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06.18.19

Indifference or Even Hostility Towards Patent Quality Results in Grave Injustice

Posted in Deception, Europe, Patents at 9:31 am by Dr. Roy Schestowitz

European Digital SME AllianceSummary: The patent extravaganza in Europe harms small businesses the most (they complain about it), but administrative staff at patent offices only cares about the views of prolific applicants rather than the interests of citizens in respective countries

THE Battistelli/Campinos-run EPO is a blatant, shameless promoter of software patents in Europe, as we last noted earlier today. Similarly, the new USPTO Director is hostile towards 35 U.S.C. § 101 because he has long been an advocate of software patents. He made money from litigation, just like Michael Borella who earlier today promoted the rigged 'panels' that merely discredited the US Senate. What makes these people so sure that 'dissing' courts/judges is a good idea? It only aggravates them.

“They’re an illusion of value (like Ponzi schemes) or simply fake ‘assets’ that are just a piece of paper courts would spit at.”Earlier today Ben Wodecki (IPPro Magazine) wrote about “HEY HI!” (AI) patents — whatever they actually are; they’re usually just bogus, abstract patents. They’re an illusion of value (like Ponzi schemes) or simply fake ‘assets’ that are just a piece of paper courts would spit at.

It certainly seems like UK-IPO is trying to attract dubious applications; it wants patent applications of low quality and drops a big number (£630 billion) because of “AI patents”, which Wodecki was happy to pass on as though it was factual. To quote:

The number of UK patents in artificial intelligence (AI) has grown exponentially and is expected to add £630 billion to the UK’s economy by 2035, according to a report from the UK Intellectual Property Office (UKIPO).
The report, which gives an overview of AI patents and patenting by the UK AI sector, showed that the UK’s patent activity related to AI technologies has more than doubled in the last decade.

However, according to UKIPO figures, around 88 percent of AI-related patents first filed in the UK are also protected elsewhere.

The US still dominates globally in the number of AI-related patents, with double the number of patents compared to the UK. The UK sits in a respectable fourth place, behind two multinational offices, the European Patent Office (EPO) and the World Intellectual Property Organization (WIPO).

What good are these patents though? Here’s another way to put it; as a reminder, the UK Supreme Court is no friend of patent extremists [1, 2]. It throws out patents like these and the higher the court is, the more likely it is to do so because at the higher levels corruption and mischief are harder to get away with; so the law is adhered to/respected more often, ratio-wise. Also among the contributing factors: more eyes (scrutiny) due to importance by precedent.

“It certainly seems like UK-IPO is trying to attract dubious applications…”As it turns out, or as patent maximalists put it today, UK Supreme Court judge Lord Justice David Kitchin slaps down this whole “HEY HI!” (AI) hype that’s used to justify bogus patents in places that are run by clueless and greedy bureaucrats (like at the EPO). To quote the outline:

UK Supreme Court judge Lord Justice David Kitchin says he is not convinced AI-created works warrant the same IP protection as human creations

The EPO does not seem to care what European judges are saying; instead, the EPO hopes to just replace them all with judges more closely/directly controlled by the EPO. “French ratification of the UPC was pushed through the Senate by rapporteur M. Ronan Le Gleut, who was examiner at the EPO,” Benjamin Henrion noted some time ago (we wrote about him before) and another EPO alumnus, Christian Archambeau, moved from the EPO to EUIPO, where both institutions are still ‘googlebombing’ the term “SMEs”. They just try to distract from the harm they cause to these, expediting work that concerns large foreign companies; the UPC would of course cause further harm to SMEs. Over the past month or so, several times per week in fact, the EPO and EUIPO have promoted the same bogus ‘study’, which they paid for (it invalidates the argument of neutrality or motivation being benign). Earlier today the EPO once again tweeted: “Our joint study with the @EU_IPO shows that the likelihood of experiencing a high-growth period is 17% higher for SMEs that have filed for at east one European IPR.”

“The EPO does not seem to care what European judges are saying; instead, the EPO hopes to just replace them all with judges more closely/directly controlled by the EPO.”That’s based on bad science, just like prior ‘studies’ they did on SMEs, which are harmed the most. Watch them bragging (warning: epo.org link), even in Twitter this morning, about that stupid “award” of theirs; they reward software patents from foreign giants like Qualcomm and want us to believe that those patents exist for a positive purpose.

“Munich fake injunction [with EP2724461] published,” wrote Florian Müller in his blog only a few hours ago, demonstrating that patent quality is a disaster and this results in highly expensive injustice. This is what Qualcomm did:

This is a long-overdue follow-up to a post of two months back on an order by the Oberlandesgericht München (Munich Higher Regional Court) granting a motion by Apple to stay the enforcement of Qualcomm’s illegitimate (for multiple reasons) Germany-wide injunction over EP2724461 on a “low-voltage power-efficient envelope tracker”–a patent that an opposition panel of the European Patent Office revoked last month because it shouldn’t have been granted in the first place, not even in a narrower form (Qualcomm can and likely will appeal that decision). And Judge Lucy H. Koh’s landmark FTC v. Qualcomm antitrust ruling came down that same week.

