Bonum Certa Men Certa

Links 15/11/2021: Linux 5.16 RC1 Released

  • GNU/Linux

    • Linux Weekly Roundup #156

      We had a peaceful week in the world of Linux release with the releases of ArcoLinux 21.11.05, Bluestar Linux 5.15.2, and SparkyLinux 6.1.

    • 9to5Linux Weekly Roundup: November 14th, 2021

      This has been yet another great week with cool Linux news, starting with Valve's SteamOS 3.0, which will be available for download after Steam Deck's launch in February 2022, and continuing with the latest Raspberry Pi OS release based on Debian Bullseye.

      On top of that, I take a look at an unofficial LineageOS build for Raspberry Pi 4 computers based on Google's Android 12 mobile operating system. You can enjoy these and much more in 9to5Linux's Linux weekly roundup for November 14th, 2021, below!

    • Audiocasts/Shows

    • Kernel Space

      • Linux 5.16-rc1
        It's been two weeks, and the merge window is thus closed.

        I actually anticipated more problems during the merge window than we hit - I was traveling with a laptop for a few days early on in the merge window, and that's usually fairly painful. But - knock wood - it all worked out fine. Partly thanks to a lot of people sending in their pull requests fairly early, so that I could get a bit of a head start before travels. But partly also because I didn't end up having any "uhhuh, things aren't working and now I need to bisect where they broke" events for me on any of my machines. At least yet.

        So who knows? Maybe this will be one of those painless releases where everything just works.


        Anyway, it's not a huge release, although it's also not a remarkably small one like 5.15 was (ok, "remarkably small" is relative, when even such small releases have 10k+ commits).. There's a bit of everything in here, and you can look to the appended mergelog for some kind of flavor, but I guess the folio work is worth mentioning, since it's an unusually core thing that we don't tend to see most releases. The intent is to have a more efficient and type-safe way to specify "head of a group of pages", rather than the page pointers and "compound_head()" and friends.

        That said, the folio changes may be unusually core, but they certainly aren't the bulk of the changes. Pretty small in the end, with the real meat and potatoes being all the usual stuff. As always, most of the changes are to drivers (gpu, networking, sound and staging stand out, but it's all over) and architecture code. Hardware support is the bulk of the code, it gets the bulk of the changes. But we obviously have all the normal other updates, with filesystem, networking, and core kernel code. With documentation and tooling support filling the gaps.

        And somewhat unusually, our library code stands out in the diffstat, thanks to the big update to a more recent version of upstream libzstd.

        Anyway, the merge window may have gone about as smoothly as I could hope for, but let's get the whole stabilization phase started with some serious testing, shall we?


      • Linux 5.16-rc1 Released With Intel AMX, FUTEX2, Folios & A Lot More
      • Torvalds releases Linux 5.16 rc1, with performance-enhancing memory tech
        Linus Torvalds has loosed the first release candidate for version 5.16 of the Linux kernel.

        In his Sunday afternoon State of the Kernel announcement, Torvalds indicated the merge window for the new release did not include any "uhhuh, things aren't working and now I need to bisect where they broke" moments.

      • Linus Torvalds Announces First Linux 5.16 Kernel Release Candidate

        While Linux kernel 5.15 is shy to appear in the stable software repositories of some of the most popular GNU/Linux distributions these days (hint: it just hit Arch Linux's repos on Friday), development on the next major kernel series, Linux 5.16, is ramping up, and now it’s time to go out and test the first RC (Release Candidate).

        Linus Torvalds just announced today the very first Release Candidate milestone of Linux kernel 5.16, which promises to be a great release for Linux gamers as it adds Collabora's FUTEX2 system call that brings better performance in modern games.

      • Linux 5.16's New Cluster Scheduling Is Causing Regression, Further Hurting Alder Lake - Phoronix

        Linux 5.16-rc1 is coming out later today and already I'm seeing some fallout in the new kernel's performance... In particular, bad news for Alder Lake that is already seeing the Linux performance trailing Windows 11 seemingly due to the lack of Thread Director integration right now in the kernel and any other missing optimizations around Intel's hybrid architecture. A new feature of Linux 5.16 is unfortunately having unintended regressions for Alder Lake with at least the flagship Core i9 12900K. Here are the results from the latest kernel bisecting that uncovered this latest upstream slowdown.

