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09.28.16

EPO’s Board 28 Notes Battistelli’s “Three Current Investigations/Disciplinary Proceedings Involving SUEPO Members in The Hague.”

Posted in Europe, Patents at 9:19 pm by Dr. Roy Schestowitz

Decapitation and union-busting strategies carry on unabated at the EPO

Headless

Summary: The attack on SUEPO (EPO staff representatives) at The Hague appears to have been silently expanded to a third person, showing an obvious increase in Battistelli’s attacks on truth-tellers

THE level of distortion of the facts inside the EPO is truly flabbergasting. People are expected to believe that all is well because staff representatives are fired, terrified, or both.

Thankfully, we sometimes get a word from the inside. Mr. Prunier, for instance, is being falsely accused and in his own words, he faces “demonstrably fabricated accusations,” as we noted earlier this month. He’s not alone though. People all across the EPO (various branches, including independent ones) have come under attack. Here is a new comment (published today) about how Battistelli might be planning to get rid of a judge whom he considered to be a thorn on his side because he had allegedly spoken about abuses by Team Battistelli (like, simple facts):

After the nomination of the BoA president, it will be easy to dismiss a BoA member.

Art. 21. (…) “the President of the BOA will be responsible for proposing disciplinary action to the Administrative Council with regard to the members, including the Chairmen, of the BOA and the members of the EBA”.

Just keep the case pending until the nomination of a BB friend as BoA president then the BoA suspended member will be dismissed.

Earlier this year we wrote about defamation complaint/s on behalf of the judge. A “criminal complaint for defamation allegedly filed with the state prosecutor in Munich,” says the following comment, “was reported in the Süddeutsche Zeitung in December 2014 and elsewhere in the German press.” Well, as far as we know the EPO too came under complaints of defamation, after it had allegedly ‘planted’ defamatory claims about the judge, including in Süddeutsche Zeitung. Here is the comment in full:

Another rumour currently doing the rounds in Munich concerns a criminal complaint for defamation allegedly filed with the state prosecutor in Munich by a senior official of the EPO some time ago. This was reported in the Süddeutsche Zeitung in December 2014 and elsewhere in the German press.

It is now rumoured that this complaint was recently rejected by the state prosecutor who seems to have taken the view that no act of defamation had been committed.

Maybe this is the new element referred to by the President ?

The following new comment says rather clueful things about aforementioned claims:

@One of those

Point 18 of the decision in case Art 23 1/16 makes it clear that at least the Enlarged Board of Appeal takes the issue of res judicata seriously, even if they did not apply it in that case. Of course, ILO-AT is a completely different kettle of fish.

@Anon 06:03

What you are suggesting is that “a proposal from the Enlarged Board of Appeal” (Article 23(1) EPC) could soon simply be interpreted as “a proposal from the President of the Enlarged Board of Appeal”. Interesting suggestion. That certainly would not be my interpretation of Article 23(1) EPC. The EBoA and its president are not synonymous, and so my view is that the one cannot stand in for the other when it comes to explicit provisions of the EPC.

Trouble is, what recourse would there be if (yet again) the EPO and the AC took action that arguably contravened the provisions of the EPC? Who is there to hold them to account? Perhaps this particular lacuna will prove to be the worst mistake of all by the founding fathers of the EPC.

@Nolle prosequi

I see that you have your tongue firmly in your cheek when suggesting that the (alleged) dismissal of VP3′s defamation claims could amount to the “new element”.

But perhaps we should not rule out a link. If the defamation claims have been rejected, then it becomes clear that there is no sound legal basis for dismissing the accused member on the grounds of defamation. It is undoubted that this development could prove to be a major embarrassment for BB and his coterie (who, by the way, could stand safe behind their immunities if it ever were determined that they defamed anyone). What better way to take the sting out of this threat by going on the offensive and dragging up new “allegations” (related to the other allegation in case Art 23 1/16) that provide renewed justification for the investigation into the BoA member?

With the disciplinary case closed, and with one of the allegations against the member (allegedly) being dismissed by an independent body, it is very hard to come up with a valid reason why the Office would adopt a “press on regardless” tactic. The actions of the Office therefore provide ample material for the generation of theories involving sinister conspiracies. So much for defending the reputation of the Office!

Not to worry. No doubt there will be an “independent” study issued in which it is confirmed that the Office has acted with utmost propriety… oh wait, it has already issued! I am particularly impressed by PwC’s range of expertise. If an above commentator (Empty) is correct, then it appears that “PWC have found that the office’s actions have met the requirement of the EPO’s legal framework”. Amazing. I never realise that PwC employed individuals who were experts in patent law. Or, based upon what some allege is standard practice of certain accountancy firms (when producing financial audits), perhaps should we should instead interpret their statement to mean “this is what the EPO has told us and we have no reason to doubt the accuracy of their statement (though, sotto voce, we have not conducted any form of independent verification)”. In this context, the rather odd choice of an accountancy firm to conduct a social study starts to make a lot more sense.

