel Leah Weil, the meeting is facilitated by the Motion Picture Association of America (MPAA) as a way for the top lawyers at Sony, Time Warner, Viacom, Paramount, Disney, NBC Universal, and Fox to put their heads together and talk global strategy.
As leaks from the recent Sony hack continue to make headlines and company executives apologize for insensitive comments made in exposed emails, we still don’t know how the hack occurred or the exact nature of the demands made by the attackers. But we’ve learned a bit about Sony’s security practices. And we’ve learned that the attackers may have tried to extort Sony before releasing its secrets. We’ve also learned that attempts by Sony to rally public support from rival studios has failed.
On Sunday, a lawyer from Sony Pictures Entertainment sent a strongly-worded letter to news organizations, including The New York Times and Hollywood Reporter, demanding that they not report on the vast quantity of data in the Sony leak.
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Finally seeing the light?
A lighthouse in Denmark
Summary: Instability in the EPO seemingly prevents further expansion of patent scope, which is the subject of scrutiny of EPO staff
TECHRIGHTS has neither actively observed nor spotted much discussion/debate about the Unitary Patent as of late; either it’s being silently stalled or it is being pushed forth in secret (behind closed doors). Truth be told, the EPO is now wrestling with much bigger issues and we will continue to expose damning facts about people who currently run the EPO. They need to be sacked or forced into resignation.
Watch how a lawyers’ propaganda site, IAM, tries to defend the Mafia of the EPO (very much expected from such a zealous site), though as this site puts it:
Keep in mind that this is a poorly attempt to disguise oneself’s doubtful actions! The IAM interview with Battistelli is in my opinion a one-sided version of events. The origin and core of this conflict isn’t about salaries or that 1 judge who was suspended solely rather than violation of National, European and International Law’s in respect of Social Security, Basic Rights and Human Rights! The list of suspended and dissmissed, in some cases, illegal dissmissed servants is long! Do not forget, and here is the point where it starts to get really nasty, in case of dissmissal, wrongfully or not, proven or not, EPO servants do have absolutely NO RIGHTS!!! NO SOCIAL SECURITY, nothing Nada, Niente whereas every European Citizen do own this Rights!
Why does Battistelli don’t comment on why he rules out the labour union first?
Battistelli will most likely be out quite soon. Our EPO series is far from over and it will continue when the time is right (many newspaper journalists go on vacation soon, so it might be worth waiting).
” It is important to impede or altogether prevent the proliferation of software patents; the place they spread from is cracking down on them.”The USPTO, unlike the EPO, is gradually treading away from software patents. Due to the bias of software patents-centric lawyers in the media is may appear like nothing is changing, but actually, a lot is changing quite rapidly in the US. Here is a new example of selective coverage by lawyers’ media and blogs of software patents proponents like Dennis Crouch, who says: “The US Patent Office has released a new set of guidelines for judging patent eligiblity based upon the Supreme Court’s recent quartet of Bilski, Mayo, Myriad, and Alice. The guidelines do not carry the force of law but are designed to serve as a manual for examiners when determining eligibility.”
These guidelines will be hard to change unless SCOTUS gets involved again, which is rare (happens perhaps twice per decade). We are thankful for these developments which not only will hurt patent trolls but also villainous extortion operations such as Microsoft’s. It is important to impede or altogether prevent the proliferation of software patents; the place they spread from is cracking down on them. █
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“It is difficult to get a man to understand something when his salary depends upon his not understanding it.” ~Upton Sinclair
Poster Advertising a Patent Attorney
Record Group 179: Records of the War Production Board, 1918 – 1947
Summary: Patent lawyers continue to distort the reality of software patents’ demise in the United States
The CAFC introduced software patents in the US, but a lot has changed since SCOTUS (the Supreme Court), which is above CAFC, ruled against a software patent and extrapolated from that to potentially invalidate a huge number of software patents. Patent lawyers are furious that even some portion of their business, software patents, is going down in flames and we have already shown them trying to deny it, curse, distort, or resort to blame shifting. Truth be damned! This post presents some more recent responses from them. These saturated the press because opposition to software patents has been inactive as of late.
“Patent lawyers are furious that even some portion of their business, software patents, is going down in flames and we have already shown them trying to deny it, curse, distort, or resort to blame shifting.”A new article titled “Federal Circuit Puts Added Squeeze on Software Patents” shows the far-reaching impact of recent developments as “The courts set a new record for rejecting software patents in 2014″, according to one opponent of software patents. It is not just about SCOTUS anymore because various lower courts, including CAFC, follow the same footsteps of the highest court. They have no choice is they want to obey the law, otherwise appeals will follow suit and be accepted on caselaw grounds.
