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09.16.18

IAM, Watchtroll and the EPO Still Spread the Mentality of Patent Maximalism

Posted in America, Deception, Europe, Patents at 10:10 pm by Dr. Roy Schestowitz

Joff Wild and BattistelliSummary: The misguided idea that the objective (overall) should be to grant as many monopolies as possible (to spur a lot of litigation) isn’t being challenged in echo chamber ‘events’, set up and sponsored by think tanks and pressure groups of the litigation ‘industry’

TODAY we shall write a lot about patent scope, software patents in Europe and in the US in particular. It is generally a symptom of the patent system getting hijacked by those who were originally meant to service scientists. Roles have been reversed and scientists are now expected to provide “demand” (or cash flow) for lawyers, who sometimes just sue scientists without prior provocation (many patent trolls are just lawyers).

According to this hours-old blog post from Satoshi Watanabe, the patent trolls’ think tank (IAM), which is also a Battistelli mouthpiece (he’s an author and keynote speaker to them), is nowadays in Japan spreading the ‘religion’ (litigation ‘industry’ psyche). The think tank entertains accompanying ‘studies’ etc. “The chart compares the number and ratio of patent applications filed to Japan by US, Korean, and German companies,” Watanabe says, “respectively compared between a period of 2002-2006 and 2012-2016. The JPO studies all the patent applications which are filed both to US and Europe. The yellow bar in the chart indicates the number and ratio of patent applications whose counterparts were not filed to Japan, while the blue bar indicates those whose counterparts were filed to Japan. They obviously reduced patent application filings to Japan.”

So what? So there may be fewer monopolies. Is that a bad thing? It’s only necessarily a bad thing for the litigation ‘industry’. The USPTO is currently paying the price for over-granting for a number of decades.

Hours ago also came Watchtroll’s promotion of the EPO‘s charade with IPO, in which they promote software patents under the guise of ‘automobiles’ (as we last noted yesterday). It’s all about inflating the number of patents, irrespective of patent quality, merit, necessity etc. “The impetus for this interview,” Watchtroll admits upfront, “is the upcoming EPO Automotive and Mobility Seminar, which will be held in Chicago, IL, immediately after the Intellectual Property Owners Association (IPO) 2018 Annual Meeting, on September 26-27, 2018. Romano-Götsch will be participating in this EPO program, providing a landscape and overview on the morning of September 26, as well as participating on a panel and providing closing remarks on September 27.”

It’s somewhat of an inner/insider joke at the EPO that those who get rewarded or promoted are those who suck up to Battistelli and Bergot. That makes one wonder about Romano-Götsch’s motivations. To participate alongside zealots like IPO says a lot about oneself.

Watchtroll and Other Proponents of Patent Trolls Are Trying to Change the Law Outside the Courts in Order to Bypass Patent Justice

Posted in America, Law, Microsoft, Open XML, Patents at 11:02 am by Dr. Roy Schestowitz

Court's steps

Summary: 35 U.S.C. § 101 (Section 101) voids almost every software patent — a reality that even the most zealous patent professionals have come to grips with and their way of tackling this ‘problem’ is legislative, albeit nowhere near successful (so far)

TWO years ago we still wrote some articles about the EPO‘s relationship with Microsoft — a subject we had covered in years prior to that and got us some threats from the EPO’s lawyers. A few weeks ago we wrote about the USPTO in relation to "Changing Rules to Punish PTAB Petitioners and Reward Microsoft for Corruption at ISO" — a subject which was later discussed by the U.S. Patent and Trademark Office’s Patent Public Advisory Committee (PPAC), as scheduled earlier this month. Based on Watchtroll’s report on this: “The USPTO is also looking to encourage patent applicants to file their applications in the DOCX format by introducing a new surcharge for utility non-provisional applications that are filed in formats other than DOCX. This would introduce a new $400 fee for such applications. According to Hourigan, the decision to encourage DOCX-format filings is intended to simplify the sharing of application data as DOCX files are XML-based. Other formats, such as PDFs, must be converted to XML using optical character recognition (OCR), a technology which is a source of potential errors.”

“Related to this is a bill that deals with fee-setting authority, as covered by CCIA three days ago.”So they basically decided that proprietary Microsoft formats are the gold standard? This is ridiculous. What about ODF (Open Document Format) or XML-based formats that do not contain blobs and Microsoft-specific directives like OOXML?

Related to this is a bill that deals with fee-setting authority, as covered by CCIA three days ago. Josh Landau (CCIA’s main patent matters person) said:

Today, the House Judiciary Committee is scheduled to markup Rep. Chabot’s newly-introduced SUCCESS Act, which is itself a combination of portions of two other bills Patent Progress has covered: Reps. Comstock and Adams’ SUCCESS Act, and the fee-setting authority contained within Rep. Chabot’s BIG DATA for IP bill.

Each bill is individually worthwhile. The SUCCESS Act attempts to address the relatively low number of patent applications filed by underrepresented groups. And fee-setting authority is important to help prevent marginal patents from being issued.