    • Applications

      • BleachBit 4.4.2

        When your computer is getting full, BleachBit quickly frees disk space. When your information is only your business, BleachBit guards your privacy. With BleachBit you can free cache, delete cookies, clear Internet history, shred temporary files, delete logs, and discard junk you didn't know was there.

        Designed for Linux and Windows systems, it wipes clean thousands of applications including Firefox, Internet Explorer, Adobe Flash, Google Chrome, Opera, Safari, and more. Beyond simply deleting files, BleachBit includes advanced features such as shredding files to prevent recovery, wiping free disk space to hide traces of files deleted by other applications, and vacuuming Firefox to make it faster. Better than free, BleachBit is open source.

      • PeaZip 8.3.0
        PeaZip is an open source file and archive manager. It's freeware and free of charge for any use. PeaZip can extract most of archive formats both from Windows and Unix worlds, ranging from mainstream 7Z, RAR, TAR and ZIP to experimental ones like PAQ/LPAQ family, currently the most powerful compressor available.

      • Top 9 Best Download Managers for Linux

        With the help of a download manager, users can easily download files from the Internet. It can be built into a Web browser, or as a stand-alone manager.

        Operating systems like Windows have thousands of options while choosing the right download manager for their system. In the case of Linux, there are only a few download managers available. Thanks to their incredible features, free and options, these available download managers fulfill the requirements easily.

        Here on this page, I have listed the best Download Managers for Linux.

    • Instructionals/Technical

      • How to play PAYDAY: The Heist on Linux

        Payday: The Heist is a co-op video game developed by Overkill Software and published by Daybreak Game Company. In the game, players are bank robbers and try to rob banks as fast as possible. Here’s how to play it on Linux.

      • How to play Tomb Raider: Anniversary on Linux

        Tomb Raider: Anniversary is a remake of the first Tomb Raider game that was released in 1996. The game follows protagonist Laura Croft as she searches for the Scion of Atlantis. Here’s how you can play Tomb Raider: Anniversary on Linux.

      • AWS SAM: Tutorial - Anto ./ Online

        This tutorial will show you how to use AWS SAM. You will see how to initialize a sample Python project, build it and deploy your code as an AWS Lambda function.

        As a side note - you are not limited to Python. The reason is that AWS SAM can use any runtime supported by AWS Lambda. Also, SAM is an extension of AWS CloudFormation. So, you get all the benefits and capabilities of AWS CloudFormation.

      • How to install Minetest on Elementary OS 6.0 - Invidious

        In this video, we are looking at how to install Minetest on Elementary OS 6.0. Enjoy!

      • Understanding Standard I/O on Linux

        Improve your Linux command-line workflow by piping multiple commands together using standard I/O.

        As you use Linux, you may come across references to "standard I/O," or "standard input," "standard output," and "standard error." What do these terms mean?

        Standard input is a term for the input that a command-based program receives. In interactive use, it is normally from the keyboard, but as you'll see later, it can also come from a file.

        While the keyboard these days is usually plugged directly into the machine, when text terminals were more common, standard input was taken from the terminal keyboard connected to a central minicomputer or mainframe. Modern Linux systems use terminal emulators or the system console for standard input.

      • How to Install Cockpit on Debian 11 Bullseye - LinuxCapable

        Cockpit is a free remote server manager that is lightweight and easy to use for GNU/Linux servers. Cockpit is a web-based graphical interface for servers intended for people new to Linux to the experts such as sysadmins. Cockpit makes Linux discoverable, allowing anyone using the software to perform tasks such as start containers, administer storage, configure networks, and inspect logs.

        In the following tutorial, you will learn how to install Cockpit on your Debian 11 Bullseye operating system.