Over at Managing Intellectual Property, a pro-patents site, is is claimed that “Business method patent issuance has plummeted since Alice”. Another new article from patents-centric media provides a summary of post-Alice rulings on patentability of software. Rosenbaum IP, a law firm, wrote on December 2nd that “drafting narrow claims to ensure software is patent-eligible presents a challenge for patent practitioners. Patent practitioners are trained to draft claims with the broadest possible scope in order to ensnare as many infringers as possible.”
To them, the problem is not software patents but those who are rejecting them. Here is another news article about the post-Alice world, noting: “The U.S. Supreme Court’s recent decision announcing the framework for determining patent-eligible subject matter under 35 U.S.C. Section 101 has created a rabbit hole that will require a rethinking of intellectual-property protection strategies.”
No, not really. Developers already have copyrights and that is more and enough (sometimes too much, e.g. copyrights on APIs in the US, which CAFC accepts, the EU rejects, and SCOTUS will hopefully bury soon). Here is a report about a recent case which shows that not all software patents are categorically dead, at least not yet. To quote the report: “For those following the law of patent eligibility in the United States, a December 5, 2014 precedential decision by the Court of Appeals for the Federal Circuit held that a patent on webpage-display technology is patent eligible under 35 U.S.C. § 101. A slew of recent court decisions have gone the other way, leaving arguably similar patents invalid.”
Over at patent lawyers’ sites, especially in blogs that do not pretend to be journalism, a different picture is presented to readers. Within the echo chamber of patent lawyers truth is warped. Here is WatchTroll, whom we criticised before for extreme bias, glorifying software patents and those acquiring them with help from patent lawyers. He also calls patent trolling “Patent Monetization” and does some revisionism under the banner of
“The History of Software Patents in the United States”. He mocks opposition to software patents and says: “The first software patent was granted by the United States Patent and Trademark Office (USPTO) on April 23, 1968 on an application filed on April 9, 1965, Martin A. Goetz, a pioneer in the development of the commercial software industry, was the inventor of the first software patent ever granted, U.S. Patent No. 3,380,029. Several years ago PBS Digital Studios profiled Goetz and his pursuit of the first software patent.”
Martin Goetz is extremely biased in favour of software patents, so he is convenient for what is basically a defence of such patents. It is agenda disguised as ‘history’ (not just ‘news’) and it clearly became a series whose claims we reject. It’s a selective account of history.
There are other pro-software patents ‘news’ sites and there is utterly, overly selective coverage there (any losses for software patents are ignored). We reviewed dozens of these over the past fortnight and it’s very easy to spot to one who knows the facts and keeps abreast of many cases. WatchTroll’s site acknowledges that the “Federal Circuit Finds Software Patent Claim Patent Eligible”, but most of the time he just tries to paint everyone as a supporter of software patents (the opposite is true), thereby trying to pressure judges and mislead colleagues. Totally irresponsible!
In other lawyers’ Web sites there is another type of bias that looks more professional. An article by Adam M. Breier from Finnegan, Henderson, Farabow, Garrett & Dunner, LLP shows us one a such example where patent lawyers are trying hard to promote software patents, sometimes by only covering what suits their agenda. They usually ignore the bad news (to them) and mislead readers by providing only coverage one half of the half-filled glass. At National Law Review there is an article titled “Section 101 and Software Patents: Abstract or Not?” (published here as well). Therein, an overview is presented by a biased author.
The Alice case is still in the headlines of legal sites (a month later) and words cannot express how disgusting the so-called “legal” press is. Patent lawyers are very much desperate to discredit court decisions which are hostile towards software patents these days. Articles continues to come which paint a deceiving picture, seeking to make it a self-fulfilling prophecy. Such sites are trying to shoot down the messenger and ignore the facts. Such is the case with coverage in patent lawyers’ sites of Ultramercial, LLC v. Hulu, LLC (software patents lost). Here is Lowell D. Yoder from McDermott Will & Emery saying that Post-Alice Federal Circuit Finds Internet Advertising Method Not Patent Eligible” (true, but see the self-serving analysis) and others say in patent lawyers’ sites that “Patent Eligibility [is] Becoming Threshold Question for Litigation”. Not litigation is at stake, but the actual eligibility (including during assessment by patent examiners after issuance of new guidelines). A widely published article phrased is as a question, “Another software patent is ruled patent-ineligible – are business method and software patents at risk?” (also published here and here).
