Summary: MPHJ loses and Personal Audio LLC perhaps wins for the last time since software patents are quickly losing legitimacy in the United States
While the corporate press (and CAFC) carries on glorifying patents (for its own profit interests) a lot of the public increasingly realises that the role of patents is to merely elevate prices of products and services. It either helps billionaires or trolls. MPHJ, one of the most notorious trolls in recent years, is losing its teeth after a case that was not settled. Is this the coming end of more such trolls? Joe Mullin covered this wonderful news:
There are hundreds of so-called “patent trolls,” but MPHJ Technology became one of the most well-known when it sent thousands of letters to small businesses around the country suggesting they should pay around $1,000 per worker for using basic “scan-to-email” functions.
This trial, for a change, was not stationed in Texas.
We recently wrote about the demise of some very big trolls owing to a Supreme Court ruling. Here is another infamous troll to keep an eye on. It recently got money from CBS because “A jury in Marshall, Texas found the infamous “podcasting patent” was infringed by CBS’s website today and said that the TV network should pay $1.3 million to patent holder Personal Audio LLC.
“The verdict form shows the jury found all four claims of the patent infringed, rejecting CBS’ defense that the patent was invalid. The document was submitted today at 1:45pm Central Time.”
But wait. That was in Texas, the capital of trolls. There seems to have been a challenge in the way. As the same site put it some days beforehand:
Jim Logan is an archetype in the patent world—he personifies the great American invention story. In 1996, Logan says, he had a brilliant idea: a digital music player that would automatically update with new episodes. Think iPod, five years before the iPod.
“Our product concept, which spawned the patent, was all about a handheld MP3 player that could download off the Internet some kind of personalized audio experience,” he told the Canadian Broadcasting Corporation in an April interview. “We designed that, we prototyped it, we went to investors trying to raise money to produce the product, and we were not successful.”
This was going to trial (for a change) and given that it is a software patent, the Alice case could be used to put an end to it. But it didn’t. Not this time around. The EFF will hopefully use the Alice case in challenging this troll and putting an end to it. One CCIA front says we should “expect another flood of troll suits to be filed in November of next year, if history is any guide.” Given the recent trend of software patents and patent trolls failing, however, there is little reason to believe they will succeed, let alone try. Whenever they fail it opens the gate to more failures, by means/virtue of precedence. █
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Source: DECLAN MCCULLAGH PHOTOGRAPHY
Summary: After talking a job at CCIA, “Patent Progress” and its chief author should be treated as dubious on real patent progress
EARLIER this year and last year we warned about a site that calls itself “Patent Progress”.
The new (redesigned) “Patent Progress” now states “Powered by CCIA”, which is funny given CCIA‘s track record when it comes to patents. One of my followers in Twitter said: “Funny use of the words “Powered by” – could think of a move accurate phrase, like “A front for”…”
CCIA is a Microsoft-funded front/lobby group; it has been paid millions of dollars by Microsoft (Ed Black would know where his money comes from).
Over the years, and especially in recent years (after Microsoft payments), CCIA echoed a lot of Microsoft’s agenda and there has not been much for CCIA to say about the demise of software patents in the United States after the Supreme Court's decision. The site does, however, say a lot about trolls and this new post says: “The Supreme Court ruled in a couple of cases, Iqbal and Twombly, that a complaint has to have enough facts in it to support the legal claims. But, thanks to a Federal Circuit decision, that rule doesn’t apply in patent cases. The Federal Circuit relied on Form 18 in making its decision.”
CCIA remains a FRAND booster (hence anti-Free software) that would rather talk about trolls (except Microsoft) than about patent scope. At Dennis Crouch’s blog there is a new guest post from Professor Jorge L. Contreras, who says about FRAND: “There has been a fair amount of controversy recently over commitments that patent holders make to license patents on terms that are “fair, reasonable and non-discriminatory” (FRAND). As I have previously written here and here, FRAND commitments generally arise when a patent holder wishes to assure the marketplace that it will not seek to block implementation of a common technology platform or product interoperability standard. Making such a public commitment encourages widespread adoption of these technologies, which is often beneficial for both the patent holder and the market. As such, it is important that these commitments be enforced.”
But what about exclusion of Free software? Contreras continues: “I am not arguing, of course, that FRAND commitments should not be enforced. I feel quite the opposite, and have argued that these promises form an important subset of a larger category of “patent pledges” that ought to be enforced for the benefit of the market. However, there are many more sound and coherent theories for enforcing patent pledges, and FRAND commitments in particular, than common law contract. These include various antitrust and competition law approaches, which have been advanced by the FTC and others, as well as my personal favorite, a modified variant of promissory estoppel that I call “market reliance”. The market reliance theory is grounded in the fact that patent pledges are promises, whether or not they fulfill the requirements of common law contract, and promises ought to be enforced. The theory overcomes the requirement that specific and actual reliance be proved in promissory estoppel cases by introducing a presumption of reliance based on the “fraud on the market” theory used in Federal securities law.”
How about getting rid of software patents altogether? That would eliminate the need for FRAND in software. Being a lawyers’ site, however (same as “Patent Progress”), don’t expect these people to be too technical or to represent the views/interests of non-lawyers.
A somewhat better site, IP Troll Tracker, seems uplifted by news about USPTO arranging an event today. As Steph put it, “here we are two-plus years later and what has the USPTO gone and done? Set up a webinar to help business owners find relief from patent litigation. It’s all right here in their flyer. And if you’ll look closely on their list of resources for people who’ve been sued, you will find a familiar link.”
If the USPTO is serious about reducing litigation, then it will raise the bar and stop issuing a patent for almost every application that comes in. Thankfully things are changing for the better as even the USPTO has begun rejecting software patents based on the now-famous SCOTUS ruling from the summer. New guidelines were issued for examiners (one of whom is the wife of the man who operates “Patent Progress”).
Remember to view “Patent Progress” as what it really is; it’s a lawyers’ site run and powered by a front group that is funded by Microsoft and mirrors some of Microsoft’s policies. Names of sites can be deceiving, misnomers even. █
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Summary: Recent coverage of software patents and their demise in their country of origin, where even proponents of software patents are giving up
THE NEWS has been largely positive when it comes to patents — positive and good in the sense that software patents are dying. Today we give a motivational summary.
Jeff John Roberts says that “After a key Supreme Court decision this summer, courts are shredding software patents and trolls”. Yes, he too mentioned the effect on patent trolls, as we highlighted in the previous post. The article speaks for itself and it starts by alluding to the pointless “reform”. Jeff John Roberts says: “Patent reform failed in Congress this year but a spec of hope has arrived in the form of a spate of court decisions in which courts are deciding that so-called inventions can’t be patented because they are old and abstract ideas.”
Here is a useful summary from Dennis Crouch, who gave a list of cases to watch:
The Supreme Court’s decisions from Alice and Mayo are beginning to really have their impact. A few examples:
Walker Digital v. Google (D. Del. September 2014) (data processing patent invalid under 101 as an abstract idea) (Judge Stark).
