It's all about money to them; even if that means demolishing the law itself

Summary: The attack on 35 U.S.C. ۤ 101, which invalidates most if not all software patents, as seen through the lens of a Battistelli- and Iancu-led lobbying event (set up by IAM)

MIRACULOUSLY enough, the EPO's management has managed to become Europe's great embarrassment, having aligned itself with radical elements such as Team UPC and patent trolls' lobbies such as IAM and Watchtroll. Those who aren't familiar with these might think that it's not a big deal. But it is. It is.

"ۤ 101 is currently the main barrier to software patents in the US."For a number of years the patent maximalists (some of whom are radical enough to be called extremists) have been attempting to bypass the law. They come up with all sorts of tricks and even fabricate 'news' in order to oust officials whom they view as a 'threat' (like Michelle Lee). Some of these extremists work for think tanks of billionaires with a financial agenda, whereas others are literally funded by aggressive patent trolls. Either way, it's scary to think that they wield enough influence to change laws, leadership and so on.

ۤ 101 is currently the main barrier to software patents in the US. We write about this several times per week. ۤ 101 has been very good for software developers, testers and users simply because programmers everywhere loathe software patents and never asked for software patents in the first place.

"ۤ 101 has been very good for software developers, testers and users simply because programmers everywhere loathe software patents and never asked for software patents in the first place.""Can Blockchain Technology Transform the Intellectual Property (IP) Industry" says this new headline, which one can tell is a load of nonsense given the use of propaganda terms like "Intellectual Property" (they could just say patents instead). These people refer either to management of knowledge or patenting of algorithms involving "blockchains" (they typically just allude to some general-purpose databases). But this is part of an ongoing hype wave, which is also infecting the patent world (legal/law), not just the various domains of technology.

CoinAnnouncer's Amy Tori has just done the same thing, having stated the following in her article "Blockchain Platforms Grabbing Patents":

When trying to measure the pace and scope of innovation in the blockchain world, look no further than the speed of patent applications in the field. Startups, established companies, researchers, and tinkerers all filed over 1200 blockchain patent applications (more than doubling 2016’s total) in 2017 in South Korea, the U.S., Japan, China, and Europe. In the U.S, patent applications have skyrocketed to over 700 as of early 2018, (though the number could be higher thanks to restrictions on public information about recent filings). China leads the world in blockchain patent applications.

Blockchain’s relationship with the patent system is a complicated, untested, and at times fraught one. At the same time, patents are driving essential innovation in the blockchain world.

[...]

European applicants have struggled to receive approval thanks to ambiguity over whether blockchain is a business model or software platform (which are not patentable) versus a new technological invention. Data on the success of patent applications in the U.S. is still emerging, but successful applications have indeed been granted over the past year to entities such as CoinBase or Goldman Sachs.

Notice that part about Europe. Some European patent lawyers/attorneys have openly complained about it. They just want lots and lots of software patents and say so explicitly (Bastian Best comes to mind). Blockchain hype waves are still being used to get software patents not just in China (which permits it) but in countries that disallow software patents. We routinely cover examples from the US. How about India, which does not allow software patents? Richa Bhatia thinks that the "AI" hype (nowadays they just use buzzwords for disguising software patents) is spreading to India. She wrote this yesterday:

Should AI Be Allowed To Get Patents? How Can Indian Companies Protect Their Inventions?

[...]

Herbert Roitblat, principal data scientist at Mimecast, an international company which specialises in cloud-based email management, had said that the older view was that algorithms were not patentable because they were “discovered” and not invented from scratch. Another viewpoint is that algorithms cannot be patented because traditionally they only list down a set of instructions to follow. The principal data scientist argues that even though current AI applications are suited for particular tasks, the ultimate goal is to advance artificial general intelligence. For example, DeepMind’s recent innovation AlphaGo Zero can be patented since it is a general-purpose system built to advance AGI and not just play the game.

[...]

India also excludes computer programmes or algorithms from getting patented as per the Computer-related Inventions (CRIs). Hence patents can only be granted if they pass the software patent eligibility test and are combined with hardware aspects to be registered under Indian patent law. According to US and India-based IP consultants, companies which want to claim IP protection should follow these guidelines...

[...]

A section of lawyers believes that copyright laws are antiquated and should be updated to reflect current technological developments.

AI researchers also argue that as AI-facilitated innovations evolve, the law should be changed to take into account inventions co-created by AI.

What we are trying to draw attention to here is the flagrant (mis)use of buzzwords. The "ICT" buzzword (or three-letter acronym) is still being used extensively by the EPO and as we noted earlier this week, the EPO now has a seemingly new Web page dedicated to it: http://epo.org/ict

Yesterday the EPO spoke of "patents & artificial intelligence at CEBIT" (here we go with "AI"!), basically promoting that nonsense yet again (Georg Weber doing it this year in CeBIT, just as he did a year ago at the same event). The full tweet said: "Need a new perspective? Talk to us about patents & artificial intelligence at CEBIT 2018! We are in Hall 27. http://epo.org/ict #CEBIT18 pic.twitter.com/Hlibu8oUFD"

Yes, there's a photo there as well. But more interesting were the retweets from the EPO about what happened the day beforehand, courtesy of Benoît Battistelli and IAM.