Here’s more:

“this development could prove to be a major embarrassment for BB and his coterie”

Pray, a major embarrassment in front of whom exactly? It appears that, given their supposed “immunity”, these people don’t give a s*§t about what the external word thinks.

And for the AC, it will certainly not be informed of this major development but lavishly showered at the next meeting with fabulous production figures and the deriving money.

Nothing to see here, move along …

The most interesting bit however was this comment which claims to quote the secretive board. See the bit highlighted below:

Have you seen this one in MICADO ?

SUMMARY OF CONCLUSIONS
of the 74th meeting of the
BOARD OF THE ADMINISTRATIVE COUNCIL
Munich, 8 September 2016

under 4. Concerning AC and General Affairs

“the Board noted information provided by the President about three current investigations/disciplinary proceedings involving SUEPO members in The Hague.”

This serves to reinforce the belief expressed in the followup comment. It states that Team Battistelli basically “decapitated the ranks of SUEPO in Munich and now they go for those in The Hague”. Here is the full comment:

“the Board noted information provided by the President about three current investigations/disciplinary proceedings involving SUEPO members in The Hague.”

Yep. They decapitated the ranks of SUEPO in Munich and now they go for those in The Hague – of course, “a simple coincidence” as VP1 would say.

And since the Investigation Unit is there to conveniently provide proof of guilt to the President, they are already dead meat.

The AC will obviously look the other side …

A lot of new information is contained above. Some of it is speculative, but some of it quotes an internal document which we hope to get a full copy of. These comments in IP Kat are very hard to find because they’re buried in some additional pages in a comment thread of a very old article (these deserve more attention, hence we often repost these here). Sadly, since the EPO banned IP Kat for almost a whole working day (perhaps some kind of a warning sign) there has been virtually no criticism of the EPO over there. Tomorrow we’ll show just to what degree the pro-EPO element has grown at IP Kat.

Cementing Autocracy: The European Patent Office Against Democracy, Against Media, and Against the Rule of Law

Posted in Europe, Law, Patents at 7:23 am by Dr. Roy Schestowitz

Rule of law
Reference: Rule of law

Summary: The European Patent Office (EPO) actively undermines democracy in Europe, it undermines the freedom of the press (by paying it for puff pieces), and it undermines the rule of law by giving one single tyrant total power in Eponia and immunity from outside Eponia (even when he breaks his own rules)

THE situation at the EPO has gotten so bad that the EPO is now buying the media for some Milan spin (among other spin) to help sell the UPC to the gullible public officials. This culmination in lobbying demonstrates the moral depravity to which Battistelli and his goons are willing to sink.

The UPC is an assault on EU democracy (and in the UK what we are seeing in that regard is total disregard for the referendum), which is effectively being stolen by lobbyists and patent lawyers of large corporations. The “UPC [is] on the Council agenda of this Friday,” Benjamin Henrion wrote, “I told you so. Italian minister seems to lobby for Milan without even a discussion in Parliament.”

We first wrote about it last night. Italians should protest that day, along with their media (already covered UPC).

Was the public consulted on this? Why does the media, which was paid by the EPO, support this with some puff pieces that involve Team UPC? How corrupt can things get and when will European politician start to genuinely care? And not just because they perceive it as an opportunity to promote their political party, e.g. in France…

The Battistelli regime has gotten so oppressive recently that SUEPO is silent (not a single word for three weeks) and the attack on the appeal boards intensifies behind closed doors (the secretive Board 28). “This Office has really become a banana republic,” one comment says today. “Looks like a last, desperate attempt of Battistelli and his henchmen to avoid that at the next AC the disciplinary case is closed,” this person notes, in relation to the news about Battistelli trying to prevent the scapegoat from getting his job back (or basically return to work before the end of his term). Here is another new comment about it:

If the matter were not so serious for the accused (or should that be former accused and/or victim?), this Wile E Coyote-esque persistence would draw a chuckle.
As one person has pointed out, late filed submissions are required to be prima facie relevant and OK, maybe, if you can give us another reasoning because the one you have come with isn’t good enough, isn’t normally the procedure to follow.
I note that, in the Social Study (?), PWC have found that the office’s actions have met the requirement of the EPO’s legal framework. The mind boggles about what wouldn’t.

We wrote about the PWC 'study' just after its release on Friday. It’s hogwash. It’s just ammunition for lobbying in next month’s Administrative Council’s meeting (there are also court rulings from the Netherlands coming up very soon).

One person added that “there is no “Res Judicata” at the EPO, nor does ILO-AT require this of its member organisations (and the EPO is not a member of ILO-AT).”

Another person remarked on “the issue of res judicata” as follows:

They would not go for the same accusations.

