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07.17.18

Yesterday’s Misleading News From Team UPC and Its Aspiring Management of the Unified Patent Court (UPC)

Posted in Deception, Europe, Patents at 1:58 am by Dr. Roy Schestowitz

Alexander Ramsay, Bristows, and the UPC gold rush
Rumours said that Battistelli intended to pursue the top position in the UPC (reserved for a French person)

Summary: The Unified Patent Court (UPC) enthusiasts — i.e. those looking to financially gain from it — continue to wrestle with logic, manipulate words and misrepresent the law; yesterday we saw many law firms trying to make it sound as though the UPC is coming to the UK even though this isn’t possible and UPC as a whole is likely already dead

Team UPC and EPO management (notably Battistelli and his chosen colleagues at the top) have long spread lies about the Unitary Patent or Unified Patent Court (UPC). This isn’t entirely surprising because lying has become the norm in those circles. We’d like to take a moment to remark on belated coverage from patent law firms, which continue to twist words for the “greater good” which is their profits.

“…there’s nothing in the paper that suggests ‘unitary’ patent participation, only aspiration to “explore” the possibility/prospect.”Some UPC spin was posted yesterday by Life Sciences Intellectual Property Review, a site which champions the "Life Science" agenda (calling life itself a science to facilitate patents on life/nature); the British government admits the issue with UPC and then issues a paper which is instantaneously distorted by Team UPC, as one might expect. Well, there’s nothing in the paper that suggests ‘unitary’ patent participation, only aspiration to “explore” the possibility/prospect. Now watch what this site made of it, citing a legal expert/firm:

Truscott noted that while it’s a relief to see IP specifically mentioned, there remains significant uncertainty around the Unified Patent Court (UPC) and the unitary patent. The life sciences section of the UPC’s central division is planned to be based in London.

“The UK has ratified the UPC Agreement and intends to explore staying in the court and unitary patent system after the UK leaves the EU,” said the White Paper.

Whether this is possible will depend on the ability for the participants to agree to modify the existing agreement, said Truscott.

He added: “This could ultimately be beneficial if it were to allow for other non-EU countries to join, so that the UPC could perhaps ultimately act as the court for all contracting states to the European Patent Convention and provide a true one-stop shop for litigants.”

For Bacon, the UPC system would represent the most important change ever seen in the European patent landscape, and the continued involvement of the UK would be welcomed by the life sciences industry.

The “life sciences industry”? That’s just a euphemism for an ‘industry’ that’s pursuing patents on life — something which is currently not legal in pertinent European nations. Speaking of this “life science/s” label, mind Patent Docs pushing this envelope again yesterday (by Bryan Helwig) and the same in Managing IP yesterday. “In-house counsel, private practice lawyers and scientists discussed life sciences advancements such as the move towards personalised medicines, at the Hogan Lovells Life Sciences Summit,” Patrick Wingrove wrote.

“The “life sciences industry”? That’s just a euphemism for an ‘industry’ that’s pursuing patents on life — something which is currently not legal in pertinent European nations.”Team UPC hopes that UPC can miraculously expand patent scope overnight, enabling for example software patents and patents on life/nature in member states where these are currently illegal. They try to bypass national courts and national patent offices. It’s pretty obvious.

Herbert Smith Freehills LLP’s Mark Shillito, Laura Deacon and Peter FitzPatrick have also just written about the above. Quoting the relevant part:

Opinions vary on the likelihood of whether the UK could continue as part of the UPC and Unitary patent system post-Brexit. The Foreword to the White Paper by the Prime Minister states that the proposals in the White Paper would end the jurisdiction of the European Court of Justice in the UK. It is not clear whether the UK would nevertheless accept the role of the European Court of Justice in respect of references from the UPC on matters of European law.

They cannot. They said so just a couple of weeks back. Novagraaf (another legal firm) said this yesterday:

On the former, it announced plans to establish its own GI scheme after exit; on the latter, it simply states that it ‘intends to explore’ staying in the Unified Patent Court and UP system after the UK leaves the EU (click here for more on the unitary patent).

The key part is “explore” or “intends to explore”. This is not actually possible and the government knows it. But Bristows is now paying (we assume) that same site to push its lie that “UK confirms it will seek to remain in the unitary patent and Unified Patent Court after Brexit” (that word, “confirms” being the word of choice, has been common among UPC boosters).

“Team UPC hopes that UPC can miraculously expand patent scope overnight, enabling for example software patents and patents on life/nature in member states where these are currently illegal.”Here is another new analysis from yesterday (there were about half a dozen yesterday alone) and a new comment from IP Kat, citing Article 23 EPC:

I think that you are slightly missing the point that I was trying to make about possible actions of the President of the UPC (Court of Appeal). My point was not that legal mechanisms exist that a “malign” President could validly exploit. Rather, it was that the mechanisms to counter a “malign” President that has overstepped the mark (ie contravened the rules) are unreliable, toothless and/or non-existent.

Ten years ago, and based upon Article 23 EPC, one could have made the case that there was “legally no risk that a judge, how irksome he might be, be removed from office by the President of the EPO”. We all know how that worked out in practice.

It is meanwhile being reported that “UKIPO patent applications decline” (news headline) and this doesn’t sound like a negative thing if patents are more selectively applied for, e.g. based on better quality/higher bar. To quote:

Patent applications made directly to the UK Intellectual Property Office (UKIPO) have seen a decline between 1995 and 2017.

According to a report on trends from the UKIPO, there was a decline in patent applications at the office, but applications filed at the European Patent Office (EPO) are continuing to rise, especially those filed at the EPO designating the UK.

The report notes that Brexit is a possible reason why applicants are seeking alternate routes.

Also highlighted, is the increase of international applications filed using the Patent Cooperation Treaty (PCT).