Genetic Tech v. LabCorp and 23AndMe (D. Del. September 2014) (method of predicting human performance based upon genetic testing invalid under 101 as a law of nature) (report and recommendation from Magistrate Judge to Judge Stark)
Ex parte Cote (P.T.A.B. August 2014) (computer method and hardware for ‘phase shifting’ design data invalid under 101)
Ex parte Jung (P.T.A.B. August 2014) (diagnostic method associated with epigenetic risk factors invalid under 101).
“Supreme Court ruling has wiped out 11 “do it on a computer” patents so far” and “balance of power is changing as courts vigorously apply Alice v. CLS Bank,” says Joe Mullin. Excellent article.
“If Alice v CLS is the game-changer some believe, software patent values may be about to collapse,” states the headline from one of the most extreme pro-software patents Web sites, IAM Magazine. So even the other side is admitting defeat. Here is one of the most vocal proponents of software patents saying: “Lemley and I share the opinion that Alice v. CLS Bank represents a significant change in the law relevant to software patents. To my surprise this truth is not understood or appreciated by many in the patent community.”
He has some other articles to that effect. The important thing is, even some of the leading proponents of software patents are unable to deny the undeniable. Here is Fox Rothschild LLP (law firm), with typos/incorrect English at the end, stating: “The USPTO is continuing to issue patents for software-related inventions that are assigned to it’s non-business-method examining units, so it’s clear that at least some software remains eligible for patenting. However, it’s also clear that new and potentially significant challenges are now in place for those who want to obtain or enforce software patents in the future.”
Timothy B. Lee. a longtime opponent of software patents, says that “Software patents are crumbling, thanks to the Supreme Court”. To quote his analysis: “The Supreme Court’s June ruling on the patentability of software — its first in 33 years — raised as many questions as it answered. One specific software patent went down in flames in the case of Alice v. CLS Bank, but the abstract reasoning of the decision didn’t provide much clarity on which other patents might be in danger.
“Now a series of decisions from lower courts is starting to bring the ruling’s practical consequences into focus. And the results have been ugly for fans of software patents. By my count there have been 11 court rulings on the patentability of software since the Supreme Court’s decision — including six that were decided this month. Every single one of them has led to the patent being invalidated.”
Days later Lee also published the article “You can’t patent movies or music. So why are there software patents?”
To quote Lee: “As the courts increasingly flirt with excluding software from patent protection, a common argument from software patent supporters is that wholesale abolition of software patents is a crude way to deal with the system’s problems. The legal scholar John Duffy is the latest to take this line, decrying abolition as a “brute-force ‘reform’” that has proven to be “profoundly shortsighted.”
“But the reality is that everyone thinks certain kinds of innovation should be excluded from patent protection. The only disagreement is whether software should be on the list. For example, though you can copyright a specific movie or a song recording, you can’t patent the general concept of the buddy comedy or the verse-chorus-verse pop song structure. And hardly anyone wants to change that.”
An article by Mike Masnick, another vocal opponent of software patents, is titled “Be Happy: Software Patents Are Rapidly Disappearing Thanks To The Supreme Court” and “Software patents dying out in US” is another headline to keep a record of. Some of the most popular lawyers’ sites are prepared to acknowledge this.
We are very happy to see lots of articles (from high-reputation sources) about software patents dying, especially this week and earlier this month. This isn’t fantasy; it’s really happening! █
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Summary: VirnetX seems to be the latest victim of the demise of software patents in the United States
IT was exceptionally pleasant to see this new article titled “And with them so go the trolls? Software patents are crumbling, thanks to the Supreme Court” (recommended article from UK Progressive).
The article correctly states: ‘The Supreme Court’s June ruling on the patentability of software — its first in 33 years — raised as many questions as it answered. One specific software patent went down in flames in the case of Alice v. CLS Bank, but the abstract reasoning of the decision didn’t provide much clarity on which other patents might be in danger.
“Now a series of decisions from lower courts is starting to bring the ruling’s practical consequences into focus. And the results have been ugly for fans of software patents. By my count there have been 11 court rulings on the patentability of software since the Supreme Court’s decision — including six that were decided this month. Every single one of them has led to the patent being invalidated.”
We shall cover this matter in another (later) post. There’s lots of coverage on the topic. The important point there is that since patent trolls have been so reliant on software patents the death of the latter kills or significantly weakens the former. We wrote about this for years, stressing that the goal should be to eliminate software patents, not just trolls who use them (big corporations like Microsoft and Apple use software patents offensively as well).
Yesterday in the news there was a lot of analysis about a VPN software patent. Dennis Crouch asked:
Is VPN Software Patent Eligible?
An E.D. Texas jury sided with the patentee VirnetX — finding that the four asserted patents are not-invalid and that Apple’s VPN-On-Demand and FaceTime products infringe. The jury then awarded $350 million in damages. On appeal, Apple presented a number of winning arguments that, in the end, result in only a partial victory because some of the claims remain valid and infringed. After altering claim construction of the term “secure communication link”, the jury will re-determine whether FaceTime infringes and recalculate damages.
Crouch posted this in light of the news about VirnetX, a patent trolls which has just lost and collapsed:
A top appeals court has thrown out a jury ruling that ordered Apple to pay $368 million to VirnetX, a patent-holding company that many consider a “patent troll” because it exists exclusively to enforce patents. On Tuesday, the United States Federal Circuit Court of Appeals remanded the decision back to the lower federal court in East Texas.
We wrote about VirnetX many times before and we also wrote about Vringo. Both are using software patents to shake down large companies and BusinessWeek is comparing their fates in this new article:
VirnetX Holding Corp. (VHC:US) lost almost half its market value yesterday after an appeals court threw out its $368.2 million damage award against Apple Inc. and lessened the chances of a big payday when the case returns to the trial court. Last month, Vringo Inc. (VRNG:US) plunged 72 percent after the same court tossed a $30.5 million verdict against Google Inc.
In a later post we are going to show just to what degree software patents are truly dying in the United States. This is excellent news all around. Free software is winning on many fronts. █
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“Staff at the European Patent Office went on strike accusing the organization of corruption: specifically, stretching the standards for patents in order to make more money.
“One of the ways that the EPO has done this is by issuing software patents in defiance of the treaty that set it up.”
–Richard Stallman amid EPO protest
Summary: Part II of our look into the EPO appointment of Željko Topić and other matters showing the dubious integrity of the EPO
FOLLOWING part I of our coverage of the deeply corrupt EPO we received an overwhelming amount of mail, some confidentially and some not confidentially. People point out to us that EPO has a lot of ‘dirty laundry’ and in the coming months we’ll be eager to provide proof of that. Some of the staff of the EPO is grossly overpaid (they decide on their own salaries almost) and the management is silencing employees in various ways that we were privately told about. Hence the need for anonymity.
The following is a good translation of a recent Die Welt article. We put it below — verbatim — and thank the person who made it available to us.
Better off – brassed off
The 6800 members of staff at the European Patent Office in Munich on average earn 121,000 Euro a year, but they’re still far from happy. They call their boss “Putin”.
