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10.18.18

IAM and IP Kat Are Still Megaphones of Battistelli and His Agenda

Posted in Deception, Europe, Patents at 6:00 am by Dr. Roy Schestowitz

(The ‘new’ IP Kat (after Merpel 'died'), the one which deletes comments about Battistelli and António Campinos)

Battistelli revisionism

Summary: IAM reaffirms its commitment to corrupt Battistelli and IP Kat maintains its stance, which is basically not caring at all about EPO corruption (to the point of actively deleting blog comments that mention such corruption, i.e. ‘sanitising’ facts)

THE EPO said “goodbye and good riddance” to Battistelli almost 4 months ago. He has since then maintained a low profile except when French media approached him as he may be criminally liable but immune nonetheless.

Joff Wild of IAM, where the corrupt Battistelli writes on occasions (promoting software patents in Europe), is still whitewashing this man. This is the man IAM does revisionism for even in October. See the screenshot above.

Curiously enough, not only was the above behind paywall (which makes it harder for Battistelli’s critics to assess). It only appeared in searches more than a fortnight late. Why?

On the same day (Tuesday) Annsley Merelle Ward (Bristows LLP), who dominated IP Kat last year, returned for a change to carry on cheering for patent trolls in the UK. “One of the key issues on appeal from Mr Justice Birss’ decision,” she said, is basically whether companies can use their proxy patent trolls to shake down the competition.

“In conclusion, IAM is still (more than 3 months later) grooming Battistelli and IP Kat has no interest whatsoever in EPO scandals (which carry on by the way).”So a firm involved in the case uses IP Kat for its own purposes; “The IPKat team [i.e. Bristows staff quoting other Bristows staff] will be back next week to report on the key findings of the Court of Appeal, with analysis to follow,” she said.

What has IP Kat become? Aside from the fact that it doesn’t write as much as it used to (and several writers very recently left), watch what it published on the same day about “blockchain” (the usual patent hype) and then in “Standards and Patents annual conference returns to London”. IP Kat actively promotes an event in London that lobbies for software patents under the guise of “AI”, “FRAND” and other nonsense (even software patents inside standards).

Later in the same day IP Kat started celebrating patents on food; the comments are better than the post. Last but not least, on the same day IP Kat mentioned the EPO (at long last). But remember this is the Kat which deleted the thread (about 40 comments) about António Campinos, whose friends he already brings to the EPO (just like Battistelli did). What did the blog write about the EPO? Nothing. It just plugged in the EPO’s press release: “The Administrative Council of the EPO has appointed the next vice-presidents of the EPO: Stephen Rowan (UK), Christoph Ernst (Germany) and Nellie Simon (Austria). Find out more about the new vice-presidents here.”

In conclusion, IAM is still (more than 3 months later) grooming Battistelli and IP Kat has no interest whatsoever in EPO scandals (which carry on by the way). This cat got neutered…

The EPO Under António Campinos Relaxes the Rules on Software Patenting and the Litigation ‘Industry’ Loves That

Posted in Europe, Marketing, Patents at 5:20 am by Dr. Roy Schestowitz

Easier to tax coders, whose projects will be undermined or never come to fruition in the first place (due to fear of lawsuits)

EPO white flag

Summary: EPO management, which is nontechnical, found new terms by which to refer to software patents — terms that even the marketing departments can endorse (having propped them up); they just call it all AI, augmented intelligence and so on

THE EPO seems eager to handicap Europe’s software industry. What does it care anyway? All it wants to do is grant as many patents as possible and get a pat on the back from litigators. António Campinos has taken this lunacy to new levels as the EPO under his leadership constantly promotes software patents in Europe. It does so not only every day but several times per day. Campinos recently saw the need to write a blog post about it.

“…now that nontechnical people (promoted based on loyalties rather than merit) run the EPO they’re more easily swayed by law firms and marketing departments, not scientists.”Not everyone is upset about this abomination. Some people make a living not from creation but from destruction; put another way, they sue things out of existence. Like patent trolls do…

Patent law firms, unlike patent trolls, win irrespective of the courts’ outcomes. It doesn’t matter if European Patents are nowadays presumed invalid; all that matters is that lawyers are needed…

We recently wrote about the leveraging of "AI" as a byword or surrogate for software patents. Philip Naylor (Carpmaels & Ransford LLP) took note of that too; writing in IAM, the EPO’s propaganda rag, Naylor said this:

The EPO has updated its official guidelines to include a specific section on how the office is likely to assess patent applications directed towards artificial intelligence (AI). A preview of the update can be found on the EPO website and will come into force on 1 November 2018.

The update to the guidelines provides further clarity on how the EPO’s existing legal framework will be applied to AI inventions. Generally, the update confirms that the same rules that are applied to all computer-implemented inventions will apply to inventions involving AI. The rules stipulate that mathematical methods per se are “devoid of technical character” and thus are not patentable when considered in isolation. However, inventions that use mathematical methods remain patentable if they provide a technical solution to a technical problem. The EPO’s guidelines now state that AI and machine-learning algorithms are considered to be mathematical methods. Therefore, an invention that uses AI or machine learning must solve a technical problem in order to be patentable, in the same way as any other computer-implemented invention.

So they’re adding tricks for software patenting, knowing that these are not allowed. They tell applicants to say “AI” and at the same time instruct examiners to almost ‘rubber-stamp’ all this “AI” stuff. Never mind if the concept is rather nebulous, much like the concept of “cloud”. The litigation industry rejoices and helps this agenda, based on another new article that says:

Jennings is in the camp that believes that AI “augments humans”. He said he was “very happy to see that the European Patent Office (EPO) stresses AI as augmented intelligence”.

The EPO published its preliminary update of its guidelines for examination in early October, which included changes for provisions relating to the patentability of AI and machine learning.

So software can be patented “per se” and “as such”; just make sure the application says “AI” in it.

Eamon Robinson (Haseltine Lake LLP) has also just published this article about the EPO cutting corners for shallower or faster examination:

A European patent or a patent application may not be amended to contain subject matter extending beyond the application as filed. This section of the Guidelines provides guidance on when replacing or removing features from a claim results in unallowable added subject matter.