This is a rhetorical question. It hardly needs to be asked at all, except perhaps in patent lawyers’ media. Also see “California district court helps clarify when software claims are patent eligible under Alice Corp. v. CLS Bank” and “Claims that CAFC’s Ultramercial decision could prove a catastrophe for companies that license software patents” (or patent extortion like Microsoft’s). Notice how it’s framed. They make it sound like horrible news despite the fact that the vast majority of software professionals loathes software patents.
IAM, a crude patent propaganda site, is once again relaying Microsoft’s talking points, which promote software patents (see “Software patent owners have nothing to fear from the CAFC’s Ultramercial decision, says Microsoft’s former chief patent counsel”).
Also see the article “Protecting Intellectual Property Rights In Software After Alice Corp. v. CLS Bank” from the lawyers’ press. It is not unusual for a legal firm to characterise monopoly on algorithm as “protecting”. It is just the lingo of patent lawyers with euphemisms and double standards. Above is a loaded headline whose purpose it to appeal to emotion and make rulings against software patents seem like “catastrophe”.
The Ultramercial case shows that beyond copyrights there is no reason to have a government-sanctioned monopoly. That is not so hard to understand, is it?
The proponents of software patents and spinners against Ultramercial of course include WatchTroll, who wrote: “Ultramercial’s Federal Circuit luck has now run out. Gone from the original panel was Chief Judge Rader who retired and was replaced by Judge Mayer, which does not bode well for any patent owner.”
This is the corrupt software patents extremist, Mr. Rader, whom we wrote about in [1, 2, 3]. How convenient a source to lean on!
Legal-centric sites go further by also promoting software patents in Australia (see the article “Australian full court sets new test for software patents – it’s all about the substance”) and in India, which still fights lobbyists who try to legalise software patents in this software giant nation (see “Disclosure Requirements For Software Patents”).
Dr. Glyn Moody has an interesting new article about FRAND (usually about software patents, albeit not always) in hardware superpower China, citing a dispute with ZTE. To quote Moody:
How Should Standard-Essential Patents Be Licensed?
Patents are intellectual monopolies, designed to give the patent-holder control over an invention by excluding others from using it without permission. That’s a problem when standards include patented elements. Anyone who wants to implement that standard must use the invention, which gives the patent-holder the ability, in theory, to demand and obtain any licensing deal it might propose. To limit that power, holders of these standard-essential patents are often required to agree to offer licensing terms on fair, reasonable and non-discriminatory (FRAND) terms.
However, when another Chinese company, ZTE, sought a license from Huawei, they were unable to agree on the terms, so Huawei brought an action for infringement against ZTE. According to ZTE, Huawei’s attempt to obtain an injunction against it constituted an abuse of its dominant position, since ZTE was willing to negotiate a license. Here’s the key part of the Advocate General’s opinion.
Incidentally, there is a new report showing just illegitimate the USPTO is becoming. Now it treats patents, which are supposed to be all about publication, as secrets. To quote TechDirt: “The USPTO drops the dreaded b(5) exemption all over its internal emails, withholding stuff seemingly just to be withholding stuff, which is what the b(5) exemption does best. Supposedly this exemption is limited to memos or letters that would not be available to anyone but a “party in litigation with the [responding] agency,” but in this case, seems to cover information otherwise in the public domain.
“Here’s another redacted set of search results, covering variations like MARKY or MARKEY appearing on clothing. Hopefully, the two pages of black ink are covering up images rather than words. Otherwise, it would appear that the MARKY/MARKEY market is incredibly overcrowded.”
How ridiculous is that? The US patent system sure seems like it’s facing a crisis (of patent quality or scope) and it is going to have to cut down on software patents, business method patents, etc. in order to save its credibility. Without credibility it will cease to attract clients, some of whom sooner or later realise that acquiring a patent is not enough to successfully sue a rival in court. █
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Benoît Battistelli with one of his bosses from the multinational corporations
Summary: The régime headed by Benoît Battistelli and his criminal deputy continues to overthrow or pressure out everyone who is not ‘loyal’ to the régime
Benoît Battistelli’s reign of terror is coming to an end. He has become a laughing stock inside the organisation he proclaims to be managing. He is being vastly outnumbered by his opposition, so claiming that his opposition is a small dissenting voice or “muck raking” won’t work. People no longer need to fear him, especially if they remain united against him (he cannot lay off or euphemistically “suspend” half of his staff).