Tourists leaving the Deutsches Museum in Munich on the west side have a view of a building which leaves no doubt about its purpose: This has got to be the headquarters of some powerful institution. The 35-year-old wedge of glass and concrete overtops its surroundings with a stern formality. More flags flutter in front of it than any other building in the city, with a massive sculpture rotating on its own axis. This is the home of the European Patent Office. A few years ago the building was cleared of asbestos. The contaminants were removed, and the staff have been back for two years. But the atmosphere in the organisation is still poisonous.
There is a tradition here that the management of the Patent Office tends to be somewhat at loggerheads with the self-aware and self-confident patent examiners, but this disparity has recently entered a new dimension altogether. The President and the staff have fallen out beyond hope of salvation – but they’re still going to have to live together for years to come. It’s not an edifying spectacle, so shortly before the planned introduction of the European Patent. The Unified Patent means that the Office is set to become even more important after 2016. The EPO, as it’s also known, is already one of the most important patent offices in the world. It is a bulwark that stands as a symbol of the strength of innovation of European companies. So how can such an organisation be tearing itself apart like this? The answer to this question must start with the President of the organisation. Benoît Battistelli hardly misses an opportunity to upset his staff. The 64-year-old has been heading up the Patent Office for four years. He comes from the best Parisian civil service tradition, as an alumnus of the École nationale d’administration (Ena), the nursery for executives, and he was mayor of the Paris suburb of Saint-Germain-en-Laye, from where Louis XIV also came. Battistelli has the aura of gravitas of a leading civil servant of France, and radiates it from every pore.
He never loses his verve. He can dismiss the sagging morale of his subordinates with a friendly smile. “How is anyone supposed to reform a system which well-paid people have become accustomed to all their lives?”, he recently asked a small gathering. In the staff journal “Gazette” he complains about “systematic opposition” directed against him. These are words which no management seminar ever teaches. Which no manager would ever utter if he wanted to gather his team behind him and motivate them. They are the words of a man who has decided that there is no future in trying to win a popularity contest among the employees any longer. A man who has a skin thick enough to weather out even storms like these.
The dispute is weighing down one of the most successful organisations in Europe. An organisation which was already functioning well when other European bodies in Brussels and Strasbourg were still trying to justify their existence. The European Patent Office has its roots in 1973, when more than 20 states decided in Munich to back the introduction of a European patent procedure. The European Patent Organisation was established four years after that, and today the European Patent Convention comprises 38 nations, among them eleven states which do not belong to the EU. The European Patent Office is one of the most powerful patent organisations in the world. When it comes to the number of applications, the EPO ranks fifth among the world’s largest patent offices; and it is highly commended for presenting the highest quality of patents, which means applying particularly tough examination.
The staff are the assets of the organisation. More than 6800 people work here, and two-thirds of them are highly sought-after and highly-specialised patent examiners. Some of them are regarded as leaders in their field. They are able to assess whether inventions really are new and really worthy of protection. They deal with major corporations and their powerful patent attorneys, and they go head to head with them.
And they get extremely well paid for doing so. In a current offer for a position, the authority offered an “attractive salary” of 4200 to 8000 Euro – and bear in mind, that’s net. A look at the social report discloses that last year the Office paid out 821 million Euro in salaries and supplements. Converted to staff members, this gives average earnings of 121,000 Euro. Word has it that some employees are getting more than the heads of state of their home countries. Someone who lands a job with the Patent Office is home and dry. If the life partner isn’t working, there’s money for the housekeeping. Even Germans are granted expatriate supplements if they have worked abroad for two years before taking up the position. The EPO spends 20 million Euro on financing an international school. Added to this are the perks of the job: “Basically, you fly Business Class”, as they say.
These are conditions which colleagues in the German Patent and Trademark Office can only dream of. The German examiners work in a neighbouring listed building, which was originally designed as a hospital. As a result, most of the offices come provided with a washbasin. But that’s about the only convenience in comparison with the mighty European patent authority next door.
The examiners here do exactly the same work as their European colleagues, but they earn a lot less. An examiner at the German Patent and Trademark Office receives between 3200 and 4250 Euro net per month. “If I had the chance, I’d work for the EPO like a shot”, complains one member of staff. Most of them fall down when it comes to knowledge of languages. English, German, and French are mandatory. Fluently.
And as well as that, the pressure of work is rising steadily. President Battistelli has set himself the goal of streamlining the authority to absolute efficiency. “Our aim is to be the best patent office in the world”, says Battistelli. “I don’t know whether we already are the best. But I know for sure that we’re the most expensive.” At the German Patent Office, it costs about 640 Euro for a patent to be issued, while at the European Patent Office it is said to be ten times as much, or so the German Patent and Trademark Office has calculated. More efficiency is needed, because there are financial risks involved. The authority does not receive any allocations, and has to live from what it earns itself. And there are doubts as to whether that will be enough in the long term to meet the growing pension obligations. After 35 years, an employee is looking at a pension in the amount of 70 percent of his old salary. The in-house experts have been ringing alarm bells: By 2023 at the latest, it will be necessary to start tapping the reserves, currently at 5.7 billion Euro. A new study is now being commissioned.
Battistelli has set out a plan for the future which is based on five fundamentals. One of these involves the personnel, who are in any scenario responsible for the really significant part of the costs. And that is bringing him massively in conflict with the powerful trade union Suepo. The Patent Office has been afflicted by strikes on a regular basis for many years. Battistelli harbours serious doubts as to whether the strikes are always based solely on matters of labour rights. The view is that it has often been nothing more than having a long weekend. So Battistelli has curtailed the right to strike. Personnel can only down tools if really compelling grounds pertain. And what those are, is his decision. He has also taken it upon himself to see that the elections for staff representatives are reorganized. He has introduced a system of vote-counting which is alleged to be aimed at suppressing the presence of the union Suepo on the employees’ council, an aim which was thoroughly thwarted at the elections in June. He has also taken up the cudgels against the high absenteeism due to illness. He has been pushing for employees who are off sick to be subject to visits by doctors unannounced, between 10.00 and 12.00 and also between 14.00 and 16.00, just to check up on them.
This doesn’t sound too bad, especially given that German civil servants actually have no right to strike at all. But it has led to unrest at the EPO. The atmosphere has now become so poisonous that anything Battistelli does almost necessarily leads to conflict. Some people like to refer to him as “dictator”. Or the “Sun King”. Or “Putin”.
These are different cultures, and they’re clashing. On one side, there’s Battistelli, who is used to a centralistic leadership culture from France, with the emphasis on obedience and reverence for authority. On the other, there are the self-aware and self-confident examiners, who work in small self-contained teams, and whose technical expertise no-one, repeat no-one, can challenge.
Just how far the mistrust extends rapidly becomes clear when you talk to employees of the Office. No-one says anything over a landline. If the issues are discussed at all, then it’s on the mobile while taking a walk along the River Isar or in a café. No-one puts it past the French President to spy on his own employees.
The oppressed staff act as if they are living under a dictatorship. Now that a ban has been introduced on sending a collective e-mail to more than 50 people, e-mails are simply forwarded. When the European Inventor’s Prize was awarded in Berlin in mid-June, someone actually engaged a lawyer who distributed leaflets in which the management culture at the EPO was denounced radically.