Actually, rumors were circulating around the last meeting of the AC that the president had a completely new strategy to deal with the suspended member of the AC, since the first one did not work.

A new accusation would have been made according to which the suspended member had discussed with an external IP lawyer a case in front of the BoA, thus contravening the requirement of confidentiality for anyone working at the office.

That would have been considered as “misconduct” – the punishment for which we all know is dismissal.

I have no further details – such as “when did this discussion take place”, “was at an informal meeting”, “which proof did they have”, “did the office require the Lawyer to testify” or anything else.

I understand the defense of the suspended member was aware of these rumors.

We shall be keeping a close eye on this. If anyone out there has access to internal affairs of Board 28, please consider getting in touch with us. Information lapses and secrecy currently achieve nothing but harm staff. This also harms the EPO as a whole by making redemption improbable.

09.27.16

Team Battistelli Intensifies the Attack on the Boards of Appeal Again

Posted in Europe, Patents at 6:23 pm by Dr. Roy Schestowitz

While publicly stating to the media that they have gained independence (which is a lie)

Soviet emblem
Back to East German standards in Munich

Summary: The lawless state of the EPO, where the rule of law is basically reducible to Battistelli’s ego and insecurities, is again demonstrated with an escalation and perhaps another fake ‘trial’ in the making (after guilt repeatedly fails to be established)

THE EPO has become a rogue institution under Battistelli. It not only abolished quality control but also started attacking anyone who dares talk about it.

According to this, the “EPO does not even invite critics of swpats [software patents] when it makes an event, looks like an echo chamber for patentees” (links to an event that was mentioned here in another article from this morning).

Jesper Lund responded by saying that the “EPO has even stopped saying computer implemented inventions instead of #swpat” (software patents).

“Remember that Battistelli, who cooked up several fake ‘trials’ (internally, no oversight), relied on a USB device as ‘evidence’ and then spread some defamation in the Dutch and German media regarding the claims made by the accuser (himself).”They just keep changing the words they use to dodge the negative connotation. See how they say UPC instead of EU Patent and Community Patent, among other names for the same bad scheme. The EPO used to speak of “computer-implemented inventions,” a euphemism for software patents. They used to do this in their older Web pages (in the old site) and sometimes said CII, as we showed earlier this year. So basically, our fears of software patents under Battistelli are justified and insiders tell us that they do in fact grant software patents.

Who can stop this madness? Usually the boards of appeal. They already contributed to narrowing of scope in the past (to prevent frivolous litigation*). This morning we published a post that mentioned Board 28 and the latest stunt from Battistelli. He is quietly putting up the fire on the boards — all this while the media is supposed to believe that the 'exile' in Haar is an improvement (Wim Van der Eijk, Chairman of the Enlarged Board of Appeal (EBoA), is already on his way out).

Remember that Battistelli, who cooked up several fake ‘trials’ (internally, no oversight), relied on a USB device as ‘evidence’ and then spread some defamation in the Dutch and German media regarding the claims made by the accuser (himself). Here is the latest on this:

yeah, just saw it too.
How can there be new material NOW?
Or did one of the newly hired guys find new evidence somewhere in the stack of material on the famous USB-storage element?

Incredible.
The most important thing hammered to me in the EPO-academy for examiners-to-be, was that every single communication should be as complete as possible, including ALL objections.
We should not create new cases every time with new objections based on grounds previously known or foreseeable, but not formulated. We should not be lazy. Writing all down is procedurally efficient and gives better legal certainty to the party concerned and the public.
Maybe we should politely ask the administration representatives to join the academy, so that they do learn this important element of procedure.
It also causes one to reflect a bit more when hearing/reading something, before jumping to conclusion and action.

One might be led to the “conclusion that the AC and the President are colluding to subvert the provisions of the EPC,” one person asserted today. Here is the full comment:

So there are “new elements of information” on the suspended member of the Boards of Appeal. So what? The sole disciplinary authority for that member has closed the case against him. The charges have effectively been dismissed.

Some time ago, I posed the question of what the AC would do in the light of the disciplinary case being closed. I guess that we now have our answer: an “excuse” has been found for not immediately following the only legally sound course of action open to the AC, namely reinstatement (and appropriate compensation) of the member in question.

Do I take it that the member (and his legal tem) has been fully informed of the “new elements of information” and has been provided with an opportunity to comment upon them (as well as the issue of res judicata)? Or is there not even a pretence at formal investigation / disciplinary proceedings here?

If this carries on, then it will become impossible to avoid the conclusion that the AC and the President are colluding to subvert the provisions of the EPC. Whilst the immunities afforded to him mean that President can afford to be sanguine about the possible consequences of this, the members of the AC would do well to remember that their immunities are much more limited.