      • How to Install Spotify on Linux

        Spotify is one of the biggest music streaming services out there. It has native clients for both mobile (Android and iOS) and desktop (Mac and Windows) devices.

        Unfortunately, though, Linux only gets an unsupported Spotify client. So if you plan on using Spotify on Linux, you can either install its unsupported desktop client or use the Spotify Web Player.

        In our opinion, using the desktop client—albeit unsupported—is still a better choice since it gives you access to all Spotify features otherwise unavailable on the web. Follow along as we demonstrate the steps to install Spotify on Linux.

      • How To Install CUDA on Ubuntu 20.04 LTS - idroot

        In this tutorial, we will show you how to install CUDA on Ubuntu 20.04 LTS. For those of you who didn’t know, CUDA stands for Compute Unified Device Architecture. CUDA comprises the CUDA toolkit ( compiler, profile, and debugger ), the software driver, and the CUDA SDK. The software layer gives direct access to the GPU’s virtual instruction set and parallel computational elements. For deep learning researches and framework developers use cuDNN for high-performance GPU acceleration.

        This article assumes you have at least basic knowledge of Linux, know how to use the shell, and most importantly, you host your site on your own VPS. The installation is quite simple and assumes you are running in the root account, if not you may need to add ‘sudo‘ to the commands to get root privileges. I will show you the step-by-step installation of the CUDA on Ubuntu 20.04 (Focal Fossa). You can follow the same instructions for Ubuntu 18.04, 16.04, and any other Debian-based distribution like Linux Mint.

      • How to install RabbitMQ in OpenSUSE Leap 15.3

        In this guide we will explore how to install the latest release of RabbitMQ in OpenSUSE Leap 15.3 server or Workstation

        RabbitMQ is an open source message broker software that implements the Advanced Message Queuing Protocol (AMQP). RabbitMQ works by receiving messages from publishers (applications that publish them) and routes them to consumers (applications that process them).

      • How to upgrade Linux Kernel on Rocky Linux/AlmaLinux/CentOS 8

        In this guide I will show you how to upgrade our Linux Kernel to the latest version on our Rocky Linux/ AlmaLinux and CentOS.

        Linux Kernel is a free and open source, monolithic, modular, multitasking unix-like operating system. It is the main component of a Linux operating system and is the core interface between the computer’s hardware and its processes. It makes communication possible between computer hardware and processes running on it and it manages resources effectively.

      • How to install Erlang on Opensuse Leap 15.3

        Erlang is a functional, general-purpose, concurrent programming language and garbage-collected runtime environment built for concurrency, fault tolerance, and distributed application architectures. It is supported and maintained by Ericsson OTP product unit.

        In this guide, we will install Erlang/OTP in a Opensuse Leap 15.3.

      • Install Apache JMeter on Ubuntu 20.04 LTS Focal Fossa

        Apache JMeter is open-source like any other Apache foundation project. It is meant to analyze system functional behavior by running performance tests, regression tests, stress tests, and database servers based on different technologies. However, earlier it was designed to test only web applications.

        JMeter is Java-based, hence can be used to know what would be the performance of various applications and software. It sends a request to web or application servers for different loads by simulating browser behavior. The scripting language for JMeter is Groovy (an object-oriented programming language used for the Java platform). Browser plugins are also supported in this testing platform.

    • Distributions

      • Reviews

        • Review: Waydroid

          Waydroid seems like a good idea and a useful concept. It's even relatively easy to set up, assuming you are running a distribution with the necessary kernel features and a modern Wayland session. The command line syntax for Waydroid is quite straight forward and it even has little helpful blurbs on what options are available. In short, the Waydroid project seems to be doing several things well.

          While I could install Android apps into the container and even run them (according to my system monitor), I was unable to ever see any Android apps or interface. Perhaps I'm missing a key component, perhaps it's a bug. I looked through the Waydroid log (kudos to the team for making logging and debugging a key feature right from the start), but I was unable to find any problem. There was a warning at times about Waydroid not being able to identify the "host_user", but the "waydroid status" output also showed it correctly found my username and ID.