Of all the cases I’ve watched since I started this blog nearly a decade ago, what went wrong in this Munich case makes it the worst non-standard-essential patent case by a wide margin, just like the district court’s Oracle v. Google rulings were the worst in any software copyright case and the Mannheim Regional Court, in 2012, set a negative example for how to handle a standard-essential patent (SEP) case when it totally failed to recognize Motorola Mobility’s blatant antitrust violation by seeking to enforce SEPs after initially making bad-faith out-of-this-world royalty demands (a royalty on computers that was effectively more than a 100% royalty rate since Microsoft would have had to pay Motorola more than it typically earned per copy of Windows sold to an OEM). Apart from that, I’ve certainly seen–and keep seeing–very bad stuff coming out of the Eastern District of Texas on various occasions, but those weren’t cases I followed closely.

The regional government of the state of Bavaria published the December 2018 fake injunction ruling, but I still haven’t been able to find a public redacted version of the appeals court’s order that tears the fake injunction into pieces, so I’m going to publish it here and now (this post continues below the document):

It’s not hard to see that an SME would not be able to endure because it’s just too expensive. Yet patent extremists from CIPA and Team UPC not only promote the UPC but also software patents. IP Kat (Jonathan Pratt) has just advertised an event in which patent extremists from CIPA promote patents on life and nature. To quote:

CIPA’s annual Life Science Conference is taking place on 11 and 12 November 2019 in Brighton. The conference is an educational and networking event for patent and IP professionals active in the pharma, medical technology and biotechnology sectors. There will be a pre-dinner speech by Lord Kitchin. More information can be found here.

“Intellectual Property Magazine is recruiting a Reporter in its Business Intelligence division,” he adds. Some of their writers left. We’ve noticed. In fact, staff turnover in these think tanks (disguised as “news”) seems very high. Many quit and just vanish without notice. Same in MIP and IAM. The patent maximalists in general experience calamity these days.

“One has to wonder if they even care about science at all. They don’t.”Just over an hour ago IP Kat (Cecilia Sbrolli) wrote some more fluff about “Fourth Industrial Revolution” — a vague marketing term that the EPO likes to use when it talks about software patents (knowing it cannot use the term “software patents”). To quote the introduction: “A few weeks ago this Kat was pleased to participate in the event “Institutions And Regulation For The Fourth Industrial Revolution” jointly organised by the Liège Innovation and Innovation Institute (LCII), Hoover IP2 (Stanford University), and the Center for Intellectual Property of the University of Gothenburg.”

Yeah, so-called ‘Intellectual Property’ [sic]. One has to wonder if they even care about science at all. They don’t.

‘AI Taskforce’ is Actually a Taskforce for Software Patents

Posted in Deception, Europe, Patents at 1:54 am by Dr. Roy Schestowitz

Published Sunday:

Summary: The mainstream media has been calling just about everything “HEY HI!” (AI), but what it typically refers to is a family of old algorithms being applied in possibly new areas; patent maximalists in eastern Asia and the West hope that this mainstream media’s obsession can be leveraged to justify new kinds of patents on code

W

e have recently published several articles about how the European Patent Office (EPO) and U.S. Patent and Trademark Office (USPTO) leveraged a bunch of meaningless buzzwords and misnomers to bypass whatever barriers exist to software patenting. It happened again in Korea last week [1, 2]. António Campinos still promotes software patents in Europe using the “AI” hype like Battistelli did and sometimes the nonsense that is “4IR” or “Industry 4.0″ or whatever the media fancies (or paid to fancy; the EPO paid some publishers to promote these terms and the money was disguised with the veneer of “study” or “research”).

“The EPO facilitates such patents mostly through buzzwords; it doesn’t care what European courts say.”Earlier this week D Young & Co LLP’s Arun Roy and Jonathan Jackson wrote about misusing the "blockchain" hype wave to get illegal software patents (that actual courts would throw out). Other law firms have just mentioned that ludicrous “AI taskforce” — a Trojan horse by which to enable software patents worldwide, in clear defiance of courts, using the “HEY HI!” hype wave (see the new paper from Prof. Clark D. Asay, entitled Artificial Stupidity).

To quote:

On June 13th 2019, the heads of the five largest patent offices in the world held their annual meeting in Incheon, Korea. The five patent offices, commonly known as the IP5 consist of the Korean Intellectual Property Office (KIPO), European Patent Office (EPO), Japan Patent Office (JPO), China National Intellectual Property Administration (CNIPA) and United States Patent and Trademark Office (USPTO). These offices are said to handle over 85% of the world’s patent applications. Apart from the five heads of the IP5, the meeting was attended by the Director of WIPO, Francis Gurry and chaired by KIPO Commissioner, Park Wonjoo. Representatives of the IP5 held discussions on various subjects including classification of emerging technologies, enhanced work sharing and harmonization of patent practices between the Office’s. Talks were also held in order to bring improvement to the Global Dossier services. The highlight of the event was the decision to collaborate with each other in order to launch a New Emerging Technologies and AI Taskforce that’s aims to establish initiatives to harness global technological developments. The next Annual meeting of the IP5 will take place in 2020 at CNIPA.