The Guidelines describe a three step test to determine if such amendments result in added subject matter. The updated Guidelines clarify that an amendment will fail the test, and thus add matter, if at least one criterion of the test is failed.

[...]

The changes to the Guidelines emphasise the importance of this “gold standard” over the above three step test. The “gold standard” should therefore, be considered when making amendments to the claims of a patent or application, in particular when removing or replacing features. Furthermore, the change to the first step of the test may make it easier for objections to be raised to amendments. The previous Guidelines stated that it was enough for a skilled person to recognise that a feature is explained as essential, whereas, the updated Guidelines require that the feature must be objectively explained as essential.

In summary then, the EPO’s advice to examiners in relation to removal of features would seem to be getting stricter.

Decisions are already being made a lot faster, at the very least in order to meet quotas/targets. Maybe some time soon Campinos will just use so-called ‘AI’ (algorithms) to assess patent applications with the term “AI” in them.

It should be noted that this whole “AI” hype doesn’t deal with novelty; the term “AI” was reintroduced a lot in the media last year. A lot of it boils down to marketing. In the broadest sense of the term the concept of AI dates back to the dawn of computing. But now that nontechnical people (promoted based on loyalties rather than merit) run the EPO they’re more easily swayed by law firms and marketing departments, not scientists.

10.17.18

Improving US Patent Quality Through Reassessments of Patents and Courts’ Transparency

Posted in America, Courtroom, Patents at 3:56 am by Dr. Roy Schestowitz

Transparency in CD

Summary: Transparency in US courts and more public participation in the patent process (examination, litigation etc.) would help demonstrate that many patents are being granted — and sometimes asserted — that are totally bunk, bogus, fake

THE new leadership is oftentimes frustrating if now downright depressing; they put the so-called ‘swamp’ in charge. A new event about patents issued the following nonsensical tweet: “A new twist has recently entered the debate about how #patents and #opensource interact and whether the two principles are compatible with each other or not.”

“So stop granting software patents; the principal problem would be solved.”They’re obviously not compatible, but the sponsors would pay for us to believe otherwise. The event took place yesterday and attending as well as speaking was Director Iancu, who said, according to third-party accounts: “lack of predictability on Section 101 limits investment in innovation. [] gets specific: “Step 1 of Alice-Mayo test must be a ‘category’ analysis not a claim analysis. If the matter is sometimes patentable then it is not a subject matter Section 101 problem.”

So stop granting software patents; the principal problem would be solved. We’ll probably say more in the weekend (once all the patent maximalists are done boosting him).

Totally meaningless is the message above (lots of mythology embedded in it, pure fiction from the patent microcosm). He just wants to find ways to defy the courts, ignore caselaw, and grant software patents anyway.

Last night Josh Landau (CCIA) spoke about history and noted that “[w]hile the PTO no longer operates under a registration system, that situation still exists today. The PTO—unlike many other patent offices around the world—is unable to permanently refuse a patent application.”

Here are some key bits:

Setting aside the apparent fact that the vast majority of patents back then were on old ideas—a problem that continues to exist, given the significant number of invalid patents issued by the PTO—there’s another lesson to be had from this diary entry.

Dr. Thornton was operating under the registration system, during which patents were not examined but were simply granted. As Adams emphasized, the problem of an inability to refuse a patent leads to the existence of patents on old technology, imposing significant harms on the public who become unable to utilize the prior technology that they should have had the right to employ.2

While the PTO no longer operates under a registration system, that situation still exists today. The PTO—unlike many other patent offices around the world—is unable to permanently refuse a patent application. All they can do is temporarily reject it and wait for the applicant to decide if they want to keep going with prosecution. Unsurprisingly, in a system where it’s impossible to permanently get rid of an application, a large number of them eventually become patents. When correcting for procedures like continuations, the percentage of patent applications that are issued has risen, approaching nearly 100% last year—a proportion not reached since the turn of the millennium.

[...]

It’s unfortunate that the PTO and policymakers continue to fail to learn from these mistakes—particularly when the first Commissioner for Patents identified the issue over 200 years ago.

This means that we increasingly need to rely on courts and tribunals, not examiners.

In spite of fee hikes and other attempts — more recently by Iancu — to sabotage the Patent Trial and Appeal Board (PTAB) this tribunal is still attracting many inter partes reviews (IPRs), abolishing software patents by the hundreds each month, owing to to 35 U.S.C. § 101, inspired by SCOTUS and embraced by the U.S. Patent and Trademark Office (USPTO).

Michael Loney graphed/charted the numbers yesterday and said:

2018 is on course to have the lowest petition filing rate since 2013. The third quarter included the impact of SAS on institution decisions, an update to the AIA Trial Practice Guide, the departure of the PTAB chief judge and the creation of a Precedential Opinion Panel

Sometimes there are appeals and these typically swiftly affirm the Board’s decisions.

As we noted here before, the EFF’s Daniel Nazer and his colleageus had been asking the Federal Circuit for greater transparency in patent lawsuits, affairs, lobbying etc. (without time delays as before).

The final outcome is positive, as Nazer noted some hours ago. To quote:

In a victory for transparency, the Federal Circuit has changed its policies to give the public immediate access to briefs. Previously, the court had marked submitted briefs as “tendered” and withheld them from the public pending review by the Clerk’s Office. That process sometimes took a number of days. EFF wrote a letter [PDF] asking the court to make briefs available as soon as they are filed. The court has published new procedures [PDF] that will allow immediate access to submitted briefs.

Regular readers might note that this is the second time we have announced this modest victory. Unfortunately, our earlier blog post was wrong and arose out of a miscommunication with the court (the Clerk’s Office informed us of our mistake and we corrected that post). This time, the new policy clearly provides for briefs to be immediately available to the public.

We certainly hope that CAFC, by affirming decisions of PTAB, can undermine Iancu’s agenda of weakening PTAB and broadening patent scope in defiance of the Supreme Court. Iancu appears to have adopted lawlessness, just like his boss who appointed him after he had worked for him. The EFF is rightly upset about it.