    • Devices/Embedded

  • Leftovers

    • Tiny Talisman Warns Wearer About UV Exposure | Hackaday

      Given how important our Sun is, our ancestors can be forgiven for seeing it as a god. And even now that we know what it actually is and how it works, it’s not much of a reach to think that the Sun pours forth evil spirits that can visit disease and death on those who bask too long in its rays. So an amulet of protection against the evil UV rays is a totally reasonable project, right?

    • Hardware

      • Forget Radio! Transmitting With Neutrons | Hackaday

        Throughout history, people have devised ways to send information across long distances. For centuries we relied on smoke signals, semaphores, and similar physical devices. Electricity changed everything. First the telegraph and then radio transformed communications. Now researchers at the University of Lancaster have demonstrated another way to send wireless data without using electromagnetic radiation. They’ve harnessed fast neutrons from californium-252 and modulated them with information with 100% success.

        The setup was interesting. The radioactive material was encased in a cubic meter steel tank filled with water. A pneumatic system can move the material to one edge of the tank which allows fast neutrons to escape. A scintillating detector can pick up the increased neutron activity. It seems like it is akin to using what hams call CW and college professors call OOK (on off keying). You can do that with just about anything you can detect. A flashlight, knocking on wood, or — we suppose — neutrons.

    • Health/Nutrition/Agriculture

      • Regeneron Antibody Cocktail Approved by European Commission to Treat and Prevent COVID-19

        Regeneron Pharmaceuticals, Inc. (NASDAQ: REGN) today announced that the European Commission (EC) has approved the casirivimab and imdevimab antibody cocktail, known as REGEN-COV€® in the U.S. and Ronapreveâ„¢ in the European Union (EU) and other countries. The EC granted marketing authorization for the antibody cocktail for people aged 12 years and older for the treatment of non-hospitalized patients (outpatients) with confirmed COVID-19 who do not require oxygen supplementation and who are at increased risk of progressing to severe COVID-19, and to prevent COVID-19. This decision follows yesterday's positive opinion by the European Medicines Agency's (EMA) Committee for Medicinal Products for Human Use (CHMP).

      • 9 Meters Biopharma, Inc. Announces Immuno-Oncology Collaboration with Gustave Roussy for NM-102, a Gut Microbiome Modulator
      • Patent Docs: FDA Issues Final and Draft Guidances on Biosimilar Development under BPCIA

        In September, the U.S. Food and Drug Administration issued Final Guidance entitled "Questions and Answers on Biosimilar Development and the BPCI Act: Guidance for Industry," and Draft Guidance entitled "New and Revised Draft Q&As on Biosimilar Development and the BPCI Act (Revision 2)."

        The Final Guidance provides its Answers in final form, having been subject to the notice and comment requirements for FDA Guidances and originally promulgated as Questions and Answers on Biosimilar Development and the BPCI Act (April 2015) and New and Revised Draft Q&As on Biosimilar Development and the BPCI Act (Revision 2) (December 2018). The Answers are classified into three groups: biosimilarity or interchangeability; provisions related to the requirement to submit a BLA for a "biological product"; and exclusivity.

    • Finance

    • Monopolies

      • Pharma wary of counterfeiting becoming crime against humanity [Ed: A "crime against humanity"??? Only lunatics would compare sharing to piracy and misuse labels like "crime against humanity"...]

        Industry sources say calls to make counterfeiting a crime against humanity could help raise awareness, but add that they might not make a practical difference

      • Week Ahead in Intellectual Property: Nov. 1, 2021 [Ed: This headline is nothing but a misleading propaganda term, in this case promoted by a billionaire-owned 'news' network]
      • Patents

        • Supreme Court of Canada denies leave regarding lisdexamfetamine patent decision

          As previously reported, Apotex sought leave to appeal a decision of the Federal Court of Appeal (2021 FCA 52) affirming a Federal Court decision finding that the claims of a patent relating to lisdexamfetamine (Shire’s VYVANSE) were valid and prohibiting the Minister of Health from issuing a Notice of Compliance to Apotex for its product until the patent’s expiry. On October 7, 2021, the Supreme Court of Canada denied leave to Apotex (Apotex v Shire, Docket No. 39662).