At the same time, Rep. Chabot’s bill does not currently incorporate any of the suggested improvements to the SUCCESS Act designed to study the impacts of patents that never should have been granted when they’re used to threaten innovative companies founded by underrepresented minorities. Without these improvements, the SUCCESS Act can only study a portion of the barriers to innovation faced by underrepresented minorities.

The problem with many of these bills is that they’re promoted by bribed politicians. They try to shape the law depending on which millionaires and billionaires sponsor them.

Going back to Watchtroll, a site that promotes several anti-PTAB bills (but hasn’t done so recently), on the same day (as the above) it published complete nonsense, pretending that patents are necessary for startups and whatnot (they’re not). In “Can I hold on long enough until the madness stops?” (also published on the same day) Watchtroll gives Jeffrey Killian a platform in which to frame patent quality as “madness”. These people are laughable. Here’s the portion which bemoans Section 101: “This anti-patent bias toward software is illustrated in many ways. The Supreme Court of the United States added the words “abstract” and “significantly more” to 35 U.S. Code § 101 and did not define such terms. Previously 35 U.S. Code § 101 granted patents in the past and now 35 U.S. Code § 101 has become a provision to deny software patents on a wholesale basis. The added judicial exceptions were not approved by Congress, the law still reads the same, the added and undefined terms were legislated from the judicial bench. Something is inherently wrong with this situation from a common person’s viewpoint.”

SCOTUS decided on Alice and patent maximalists like Watchtroll and Patently-O try hard to get US Congress to intervene, counterbalanced by the likes of HTIA, CCIA, EFF etc.

Patently-O meanwhile says that the “House [is] Considering [a] Bill that Would Preclude Enforcement of Injunctions Against Non-Parties,” interjecting the author’s views as follows: “I am trying to envision the problems this creates for patents, and happen to be writing a book on Remedies right now. Problems?”

Injunctions are basically something like an embargo, imposed by the ITC typically. We have already seen how the ITC simply disregards judgments made by the Patent Trial and Appeal Board (PTAB) on inter partes reviews (IPRs), before or after the Federal Circuit gets involved. This means thar they disregard and totally disreprect the principle of due process — something which certainly makes the U.S. Patent and Trademark Office (USPTO) seem rather aloof or detached from the rule of law.

Courts aren’t entirely “pure”, but high courts a lot less impure than politicians with “campaign contributions” and a patent office that measures “success” by number of patents rather than justice. So we’d rather rely on Justices than on a bunch of politicians.

Slamming Courts and Judges Won’t Help the Patent Maximalists; It Can Only Make Things Worse

Posted in America, Deception, Patents at 5:47 am by Dr. Roy Schestowitz

Recent: Patent Maximalists — Not Reformers — Are the Biggest Threat to the Viability of the Patent System and Innovation

Green puzzle

Summary: Acorda Therapeutics sees its stock price dropping 25% after finding out that its patent portfolio isn’t solid, as affirmed by the Federal Circuit (CAFC); the only way out of this mess is a pursuit of a vastly improved patent quality, thorough patent examination which then offers legal certainty

THE EPO grants monopolies that kill people, just like the USPTO. It’s like corporate interests rather than science or innovation are the sole priority. What about public interest? Or public welfare/wellbeing?

The other day patent maximalists wrote about Acorda. Dennis Crouch (Patently-O) keeps sobbing for the patent aggressors, even if the patents at hand (underlying USPTO-granted monopolies) turn out to have been errors, hence injustices. To quote Crouch:

In a 50+ page majority opinion, the Federal Circuit has affirmed a district court obviousness judgment. Judge Taranto penned the majority opinion and was joined by Judge Dyk. Judge Newman wrote in dissent — arguing in 20+ additional pages that the majority improperly discounted the objective indicia of non-obviousness. On news of the invalidity decision, Acorda’s stock price dropped 25%.

[...]

Remember that broad Elan patent exclusively licensed by Acorda. The majority explains that Acorda’s commercial success and the long-felt need for advances were due to the roadblock set-up by that patent. “The risk of infringement liability for marketing in the US would have provided and independent incentive [for third parties] not to develop the invention of the Acorda patents, even if those inventions were obvious.” (internal quotations eliminated; this holding, the appellate court finds was supported by the trial record). Although the Elan patent was a US patent — and thus did not block research (FDA Research Exemption) nor did it block international sales, the majority explained that those caveats are “not shown to be weighty.” Several Amici filed briefs in support of the patentee — however, the Federal Circuit found that the friendly arguments failed for lack of proffered evidence.

If a company is this dependent on a patent monopoly, then perhaps it should not exist in the first place and the patents are of rubbish quality anyway. Something similar happened in Europe recently.