Ask OIN How It Intends to Deal With Microsoft Proxies Such as Patent Trolls

Posted in GNU/Linux, Microsoft, OIN, Patents at 1:59 am by Dr. Roy Schestowitz

Microsoft does not need to sue GNU/Linux (and hasn’t done so in quite a while); there are ‘tentacles’ for enforcement…

Bill and Nathan
The "Microsoft spinoff" Intellectual Ventures is still managed by the same man. Credit: Reuters

Summary: OIN continues to miss the key point (or intentionally avoid speaking about it); Microsoft is still selling ‘protection’ from the very same patent trolls that it is funding, arming, and sometimes even instructing (who to pass patents to and sue)

WE HAD been writing about Microsoft’s attacks — especially by means of patents — and ‘defensive’ aggregators (DPAs) long before the Open Invention Network (OIN) added Microsoft as a member (or even LOT Network). We wrote many articles about why OIN wasn’t the solution, except perhaps to large companies such as Red Hat and IBM (which already cross-licenses with Microsoft anyway). We foresaw Microsoft joining as a member and clarified that it would not mean very much. OIN cannot really tackle some of the key problems. Even if Microsoft threw away all of its patents (voiding everything) — however unlikely that is — that would still leave many patents out there that it gave to patent trolls such as MOSAID (now known as Conversant). For well over a decade Microsoft has ‘polluted’ several spaces/domains with trolls, flooding them with risks that help Microsoft sell “Azure IP Advantage” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21] (or previously Novell/SUSE Linux with the ‘Microsoft tax’ for what they back them marketed as “intellectual property peace of mind”).

“For well over a decade Microsoft has ‘polluted’ several spaces/domains with trolls, flooding them with risks that help Microsoft sell “Azure IP Advantage”…”OIN’s response to my views (just mentioned in Hall’s new article with the words “Peace Treaty” in the headline) dodges the issue of patent trolls, including Microsoft-connected ones. There’s nothing they can do about these and occasionally they admit so, too. With lots of USPTO-granted software patents out there (OIN expresses no interest in actually challenging those) there’s going to be trouble.

I must say that not a single person has yet pointed out inaccuracies or errors in my articles/views on this matter. Nobody. I saw a lot of people agreeing; curiously enough, some key Microsoft employees blocked me in Twitter pro-actively (even though I never even spoke to them or about them). How curious. It’s like they’re afraid of actually dealing with the facts and debate matters. Ears wide shut.

Mitchel Lewis, who blogs about technology [1, 2], recently approached me for “a chat about Microsoft [...] Specifically with regard to patent trolling. I’m writing an article about the influence of Bill Gates Sr. and his law firm KL Gates with regard to the predatory design and nature of Microsoft…”

“I’m an open book man,” he said. “Another project that I have on the back-burner is focused on how Microsoft influences and suppresses the media.”

Here is what we wrote to me about OIN and patent trolls:

Truth be told, I just stumbled upon that site today so I will be spending a bit of time there over the next few weeks. Based on what I’ve read so far though, thanks for pointing out how Microsoft funds patent trolls; this was news to me. But it also seems like an eerily similar tactic leveraged by Peter Thiel, and presumably others, when he enacted his revenge on Gawker by funding Hulk Hogan’s lawsuit. In turn, this makes me wonder if media outlets dance around topics that make Microsoft and other large entities look bad for fear of indirect retaliation such as this.

I’ve been so focused on other crude aspects of Microsoft that I seem to have neglected to realize just how potent of a troll they are in the realm of patent law, among other things. Only after realizing that they’ve been trolling the Linux world for years, to the point of being one of necessitating factors of OIN’s formation, did I begin to consider just how much of their business is dependent on subverting their competition, Linux or otherwise, through their patents.

Needless to say, please feel free to use and re-appropriate anything that I’ve written to use as well as cite at your discretion. I maintain the stance that there are not enough people writing about how destructive Microsoft is in this day and am just glad to see others writing about it.

OIN may never be able to explain how it intends to tackle Microsoft’s satellites, such as Intellectual Ventures, Finjan, and Acacia, which as noted only earlier this week still attacks other OIN members for their products that compete with Microsoft’s.

10.16.18

Judge-Bashing Tactics, Undermining PTAB, and Iancu’s Warpath for the Litigation and Insurance ‘Industries’

Posted in America, Courtroom, Law, Patents at 6:43 am by Dr. Roy Schestowitz

The existing USPTO’s management feels like it doesn’t care about justice (facts), technology and science, only about legal bills

Trump and Iancu

Summary: Many inter partes reviews (IPRs) at the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office (USPTO) leverage 35 U.S.C. § 101 against software patents; instead of putting an end to such patents Director Iancu decides to just serve the ‘industry’ he came from (a meta-industry where his firm had worked for Donald Trump)

THE USPTO under the new leadership (Director) deviates further and further away from Federal Circuit (CAFC) rulings and SCOTUS caselaw. The Office does so at its own peril, however, as the certainty associated with US patents will be further reduced. More and more granted patents will be presumed invalid. Is the leadership/Director OK with that?

This post binds together last week’s stories about court cases and Office policies. What we hope to show is a divergence from the law; the Office just cares about granting patents, not defending their value by limiting their scope.

We begin with this affirmation by CAFC — one in which a U.S. District Court was supported by CAFC. The divergence between the courts is being lowered over time. CAFC learned to obey SCOTUS and U.S. District Courts have, in turn, become more like CAFC. This is a good thing as it’s indicative of correct or at least consistent judgment. The same cannot be said about the Office because far too many patents these days are later discovered/unmasked as fake patents.

Yesterday Kluwer Patent Blog wrote about a British court “finding that the claims in question were invalid for obviousness.” It’s not just a US issue.

A couple of days ago Steve Brachmann and Gene Quinn (Watchtroll) wrote about Swildens and his successful challenge to a patent. They recalled a month-old report:

On September 12th, the U.S. Patent and Trademark Office issued a final office action in an ex parte reexamination of a patent owned by Google self-driving car development subsidiary Waymo. As a result of the reexamination, Waymo stands to lose 53 of 56 claims, including all 20 of the patent claims originally issued. The patent in question had been asserted as part of the company’s well-known infringement suit filed against Uber.