As far as Battistelli is concerned, it is only a minority of the employees who are yelling for rebellion. A small group of perpetual agitators, who want to cling on to their privileges. But that doesn’t quite ring true. Going by the most recent votes, the staff were still pushing for strikes. And when the Office celebrated the 40th anniversary of the Patent Convention in a big way last year, official sources indicate that 600 people staged a demonstration. The question is how Battistelli can react to the dismal mood. “He’s a skilled politician”, says someone who has been following the situation closely. Word is that he can rely on the French government covering his back. And, above all, he can rely on his back being covered by the smaller states, who depend a great deal, in a great many ways, on the European Patent Office being a success. The Administrative Council, on which Germany, like all other states, has only one vote, has this summer already extended Battistelli’s employment contract, actually scheduled to expire in 2015, to the year 2018.
The Federal German government is watching the situation in Munich carefully. “The reforms are necessary and in part overdue” is the word from the Federal Ministry of Justice. Despite this, there are still qualms about the social tranquillity at the Office. It appears that most recently both the President as well as the staff representatives have been called upon “not to break off the channels of discussion, and in future to strive more vigorously to seek mutually acceptable solutions”. So far, the call has not been so well received.
Our sources also have evidence which suggests long-standing connections between Topić, the EPO President Battistelli, and the Chairman of the EPO Administrative Council, Mr. Jesper Kongstad (Danish PTO). We were presented with a letter in which Kongstad is approached with the aim of investigating this. We cannot comment on this or reveal the documents until a few weeks from now as this might interfere with diplomatic efforts to address the matter.
Our sources believe that Battistelli and Kongstad are colluding to prevent any independent investigation into the matter of Topić’s appointment.
In the coming weeks are are going to share more documents and if documentation is required to defend our point, we do have possession of it. █
“It is not the policy of the EPO to require or examine source codes […]. Moreover, given the length and complexity of source code listings, which can often stretch to hundreds of pages, it would be quite impossible to examine them.” —European Patent Office brochure
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Summary: The European Patent Office (EPO) Vice-President has a background of corruption and his appointment to the EPO too is believed to be reliant on systemic corruption
Who is Željko Topić? A lot of our readers probably never heard of him. The Western media has paid almost no attention to this bully, who in his own country had become the subject of much hate. His page at WIPO (patents maximalist) says “Appart [sic] of [sic] his expirience [sic] in the State Intellectual Property Office of the Republic of Croatia, Mr. Topić was Managing Partner in Korper, Haramija & Topic Ltd.”
Putting the poor English aside, how did this man become a top executive at the EPO? A lot of people have wondered that, including his colleagues. Wikipedia says:
Topić’s appointment as EPO Vice-President has been controversial. Following the announcement of his appointment in March 2012, a number of critical news reports appeared in the Croatian media. These reports referred to a series of alleged irregularities which were said to have occurred during his period of office as Director-General of the State Intellectual Property Office and which it was claimed had not been properly investigated by the competent state authorities. In response, the State Intellectual Property Office issued a press release on 30 April 2012 attributing the media reports to what it called “unprofessional journalism” and dismissing the allegations raised against Topić as “arbitrary”, “unfounded” and based on “malicious accusations”.
A complaint which Topić filed in reaction to an article written by the journalist Slavica Lukić for “Jutarnji list” was, however, rejected by the Ethics Council of the Croatian Journalist’s Association (Croatian: Hrvatsko Novinarsko Društvo or HND) in September 2012. The Ethics Council found that Lukić had verified the relevant information with the appropriate official institutions and that the disputed article was not written with the intention of defaming anyone but rather in defence of the public interest.
In December 2013, a Croatian NGO Juris Protecta raised questions about Topić’s EPO appointment and submitted a petition to the European Parliament calling for an independent investigation into the matter.
This controversial appointment goes a couple of years back and in order to understand it we needed to read dozens of pages of articles, mostly automated translations. This case has been reported on extensively in the Croatian media over the last few years, but there has been complete silence in the Western European media and no coverage at all in English-speaking media such as Australia’s and north America’s. Surprisingly, despite covering the subject of patents in Europe for nearly a decade, we never wrote about Topić. There seems to be reluctance to look into the scandals, perhaps knowing how litigiously aggressive Topić has historically been.
The corporate media should have the guts to at least mention what happened with Topić. There’s not mere speculation but well-documented (by courts) evidence — one that only local press seems to have taken an interest in. Hence it was virtually impossible to become aware of this and openly discuss this where it matters. As Topić now works in an institution which affects the European Union and the world at large, a broader debate is needed. Topić is in a position of high power and as we have shown in recent years, the EPO is full of abuses. It’s a face, it is a swindle. This latest about Topić may be just one of the lesser-known ones.
Our sources say the only coverage (so far) outside of Croatia that they are aware of has been put out by IP Watch, a site critical of patents on software and other such matters, with focus on Europe. Earlier this year the site stated:
While it’s unclear whether either of these efforts will succeed, Topić’s suitability for office “is a fairly contentious issue” inside the EPO, the source said. Given the various accusations, and apparently uncontested press reports, the general feeling among EPO staff is that there are unanswered questions about Topić’s appointment,” the source said. Employees are also dissatisfied about what they see as an inadequate official response to the situation and believe “some kind of genuinely independent investigation would be required to clear the air,” he said.
The EPO Administrative Council (AC) “has maintained complete silence” and taken no official position on the situation, which is strange given that it’s responsible for the appointment and the organ of the EPO that exercises disciplinary authority over the president and vice-presidents, the source, who asked not to be identified out of fear of retribution, said. The absence of a position was confirmed by EPO.
Topić should not have been reappointed due to his previous track record which, “if it had been properly taken into consideration, would have resulted in him being deemed unfit for public office,” Stilin said. The irregularities under his management at SIPO have not been properly investigated and the government wasn’t properly informed about them, she said. In addition, the procedure leading to his reappointment “was tainted by a whole series of flaws and irregularities, some of these involving actions which were prima facie [evidence]” of a type of person, she said.
Stilin applied for Topić’s position but was unsuccessful. Once reappointed, Topić dismissed Stilin and abolished her department, an action that was “a completely arbitrary and unjustified measure involving an egregious abuse of authority,” Stilin said. She filed a series of complaints in the Croatian courts, all of which were dismissed, after which she sought relief from the ECtHR. That case, filed in 2011, remains unresolved.
“What amazes us about this media silence,” said our sources, “is that many German journalists have been well-informed about the affair for at least a year now but due to some kind of peculiar “self-censorship” or an inability to carry out proper cross-border investigative journalism they have not managed to publish a single line about it.”
An introduction to the EPO “Topić Affair” was sent to us anonymous by a source familiar with Topić’s track record at home (Croatia) and abroad. It is written clearly enough to be quoted verbatim below:
The first Director General (DG) of the Croatian State Intellectual Property Office (SIPO) was Mr. Nikola Kopčić: http://www.forinpro.hr/index.php/our-team
He held this position from 1992 to 2002. From 1998 onwards, at the same time as he was SIPO DG, Kopčić was also a representative of his own private company (ForInPro) before the SIPO. This amounted to an undeclared conflict of interest which was in breach of official regulations. In December 2001, the Ministry of Science recommended Kopčić’s dismissal after having investigated the situation which had been brought to its attention. The decision to dismiss Kopčić as SIPO DG was taken by the Croatian Government on 10 January 2002. Kopčić was also expelled from the AIPPI (International Association for the Protection of Intellectual Property) on the grounds that he had brought the Association into disrepute.