It’s not too surprising that similar ‘sob stories’ came from proponents of patents on life/nature such as “Patent Docs authors Kevin Noonan and Donald Zuhn,” as Patent Docs themselves put it shortly after Kevin Noonan wrote about Acorda:

Determining obviousness is always a reconstruction, imperfectly done, of a past that never was. The prior art is consulted and the question asked, would the worker of ordinary skill in the art have been able to achieve the claimed invention with a reasonable expectation of success? Of course, this question is posed against a backdrop of the ordinarily skilled worker not having achieved the invention; that accomplishment was attained by the named inventor. Nevertheless, the Supreme Court since Hotchkiss and the Patent Act since 1952 has recognized that sometimes the answer to the question must be no, if only to ensure that the constitutional mandate that Congress only grant patents that will “promote the progress of . . . the useful arts” be satisfied.

[...]

The lawsuit arose when Roxane and co-Defendants Mylan Pharmaceuticals, Inc., and Teva Pharmaceuticals USA, Inc. each filed an Abbreviated New Drug Application (ANDA) for Acorda’s multiple sclerosis drug (Ampyra®) and sent Paragraph IV letters to Acorda (and co-Plaintiff Alkermes Pharma Ireland Ltd.) asserting that four Orange Book-listed patents (U.S. Patent Nos. 8,007,826; 8,663,685; 8,354,437; and 8,440,703) were invalid. As the Federal Circuit panel stated, there was one additional patent, U.S. Patent No. 5,540,938, owned by Elan Corp. plc and exclusively licensed to Acorda. That patent broadly claimed therapeutic formulations of 4-aminopyridine (4-AP); Acorda’s patents were for more narrow formulations having specific characteristics and properties that distinguished (undisputedly, for novelty purposes) these claims from the claims of the ’938 patent.

None of that would happen had the USPTO properly assessed the patents in the first place, possibly aided by the Patent Trial and Appeal Board (PTAB), even without an inter partes review (IPR). What we generally have here for all to see is a reminder of the great importance of patent quality.

The US patent courts, CAFC in this case, keep telling off the U.S. Patent and Trademark Office (USPTO) for granting bogus patents and trying to justify that, as is common when it comes to 35 U.S.C. § 101. Here is another new example from Patently-O:

Today the Federal Circuit issued three parallel decisions all stemming from the patent case brought by Asghari-Kamrani. The first two decisions affirm the E.D.Va. judgment-on-the-pleadings. In those cases, the district court held that the patentee (Asghari-Kamrani) failed to state a plausible claim for relief within her complaint. In particular, the court found that all the asserted claims were invalid for lack of eligibility. On appeal, the Federal Circuit AFFIRMED in a R.36 Judgment Without Opinion. [Link].

The third decision is an order of dismissal of a parallel appeal from the PTAB (CBM Review). The PTAB had found all of the claims unpatentable as obvious or anticipated. On appeal, though the Federal Circuit dismissed the appeals as moot — and vacated the USPTO decisions.

Dennis Crouch, in his rather typical fashion, complains about it. This patent maximalist says “the automatic vacatur of the PTAB decisions does not sit well with me.” He has long used this strategy of trying to slow PTAB down, just like the SAS decision from earlier this year.

Crouch later wrote another one of his many rants, this time titled “The Federal Circuit Strides Forward with No-Opinion-Judgments” (never mind if they cannot cope with the number of appeals coming from PTAB). To quote Crouch:

Petition for Writ of Certiorari. I explain in the article, that the issue was rather low-level up until 2013 and the explosion of inter partes review (IPR) proceedings and resulting appeals to the Federal Circuit. Because those cases typically involve complex obviousness analysis (as in the case at hand), the shortcut route has been for the court to issue R.36 Judgments Without Opinion in these IPR appeals. The result has been hundreds of R. 36 Judgments of PATO appeals over the past few years.

Although a number of parties have raised the issue with the Federal Circuit, the court has not yet addressed the issue directly (other than by continuing to issue no-opinion-judgments). I will note that the same question is also presented in the pending petition in Leon Stambler v. Mastercard International, Inc., SCT Docket No. 17-1140.

Rob Sterne’s team at Sterne Kessler is representing the patentee-petitioner. Sarah Guske (Baker Botts) represented Cisco in the appeal.

If Crouch is so bothered to see patents invalidated at a very high pace, maybe he should introspect and consider if his worldview has been warped by the litigation ‘industry’ with its financial agenda. He’s supposed to be a law professor, but instead he speaks like a lobbyist for patent trolls who just ‘happens’ to lecture people in an educational institution.

Observations like the above only further contribute to the perception of a nefarious agenda; and as a side note, many patent sites I’ve long followed (they’re even called “Patent” something) are diverging/moving away from patents to copyright and trademark stuff. Some, including Watchtroll, no longer even cover any of the above. They seem totally lost. When they write something — as we shall show later this weekend — it’s typically an attack on a court, tribunal, panel, or judge. This is not good. It’s not good for the image of their profession as a whole. Unless they give up on their patent maximalism/lobbying, they will only alienate judges even further. Moving to greener pastures may be a better trajectory. IAM, for example, has virtually gone dark; it’s barely even visible anymore.

