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01.16.17

US Supreme Court Did Not End Apple’s Patent Disputes Over Android (Linux), More Cases Imminent

Posted in Apple, Courtroom, Patents, Samsung at 6:32 am by Dr. Roy Schestowitz

US Supreme Court and scales

Summary: An overview of some very recent news regarding the highest court in the United States, which has been dealing with cases that can determine the fate of Free/Open Source software in an age of patent uncertainty and patent thickets surrounding mobility

SEVERAL days ago we became aware of “Apple’s motion for a permanent injunction against Samsung for infringing upon three software patents.”

This has been covered by quite a few Apple-leaning sites and mainstream news sites, e.g. [1, 2, 3, 4]. This article by Dennis Crouch of Patently-O said:

In a one-paragraph order, the Federal Circuit has vacated its prior design patent damages determination in Samsung v. Apple following the Supreme Court’s 2016 reversal. The appeal is reinstated, and new briefs will now be filed. (Federal Circuit Docket No. 14-1335).

Apple’s design patents cover various ornamental designs applied to the iPhone and infringing Samsung Galaxy devices. Samsung was found to infringe because it “sells … [an] article of manufacture to which such design … has been applied.” 35 U.S.C. 289. The statute calls for for the infringer to be “liable to the owner [of the patent] to the extent of his total profits.” In its original decision, the Federal Circuit held that “total profits” referred to Samsung’s total profits on its infringing phones – i.e., total profits associated with the article of manufacture to which the design has been applied.

The US Supreme Court was recently mentioned in relation to other cases. It will take on patents of reasonably large companies. “Today,” Patently-O wrote last week, “the Supreme Court granted certiorari in two dueling petitions involving the Federal Circuit’s 2015 interpretation of the Biologics Price Competition and Innovation Act of 2009.”

This was also covered by Natalie Rahhal in New York. She said that the “dispute between Amgen and Sandoz over aspects of the so-called patent dance outlined in the Biologics Price Competition and Innovation Act was granted cert by the US Supreme Court” (SCOTUS).

“If patents are supposed to be in the interest of the public, then why deny ill people access to treatment which they can afford?”Writing from New York, again in relation to a SCOTUS, “Natalie Rahhal analyses the arguments of the amicus briefs filed in Lee v Tam, ahead of oral arguments in the case involving disparaging trade marks at the US Supreme Court on January 18,” according to this from MIP. This is not about patents, but the oral argument is imminent (2 days from now).

Looking outside the US for high-profile cases, there is also this case of Fujifilm v AbbVie (UK), which several sites have covered this month [1, 2] because “[g]eneric companies can seek court declarations that their own products are old or obvious in patent law terms under certain circumstances, the England & Wales Court of Appeal has ruled,” to quote MIP.

In Canada, the Supreme Court might soon hear this case where AstraZeneca is attempting to block generics. To quote MIP again: “The court on November heard arguments in AstraZeneca Canada v Apotex. The case involves AstraZeneca Canada’s patent for Nexium (Esomeprazole), a pharmaceutical product used to treat gastroesophageal reflux disease. AstraZeneca attempted to block Apotex from bringing a generic drug to the market. The Federal Court found that the promised utility of Nexium had not been adequately proven at the time of filing. AstaZeneca appealed to the Supreme Court.”

“2017 promises to be rather interesting, especially because later this week Trump gets inaugurated and he can thereafter cause a lot of damage to patent reform.”Suffice to say, we support generic medicine. If patents are supposed to be in the interest of the public, then why deny ill people access to treatment which they can afford?

2017 promises to be rather interesting, especially because later this week Trump gets inaugurated and he can thereafter cause a lot of damage to patent reform. His policies and appointments tend to serve the richest people, not ill and poor people.