As we pointed out before, the attacks on the staff continue to escalate and become more severe. Staff in at least three EPO sites is said to be affected (the Dutch branch and apparently the Berlin branch also).

We are still curious as to why SUEPO has said nothing for so long; maybe SUEPO just hopes that the EPO’s union-busting agenda will slow down a bit if they say little or nothing to the general public.

The EPO is in shambles and Battistelli does everything to ensure it stays that way. No wonder staff is leaving in droves and it is difficult to recruit suitable people.
_____
* There is this new report today (actually a press release) about an EPO patent coming under fire, EP1575758B. It’s likely to happen a lot more after Battistelli’s regime has led to the issuance of many bogus patents and has damaged the appeal process.

After the EPO Paid the Financial Times to Produce Propaganda the Newspaper Continues to Produce UPC Puff Pieces, Just Ahead of EU Council Meeting

Posted in Deception, Europe, Patents at 5:38 pm by Dr. Roy Schestowitz

Remember what they did right before Brexit?

Financial Times on UPC

Summary: How the media, including the Financial Times, has been used (and even paid!) by the EPO in exchange for self-serving (to the EPO) messages and articles

THE EPO gives over a million Euros per year to a US-based and rather notorious PR firm. The EPO is essentially corrupting the European media at the expense of EPO budget, i.e. taxpayers and/or fee payers.

A very core part (if not flag bearer) of Team UPC, Bird & Bird, gets a platform or gets embedded in a new article (behind paywall) and then brags about it by saying: “Our @twobirdsIP partner, Rob Williams, speaks to the @FT about the effect of Brexit on the Unitary Patent Court” (“speaks to” means it’s a puff piece in the form of an interview, like those puff pieces that Managing IP has been doing with Battistelli, after prefiltering questions based on what some other journalists told us the EPO likes to do — a form of sanitisation).

The Financial Times was paid (one might even say bribed) by the EPO for UPC puff pieces several months ago, with a huge budget at Battistelli's disposal derived or extracted for lobbying purposes. The EPO gave money to media companies including the Financial Times and it even did this at a strategic time, almost certainly in order to influence the British referendum. Political meddling from such an institution should, in its own right, be a major scandal.

Regarding the piece itself (behind a paywall, so we must go by clues), based on the headline it’s once again the Milan fantasies, pretending that Milan can magically become London. It’s utter nonsense.

A more realistic take on the UPC came today from Dr. Glyn Moody. Unfortunately, his main citation points to CIPA, which has been working closely with the EPO on this (to undermine/steal democracy). Here is a portion of his article, which links to IP Kat:

It will still be possible for the UK to participate in the pan-EU Unified Patent Court (UPC) system after Brexit, according to a new legal opinion, but only if the UK is willing to “submit itself to the supremacy of EU law in the field of patent disputes.” Once established, the UPC will rule on cases involving unitary patents, which proponents say will reduce the costs of using and litigating patents in the EU.

Before the Brexit referendum, the UK was one of the main supporters of the idea of setting up the UPC. The UK government has already signed a lease for the London section of the Central Division and the UK Local Division of the new court system. Whether or not it can still participate in the UPC is therefore a crucial question.

A post on the IPKat blog explains that the legal opinion was put together for the Chartered Institute of Patent Attorneys (CIPA). The institute has been “lobbying for positive participation in the UPC after putting in so much work in advance of preparing the system,” and therefore is keen for the UK to remain a part of the UPC system even post-Brexit.

Benjamin Henrion already told him, “too bad you did not mention Stjerna paper. And Council meeting in 2 days.”

Based on Bristows of Team UPC (update today): “The UPC Preparatory Committee is meeting on 10 October 2016 in Paris. Regarding the Competitiveness Council, as the UPC is an ‘AOB’ item for this week’s meeting there is not likely to be any substantive discussion; the Council’s next meeting is on 28/29 November 2016.”

The “EU Council [is] to meet this Thursday, 29 September to discuss UPC and unitary patent,” they noted separately. As a reminder, Bristows of Team UPC is scheming to undermine both British and EU democracy. All it cares about are its own selfish interests. More patent litigation would mean more business for Bristows and its ilk (companies like Bird & Bird)

Here, incidentally, is a person in favour of the UPC saying that the UK should not ratify and explains why. The following comment was published today (“Meldrew” seems to be a British patent attorney):

I agree with Meldrew that it is better to be in the system than out – but otherwise disagree. Ratifying now creates problems we do not currently have (and we have plenty as it is) – it could lead to the UPC and UP commencing when it is uncertain whether the UK can or will remain in the project. If it can’t, but the UK has ratified in the meantime and the system commences, the situation for UPs covering the UK, the existence and locations of the UK local division and central division branch, the position of the UK judges and the enforceability of UPC judgments handed down pre Brexit are all unclear. None of these are sensible uncertainties to create in the hope that it will all be sorted out through some pragmatic political discussion. Nor do I believe the remaining EU member states will somehow reward the UK for being neighbourly in allowing the UPC to commence without delay, or punish us for not doing so – it is likely to be an irrelevance in the overall negotiations.