Applicants of UK residency make up the greatest share of applications at UKIPO, although the share of applications from non-residents increased to 40 percent in 2017.

“UK trademark applications soar over 22-year period,” another new headline (WIPR) said yesterday, so it’s not as though UKIPO is running out of work. In fact, it claims to be hiring.

“It’s passing all the powers to patent maximalists in the same way copyright maximalists strive to take total, complete control over the EU.”Another article of interest was published yesterday by Allen & Overy LLP’s Marjan Noor and James Fox under the headline “English Court of Appeal rejects the EPO’s “serious contemplation” test for anticipation by prior disclosure overlapping with later patent. This makes one wonder what will happen to confidence in European Patents:

In the case of Jushi Group v OCV [2018] EWCA Civ 1416, the Court of Appeal has considered the question of the relevant test to apply when assessing whether a prior disclosure of numerical ranges will anticipate a later claim to overlapping numerical ranges.

The Patent at issue relates to the composition of a type of glass which is capable of being formed into fibres. Claim 1 of the Patent specifies a list of constituents for the claimed glass, along with a range of percentages by weight for each constituent as a proportion of the whole.

A prior art patent called “Neely”, referred to in the description of the Patent, disclosed a glass with the same constituents and similarly specified the percentage by weight as a proportion of the whole. It was common ground that the range of each of seven of the constituents in Neely fell entirely within the ranges specified in the Patent for that same constituent, and the ranges for a further six constituents overlapped with them.

UPC is all about taking low-quality European Patents to court, fast-tracking potential sanctions (like embargo, raids) without hearings in the accused party’s language, without proper chance of appeal in one’s national courts, without assurance of independence for judges and so on. It’s like DMCA takdowns. UPC is tarnishing the stated goals of the EU in the same sense that the “link tax” and “censorship machines” (copyright proposals) do. It’s passing all the powers to patent maximalists in the same way copyright maximalists strive to take total, complete control over the EU. The copyright maximalists have thus far failed (the first round at least); so will patent maximalists.

Time for the European Commission to Investigate EPO Corruption Because It May be Partly or Indirectly Connected to EU-IPO, an EU Agency

Posted in Europe, Patents at 1:01 am by Dr. Roy Schestowitz

Background: Fresh Allegations That the Belgian EPO Delegation is Compromised or in Cahoots With Benoît Battistelli

Wins the bid

Summary: The passage of the top role at the EU-IPO from António Campinos to Christian Archambeau would damage confidence in the moral integrity of the European Council; back room deals are alleged to have occurred, implicating corrupt Battistelli

IN THE UNITED STATES one office deals both with patents and trademarks. The USPTO also falls/rests under the wing of the government and isn’t enjoying diplomatic immunity. The EPO is an inherently different and rather bizarre creature. It’s the creation of an old treaty, which isn’t even being respected anymore (the EPC).

Then there’s the EU-IPO (or EUIPO), which deals with trademarks. It renamed itself a few years ago and it is now more apparent that it’s an EU body.

Based on yesterday’s sole tweet from the EPO (it’s very unusual for the EPO to post just one tweet in a whole day; the average is about 10), it looks like the EPO has begun doing ‘ads’ for the EU-IPO (where the new EPO President, António Campinos, came from just 2.5 weeks ago). To make matters even more awkward, patents and trademarks are advertised in tandem, for the first time in a very long time. We never saw this before. “Trade marks can add value to patents and extend protection beyond the life of the patent,” they wrote.

What a bizarre thing to say. Trademarks are very different from patents. Very different. The comparison is therefore rather bizarre, unless perhaps they allude to design patents alone.

“The EPO is an inherently different and rather bizarre creature. It’s the creation of an old treaty, which isn’t even being respected anymore (the EPC).”We are meanwhile trying to make sense of what Christian Archambeau at the EU-IPO would mean, knowing he used to work at the EPO and there seems to have been a rumour about him, which is only further substantiated by recent developments. Are people hired and appointed based on experience and merit or based on nepotism, connections and favours? It seems like a back room deal, not a proper appointment, and it therefore must be probed by EU officials. Do we want the culture of crooked appointments at the EPO to spread to the EU as well?

Archambeau’s appointment is not entirely confirmed yet (we relied on an automated translation from German initially), but it looks like it’s going that way. Yesterday one publication said that “EUIPO close to naming new executive director” (in the headline). “The Permanent Representatives Committee (COREPER) has voted to recommend that Christian Archambeau,” it said, “currently the acting general director of the EUIPO, be appointed on a permanent basis. While the recommendation needs to be formalised, this last step is expected to be a formality.”

“Do we want the culture of crooked appointments at the EPO to spread to the EU as well?”Does Battistelli play a role in it? How about Campinos? Rumours we heard last year suggested that they were making exchanges — a sort of “musical chairs”. That might be a form of corruption. As in, “you give you this position, I give this other position to your friend, your spouse, your colleague, then you give me this vote and I’ll give you one in return etc.”

Something isn’t right here. The news about Archambeau originally showed up in German media over the weekend. Yesterday the English media caught up (e.g. [1, 2] and said:

A European Council committee has proposed that the former deputy director of the European Union Intellectual Property Office (EUIPO), Christian Archambeau, should succeed António Campinos as head of the office.

On Friday, July 13, the Permanent Representatives Committee, which is responsible for preparing the work of the Council, voted to recommend Archambeau as executive director.

The appointment is expected to be formalised in an upcoming Council meeting.

One needs to ask what the Permanent Representatives Committee knows, what it was told by Campinos, and what Campinos was told by Battistelli while Battistelli was lobbying for Campinos to receive his seat. Things aren’t as simple as they seem.