01.15.17

Number of New Patent Cases in the US Fell 25% Last Year, Thanks in Part to the Demise of Software Patent Trolls

Posted in America, Courtroom, Patents at 11:29 am by Dr. Roy Schestowitz

The legal paper ‘industry’ is walking away, gradually

Moving paperwork

Summary: Litigation and prosecutions that rely on patents (failure to resolve disputes, e.g. by sharing ideas, out of court) is down very sharply, in part because firms that make nothing at all (just threaten and/or litigate) have been sinking after much-needed reform

IN ORDER to understand what goes on in the mysterious (or cryptic) world of patent trolls we often turn to IAM ‘magazine’, which is paid by some trolls to embellish or soften their image. We read IAM ‘magazine’ very critically and try to extract from it some morsels of information. The other day we saw IAM ‘magazine’ conflating patents with “markets” again, as if patents are products up on the shelf or something (to trolls they are). It was also writing about this patent troll which got fed by Stanford University, whose patents were derived from publicly-funded research. To quote some background to this:

WiLAN has stepped up its campaign against the growing personal digital assistant market filing six lawsuits before and after Christmas against a series of big tech companies including Amazon and HTC over patents that underpin Siri, the popular electronic assistant on Apple devices. The most recent case was filed on Tuesday against ZTE in district court in Delaware, bringing the total number of suits that the NPE’s subsidiary IPA Technologies has filed in this campaign to 11.

WiLAN acquired the patents in question in two tranches, including a package of nine grants in May 2016, from SRI International, a non-profit research institute which spun out of Stanford University more than 40 years ago. SRI began developing the technology for a voice-controlled electronic assistant following a grant from the US Defense Advanced Research Project Agency (DARPA), eventually setting up Siri Inc which was spun out as an independent entity in 2007 and was then bought by Apple in 2010.

We wrote about WiLAN many times before (6 years ago we named the person behind it, Jim Skippen). It’s regarded or understood to have become a pain in the bottom to a lot of Linux/Android OEMs, not just to companies like Apple. It’s a destructive entity which Canada should take shame — not pride — in.

The other day IAM also mentioned RPX, which is a massive troll that Microsoft joined 7 years ago. IAM wrote about it in the context of litigation decline — a subject which we covered here many times in the latter half of 2016. America Invents Act and PTAB had a lot to do with this decline, as IAM admits:

The headline numbers for the 2016 litigation year in the US were out last week and showed a big drop in the total number of new patent infringement cases. According to Unified Patents there were 4,382 new cases, a drop of almost 25% on the 2015 figure. That is the lowest level since 2011 when the America Invents Act (AIA) came into force and new joinder rules had a significant inflationary effect on litigation volume.

RPX also released some stats and included a numbers of interesting data points. Among them was a big fall in the number of NPE campaigns against companies with revenues of $50 billion or more. Those companies are, of course, typically among the most popular targets for licensing efforts but they’re also the ones most likely to fight back in long, drawn-out lawsuits.

RPX basically speaks of itself, as it tends to engulf and attack large entities. After Alice and some of the aforementioned reforms we don’t expect RPX to find quite the same level of ‘success’ (shakedown). In fact, like many other trolls we hope it will cease operations. We know for a fact that Intellectual Ventures is suffering and even laying off a lot of staff.

The patent microcosm, growingly irritated by the sharp drop in litigation, is already sucking up to Donald Trump, hoping that he will put someone corrupt like Randall R. Rader in charge, assuring regressions in law. On the other hand, Matt Levy, who opposes patent maximalism and calls for further patent reforms, has just published these suggestions to the Trump Administration, focusing in particular on patent trolls (a side effect or symptom of low patent quality):

What the new administration should be doing with patents

[...]

Continue to Fight Patent Trolls

It is true that patent troll litigation dropped in 2016, but according to a recent RPX report, nearly all of that drop is due to fewer lawsuits against very large, well-funded companies. Patent trolls seem to be shifting their focus to smaller businesses that can’t afford to defend themselves effectively. Trolls’ venue of choice continues to be the Eastern District of Texas, as I’ve written about a number of times.

A new paper by Brian Love and James Yoon confirms why this is true: patent trolls use the Eastern District of Texas (EDTX) because its procedures increase costs for defendants quickly. In fact, 90 percent of cases there are filed by patent assertion entities. The paper also shows that only 18 percent of EDTX cases have any local link to the original inventor, original patent owner, or the first named defendant. By comparison, nearly 88 percent of the cases filed in the Northern District of California (which includes Silicon Valley) have such a link to the district.