Patent Trolls Are Still Active and Microsoft is Closely Connected to Many of Them

Posted in Microsoft, Patents at 4:55 am by Dr. Roy Schestowitz

Still connected

Summary: A roundup of patent trolls’ actions in the United States; Microsoft is connected to a notably high number of these

THE software patents granted by the USPTO often travel or find their way into the hands of trolls such as Intellectual Ventures (IV) with its notorious proxies like ‘offspring’ trolls (for ‘enforcement’ i.e. lawsuits and shakedown). IV isn’t just Microsoft-funded; it’s also funded by Bill Gates, headed by his close friend, and led by former Microsoft executives. It’s everything one needs to know about the ‘new’ Microsoft.

Watchtroll’s post about IV’s latest defeat in court was composed by Robert Schaffer, Joseph Robinson and Dustin Weeks. The case was previously covered by Watchtroll and in Techrights as well. James Korenchan from Patent Docs said this a few days ago:

Last week, in yet another patent case before Judge Rodney Gilstrap of the U.S. District Court for the Eastern District of Texas Marshall Division, the Court ruled that Defendants T Mobile USA, Inc. and T-Mobile US, Inc. (collectively, “T-Mobile”) failed to show that a claim related to packet scheduling is patent ineligible under 35 U.S.C. § 101.

T-Mobile had moved to dismiss claim 109 of U.S. Patent. No. RE46,206 (the ’206 patent) (a reissue of U.S. Patent No. 7,251,218) as directed to ineligible subject matter. In addition, T-Mobile, as well as Defendants Ericsson Inc. and Telefonaktiebolaget LM Ericsson, moved to dismiss all claims of U.S. Patent No. 7,359,971 and claim 1 of the ’206 patent as barred by issue preclusion. The Court carried the motion under issue preclusion grounds but denied the motion as to patent eligibility.

35 U.S.C. § 101 thankfully stepped in, but in the Eastern District of Texas the outcomes aren’t so predictable. Expect this to carry on for some time…

There are many other trolls that are connected to Microsoft. Interval Licensing, for instance, is a patent troll of Microsoft’s co-founder and it recently resurfaced in some headlines. One patent maximalist picked on Judge Plager for this: “There was a funny moment during the oral argument of Interval Licensing, LLC v. AOL, Inc. last December when Judge Plager explained why his law clerk was just an abstract idea…”

Another Microsoft proxy was mentioned by Nasdaq the other day in anticipation of a “Mini-Trial December 10, 2018″ against Juniper Network. Finjan is a patent troll that has Microsoft behind it (as backer and funder). There’s also Cisco, a rival of Juniper Network.

It is just too difficult to ignore the fact that Microsoft is responsible for a feeding frenzy, sending money and patents into the laps of notorious and active patent trolls while offering ‘protection’ from these trolls. This racket has been bundled or lumped into Azure [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20].

Over the past week there have been also troll stories that have nothing to do with Microsoft. Here are software patents in action again… in the US. Note that the target in this case was Azure Farms (not Microsoft):

Farm victim of ‘patent troll’ lawsuit

The vaguely threatening letter over alleged patent infringement that Azure Farms received last year didn’t make much of an impression on David Stelzer.

Stelzer, the company’s founder and CEO, consulted with his information technology employees, who assumed the letter was a scam.

“I didn’t give it a second thought,” he said.

Now, the Oregon company is the defendant in a lawsuit that alleges its online website for selling organic food and other products has violated a patent for automated financial transactions owned by Landmark Technology LLC of San Diego, Calif.

Stelzer said his website isn’t much different from multitudes of others that sell products online, making him think the plaintiff has filed a “nuisance lawsuit” aimed at a quick settlement.

Azure Farms, based in Dufur, Ore., doesn’t have deep pockets to hire expensive attorneys, which is perhaps why the company was targeted, he said.

“I have no clue what they are after,” said Stelzer, who farms nearly 2,000 acres. “They’re basically saying because we have a working website, we have patent violations.”

Another troll lawsuit was covered by Dennis Crouch a few days ago. It’s about Blackbird Tech LLC, which is a malicious patent troll we wrote a great deal about in the past. Having failed with software patents they now try again with fluorescent patents:

Blackbird Tech’s US patent at issue (7,086,747) is directed to an LED light fixture designed to retro-fit to the space of old tubular fluorescent light fixture having a ballast cover. The claims particularly require a “housing having an attachment surface.”

[..]

In the original panel decision, Judge Moore penned the majority decision and was joined by Chief Judge Prost. Judge Reyna filed a dissent — concluding that the “attachment surface” limitation is an element of the claimed retrofit function of the invention and should be attachable to something in the old housing. Judge Reyna writes: “The plain language of claim 12, read in the context of the specification, implicitly requires that the attachment surface be secured to the ballast cover to achieve the retrofit function.”

The basic debate here stems from the reality that the canons of construction conflict with one another. The unfortunate result though is the old-fallback that claims mean what the Federal Circuit says they mean.

Crouch’s complaints (and sometimes rude remarks) about the Federal Circuit is a subject we explored before and will revisit later this weekend. He is particularly upset that the Patent Trial and Appeal Board’s (PTAB) decisions are so often affirmed by the Federal Circuit (after referrals/appeals emanating from inter partes reviews).