According to various reports, like this one from Switzerland (not part of the European Union but definitely EPO-focused), says that both patent scope (or quality) and independence are under fire. The EPO is not a corporation and managing/aligning it against the interests of European people should not be tolerated. Not even EPO staff – i.e. potential short-term benefactors in case of patent maximalism (in the long term it discredits the system and repels clients) – is willing to tolerate that. IP Watch says: “While some European Patent Office (EPO) employees strike on 10 December, many are waiting to see what the Administrative Council (AC), the office’s supervisory body, will do about the growing tension between EPO President Benoît Battistelli and his staff.
“The AC, composed of representatives from EPO member states, has been confronted with claims that patent examiners will no longer be able to ensure patent quality standards if Battistelli’s proposed “New Career System” (NCS) is approved.”
Another European site covered recent events involving the Administrative Council and according to Merpel from IP Kat, Battistelli has come under fire from yet more judges, namely:
- Sweden: Per Carlson, President of the Market Court
- Switzerland: Katherine Klett, Swiss Federal Supreme Court
- Cyprus: Stelios Nathaniel, Judge Supreme Court of Cyprus
- Denmark: Henrik Rothe, Chief Justice the Maritime & Commercial High Court
- Romania: Octvia Spineanu-Matei, High Court of Cassation and Justice
- Finland: Ari Wiren, Judge
Some “muck raking”, eh? That’s what Battistelli might wish to label it, albeit this would backfire on him. Some also serve as external members of the Enlarged Board of Appeal, so basically these are in some sense colleagues not ‘loyal’ to the authoritarian and arrogant Battistelli.
There is already political action and pressure from the press against Battistelli.
“There is already political action and pressure from the press against Battistelli.”Jean-Yves Leconte, of France, was recently mentioned here for his actions on this matter. Here is more from him. A new press article from Les Echos writes about what goes on at the patent office and covers the action taken by judges after an unprecedented suspension by of Battistelli. This shows that the biggest stakeholders at EPO no longer want Battistelli. He is probably on his way out (sooner or later).
Not only the French press writes about this (because of Battistelli’s French nationality). The German press too covers it. The Frankfurter Rundschau reports about the revolt against Battistelli (at many levels) and other German media provides coverage of the protests (in German). Watch a patent maximalists’ site framing the problem as a transparency issue. Complete nonsense from patent lawyers. It’s a straw man, just like Battistelli’s (he pretends that “transparency” or lack of understanding is the problem).
German lobbyist Florian Müller published a decent analysis and roundup of the recent developments following the suspension of a judge by Battistelli’s régime:
On its website, the European Patent Office has published a “communiqué” concerning this week’s meeting of the Administrative Council (AC) of the European Patent Organisation (the international body running the EPO) that contains a sybilline sentence on the suspension of an EPO-internal judge (member of a board of appeal) for disciplinary reasons. The suspension was widely criticized, including but not limited to a letter by (internal) members of the Enlarged Board of Appeal (EBA) to the AC, a letter by two external EBA members, Lord Justice Floyd and high-ranking Dutch court official Robert van Peursem, which was subsequently endorsed by leading patent judges from six other countries, and an email sent by a German patent litigator to his country’s AC member.
If this sentence explicitly mentioned a reprimand of President Battistelli for compromising judicial independence, its meaning and its significance would be clear. However, “an incident unique in the history of the EPO” is vague enough that this could also mean unanimous backing of the executive’s action and concern over whatever the suspended judge may have done. That interpretation is less likely to be correct than disagreement with the way the executive leadership handled the matter, but it can’t be ruled out completely in light of the unanimous endorsement of the suspension.
Coverage of this scandal in the general press will also play a key role. I heard that a Munich area center-right newspaper, Münchner Merkur, published an article in yesterday’s print edition, entitled “Die letzte Diktatur auf deutschem Boden” (“the sole remaining dictatorship on German soil”). Things can’t stay that way forever. The AC’s “communiqué” should be interpreted by the IP sector and by innovative companies depending on high-quality patents (I heard from an unofficial source that a compensation scheme with potentially disastrous implications for European patent quality was approved yesterday) as an invitation to push even harder for serious reform. It shows that all these recent efforts, by EPO staff and by others, didn’t go unnoticed, but they will one day have been in vain unless there’s even more pressure now.
The EPO is now in ‘damage control’ mode. It has published two updates in one day (yesterday) after almost 2 months of silence. Here is the first update:
Communique on decisions taken by the Administrative Council at its 142nd meeting concerning senior employees and appointments and reappointments to the Boards of Appeal
The Administrative Council of the European Patent Organisation held its 142nd meeting in Munich on 10 and 11 December 2014 under the chairmanship of Jesper KONGSTAD (DK).