The reality is that we need venue reform. Congress needs to fix the patent venue statute so that patent owners can’t sue a company virtually anywhere. The evidence is simply undeniable that patent trolls are taking advantage of a court with overly friendly rules in order to extort money, and there’s no reason to allow this to continue any longer.

Do No Harm on Patentable Subject Matter

With recent Supreme Court decisions, there has been a lot of handwringing about the patentability of software, diagnostic methods, and certain biotech inventions. There have even been proposals to do away with the patent-eligibility requirement altogether.

Congress needs to let the law develop slowly. The courts are gradually coming to some reasonable interpretations based on previous case law, and that’s as it should be. There are a lot of stakeholders with competing interests, and the best way to develop this law is a bit at a time. Yes, it’s painfully slow, but it’s the way our legal system works.

These calls to “do away with the patent-eligibility requirement altogether,” (or at least weaken them) as Levy puts it, were often funded by companies like IBM and Microsoft, which paid a former USPTO Director (David Kappos) to become their lobbyist and undermine Alice, bringing back software patents in a crooked fashion that’s akin to bribery of officials.

America Invents Act Improved Patent Quality, But Right Wingers Threaten to Make It Worse Again

Posted in America, Patents at 10:54 am by Dr. Roy Schestowitz

Rumours suggest that Donald Trump will add Randall R. Rader to his swamp

Randall R. Rader
Photo from Reuters

Summary: The past half a decade saw gradual improvement in assessment of patents in the United States, but there is a growing threat and pressure from the patent microcosm to restore patent maximalism and chaos

The USPTO has been gradually improving under Michelle Lee, who sought positive reform and is said to be on her way out after Trump’s inauguration. The former Director, David Kappos, is now lobbying (in exchange for money!) to make things worse again. It looks as though Trump is about to blow away any progress with Rader as Director (or similar position). Rader is not only corrupt but is also a software patents proponent.

The following new post by Jason Rantanen links to this new report from the USPTO:

USPTO Releases its 2016 Performance and Accountability Report

I’m pleased to announce that the USPTO has published its Performance and Accountability Report (PAR) for fiscal year (FY) 2016. The PAR serves as the USPTO’s annual report, similar to what private sector companies prepare for their shareholders. Each year the USPTO publishes this report to update the public on our performance and financial health.

[...]

We will continue efforts in the Enhanced Patent Quality Initiative, which is a multifaceted initiative that builds on past efforts and includes future programs aimed at improving the accuracy, clarity, and consistency of patents; continue implementation of the patent dispute resolution portions of the AIA; meet the wave of legal challenges to the USPTO’s interpretation of the AIA and its regulations implementing the statute; develop outreach at both headquarters and regional offices; expand on dissemination of data; attain and maintain full sustainable funding; and provide IT support for a nationwide workforce with a “24/7/365” operational capability.

Watchtroll, in the mean time, being the software patents proponent that the site always is, suggests changes that would inherit bad elements of the EPO, where software patents are habitually being granted in defiance of the rules (more so under Battistelli than before, to the point where legal firms say it’s easier to get software patents at the EPO than at the USPTO). To quote from the summary:

In summary, there is a plausible case that the US law on obviousness is indeed compatible with the above-explained EPO problem-and-solution approach. It could even be said that the steps of the problem-and-solution approach appear to have been inspired by US law and practice!

Under present working styles, USPTO examiners concentrate on the claims and spend little or no time reading the description. If they are to initiate obviousness rejections using the problem-and-solution format they would have to change habits and consult the description to locate any effects related to the distinguishing features.

I remark that the problem-and-solution approach is not a new statement of the law of obviousness: it is a statement of practical steps to be taken by a practitioner in order to come to an objective assessment of obviousness/non-obviousness compatible with the Statute Law and Case Law. It is an approach designed for large organizations like the USPTO who need to maintain uniformity.

[...]

The US Law on obviousness is indeed compatible with the EPO problem-and-solution approach. The USPTO, unlike the EPO, may be bound by the ratio decidenti of superior court decisions, but this should not impede completing the MPEP with instructions like the problem-and-solution approach. All that is needed is to arouse interest in potential long-term advantages for the USPTO notably the perspective of increased quality. Application of the approach does not imply any change in the Statute or Case Law, simply a determination to complement the current piecemeal guidelines by a coherent methodology.