The patent at the center of this reexamination is U.S. Patent No. 9368936, titled Laser Diode Firing System. Issued to Google in June 2016, it claims an apparatus including a voltage source, an inductor coupled to the voltage source and configured to store energy in a magnetic field, a diode coupled to the voltage source via the conductor, a transistor that can be turned on or off by a control signal, a light emitting element coupled to the transistor and a capacitor coupled to charging and discharge paths where the charging path includes the inductor and the diode and the discharge path includes the transistor and the light emitting element. The invention provides a laser diode firing circuit for a light detection and ranging (LIDAR) device where the emission and charging operations of the firing circuit can be controlled by operation of a single transistor.

The reexamination of the ‘936 patent was requested in August 2017 by an engineer named Eric Swildens who, according to news reports, has no connection to either Uber or Waymo but became interested in the potential invalidity of the patent after it was asserted in Waymo’s case against Uber. The reexam requested by Swildens has to date been able to knock out all 20 claims of the claims originally issued in the patent, with only three amended claims that were added to the patent during the reexam proceeding being found to be patentable by the reexamination examiner.

Long story short, this patent should never have been granted. Watchtroll can (and will) whine all it wants, but a lot of US patents get granted in a rush/haste, only to be thrown out as soon as they reach courts (or PTAB).

Jeffrey Killian recently complained about “Patent Uncertainty”. He wrote about it on October 9th at Watchtroll. The problem is that the USPTO granted far too many bogus patents. The problem isn’t the courts and it’s certainly not PTAB, which actually restores some much-needed sanity. Of course these patent maximalists blame courts rather than greed, but one must bear in mind how they make a living.

On the “blocking patent” doctrine, Watchtroll is smearing the courts again. Complaining about CAFC twice in two days [1, 2]. This is unwise a thing to do as it threatens their interests. It undermines the courts’ support or trust in law firms. Hans Sauer and Melissa Brand, then just Melissa Brand, basically insinuate that courts lack logic and even use a “Gremlin” caricature. Stay classy, folks…

It should be noted that a patent troll CEO, William Merritt (President and CEO of InterDigital), was writing for Watchtroll last week. This is why it deserves to be called Watchtroll. It’s like a megaphone of the trolling ‘industry’…

Moving on a bit, PTAB is doing so well that patent maximalists are screaming on the phone with lawyers willing to waste their money. “Today’s new patent complaints,” wrote one PTAB proponent, are “usual glut of NPE [troll] suits, sprinkle of operating companies… and a corp suing Iancu/the PTO for a DJ that IPR is unconstitutional (incl under 7A.) Interesting tactic, given that they already lost on appeal to CAFC and SCOTUS disagreed on the 7A q.”

PTAB generally helps techies or geeks. It doesn’t help parasitic lawyers. Whose side should we be on? Decisions, decisions…

HTIA, which represents technology firms, wrote some days ago: “Let’s debunk myths: #Patent reform has not harmed #innovation. The 300 U.S. companies who have invested the most in R&D have increased R&D spending by 44% since 2012.”

This links to an older article, but it’s still very much relevant. PTAB guides the hands of examiners, moving the hands away from software patents. PTAB often overturns examiners’ decision to the detriment of software patent applicants, but patent maximalists latch onto the rare exception rather than the norm. Here is one such exception:

The examiner originally rejected the claims as improperly directed toward an abstract idea. On appeal, however, the PTAB has reversed finding that “dwell time” is a uniquely “internet-centric challenge” and the claimed solution is “is necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks.” quoting DDR Holdings. The PTAB particularly noted that “dwell time” is not merely “some business practice known from the pre-Internet world” that was claimed by simply saying “perform it on the Internet.”

The classic “on the Internet” trick; don’t they just say “on the cloud” these days?

Linda Panszczyk wrote about CAFC asking PTAB to have another go assessing a patent (reversals are rare, they don’t overturn invalidations much). This is from last week’s short post:

The U.S. Court of Appeals for the Federal Circuit has vacated and remanded a Patent Trial and Appeal Board decision that a reference guide qualified as a printed publication, in a case involving reexamination of medical device patents relating to access ports, asking for the Board to clarify its findings on this matter.

They’re doing the work examiners should have done in the first place.

“The classic “on the Internet” trick; don’t they just say “on the cloud” these days?”Director Iancu cannot gut PTAB, especially not after Oil States; but the head of PTAB (a judge) was recently removed (or departed) and the latest act of sabotage from Iancu seems like a gross case of bypassing courts. As Josh Rich put it:

Under a new PTO administrative rule published today, the PTAB will apply the same claim construction standards in IPRs, PGRs, and CBMs filed on November 13, 2018 or later as would apply in litigation. 83 Fed. Reg. 51340 (Oct. 11, 2018). The PTAB will also consider claim construction decisions from litigation (whether from courts or the U.S. International Trade Commission) in construing claims in AIA proceedings. The new rule abandons the PTO’s former approach of using the broadest reasonable interpretation (“BRI”) in claim construction, and thereby reflects a continuing move from considering AIA proceedings analogous to prosecution to considering them analogous — or part of — the litigation process.

Currently, the PTAB uses the BRI to construe claims in the vast majority of AIA proceedings, the only exceptions being in cases where the patent has expired or is expiring imminently.[1] In doing so, it has treated the AIA proceedings as analogous to a continuation of prosecution (in which claims are given their broadest reasonable interpretation throughout the process). That approach makes sense in the historical context of AIA proceedings, given that it allows the PTO to use the same approach across almost all cases before it, AIA proceedings are to supplement — not reargue — issues that were presented during pre-issuance prosecution, and AIA proceedings share many similarities with prosecution (including limited ability to address the counterparty’s claim construction arguments). Furthermore, the ability to amend claims during such proceedings provides a “safety valve” for an inopportune, overbroad claim construction.

Dennis Crouch wrote about the Phillips standard:

The USPTO’s Final Rule Package on Inter Partes Review Claim Construction is set to publish in the Federal Register on October 11, 2018. Up to now, the PTAB has been using the USPTO “broadest reasonable interpretation” standard to interpret challenged patent claims. Under the new rule, the PTAB will now rely upon the PHOSITA standard more traditionally used for issued patents as articulated by in Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc) and further developed in later cases. This new rule will apply in IPR, PGR, and CBM proceedings. The new rule also indicates that prior claim constructions by a court or USITC “will be considered.” This final rule is essentially unchanged from the proposed rule found in the May 2018 NPRM. Timing: The new claim construction applies to cases involving “petitions filed on or after the effective date of the final rule, which is November 13, 2018.”