The Council addressed a number of points concerning senior employees and the Boards of Appeal. Specifically, the Council addressed disciplinary arrangements applicable to senior employees appointed by the Council under Article 11 (1)(2)(3) EPC and, noting its obligations under Article 11(4) EPC, agreed to set up a Council Disciplinary Committee.
The Council took this opportunity to reiterate its full endorsement of and support for the principle of independence of the members of the Boards of Appeal, as specifically set out in Article 23 EPC and generally embodied in internationally recognised principles of judicial independence.
The Council also made four re-appointments of members of the Enlarged Board of Appeal and Chairmen and legally qualified members of the of Boards of Appeal pursuant to Art 11(3) EPC, as well as a total of twelve appointments and re-appointments of legally qualified members of the Enlarged Board of Appeal pursuant to Art 11(5) EPC.
On a proposal from the President of the Office, the Council addressed and carefully considered a particular issue concerning alleged misconduct by a Council appointee under Article 11 (3) EPC. As a precautionary and conservative measure without anticipating any further steps which may ensue, the Council unanimously decided to suspend the person concerned from active duty on full salary until 31 March 2015. The Council requested the investigation to be completed as soon as possible, in order to allow it to decide on the next steps. The Council expressed its concern at an incident unique in the history of EPO.
Details of the appointments and reappointments as well as of other decisions taken by the Council at this meeting will be published separately.
Kongstad exists to protect Battistelli and his cronies, so he too is part of the problem, not the solution. Here is a later update about Kongstad’s flawed ‘regulation’/administration:
142nd meeting of the Administrative Council of the European Patent Organisation (Munich, 10 and 11 December 2014)
The Administrative Council held its 142nd meeting in Munich on 10 and 11 December 2014
with Jesper Kongstad, Director General of the Danish Patent Office, in the chair.
After the Chairman’s report on the last meetings of the Board of the Administrative Council, the President of the European Patent Office, Benoît Battistelli, presented his activities report. The Council expressed its clear satisfaction.
The Council then exchanged information on strategic matters within the Organisation and on the social climate and addressed a particular issue concerning alleged misconduct by a Council appointee under Article 11 (3) EPC, reported separately on this website.
Further, the Council proceeded with a series of appointments and re-appointments to positions in the boards of appeal.
Later, the Council heard status reports on the Unitary patent and related developments as well as on substantive patent law harmonisation.
Lastly, the Council adopted a reform of the career system as well as the draft budget for 2015.
So basically Kongstad (one of the president’s cronies) keeps attacking the EPO’s staff. This is the sort of behaviour that even Stalin would be envious of. An activist site of EPO staff says that “EPO President Battistelli threatens the staff representatives – again!!!”
To quote the site’s framing of the latest developments: “Each Central Staff Committee (CSC) member has personally received a series of three highly threatening letters from the President, dated 4 December 2014. The members of the LSCs have also received the letter dealing with nominations to the Internal Appeals Committee (IAC). Within one week after receipt of the letters, 2 local members in Munich and 1 central member in The Hague have resigned. The staff representation has now lost 4 members 6 months only after the new elections under the “Social Democracy” framework. In this publication, the CSC responds to the threats of the President.”
Battistelli and his cronies need to be toppled before they managed to sack or drive out all of their opposition scaring the rest into silence and passivity. The crimes of Battistelli or his cronies will be the subject of future posts in Techrights. Battistelli’s tactics against his opposition are similar to how proponents of “War on Terror” handle dissent; if someone disagree, then just label that someone a threat and eliminate him/her to eradicate an uprise. █
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Profit conflated with innovation
Summary: The scope of patents, as evidenced by some statistical figures and individual patents, shows that the USPTO is broken and must be reformed or dismantled
Kevin Drum from Mother Jones is a very good writer who covers a broad range of topics. Several weeks ago he wrote about patents, noting that “More Patents Does Not Equal More Innovation”. Well, more patents mean more business for the USPTO and patent lawyers, but they would rather just paint their profit as “innovation”. Here is what Mr. Drum writes, citing the corporate media:
Via James Pethokoukis, here’s a chart from a new CBO report on federal policies and innovation. Needless to say, you can’t read too much into it. It shows the growth since 1963 of total factor productivity (roughly speaking, the share of productivity growth due to technology improvements), and there are lots of possible reasons that TFP hasn’t changed much over the past five decades. At a minimum, though, the fact that patent activity has skyrocketed since 1983 with no associated growth in TFP suggests, as the CBO report says dryly, “that the large increase in patenting activity since 1983 may have made little contribution to innovation.”
