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04.27.19

The ‘Technical Effect’ of Attacking the Independence of Judges at the Boards of Appeal and Ignoring/Breaking the Law

Posted in America, Europe, Law, Microsoft, Patents, RAND at 8:28 am by Dr. Roy Schestowitz

Technically Boards of Appeal are still controlled by the EPO’s President (whose positions they’re supposed to scrutinise and sometimes oppose)

António Campinos fair trial

Summary: Europe continues to be threatened by the lawless EPO, which is promoting software patents, FRAND patent trolls, UPC and even more toxic things; judges and the rule of law do not seem to matter anymore (they’re being intentionally discarded because they stand in the way of law firms’ profits and EPO revenue)

Lawlessness is alive and well — even thriving — at the European Patent Office (EPO). How can one expect António Campinos to respect and obey the law when he cannot even discipline/educate/convince his own son that laws are to be obeyed? He himself is showing blatant exhibition of gross nepotism within just months at the Office and likely violations of EU law since his EUIPO days where appointments appear to be sold. It’s all rigged. Laws don’t seem to matter to these people. Campinos ignores the law with more tact (or more smiles). He’s a storyteller. All he can do is lean on his father's name — a person who was apparently not likable except by those at the top. It’s a good decoy. Effective marketing.

“Campinos ignores the law with more tact (or more smiles).”This latest comment at IP Kat discusses how the EPO is still breaking the law or violating the EPC by punishing all judges with an exile to Haar (which is technically not Munich at all):

Yes, I understand that “Landkreis München” does not itself include the city of Munich. Perhaps my question was unclear. What I mean is: why can the meaning of the word “Munich” in the EPC not simply be interpreted to mean “a location which is EITHER in the city of Munich OR in Landkreis München”? i.e. that “Munich”, for the purposes of the EPC, means the combination of the city Munich *and* the Landkreis which shares its name? This way, it is possible to interpret “Munich” for the purposes of the EPC as being broader than the city itself, while still having a well-defined geographical scope.

To draw a comparison (which is, admittedly, imperfect): imagine that the EPC instead said “London”. A narrow interpretation might be that this should mean “the City of London”. A broader interpretation might be that this should mean “anywhere within the 32 London Boroughs” – but (like Landkreis München vis-a-vis the city of Munich) the London Boroughs do not include the City of London. The holistic view would, perhaps, instead be to take the view that “London” means “the City of London or any of the 32 London Boroughs”.

Curiously enough, on the same day Samuel Adams wrote about the EPO illegally attacking the independence of all judges by sending them to exile. To quote Kluwer Patent Blog, a site of patent maximalists:

Not too long ago we learned of a referral question from Technical Board of Appeal 3.5.03 regarding the legal basis for holding oral proceedings before the Boards of Appeal in Haar rather than in Munich.

While it does not directly relate to the legal question in the referral, a relevant consideration was recently published in CA/5/19, which relates to an additional lease for further staff, conference rooms and common areas for the EPO in Haar. The document notes that the building in Haar has been leased for a period of 15 years. In CA/82/16, the total budgetary impact of the lease in Haar, including building adaptation costs, was provided as EUR 40.7 million. The further costs laid out in CA/5/19 for an additional lease contract are EUR 4.8 million, for a total of EUR 45.5 million.

The above was filed under “Traveling Circus” (no kidding!), so we suppose that at this point even Kluwer Patent Blog perceives the EPO to be somewhat of a circus. What a tragedy.

Crossing over to IP Kat, which is still heavily occupied by Team UPC (sometimes more so than Kluwer Patent Blog), over the past few days we saw a lot of coverage there about Fordham IP (at least 7 parts so far). Bristows did many posts about it for IP Kat (Annsley Merelle Ward as the author); it’s an event that is typically funded by Microsoft (more so than anyone else) and Bristows flatters this sponsor, as we noted in past years.

Included in this event, as usual, is the software patents lobby (in which Microsoft plays a considerable role), soon to be promoted or amplified by patent extremists like Bristows or Managing IP, which wrote: “Former Federal Circuit chief judge Paul Michel “bet on both horses”, referring to possible fixes for Section 101 in court and in Congress, during a discussion yesterday at the Fordham IP Conference in New York…”

This is also mentioned in [1, 2] and it’s the typical choir of patent maximalists, the ‘usual suspects’ such as Iancu, Michel and sometimes a USPTO Director turned lobbyist, Mr. Kappos.

In her later parts Annsley Merelle Ward published FRAND advocacy by Richard Vary (Bird & Bird). Bristows has long lobbied for FRAND, usually in IP Kat, as Bristows profits from this agenda. As recently as yesterday, in an article by Amy Sandys of JUVE, we learn of “global licensing company” TQ Delta (euphemism for patent troll or PAE) seeking patent embargoes in the UK. Using patents granted by EPO and the FRAND agenda they try to block companies that actually make something (unlike TQ Delta) from doing business.

Speaking of Bird & Bird and Briwstows, the latest part in this series concerns software patents (covering algorithms) framed as “AI”. Here’s where the EPO stands on on this issue in spite of European law:

Katherine Stephens (Bird & Bird) then talked about the “patentability of artificial intelligence and machine learning”, specifically focusing on the recently updated EPO Guidelines for Examination. According to Katherine, the EPO’s new Guidelines are not a green light for patenting AI, but they are a first step in setting out the rules for a proper balancing exercise. An interesting issue raised in her presentation was whether inventive step and sufficiency thresholds can be expected to change with the rise of AI, assuming that the skilled person should be presumed to have access to AI systems. “Will inventive step be raised so high that nothing will be considered inventive in the eyes of the law, even if it was inventive or surprising to human?”