        • Senators slam Albright over 'extreme concentration' of patent cases [Ed: Very related realisation of the obvious]

          A bipartisan pair of U.S. senators have accused U.S. District Judge Alan Albright of misusing his power to make his Waco, Texas court a hotbed for patent litigation, in a letter to U.S. Chief Justice John Roberts.

          Republican Senator Thom Tillis of North Carolina and Democratic Senator Patrick Leahy of Vermont in their Tuesday letter criticized the "extreme concentration of patent litigation" in the U.S. District Court for the Western District of Texas and the "unseemly and inappropriate conduct that has accompanied this phenomenon."

          Leahy and Tillis are the chair and ranking member, respectively, of the Senate Judiciary Committee's Subcommittee on Intellectual Property. The senators didn't mention Albright by name in the body of the letter, but refer to him in several footnotes.

        • Loconsole on a Recent Italian Patent Damages Decision

          This decision--Cappellotto S.p.A v. Farid Industrie S.p.A., Cassazione civile sez. I - 02/03/2021, n. 5666-- was previously discussed by Giulia Pasqualetto and Federica Franchetti on EPLaw (in both a short post a longer, four-page write-up), as I noted here. It is now also the subject of a short article by Michele Loconsole, Reasonable Royalty and "Adequate" Compensation for Patent Infringement: Italian Supreme Court, No. 5666/2021, 43 E.I.P.R. 752-54 (2021).

        • More Venue and Corporate Games: This time with ANDA filing [Ed: Patents misused in the patent system, gaming it]

          Celgene markets a drug treatment for multiple-myeloma (pomalidomide) covered by several of its patents. Mylan created and submitted an ANDA to the FDA, requesting permission to make a generic version of the drug and arguing that the Celgene’s patents were invalid.

          Celgene then sued in D.N.J. and Mylan argued improper venue. Notably, Mylan argued that it is not incorporated in N.J., it does not have any regular-and-established place of business in N.J., and it did not commit acts of infringement in N.J. The state-of-incorporation was not contested, but the other two factors were hotly debated.

          Lets talk first about acts of infringement. Remember for 271(e), the act of infringement is submitting the ANDA to the FDA. Here, Mylan created its ANDA documents at its West Virginia office and submitted them electronically from that location. The FDA is headquartered in Maryland, and that was the office that received the ANDA documents. Thus, it is clear that Mylan’s acts were in W.V., and probably also in Maryland, but not in N.J.

        • Celgene Corp. v. Mylan Pharmaceuticals Inc. (Fed. Cir. 2021)

          The question of the proper court for a branded pharmaceutical maker to bring suit against an Abbreviated New Drug Application filer under the Hatch-Waxman Act is surprisingly unsettled seeing as the Act was enacted in 1984. The Federal Circuit brought some measure of clarity to the question recently when it affirmed a District Court dismissal of an ANDA action on improper venue grounds, in Celgene Corp. v. Mylan Pharmaceuticals Inc.


          Having dispensed with the venue question, the Court next addressed an issue of sufficiency of the pleadings in the District Court's dismissal of Celgene's complaint against Mylan N.V. On the Rule 12(b)(6) question, the panel found persuasive, in reviewing the decision de novo, that MPI and not Mylan N.V. had signed the ANDA and that MPI had not acted as Mylan N.V.'s corporate alter ego (as had the District Court). In coming to this conclusion, the Court relied heavily on the procedural principles underlying the Supreme Court's decisions in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), regarding Celgene's failure to establish either ground for Mylan N.V.'s liability based on assertion of insufficient facts. The opinion summarizes Celgene's asserted litany of possible liability-inducing facts as being "too conclusory" and "[j]ust not enough." The Court expressly rejected Celgene's attempt to analogize the situation in this case with that in In re Rosuvastatin Calcium Pat. Litig., 703 F.3d 511 (Fed. Cir. 2012), where, according to the opinion, "the entity that signed the ANDA sought to escape liability because it claimed that it was only filing the ANDA as the agent of a Canadian company" (emphasis on opinion). In this case all that Celgene had asserted was "unadorned suspicion" of defendants "working in concert" for an ANDA where only MPI submitted the ANDA in question.