Advancements in Automobile Technology Won’t be Possible With Patent Maximalism

Posted in Patents at 3:43 am by Dr. Roy Schestowitz

Blue truck

Summary: Advancements in the development of vehicles are being discouraged by a thicket of patents as dumb (and likely invalid) as claims on algorithms and mere shapes

THE EPO‘s and the USPTO‘s retreat to buzzwords isn’t particularly new. They attempt to find creative new ways to grant software patents pertaining to driving/vehicles. The EPO together with IPO will do this in Chicago.

We previously wrote about "Autonomous Driving" and "Self-Driving Cars" in relation to patents; these are software patents. Such patents ought not exist.

“They attempt to find creative new ways to grant software patents pertaining to driving/vehicles.”A few days ago we also saw updates on the ludicrous case of Nikola, which thought the design of a vehicle merited a patent (designs are covered more appropriately by other laws). According to this update from Ross Tessien: “The US Patent Examiner ruled the Tesla design is unique compared to the Nikola design.”

There’s also this lengthy report from Fred Lambert, who said this:

Tesla is currently being sued by Nikola Motors for $2 billion over the design of the Tesla Semi, but the automaker has now obtained its own design patents for the electric truck – significantly weakening Nikola’s case.

As we previously reported, Nikola alleged that Tesla’s electric truck design infringes on its existing patents. Specifically, a series of 3 patents that Nikola recently obtained for the design of a few features of their Nikola One truck unveiled in 2016 – a year before Tesla unveiled its own electric truck.

We broke down each of the Nikola’s specific claims in what we believed basically amounted to a patent trolling case in a purely design-based objective way.

As we said before, design patents are a stupid idea to begin with; laws covering designs exist which have nothing to do with patents. How is society supposed to advance when not only technical patents need to be assessed but also patents on mere shapes? That’s an impediment to science and technology, not a facilitator thereof.

“How is society supposed to advance when not only technical patents need to be assessed but also patents on mere shapes?”The patent maximalism site BNA (and its authors who are themselves patent maximalists) has just published this “INSIGHT” (all caps) titled “Biggest Roadblocks to Getting Driverless Cars on the Road—The High Stakes of Patent Protection in the Era of Self-Driving Cars” (title seems promising enough).

We expected the article to give examples of patents holding back science in this domain (in this particular domain we’d be dealing with computer vision for the most part). The article, however, makes excuses for patents on self-driving cars:

There are few inventions that have changed the face of the planet. First, there were motor vehicles, then airplanes, and now self-driving cars have emerged, set to completely revolutionize the way we travel. This convergence of so many disparate technology sectors will make self-driving cars a reality: chip companies; software developers; and cameras (to name a few). This has made investments in the space the hottest commodity in Silicon Valley. With continued innovation and efforts in technology such as engines, microchips and 5G all being funneled into the development of self-driving cars, technology companies should consider how to protect their intellectual property in a way that keeps them competitive and brings their innovations to the roadway as soon as possible.

There’s no time to waste—companies need to start thinking through now how they plan to protect their inventions, innovations, talent and investments—while still ensuring they don’t halt the growth of the industry in the process. Considerations of patent protection and strategy are critical in this burgeoning field. Here’s what companies need to keep in mind as they “autonomously” navigate new waters…

Like we said several times a few years ago, virtually all of these patents are software patents that are reducible to mathematics. The cars themselves are the same, but there’s a computer doing all or much of the steering, throttling etc. based on stereo-vision and an assessment of the environment (segmentation, classification and so on).

Society won’t be able to advance too well if electric and computer-assisted cars are kept out of reach — artificially — by patents and patent lawsuits.

Battistelli “Has Deeply Hurt the Whole Patent Profession, Examiners as Well as Agents” and Also the Image of France

Posted in Europe, Patents at 2:20 am by Dr. Roy Schestowitz

There’s still lack of diversity in the management, which is clearly French-led under António Campinos

French EPO

Summary: A French perspective regarding Battistelli’s reign at the EPO, which has not really ended but manifests itself or ‘metastasises’ through colleagues of Battistelli (whom he chose) and another French President (whom he also chose)

MANY EPO scandals that include nepotism have been covered here for over four years. 3 out of 4 successive EPO presidents are French and that has a lot to do with politics as well as lobbying, including by Battistelli, who intervened to have António Campinos appointed. Pompidou was reasonably OK (not perfect, there were a few complaints associated with him as well) and a few hours ago I received the following comment in French:

Avec le comportement radicalement antisocial et délibérément dictatorial du précédent président français de l’OEB, la France va pour longtemps paraitre indésirable au niveau exécutif de l’OEB aux yeux de nombreux pays membres. On peut déjà être heureux que le Français soit encore considéré comme langue officielle de l’OEB. Dans un passé relativement récent, Mr Pompidou a été un président français raisonnable et diplomate qui a été respecté, bien que tout le monde savait y compris lui-même que son implication dans les brevets ne lui permettait pas de s’imposer en tant qu’expert de la propriété industrielle au niveau international. Evidemment, la renommée de son père adoptif a été déterminante dans sa nomination à la tête de l’OEB.