Watchtroll’s founder said about this Phillips standard that Iancu’s office “has published a final rule in the Federal Register changing the claim construction standard applied during inter partes review (IPR), post-grant review (PGR), and covered business method (CBM) review proceedings before the Patent Trial and Appeal Board (PTAB).”

Here is what another patent maximalist said:

The final rule changes the claim construction standard used by the PTAB to the Phillips standard used in district courts. Practitioners predict a surge in filing before it becomes effective in November

The USPTO has published a final rule changing the claim construction standard applied during inter partes review (IPR), post-grant review (PGR), and covered business method patents (CBM) proceedings before the PTAB.

So the filings are expected to temporarily go up again, just like they did before fee hikes. Office Director seem to be missing the point that keeping PTAB affordable and accessible is actually a priority; all they care about is masking the decline in quality — same thing which the EPO has been doing.

Over at Lexology, Porter Wright Morris & Arthur LLP’s Bill T. Storey took note of the Office becoming more of a patent maximalists’ office under Iancu when he said:

On July 1, 2018, the United States Patent and Trademark Office (USPTO) began a 3-year pilot program known as The PCT Collaborative Search and Examination Pilot (CS&E) Program, to streamline examination and search procedures for patent examiners in multiple countries. The program is a coordinated effort with patent offices from around the world, together known as the IP5 offices. Specifically, participating International Search Authority (ISA) members include the USPTO, European Patent Office (EPO), Japan Patent Office (JPO), Korean Intellectual Property Office (KIPO), and State Intellectual Property Office of the People’s Republic of China (SIPO). This program is a continuation of two previous programs launched in 2010 and 2011, respectively, involving the USPTO, EPO and KIPO that laid the groundwork for this expanded program aimed at testing user interest, operational and quality standards, and the electronic platform.

Currently, upon filing a PCT application, applicants designate one of the IP5 offices to provide an international search report (ISR) and written opinion. However, upon reaching the national stage as applicants pursue applications in individual countries, applicants can be presented with country-specific search reports involving entirely new art depending on varying search criteria. This can place a burden on applicants and hinder cohesive world-wide prosecution strategies. The CS&E program addresses this issue by coordinating searches from each office, thereby providing a higher quality work product which is more likely to comprehensively identify and consider world-wide art. The CS&E program provides the advantages of having the searching performed by multiple examiners with different language capabilities and an increased predictability of outcome. Importantly, at this time the CS&E program requires no extra cost.

It’s worth noting that nobody but a vocal group of trolls' attorneys actually complained about PTAB. One of them wrote: “Amazingly Ebay wins rare 101 #patent appeal because “dwell time, which is an Internet-centric challenge” is not just directed to an abstract idea https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017003747-09-26-2018-1 … Once again, proves how handy it is to have the right panel of judges!”

More of that judge-bashing, as usual…

They spent years pushing the fiction that PTAB is “stacked” or corrupt or whatever. Iancu now uses these smears of theirs to frame PTAB as “controversial” with perception issues. Whose? Iancu seems to believe that the USPTO exists for patent law firms rather than for science and technology. Having come from the law firm that worked for Trump, this is hardly surprising.

Not only do firms sell “lawsuits as a service”; nowadays they also sell insurance policies. Watch what Pillsbury (Policyholder Pulse blog) wrote last week; the insurance ‘industry’ now exploits the demise of low-quality patents that are being invalidated:

To help fill this patent coverage gap, some insurers have recently begun offering more comprehensive and cost-effective intellectual property policies specifically tailored to address the risk of patent (and other intellectual property) claims.

[...]

The patent landscape continues to evolve in the wake of the Leahy-Smith America Invents Act and the Supreme Court’s decision in Alice Corp. v. CLS Bank, which established a more exacting patentability standard for software patents and has opened the door to more motions to dismiss for lawsuits asserting those patents. Nonetheless, patent lawsuits remain prevalent and costly. A well-negotiated patent policy can help close a critical coverage gap, and may even prove critical to your company’s continued viability in the face of such suits.

So when there are lots of patent lawsuits they sell insurance to defendants and when many patent lawsuits fall through they sell insurance to the plaintiffs. Some ‘industry’, eh?

‘Cloud’, ‘AI’ and Other Buzzwords as Excuses for Granting Fake Patents on Software

Posted in America, Deception, Patents at 5:13 am by Dr. Roy Schestowitz

Cloud on beach

Summary: With resurgence of rather meaningless terms like so-called ‘clouds’ (servers/hosting) and ‘AI’ (typically anything in code which does something clever, including management of patents) the debate is being shifted away from 35 U.S.C. § 101 (Section 101); but courts would still see past such façade

THE EPO and USPTO both have a bad new habit that they spread to other patent offices, such as KIPO in Korea. They use or misuse buzzwords. They try to make things outside patent scope seem so innovative that somehow this supposed innovation defies the rules (scope). Sometimes that manages to impress or at least confuse examiners and judges.

“So let’s start with this assumption that patent maximalists have come to accept Section 101/Alice renders software patents worthless and even overzealous, very large law firms (Finnegan is one of the biggest) insist that patenting has gone too far for practical purposes. Where do they go from here? Buzzwords.”It’s hard to patent software. So it’s not hard to see why patent maximalists would pursue such tricks. As recently as Sunday Watchtroll published this rant about Section 101/Alice — the basis (or legal framework) upon which most software patents become void. “This has prompted many to cast a grim prospect for the software patent industry,” Babak Nouri (at Watchtroll) wrote less than a couple of days ago, as if the patents themselves are the industry…

“A Realistic Perspective on post-Alice Software Patent Eligibility” is the headline and here’s a snide remark directed at the law itself: “Much of the havoc wrought in the software patent system by the landmark decision Alice v. CLS Bank International, 134 S. Ct. 2347 (2014) stems from the unworkable two-part patent eligibility test based on vaguely defined and nebulous Abstract idea and significantly more constructs. The High court’s reluctance or perhaps inability to precisely define these standards and the perceived lack of discernible consistency by the patent community in the way these standards have been applied in the compendious jumble of case law, has perpetuated a sense of uncertainty. This has prompted many to cast a grim prospect for the software patent industry.”