“Investigative journalists ought to take a good look at the events leading up to that. The EU/EC could potentially be stained by this.”“Appointment [of Archambeau is] expected to be a formality after European Council permanent representatives committee votes for acting EUIPO executive director to take role permanently,” Michael Loney wrote last night.

So the European Council plays a role in this. Investigative journalists ought to take a good look at the events leading up to that. The EU/EC could potentially be stained by this. It would be a bad thing for Europe.

07.16.18

Alliance for US Startups and Inventors for Jobs (USIJ) Misleads the US Government, Pretending to Speak for Startups While Spreading Lies for the Patent Microcosm

Posted in America, Deception, Patents at 12:12 am by Dr. Roy Schestowitz

Alliance for U.S. Startups and Inventors for Jobs (USIJ)

Summary: In the United States, which nowadays strives to raise the patent bar, the House Small Business Committee heard from technology firms but it also heard from some questionable front groups which claim to support “startups” and “jobs” (but in reality support just patents on the face of it)

More than a decade ago we wrote quite a lot about front groups like ACT and Computing Technology Industry Association pretending to speak for small businesses whilst actually speaking for Microsoft (in exchange for money).

Days ago there was a hearing/debate similar to those infiltrated by ACT (they have renamed since). Watchtroll called it an “Anti-Patent Panel” and obsessed over talking points from Chris Israel, Executive Director of Alliance for US Startups & Inventors for Jobs. It’s just preaching to patent maximalists, who are a tiny minority (less than one in a thousand US citizens). CCIA has already responded to Chris Israel’s claims, labeling them misleading and worse. For example:

Israel complains that there’s been an increase in investment in social networks, platforms, software apps, B2C technologies, and financial services. He claims that “these are not sectors that are investing heavily to push the outer boundaries of science and technology to remain competitive in a global market.”

But that’s simply false.

For example, social network and platform companies have invested billions of dollars in developing new software improving the efficiency of high-performance databases and new technologies that enable more efficient data centers for large-scale computing. Without that kind of technology, data centers like the ones that are enabling current advances in AI and drug discovery aren’t feasible. In fact, next week the National Institutes of Health are holding a workshop—participants will “hear from leading industry experts and scientists who are employing AI/ML in biomedical research settings.”

That’s not the only connection to AI, either. Social networking and platform companies have invested in (and released for public use) basic AI research, producing tools like TensorFlow (Google) and PyTorch (Facebook). These direct products also have follow-on impacts, enabling others to push the outer boundaries of science and technology.

There’s a ton of amazing work going on out there in AI right now. A lot of small companies are creating new ideas built on a machine learning substrate.

But that machine learning substrate probably utilizes one of those AI tools produced by a social network or platform company, and many of them run on ubiquitous compute platforms like Amazon Web Services provided by B2C service companies. Those “platform” and B2C VC investments that Israel is complaining about are why AI is now within the reach of any company, not just companies with the capital to build their own compute farm.

And once a small company has built their AI-driven product? That small company can begin selling to anyone, anywhere, using a service like Amazon or eBay’s B2C platforms.

Why have there been so many lies?

Thomas A. Hemphill meanwhile promotes the ‘STRONGER’ (actually weaker, low quality) Patents Act. This misguided anti-PTAB bill died last summer and will die again this summer, more so in light of Oil States. Here is what Hemphill wrote:

In March, Reps. Steve Stivers, R-Ohio, and Bill Foster, D-Illinois, introduced the Support Technology & Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patents Act of 2018.

This bill has a companion piece of the same name in the Senate, co-sponsored by Sens. Chris Coons, D-Delaware, Tom Cotton, R-Arkansas, Dick Durbin, D-Illinois, and Mazie Hirono, D-Hawaii.

[...]

Heard before the Patent Trial and Appeals Board (PTAB), an inter partes review (IPR) is a trial proceeding where a non-patent owner may challenge (after either nine months’ post-grant patent-grant, or after the termination of a post-grant review, whichever occurs later) the validity of a patent based on prior art patents and publications.

[...]

Not surprisingly, this list of organizations does not include the biggest Silicon Valley companies — Apple, Google, Intel and Cisco, whose business models involve products with “patent thickets” of hundreds or even thousands of patents, in contrast to life sciences or small software and hardware companies who may have three to five patents protecting their product investment. For these tech giants, the status quo is working just fine.

[...]

Creative legislative and executive branch solutions, based on industry characteristics, can go a long way in ameliorating the patent validity issue.

This is being framed as a fight between technology giants and pharmaceutical giants, but as we explained in past years it’s a totally bogus framing that seeks to mislead readers. What we really have here is a fight between patent maximalists (e.g. law firms) and everybody else, including a lot of pharmaceutical companies (maybe not the very big ones) and especially generics. On the technology side both large and small companies support PTAB; we can think of no exception to that. Patent trolls with software patents aren’t technology companies but litigation operations. Like we said last week, groups which claim to support the bill led by Thomas Massie and Marcy Kaptur (and advertised by patent trolls, as one might expect) don’t help small businesses but merely harm them, just like the Alliance for US Startups and Inventors for Jobs (USIJ) does. It makes one wonders what members they have and what motivations are there; grossroots or AstroTurfing?

07.15.18

‘Blockchain’, ‘Cloud’ and Whatever Else Gets Exploited to Work Around 35 U.S.C. § 101 (or the EPC) and Patent Algorithms/Software

Posted in America, Europe, Patents at 11:39 pm by Dr. Roy Schestowitz

Hype waves that technical people can’t quite make sense of (so they issue a patent anyway)

50 cents

Summary: Looking for a quick buck or some low-quality patents (which courts would almost certainly reject), opportunists carry on with their gold rush, aided by buzzwords and hype over pretty meaningless things

Dallas, Houston and other large Texan cities have been trying to attract patent trolls with their software patents that courts in Texas would blindly accept after the USPTO granted them (instituted a monopoly). It was a short-sighted strategy because it’s a deterrence for practising companies, more so after TC Heartland (a decision issued by SCOTUS just over a year ago).