Following Kopčic’s dismissal as DG, the SIPO was under the direction of Mr. Hrvoje Junaševic from 2002 to 2004.
One of the persons instrumental in bringing about Kopčic’s dismissal was Ms. Vesna Stilin who was a career civil servant and one of the founding members of the Croatian SIPO. As an apparent act of revenge against Stilin who had also raised allegations about certain abuses of authority, Kopčic engineered her dismissal from the SIPO in 1999. However, she was reinstated at the SIPO in 2004 as an Assistant Director responsible for Copyright and Related Rights.
Appointment of Željko Topić as SIPO DG in 2004 In 2004, Željko Topić was appointed as the new SIPO DG for an initial four-year term. He had previously worked at the SIPO from about 1992 onwards but moved to the private sector in 2003 where, according to his CV, he worked in the field of “IP Management” as a Director of a company called Korper, Haramija & Topić Ltd. During his first term as SIPO DG, Topić clashed with Stilin over a number of issues including the implementation of the “Public Lending Right” (PLR) for writers in Croatia. Stilin claims that Topić blocked her efforts to implement the PLR. Stilin also raised concerns about issues falling within her remit relating to musical copyright royalties. According to press reports, she came into conflict with Topić after the Tax Office had sent an inquiry to the SIPO expressing doubts about the legality of business affairs between the SIPO and Emporion, a company involved in the collection and distribution of musical royalties which was owned by the entrepreneur Mark Vojković, a close associate of the Croatian President Ivo Josipović.
In 2008, Topić proposed Stilin’s dismissal from the SIPO inter alia on the grounds that the SIPO’s Copyright and Related Rights Department had been abolished and that, consequently, her position no longer existed. Although her dismissal was ultimately a decision of the Croatian Government, it was instigated and proposed by Topić. Stilin claims that the abolition of the SIPO’s Copyright and Related Rights Department which was invoked as a pretext for her dismissal was a completely arbitrary and unlawful act and that it was also in violation of formal undertakings which the Croatian authorities had given to the EU in the context of the CARDS Programme according to which the staffing of the Copyright and Related Rights Department was to be increased.
These matters are the subject of a number of pending criminal and civil lawsuits in Croatia. According to press reports, the real reason behind Stilin’s dismissal was because she had tried to warn the supervisory state institutions about irregularities occurring at the SIPO as well as the questionable relationship between the SIPO administration and Emporion.  Controversial re-appointment in 2008 Towards the end of 2007 and the beginning of 2008, the SIPO was subject to a number of supervisory inspections by Government Ministries which uncovered various irregularities. In particular, an investigation by the Ministry of Adminstration which took place in response to a petition by a group of SIPO employees resulted in findings that certain contested actions by Topić entailed breaches of Labour Law regulations. There was also a budgetary inspection by the Ministry of Finance which resulted in findings that there had been various irregularities in accounting practices at the SIPO. These developments gave rise to expectations that Topić’s mandate as SIPO DG would not be renewed. However, contrary to these expectations, his mandate was renewed for a further four-year term in 2008 by the Government of Ivo Sanader.
According to Stilin, Topić’s re-appointment was supported by the then Minister of Science, Dragan Primorac as a payback for the provision of an Audi 6 Quattro which had been placed at Primorac’s disposal at the expense of the SIPO. It is alleged that this arrangement between Topić and Primorac was unlawful and represented a misappropriation of public funds. In return for the alleged “favour”, Primorac is alleged to have recommended the renewal of Topić’s mandate to the Government. However, according to the applicable statute, at the time of the re-appointment Primorac was no longer competent to make such a recommendation. This is because in March 2008 the SIPO had been transferred from the remit of the Ministry of Science, Education and Sports to the remit of the Ministry of Economy, Labour and Entrepreneurship. It remained under the remit of the Ministry of Economy until December 2011 when it was transferred back to the remit of the Ministry of Science.
Topić’s re-appointment in 2008 was the subject of a challenge by Stilin in a lawsuit filed with the Administrative Court and which was finally rejected by the Croatian Constitutional Court. Following exhaustion of domestic remedies, the matter is currently the subject of an application pending before the European Court of Human Rights in Strassbourg.
The “ZAMP Affair” and appointment as EPO Vice-President The “ZAMP Affair” is a major contemporary political controversy in Croatia. The name “ZAMP” comes from the royalty collection management entity associated with the Croatian Composers Society (Croatian acroynm: HDS-ZAMP). The controversy concerns the management of royalty payments to musicians and encompasses various allegations of unlawful administrative acts, corruption, cronyism and conflicts of interest involving a clique associated with the Croatian President, Ivo Josipović, who was formerly the Secretary-General of the Croatian Composers Society.  Topić is perhaps a secondary figure in the “ZAMP affair” but as the former DG of the state institution which had the statutory responsibility for supervising the management of copyright and royalty payments, i.e. the SIPO, it is probable that his role as a “facilitator” was nevertheless a significant one. It has been claimed in the Croatian press and in an article published by the Deutsche Welle (in Croatian) that he enjoys the “protection” of Josipović. 
On 1 February 2012, the Croatian press reported that despite the controversy surrounding his management of the SIPO and ongoing official investigations into alleged irregularities, Topić had been re-appointed for a third term as SIPO DG on the recommendation of the then Minister of Science, Željko Jovanović.  Shortly afterwards in April 2012, it was reported that he had requested to be relieved of as his duties as SIPO DG in order to take up a more prestigious position as Vice-President of the European Patent Office in Munich.  Some of the articles published around this time referred to the fact that at the time of his appointment a number of criminal and civil lawsuits were pending against him in Croatia. 
“Dual Mandate” in April 2012
Topić took up office as EPO Vice-President on 16 April 2012. However, according to Croatian government records published in the official gazette “Narodne Novine”, his tenure as SIPO DG lasted until 30 April 2014. Thus for a period of around two weeks in April 2012, it seems that he effectively enjoyed a “dual mandate” as EPO Vice-President and SIPO DG.
In an article published by dnevno.hr in April 2013, it was claimed that one of his last actions as SIPO DG was to order the publication of a highly polemical four-page “Press Release” which he allegedly authored himself on the official website of the SIPO.  This “Press Release” concluded by expressing “grave concern that an extremely unprofessional media manipulation based on malicious accusations from a small number of people obviously driven by questionable motives can cause the reputation of a state institution and its Director to be called into question in such an outrageous manner, despite the notable results achieved by the Office and its professional reputation in the relevant national and international professional circles, which is incontrovertibly confirmed by the official reports of the European Commission, the international awards presented to Mr Topić and his appointment to a high executive function at the European Patent Office based inter alia upon the results achieved during his many years as the head of the Office.