So the low-quality (patent quality) Chinese patent office will be next to lead? It’s the only patent office (among the large ones) that explicitly permits software patents, right? The EPO facilitates such patents mostly through buzzwords; it doesn’t care what European courts say. EPO officials don’t even appear in court when summoned to participate (over allegations of their corruption in Zagreb). It’s worth noting that Topić IP, Željko Topić‘s private outfit, is still marked as “under construction” (the English page). He left half a year ago, so now he’s ‘monetising’ a career of abuse in Croatia and the EPO (Munich, Germany). Above the law? Certainly. Would anyone look for legal advice from such people? Asking such people to advise on law is like asking pedophiles for child daycare recommendations.

Patent Maximalism is Dead in the United States

Posted in America, Patents at 12:52 am by Dr. Roy Schestowitz

Dead End sign

Summary: Last-ditch efforts, or a desperate final attempt to water down 35 U.S.C. § 101, isn’t succeeding; stacked panels are seen for what they really are and 35 U.S.C. § 101 isn't expected to change

THE latest (this morning's) daily links contain a lot of good news under “Intellectual Monopolies”. SCOTUS keeps declining Alice-like challenges (for the 43rd time), University of Minnesota proxies cannot invoke immunity/exemption from Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs), prioritised examination is being scrutinised and so on. The patent maximalists aren’t saying much anymore; their blogs have become increasingly inactive and each month that goes by they have less and less to say. They’re becoming irrelevant. The USPTO‘s Director, Mr. Iancu, has been virtually invisible for months.

“The very purpose of these Senate hearings was very clear and those who organised these didn’t want anything balanced…”Gene Quinn of Watchtroll left as editor half a year ago. He now acknowledges (in “The Only Way to Counter False Claims on Patent Reform is to Enter the Debate”) that the patent hearings in the US Senate were rigged, or quite simply stacked. He admits there was an absence of voices in support of 35 U.S.C. § 101 and suggests that the problem is lack of participation by the lied-about side.

Is that so? No. Not really. The very purpose of these Senate hearings was very clear and those who organised these didn’t want anything balanced (these were designed for imbalance and were far from objective). People from groups such as CCIA and EFF pointed this out.

06.17.19

Weaponising Russophobia Against One’s Critics

Posted in Europe, Patents, Site News at 1:45 am by Dr. Roy Schestowitz

Putin and HRC

Summary: Response to smears and various whispering campaigns whose sole purpose is to deplete the support base for particular causes and people; these sorts of things have gotten out of control in recent years

MOMENTS ago we wrote about photo ops (the above photo is real by the way, only the text was added) and their longterm ramifications, such as guilt by association. We don’t think that the terrible management of the EPO is some kind of conspiracy to undermine the European Patent Office (EPO). This awful leadership is actually beneficial to patent trolls with low-quality patents such as software patents (which both Campinos and Battistelli support).

It’s frustrating to see just how self-harming the Administrative Council has been, perhaps in expectation of funds, such as massive amounts of ‘cooperation’ money. Why else would they be harming Europe (unless there was personal gain)? Why would they allow the injustices to persist? Why would they fail to acknowledge the collapse in patent quality and the measurable brain drain?

“It’s frustrating to see just how self-harming the Administrative Council has been, perhaps in expectation of funds, such as massive amounts of ‘cooperation’ money.”Over the years I’ve learned the patterns of smears against people who expose corruption. I used to speak with Julian Assange before he was arrested on behalf of the United States, which he ‘embarrassed’. Then, several years ago (it happened only once), I saw some anonymous fool trying to insinuate I was connected with “Daesh” or Russia. This is how nonsensical rumours start and grow feet. People with connections to Hillary Clinton manufactured lies about Assange being a pedophile — a subject rebutted here and elsewhere. A couple of years ago I saw Team UPC spreading false rumours about the UPC complainant (that someone must be secretly funding him). They didn’t say anything publicly; they had defamed him through the grapevine, so to speak (a malicious whispering campaign). This is pretty serious. They try to belittle people who raise or simply highlight serious and legitimate constitutional violations.

“My goal was always to fix the EPO, not to ruin it.”Throughout the years I’ve always supported the EPO and gave coverage to their staff protests (even going back more than a decade). I myself could probbaly be a patent examiner. My goal was always to fix the EPO, not to ruin it. If one wanted to crash the EPO, then one would put an incompetent, corrupt politician in charge.

I strongly object to the idea that those merely talking about the corruption at the EPO try to make it less stable; the target is always the irresponsible management, whom even examiners loathe. This is why they nearly went on strike — a strike ballot for later this month (it was likely just postponed).

My disclosures have always been abundantly apparent (in my personal Web site, which goes 18 years back). I’m not an ‘agent’ or a ‘shill’ or anything like that. In fact, I rarely associate with anything or anybody. I know the risk of abundant affiliations. I’m also extremely careful who I respond to online.

“My disclosures have always been abundantly apparent (in my personal Web site, which goes 18 years back).”Russian TV channels like RT and Sputnik invited me to interviews several times; not only did I decline, I didn’t even respond to their invitations. Never.