We recently showed that almost every application for a patent is now successful, i.e. patent granted (proving that there no quality control at all and demonstrating laziness or greed, motivated by wrong yardsticks by which to assess patent examiners). This whole system has become a sham and people should do something about it, as the problem won’t go away on its own.
“This whole system has become a sham and people should do something about it, as the problem won’t go away on its own.”Might we ever see USPTO staff demonstrating in the streets of Washington, following the example set by EPO staff? The problem and the grievances (about scope and corruption) are similar.
The other week we saw the EFF highlighting yet another “Stupid Patent of the Month”. It is a software patent which is basically something that a child can come up with, or even an observer of what has been going on for centuries. To put it in the words of Ars Technica:
November’s “Stupid Patent of the Month,” brought to you by Penn State
Three months ago, the Electronic Frontier Foundation inaugurated a monthly tradition in which they wrote about a “Stupid Patent of the Month.” The first patent they publicized was basically a description of a doctor’s “computer-secretary.” Since then, they’ve highlighted a vague software patent owned by a serial litigant, a patent on filming a yoga class, and a patent with a formula for curing cancer (a combination of “sesame seeds, green beans, coffee, meat, evening primrose seeds,” among other things.)
Here is the latest:
One of the items for sale is US Patent No. 8,442,839, entitled “Agent-based collaborative recognition-primed decision-making.” The lead inventors are PSU professors John Yen and Michael McNeese. The patent essentially describes different ways that people work together to solve a problem.
Steps include “receiving information regarding a current situation to be analyzed,” interacting to receive “assistance in the form of assumptions or expectancies about the situation,” and using “collected information to determine whether a decision about the situation is evolving in an anticipated direction.” A PSU news site describes the invention as using a framework called “Collaborative Agents for Simulating Teamwork.”
“The patent reads a little like what might result if you ate a dictionary filled with buzzwords and drank a bottle of tequila,” writes EFF lawyer Daniel Nazer. He notes the patent was originally rejected by the patent office. “Penn State responded by amending its claim to ‘include a team-oriented computer architecture that transforms subject matter.’ In other words, it took an abstract patent and said, ‘Do it on a computer.’”
A lot of software patents are like that. They merely add “over the Internet” or “on a computer” to some process that has existed for a very long time. There’s no innovation in it, except perhaps the innovation which is the Internet or the computer itself.
Anyone who still thinks that the patent system promotes innovation should take a look at a patent or two, setting aside the jargon and buzzwords. We covered other examples in the past and examined their lack of novelty. Some examples came from Nintendo and there is this new example where Nintendo patents something using the “in mobile devices” pseudo ‘novelty’. To quote AOL:
A new patent published by the USPTO yesterday details an invention by Nintendo that would allow it to emulate its mobile game consoles, including the Game Boy line of devices specifically, in other settings, including on seat-back displays in airplanes and trains, and on mobile devices including cell phones. The patent is an updated take on an older piece of IP, so it’s not an entirely new idea, but it’s still very interesting to consider that Nintendo could have renewed interest in the idea of running its own back catalogue on many different kinds of screens.
It is not an entirely new idea at all. In-flight entertainment, emulation and mobile devices are very old ideas and just combining them should not be enough to earn a patent. Then again, as USPTO eventually accepts (grants patents for) 92% of all applications, it seems to have become an illegitimate system of protectionism that puts the burden on innocence on victims, passes a lot of incentive to patent lawyers, and has small companies foot the legal bills. █
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Not much in terms of changes except the public face
Photo from Asian Pacific Fund
Summary: An update on efforts to reform the patent system in the United States, including the possibly imminent appointment of Michelle Lee to USPTO leadership role
OUR friends over at IP Troll Tracker argue with proponents of patent trolls, including those who try to classify the world’s biggest trolls (firms like Intellectual Ventures) as something else. Apparently, trying to say who qualifies as a patent troll is a controversial issue among those who are in this business and this is why there was hardly any substantial progress on eradication of patent trolls. The de facto definition of “troll” these days is “small actor that uses patents”. It’s about scale, not scope. If you are a massive corporation like IBM and Microsoft, then you somehow can’t qualify as “troll” even when you engage in the very same tactics on a much larger scale.