"The anti-ۤ 101 lobby is not motivated by care for science and technology. It's often motivated by clear and open disdain for both."For those who missed it, IAM set up a patent trolls-funded event that deals with ۤ 101 eligibility issues by basically attacking ۤ 101. They're openly promoting software patents and the audience/speakers make no pretense about it. It's a lobbying event with a particular agenda/desired outcome.

A Koch Brothers-funded supporter of patent trolls, Adam Mossoff, was also included in this lobbying event of IAM, basically pushing software patents and attacking PTAB as usual. We only know this because the CCIA was there too, later writing this very long rebuttal that begun thusly:

I’m out at IPBC Global this week, and one of the hot topics of conversation here is patent eligibility under €§ 101. In fact, Director Iancu’s remarks focused heavily on €§ 101, and the panel I spoke on debated the relative importance of patent quality and patent eligibility. (I argued that patent quality is more important than eligibility; the audience agreed with my side of the argument.)

As part of this discussion, I’ve heard a few people mention Prof. Adam Mossoff’s “Gold Into Lead” article comparing patent eligibility between the U.S. and other patent offices. Mossoff’s article claims it identified, from a database of 17,000 applications, a set of 1,700 that were allowed in China or Europe, but rejected in the U.S. based on €§ 101 eligibility issues.

This might be concerning, if there weren’t reasons to have serious questions about the article’s conclusions.

Mossoff’s track record is well documented, even in Techrights. He's what we consider to be one of the patent extremists. He blocked me in Twitter because he could not tolerate my views (and possibly because I pointed out who was funding his 'work'). IAM used to block me as well, but eventually it realised that it wasn't actually effective. Not at all.

"...ۤ 101 is a very big deal because it restricts -- for a change -- patent scope (for the first time in decades)."The anti-ۤ 101 lobby is not motivated by care for science and technology. It's often motivated by clear and open disdain for both. One patent maximalist wrote: "Submitted to publisher manuscript for a revision: 165th since first publication 40 years ago. Some things have changed with patent law since then. Some not. Biggest issue in 1978: Section 101 patent eligible subject matter!! And for 2018."

Yes, ۤ 101 is a very big deal because it restricts -- for a change -- patent scope (for the first time in decades). "Iancu calls for 101 shake-up," Joff Wild's headline declares in the outline of this lobbying event. The patent microcosm, IAM included, heavily lobbies and relies on Iancu -- a part of the 'family', having come from the litigation 'industry' himself (his firm had worked for Trump too).

The "new USPTO director Andrei Iancu made clear that the patent eligibility regime in the US had become dysfunctional and that further PTAB reforms are on the cards," Wild wrote. These aren't exact words or even quotes, but it sounds more like Wild just writes his own views, attributing these to Iancu. Watchtroll habitually does the same thing.

"Don't be easily distracted by the late articles and puff pieces about the European Inventor Award..."Then came the part about Battistelli. The EPO retweeted IAM a couple of times, first on this tweet about Battistelli's new buzzword (acronym) for software patenting, "4IR". It says: "Rate of growth in 4th Industrial Revolution-related patent applications at ⁦ @EPOorg⁩ over last five years is 54%. Overall growth rate at office 7.6% - Battistelli"

They just made up some term and then claim growth, just like other firms do with vague terms like "cloud". Another tweet said: "Europe’s patent balance. Interesting slide from ⁦ @EPOorg⁩’s Battistelli"

Yes, go on and suck up to Battistelli while he promotes software patents by IAM's own admission (this admission came several months prior to this talk). Battistelli even promotes software patents in the United States, where such patents are on the way out.

"Yesterday at 3 AM in the morning (English time) Battistelli's propaganda rag IAM wrote about "Battistelli legacy," saying nothing about his corruption and abuses at the EPO (he's working for IAM now)."Don't be easily distracted by the late articles and puff pieces about the European Inventor Award (here's the latest example). Battistelli would rather have people read 'articles' composed by the several PR firms which he hired this month. Just "a few days ago in Saint-Germain-en-Laye," writes Benoît Battistelli in his 'blog' (warning: epo.org link), not mentioning that this whole 'Inventor Award' helped him pass a lot of money to his other employer (Saint-Germain-en-Laye).