If people want to question this site’s motivations, instead of nitpicking style or typos, go for it. They won’t get far. Later this year we’ll probably publish our 26,000th blog post and longtime readers know that we rarely need to issue corrections; we stick to just a handful of topics that we understand very well. Over the past half a decade one of those topics was the EPO. This and only this is why we ‘obsess with’ or focus on it. Other sites barely cover it. It’s a blind spot.

When the EPO is Run by Politicians It’s Expected to Be Aggressive and Corrupt Like Purely Political Establishments

Posted in Europe, Patents at 12:45 am by Dr. Roy Schestowitz

“Bad laws are the worst sort of tyranny.”

Edmund Burke

Photo Op

Summary: António ‘Photo Op’ Campinos will have marked his one-year anniversary in July; he has failed to demonstrate morality, respect for the law, understanding of the sciences, leadership by example and even the most basic honesty (he lies a lot)

THERE used to be a time (for decades) when Europe’s second-largest institution was run by people with a scientific background. They could explain complex concepts to people; they were jacks of many trades and maybe masters of some, but this is no longer the case. Nowadays they’re posers. Posers and liars.

Shaking hands with people may seem like a clever idea, especially when a photo gets taken. But the liability is too great, whether it’s a Linux Foundation handshake with Microsoft (see our Linux Foundation series) or EPO criminals (such as Battistelli) shaking hands with classic dictators in autocratic nations. We’ve noticed that António Campinos, as the European Patent Office’s (EPO) President, maintains this tradition of Battistelli, whom he also did photo ops with. It’s pretty incriminating because Battistelli reportedly (based on insiders) rigged the recruitment process to secure this job for him. How illuminating.

Then there’s the Director of the U.S. Patent and Trademark Office (USPTO), who promotes software patents in defiance of 35 U.S.C. § 101 (like Campinos supports software patents in Europe in defiance of a lot of things). Iancu’s photos with Trump don’t help considering their past business relationships.

Handshakes are tribalist, ape-like gestures that establish association one does not necessarily need. It can lead to guilt by association. How about this photo op that connected Battistelli to a relatively new (at the time) IP Kat staffer? Does that explain why IP Kat quit covering EPO scandals?

CIPA meeting with Stephen Jones

The EPO needs people whose job skills involve more than signing papers and taking photo ops; people whose background includes actual practice of science, not banking. People who toil rather than drink, or those who pursue jobs based on their qualifications, not their connections. A fortnight from now Campinos completes a year at the Office; he has thus far been a complete and utter disaster, who barely or narrowly escaped a strike everywhere (it may still happen soon). Last week he did some photo ops in Korea; these won’t salvage his credibility, but maybe they’ll help him find another bureaucratic job after his term at the EPO ends.

06.16.19

Stuffed/Stacked Panels Sent Back Packing After One-Sided Patent Hearings That Will Convince Nobody, Just Preach to the Choir

Posted in America, Deception, EFF, Law, Patents at 9:08 am by Dr. Roy Schestowitz

“A stacked panel, on the other hand, is like a stacked deck: it is packed with people who, on the face of things, should be neutral, but who are in fact strong supporters of our technology. The key to stacking a panel is being able to choose the moderator. Most conference organizers allow the moderator to select die panel, so if you can pick the moderator, you win. [...] Thus, the “independent” panel ends up telling the audience that our technology beats the others hands down. Get the press to cover this panel, and you’ve got a major win on your hands.”
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Microsoft, internal document [PDF]

TripsSummary: Almost a week ago the ‘world tour’ of patent lobbyists in US Senate finally ended; it was an utterly ridiculous case study in panel stacking and bribery (attempts to buy laws)

THE NEW Director of the U.S. Patent and Trademark Office (USPTO) does not like 35 U.S.C. § 101, but there’s nothing he can do about it. He has already crafted some poor guidelines and it doesn’t change how judges decide cases. To make matters worse, the USPTO got bombarded with very negative comments, perhaps 90% of all the comments, based on some estimates we saw. The patent maximalists try to blame it on the EFF, which means that the EFF is doing something right (rallying supporters who actually support technology rather than litigation).

“The EFF was there, but it was surrounded by dozens of think tanks and lobbyists of litigators.”Sites of patent trolls (sponsored by them) tried hard to amplify this month’s Senate hearings, knowing these hearings were grossly biased, one-sided, and therefore misleading. The EFF was there, but it was surrounded by dozens of think tanks and lobbyists of litigators. It was so profoundly ridiculous that we couldn’t help but respond, repeatedly, even though we said that we’d try focusing on the European Patent Office (EPO) instead.

“Apple is a constant target of high-tech patent assertions, with 58 cases filed against it in the US last year (Lex Machina),” Battistelli‘s friends at IAM write at the moment. But actually, Apple itself is a patent aggressor and bully. Hardly the victim. Taking into account the Eastern District of Texas (EDTX), the EFF has just told this story of trolls whose targets include Apple. To quote:

For years, the Eastern District of Texas (EDTX) has been a magnet for lawsuits filed by patent trolls—companies who make money with patent threats, rather than selling products or services. Technology companies large and small were sued in EDTX every week. We’ve written about how that district’s unfair and irregular procedures made it a haven for patent trolls.

In 2017, the Supreme Court put limits on this venue abuse with its TC Heartland decision. The court ruled that companies can only be sued in a particular venue if they are incorporated there, or have a “regular and established” place of business.