It follows that the USPTO not only could adopt an approach for assessing obviousness like the EPO problem-and-solution approach, but in my view the quest for quality is a good reason why it should do so.

A guest post at Patently-O, composed by Professors Arti Rai (Duke) and Colleen Chien (Santa Clara), is titled “Patent Quality: Where We Are” and it names the legacy of Kappos, which is similar to that of Battistelli (compromising patent quality to artificially make ruinous ‘gains’):

When former USPTO Director David Kappos took the helm in 2009, budgetary strains and application backlog demanded immediate attention. Even so, then-Director Kappos pushed through redesign of the agency’s IT system, gave an across-the-board increase in time to examiners, adjusted count allocation so as to reduce incentives for rework, and emphasized quality improvements through international worksharing, industry training, and the creation of the Common Patent Classification system. Then, with the passage of the American [sic] Invents Act of 2011, the agency’s budgetary position stabilized and the stage was set for further focus on quality. The backlog subsided, with the queue of patents reduced by 30% over the last eight years, according to statistics released by the USPTO.

It was only after the America Invents Act (AIA), which then created PTAB, that patent quality started to make more sense. We hope that even in the era of a Trump Administration the same kind of trend will persist, though we are not particularly optimistic about it.

PTAB — Not Deterred by Courts — Continues to Invalidate a Lot of Software Patents

Posted in America, Patents at 10:14 am by Dr. Roy Schestowitz

Don’t believe the legal paper ‘industry’ (or the patent microcosm)

Some paperwork

Summary: The Patent Trial and Appeal Board (PTAB) continues to make progress reforming the patent system by eliminating a lot of patents and setting an example (or new standards) for what is patent-eligible after Alice

THE patent microcosm wants us to believe that the Court of Appeals for the Federal Circuit (CAFC) has devalued or stopped what PTAB was doing. They want us to think there’s some kind of feud or conflict — one that they themselves inflame.

Let’s wait and see how many law firms will bother covering the frequent outcomes from cases where CAFC sides with PTAB on issues pertaining to invalidation of patents. Here is one such new case. To quote MIP:

The Federal Circuit has dismissed an appeal of Patent Trial and Appeal Board (PTAB) final written decision in an inter partes review (IPR), arguing that because “Phigenix has not offered sufficient proof establishing that it has suffered an injury in fact, it lacks standing to bring suit in federal court”.

Here is a direct link to the decision [PDF]

PTAB is breaking some records again (based on some criteria), as shown by these latest figures. For the uninitiated, PTAB is slaughtering/squashing software patents more frequently than anything else, including courts. Petitions to PTAB, or IPRs as they are commonly called once processed, are also more reachable/accessible to small businesses that hope to undermine patents which large companies should never have been granted in the first place.

MIP’s PTAB round-up says:

December Patent Trial and Appeal Board petition filing was the fourth-highest of 2016, the Federal Circuit recently heard en banc arguments in one PTAB appeal and granted en banc rehearing in another, the appeals court remanded the Board in In re NuVasive, and the District of Delaware interpreted the scope of estoppel narrowly in Intellectual Ventures v Toshiba

When patent trolls like Intellectual Ventures go after large companies such as Toshiba they expect to get a lot of money. Intellectual Ventures was recently defeated in an epic cases where quite a few of its patents — software patents to be exact — got rejected by a prominent CAFC judge.

There is no compelling evidence to suggest that things are changing in favour of the patent microcosm, at least not in PTAB. No doubt, however, they will continue to lie to everyone — their clients included — in order to improve their bottom line. The term “fake news” seems applicable here.

EPO Abuses Come Under Fire From Politicians in Luxembourg

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

Latest among many countries to express concern

Claudia Dall'Agnol
Source: Wikipedia

Summary: Luxembourg is the latest nation in which concerns about the EPO’s serious abuses are brought up not only by the media but also by politicians

THE EPO is very quiet this month. No “news” or “blog” items have been published since before Christmas.