Yesterday at 3 AM in the morning (English time) Battistelli's propaganda rag IAM wrote about "Battistelli legacy," saying nothing about his corruption and abuses at the EPO (he's working for IAM now). Here's Joff Wild's piece titled "The Battistelli legacy," starting with the typical Big Lie about "quality". The EPO "Pravda" (IAM) basically repeats its latest propaganda which Battistelli likes to cite. IAM does not even pretend to have any independence anymore; it's being paid by the EPO's PR firm. Here they go:

Quality commitment - Today’s proceedings kicked off with a keynote presentation by Benoît Battistelli, the outgoing president of the European Patent Office. The 2018 IAM annual benchmarking survey revealed that the EPO enjoys the highest approval rating among our readers, being perceived to grant the highest quality patents of any of the IP5 offices. Battistelli’s speech set-out how the EPO has achieved this: it has not only built the examiner corps up to 4,400, but also introduced a two-year training programme for new recruits; and the EPO is the only major IP office not to outsource any of its key functions. The office’s patent database is larger than any other, while it offers access to 50 million original patent documents from Asia. It is also the first major office to achieve ISO 9001 re-certification for the whole patent process, Battistelli added. These measures were among the reasons why, as Battistelli pointed out, the office had been able to increase productivity, with patent grants increasing at a faster rate than applications between 2010 and 2017 – and unit costs decreasing over the same timeframe. Further digitalisation of services and a commitment to being at the forefront of developments in artificial intelligence would help the EPO to maintain the quality and efficiency of its services, Battistelli concluded. (AH)

This is followed by Microsoft's AI-washing of software patents (as we noted the other day):

Microsoft’s Nicolas Schifano used the example of basketball’s Dallas Mavericks, who won the 2011 NBA championship after the team partnered with a start-up which collected huge amounts of data and used AI techniques to help change tactics. That led to the Mavericks attempting and making far more three-point shots, something that meant they could overcome their underdog status to beat the favoured Miami Heat. It was one clear example of why AI’s long-term significance is an undoubted slam-dunk.

Grotesque whitewashing of Battistelli then follows. Just like a paid advertiser of Battistelli, Joff Wild writes: "As Battistelli gave his keynote presentation this morning it was hard not to think that we were watching and listening to a man very keen to cement a legacy. Seen from afar his achievements are significant: he has transformed working practices at the office, improved efficiency, put the agency on a firmer financial footing and increased Europe’s international influence, all while maintaining the EPO’s reputation as the issuer of the highest quality patents among the IP5."

"Battistelli was an utter disaster and merely a liability to 'unitary' patents because his own abuses are a barrier to UPC; the constitutional complaints have a lot to do with the EPO's violations of the law."And here's the UPC part: "Should it also be issuing unitary patents that a Unified Patent Court system is largely finding valid when cases come before it, then basically everything Battistelli set out to achieve when he started his job back in 2010 will have been done and all the negatives will be forgotten."

Battistelli was an utter disaster and merely a liability to 'unitary' patents because his own abuses are a barrier to UPC; the constitutional complaints have a lot to do with the EPO's violations of the law. Battistelli ensured that his own pick, the fellow Frenchman António Campinos, takes his place. This way he won't be held accountable by a successor for corruption and other abuses at the EPO (Campinos is a former banker, so surely he can see and understand Battistelli's rogue financial moves).

Expect IAM to remain a loyal fan of both Battistelli and Campinos. IAM knows the palm which feeds it. The remainder of that long summary/outline is filled with patent maximalism. There's “Toward FRAND 2.0” and other patent maximalists' nonsense (that's what the whole event was about, organised by the patent trolls' lobby itself).

"...there's no indication whatsoever that US Congress or even the higher patent courts in the US will revisit/revise 35 U.S.C. ۤ 101."Those who attended IAM's event probably drank enough Kool-Aid to believe that ۤ 101 (as we know it) is going away or getting watered down. But it's up for judges to decide, not a bunch of predatory lawyers preaching to another predatory lawyer called Iancu.

In Pernix Ireland Pain DAC v Alvogen Malta Operations Ltd. (mentioned here yesterday morning) ۤ 101 did not apply, but it had nothing at all to do with software. It's hard to find technical cases where ۤ 101 challenges ultimately fail, so of course patent maximalists such as Kevin Noonan would cherry-pick this one:

It appears that Judge William C. Bryson, U.S. Appellate Court Judge on the Federal Circuit bench, is riding the circuit these days, peripatetically ruling on the St. Regis Mohawk Tribe's motion to join ANDA litigation in the Eastern District of Texas last October and, last week, denying Defendant's motion to reconsider his grant of summary judgment that the claims at issue in Pernix Ireland Pain DAC v. Alvogen Malta Operations Ltd. were not invalid for being patent-ineligible subject matter under 35 U.S.C. ۤ 101.

Well, this case had nothing whatsoever to do with abstract patents, but this one seems good enough (at least for Noonan) to give an impression of a rebound. There's no such rebound and there's no indication whatsoever that US Congress or even the higher patent courts in the US will revisit/revise 35 U.S.C. €§ 101. ⬆