A patent boosters’ site, “Dallas Invents” (or “Dallas Innovates”) being its name, took note of some recent patents. From the summary:

Patents granted include Toyota’s steering wheel that illuminates via touch; AT&T’s electrical switch that generates signals through acoustic inputs; Frito-Lay’s method for removing part of a food product through an “abrasive stream”; and Conduent Business Services’ method to create a classifier that predicts a user’s personality type.

A lot of these are software patents, including the “method to create a classifier that predicts a user’s personality type.” These are, once again, just software patents disguised as something else — something that a Patent Trial and Appeal Board (PTAB) inter partes review (IPR) would likely characterise (to reject) as abstract under Section 101 (35 U.S.C. § 101). Is the USPTO asleep at the wheel? Has it not been paying attention to SCOTUS and CAFC (Federal Circuit) decisions? Even District Court cases are nowadays mostly rejecting such patents. Towards the end of the week, for instance, Donald Zuhn covered a District Court case in which one party was “arguing that the claims of the ’831 patent are invalid under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter and for being void of any inventive concept.”

It’s about DNA, not software. From Patent Docs‘s concluding part:

The District Court therefore determined that the ’831 patent is directed to patent-ineligible subject matter.

With respect to the second step of the patent eligibility analysis, Natera argued that the ’831 patent does not contain an inventive concept because the selective enrichment of DNA in the patent involves well-known, routine, and conventional amplification techniques. Illumina responded by arguing that the ’831 patent improves upon prior art techniques by addressing a need for selective enrichment of DNA sequencing for aneuploidy analysis to avoid producing non-target amplification products.

In denying Natera’s motion, however, Judge Illston determined that “at this stage in litigation the factual record is not sufficient for the Court to conclude whether there is an inventive concept.” In particular, the District Court noted that it “cannot determine whether the amplification of ‘at least 100 different non-random polynucleotide sequences’ and the performance of ‘successive rounds of amplification using primers that are directed to sequences within the products of prior amplification reactions’ are routine or conventional” (emphasis in order). In addition, the District Court noted that it “cannot determine whether the claimed selective enrichment leads to a technological improvement.”

Watchtroll has just found an opposite example — one which involves drugs rather than DNA:

AstraZeneca owns the ‘237 and ‘767 Patents, which are directed to pharmaceutical formulations, intranasal administration devices, or aqueous solutions of zolmitriptan, a selective serotonin receptor agonist. The ‘237 and ‘767 Patents are embodied in Zomig® (zolmitriptan), a nasal spray AstraZeneca developed for the treatment of migraines. In 2012, AstraZeneca and Impax entered into an exclusive agreement for the distribution, license, development, and supply of Zomig®. In June 2014, Lannett filed an Abbreviated New Drug Application (ANDA), seeking approval for a generic version of Zomig® Nasal Spray, alleging non-infringement and/or invalidity of the ‘237 and ‘767 Patents.

Obviousness could not be established in this case and it’s considered patent-eligible subject matter. But what about software?

What we’ve been finding more and more of (over the past year or two) is the use or misuse of buzzwords. Richard Kemp from Kemp IT Law, for instance, has just perpetuated this lunacy of calling software patents "cloud" in order to bypass the rules (using a buzzword that typically means server/s). From the article:

The migration to the cloud and transformation to digital now so visibly under way are moving intellectual property (IP) centre stage as all businesses become software companies.

[...]

Waiving LOT membership fees suggests expectations are defensive rather offensive. In this use case, access to a large defensive portfolio like Microsoft’s Azure IP Advantage should also be considered.

He’s promoting Microsoft’s protection racket, “Azure IP Advantage” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20] as well as LOT Network.

Elsewhere in the news, e.g. these two pages [1, 2] (“IBM Receives Six Blockchain Related Patents In One Week”) we’re seeing patent thug IBM. It is still harvesting bogus software patents by calling them “blockchain”, “AI”, and “cloud”. In this particular example:

IBM is actively working on innovations in the distributed ledger technology (DLT). In the span of a week, the US tech giant was awarded six blockchain-related patents by the United States Patent and Trademark Office (USPTO). Two of the patents were awarded on Thursday, while four patent applications were approved last week.

“Blockchain” has become a catch-all phrase for “database” in some contexts (or simply storage). Servers are “cloud”. Algorithms are “AI”. Watch what Typerium is doing [1, 2]; it’s pursuing bogus software patents that PTAB would likely reject as abstract under Section 101, but with words like “Innovative” and “Blockchain” maybe these applications will be successful. Blockchain has become the hype/buzzword of choice these days [1, 2], especially in the financial sector when one seeks patents on software/business methods.

Software patents on DRM, for example, are something to be condemned, not hailed/celebrated. But what happens when the term “blockchain” is thrown in [1
2]? CoinGeek and other cryptocurrency-centric sites were absolutely giddy about it [1, 2, 3]. nChain pretends that it is “Open Source”, but actually it’s a force for bogus software patents (even in Europe or the EPO). No such thing can ever help Free/Open Source software and because the patents pertain to digital rights management (DRM) it couldn’t get any worse. “nChain,” one item says, “the global leader in research and development of blockchain technologies, is pleased to announce issuance of another three patents by the European Patent Office. These three patents, issued on July 11, 2018, are all methods to enforce digital rights through the use of blockchain technology.”