That was great for tech companies that had no connection to EDTX, but it left brick-and-mortar retailers exposed. In February, Apple, a company that has been sued hundreds of times in EDTX, closed its only two stores that were in the district, located in Richardson and Plano. With no stores located in EDTX, Apple will be able to ask for a transfer in any future patent cases.

In the last few days those stores were open, Apple was sued for patent infringement four times, as patent trolls took what is likely their last chance to sue Apple in EDTX.

This month, as part of our Stupid Patent of the Month series, we’re taking a closer look at one of these last-minute lawsuits against Apple. On April 12, the last day the store was open, Apple was sued by LBS Innovations, LLC, a patent-licensing company owned by two New York patent lawyers, Daniel Mitry and Timothy Salmon. Since it was formed in 2011, LBS has sued more than 60 companies, all in the Eastern District of Texas. Those defendants include some companies that make their own technology, like Yahoo, Waze, and Microsoft, but they’re mostly retailers that use software made by others. LBS has sued tire stores, pizza shops, pet-food stores, and many others, all for using internet-based maps and “store location” features. LBS has sued retailers that use software made by Microsoft, others that use Mapquest, some that use Google, as well as those that use the open-source provider OpenStreetMaps.

So it has become a serious problem for Free/Open Source software, even directly. Thankfully, nowadays it’s easier to tackle the underlying patents these trolls leverage. Will any of that change? Not any time soon. We doubt it.

Regardless, the EFF’s Joe Mullin wrote the following some days ago:

xperts Warn Congress: Proposed Changes to Patent Law Would Thwart Innovation

It should be clear now that messing around with Section 101 of the Patent Act is a bad idea. A Senate subcommittee has just finished hearing testimony about a bill that would wreak havoc on the patent system. Dozens of witnesses have testified, including EFF Staff Attorney Alex Moss. Alex’s testimony [PDF] emphasized EFF’s success in protecting individuals and small businesses from threats of meritless patent litigation, thanks to Section 101.

Section 101 is one the most powerful tools patent law provides for defending against patents that never should have been issued in the first place. We’ve written many times about small businesses that were saved because the patents being used to sue them were thrown out under Section 101, especially following the Supreme Court’s Alice v. CLS Bank decision. Now, the Senate IP subcommittee is currently considering a proposal that will eviscerate Section 101, opening the door to more stupid patents, more aggressive patent licensing demands, and more litigation threats from patent trolls.

Three days of testimony has made it clear that we’re far from alone in seeing the problems in this bill. Patents that would fail today’s Section 101 aren’t necessary to promote innovation. We’ve written about how the proposal, by Senators Thom Tillis and Chris Coons, would create a field day for patent trolls with abstract software patents. Here, we’ll take a look at a few of the other potential effects of the proposal, none of them good.

This will hopefully be our last post in this subject (we have already published about half a dozen). Over the past week we’ve kept an eye on Twitter (sadly, a lot of input goes into those social control media sites instead of proper news sites) and here’s what we can report as concisely as possible.

“So it has become a serious problem for Free/Open Source software, even directly.”First of all, the hearings were full of buzzwords. They were, as usual, misusing/misapplying buzzwords like “HEY AI” (AI) to promote fake patents on software. It isn’t just done in Europe but also in the US and in Israel [1, 2] (we mentioned this the other day; that same article has been reposted everywhere they could fling it).

Benjamin Henrion (FFII) quoted and said: “the ILPO adopted the “technical effect” test used in the EU jurisprudence” while there is no European Union involved, only rogue EPO administrative tribunals…”

That’s based on a purely promotional piece, more or less marketing and lobbying by law firms, but it’s still worth entertaining again because we see the same buzzwords brought up in the hearings. As one person put it: “Senate Judiciary Committee on 101: Laurie Hill (Genentech); Genentech pioneers biologics; Under 101/Alice/Mayo, many of these inventions are unpatentable; AI/bioinformatics/biology is the future of medicine but is not patentable.”

“They were, as usual, misusing/misapplying buzzwords like “HEY AI” (AI) to promote fake patents on software.”There it is: “AI”. And again here: “The SCP (Standing Committee on the Law of Patents) at @WIPO has just published a revealing document on AI and Patentability under the title “Background document on patents and emerging technologies”.”

Of course WIPO too participates in the “HEY AI” (AI) hype; that’s just done in order to grant fake patents on maths — no doubt patents that would be rejected if tested by courts.

Henrion also said (having watched these dull hearings): “Till and Coons strongly motivated to restore software patents, citing buzzwords such as “AI”, “quantum computing”, or “5G”…”

He found this tweet: “The AI hype is pervasive and everybody wonders when the bubble will burst, but it is true this technology poses some challenges to patentability…”

It links to this blog post by Leopoldo Belda Soriano. He says “AI” many dozens of times.

“Of course WIPO too participates in the “HEY AI” (AI) hype; that’s just done in order to grant fake patents on maths — no doubt patents that would be rejected if tested by courts.”On the rogue composition of the panels, as expected, much has been said as well. Here’s the list of people. Stacked panels. Very stacked. Patent zealots were (at the time) linking to things like “Final Panelists at Senate 101 Hearing Stress Real-World Effects of Status Quo, Tillis Signals Changes to Draft Text” from Watchtroll’s Eileen McDermott and other blogs like Patently-O.