Who said this so-called ‘industry’ (it’s not even an industry) deserved to exist in the first place? Let coders write code. Most of them never dealt with lawyers and aren’t interested in lawsuits. It’s the lawsuits ‘industry’ looking to cause trouble.

A few days ago Elliot C. Cook and Jeffrey A Berkowitz (Finnegan, Henderson, Farabow, Garrett & Dunner, LLP) published “Successful Companies Don’t Just Patent Everything—They Make And Follow A Strategy”.

You can’t patent everything anyway. Sooner or later, as in the US with its courts, you realise that the lion’s share of your patents are fake, worthless, toothless. Or in their words: “In both of the above illustrations, the companies failed to develop and implement a patent strategy. Emerging companies should concentrate on building a patent monopoly covering the most commercially important aspects of their new technologies while making efficient use of their patent dollars and the precious time of their key inventors. In short, when companies formulate their business strategy, patents should play an integral role. Patenting too sparingly or recklessly is not strategic and is not a way to generate company value.”

So even a law firm that promotes software patents quite actively admits these downsides. In some cases, as in this new example of Swisscom and ASSIA, companies just cross-license and move on (wireless for the most part in this particular case/agreement, not algorithms).

So let’s start with this assumption that patent maximalists have come to accept Section 101/Alice renders software patents worthless and even overzealous, very large law firms (Finnegan is one of the biggest) insist that patenting has gone too far for practical purposes. Where do they go from here? Buzzwords. We already wrote dozens of articles to that effect and over the past week we saw several new examples.

Japanese blogger Satoshi Watanabe wrote about patent trolls or feeding a patent troll in Japan for blackmail purposes. “Patent utilization” is what he (or they) use as the newest euphemism (rather than enforcement, monetisation, assertion and so on). He also alludes to “artificial intelligence (AI)-based” at the end:

“Patent utilization” has been a buzz word in Japanese IP industry. There seems to be an increasing number of companies thinking that they should make effective use of patents that haven’t been used by themselves; i.e. monetize such patents by selling or licensing them to others. Actually, a client of ours has asked me what salable or licensable patents are like.

First of all, you may need to know when a patent transaction occurs.

[...]

It’s hoped that artificial intelligence (AI)-based solution will be developed.

That last part refers to how patents are managed, but it’s part of a recent (past year) trend. They keep bringing up “AI”. Some so-called ‘IP’ lawyers admitted to me that they don’t even really understand what it means, yet they keep using the term. It’s like a fashion.

How about this new article (4 days old) that speaks of “machine learning-base [sic] anomaly detection” in relation to new Anodot patents? George Leopold wrote about these bogus software patents being granted in the US. It’s incredibly hard to believe/imagine patent courts tolerating such abstract/mathematical methods being patented as a monopoly.

To quote from the article:

Anodot, which focuses on using machine learning techniques to spot anomalies in time-series data, announced a pair of U.S. patent awards this week covering its autonomous analytics framework.

The analytics vendor said Thursday (Oct. 11) it has been granted two U.S. patents for algorithms that allow users to apply machine learning-base anomaly detection. The algorithms are designed specifically to quickly identify the source of anomalies in large data sets, then perform root-cause analysis. The approach is promoted as faster than traditional business intelligence tools or dashboards.

[...]

Anodot was launched in 2014 when its co-founders realized there was an unmet need for fast and accurate time-series analysis.

Those are software patents. It’s algorithms, but they dress it all up in innovation- and novelty-sounding terms. Why did the USPTO grant such software patents? How about this new application from Apple? A lot of press about it this past week (dozens of articles), as is typical for Apple. But Apple will never sue with this patent/s, so we won’t see the courts lecturing Apple on why it’s patent-ineligible. If it ever gets granted in the first place…

Well, the patent office got its money anyway… and Apple got puff pieces about how it’s presumably combating spam.

In other ‘news’, this time from JD Supra (a press release), patent law firms (Sterne, Kessler, Goldstein & Fox P.L.L.C. in this case) still try to figure out how to get bogus patents on software and nature, even if courts will reject these. From The Current State of Patent-Eligible Subject Matter:

In the wake of the Supreme Court’s Mayo and Alice decisions, uncertainty has surrounded what inventions are patent eligible in the United States. In Mayo and Alice, the Supreme Court developed a two-step test to determine patent eligibility. Step one determines if the invention is directed to a law of nature, natural phenomenon, or abstract idea. If so, the second step determines if there is an inventive concept sufficient to ensure the patent amounts to significantly more than the ineligible concept itself.[i] While this test has led to uncertainty in what inventions remain patent eligible, post-Mayo/Alice case law has begun to shed light on what is patent eligible in the United States. The current state of patent eligibility in the technology areas most impacted by the Mayo/Alice two-step are outlined below.

[...]

Software and Business Method Claims

Software and business method patents have faced significant challenges since the Mayo/Alice decisions. Software claims, are not per se ineligible, however software claims that merely gather, analyze, and output data are patent ineligible.[xii] Software claims can be patent eligible when they are directed to an improvement in the way computers operate.[xiii] Additionally, claims which recite specific limitations to overcome deficits or problems in the prior art have been found patent eligible.[xiv] Based on these holdings, to be patent eligible software claims must recite specific steps to obtain a desired result rather than recite merely the result itself.[xv]

After Alice and In Re Bilski we can pretty much assume things have changed profoundly. Sure, the patent office might still grant such patents. But what matters a lot more is whether those will be enforceable in court at any point before their expiry. The culture of patent embargoes and patent maximalism needs to end at the patent office too in order to preserve any presumption of patent validity. The USPTO continues to assess its performance using the wrong yardstick, e.g. number of patents granted. Patent maximalists are meanwhile pushing the lunacy which is computer-generated patents (we put the following articles in our daily links last week). Here’s what Law 360 and IAM are suggesting:

  • 4 Ways Advances In AI Could Challenge Patent Law

    Advances in artificial intelligence raise intriguing patent law questions, including whether AI breakthroughs are patent-eligible and whether AI that creates something can be an “inventor” entitled to a patent.