These are all bogus patents on algorithms, but nowadays the EPO just fakes ‘gains’ by granting patents courts would reject (if they were assessed there, i.e. if there was a lawsuit and a lengthy, expensive challenge to it). Team UPC (Bird & Bird, Bristows etc.) was hoping to effectively abolish or bypass such courts using the UPC, but it didn’t work. As FFII’s Benjamin Henrion put it yesterday in a press release: [via]

Today is World Intellectual Parasites Day, the day where patent trolls rejoice over sucking more blood out of software companies. Patent parasites rejoice over the creation of the european Unitary Patent Court (UPC), which will create an undemocratic monster fully captured by the parasite industry. Patent parasites are also pushing for a rewrite of the laws in the United States, in order to restore software patents, and continue to suck more blood out the software industry.

That’s a satirical slant on World Intellectual Property [sic] Day — a subject we’d rather not covered as we did so in prior years. The EPO kept promoting this propaganda many times yesterday, even retweeting the EUIPO in the process.

03.19.19

The EPO Has Sadly Taken a Side and It’s the Patent Trolls’ Side

Posted in Europe, Patents, RAND at 1:05 pm by Dr. Roy Schestowitz

The European Patent Office is all about money, not science, and it undermines the basis of its very existence

António Campinos patents cash

Summary: Abandoning the whole rationale behind patents, the Office now led for almost a year by António Campinos prioritises neither science nor technology; it’s all about granting as many patents (European monopolies) as possible for legal activity (applications, litigation and so on)

THE António Campinos-led European Patent Office (EPO) is promoting software patents in Europe (it just tells applicants to call these “AI” and other nonsensical, grossly-overused terms). It amasses such applications and then grants bogus patents that courts will almost certainly reject (or would; if the defendant could afford a day in court). Quality of patents isn’t at all mentioned in those ‘results’ that we rebutted or put in context last week. The media, including some of the Battistelli-paid media, keeps relaying that PR. We decided not to link to it this year (like we did in prior years) because it’s a familiar script or spiel. Facts don’t matter; writing these puff pieces is a simple “copypasta” from the EPO.

We have meanwhile noticed that the EPO is again promoting FRAND/SEP agenda. Truly nasty agenda, no doubt, but not surprising as they support patent trolls rather than scientists/scientific progress. It is very much consistent with what Battistelli did and judging by who Campinos chooses to meet (lawyers’ societies, not scientists) we know nothing will change. The EPO said (warning: epo.org link, via) it is looking to “enhance the support they provide to industry and stakeholders in Europe and beyond in the field of standard-essential patents.”

“It is worrying but not surprising that the EPO continues to do this; does anyone still believe that Campinos intends to turn anything around?”EPO ends with the ICT nonsense (ICT means “algorithms” a lot of the time, at least at the EPO): “In view of the growing use of ICT-related technologies in the more traditional technical fields, the ICT standards – as well as the patents considered essential for their implementation – are becoming increasingly important in this context.”

FRAND for code/interoperability shims means software patents. FRAND is a misnomer (each word in the acronym is a lie) and we’ve been writing about it for over a decade, even back when it was called “RAND” (one euphemism/lie fewer). There’s a new press release about it below (just sent to us by a reader):

The question if Open Source Software can be combined with a FRAND (fair, reasonable, and non-discriminatory) regime is often at the centre of the debate. Possibly, this question though is not the deciding one, as such a legal compatibility would require that Open Source developers would collaborate under such a regime.

OpenForum Europe is very excited to publish the Opinion Paper by OFA Fellow and President of the Open Source Initiative, Simon Phipps. In this paper Simon posits that the core issue of Open Source Software and FRAND is not a legal one, but that Open Source developers will not collaborate under a FRAND regime.

So yes, it’s about software. It’s about something that can be infinitely replicated free of charge.

“EPO publishes blockchain conference report,” the EPO wrote yesterday, linking to that “blockchain” nonsense which we mentioned some days ago. “This study provides a comprehensive picture of current trends and emerging leaders in self-driving vehicle technologies,” the EPO wrote separately (also yesterday); it’s another newer buzz-phrase/acronym (buzzwords), "SDV" (often means algorithms for vehicle navigation). They like using the physicality of a car to give the impression that the invention is concrete. Similarly, as per Monday’s press release from Israel, here is the EPO granting a patent on “robotics” when in reality this likely deals with computer programs responsible for handling the robot (in addition to imaging modalities whose physical properties have little to nothing pertaining to navigation). From the press release:

XACT Robotics Ltd. today announced that the European Patent Office (EPO) will grant a patent expanding the Company’s patent portfolio to include the use of its robotic system in ultrasound-guided interventional procedures.

That’s basically patenting a computer program. But “with unparalleled accuracy and consistency…”

Whatever. Marketing buzzwords. Or promotional language…

It is worrying but not surprising that the EPO continues to do this; does anyone still believe that Campinos intends to turn anything around?

Yesterday the EPO wrote another bit of nonsense. They call it “EPO Academy” (a big word), but scholars don’t want to work there anymore and academia is ignored in favour of law firms. All that seems to matter to the EPO is money; not scientists’ financial welfare but rather the Office’s and law firms’. What would the public have to say about such an institution? Does it serve Europe?

11.17.18

The European Patent Office Comes up With a Plethora of New Buzzwords by Which to Refer to Software Patents

Posted in Europe, Law, Patents, RAND at 12:08 pm by Dr. Roy Schestowitz

European authorities play along with a “Study on the interaction between Open Source Software and FRAND” (these are not compatible)

A muscle car
They now proudly grant patents on computer vision (my field), which is basically mathematics

Summary: The permissive attitude towards software patents in Europe is harmful to software developers in Europe; the officials, who never wrote a computer program in their entire life, pretend this is not the case by adopting marketing techniques and surrogate terms

THE GRANTING of software patents in Europe appears to have accelerated under António Campinos as President of the European Patent Office (EPO), or at least advocacy thereof.