Henrion took note of IBM’s role in these hearings when he wrote: “Senate hearing: IBM has also used super low quality software patents such as a diff between 2 contact lists to extract money from Groupon [] Qualcomm says they want to patent encoding algos such as OFDM, you could infringe them with a pen and paper https://en.wikipedia.org/wiki/Orthogonal_frequency-division_multiplexing … [] At least americans are pretty clear about software patents, and not this CII mess…”

Henrion carried on speaking about IBM: “Nokia and IBM thanks Tillis and Coons for an “open legislative process”, while the interventions are all stacked by the patent community [] Not inviting small companies nor software developers “reminding those present that they had specifically invited Apple, Google, Microsoft, Oracle and Dell, who declined to come in favor of being represented by industry associations.”

Jan Wildeboer, who will soon be an IBM employee, expressed concerns about policies that are actually supported by IBM: “51 pages on so-called #FRAND licensing of Standard Essential Patents (SEP) by CEN/CENELEC. And they manage to completely avoid the simple question of how such schemes would work for #OpenSource implementations (Hint: it’s not possible IMHO). https://www.cencenelec.eu/news/workshops/Pages/WS-2019-014.aspx …”

“On the rogue composition of the panels, as expected, much has been said as well.”All these patents on maths are highly problematic. They oughtn’t be granted. On went Henrion: “Michael Blankstein of Scientific Games wants to restore software patents for games, and wants US to avoid copying the European Patent Convention, which explicitely bans computer programs, and rules for playing games [] Cyborg patents logic to compress data, wants to see Alice abolished https://cyborg.co/tech/intellectual-property [] John D. Vandenberg says Alice is not a mess, says the proposed bill will restore software patents…”

Alice actually restored order. How is elimination of fake patents not a positive thing? For patent trolls it certainly isn’t… but should they count?

The CCIA’s main patent person soon weighed in as well, followed by Henrion: “The “innovation” is using existing data mining techniques on data sets to determine a correlative relationship. Is that what we want to promote with patents? [] [Spot the disconnect: Tillis/Coons, op-ed: “We have no intention of overruling that central holding of the Myriad decision.” Tillis/Coons, bill: ‘No implicit exceptions to subject matter eligibility shall be used and all cases regarding those exceptions are abrogated.” [] Also, Tillis made it a point to complain that tech didn’t come. Given that the 4-1 stacked panels today on other issues, is it any wonder those companies didn’t want to show up?”

“That’s just political corruption (check who’s bribing Coons for this bill).”The funding of Coons (over a million bucks from lawyers and liars) means that lying is part of the show. As Henrion explained: “Lawyers always win when they own the “patent reform”, law firms sending donations to Senators @ChrisCoons , I guess “Small Businesses” don’t donate enough…”

That’s just political corruption (check who’s bribing Coons for this bill). It’s quite blatant and obvious.

“ACLU popping up a banner against genes patents at the senate hearing on the patent maximalist bill,” Henrion added, “where are the protesters against software patents?”

Here’s a photo of it.

ACLU banner

On the other hand we could also quote some patent maximalists, to whom these stacked hearings were a festival of joy; one of them said: “Senate Judiciary Committee on 101: Sean Reilly (Clearing House); Financial Services Industry has strong interest in strong patent system; 101/Alice has killed low quality patents; Clearing House opposes any changes to status quo.”

“The sponsors called these initiatives of theirs “bipartisan” to give an illusion of widespread consent, but what they really meant was, they got a couple of politicians from two ‘opposing’ (corporate) parties inside their pockets.”Another one quoted “George, Invitae (1:11:00): “As you consider legislative proposals, instead of abrogating 150 years of precedent case law [e.g. fixing 101], I believe the right approach is to start where the law is correctly working…” https://www.judiciary.senate.gov/meetings/the-state-of-patent-eligibility-in-america-part-iii …”

Working for who? Lawyers? Trolls? Science? Anyway, these hearings are now nearly a week behind us. As we’ve said right from the very start, we don’t expect these to change anything. The sponsors called these initiatives of theirs “bipartisan” to give an illusion of widespread consent, but what they really meant was, they got a couple of politicians from two ‘opposing’ (corporate) parties inside their pockets. So much for ‘public’ support…

2019 H1: American Software Patents Are as Worthless as They Were Last Year and Still Susceptible to Invalidation

Posted in America, Law, Patents at 7:36 am by Dr. Roy Schestowitz

End of spring, end of software patents

End of spring

Summary: With a fortnight left before the second half of the year it seems evident that software patents aren’t coming back; the courts have not changed their position at all