Mr Batistelli, par contre, a profondément blessé toute une profession, les examinateurs aussi bien que les mandataires, spécialement par son mépris du droit de la propriété inustrielle. Son trop long mandat à l’OEB a sapé tous les efforts diplomatiques de la France dans les années 1970 à 2010. L’INPI qu’il a dirigé n’a jamais eu une politique d’examen quant au fond très développée et il ne pouvait se prévaloir de cette expérience puisque l’INPI a délivré pendant très longtemps des brevets sans examen sérieux.

L’Allemagne, les Pays-Bas, la Grande-Bretagne, la Suisse ont été des membres fondateurs de l’Organisation européenne des brevets qui, à la différence de la France, avaient de longue date développé un examen quant au fond de qualité, ce qui reste dans les mémoires toujours maintenant et qui reste le seul élément important pour l’industrie mondiale. La désindustrialisation de la France dans les dernières décennies n’est pas pour donner à la France un rôle de 1er plan dans le développement de la protection par brevets.

Il est vrai que l’évolution actuelle du droit communautaire attire les convoitises de chaque pays pour occuper les places importantes de la structure de l’OEB. Souhaitons que les choix des responsables soient basés, non pas sur des motifs politiques aveugles, mais sur des raisons sérieuses et consistantes.

Ces réflexions sont basées sur mon expérience d’examinateur pendant 10 ans à l’INPI puis pendant 30 ans à l’OEB. Ceci autorise une vue d’ensemble certainement crédible.

The entirely automatic translation:

With the radically antisocial and deliberately dictatorial behavior of the former French President of the EPO, France will for a long time appear undesirable at the executive level of the EPO in the eyes of many member countries. We can already be happy that French is still considered the official language of the EPO. In a relatively recent past, Mr Pompidou was a reasonable and diplomatic French president who was respected, although everyone knew, including himself, that his involvement in the patents did not allow him to prevail as a expert in industrial property at the international level. Evidently, the fame of his adoptive father was decisive in his appointment as head of the EPO.

Mr. Batistelli, on the other hand, has deeply hurt a whole profession, examiners as well as agents, especially by his contempt for industrial property rights. His lengthy tenure at the EPO undermined France’s diplomatic efforts in the 1970s to 2010. The INPI he led never had a substantive substantive examination policy and he did not could benefit from this experience since the INPI issued for a very long time patents without serious examination.

Germany, the Netherlands, Great Britain, Switzerland were founding members of the European Patent Organization which, unlike France, had long developed a substantive quality examination, what remains in the memories always now and which remains the only important element for the world industry. The deindustrialization of France in recent decades is not to give France a leading role in the development of patent protection.

It is true that the current evolution of Community law attracts the desires of each country to occupy the important positions of the structure of the EPO. Let us hope that the choices of those responsible are based, not on blind political motives, but on serious and consistent reasons.

These reflections are based on my experience as an examiner for 10 years at the INPI and for 30 years at the EPO. This allows for a certainly credible overview.

Back in the days (over a year ago) French MP Philip Cordery spoke about these issues [1, 2, 3] and he wasn’t alone [1, 2]. A female French politician said that Battistelli is “extremely damaging to the image of France” and Cordery said something similar to a lot of politicians. Battistelli had simply lied to them by claiming that his exposers were just "Nazis".

09.15.18

António Campinos Needs to Listen to Doctors Without Borders (MSF) et al to Salvage What’s Left of Public Consent for the EPO

Posted in Europe, Patents at 4:16 am by Dr. Roy Schestowitz

What would António’s father have said, having campaigned against imperialism/colonialism in Angola (where poverty kills and denies access to medicines that are relatively cheap to manufacture)?

Health in Angola
Reference: Health in Angola

Summary: Groups including Doctors Without Borders/Médecins Sans Frontières (MSF) and Médecins du Monde (MdM) have attempted to explain to the EPO, with notoriously French-dominated leadership, that it’s a mistake to work for Gilead at the expense of the public; but António Campinos is just another patent maximalist

PATENT offices are inherently scientific institutions (anything around examiners at these offices is merely a bureaucracy or a distraction), so nothing good can come out of an EPO and USPTO that are run by a banker and a lawyer, respectively. Prior to Frenchman António Campinos the Office was run by another Frenchman — a politician who lacked experience in this domain until his mid fifties. The USPTO will occupy much of our time the rest of this weekend (its Director was actually born in Hungary), but this post will be about Mr. Campinos, whose family background is very much relevant to his career because his father was a prominent politician, a campaigner against Portuguese colonisation in Angola (we wrote about this in great length more than a year ago). We’ve twice before mentioned the decision regarding a controversial patent which would likely kill many people in Angola. It’s a European Patent, which the Office under Campinos insists on upholding after Battistelli’s Office granted it (the application itself can be traced back to the days another Frenchman, albeit an actual scientist, was the President).