Watch the EPO falling for buzzwords:

European Patent (EP) No. 3295349, entitled “A method and system for verifying integrity of a digital asset using a distributed hash table and a peer-to-peer distributed ledger,” describes a system that uses a standard BCH transaction, with additional metadata, to reference an entry within an external distributed hash table (DHT). To show the integrity of a digital asset, its signatures must align with the signatures on the DHT as well as the signature on the blockchain transaction itself.

The second patent, EP3295362, is for “A method and system for verifying ownership of a digital asset using a distributed hash table and a peer-to-peer distributed ledger.” Just as its name suggests, this invention adds another set of cryptographic operations based on the first patent’s technique to validate a digital asset’s current owner.

Finally, there’s EP 3295350. This invention, titled “A method and system for verifying ownership of a digital asset using a distributed hash table and a peer-to-peer distributed ledger,” is described as a logical extension of the technique in EP 3295362, which allows a computer software to check the user’s right to execute it before the software is launched.

Why are these patents being granted? That’s software! Here’s more from Bitcoin News:

The blockchain technologies research and development firm, Nchain, has acquired three new patents that have been issued by the European Patent Office. The company’s latest intellectual property invented by Nchain’s chief scientist, Dr. Craig Wright, cover “digital rights management using blockchain.”

nChain, as we noted here before, seems to be doing nothing but harvesting software patents (even at the EPO where it’s not allowed). It’s even buying patents. Lawsuits to come? It these patents ever get tested in courts (in Europe or elsewhere), expect them to perish. But at what cost to innocent defendants?

PTAB Defended by the EFF, the R Street Institute and CCIA as the Number of Petitions (IPRs) Continues to Grow

Posted in America, EFF, Patents at 9:52 pm by Dr. Roy Schestowitz

Things one can accomplish with pen and paper just aren’t patent-eligible anymore

Just pen and paper

Summary: Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) come to the rescue when patently-bogus patents are used, covering totally abstract concepts (like software patents do); IPRs continue to increase in number and opponents of PTAB, who conveniently cherry-pick Supreme Court (SCOTUS) decisions, can’t quite stop that

THE encouraging developments at the USPTO mostly revolve around invalidations. And why? Because many patents had been granted in error over the decades, all this (or most of this) prior to AIA, whereupon many of these were taken away. It’s no secret that the EFF speaks out in support of PTAB, for instance, which is why the anti-PTAB lobby hates the EFF so viscerally. PTAB basically helps raise patent quality in the US. PTAB is being regularly defended by the EFF and also by the R Street Institute and CCIA, as the EFF noted a few days ago. To quote:

It’s already much too difficult to invalidate bad patents—the kind that never should have been issued in the first place. Now, unfortunately, the Patent Office has proposed regulation changes that will make it even harder. That’s the wrong path to take. This week, EFF submitted comments [PDF] opposing the Patent Office’s proposal.

Congress created some new kinds of Patent Office proceedings as part of the America Invents Act (AIA) of 2011. That was done with the goal of improving patent quality by giving third parties the opportunity to challenge patents at the Patent Trial and Appeal Board, or PTAB. EFF used one of these proceedings, known as inter partes review, to successfully challenge a patent that had been used to sue podcasters.

Congress didn’t explicitly say how these judges should interpret patent claims in AIA proceedings. But the Patent Office, until recently, read the statute as EFF still does: it requires the office to interpret patent claims in PTAB challenges the same way it does in all other proceedings. That approach requires giving the words of a patent claim their broadest reasonable interpretation (BRI). That’s different than the approach used in federal courts, which apply a standard that can produce a claim of narrower scope.

Using the BRI approach in AIA proceedings makes sense. Critically, it ensures the Patent Office reviews a wide pool of prior art (publications and products that pre-date the patent application). If the patent owner thinks this pool is too broad, it can amend claims to narrow their scope and avoid invalidating prior art. Requiring patent owners to amend their claims to avoid invalidating prior art encourages innovation and deters baseless litigation by giving the public clearer notice about what the patent does and does not claim.

[...]

We hope the Patent Office will reconsider its proposal, after considering our comments, as well as those submitted by the R Street Institute and CCIA, a technology trade group. Administrative judges must remain empowered to weed out those patents that should never have issued in the first place.

We regularly take note of the good work of the EFF (recent examples [1, 2]). It wasn’t always the case because the strategy/policy of the EFF used to be a tad different when it comes to software patents. One reader sent us the pointer to an article titled “No, you can’t patent the ability to pause a lesson recording, EFF says” (relating to the original from the EFF, which we mentioned before). Here’s their latest target:

The Electronic Frontier Foundation has stepped up to represent a small, independent online language teacher who has been threatened with a lawsuit by a British publisher that claims the teacher is infringing an American patent issued back in 2000 for a particular audio-based teaching technique.

What’s the secret sauce? Amazingly, the use of a pause button to temporarily stop the lesson.

Well, software patents are a stain on the patent system. The Office ought to stop granting these, as per Alice. But will it? At the moment many rely on courts (or PTAB) to do this. This is why courts have been coming under many attacks from patent maximalists. It’s pretty ugly to watch.

With borderline abuse, patent maximalists still try (almost every day) to discourage me from writing about patents. Little do they know that they only embolden me; if it upsets them, it means there’s impact. They just don’t like to see the “other side” expressing its views, hence the attacks on the EFF as well.

Dealing with two SCOTUS decisions regarding PTAB, this upcoming webinar has been titled “Protecting and Licensing University Patents in a Post-Oil States and SAS World” (they allude to immunity universities typically enjoy).

Michael Loney has meanwhile written about the latter decision, under a headline which later extended from “SAS appeal – how the Federal Circuit has interpreted PTAB cases” to “SAS appeal – how the Federal Circuit has interpreted PTAB cases since Supreme Court ruling” (why this revision? Clarity?).