Around Christmas time the media in Luxembourg published this article, which we mentioned here before. There is not much new information in there (not of great significance anyway) except parts which pertain to political interventions in Luxembourg. Notably, Claudia Dall’Agnol (pictured above) raises concerns and Etienne Schneider acts like a Battistelli mouthpiece, which makes Schneider look rather foolish and gullible. Does anyone out there still believe any word that comes out of Battistelli’s mouth? He’s a chronic, shameless liar. He’s a manipulative politician disguised as a manager.

Here is the English translation from SUEPO [PDF], which we reproduced below in HTML form:

“We’ve got our eye on it”

EUROPEAN PATENT OFFICE

Behind the façade of the European Patent Office (38 countries belong to it, Luxembourg among them) a massive social conflict has broken out.

The battle between the President and the staff union Suepo, which represents the majority of the 7,000 strong workforce, has been raging for more than five years. Minister Etienne Schneider is now providing a reply to the question raised in Parliament on this issue by LSAP deputy Claudia Dall’Agnol.

The management style adopted by President Benoît Battistelli, who took this office in 2010, appears to have led from escalation to escalation. Only recently, staff members took to the streets in their thousands in Munich to march to the consulates. If we are to believe what the union members are saying, Battistelli has been tightening the screws for a long time, to such an extent that the environment at work can sink no lower. In the course of the year, three senior Suepo members have been summarily kicked out. Our information is that the President has produced very flimsy excuses for doing this – some would say totally far-fetched.

Another senior Suepo figure was dismissed without notice at the beginning of November at the branch of the Office at The Hague, and a further member is said to have been subjected to extreme pressure. How, why, when, and who is concerned is not clear from the accusations. Two weeks ago, EPO officials at The Hague were called upon to carry out a protest demonstration at the Dutch branch office. A majority of the 2,800 or so personnel working there took part, and really made their voices heard (► Link).

“Focus of attention”

The Minister responsible, Etienne Schneider, in his reply to the question raised in Parliament by Deputy Claudia Dall’Agnol simply repeated the official version put about by the EPO President. There have allegedly been cases of bullying, but those responsible have been identified and punished. The staff member who was ejected in November at The Hague is said to have been the main person responsible.

But we have received entirely different information, too, which points to the President unleashing a systematic campaign of harassment against many of his staff, but in particular against the personnel representatives who are members of Suepo.. Schneider appears to be equally at ease in his reply,since he goes on to write: “I can give assurance that the Luxembourg delegation continues to pay close attention to the development of the social dialogue at the EPO, and to provide its support to any initiative in that context.”

According to Etienne Schneider, the agenda at the next meeting of the Advisory Board is scheduled to include the results of an internal survey on the issue of social dialogue and working conditions at the branches of the European Patent Office.

As can be seen from the above (last three paragraphs), Battistelli’s apologists seem to be relying on paid-for propaganda from PwC. We previously we wrote about it in the following articles:

SUEPO is very quiet these days, but the same goes for the EPO in general, including the management. This gives us more time to unearth and publish older material whose analysis is well overdue. Expect much more to come out in the coming days.

Constitutionality as a Barrier and Brexit Barriers to UPC Keep the Whole Pipe Dream Deadlocked

Posted in Europe, Law, Patents at 4:52 am by Dr. Roy Schestowitz

UPC, RIP

Summary: The UPC is still going nowhere fast, but the demise (or death) of the UPC as we know it must not be taken for granted

THE UPC may be unconstitutional (or un-Constitutional) in a lot of states. Does Battistelli care? Well, he hardly cares about the laws, let alone constitutions. According to this or this, quoting the new (and latest) paper from Dr. Ingve Björn Stjerna, “German ratification proceedings comprise several options for bringing the ratification legislation before the German Constitutional Court (“BVerfG”) for a constitutional law review in which the CJEU would be invoked as regards Union law questions by way of a request for a preliminary ruling.”

“We need more Free Open/Source software companies to help us battle the UPC, which would definitely usher in not only patent trolls but also software patents in Europe.”Given Germany’s selfish interests, as we recently noted in relation to Germany's Justice Minister Heiko Maas, we very much doubt the government will care if the UPC turns out to be un-Constitutional. Things have gotten so bad in fact that Maas also flagrantly disregards/ignores EPO abuses (as per German law) on German soil. As for Team UPC, it’s paying for propaganda. These people play dirty. Very dirty.