This is very troubling in light of the fact that the US goes in the opposite direction, with 35 U.S.C. § 101 used to routinely squash such patents, citing Alice (SCOTUS) — a subject we’ll focus on tomorrow.

“This is very troubling in light of the fact that the US goes in the opposite direction, with 35 U.S.C. § 101 used to routinely squash such patents…”As shown in [1] below (several readers have independently alerted us about it), the European politicians now actively participate in this toxic agenda and OIN seems very happy with this (it calls FRAND proponents “charities” now), being a proponent of software patents itself. We’ve seen some troubling statements in relation to [1] and various tweets on the subject have been abound (FFII, OIN, Red Hat etc.). Is violation of the EPC considered acceptable now? Not only at the EPO but also the EU/EC?

Just before the weekend we saw the EPO promoting “AIpatents” (as it does every day; it has done this for months, more so under Campinos). Here’s one example: “Key discussions and insights from our conference on patenting #AI are available here. Take a look if you are interested in #artificialintelligence: http://bit.ly/AIpatents”

Here’s another new “AIpatents” tweet: “Experts from industry, academia and the IP world discussed possible future considerations for patent laws in view of #artificialintelligence at this recent conference: http://bit.ly/AIpatents”

“Just before the weekend we saw the EPO promoting “AIpatents” (as it does every day; it has done this for months, more so under Campinos).”Then came “IoT”: “Interested in the #InternetOfThings & standard-essential patents? At this conference, you can discuss this trending topic with experts from all around the world: http://bit.ly/indoeur pic.twitter.com/XAON4cTF8F”

Many so-called ‘IoT’ patents (basically software on devices) are just software patents. Pure and simple. How about “blockchains”? It’s not just a buzzword (unlike “AI” and “IoT”), but it’s a hype wave. The EPO wrote: “What is the examination practice at the European Patent Office of #blockchain technology? Find out at this conference in the Hague: https://bit.ly/2PGRp79″

Now there’s also "SDV", the latest of many three-letter acronyms that the EPO paid to manufacture or at least spread through the media (we’ve seen about a dozen ‘reports’ about this, not just in English, and they all boil down to EPO PR, naming António Campinos personally). The EPO has just tweeted: “Europe and the US are the global leaders in self-driving vehicle innovation. See which European countries filed the most applications for this technology here: http://bit.ly/SDVstudy #SelfDriving #FutureOfCars pic.twitter.com/Jnk1Qlep3P”

“Many so-called ‘IoT’ patents (basically software on devices) are just software patents.”Then there’s “4IR”. Yesterday the EPO tweeted: “Join the discussion on patenting some of today’s most dynamic areas of innovation at this conference in Munich, co-hosted with @GoI_MeitY: http://bit.ly/indoeur pic.twitter.com/xjDm3QcWyh”

This links to a page about “emerging technologies” (warning: epo.org link) that starts as follows: “The 4th Industrial Revolution continues to gather momentum, and the digital transformation is affecting all aspects of life, as shown by the EPO’s report on “Patents and the Fourth Industrial Revolution”. Information and Communication Technologies (ICT) are converging with all traditional areas of technology.

“Notice that buzzwords ‘salad’; most if not all refer to algorithms.”“This provides opportunities for emerging technologies such as Artificial Intelligence, capable of “Machine Learning” and optimising systems too complex for manually programmed algorithms; and Blockchain, for digital-speed processing of secure transactions.”

Notice that buzzwords ‘salad’; most if not all refer to algorithms. It’s a pretty shallow deceptive layer.

Additionally, widely promoted by patent maximalists is this Watchtroll article from Andrea Perronace (epi); here’s how he’s described by his own bio: “European Patent Attorney and has been working in the IP field for 17 years. [...] Andrea is a full member of the ICT Thematic Group of the European Patent Practice Committee (epi) and participates in EPI’s Guidelines’ and ICT subcommittees e whose aim is to submit to the EPO proposals for improvement of the Guidelines for Examination. As an epi delegate, he was a speaker at the “Patenting Artificial Intelligence” Conference at the European Patent Office in Munich, May 30, 2018.”

To quote: [via]

The new Guidelines entered into force on November 1, 2018. Like the previous edition, this year’s Guidelines include substantial and valuable improvements with regard to guidance on the eligibility of computer-implemented inventions (CII). These sections of the Guidelines have been discussed with the European Patent Institute (epi), in particular with the ICT Thematic Group of the European Patent Practice Committee within the epi. The EPO website includes a useful html index for the Guidelines, including those sections relating to computer-implemented inventions.

He even uses the term “CII” and the headline says “Computer-implemented inventions”; much of the rest is a lot of buzzwords, which surely EPO examiners have become familiar with.

“After the attack on judges from the Boards of Appeal we very much doubt any of the Boards of Appeal can confront the EPO over this gross abuse of power to grant patents, even in defiance of courts, Parliament, and the founding document of the Office/Organisation, the EPC.”We’re not sure if this disturbing trend can be stopped, but we at least hope to highlight it. Mitscherlich PartmbB’s Christian Rupp has just published this article about a decision of the Boards of Appeal (T0642/14), but it has nothing to do with the above. After the attack on judges from the Boards of Appeal we very much doubt any of the Boards of Appeal can confront the EPO over this gross abuse of power to grant patents, even in defiance of courts, Parliament, and the founding document of the Office/Organisation, the EPC.