  • Artificial intelligence: a game changer for the patent system

    With the advent of powerful computers and the availability of unlimited storage capabilities, artificial intelligence (AI) has made its way into mainstream applications – heralding the fourth industrial revolution. While the notion of what ‘artificial intelligence’ means has undergone significant change since its introduction in 1956, today’s typical AI is broadly conceived to “perceive its environment and take actions that maximise its chance of successfully achieving its goals”. This may involve reinforcement learning, where goals can be set explicitly or implicitly by rewarding some types of behaviour and punishing others, or by a fitness function allowing for mutation and preferential replication of high-scoring AI systems in an evolutionary system. AI may be implemented in self-optimising software or hardware that regularly requires vast data amounts (known as ‘big data’) for training response behaviour.

So what they’re basically saying is, let a bunch of machines manage the patent system; as if that’s going to make matters any better…

Published a few days ago in the The National Law Review and another publication was this article of Christina Sperry (Mintz) and the litigation industry; under “Subject Matter Eligibility Under 35 U.S.C. § 101″ they admit that “AI” patents are just bogus software patents but promote these fake patents anyway. To quote the relevant part:

Subject matter eligibility for patent under 35 U.S.C. § 101 has been a particularly hot topic since the 2014 Supreme Court decision in Alice Corp. v. CLS Bank Int’l. Section 101 patent eligibility has particular relevance to AI and digital health since they often involve computers and/or data processing whose mere presence, reference, or implication in claims frequently give rise to subject matter eligibility questions during patent prosecution as well as during litigation after patent issuance.

The breadth and gravity of current § 101 issues has been explored elsewhere and is beyond the scope of this article. In general, Alice and subsequent lower court decisions have made it more difficult to get patents issued with claims involving computers and/or data processing. It is therefore important to consider potential patent eligibility concerns under § 101 during the patent application drafting process in order to preemptively address these concerns as much as possible before the application faces any challenges during prosecution or during litigation as an issued patent.

To be quite frank, the abundance and overuse of the term “AI” by patent lawyers is a cause for concern. The only more worrying thing is seeing administrators at the EPO and USPTO adopting the term as well; they use that as a sort of synonym for software patents and we’re asked to believe that they grant such patents for the betterment of society or manage patents using “AI” (they just mean things like search and inferences) to expand human understanding rather than make staff redundant, only to be replaced by vastly inferior performance.

10.15.18

Corporate Media’s Failure to Cover Patents Properly and Our New Hosting Woes

Posted in Europe, Patents, Site News at 3:19 am by Dr. Roy Schestowitz

We can’t let these people get their way with patent maximalism and UPC

The three Frenchmen

Summary: A status update about EPO affairs and our Web host’s plan to shut down (as a whole) very soon, leaving us orphaned or having to pay heavy bills

OUR USPTO coverage reached an unexpected halt last night at around 6PM. Our host is shutting down soon. He’s an old friend of mine who hosted the site as a favour for nearly a decade. Speaking to alternative hosts, it seems likely that our hosting costs would at least quadruple. It’s a painful experience. I barely slept; it’s hard to fall asleep. Certain readers, some of whom connected in one way or another to the EPO, expressed concern about the downtime (almost half a day). The problem is far broader than a downtime, caused by a routing issue among other things.

“This is scary and dangerous to the prospects of science and technology in Europe. It’s like patents take priority over facts. It should never be like this.”Techright is turning 12 in a few weeks. I’ve dedicated most of my adult life to this site. I’m not asking for sympathy, I just want to reaffirm and reassure to readers that the site has always been financially independent. That’s never going to change.

I can envision some readers asking questions like, what about “the cloud”? As if sending one’s blog to some private company can assure independence… there’s plenty of evidence to the contrary. There are many ways in which a centralised blogging platform censors those who participate, with a broadening brush by which they sweep away particular voices.

“The possibility of a deferred examination could therefore further improve the attractiveness of the French patent.”
      –Grégoire Desrousseaux and Thierry Lautier
Florian Müller‘s latest two articles, The new smartphone patents battlemap (infographic featuring Apple, Huawei, Intel, Qualcomm, Samsung) and Patent exhaustion keeps Qualcomm on the run from Apple’s claims and motions,” are as usual hosted by Google. Just before the weekend he wrote about a notorious European Patent of Qualcomm. He’s very supportive of our work covering the EPO (we’ve published nearly 3,000 articles about the EPO alone).

“Your server does not respond.”
      –Anonymous
Like we’ve said here several times since September, publishers are struggling, even the patent maximalists’. IAM, for example, went sort of ‘dark’, i.e. everything behind paywall, except pure commercials and intentional propaganda. As an example of the latter, see what turned up in Google News yesterday. IAM wrote this:

‘No deal’ Brexit may mean no UPC, says UK government – The United Kingdom government released a notice on the likely implications for patents in the event of a ‘no deal’ Brexit. Relevant EU legislation, such as that relating to Supplementary Protection Certificates for drugs, compulsory licences and the patenting of biotechnology innovations, will be retained in UK law under the EU Withdrawal Act 2018 in such a scenario, it reassures rights holders. Such legislation will form the basis of an independent UK patent regime in which existing rights and licences will automatically remain in force. No such certainty is provided regarding the prospective Unified Patent Court (UPC), however. If the pan-European court is fully ratified, but the UK leaves the EU without a deal, the country would not necessarily be part of the UPC or the unitary patent system, the government admitted. However, any unitary patents that exist at the point of the UK’s departure will automatically give rise to patent protection within the UK.

This repeated the two famous lies. Also published yesterday was this short blog post from Kluwer Patent Blog (they barely publish in long form anymore). It’s akin to the “shoot with patents first, ask questions later” attitude of UPC. Adrian Crespo wrote that (in Spain at least) “a defendant wishing to object to an injunction for invalidity reasons must put forth “very clear and evident indicia” of invalidity. For that reason, the Court of Appeal focused on a relatively straightforward objection on grounds of added matter.”