We recently mentioned how they obsess over SAS rather than Oil States, the far more important decision.

All this cherry-picking of SCOTUS cases is quite revealing, as was yesterday’s promotion of a Practising Law Institute (PLI) webcast on WesternGeco. Loney’s colleague, Sanjana Kapila, is trying to figure out what Trump’s SCOTUS ‘coup’ means for patents, especially knowing what Gorsuch said about SAS and Oil States. Well, initially an "unknown" on the subject of patents, Gorsuch has thus far been a total disaster. As many feared, he now parrots talking points from think tanks funded by the Koch Brothers. To quote Kapila’s article:

The US Supreme Court ruled on three intellectual property cases this term, all concerning patents. This was far fewer than the eight IP cases in the previous term.

Loney is meanwhile taking note of key PTAB decisions, remarking that “PTAB designates five informative decisions” and to quote:

The Patent Trial and Appeal Board has designated five decisions as informative, two ex parte review and three inter partes review decisions

Dennis Crouch also listed these cases. He wrote: “The USPTO has recently designated five PTAB decisions as “informative.” (I have also included the recent Western Digital decision as well).”

On the 12th of July Loney revealed that filings/petitions (IPRs) were on the “up”, still. That means more patents being scrutinised. Here are the numbers:

June included an increase in Patent Trial and Appeal Board petition filing, two PTAB-related bills being introduced in Congress and the first reversal of a PGR final written decision

The first half of 2018 ended with 817 petitions filed at the Patent Trial and Appeal Board, up from 766 in the second half of 2017.

The Federal Circuit weighs in occasionally. Here’s a new example of “CBM Decision Vacated: the patent does not qualify as a covered business method.”

To quote Crouch:

Apple and Google both challenged ContentGuard’s U.S. Patent 7,774,280 under the Covered Business Method Post Grant Review proceedings. The challenges raised eligibility, novelty, and obviousness challenges to several of the claims, but the Director (acting via the PTAB) only partially instituted: instituting only on novelty and obviousness, and only to three of the claims. In the end, the PTAB found those claims obvious, but also allowed the patentee to add Claim 37 as a substitute for Claim 1 and found the new claim valid (not proven invalid).

On appeal, the Federal Circuit ruled the entire event a nullity — finding that the patent does not qualify as a covered business method. See Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1323 (Fed. Cir. 2015) and Unwired Planet, LLC v. Google Inc., 841 F.3d 1376, 1379 (Fed. Cir. 2016). A key case on point is also Secure Axcess, LLC v. PNC Bank National Ass’n, 848 F.3d 1370, 1381 (Fed. Cir. 2017). However, that case was vacated as moot by the Supreme Court in PNC Bank Nat. Ass’n v. Secure Axcess, LLC, 138 S. Ct. 1982 (2018).

The “Transitional Program for Covered Business Method Patents” is not codified within the United States Code (35 U.S.C. ___) because it is only a temporary program that sunsets in September 2020. Thus, the CBM program is generally cited as Section 18 of the Leahy-Smith America Invents Act.

Factual errors in Patently-O (not for the first time, either) were later noted by Patently-O itself. “On July 11,” Crouch said, “I wrote about the recent Federal Circuit decision in Apple v. ContentGuard. My post erroneously stated that the court found that the patent does not qualify as a “covered business method” patent. The court did not take that bold of a step of a reversal. Rather, the court vacated the PTAB’s finding that was based upon an improper legal standard and remanded for a reconsideration.”

This was mentioned some hours ago by Watchtroll.

Google too is involved in this fight because it is also affected. And after all, Google too has challenged ContentGuard’s patent number 7,774,280. Google is just harvesting patents nowadays (new example from the news); it is patenting software, relying on patents that restrict Public Domain material/knowledge and occasionally Google sues as well. One day PTAB will turn against Google itself, rendering its own patents invalid as well.

IAM/Joff Wild May Have Become a de Facto Media Partner of the Patent Troll iPEL

Posted in America, Asia, Patents at 8:53 pm by Dr. Roy Schestowitz

Now producing a puff piece every week

Some pig

Summary: Invitation to trolls in China, courtesy of the patent trolls’ lobby called “IAM”; this shows no signs of stopping and has become rather blatant

THE legal terrain in the US has become trolls-hostile, as we last noted yesterday. Having run short of opportunities in the gradually-reformed US (especially the courts, not the USPTO), some patent trolls now look at China for litigation opportunities. That includes iPEL, an unethical troll which calls itself “ethical” and even trademarked this term (“ethical NPE”).

“That includes iPEL, an unethical troll which calls itself “ethical” and even trademarked this term (“ethical NPE”).”Joff Wild and his colleagues/writers/lobbying team have been doing puff pieces for iPEL, e.g. [1, 2]; the matter of fact is that almost nobody else writes about it and they speak directly to the troll, issuing puff pieces (and threats) every week or so. Yesterday’s latest puff piece was about “game-changing patent case” and by “game” they mean “trolling”. To quote:

After all, $100 million of damages from one company indicates that there is considerable further upside in the wider industry or sector the patents cover. To hand over the ability to tap that amount of revenue for anything other than a huge sum of money would be extremely careless – to say the least. From what I know of the likes of Huawei, ZTE and others that iPEL has bought from, such as Panasonic, it’s hard to see them doing such a thing.

Although Yates has been a long-time player in the US monetisation [trolling] market – and filed over 500 suits during 2015 and 2016, before falling foul of Judge Gilstrap in the Eastern District of Texas last year – he does not seem to have done much work in China up to now. It is likely, though, that he has done plenty of research and spoken to a lot of people. They would surely have told him that discretion is the better part of valour in a jurisdiction that, although it generally treats plaintiffs well, is increasingly complex and political.