Related/contextual items from the news:

  1. JRC stakeholder consultation on open source software and standardisation

    In the context of the on-going Study on the interaction between Open Source Software and FRAND (Fair, Reasonable And Non-discriminatory) licensing in Standardisation we carry out a survey with interested stakeholder groups.

    [...]

    Deadline: 30 November 2018.

09.30.18

Watching Judges Who Get Too Close to the Litigation ‘Industry’ That Promotes Propaganda Terms Like ‘Intellectual Property’, ‘FRAND’ or ‘Life Sciences’

Posted in Deception, Patents, RAND at 8:01 am by Dr. Roy Schestowitz

…As if ideas are “owned”, life and nature are “discoveries” and patent taxes are “fair”, “reasonable” and “nondiscriminatory”

Biscayne lighthouse

Summary: A look at potential ethical problems, based on the fact that Colin Birss attends and speaks at CIPA events; there are also similar issues in the United States

THE idea that life is a science and nature is an invention is a rather odd idea. We wrote about this many times over the past year. It’s the sort of delusion that EPO and USPTO officials get carried away by, forgetting that patents should exist for inventions, not mere explorations, explanations and interpretations. We recently wrote several articles bemoaning the term “life science/s” — a rather new concept if not buzzword [1, 2].

The Life Sciences Forum is an event of patent extremism, so things that harm patent quality are celebrated there, whereas much-needed fixes against patent trolling are condemned. As one patent maximalists’ site put it: “ANDA lawsuit filing spiked last year, TC Heartland is troublesome, and the USPTO’s Vanda memo is promising – these are some conclusions from a session at our Life Sciences Forum…”

How is TC Heartland “troublesome”? As we shall show in our next post, it has been troublesome mostly to patent trolls.

It has meanwhile turned out that, based on another article from these patent maximalists, Colin Birss is attending an event of patent maximalists. He’s a judge, so that doesn’t seem so appropriate. It’s just hard to see why a judge would wish to associate with CIPA Congress. CIPA is a bunch of lying bullies that send threats to people. It is also rather odd a thing to see him described by a patent troll (of Ericsson) that he happened to rule on. The patent maximalists refer to him in the headline not by his name but as “Unwired Planet judge” and then say this:

Speaking at this year’s CIPA Congress, Mr Justice Birss said that FRAND disputes will be fought in one place in the future and that the UK’s new doctrine of equivalence may not last in its current form

He probably oughtn’t hang out with these people, otherwise he may risk a Rader-type scandal. He is being emboldened by rather radical elements.

Colin Birss

Over at Patently-O, days ago a post by Dennis Crouch spoke of patent law firms breaking the rules, as law isn’t the goal but just getting richer and richer if the goal. Here are the details:

In a new order captioned In re Violation of Rule 50, Docket No. 2018-9001 (Fed. Cir. Sept 27, 2018), the Federal Circuit has rebuked an unnamed former law clerk and her law firm for violation of the rule.

The basic setup: When the clerk left the Federal Circuit, she handed over a list of no-no cases to her new law firm. (“No-no cases” are those that were pending during the clerk’s time at the Federal Circuit.) Several years later, the firm stepped-in as new counsel to one of the no-no cases and the former clerk appeared as a lawyer in the lawsuit (though not lead counsel). Some unidentified time later, the clerk realized the violation and immediately withdrew from the case. The clerk and firm then notified the Federal Circuit of the breach — noting that the clerk never saw any briefs, discussed the case, or heard any discussion of the case during her time at the Federal Circuit.

In its decision here, the court noted that R. 50 “must be strictly followed” and that the facts as explained are “proof of the firm’s negligence.” Still, the court decided not to impose discipline since this was a first offence for the clerk and firm and no harm was shown. I expect that it would be personally difficult for the court to actually impose discipline on its former clerks absent egregious factors.

David Hricik, who typically writes about ethics in Patently-O (he himself is a former worker at the court), writes about McKool Smith, which represents a lot of patent trolls. It’s not too shocking to see them violating laws etc. It is only to be expected. They’re thugs and bullies (even if they wear suits) and Hricik put it:

Almost exactly one year ago (here), I explained that McKool Smith had been accused of violating a prosecution bar based upon a disagreement, or misunderstanding, about when the bar-dated ended.

We have been writing about McKool Smith for many years and almost every time they’re mentioned it’s in relation to some sort of blackmail rather than patent justice. It would be nice and perhaps well overdue to see them disbarred.

09.22.18

Bogus Patents Which Oughtn’t Have Been Granted Make Products Deliberately Worse, Reducing Innovation and Worsening Customers’ Experience

Posted in Apple, Europe, Patents, RAND at 12:07 pm by Dr. Roy Schestowitz

Marco Cassia patent
EP2460270 by Marco Cassia (warning: epo.org link)

Summary: How shallow patents — or patent applications that no patent office should be accepting — turn out to be at the core of multi-billion-dollar cases/lawsuits, with potentially a billion people impacted (their products made worse to work around such questionable patents)

IN OUR previous post we mentioned how the EPO had begun feeding patent trolls in the same way the USPTO did for a number of decades. Qualcomm is a poorly-managed aging company in a state of decadence, so it nowadays resorts to patents more than anything, even dubious European Patents (EPs), granted by the EPO.

Florian Müller has been keeping a close eye on legal filings from Qualcomm, especially earlier this year. He more or less understands the underlying issues, having spoken to some of the people involved and also glanced at the underlying patents. “Very long (by local standards) Qualcomm v. Apple patent trial just finished,” he wrote some days ago. “Stuff for more than one blog post: infringement, validity, antitrust, licenses to contract manufacturers… By far their most interesting court fight to date.”