Doctors Without Borders/Médecins Sans Frontières (MSF) issued the following statement yesterday:

The European Patent Office on Thursday ruled against patient and provider groups in 17 countries that had challenged Gilead’s unmerited patent on the hepatitis C drug sofosbuvir. The decision, following a hearing today in Munich, will keep more affordable generic versions of the medicine out of reach for people across Europe and beyond.

This hearing follows a legal challenge filed by patient and treatment provider organizations from 17 European countries, including Doctors Without Borders/Médecins Sans Frontières (MSF), Médecins du Monde (MdM), and several other groups.

Gilead initially set the price for the oral drug sofosbuvir, which forms the backbone of most hepatitis C combination treatments, at $84,000 per 12-week treatment in the United States—a staggering $1,000 per pill. In countries where MSF is treating people with hepatitis C, including Myanmar, Cambodia, India, Pakistan, Mozambique, Uganda, and Kenya, sofosbuvir is currently being procured from generics manufacturers for less than $100 for the same treatment course. The exorbitant price of sofosbuvir and the way its price has led to rationing of this drug has stirred an intense debate on the pricing of patented medicines in Europe.

There’s some more in there (mostly quotes). Médecins Sans Frontières is a former client of mine (at my employer, where we worked on backups for them) and if given a choice between the EPO and MSF, I’d always choose MSF because people there are mostly volunteers who try to make the world a better, healthier, safer place.

Jorge Campinos and groupWhere does Mr. Campinos stand on the matter? Is he becoming the antithesis of his father? It sure feels like it sometimes. The father (left) died a very long time ago (a car accident in Mozambique in 1993), so he’s not around anymore and cannot guide his son, except ‘in spirit’.

We kindly ask António to have a good think about the kind of EPO he wants to lead. Does he serve billionaires or does he serve medics whose aspiration is to save lives? Having served large and controversial banks in the past, we tend to believe that António gravitates towards the former, as did Battistelli. The other French President was a professor who had practised in the field of medicine; surely he would know the ramifications of granting the patent Gilead sought when he was in charge of the Office.

Jorge CampinosGoing back to the senior Campinos (on the right), we also ask António to rethink abstract patents. Is he willing to defy the EPC and European Parliament? Software patents advocacy by the EPO has only increased in frequency since António Campinos came (well over a hundred tweets; we cannot even mention them all or keep count anymore). In that regard, he is even worse than Battistelli. The EPO now liaises with lobbyists of software patents and then brags about it; the EPO has done that almost every day for about a week now! Here is the example from yesterday: “If you’re a patent attorney, and particularly if you work in the field of ICT, then you might be interested in this free-of-charge event we’re holding in London..”

“It’s not only a spit in the face of people who crafted the EPC but also existing European politicians. The EPO not only exploits immunity; it actively boasts about it.”Wow, “free-of-charge” lobbying. Makes one wonder who benefits…

It’s no secret by now that Team UPC in the UK (the CIPA front group) is promoting software patents; this is an abomination and insult to the European institution. It’s not only a spit in the face of people who crafted the EPC but also existing European politicians. The EPO not only exploits immunity; it actively boasts about it.

On Friday at around noon the Campinos-led Office not only bragged about working with/for CIPA but also a US group of patent zealots. It’s called IPO and it aggressively lobbies for software patents in the US (i.e. against Section 101/Alice). Its seminar in Chicago, along with the EPO, was advertised yesterday by the EPO. The EPO has advertised it almost every day for a number of weeks and it has also promoted software patents under the guise of “AI” for about that long. Here is the example from yesterday: “Experts discussed how the EPO deals with the challenges of AI in patent applications at this recent conference…”

“António is an example of people who climb the ‘career ladder’ or get promoted merely for serving those in power. People like the billionaires behind Gilead, who some argue have blood on their hands.”Well, “AI” is just another algorithm type/framing. I know this having worked in that domain for many years.

What we’re sadly seeing here is yet more evidence that Campinos is at least as much of a patent maximalist as Battistelli was. Quality of patents isn’t going to improve. Yesterday they promoted Inventor Award 2019 not just once but a couple of times [1, 2]. Will next year’s ceremony also be held in France, where Campinos was born, where Campinos studied, and where his mother comes from? France was the venue of choice almost half the time (there are dozens of EU member states) and last year Battistelli shoved his hand in the cookie jar, pulling out millions of euros and sending these to the municipality where he now works. Corruption is an understatement. Corruption such as this is what Campinos is actively or at least passively covering up every single day he walks into the Office while failing to address it. His father would not have been proud. Even at EU-IPO his son António served only the greedy and self-serving. António is an example of people who climb the ‘career ladder’ or get promoted merely for serving those in power. People like the billionaires behind Gilead, who some argue have blood on their hands. Gilead profits like mad for denial of treatment or for very selective treatment that deliberately excludes the poor (to keep cures out of reach, fiscally). It’s all about artificial scarcity and they know it.