“If you are a massive corporation like IBM and Microsoft, then you somehow can’t qualify as “troll” even when you engage in the very same tactics on a much larger scale.”This new article from TechDirt speaks of the fight for patent reform by the likes of Newegg, correctly noting that “the company became a leader in fighting back against ridiculous patent lawsuits, going toe-to-toe with some of the biggest trolls around. The company’s Chief Legal Officer, Lee Cheng, has vowed to never settle with a patent troll, and so far has never lost an appeal on a patent claim.”
Another older article from TechDirt cites Professor Bessen and reminds us that Free software projects are directly being harmed and even eliminated by patent trolls (we gave some examples before). To quote the article, via James Bessen, “we [now] learn of how a patent trolling operation by StreamScale has resulted in an open source project completely shutting down, despite the fact that the patent in question (US Patent 8,683,296 for an “Accelerated erasure coding system and method”) is almost certainly ineligible for patent protection as an abstract idea, following the Supreme Court’s Alice ruling and plenty of prior art. Erasure codes are used regularly today in cloud computing data storage and are considered to be rather important. Not surprisingly, companies and lawyers are starting to pop out of the woodwork to claim patents on key pieces. I won’t pretend to understand the fundamental details of erasure codes, but the link above provides all the details. It goes through the specific claims in the patents, breaking down what they actually say (basically an erasure code on a computer using SIMD instructions), and how that’s clearly an abstract idea and thus not patent-eligible.”
See this page about the patent: “The Accelerated erasure coding system and method software patent was filed by StreamScale, a patent holding company, and granted by the US patent office in march 2014 (filed july 2013). It claims to own the idea to use SIMD instructions to speed up the computation of Erasure Code. It is a patent-ineligible abstract idea and can be ignored.”
Well, it may be a patent-ineligible abstract idea, but proving in in Court can be costly, especially for a Free software project.
It is being reported right now that Michelle Lee, formerly of Google, is en route to becoming the next head of the USPTO (the pro-software patents sites exploit this to try to promote stronger policy in favour of software patents). “There were no big surprises,” writes Patent Progress, “on Michelle Lee’s nomination as head of the USPTO. The Committee went fairly easy on her with their questions, with the possible exception of Senator Durbin, who admits that he knows nothing about patents or patent law, but seems convinced by his Illinois constituents that there is no patent troll problem.”
Durbin and the likes of him seem to be talking based on (mis)information from lobbyists and funders, not facts. It’s the big corporations talking. Either way, while it’s clear that there is a patent troll problem, there is also a patent scope problem and that’s what trolls tend to exploit. It’s not a surprise that a site like Patent Progress only focuses on patent trolls; see who funds the site by proxy (certain type of big corporations). Another new post from this site states that “Commissioner Brill’s main point was that we shouldn’t wait for the study to be concluded before pursuing legislation against PAEs. There’s no question that the PAE problem exists and is getting worse; she made clear that the new Congress should act immediately after taking office.”
PAE is just a euphemism for troll or shark.
As readers may recall, the Republicans (GOP) spoke about 'reform' on patents roughly one month ago, but nothing was really going to change. Mike Masnick from TechDirt recently published this update that says: “Back in May, we wrote about how, despite pretty much everyone agreeing on a (decent, if not amazing) patent reform bill in the Senate, the whole thing got shot down at the last minute. That was when the trial lawyers called Senator Harry Reid, asking him to kill the whole thing, which he did by telling Senator Patrick Leahy that he wouldn’t allow the bill to go to the floor for a vote. This came after months of detailed negotiations, getting nearly everyone into agreement on the bill, which would have made life at least somewhat more difficult for patent trolls. About a week after that, we pointed out that it seemed likely that the patent trolls had miscalculated badly, because it was widely expected that the Republicans would take control of the Senate in the fall (as they did), and they were more gungho on real patent reform and (obviously) not concerned with what trial lawyers think (mocking trial lawyers being a hobby of Republican politicians).”
To make a long story short, there is still no sign of reform on patents and even if there’s reform some time in the near future, it won’t actually address the problem of patent scope; it only targets “small trolls”, not “big trolls” like Microsoft and Apple, which still can use software patents to imitimate or extort Free software projects, including Android and Linux. █
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EPO scandals making it into the press now…
Summary: Information about the abuses of Battistelli et al. at the EPO are finally receiving wider coverage and increasing the strain on Battistelli’s authoritarian reign
TECHRIGHTS forecasts that heads will roll at the EPO within weeks or months. Our community also expects the corporate media to increase its level of coverage of these issues. It’s already happening, so citizens are being informed in many languages.