The CCIA‘s (Computer & Communications Industry Association) Joshua Landau weighed in by saying: “The FRAND obligation means you negotiate a license with *anyone* who asks, not “anyone but your competitors.” This shouldn’t be controversial-even Qualcomm has argued that when they were in the position of wanting a license.”

“Qualcomm [is] presently asserting 13 patents against Apple in Germany,” Müller noted. “Until today‘s trial, „only“ 10 were known, including the one the court in Munich told me about yesterday.”

Müller, Landau said, “beat me to it (and beat our press release as well), but yeah, FRAND means FRAND – you have to be willing to license anyone who asks for a license. Qualcomm even agrees with this principle—when they’re the ones who want a license.”

Müller already wrote a number of posts about it — ones that we took stock of last week. He separately took note of another FRAND case: “Huawei v. Samsung: no deal. Minute Entry for proceedings held before Magistrate Judge Kandis A. Westmore: Case did not settle. Settlement Conference held on 9/17/2018. Total Time in Court: 4 hours 17 minutes…”

But focusing on the main case in question (one which impacts Android/Linux as well), Müller said that “[i]ndustry bodies @actonline and @ccianet support @FTC’s motion to require #Qualcomm to license SEPs to rival chipset makers,” basically citing a disgraced Microsoft front group which pretends to represent small businesses. He wrote a blog post about it and assured me that “I never said they represented me. I just agree selectively…”

Here’s what’s happening in a nutshell:

It’s a busy September on the FRAND front…

As I reported on the first of the month, the Federal Trade Commission brought a motion for partial summary judgment that may open up the wireless chipset market–by reminding Qualcomm of its self-imposed obligation to license rival chipset makers–even prior to the big antitrust trial in the Northern District of California.

It’s odd that a mere reminder would be a potential game-changer, but that’s the way it is because of Qualcomm’s refusal to live up to the FRAND promise.

Disturbing it was to then see CCIA liaising with a Microsoft AstroTurfing group:

Yesterday, CCIA and ACT filed an amicus brief in the FTC’s case against Qualcomm in the Northern District of California. As explained in the brief, the FRAND obligation which patent owners voluntarily agree to when they participate in the development of a standard requires the owners of standard-essential patents to license their patents on “fair, reasonable, and non-discriminatory terms.” And the “non-discriminatory” portion of that obligation means precisely what it states—that the patent owner may not discriminate amongst willing licensees, but has to license anyone who wants a license.

Why would CCIA wish to associate with ACT? We could expect this perhaps 7 years ago when CCIA did all sorts of questionable things, but why now? Why again?

“Trolling with junk patents works best in Germany,” Müller wrote later. “With respect to injunctions, worse than the Eastern District of Texas.”

Something like the UPC would put that ‘on steroids’ if it was ever to materialise, further broadening scope of injunctions. The patent maximalists deny that a problem even exists in that regard.

As it turns out, the European Patent in question may in fact be bunk: [via]

Yesterday’s Qualcomm v. Apple trial took twice as long as the average Mannheim patent trial. In fact, the ventilation system was switched off in the late afternoon, so for the last hour, two doors had to be kept open. The courtrooms at the Mannheim Regional Court, Europe’s leading venue for wireless patents, are famously windowless.

Presiding Judge Dr. Holger Kircher forthcomingly stated at the outset that this case was, in my words, too close to call (unlike the one that Qualcomm agreed to stay in June), thus the court had to elaborate on all our of Apple’s defenses: non-infringement, invalidity (which German district courts don’t determine, but they can and often do stay cases pending a parallel nullity or revocation proceeding in another forum), abusive conduct (antitrust), and licensing (through one or more contract manufacturers). I’ll address the first two–the traditional defenses to patent infringement–in this post, and the affirmative defenses (the remaining two) in a subsequent post since there’s an abundance of interesting things to report and comment on.

The patent-in-suit, EP2460270 on a “switch with improved biasing” (“biasing” in this context basically meaning that one voltage gets to control another), is not standard-essential. Essentiality hasn’t been alleged by any party to the German Qualcomm v. Apple cases that have been heard so far. Nor is it related to wireless baseband processors: it’s a general circuity patent covering a type of switch. It was mentioned during yesterday’s trial that the chip allegedly infringing on the patent is supplied to Apple by Avago/Broadcom. But all of the accused devices come with an Intel baseband chip, a fact that will be relevant to the antitrust part of the next post.

Another sore eye for patent quality at the EPO? As Landau put it: “An Expert Opinion from the Swedish Patent Office says that Qualcomm’s Patent used to Sue Apple Should be Invalidated…”

It cites an Apple proponents’ site, which in turn cites Müller and says: “Yesterday’s Qualcomm v. Apple trial took place in the Mannheim Regional Court, Europe’s leading venue for wireless patents. The trial took twice as long as the average Mannheim patent trial, reports Florian Mueller. Mueller described the Apple v. Qualcomm case the commercially biggest patent-related dispute ever and could be truly seen as the World Series of IP cases. Apple is trying to invalidate Qualcomm’s patent titled “Switch with Improved Biasing” in this Mannheim case based on an expert opinion from Sweden.”

Apple too has been granted bogus European Patents, based on reliable sources of ours. It’s somewhat of a crisis. Another new post from Müller says: [via]

This is my second post on the Qualcomm v. Apple patent infringement trial held by the Mannheim Regional Court yesterday. In the previous post I reported on the alleged (non-)infringement and (in)validity of the patent-in-suit, EP2460270 on a “switch with improved biasing”. While the case is too close to call, this patent assertion may fail on the merits just like the first one that went to trial in Mannheim. But the court might also, contrary to what the non-asserted independent claim 16 implies for claim construction purposes and despite a finding by the Swedish patent office that the patent lacks a sufficient inventive step over prior art presented by Apple, hold Apple liable for infringement and decline to stay the case pending a parallel nullity action. In that case, Apple’s affirmative defenses–antitrust and licensing–will be outcome-determinative at least with respect to the availability of injunctive relief.