We particularly regret that the competent institutions have also succumbed to this unprecedented pressure and have subordinated their actions to individual interests rather than objective reasoning based on relevant facts.” 
Despite the criticism of “unprofessional media manipulation” in the “Press Release”, the dnevno.hr article pointed out that a complaint against an article written by Slavica Lukić for “Jutarni list” which Topić submitted to the Croatian Journalists’ Association (HND) was dismissed by the competent “Ethics Council” of the HND in September 2012. In its conclusions the “Ethics Council” stated the following: “The Council finds that the colleague Lukić verified the relevant information with the appropriate official institutions [i.e. the Ministries of Science and Finance], so in that sense she was not under the obligation claimed by Mr. Topić [i.e. to obtain approval from him or from the SIPO]. The tone and style of the article are serious and balanced; there are no insults or muck-raking sensationalism (lit. “yellow elements”). This confirms that the article was not written with the intention of defaming anyone, but rather in defence of the public interest.” 
Dragan Primorac and the “Touareg affair”
One of the controversies relating to Topić’s period of office as SIPO DG, relates to alleged misappropriation of public funds to acquire expensive luxury vehicles for the use of a select group of SIPO employees and the then Minister of Science, Dragan Primorac, who exercised supervisory competence over the SIPO until March 2008. This matter was originally reported in the Croatian press in 2009 but has resurfaced recently due to a publication by the Croatian Public Sector Employees Union (SDLSN) claiming that no proper investigation into this alleged misappropriation of public funds ever took place.  The matter has acquired fresh relevance in Croatia in the light of pending criminal proceedings against the former Minister of Science, Dragan Primorac, in a similar case involving allegations of corruption and misuse of public funds at the National Standards Institute, another state institution which came under Primorac’s ministerial remit. In this case it is alleged that the former Director of the National Standards Institute, Dragutin Funda, provided a luxury Touareg SUV to Primorac at the expense of the Institute. The socalled “Touareg Affair” is currently the subject of court proceedings in Croatia and a hearing was held recently in May 2014. Primorac has pleaded not guilty to the charges against him whereas his co-accused, Funda, has pleaded guilty.  Other developments – Petition to the European Parliament In 2013, a number of letters voicing concern about Topić’s appointment as EPO Vice-President and calling for an independent investigation into the matter were submitted to the EPO’s Administrative Council by the Croatian NGO “Juris Protecta” which describes itself as an “Association for the Promotion of the Rule of Law in Croatia”. As the Administrative Council did not respond to these interventions, Juris Protecta filed a Petition with the European Parliament. The Petition has been registered with the number 2848/2013 and is expected to be examined for admissibility by the Petitions Committee during its next session, probably in September or October 2014. 
LINKS TO ORIGINAL CROATIAN PRESS ARTICLES
 Articles relating to Vesna Stilin and her dismissal from the SIPO:
 Articles relating to the “ZAMP Affair” and Emporion:
 Claims that Topić enjoys the “protection” of Croatian President Ivo Josipović:
http://www.dw.de/hrvatski -patent -za-autorska-prava/a-16035391
 Controversial renewal of Topić’s mandate as SIPO DG for a third term in 2012:
 Croatian press commentary on Topić’s appointment as EPO Vice-President:
 Articles with references to lawsuits against Topić at the time of his EPO appointment:
 Article mentioning Topić’s last “Press Release” as SIPO DG on 30 April 2012:
 The original Croatian version of the “Press Release” dated 30 April 2012 can be found
 Dismissal of a complaint submitted by Topić to the Croatian Journalists’ Association
against Slavica Lukic in 2012:
 Articles relating to the controversy surrounding acquisition of luxury vehicles by the
SIPO originally appeared in 2009:
More recent articles on this subject were published in April 2014:
 A report dated 16 May 2014 relating to the recent court hearing in the “Touareg Affair” can be found here:
 The Petition to the European Parliament is mentioned in the following article by
Intellectual Property Watch:
Here are press/news clippings
[PDF] about the above items and what follows is the aforementioned petition to the European Parliament:
PETITION REF. NO.: JP-2013-0001-EPO
For the urgent attention of:
The President of the European Parliament
Submitted in accordance with
Article 44 of the Charter of Fundamental Rights of the European Union
Article 227 of the Treaty on the Functioning of the European Union.
The present Petition concerns a matter which the Petitioner considers to be indicative of a serious deficiency in the governance of the European Patent Organisation.
Notwithstanding the fact that the EPO is not an organ of the EU and, as such, lies outside of the formal jurisdiction of the European Parliament, it is submitted that the European Parliament has both a legitimate interest and an obligation to ensure that proper standards of governance prevail at the EPO in consequence of the duties entrusted to the EPO by the EU under the unitary patent scheme.
The European Parliament is therefore requested to investigate the matter detailed herein and to exert its influence on the Administrative Council of the European Patent Organisation to take appropriate corrective action with regard to the same.
1. The European Patent Organisation is an international organisation established under the terms of the European Patent Convention (EPC) of 1973.
The text of the EPC is accessible online at the following URL: http://www.epo.org/law-practice/legal-texts/html/epc/2013/e/ma1.html
2. According to Article 4 EPC, the organs of the European Patent Organisation (EPO) are
(a) the European Patent Office; and
(b) the Administrative Council.
3. The Administrative Council is the governing body of the European Patent Organisation and it is composed of delegates from the contracting states, i.e. the signatory states of the EPC. Pursuant to the provisions of Article 11 EPC, the Administrative Council is the appointing authority for senior employees of the EPO, in particular the President and the Vice-Presidents of the European Patent Office.
4. Whereas the EPO is not an organ of the EU, the EU has a legitimate interest in the proper governance of said Organisation. This interest derives inter alia from the following considerations:
(i) Article 17 (2) of the Charter of Fundamental Rights of the European Union (hereinafter CFR-EU) states that “Intellectual property shall be protected”. The EU thus has an acknowledged statutory responsibility for protecting the intellectual property rights of its citizens.
(ii) In 2012, EU Member States and the European Parliament agreed on the so-called “unitary patent package” – a legislative initiative consisting of two Regulations and an international Agreement laying the foundation for the creation of unitary patent protection in the EU. In the context of this unitary patent scheme, the EPO has been entrusted with the task of granting unitary patents. It is also foreseen that the EPO will be in charge of centrally administering the unitary patent, levying the annual renewal fees and distributing them to the participating EU member states.
5. It is evident that the protection of intellectual property prescribed under Article 17 (2) CFR-EU can only be guaranteed in an effective manner if the institutions responsible for administering intellectual property rights are subject to proper governance.
6. Notwithstanding the fact that the EPO is not an organ of the EU and, as such, lies outside of the formal remit of the European Parliament, it is submitted that the European Parliament has both a legitimate interest and an obligation to ensure that proper standards of governance prevail at the EPO in consequence of the duties entrusted to the EPO by the EU under the unitary patent scheme.
7. The submissions which follow concern the appointment of a senior official of the European Patent Office. The Petitioner is of the view that this is a matter which raises questions about the standards of governance at the European Patent Organisation and on that basis respectfully submits that this is a matter of public interest which merits investigation by the European Parliament, in particular having regard to the observations set forth under items 4 to 6 above.