Yeah, trolls are “increasingly complex and political.” So are extortion rackets.

We suppose many of our readers already know what IAM stands for (e.g. lies for Battistelli and EPO revisionism). But one must understand that these people are shown in “news” feeds and apparently pay other sites to reprint this tosh.

“We cannot stress strongly enough that media covering patent issues is in an appalling state. It’s almost entirely PR; there’s barely any investigative, critical journalism in this domain.”Patent Docs is another mouthpiece of patent maximalists’ agenda. Webinars from the Intellectual Property Owners Association (IPO) and other proponents of software patents are still being advertised there this weekend (coming soon). It’s quite fitting that patent lawyers nowadays use the term “unclean hands” (brought up a lot recently). Webinars like this upcoming one deal with questions such as: “How will Supplemental Examination effect both unclean hands and inequitiable conduct?”

We cannot stress strongly enough that media covering patent issues is in an appalling state. It’s almost entirely PR; there’s barely any investigative, critical journalism in this domain. In the case of IAM, it’s borderline lobbying, pure and simple.

Cautionary Tale: ILO Administrative Tribunal Cases (Appeals) ‘Intercepted’ Under António Campinos

Posted in Europe, Law, Patents at 11:03 am by Dr. Roy Schestowitz

UIMP event and FTI Consulting

Summary: The ILO Administrative Tribunal (ILO-AT) is advertised by the EPO‘s management as access to justice, but it’s still being undermined quite severely to the detriment of aggrieved staff

THE NEW President of the EPO, António Campinos, is still not complying with ILO-AT judgments. It’s problematic for a lot of reasons and sources of ours already give up on him (or concede hope that he will fix things that matter). Actions are needed; it has already been half a month.

Earlier this year we saw links to some tweets of somebody called Anette Koch, who came out in Twitter, revealing grievances she had experienced at the EPO. Just before the weekend we saw more links (or retweets) from EPO-connected accounts to documents that we decided to publish yesterday. These documents, or rather a two-page letter (E-mail/s), confirmed our suspicions that when it comes to justice Campinos and Battistelli might be indistinguishable.

“These documents, or rather a two-page letter (E-mail/s), confirmed our suspicions that when it comes to justice Campinos and Battistelli might be indistinguishable.”So we attempted to contact the person in question. It wasn’t hard because the E-mail appeared in the above documents. We now have a better understanding of what’s going on and would like to share what the EPO under Campinos is doing.

“The EPO attempts to jeopardize three of my cases with the Tribunal by arbitrarily re-starting them in internal appeal and inviting me for comments,” Koch responded to my E-mail, “[so] of course I will comment to the Tribunal only. Please note that the Tribunal did not refer them back to the EPO, i.e. the EPO acts on its own initiative.”

Remittance before judgments can even be reached? That’s odd. How many more people might this be done to? It wouldn’t be so shocking if the EPO, under instructions from high-level management (maybe Campinos himself or HR itself), is just mass-mailing this to a lot of complainants.

“I am sick and tired of this type of bullying,” Koch told me, “I have pain in my stomach and in my right wrist currently, so I have to be short.”

“Remittance before judgments can even be reached?”It doesn’t look as though the EPO changes in any concrete way under Campinos. I gave him a chance, I really did; I wanted to think that things were going to improve at least in the sense that the social climate might change. But they’re still panicking. Staff still suffers. SUEPO representatives, victims of union-busting efforts, are still in limbo.

It’s worth noting that the document (or documents, a few E-mails) was produced well after Campinos had taken over and, if so and considering the circumstances, who is most culpable (or to blame) here? The legal department, HR, or someone else?

Campinos has been President since the first of July. The documents (E-mails) are dated 9th of July and 10th of July, respectively. While the decision mentioned could still have been taken by Mr. Battistelli, the new President should normally have been informed. He is welcome to stop this.

“While the decision mentioned could still have been taken by Mr Battistelli, the new President should normally have been informed. He is welcome to stop this.”The crucial legal points are: (i) a lower judicial instance cannot re-start a case under appeal on its own initiative (notwithstanding the non-judicial character of the EPO which is a party to these cases), (ii) in the E-mails the IAC clearly threatens to adopt the current procedural rules (it points to them), i.e. all its members can be nominated by the President only or determined by lots. To adopt the current rules contravenes the principle of non-retroactivity, obliging the EPO to follow the Service Regulations at the time of filing internal appeals at which part of IAC members were still to be nominated by the CSC (where’s the IAC’s “independence” otherwise?).

“The effect of such E-mails on my health is significant,” Koch told me, “i.e. pain in my stomach, neck, wrist and elbow.”

It’s bad enough that the EPO’s poor facilities have already caused many disabilities at the EPO (we wrote about it before). It’s even worse that those people get ‘discarded’ once the EPO ‘breaks’ them and these people are then denied access to justice. What kind of employer is this? Persistent rumours suggest that the EPO isn’t even hiring anymore; it only pretends to, i.e. it’s wasting people’s time and making them nervous without any prospects of a job.

“This further reaffirms SUEPO’s allegation (from a couple of weeks back) that ILO-AT “remains very much an employer’s court” (not employees’) because it’s often doing whatever EPO management wants it to do.”Remarking on the above, Koch replied to our query by asserting that “the main aim of all this is of course to prevent treatment of my cases in substance by the Tribunal, by having them referred back to the IAC, i.e by delay. This would be another catastrophe, and I have to do everything I still can to prevent this [...] it’s about the EPO’s and partly the ILOAT’s way of proceeding, not about me in person [...] Yet it is new (in my cases) and utterly absurd that the IAC simply restarts cases in internal appeal on its own motion, even without the Tribunal referring them back to the IAC (at least SUEPO did not report such cases yet).”