For a long time, it was hard to fend off even standard-essential patent injunctions in Germany on antitrust grounds (with or without a FRAND commitment, which German courts wouldn’t deem enforceable by third-party beneficiaries anyway). It was arguably hardest in Presiding Judge Dr. Kircher’s court. The situation improved after the Court of Justice of the EU ruling in Huawei v. ZTE; in a way, it already got a little bit better after the European Commission took action against Samsung and Motorola. But very regrettably, the thinking of German patent judges is still, by and large, that antitrust defenses are just part of a throw-in-the-kitchen-sink tactic of infringers.

The patents Qualcomm is asserting in Germany–at least the ones that have been discussed in hearings or trials–aren’t standard-essential, which ups the ante for Apple’s antitrust defense. However, the fact that Qualcomm’s conduct has been deemed anticompetitive by competition enforcers in multiple jurisdictions (“Antitrust Grand Slam”).

Last but not least is this post about Apple’s workaround (around the patents):

Yesterday the Munich I Regional Court held a six-hour (including breaks, though) trial on Qualcomm’s eight lawsuits asserting four different search user interface patents against Apple’s Spotlight search, with two lawsuits per patents targeting a total of three different Apple entities. A first hearing had been held in early May.

That part of the wide-ranging, earth-spanning, multifaceted Apple-Qualcomm dispute is, however, strategically so unimportant that it’s not worth multiple posts or anything. That set of eight cases is a total waste of court and party resources–sort of a tempest in a teacup–as these Munich Spotlight cases have been defanged in three important ways…

This is no doubt useful for patent law firms, especially German or Germany-based ones, but who else does that serve? All these ruinous lawsuits already contribute to deliberate exacerbations in product development. And based on what? Bogus patents that should never have been granted in the first place?

09.02.18

US Patent Office and Patent Courts Taking a Stand Against Submarine Patents or Patent Ambushes

Posted in Microsoft, Patents, RAND at 3:50 am by Dr. Roy Schestowitz

Should tackle evergreening similarly

Gil Hyatt
Reference: Inventor battling U.S. over patents from ’70s

Summary: When patent trolls armed by Microsoft (in order to attack Microsoft’s rivals) find out that submarine patents are no longer worth the paper they’re printed on and even examiners refuse to grant such patents

A PATENT which practically or at least metaphorically acts as a form of “submarine” (a form of an ambush) was mentioned a lot about a decade ago [1, 2] in relation to a high-profile case of Rambus. Rambus Incorporated was founded 28 years ago and it is considered a “licensing company,” i.e. firm that only/mostly deals with patents. We mentioned submarine patents again last year in relation to OIN. It is a crude form of entrapment and courts can hear arguments to that effect; sometimes examiners too take such considerations into account when assessing whether or not to award a patent.

“It is a crude form of entrapment and courts can hear arguments to that effect; sometimes examiners too take such considerations into account when assessing whether or not to award a patent.”A couple of days ago Venture Beat, which focuses on technology, did an interview (i.e. puff piece) with Gil Hyatt, “a man who created a “submarine patent” by continually following up his patent application with new details.” Why the scare quotes there? A submarine patent is what it really is. Here’s the introduction:

Gil Hyatt’s patience has been tested. After a 22-year delay, the inventor received a patent in 1990 for what he called the first microprocessor, or a computer on a chip. After cutting a deal with Philips Electronics, he began collecting royalties on a lot of electronics products that used the fundamental technology.

In Silicon Valley and elsewhere, Hyatt was viewed as a carpetbagger, a man who created a “submarine patent” by continually following up his patent application with new details. He claims he was a diligent individual inventor who protected his rights. But after the controversial patent award, and after getting 75 patents, the patent office never approved one of his applications again.

More than 40 years later, Hyatt said his important applications are still in limbo. (The typical wait time is 18 months.) He has made at least $150 million from the Philips deal, but he said he is fighting for “justice.” The case took a twist in 2014, when news emerged that the U.S. Patent and Trademark Office had a special way of flagging potentially controversial patents.

Congratulations to whoever at the USPTO did that. The man became a multi-millionaire out of “submarine patents”, just as some other people became multi-millionaires out of patent trolling, i.e. blackmail. They basically take the money of many other people, including some small businesses. The summary of this article in Slashdot says, “80-Year-Old Inventor Gil Hyatt Says Patent Office is Waiting For Him To Die” (as if it’s him who is the victim deserving of sympathy!). Thankfully there are many comments there, over 100 of them.

Speaking of trolls and submarine patents, Core Wireless Licensing S.A.R.L. is part of Conversant (formerly known as MOSAID, a Microsoft-connected troll), and it has just found out that its submarine patent cannot be enforced (by virtue of it being part of an ambush). We wrote about it last month and Watchtroll caught up with it quite late (13 days after the decision). It wrote this:

The United States Court of Appeals for the Federal Circuit recently issued a ruling on discussing the equitable doctrine of implied waiver; a decision that will be particularly important for those participating in the standard setting process and engaging with standard setting organizations, or SSOs as they are sometimes called. According to the Federal Circuit, failure to disclose patents and applications relevant to a standard may render a patent unenforceable based on an implied waiver. See Core Wireless Licensing S.A.R.L. v. Apple Inc., No. 17-2102, 2018 (Fed Cir. Aug. 16, 2018) (Before Reyna, Bryson, and Hughes, Circuit Judges) (Opinion for the court, Bryson, Circuit Judge).