8. The Petitioner has already made two submissions to the Administrative Council of the EPO concerning the matters raised in the present Petition: a first submission in advance of the Council’s October 2013 meeting and a second submission in advance of its December 2013 meeting (Annex I). No response to these submissions has been received from the Administrative Council so far.
9. The present Petition concerns the appointment of a senior official of the EPO, namely the appointment of Mr. Željko Topić as the Vice-President of Directorate-General 4 of the European Patent Office.
10. Mr. Topić’s candidature for the aforementioned position was supported by the current President of the European Patent Office, Mr. Benoît Battistelli, and his appointment was approved by the Administrative Council of the EPO in March 2012 as announced on the official Internet site of the EPO: http://www.epo.org/news-issues/news/2012/20120328.html
11. Mr. Topić was formerly the Director-General of the Croatian State Intellectual Property Office (SIPO). He was initially appointed to that position in 2004 and was re-appointed for a second term in 2008. Shortly after being re-appointed for a third term in 2012, he resigned voluntarily from his position at the SIPO following his appointment as a Vice-President of the European Patent Office where he took up his duties in April 2012.
12. Mr. Topić’s appointment to the EPO was the subject of much critical press coverage in his home country of Croatia. For example, an article by the journalist Ms. Slavica Lukić was
published in Jutarni List on 28 April 2012: http://www.jutarnji.hr/kazneni-progon-nije-ga-zaustavio–sanaderov-kadar-zeljkotopic–smijenjen-na-vlastiti-zahtjev–dobio-jos-bolji-posao/1024680/
Mr. Topić filed a complaint about this article with the Croatian Journalists’ Association (Hrvatsko Novinarsko Društvo). However, Mr. Topić’s complaint was dismissed by the Association’s tribunal. An English language translation of the disputed article and the findings of the tribunal are provided as an annex to the present Petition (Annex II).
13. According to the information at the disposal of the Petitioner, apart from various civil proceedings, there were at least two criminal law cases pending against Mr. Topić prior to his appointment as Vice-President of the European Patent Office. One of these cases concerned the circumstances surrounding the dismissal of Ms. Vesna Stilin, a former Assistant Director-General of the Croatian SIPO, and the other one concerned matters which the Croatian Ministry of Education, Science and Sport as the government department with supervisory authority over the SIPO had failed to investigate properly despite its statutory obligation to do so. Evidence to support the foregoing assertions is provided in Annex III to the present Petition (Annex III-A1 and III-A2).
14. Concerning the first of the criminal law cases referred to above, it is noted that Ms. Stilin’s dismissal from the post of Assistant Director-General of the SIPO in 2008 was based on statements by Mr. Topić which Ms. Stilin considers to have been untrue and which prompted her to initiate criminal proceedings against Mr. Topić for defamation. In appeal proceedings held before the competent court of appeal in Croatia in December 2012, a judgment was delivered in Ms. Stilin’s favour to remit the case back to the court of first instance where it is still pending (Annex III-B).
15. Ms. Stilin additionally filed criminal charges against Mr. Topić with the Croatian State Prosecutor’s Office (Annex III-C). This case which includes a charge relating to bribery is likewise still pending before the courts in Croatia. A key accusation here is that Mr. Topić effectively “purchased” his re-appointment as Director General of the SIPO by bribing the former Minister of Education, Science and Sport, Mr. Dragan Primorac, who was responsible for proposing Mr. Topić’s re-appointment for a second term to the Croatian government in 2008 (Annex III-D). There is further extensive documentation about this matter, including a complaint which Ms. Stilin filed with the European Court of Human Rights in Strasbourg. A copy of this documentation can be provided on request.
16. In response to the legal actions which Ms. Stilin had initiated against him, Mr. Topić belatedly filed a private action for defamation against her at the Municipal Criminal Court in Zagreb on 22 April 2013. Mr. Topić’s action was dismissed by the court which delivered its judgment in Ms. Stilin’s favour in September 2013 (Annex III-E).
17. Further documentation is available which shows that during his period of office as Director General of the Croatian SIPO Mr. Topić ignored the recommendation made by independent EU experts in field of Copyright and Related Rights in the context of the Community Assistance for Reconstruction, Development and Stabilisation (CARDS) Programme for South-Eastern Europe (Official Reference No. 96-022 and 60343) where the EU provided Croatia with about € 2 million to assist the development of the SIPO, in particular with the aim of strengthening its Copyright and Related Rights Department. At that time the number of legal staff in the Copyright and Related Rights Department was insufficient as there were only two persons at the SIPO, including Ms. Stilin, responsible for dealing with these matters. However, instead of increasing the number of legal staff in accordance with the recommendation of experts appointed by the EU to which he had formally assented in a commitment given to the EU on behalf of the Republic of Croatia, Mr. Topić proceeded to effectively abolish the Copyright and Related Rights Department, by reducing the personnel dealing with these matters to a single person. Mr. Topić’s actions in this regard were carried out without any coherent explanation and in a manner which appears to have amounted to an egregious violation of his official obligations. A copy of the relevant documentation relating to this matter can be provided on request.
18. The Petitioner respectfully submits that it would be in the public interest for the Administrative Council of the EPO to initiate an impartial and objective investigation into the circumstances surrounding Mr. Topić’s appointment as a Vice-President of the European Patent Office and, to the extent appropriate, to exercise its disciplinary authority in the matter.
19. The Petitioner has already made representations to the Administrative Council of the EPO in this regard (Annex I). However, the Council has so far given no indication that it intends to carry out an independent investigation into the matter. The lack of any substantive response on the part of the Council leads the Petitioner to fear that it may be unwilling to take appropriate action on its own initiative to face up to its public duty in this regard.
III. RELIEF SOUGHT
In view of the foregoing, the European Parliament (hereinafter “the Parliament”) is hereby petitioned to take the following action in respect of the matter detailed above:
1. The Parliament is requested to conduct its own independent investigation into the matter.
2. Insofar as this investigation may lead it to conclude that the matter warrants further action on its part, the Parliament is requested to exert its influence on the Administrative Council of the EPO to take appropriate corrective action.
3. More specifically, the Parliament is requested to adopt a resolution calling on the Administrative Council of the EPO to conduct an impartial and independent investigation into the circumstances surrounding Mr. Topić’s appointment as a Vice-President of the European Patent Office and, to the extent appropriate, to exercise its disciplinary authority with regard to the same.
The Petitioner hereby wishes to assure the Parliament of its full co-operation with any investigation which it may see fit to conduct in response to the present Petition. The Parliament is further advised that Ms. Stilin, former Assistant Director-General of the Croatian SIPO, has informed the Petitioner of her willingness to co-operate with any independent investigation to be carried out under the Parliament’s authority into the matters detailed above. In particular, Ms. Stilin has indicated that she is prepared to provide copies of any relevant documentation at her disposal which might assist the Parliament in it endeavours in this regard.
In the meantime, the Petitioner respectfully remains at the Parliament’s disposal should it have any further queries or require any further assistance in order to assess the merits of the present Petition.