THE YEAR 2019 was supposed to be all about the European Patent Office (EPO) and GNU/Linux — the latter topic we’ve neglected in recent years and are gradually catching up with (e.g. concerns about the Code of Conduct). One single aspect we still watch at the USPTO is 35 U.S.C. § 101, which we hope remains in tact for many years to come. Last year and the year before that it became abundantly clear that suing with software patents in the US was a losing bet, especially if appeals were to reach the Federal Circuit. SCOTUS kept declining to even revisit the subject and last year it reaffirmed the status of the Patent Trial and Appeal Board (PTAB) and inter partes reviews (IPRs). Nothing has really changed since then. In our daily links we include stories about cases that support this claim; as we shall show later, even attempts to bypass or change the law will most likely fail. As Janal Kalis put it the other day: “In re Gitlin (Fed. Cir. 2019) The CAFC upheld the PTAB’s holding of patent ineligibility under 101/Alice; The CAFC ignored the USPTO eligibility guidelines: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1461.Opinion.6-13-2019.pdf …”

“The Federal Circuit remains stubborn and strong in the face of smears and strong-arming by patent maximalists.”Rightly so; that’s just more of the usual. Courts refuse to be sort of manipulated if not bullied by the likes of Battistelli and Campinos, who not only lobby for software patents in Europe but also abuse judges who stand in their way.

Eileen McDermott, this year’s new editor of Watchtroll, published “Federal Circuit to University of Minnesota: No State Sovereign Immunity For You” (we omit all links to Watchtroll this year).

Again, as above, that’s just more of the same. Patents cannot be shielded from justice using such ‘scams’. I got threatening letters from facilitators of these 'scams' as recently as last year.

So here we are in the middle of 2019 (two weeks left). The Federal Circuit remains stubborn and strong in the face of smears and strong-arming by patent maximalists. Former chief judges cannot quite change Sharon. Sharon Prost is the Chief United States Circuit Judge. She has done splendid work since taking over, whereas those former judges became little more than lobbyists — a matter we’ve criticised many times before. So did Benjamin Henrion (FFII) and few other people, who can differentiate/tell apart judge-bashing from reasonable things, e.g. highlighting ethical breaches like those which forced removal/resignation of Sharon’s predecessor (IAM wanted him appointed at to top again).

“Patent maximalism is warning in the US.”The way things stand, we see no reason to spend entire weekends covering US patents (as we did in past years). Patent maximalists’ sites such as The National Law Review and JD Supra reflect upon the new status quo; many US patents are presumed invalid and it takes a lot of effort to just keep these “alive” (the term they use, equating them with organisms); these patent law firms/lawyers, who author these pieces, obviously address their clients, trying to persuade them to get fake patents, avoid delays, and then keep these “alive”; they want more money to keep these fakes “alive” (e.g. for blackmail purposes):

Patentees may obtain additional PTA if the USPTO’s calculation of “applicant delay” includes a period of time during which the patentee could have taken “no identifiable effort” to avoid. However, the onus is entirely on the patentee to identify and correct the USPTO’s error.

This is one aspect among several that weaken US patents and at some stage these law firms will need to ‘come clean’ and admit to clients that the patent bubble has burst and their services aren’t worth the high price anymore. The number of US patents granted last year was a decrease compared to the prior year (we’re not sure about the number of applications), which may suggest that the Office too is aware of that. Patent maximalism is waning in the US.

As European Patent Office Management Covers up Collapse in Patent Quality Don’t Expect UPC to Ever Kick Off

Posted in Europe, Patents at 12:24 am by Dr. Roy Schestowitz

Hiding from the truth

Hiding from the truth

Summary: It would be madness to allow EPO-granted patents to become ‘unitary’ (bypassing sovereignty of nations that actually still value patent quality); it seems clear that rogue EPO management has, in effect, not only doomed UPC ambitions but also European Patents (or their perceived legitimacy, presumption of validity)

THE previous post focused on the EPO‘s promotion of software patents in the whole world, including eastern Asia and the USPTO. António Campinos is just like Battistelli in that regard. Later this weekend we’ll remark on the American status quo (35 U.S.C. § 101 in particular), showing that courts continue to reject software patents, no matter what Iancu says. There’s more stuff to that effect in our daily links.

In Europe, with almost no exception, software patents perish in courts. A great number of European Patents also perish in courtrooms, for a variety of reasons other than patent scope. It seems clear that patent quality has collapsed. Even the Office knows it. It suppresses discussion about this as if censoring truth is a longterm strategy rather than procrastination and exacerbation of the crisis.

For a number of years (almost a decade) the EPO hoped to just change standards of patenting (hijacking the role of legislator, in effect diminishing separation of powers). It didn’t go too well when constitutional complaints were filed, stalling if not altogether killing the UPC. With these inherent structural deficiencies a court system outside national control would be profoundly unconstitutional. Ask Hungary, which deemed that to be the case. Germany may soon follow.

“It seems clear that patent quality has collapsed. Even the Office knows it. It suppresses discussion about this as if censoring truth is a longterm strategy rather than procrastination and exacerbation of the crisis.”We are disappointed but not surprised that Team UPC keeps spreading falsehoods. It wants a Europe (or EU) of litigation, not of science and wellbeing. It’s about money; theirs.