This doesn’t even touch on whether ratification now of what is a treaty between EU member states (even if technically not an EU instrument), which requires recognising the supremacy of EU law (in general, not expressly limited to patent law), is politically possible. It is impossible in my view to reconcile ratification with the referendum vote (which went the wrong way, as far as I am concerned), at least until the Brexit terms are known and agreed (and are such that it is politically consistent to ratify).

I am a realist. And sadly, the pragmatic – and sensible – thing to do is simply not to ratify, then wrap the whole UP/UPC/UK discussion in with general Brexit negotiations. This of course means delay since it is difficult to see how the remaining member states can actually proceed without the UK while it remains an EU member state and a signatory to the UPC Agreement. If we end up out, then the UPC can go ahead without the UK at that point, if the momentum remains. If we are in, so much the better, though I see dragons and lions in the path there.

And for what it’s worth, I am a supporter of the UPC/UP system even though I do not believe it to be quite as good or as “necessary for industry” as many have said it is.

Don’t be fooled by the UPC fantasies. The UPC isn’t happening, but Team UPC wants us to think otherwise so that guards are taken down and opposition reverts back to defeatism.

Beware the Patent Law Firms Insinuating That Software Patents Are Back Because of McRO

Posted in America, Patents at 11:26 am by Dr. Roy Schestowitz

Drop
McRO at the Court of Appeals for the Federal Circuit (CAFC) is just a drop in the ocean

Summary: By repeatedly claiming (and then generalising) that CAFC accepted a software patent the patent microcosm (meta-industry) hopes to convince us that we should continue to pursue software patents in the US, i.e. pay them a lot more money for something of little/no value

THE PREVIOUS post, a short article regarding SCOTUS, mentioned the legacy of Alice. It’s a living nightmare for patent law firms, some of which reportedly went out of business (we covered one high-profile example exactly a month ago).

“It’s a living nightmare for patent law firms, some of which reportedly went out of business…”“Once a patent is deemed to be directed to an abstract idea, the burden appears to shift against the patentee,” Patently-O wrote yesterday in relation to Alice step 2 (the abstractness test), noting also that “Enfish substantially increased the overlap between Steps One and Two of the eligibility analysis. Typically, if a claim includes an eligible inventive concept then it will not be deemed directed to an abstract idea in the first place.”

Enfish hardly changed anything at all, but patent law firms kept talking about it and shoving it into the media for about a month! They were hoping to change policy and practice by means of selective emphasis. It’s a politician’s foreign policy trick, e.g. misleading chronology or selective coverage of just one side’s agony.

Take the area of digital payment patents. They’re basically as dead as can be and statistics associated with failure/success rate are undermining Patently German‘s case when he says that “Mining giant BHP Billiton introduces Ethereum-based file sharing sys to improve suppl chain. Pioneering non-financial #blockchain application” (Accenture is trying to get patents in this area, as we noted earlier this week).

“They were hoping to change policy and practice by means of selective emphasis.”Thankfully, with Alice as a precedent, software patents in this area are very much buried (about 90% of those being tested in a court or an appeal board get invalidated).

In relation to this new article, one patent attorney asks: “Will there be a war for Blockchain patents? No, because Alice is killing most all the patent applications” (well, good).

The EPO may be going in the opposite direction, but in the US there are more appeals right now and patents are being crushed in this area a lot more often than they are being upheld. It’s too risky to even file a lawsuit with such patents. In fact, it’s dangerous to even assume that once granted a patent, not to ever be asserted in a court of law, this patent would somehow be safe. The Patent Trial and Appeal Board (PTAB) changed a lot of this by introducing inter partes reviews (IPRs).

“Referring to the headline,” Patently-O wrote about inter partes reviews (PTAB appeals), “The PTAB (acting on behalf of the PTO Director) held that traditional equitable defenses do not apply to IPR proceedings. Because this holding was made as part of an IPR institution decision, the appeal was dismissed for lack of jurisdiction.”

“In fact, it’s dangerous to even assume that once granted a patent, not to ever be asserted in a court of law, this patent would somehow be safe.”So in this particular case, PTAB was not effective for clerical or bureaucratic reasons rather than technical reasons.

Speaking of the above-mentioned PTO Director, the previous one, David Kappos, who was responsible for a lot of the mess including a surge in patent trolling and software patents, is now in the lobbying industry. He is trying to use his previously-acquired connections to influence the law on behalf of massive corporate clients such as Microsoft, IBM, and Apple. He wants to marginalise Alice, under the guise of “clarity”. He is not alone, either. The patent microcosm backs him and here we have a couple of patent law firms putting forth their interests through Watchtroll — a site which cannot stop attacking the Supreme Court’s judgement because it wants software patents (profit). “Is it Time To Amend 101?” says their headline. But why? It’s fine. Unless one is a patent lawyer that strives to patent everything…

Jonas Bosson from FFII Sweden told us about McRO, stating that “the decision is bad. Have you seen any good analysis of the effects?”