“The responses from the management of the EPO are telling because they in no way refute what we have covered here for months.”Yesterday we found a good summary of recent events, aptly titled “Is the EPO in Crisis” (detailed article from Managing IP).
The article gives the accused an opportunity to respond, but Konstad refuses to respond to Managing IP, which is pro-patents (it’s not hostile). Staying silent was his implicit policy all along, perhaps realising that he needs to harbour and shelter a bunch of bullies. The report has some new points and it’s rather revealing. The responses from the management of the EPO are telling because they in no way refute what we have covered here for months. Managing IP says that on November 20th more than a third of the staff walked out and protested. SUEPO (the staff union representing and defending EPO staff) is mentioned as well.
There is another interest new report from IP Kat and it shows increased involvement from prominent figures:
Leading European IP Judges join the chorus of condemnation
A week ago today, a member of one of the EPO’s Boards of Appeal was escorted out of the building, and banned from the premises pending an investigation of alleged misconduct.
It is believed that the reason for the “house ban” or suspension was the alleged dissemination of defamatory material.
Widespread criticism ensued immediately both inside and outside the office, both on the grounds that this directly breached guarantees of judicial independence (Art. 23 EPC), and that this was a further instance (among many) of heavy-handed suppression of criticism, dissension and debate within the EPO.
The ultimate governing body of the EPO, the Adminstrative Council (AC), meets this week. It is this body alone that would be empowered to impose sanctions such as suspension or dismissal on a Board member.
On Monday, members of the Enlarged Board of Appeal (EBA), which is the highest judicial authority in the European Patent system took the unprecedented step of complaining about the conduct of the President, and of his interference in their judicial independence, directly to the AC delegates arriving for their meeting.
Simultaneously, another letter emerged from a Partner in Bardehle Pagenberg, exhorting the head of the German delegation to the AC to take the lead in rectifying the President’s actions.
Anonymous comments, many of which from EPO staff, can be seen at the bottom. It sure is becoming quite a huge thing and in France the politicians have taken an interest (our French-speaking audience may be interested in [1, 2, 3]). To sum up some recent developments in the words of a source, “the socialist Deputy Leborgn (for the French citizens living abroad) already was in touch with various Ministers (including foreign affairs : Fabius, Industry : Pellerin, economy : Moscovici) in April this year. However, he was told in substance “before Mr. Battistelli there was no legal system framing the right to strike so that it should be regarded as a progress. Presented with the fact that the new strike law was below French standard, the deputy was answered that the EPO is made of 38 countries so that compromises should be made. For the record, Fabius, Moscovici, Pellerin and now Marcon all come from the same school as Mr Battistelli: that is the ENA (Ecole Nationale d’Administration). ENA’s alumni is one of the most powerful French networks [and] may be even more powerful than freemasonry” (words of the source, not ours).
Now that this scandal’s coverage makes it into newspapers in German, French, English etc. we can rest assured that something big will happen. In the coming weeks we are going to cover corruption charges to add fuel to the fire. █
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Summary: The EPO scandal has officially spilled over to France, where a French Senator got involved and starts asking serious questions
ONE of our sources for the EPO stories handed to us this letter in French. If any of our French-speaking readers could kindly provide us with an English translation, that would greatly help raise awareness.
Our source says that our dozens of articles “may even be causing some ripples in the outside world. According to our information, the French Senator Jean-Yves Leconte wrote a letter to the French Ministry in charge of the INPI on 14 October.
“He doesn’t mention the Topić affair, but he refers to the INPI-cronyism in a lot of senior EPO appointments and he requests that the Minister exercise more control over France’s delegate to the AC (the current Director of the INPI and Battistelli’s successor in that position).” █
Update: We now have a translation of the letter into English. It states:
I hereby confirm that I have read your letter dated September 15th 2014 relating to the social climate currently prevailing within the European Patent Office (EPO). I note as well that you support the idea of setting up a social audit within the Office and that you have notified this to our representative in the Administrative council.
Nevertheless, you certainly know that both the President Mr. Benoit Battistelli and our representative in the Administrative Council (AC), Mr. Yves Lapierre, come from the French National Institue of Industrial Property (INPI), and that one of the topics which make the atmosphere extremely tense at EPO is that former members of INPI are taking over the direction of this organism in a disproportionate manner.
For this reason, it seems legitimate that, regarding the mandate exercised by Mr Lapierre for the INPI, the former should effectively and regularly be framed by instructions issued by your services, notably in order to spare us situations where we would end up at odds with the management of his President, being noted that certain members of the AC insistently refer to his French citizenship.
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