This further reaffirms SUEPO’s allegation (from a couple of weeks back) that ILO-AT “remains very much an employer’s court” (not employees’) because it’s often doing whatever EPO management wants it to do. It doesn’t really feel impartial and decisions get delayed at the request of the EPO.

Asking the USPTO to Comply With 35 U.S.C. § 101 is Like Asking Pentagon Officials to Pursue Real, Persistent Peace

Posted in America, Courtroom, Patents at 1:15 am by Dr. Roy Schestowitz

Related: Michael Frakes and Melissa Wasserman Complain About Low Patent Quality While Watchtroll Lobbies to Lower It Further

What bombs do
These cost $132,000 each about 60 years ago (more than $3 million by today’s money)

Summary: Some profit from selling weapons, whereas others profit from patent grants and litigation; what’s really needed right now is patent sanity and adherence to the public interest as well as the law itself, e.g. Supreme Court (SCOTUS) decisions

THE SCOTUS ruling on Alice more than 4 years ago ought to have sufficed. It ought to have stopped software patent grants in the US. Sadly, however, parties often need to appeal to the Federal Circuit (very expensive) in order for such patents to be intercepted; sometimes a Patent Trial and Appeal Board (PTAB) inter partes review (IPR) would suffice, but not always. Then there are overzealous courts like the tribunal of ITC, which impose sanctions even in defiance of PTAB. For small businesses in particular, PTAB is all they can afford. Embargoes to them may mean life or death. They may declare bankruptcy overnight.

“Then there are overzealous courts like the tribunal of ITC, which impose sanctions even in defiance of PTAB.”In spite of Mayo, another SCOTUS decision that shaped 35 U.S.C. § 101, the USPTO is still granting patents on life itself (the EPO increasingly does this too, in arrogant defiance of the EPC). Here is a press release that is only a few days old:

Inscripta Granted Patents for CRISPR Gene-Editing Systems

Inscripta, a leading gene-editing technology company, today announced two significant milestones. First, the USPTO granted Inscripta its first patent covering systems using MAD7, the company’s first free CRISPR enzyme, as well as patent coverage for systems using another MADzyme, MAD2. Second, Inscripta released new data run by external partners showing MAD7 can edit mammalian cells.

“Today marks a major step forward in the gene-editing revolution we started seven months ago when we released our own, unique CRISPR enzyme (MAD7),” said Kevin Ness, CEO of Inscripta. “We and our partners have shown that MAD7 is an effective tool in editing microbial and mammalian cells. All researchers, both academics and industrial scientists alike, can use MAD7 confidently, and Inscripta is committed to providing a license to its related patents for customers to perform free research and development using the enzyme.”

Why was this granted? Need someone petition PTAB now (IPR)? Does someone have the financial incentive to do so? We sure hope so. Otherwise we need to wait for some court battle, knowing that Inscripta might prey on small companies that simply cannot afford court battles (and would rather shell out ‘protection money’). This kind of patent would do no good; if facilitates nothing except shakedown (a form of extortion) or patently frivolous litigation. The US does not, in principle, allow CRISPR monopolies. There are SCOTUS precedents to that effect.

“This kind of patent would do no good; if facilitates nothing except shakedown (a form of extortion) or patently frivolous litigation.”Cellspin Soft, Inc. v Fitbit, a case that we mentioned days ago in this post, is now being covered by Michael Borella (McDonnell Boehnen Hulbert & Berghoff LLP) in Patent Docs (reposted here, maybe for a fee so as to appear more widely). Here’s the part relevant to 35 U.S.C. § 101 although the more interesting angle is the possibility that the plaintiff will get punished for frivolous litigation. Quoting Borella:

Cellspin sued Fitbit and thirteen other defendants in the Northern District of California alleging infringement of U.S. Patent Nos. 8,738,794, 8,892,752, 9,749,847, and 9,258,698. The defendants filed a motion to dismiss, alleging invalidity of the patents under 35 U.S.C. § 101.

As we said some days ago (for the second time), we hope this case can become a deterrent against frivolous litigation in the US, but we can’t quite count on it. Many courts, especially the lower ones, don’t pursue fact-finding. Instead they let juries decide. It’s pretty silly to do patent trials by jury, for reasons we’ve explained many times before (many in the jury are incapable of understanding the technical details inside patent claims), yet here we are in Mass Engineered Design, Inc. v Planar Systems, Inc. — the case which now potentially deals with treble ‘damages’ over alleged infringement. As Docket Navigator put it yesterday:

The court granted plaintiff’s motion in limine under FRE 403 to preclude defendant from telling the jury that damages could be enhanced or trebled at a willfulness retrial and rejected defendant’s argument that its supplier’s indemnification agreement should similarly be excluded.

What does the jury know? These aren’t professionals in the said field? It’s understandable that juries can decide cases like homicide or drug sale/use, but patents? Seriously?

“If the ultimate goal is justice rather than profit, then the status quo is “unfit for purpose” (i.e. not good enough) and always favours deep-pocketed corporations as well as law firms.”In another new development, in Shire LLC et al v Abhai LLC, “[t]The court granted in part plaintiffs’ motion for discovery sanctions and sanctioned defendant $1.5 million after defendant disclosed corrected stability dissolution testing data during a bench trial,” according to this new Docket Report.

The way things stand at the moment — and we shall elaborate on that later in the week — patent justice isn’t easy to find in the US. The law is still dominated by law firms (they write the law by lobbying/lobbyists) and patent examiners are better rewarded for granting a lot of patents rather than rejecting most. If the ultimate goal is justice rather than profit, then the status quo is “unfit for purpose” (i.e. not good enough) and always favours deep-pocketed corporations as well as law firms. The latter want eternal war.

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