“I’d like EFF or TechDirt to put some attention to this, as it seems software patent proponents are playing this big.”
      –Jonas Bosson
“I have seen dozens,” I told him. “Same as in Enfish, lots of noise, no profound effect. SCOTUS won’t revisit software patents any time soon.”

“I’d like EFF or TechDirt” he responded, “to put some attention to this, as it seems software patent proponents are playing this big.”

Yes, software patents proponents like Microsoft and patent law firms can’t stop hyping up McRO, as if they want us to forget that CAFC broadly rejects software patents. Here is Bilski Blog (proponent of software patents) coming up with “More Lessons from McRo” (later reposted in some sites of patent lawyers). The site says “there are a couple of issues that McRo should have addressed but did not. First, the court could have further clarified that the preemption analysis should be from the perspective of a person of ordinary skill in the art (POSITA), and not a lay court. Using POSITA makes the analysis objective, technology neutral, and adaptive to changes in technology over time. POSITA is the only objective framework in the patent law and is already employed for claim construction, enablement, written description, obviousness, and the doctrine of equivalents. My partner Dan Brownstone and I set forth this theory, what we called Objective Preemption, in our amicus brief in Alice.”

“Well, such is the nature of selling agenda (and one’s own services)…”One does not need to look too far to realise what they pushed for in Alice, and the same goes for Bilski. Software patents profiteers can’t stop lobbying for change and even more than 2 weeks after McRO we still see propaganda in the form of ‘analysis’ [1, 2] or “Free Webinar”. One example we found yesterday was published by Gunnar Leinberg and Bryan Smith from LeClairRyan. “Federal Circuit Provides Additional Support to Software Patents” was their misleading headline. How come they never wrote anything about any of the decisions where CAFC looked into software patents and found them invalid? Well, such is the nature of selling agenda (and one’s own services)…

The US Supreme Court Might Soon Tighten Patent Scope in the United States Even Further, the USPTO Produces Patent Maximalism Propaganda

Posted in America, Courtroom, Patents at 10:23 am by Dr. Roy Schestowitz

Interesting timing as the USPTO has just come under criticism from the Government Accountability Office (GAO) for issuing far too many patents

GAO logo

Summary: A struggle brewing between the patent ‘industry’ (profiting from irrational saturation) and the highest US court, as well as the Government Accountability Office (GAO)

The Supreme Court in the US (SCOTUS) has contributed a lot to woes for patent lawyers and a relief to software developers. It is abundantly clear that Mayo and Alice are being taken quite seriously by lower courts, especially the Court of Appeals for the Federal Circuit (CAFC).

“In short, this is just self-serving USPTO propaganda, serving perhaps to distract from the recent GAO report which chastised the USPTO for patent maximalism.”It is not hard to see that patent lawyers are frightened and mortified by SCOTUS and CAFC, both of which have been limiting patent scope more so than district courts and the USPTO (trying to just maximise its own income rather than provide a service*). Design patents may be next to be axed by the US Supreme Court, as we noted earlier this year (in summertime) and various maximalists of patents speak about it, including Watchtroll [1, 2] (the Kool-Aid of patent law firms if not somewhat of a lobbying site).

“USPTO publishes new estimates of “IP-Intensive” industries, spin results,” according to KEI (very good Web site by the way). “We have seen same spin in Europe,” Benjamin Henrion wrote. To quote all the key points about this think tank-esque activity:

USPTO has just published its new estimates of “IP-intensive” jobs for the US economy. The report is titled: Intellectual Property and the U.S. Economy: 2016 Update, and is available as a PDF file here. USPTO press release here:

I took a quick look at the report, and below are some initial bullet points:

1. In the new USPTO study of “IP-intensive” jobs, 85 percent are included because of trademarks.

2. Just 14 percent of the “IP-intensive” jobs involve patents.

3. 20 percent of so called “IP-intensive” jobs involve copyright industries.

4. Just 2 percent of the “IP-intensive” jobs involving patents are in the pharmaceuticals sector.

5. According to USPTO, less than 1 percent of all “IP-intensive” jobs are in the pharmaceutical sector.

6. USPTO’s top three “IP-intensive” industries are:

Grocery stores: 2.6 million jobs
Computer systems design: 1.8 million jobs
Management consulting: 1.4 million jobs

7. According to USPTO, a “majority of patenting firms are in the services and wholesale sectors.”

8. According to USPTO, the “Sound recording Industries” only provide 23.5 thousand jobs which is 0.0008 of all “ip-intensive” jobs.