Request for confidential treatment pursuant to Rule 201(11) of the Rules of Procedure of the European Parliament
In view of the fact that legal proceedings are pending in Croatia involving parties mentioned in connection with the present Petition, the Petitioner considers that it would be advisable to treat the contents of the Petition with an appropriate degree of confidentiality in order not to prejudice the interests of any of the parties to the aforementioned legal proceedings.
Accordingly, a request for confidential treatment is made pursuant to Rule 201(11) of the Rules of Procedure of the European Parliament.
The Petitioner notes in this regard that it has no objection to it being entered into the public record that the present Petition has been lodged with the Parliament. However, the Parliament is respectfully requested to consult with the Petitioner to obtain its approval in the case that it is intended to make any further details of the Petition public.
I. Copies of submissions made by the Petitioner (Juris Protecta e.V.) to the Administrative Council of the EPO.
II. English language translation of an article by the journalist Ms. Slavica Lukić published in Jutarni List on 28 April 2012 accompanied by an English language translation of the findings of the tribunal of the Croatian Journalists’ Association dismissing a complaint filed by Mr. Topić against Ms. Lukić.
III. Copies of documents pertaining to alleged irregularities in the administration of the Croatian SIPO and related matters.
In the next part we are going to relate this to more abuses and swindles at the European Patent Office. █
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Summary: Intellectual Ventures, Microsoft’s and Bill Gates’ largest patent proxy, continues to spread lies about its motivations, claiming that patent assessment is among the goals when in fact only the courts and patent offices do this
Law 360, a site for lawyers, says that the EFF now uses the SCOTUS ruling against many software patents. The article, which is behind paywall (common practice among lawyers and legal sites), says: “The U.S. Supreme Court’s recent Alice Corp. decision means that thousands of software patents that claim abstract ideas must be found invalid, including an online advertising patent owned by Ultramercial Inc., the Electronic Frontier Foundation has told the Federal Circuit.”
As we recently showed, sites that are pro-software patents admit defeat in the sense that they acknowledge software patents are indeed affected. The remaining question is, his many of them are affected? Some patents are already being rejected based on the recent ruling.
“Some patents are already being rejected based on the recent ruling.”
The significance of all this is very high. It is a game changer. Things are changing for the better. Despite that, The National Law Journal, a site for lawyers, goes with the headline “No, ‘Alice’ Wasn’t a ‘Death Knell’ for Software Patents” and another lawyers’ site (links in page 6) to “Getting your software patents approved”, which is basically the voice of patent lawyers who can’t accept the new reality. Here we have a very vocal software patents booster speaking with Mark Lemley. His article starts as follows:
My immediate reaction was that this would be extremely bad for software patents. Many others thought I was engaging in extreme exaggeration. Since then, however, the Patent Office has started issuing Alice rejections where no previous 101 patent eligibility rejection stood, they have been withdrawing notices of allowance after the issue fee has been paid in order to issue Alice rejections, and the Federal Circuit is strictly applying the nebulous “Alice standard” to find software patent claims patent ineligible.
It is now clear that the Supreme Court’s decision in Alice fundamentally changed the law and future of software patents, at least those already issued and applications already filed, which cannot be changed without adding new matter. Those applications were filed at a different time and under a substantially different regime.
So let it be established that even many software patents boosters don’t fight the fact that new quality-related constraints are now in place.
The Bill Gates-connected Intellectual Ventures recently made headlines again due to massive layoffs and due to its blatant lies. The troll rewrites history now, pretending that its goal was to create products or to assess quality of patents. Everyone who knows even a little bit about this troll would have no doubt that it was all along about extortion. Watch this latest PR offensive:
Intellectual Ventures, the world’s largest patent troll and a general tax on innovation, diverting over $6 billion away from actual innovators, has always been really stunningly good at getting the tech press to repeat questionable claims about its “real intentions” and how it’s helping to “drive innovation.” Every time the negative press catches up to IV’s really nefarious practices, it comes up with a way to try to spin the story around again, like that time it tried to claim its real goal was to help everyone sort through good and bad patents.
Trolls do not create anything and they do not assess patents. They are predatory opportunists who try to maximise profit based on a business model of the Mafia. What’s amazing is that there are enough gullible (or corruptible) journalists out there who continue to pump out lies for the trolls, pretending that these trolls are somehow “misunderstood” (or something along these lines).
All in all, it seems like both patent trolls and patents on software are going down. It’s generally good news that would encourage real innovation. █
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Summary: A milestone is reached as even the most zealous supporters of patents on algorithms (or computer-implemented inventions, or software patents) are admitting that the era of software patents may be over
PATENT layers are running scared and trying to figure out how to still patent software in the United States (this is just the latest of many such articles).
After the decision from SCOTUS (a decision against many software patents) law firms tried to fight this decision using words and using corrupt courts like CAFC. On the face of it, patent lawyers are not really succeeding. They can’t overturn what was decided.
Looking at the plutocrats’ press, it seems evident that the consequences are already being realised:
Last month, Apple and Samsung called off all their non-U.S. legal jousting over smartphone patents. With up to 40 different Apple-v.-Samsung cases being contended around the world, this was no small matter. Apple had already settled most of its smartphone fights with Google and Motorola. Then last week Intellectual Ventures, the litigious patent holding company founded and run by Nathan Myhrvold, said it would lay off nearly one-fifth of its 700 employees. Is the accumulate-and-sue patent strategy wearing thin?
Even CAFC seems to be giving up on its pro-software patents Jihad. A pro-software patents site cites the corrupt judge Rader (pro-software patents for years) to explain the demise of software patents in the United States. To quote some bits: “Former Federal Circuit chief judge Randall Rader has claimed that the prospects for software patent protection have fundamentally shifted following the Supreme Court’s decision in Alice v CLS Bank. In an exclusive interview with IAM, Rader, who stood down as the head of the CAFC in May and then left the court in June, admitted that he had hoped for more clarity.”
Funny how they neglect to say why he ‘left’. That’s what one ought to expect from a pro-software patents site.
Yet another pro-software patents site cites USPTO‘s new rules to acknowledge that software patents are now in trouble in the US. Quoting a relevant portion:
Just six days following the Alice opinion, on June 25, the PTO issued the USPTO Preliminary Examination Instructions In View Of The Supreme Court Decision in Alice Corporation Pty Ltd v CLS Bank International, et al. These Preliminary Instructions interpreted Alice to suggest that all claims directed to laws of nature, natural phenomena, and abstract ideas, regardless of the technology or the category of invention, should be analysed for patent eligibility using the two-step Mayo analysis. Some public commentary asserted to the PTO following the Preliminary Instructions report that many pending business method and software claims, which under the previous USPTO guidance may have been patent eligible, are now being rejected as patent ineligible.
The significance of the above items should be clear; even the most ardent supporters of software patents are gradually weakening and are willing to admit that software patents are in trouble. They may not say much about corruption in courts that supported software patents, but they do spot the trend.
Techrights is going to provide exclusive coverage with some major leaks about the EPO later this month. There is corruption here in the European patent system as well. We intend to expose it. █
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