This case began when Core Wireless Licensing S.a.r.l. (“Core Wireless”) sued Apple Inc. (“Apple”) for infringing U.S. Patent No.s 6,477,151 and 6,633,536, both of which were directed to an improvement in the way mobile devices communicate with base stations in a digital network. Apple, in turn, argued that the ‘151 patent was unenforceable because Nokia – the original assignee of the ‘151 patent – breached a duty of disclosure it owed to the European Standards Organization (“ETSI”) during ETSI’s development of technical standards addressing propagation delays in GPRS networks. Specifically, Apple argued that Nokia’s failure to disclose a Finnish patent application, to which the ‘151 patent claimed priority, while advancing a proposal to revise the ETSI GPRS standard rendered the ’151 patent unenforceable. While Nokia’s proposal was ultimately rejected and replaced by a competing proposal, Nokia did not disclose its Finnish patent application to ETSI until four years later.

What we have here is a bunch of patents passed at Microsoft’s own directions (it explicitly instructed this) to a troll which then attacked Apple and Android/Linux. It’s one among many nasty things Microsoft did inside Nokia.

Qualcomm and AMD Want ‘Innovation’ by Embargo

Posted in Patents, RAND at 1:33 am by Dr. Roy Schestowitz

Pursuing patent deals (patents as a revenue source) by denying rivals even access to the market

Don't block

Summary: Campaigns of patent aggression at USITC (or ITC for short) look for embargoes — the most radical form of patent assertion

THE principal prospect of patents was simple: promotion of innovation. How? Publication. In exchange for what? A temporary monopoly. How would such a monopoly be enforced? Patent taxes? Threats? Lawsuits? Embargoes? It doesn’t say. But the practices evolved or devolved over time. For the objective of innovation to be served it’s not hard to see that complete monopolisation should be actively discouraged. It reduces choice and limits the number of people permitted to work in a certain discipline.

Florian Müller has long written about Qualcomm‘s patent aggression and before the weekend he wrote about its efforts to ban imports by Apple: [via]

A day before an originally-scheduled-then-canceled hearing on a motion by a group of class-action consumers to enjoin Qualcomm from enforcing a hypothetical ITC exclusion order (i.e., a U.S. import ban) against Intel-powered iPhones, Judge Koh has denied the motion without prejudice. One might also say: with an invitation to try again later.

More than a month ago, I analyzed Qualcomm’s opposition and plaintiffs’ reply brief, and wrote that “Qualcomm’s timing-related arguments appear[ed] potentially more interesting to me than the other points it [made].” And indeed, timing was outcome-determinative, for the time being: Judge Lucy Koh of the United States District Court for the Northern District of California based her decision on the Supreme Court’s 2013 holding in Clapper, a case in which Amnesty International and others expressed fears over the federal government, under the Foreign Intelligence Surveillance Act (FISA), intercepting communications between U.S. citizens and foreigners in ways that would infringe on some people’s constitutional rights. In Clapper, the Supreme Court declined to see “certainly impending” injury in a “highly attenuated” chain of possibilities, given that multiple decisions that could go either way had to go one particular way (in each case) in order for the alleged injury to materialize. To the Supreme Court, this was just “too speculative,” and Judge Koh identified parallels with the consumer motion against Qualcomm, given that even if Qualcomm prevailed on the merits of one or more patents-in-suit, the ITC might not grant the exclusion order (broad except that it’s limited to Intel-powered iPhones, which does raise competition concerns) in the form Qualcomm is seeking, that the ITC decision would be appealable, and the President could veto it.

A day or so later Müller added this update about antitrust aspects:

Four months prior to the FTC v. Qualcomm antitrust bench trial in the Northern District of California, the U.S. Federal Trade Commission has brought a motion for partial summary judgment that has the potential to make a far greater contribution to fair competition in the wireless baseband chipset market than the procedural context (a pretrial motion) suggests. The FTC is asking Judge Lucy Koh to hold that, under certain (F)RAND licensing obligations it entered into when it participated in wireless standard-setting, Qualcomm must licenses its CDMA, UMTS and 4G/LTE standard-essential patents (SEPs) to rival chipset makers (such as Intel).

This is an unusual situation in which a summary judgment motion is legally extremely simple, yet has the potential for truly transformative impact on the marketplace. In most situations where a party is seeking a game changer, reasonably tricky question of law and/or fact are involved. Here, the FTC is just seeking clarification that Qualcomm’s FRAND licensing commitments say what they say.

It has meanwhile emerged, as per Watchtroll, that ITC is leveraged for more embargo attempts and it’s succeeding. AMD has just had something to celebrate; it resorted to embargo tactics against VIZIO, SDI and MediaTek last year. Who’s behind it?

AMD was represented by attorneys Michael Renaud, Jim Wodarski, Michael McNamara, Bill Meunier, Adam Rizk, Marguerite McConihe, Matthew Karambelas, and Catherine Xu, and Aarti Shah, of Mintz Levin Cohn Ferris Glovsky & Popeo PC.

The AMD complaint alleged violations of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and was based upon the unlawful importation into the United States, the sale for importation, and the sale within the United States after importation of certain graphics systems, components thereof, and consumer products containing the same. The importation in question was asserted to infringe certain claims of the U.S. Patent No. 7,633,506 (“the ’506 patent”); U.S. Patent No. 7,796,133 (“the ’133 patent”); U.S. Patent No. 8,760,454 (“the ’454 patent”); and U.S. Patent No. 9,582,846 (“the ’846 patent”).