Thankfully, as we repeatedly pointed out before, the UPC in in a limbo. In fact, based on the abstract of this upcoming FOSDEM talk, Robinson Tryon too agrees with the “limbo” analogy. “With the future of the European Union’s Unitary Patent Court in limbo due to the Brexit,” he writes, “leaders in Free Software owe it to themselves and their companies to be more agile and more prepared to address patent issues…”

We need more Free Open/Source software companies to help us battle the UPC, which would definitely usher in not only patent trolls but also software patents in Europe. Here is the full abstract of the upcoming talk:

Are FOSS Companies Ready to Deal with Patents in the US and Europe?

Most small businesses have no patent strategy. Though many FOSS companies have policies in place regarding copyright and keeping detailed records of code contributions, few have paid enough attention to how patent litigation could affect them. For those FOSS businesses active in multiple countries or looking to expand into an international market, failure to understand the patent ecosystem in each jurisdiction could be a costly mistake.

Most small businesses have no patent strategy. Though many FOSS companies have policies in place regarding copyright and keeping detailed records of code contributions, few have paid enough attention to how patent litigation could affect them. For those FOSS businesses active in multiple countries or looking to expand into an international market, failure to understand the patent ecosystem in each jurisdiction could be a costly mistake.

This talk will use recent cases and ongoing changes in the patent systems of the US & Europe as modern examples for our discussion. We’ll describe the pitfalls that can affect any company, tabulate the costs of litigation, and offer methods businesses can use to reduce overall risk.

With the future of the European Union’s Unitary Patent Court in limbo due to the Brexit, and with no public position on patents from the United States’ next administration, leaders in Free Software owe it to themselves and their companies to be more agile and more prepared to address patent issues — whether they work at a small startup or at a large multinational corporation.

We previously coordinated some action (such as petitioning) regarding the UPC, but seeing how things are moving in the UK (with the business-oriented Madame Tesco leaving to be replaced by Boris Johnson's brother after just months in her job), it seems like the UPC is falling apart anyway, even without some outside intervention.

01.12.17

Brexit Means No UPC (Unified Patent Court)

Posted in Europe, Patents at 8:33 pm by Dr. Roy Schestowitz

Unitary Patent may already be dead, but Team UPC and the EPO won’t tell us that

Brexit and UPC

Summary: Now that Jo Johnson, Boris Johnson’s brother, is officially declared the new minister for intellectual property in the UK everything that Lucy Neville-Rolfe wrote is as solid as paper bag on a rainy London day

PUTTING aside the patent microcosm (including scholarly sites like Patently-O), Team UPC, and the EPO, rational and objective people seem to know that Brexit is the death knell to the UPC as we know it. We wrote about it when/after Lucy had joined Battistelli, only to be sacked (or leave) weeks later, under still-unknown circumstances.

Confirmed by UK-IPO on Wednesday afternoon, just before we published what we knew about it, “Jo Johnson [is] chosen as new UK IP minister”:

Jo Johnson chosen as new UK IP minister

The UK government has chosen Jo Johnson, a member of parliament (MP) and the current innovation minister, as the new minister for intellectual property.

Johnson, MP for Orpington, Bromley, takes over from Baroness Neville-Rolfe.

The UK Intellectual Property Office confirmed the news on its Twitter page.

Johnson is the brother of Boris Johnson, the UK’s foreign secretary. Both are members of the Conservative party, led by Prime Minister Theresa May.

Jo Johnson will remain as minister of state for universities, science, research and innovation, a position he was appointed to in July 2016. He was elected as an MP in May 2010 and was re-elected in 2015.

Jo’s brother was a big proponent of Brexit, even if he fooled a lot of people into voting that way (like empty promises about the NHS).

Well, no word about the UPC has been said by Johnson, the above report from WIPR or UK-IPO, so one can only guess what will happen next.