This is scary and dangerous to the prospects of science and technology in Europe. It’s like patents take priority over facts. It should never be like this.

Meanwhile, over at Mondaq, a French law firm that habitually promotes itself over there speaks of the EPO and INPI. Grégoire Desrousseaux and Thierry Lautier (August & Debouzy) compare one terrible patent office to another:

Incidentally, this would also allow the INPI to “smooth” the number of examination requests it will receive in the medium term, which would facilitate the implementation of the strengthened substantive examination and the opposition procedure, while maintaining sufficiently short deadlines (which is a decisive parameter for the attractiveness of the French system).

The possibility of a deferred examination could therefore further improve the attractiveness of the French patent.

It is widely known that INPI doesn’t really assess quality of patent applications; they’re presumed valid. Imagine what the UPC would look like if the French-led UPC ever went ahead, possibly with Battistelli as its chief. France has been reserved a leadership position, the EPO promotes this, its current President is French and in two decades it’s like France clings onto power at the EPO for 16 years.

We are open to ideas as to how sponsor the hosting costs for the server; I don’t wish to be paid for my writings about the EPO (by anyone), but the costs of underlying infrastructure may need coverage. I spend over 80 hours per week on the sites (not including my daytime job). Things aren’t sustainable and we need to keep watching the affairs of the EPO and patent scope in general. There’s too much at stake.

10.14.18

USPTO FEES Act/SUCCESS Act Gives More Powers to Director Iancu, Supplying Patents for Litigation ‘Business’ and Embargo (ITC)

Posted in America, Finance, Patents at 11:25 am by Dr. Roy Schestowitz

Athens

Summary: Corruption of the US patent system contributes to various issues which rely on the extrajudicial nature of some elements in this system; companies can literally have their products confiscated or imports blocked, based on wrongly-granted patents

UNLIKE the unaccountable EPO, the U.S. Patent and Trademark Office (USPTO) is loosely connected to the government, it can be sued, and it can be held accountable. This is a good thing.

“Donald Trump is also the person who nominated Iancu after Iancu’s firm had worked for Donald Trump.”Laws that govern the USPTO are also decided upon by courts and politicians, not USPTO managers (who may merely supply guidelines for compliance with these laws, e.g. 35 U.S.C. § 101). Last month we said that USPTO FEES ACT Makes the US Patent Office a Money-Making Machine That Systematically Disregards Patent Quality and days ago patent maximalists rejoiced this:

The SUCCESS Act (HR 6758) has now passed through both the House and Senate and will very likely be signed into law by President Donald Trump within the next couple of weeks.

The key aspect of the bill is extension of USPTO fee setting authority that ended in September 2018 (7 years after AIA enactment). Under the new law, USPTO will retain authority to set its own fee structure until September 2026 (15 years from AIA enactment).

[...]

Within 1 year, the PTO Director will provide a report to Congress on the results.

Donald Trump is also the person who nominated Iancu after Iancu's firm had worked for Donald Trump. We worry that there’s a rather gross attempt to bypass the courts and become more lenient in examination. As we shall cover tomorrow, there’s evidence of this. Nothing good will come out of an office which favours money over reputation. It’s not like some corporation that should strive to meet fiscal objectives and raise revenues on a quarterly basis.

Speaking of Trump and Iancu, how about the following recent photo?

Trump and Iancu

And another one tweeted by the bribed/bought-for politician (for pharmaceutical patents)?

Trump and Hatch

Best policies corporate money can buy?

Wrongly-granted patents are a very big deal because embargoes can be imposed using such patents. Consider what Justin M. Sobaje (Foley & Lardner LLP) wrote some days ago on how to embargo or how to put more blackmailing power/pressure if you’re a patent troll (a.k.a. “NPE”). The National Law Review published this:

Many patent practitioners assume that non-practicing entities cannot obtain permanent injunctions in patent cases. This is attributed to the belief that NPEs fail the four-factor test set out by the Supreme Court in eBay. Given that belief, it is surprising for some to learn that a recent decision from the Northern District of California resurrected decade old case law indicating that non-practicing entities can get injunctive relief. Practitioners having cases involving NPEs would do well to study this line of reasoning to be prepared for arguments surrounding permanent injunctions.

The four-factor test identified by the Supreme Court in eBay for determining whether to award permanent injunctive relief to a prevailing plaintiff requires the plaintiff to demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law are inadequate to compensate for that injury; (3) that considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S. Ct. 1837, 1839 (2006). After the eBay decision in 2006, it has been extremely rare for NPEs to be awarded permanent injunctions, but a recent district court decision has resurfaced the issue.

The ITC is notoriously lax and only a couple of days ago Watchtroll said that “ITC Institutes Section 337 Investigation of ResMed’s Sleep Apnea Masks — a case we covered a month ago. This is the latest twist (from earlier this month): “On Friday, October 5th, the U.S. International Trade Commission (ITC) issued a notice of institution of a Section 337 patent infringement investigation requested by New Zealand-based appliance manufacturer Fisher & Paykel against San Diego, CA-based medical equipment firm ResMed. The ITC instituted the Section 337 investigation after Fisher & Paykel alleged that certain sleep apnea products imported for sale by ResMed infringe upon U.S. patents held by the New Zealand firm.”

“We suppose that in this age of Iancu and Trump, however, business rather than justice is what matters.”The ITC tends to favour the companies from the US, as its own name serves to suggest. It’s a protectionist entity that relies on the false assumption US patents are valid, no matter what the Patent Trial and Appeal Board (PTAB) says. In the case of Cisco the ITC vainly disregarded the PTAB’s decision to invalidate the patent under investigation.

We suppose that in this age of Iancu and Trump, however, business rather than justice is what matters. It’s all about money and authority over finances is back with Iancu now. This is not good.

Over at IAM, the megaphone of patent trolls, SpencePC (US) has meanwhile published this long piece titled “Global patent litigation strategy” (what ITC is enabling). These patent law firms are scheming/planning how to sue the whole world in order to charge their clients and tax everything. They pursue more and more patents for the sake of patent litigation alone. No good will come out of it.

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