Sniffing around the news at the end of last week we saw establishment of a Greek “Academy” for parasitic elements that sue and harass engineers in Europe. “The above-mentioned Academy,” said the promotional posting, “is established as a service of “OBI”, and will be situated in Athens. The purposes of its establishment, except for the training and certification of “patent attorneys”, include, for example, the development and harmonization of education and training in the field of Greek, European and International industrial property law, the promotion of equal access to educational opportunities in this field, the support of initiatives for the cooperation between “certified patent consultants” (“patent attorneys”) and lawyers specialized in intellectual and industrial property, the cooperation with international organizations, such as the European Patent Office (EPO), as well as with Greek and foreign universities, etc.”

There’s that word again: “harmonization”.

‘Who’s Who Legal’, another publication of law firms, took note of the EPO’s role in parasitic litigation in Ireland (which the law firms profit from). “Current trends in Patent Litigation in Ireland,” according to them:

While Ireland is a common law jurisdiction with fewer cases than most European jurisdictions, there have been a number of recent cases that provide useful guidance on a number of interesting aspects of Irish patent law, in particular, preliminary injunctions, stays pending EPO proceedings and discovery.

[...]

As mentioned previously, patent litigation in Ireland is often one piece of a much broader pan-European litigation strategy. In such circumstances, it is common for related proceedings to be ongoing before the European Patent Office (EPO) in addition to other national courts.

In July 2018, the Irish High Court stayed the hearing of patent revocation proceedings between Eli Lilly and Eisai pending the determination of EPO opposition proceedings concerning the patent the subject matter of the proceedings. However, contrary to previous case law on the subject, the Court did not stay the proceedings in their entirety and instead allowed the parties to proceed with the exchange of pleadings and trial preparations, only the hearing would be stayed. In other words, the parties would go to the effort and expense to prepare the case for trial but the trial itself would not proceed during the stay.

This decision is noteworthy as, in effect, the public interest in bringing the matter on for trial was not considered to outweigh the potential wasted costs if the patent was revoked centrally at the EPO. The court acknowledged the risk of wasted costs in circumstances where the matter may be resolved before the EPO. The court also noted that a strong public interest existed in ensuring that the risk of any delay in supplying a potential treatment for Alzheimer’s disease should be minimised. Earlier case law was distinguished on the basis that it did not concern potentially ground-breaking treatment. These considerations were found to significantly outweigh the plaintiff’s concerns as to costs in preparing for a trial that may not proceed.

As readers may recall, Ireland was about to have a referendum question about UPC/UPCA ratification, but that never happened. It may be eternally ‘postponed’. What’s noteworthy above is the Irish High Court’s position on public interest. They ‘get’ it. So does the English/British High/Supreme Court (it’s called the UK High Court, the equivalent of SCOTUS in the US), which keeps throwing out European Patents on algorithms.

Has patent quality in Europe already hit rock bottom, just like in the US? Are patents to be presumed invalid? How about this case summary from 3 days ago?

Although at first instance the patent was found to lack inventive step without using the problem-and-solution approach, the use of the PSA by the Court of Appeal did not make a difference to the outcome in the present case.

We are seeing more and more such outcomes. Patents that the EPO insisted deserved a patent turn out to be rubbish.

This is clearly a problem for Team UPC. What good are patents one cannot successfully enforce in courts? So they obviously try to just bypass these courts, replacing them with plaintiff-friendly kangaroo courts.

Here comes Asma Abbarova, author/deputy research editor at the patent trolls’ lobby, IAM. We took note of nonsense like this earlier this month. Here they go again. To quote:

The saga of the Unitary Patent System and Unified Patent Court’s implementation – and the effect of Brexit on this – has created uncertainty for practitioners across Europe. This has had an impact on the advice they provide to their clients and the way in which they staff, train and resource their litigation departments.

Who cares about these so-called ‘practitioners’, who practice nothing but threats and litigations? Moreover, there’s no “uncertainty” per se; it’s looking pretty certain that the UPC isn’t happening. As Mr. Henrion put it the other day: “The debate around “Intellectual Property” yesterday ended by “Prozac for everybody!”. If the UPC goes through, I need to order some more #depression #patents …”

Henrion was apparently influenced by tweets like this (in French): “Pour le brevet unitaire on va dire qu’ils prennent leur temps. (Par contre si brevet unitaire il y avait, ça risquerait de foutre aux orties la JP française sur la question du brevet logiciel, et la JP OEB pèserait plus.)”

“When French courts rejects [sic] software patents,” he said, “the patent industry route around it and get them back with the Unitary Patent Court: “les brevets délivrés par l’OEB ne seront plus jugés dans chaque pays, mais par la juridiction unifiée du brevet” https://www.village-justice.com/articles/Brevet-logiciel-France-justice,20334.html …”

They’re unlikely to succeed however; they’ve tried for many years and failed. Over the past half decade they kept saying this was just around the corner; where are we now? Here’s a new take that shows RWS is totally delusional and is spreading, probably deliberately, fake news:

Addressing the long-awaited and controversial Unitary Patent, RWS said that “we now anticipate that the proposed European Union Patent (“the Unitary Patent”) will come into effect in Q2 2020 at the earliest.”

When it does hit, patent applicants will be able to choose whether to use the current system or adopt the new Unitary Patent, RWS said, since both systems will run in parallel.

What are these estimates based on? Also, have they not paid attention to the fact that many barriers exist? Apparently not. Facts just don’t seem to matter.

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