There is a new UPC paper (English version [PDF]) composed by Dr. Ingve Björn Stjerna from Düsseldorf (Germany has the most to gain from the UPC). Here is the outline:

Allegedly for an independent assessment of “Brexit” vote implications for a potential ratification of the Agreement on a Unified Patent Court (“UPCA”) by the UK, three associations interested in this ratification commissioned the barristers Gordon and Pascoe to prepare a legal opinion on several related questions. The Opinion, which widely appears to develop legally far-fetched results in support of desired results, assumes almost self-evidently that the Unified Patent Court is not a court common to the Contracting Member States of the UPCA. Since the political approach for ensuring the UPCA’s compatibility with Union law after Opinion 1/09 was always based on the opposite understanding, it supports the voices arguing that the Agreement violates Union law and demanding it to be submitted to CJEU scrutiny as to create legal certainty for the users. Such scrutiny could be initiated in the German ratification proceedings.

Judging by recent events, especially the removal of Lucy (in favour of Jo Johnson), the UPC’s future looks anything but bright; it looks virtually non-existent and bleak. That’s just what many patent practitioners from London expected all along, even if some were in convenient denial over it, especially after the nonsense from Lucy.

Patent Trolls and Software Patents: CloudTrade, Patent Practitioners Density, and Via Licensing

Posted in America, Asia, Australia, Europe, Patents at 11:25 am by Dr. Roy Schestowitz

CloudTrade patents

Summary: Software patents armament from a British company, charted concentration of the patent microcosm in the United States, and US-leaning patent trolls that prey on China

“CloudTrade Awarded US Patent for Its Proprietary Document Data Extraction Software,” says a press release that was widely circulated yesterday [1, 2, 3]. CloudTrade is British and is not a patent troll, but it sounds as though it has nothing to brag about except crappy (and creepy) software patents — those that PTAB and patent courts would likely trash immediately (if a petition or lawsuit gets filed).

Why is a British company pursuing software patents in the US? Has it not heard yet about the futility of such as exercise? Did it receive bad advice from patent practitioners? Previously, the firm bragged about “patented e-invoicing technology” and “patent-pending technology”. They went as far as Australia for software patents. Unless they intend to start suing competitors (sometimes threaten to sue unless competitive products are removed from the market or settlement money is paid out of court), we fail to see what CloudTrade is thinking here. Maybe too much Kool-Aid from the patent microcosm…

Published hours ago was also this analysis by Jason Rantanen, who put together some data to find out which places in the US have a disproportionate number of patent practitioners (lawyers, attorneys etc.) and it was preceded by the following text. It emphasises that it’s about utility patents, not software patents:

A question from two economist friends, Nicholas Ziebarth and Michael Andrews, got me interested in the geographic distribution of patent practitioners in the U.S. and any correlations with issued utility patents and populations. Using the January 8, 2017 list of patent practitioners from the USPTO, the PTO’s data on utility patents issued to inventors by state, and population estimations for 2016 (wikipedia), I put together the following figures. They show what one might expect: patents, population and patent attorneys exhibit high degrees of correlation, although there is some interesting variation. All the linear regressions are highly significant (p<0.001).

It would be interesting to see these methods applied to software patents. It is widely known by now that patent trolls are highly dependent on such patents and it would be interesting to see where Texas fits in an analogous chart (or set of charts).

It is also widely known and recognised that many patent trolls work at the behest of some large, practicing companies. By using a troll for litigation they don’t risk the defendant following suit with a reactionary lawsuit. IAM has a new example of this. It speaks of some entity called Via Licensing (Web site indicates it’s just a troll) and reveals who it’s working for, much like MPEG-LA. To quote:

Dolby-backed patent pool operator Via Licensing has announced some high profile new licensing agreements in Greater China over the past month, with Lenovo and Xiaomi having joined the pool covering AAC technology. A big factor in this apparent momentum is the fact that the pool has introduced a new alternative rate structure which codifies a discount for devices sold in developing markets. This effort to accommodate local market realities in countries like China also adds a welcome dose of transparency to the licensing market.

Terms like “licensing market” are misleading. Intermediaries or satellites or proxies are hardly a “market”. They are a parasite which mostly serves to exclude small players and emergent technologies (competition).

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