Another article, this one by Anton Shilov (veteran writer on hardware matters), says this:

AMD has won a round in its legal battle against makers of TVs at the United States International Trade Commission (US ITC). The Commission found that Vizio and Sigma Designs have infringed one of AMD’s patents covering fundamental aspects of modern GPUs. The ITC ordered to cease imports of some of Vizio TVs to the U.S.

Back in early 2017, AMD filed a lawsuit with the US ITC against LG, MediaTek, Sigma Designs, and Vizio. The plaintiff accused the defendants of infringing three patents covering fundamental aspects of contemporary graphics processing, such unified shaders (‘133), parallel pipeline graphics system (‘506), as well as a graphics processing architecture employing unified shaders (‘454). Furthermore, the complaint referenced an in-progress patent application covering GPU architectures with unified shaders (‘967) and accused two of the said companies of infringing it as well. Meanwhile all the defendants license (or licensed) their GPU technologies from ARM and Imagination Technologies (though, as we reported back in early 2017, it looks like AMD only accuses SoCs based on ARM’s architecture of infringing its patents).

I have some professional background in computer graphics albeit not GPUs (or shaders); the above clearly aren’t software patents (so 35 U.S.C. § 101 does not apply) because processing commands in silicon (the ‘pipeline’) is about accelerating execution of code/signal generation. In the case of Qualcomm we’re looking at standard-essential patents (SEPs) — i.e. patents one cannot avoid stepping on — for the implementation of mobile communication, as per industry standards. There are some software patents in there, but most are not.

What we see here is monopolisation taken to the extreme; one must pay particular companies a lot of money to merely comply or conform to standards or else be barred from import/export. How is that good for innovation? The whole FRAND euphemism does not begin to describe just how unjust that is. There should be no patents in such widely-used standards (whose embrace isn’t merely a choice).

07.18.18

IAM is Pushing SEPs/FRAND Agenda for Patent Trolls and Monopolists That Fund IAM

Posted in Deception, Patents, RAND at 6:39 pm by Dr. Roy Schestowitz

Sponsored by Microsoft-connected patent trolls such as Finjan, who also just ‘happen’ to be speakers at this upcoming event

Finjan speaker

Summary: The front group of patent trolls, IAM, sets up an echo chamber-type event, preceded by all the usual pro-FRAND propaganda

PATENTS are OK as long as they don’t obstruct access to a market. It should be possible to work around them one way or another, otherwise the USPTO becomes merely a monopoly protector or protectionism agency. If patents are about innovation, one must keep this in mind.

“Rokt’s software patent to take centre stage in high-stakes hearing,” said this new headline. “Motorola Solutions Wins Patent Infringement Lawsuit Against Hytera Mobilfunk GmbH Resulting in Injunction and Recall,” said another. In one case we see software patents and in the latter an embargo. Is the public well served by these? Probably not. How about this (almost) week-old report stating that a “federal appeals court on Thursday declined to reconsider a recent decision reinstating a patent infringement lawsuit against Apple Inc.”

The patent in question is very… questionable. So are many of IBM’s patents, which are simply software patents asserted in bulk (to make legal challenges a lot more expensive). We wrote about that yesterday and earlier today Richard Lloyd from the patent trolls’ lobby fired the headline “IBM’s infringement suit against Groupon shows it’s still a licensing heavyweight” (celebrating extortion). This malicious lobby, only about a month after corrupt Battistelli had given a keynote speech at its US think tank-type event, today announced that a lobbyist, Makan Delrahim, will keynote its extortion event (“patent licensing event”). To quote:

Makan Delrahim, the assistant attorney general for the Antitrust Division of the US Department of Justice, has been comfirmed as the keynote speaker at Patent Licensing 2018, IAM’s annual event focusing on the key issues affecting licensees and licensors, and their dealmaking strategies, in the US and beyond.

Suffice to say, the event will be an(other) echo chamber for SEPs/FRAND proponents, who also fund IAM and this event. Delrahim, being a lobbyist, probably won’t feel too uncomfortable in such a setting.

Going back to Richard Lloyd, who is fronting for patent trolls and patent lawyers, he has this update on standard-essential patents (SEPs). It’s about Ericsson, which not only acts like a patent troll but also created several dedicated patent trolls to serve as proxies. Lloyd wrote:

Ericsson has put together the CAFC brief for its appeal against the Central District of California federal court’s decision in its litigation with Chinese handset manufacturer TCL. This sets the scene for the next round of one of the most consequential disputes over standard essential patents (SEPs) that the mobile sector has seen in the US for many years. The document was filed more than six months after Judge James Selna largely sided with TCL over its claims that the Swedish telecoms giant’s licensing offers for its 2G, 3G and 4G patents were not FRAND.

“After almost a decade of litigation, Philips wins India’s first-ever SEP infringement decision,” Jacob Schindler (Lloyd’s colleague) wrote, having already repeatedly bashed India in an effort to make software patents legal there. This time it’s about Philips and its standard-essential patents:

After a number of very significant interim judgments in telecom licensing cases, the Delhi High Court has for the first time issued a SEP infringement verdict following a full trial. Philips was the beneficiary of the decision, in a case centered on the DVD Video and DVD ROM standards. But practitioners say the ruling leaves unaddressed questions on what constitutes FRAND conduct and abuse of dominant position in India. The lawsuit arose all the way back in 2009, when Philips sued two local companies – Manglam Technology and Bhagirathi Electronics – for making infringing DVD players.

Expect IAM to keep pushing this sort of toxic agenda, which merely acts as a “patent thicket” that obstructs competition and taxes the public.

IAM is not a news site. It is a front group disguised as a news site/publisher.

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