The Max Planck Institute’s Determination on UPC’s (Unitary Patent) Demise is Only “Controversial” in the Eyes of Rabid Members of Team UPC

Posted in Europe, Patents at 2:57 am by Dr. Roy Schestowitz

“Controversial” like allegations that Battistelli is corrupt

Bristows EPO

Summary: Bristows keeps lying like Battistelli; that it calls a new paper “controversial” without providing any evidence of a controversy says a lot about Bristows LLP, both as a firm and the individuals who make up the firm (they would not be honest with their clients, either)

TECHRIGHTS has long argued that the EPO was lying about UPC along with Team UPC — basically the very same elements that crafted UPCA and would stand to benefit from such an ‘agreement’ (behind the public’s back). Thankfully, the UPC is now in its death throes. It seems extremely improbable to us that it can ever recover, though it might re-emerge with a different name and new marketing strategy (as happened before).

Just before the weekend the Max Planck Institute made some headlines (not enough, however, in our humble assessment). Team UPC would rather nobody saw it. It would rather pretend such a paper does not exist. But some people did take note of it and we managed to get a copy.

“If it was pro-UPC or had a favourable — even if purely fictional — view of the UPC, the patent microcosm would probably have prodded some publishers to write a bunch of puff pieces, complete with those infamous old lies which they keep repeating every week.”Soon afterwards even some pro-UPC sites (of patent maximalists) took note of it. Managing IP, for instance, having previously set up pro-UPC events (with the EPO also involved), has just said: “UK in UPC after Brexit is “incompatible with EU principles” – Max Planck Institute [link] … An association of German research institutes concludes in a paper that the UK being in UPC post Brexit would create a “fictitious unity” that is incompatible with EU law…”

This links to a post we mentioned before the weekend. No other Web site appears to have covered it, at least not in English. If it was pro-UPC or had a favourable — even if purely fictional — view of the UPC, the patent microcosm would probably have prodded some publishers to write a bunch of puff pieces, complete with those infamous old lies which they keep repeating every week.

Funnily enough, last night we spotted the headline “Max Planck Institute publishes controversial opinion on continued UK involvement in the UPC” (it’s not controversial at all).

We could immediately guess that it came from Bristows LLP or the likes of it. According to Bristows LLP, no such issue exists because Bristows LLP staff are a bunch of self-serving liars and they don’t mind the world seeing that they’re liars. Gregory Bacon wrote this piece; it was the first blog post in this blog for a very, very long time (awkward silence that actually says a lot!)…

“A very long paper with ample evidence is being contested by… basically nothing.”The decision or determination from the said paper is not controversial; we saw not a single person publicly disputing it. Nobody. It’s just not convenient to Team UPC, who decide to label it “controversial” and come up with their usual lies (which we covered here aplenty in the past).

Bacon has provided no evidence whatsoever that Matthias Lamping and Hanns Ullrich were wrong and therefore the title, calling it “controversial”, isn’t supported by any substance in the body. A very long paper with ample evidence is being contested by… basically nothing.

Here is the abstract of the paper, which is actually dated more than a fortnight back. We’ve highlighter some bits for ‘lazy’(ier) readers:

Among the many problems Brexit raises in the field of European intellectual property those relating to the system of unitary patent protection stand out for their complex and controversial nature. The reason is that this system rests on two legally different but interconnected pillars: EU Reg. 1257/2012 on the implementation of enhanced cooperation by the creation of unitary patent protection on the one hand, and, on the other, the Agreement between the Member States of the EU on the establishment of a Unified Patent Court (UPC) that will have exclusive jurisdiction over invalidation and infringement actions concerning the European patent with unitary effect and/or the classic European (bundle) patent. However, the link between unitary protection of European patents and the UPC Agreement is not only one of jurisdiction, but also one of substantive law. Thus, as regards the rules on infringement of the unitary patent, Reg. 1257/2012 refers to those contained in the UPC Agreement in respect of the European (bundle) patent.

Many in the patent law community hope to overcome the disruptive effects the withdrawal of the UK from the EU will produce on both the territorial scope of unitary patent protection and on the UPC as a court common to EU Member States. However, unitary patent protection cannot be dissociated from the general legal order of the EU’s Internal Market and extended to the UK once it has left the Union. Any such extension is incompatible with the autonomous character of EU law and its institutions, will result in a legally split unity for separate and separately regulated markets, and conflict with both the UK’s and the EU’s public interests in defining and implementing a patent policy of their own. Since the core objective of the UPC Agreement is to establish for the adjudication of unitary patent protection a common court of EU Member States that, as such, forms part of the judicial system of the EU, continued participation in the UPC Agreement of the UK post Brexit will not be possible. It would be incompatible with the EU’s foundational principle, which is integration by virtue of the operation of an autonomous legal order based on a complete system of legal protection by national courts acting as ordinary courts of the Union and in cooperation with the Court of Justice of the EU.

We cannot say we’re surprised that Bristows et al attempt to twist this paper, picking the word “controversial” from the first sentence of the abstract and then framing the entire paper (almost 200 pages long, i.e. months in the making) “controversial”. Shame on Bristows and its hatred of scientific, legal discourse. It’s just like Battistelli.

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