9 Almost none of USPTO’s copyright sector jobs benefit from long copyright terms.

In short, this is just self-serving USPTO propaganda, serving perhaps to distract from the recent GAO report which chastised the USPTO for patent maximalism. Our next post will look more closely at the software patents lobby.
___
* This new blog post from a patent maximalist (and longtime proponent of software patents for Bristows) says that there is “presumption of validity under US patent law,” but patent validity for pre-Alice patents is a joke because USPTO approved almost every application and by some standards it's estimated that as much as 92% of applications eventually led to a grant. To quote the maximalist, writing about ChIPs Global Summit: “The panel also noted that the presumption of validity under US patent law assists the patentee in showing that they have something of real value and that the burden of proving that the patent is invalid falls on the other side. However, in reality if we took a poll, many would comment that there are a lot of weak patents out there. It was suggested that perhaps the focus therefore should be on patent quality so that the presumption of validity and the standard of evidence to rebut that presumption (clear and convincing) is actually appropriate. Just because a patent has survived one patent challenge does not mean that the patent is necessarily stronger. If the patent has survived a challenge in front of a really good judge, then the panel noted that that may deter opponents. However, in reality, that decision is not binding on anyone who is not party to that case. Those parties will try a different tactic before different judges in a different forum. This is of course correct – it is not fair to an absent party to be faced with the bias of a decision in a case they had no right to participate in. There cannot be a time bar for bringing a challenge to a patent in district court as potential litigants and controversy may not be in existence at the time of the first action.”

Patent Trolling a Growing Problem in East Asia (Software Patents Also), Whereas in the US the Problem Goes Away Along With Software Patents

Posted in America, Asia, Patents at 9:50 am by Dr. Roy Schestowitz

Section 101 is like patent reform 101

Korea software patents

Summary: A look at two contrasting stories, one in Asia where patent litigation and hype are on the rise (same in Europe due to the EPO) and another in the US where a lot of patents face growing uncertainty and a high invalidation rate

AS SOFTWARE DEVELOPERS often insist, copyrights are enough for them. These protect against misuse, plagiarism and so on. Software patents, given the inability to inspect binary files and properly study them, don’t add any more protection.

A patent law firm from South Korea (i.e. parasites that make no actual software) started the week by trying to make a case for software patents (see the above screenshot). Here is the opening part which speaks of rejection of such patents:

In recent years, there has been substantial interest in changing existing law and practice in order to expand the protection for computer program inventions. The Korean Intellectual Property Office (KIPO) sought to enact such a change by officially releasing its revised Examination Guidelines for Computer-Related Inventions on July 1 2014. Three months later, an amendment bill to the Patent Act was submitted to the National Assembly, which attempted to broaden the scope of protection for computer-related inventions (eg, by opening up the possibility of patentees bringing infringement claims against online sellers of an allegedly infringing computer program, something which would not be subject to infringement liability under the guidelines). The National Assembly seemed to recognise that the proposed amendments could have profound effects on the software industry and thus rejected them, noting that more opinions from the industry were needed to gain a consensus on this issue.

As we have already seen in the case of LG and Samsung, Microsoft utilises software patents so as to extort OEMs in South Korea and this month it is pursuing even more money, in essence trying to tax Linux (we wrote about that twice last week). In addition to that, Microsoft creates and arms patent trolls that go after Linux and/or Android. We gave many examples of that in the past and earlier this month we warned that patent trolling was becoming commonplace in China and other countries in east Asia. IAM ‘magazine’ does not quite see what the problem is and today it has this new article about a silent passage of patents to Oppo, after concerns about the US ITC targeting companies in Taiwan (where many products are actually made) without even a proper trial, imposing massive sanctions that are absolute and ruinous. When companies such as Microsoft use the US ITC in an attempt to simply embargo the competition, using patents that are often dubious (USPTO does a shoddy job), everybody loses. Regarding the problem of trolls in Asia, we see more and more articles from IAM. In the US, says IAM, trolling activity has gone down and Joff Wild finally uses the T word (troll):

The week before last I hosted a webinar for IAM Market entitled Readying a Patent Portfolio for Sale: What You Need to Know to Be Successful. Over 350 people signed up to get the materials and the recording, while close to 200 listened live as presenter Kent Richardson, a partner at Silicon Valley-based Richardson Oliver Law Group, talked through his slides and then answered questions from me and from attendees. It was a fascinating hour, which my colleague Jack Ellis has written up in a blog for the IAM Market knowledge centre (where there are also details about how you can get hold of the presentation, talk and interview).

This week I am in Gothenburg for the CIP Forum and yesterday at a session about defensive patent aggregation something that Kent (who is also here and took part in the session) said during the webinar came back to me. As a firm that does a lot of transaction-based work, ROL closely monitors activity in the patents sales market, in particular packages being offered by brokers. IAM subscribers will know that each year ROL produces an update for us about the activity it is seeing in areas such as pricing, sales rates, package sizes and so on – the next one will be published in issue 81 of IAM, which comes out at the end of November. One of the things it is set to show, Kent stated in our conversation, is that prices finally seem to have stabilised, essentially because they probably could not go any lower, and that for the first time it looks like operating companies are buying more than NPEs are.

Coming from a trolls denialist, the above is interesting. If it’s true that trolls have shrunk somewhat (in terms of activity like litigation and acquisitions), then we suspect it has a lot to do with the demise of software patents, as we foresaw all along. Later today we’ll show how the US patent microcosm tries to change things for the worse again.

The EPO’s Continued Push for Software Patents, Marginalisation of Appeals (Reassessment), and Deviation From the EPC

Posted in Europe, Patents at 8:56 am by Dr. Roy Schestowitz

Quality control is just a theoretical concept in Battistelli’s EPO, where the goose is being slaughtered for a golden egg

Summary: A roundup of new developments at the EPO, where things further exacerbate and patent quality continues its downward spiral

THE scandals at the EPO are an endless saga and a bottomless pit. Board 28 needs to act fast because the Administrative Council sure behaves like it does not care or like it’s trying to save face for Battistelli.

“Patent scope (limitation) seems to be viewed as a nuisance at the upper echelon/top floors of the EPO’s building in Munich.”“According to the minutes of the last meeting of Board 28,” one person wrote, “the president provided “new elements of information [...] on the disciplinary case of a Council appointee. Following an exchange of views, [the Board] indicated that it would reflect on the information, pending receipt of a legal note from the President.”” the thing about the Board is, it previously said Battistelli's regime had caused an EPO "crisis". We are planning to revisit this subject pretty soon. Has the Board said anything about the decline in quality and loss of stakeholders' interest which is very apparent? Therein lies a crisis as big as the social crisis. The EPO cannot survive without a reputation. It won’t attract applicants or even highly-qualified staff.

Watch this new tweet from the EPO, which links to the EPO’s own site and says: “From today, you can register for the Indo-European conference on Industry 4.0 and patents” (Industry 4.0 is just a meaningless buzzword).

Not too shockingly, software patents (in Europe) have been interjected into it (the fourth time we see it this month alone!). To quote the page (emphasis ours): “The consequences for the patent system are potentially tremendous, and they challenge some of the fundamental concepts of the system, such as the definition of “industry” and “inventor”. There will be a greater overlap and interplay between the types of rights, and as software pervades through all technologies a greater debate on the patentability of software.”

Patent scope (limitation) seems to be viewed as a nuisance at the upper echelon/top floors of the EPO’s building in Munich. These guys are nuts; they’re neither scientists nor good managers. They’re mostly old buddies of Battistelli, loyal to him and telling him mostly what he wants to hear. They attack everything which voices criticism as though it’s an enemy, including the independent (in principle) boards of appeal.

“We understand from correspondence with the EPO that this change in practice has been made following investigations by the Legal Division resulting in an acknowledgement that the current procedures for recording an assignment are not consistent with Article 72 EPC.”
      –Lexology
“The EPO to bring opposition proceedings in standard cases down from 25,8 months to 15 months,” Nordic Patent (Kongstad-connected) says, citing “Heli Philajamaa from EPO” (the EPO has just retweeted this).

Here is a simple translation for those who believe the lie that the appeals are still taken seriously (rather than gradually crushed): The EPO does not want oppositions. It wants to make them harder, more expensive, etc. It suppresses them. Heck, it does not even want patent quality anymore.

The EPO’s “current procedures for recording an assignment are not consistent with Article 72 EPC,” says this new report, but it’s not as though the EPC ever bothered Battistelli. He ignores it at every turn and corner, as we noted earlier this year. The thugs at Eponia basically declared a state of emergency and are now just doing whatever they please, even when that’s against national and international laws. Here is what contributors to Lexology said:

However, we have been made aware that, with immediate effect, the EPO will only record an assignment if it is signed by all parties to the agreement. An assignment signed by the assignor(s) only will be considered to be deficient. We understand from correspondence with the EPO that this change in practice has been made following investigations by the Legal Division resulting in an acknowledgement that the current procedures for recording an assignment are not consistent with Article 72 EPC.

This change in practice has not yet been publicly announced by the EPO. However we are aware from practical experience that the new practice is already in effect and have been informed that the Guidelines for Examination will be updated shortly. There is no indication that the EPO plans to revisit assignments already recorded under the previous practice.

At this stage it seems almost as though it’s too late to save the EPO. It’s too hard to save something whose top management does not want it to be saved (they just try to save their own career, not the Office, or simply save face).

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