          On the leave-to-amend question, the Court held the District Court had not abused its discretion on the facts before them. In addition, the opinion states that Celgene had not complied with the District Court's local rules (based on a deadline for filing amendments to the complaint). Celgene unsuccessfully argued that the District Court applied the wrong deadline based on a difference in such deadlines in other related cases as set forth above. Unfortunately for Celgene, however, the parties had stipulated that resolution of Rule 12 motions in this case would be governed by the decision in the earlier case, and the Federal Circuit applied this stipulation to the question before it under Rule 15. And further, the opinion notes that Celgene had not made this argument before the District Court, further dooming its efforts before the Federal Circuit.

          The Court's precedential decision establishes the principle that a notice letter under Paragraph IV cannot form the basis for establishing venue and reinforces the primacy of the principles enunciated in Cray in patent venue cases, here as applied in ANDA cases. For those reasons alone the decision is a significant advance in certainty regarding the requirements for establishing venue.

        • Merck Will Share Formula for Its Covid Pill With Poor Countries [Ed: Not the same as actually cancelling the patents and also a selective application of them, which is designed to keep the price artificially high]

          Merck has granted a royalty-free license for its promising Covid-19 pill to a United Nations-backed nonprofit in a deal that would allow the drug to be manufactured and sold cheaply in the poorest nations, where vaccines for the coronavirus are in devastatingly short supply.


          Merck reported this month that the drug halved the rate of hospitalizations and deaths in high-risk Covid patients who took it soon after infection in a large clinical trial. Affluent nations, including the United States, have rushed to negotiate deals to buy the drug, tying up large portions of the supply even before it has been approved by regulators and raising concerns that poor countries could be shut out of access to the medicine, much as they have been for vaccines.

          Generic drug makers in developing countries are expected to market the drug for as little as $20 per treatment (a 5-day course), compared to the $712 per course that the U.S. government has agreed to pay for its initial purchase.

        • Sony's new patent could bring real-time image upscaling to PS5 and PSVR PS5 [Ed: Patents cannot do that; the article conflates a functionality with a patent, which is just a monopoly on some idea]

          A new patent, filed by Sony Interactive Entertainment (via Resetera) outlines a plan for a "computer-implemented method for completing an image." Traditionally, images can contain "regions of missing or corrupted image data." Various processes exist for filling in those gaps, but machine learning techniques can be performance-intensive or time consuming.

          To bypass those issues, Sony's new computer-implemented method involves generating a 'mask' of the image, revealing some sections of it and hiding others, before altering it, and applying filling processes based on the presence or absence of holes. Eventually, the computer will learn a relatively simple means of categorising whether a hole should be there or not, allowing it to fill things in more quickly, with less computational power.

        • Patents on Psychedelics: The Next Legal Battlefront of Drug Development

          In the past few decades, pioneering research has rekindled interest in the therapeutic use of psychedelic substances such as psilocybin, ibogaine, and dimethyltryptamine (DMT). Indigenous communities have used them for centuries, and researchers studied them in the 1950s and 60s. However, most psychedelics were banned in the 70s, when President Nixon launched the U.S. war on drugs. Fifty years later, rising rates of mental illness, substance use, and suicide are prompting researchers to revisit psychedelics, and some have gained permission to study them in limited quantities. Clinical trials are producing promising results, creating enthusiasm for commercializing and patenting psychedelics.

          This Essay analyzes the ethical, legal, and social implications of patenting these controversial substances. Patents on psychedelics raise unique concerns associated with their unusual qualities, history, and regulation. Because they were criminalized for decades, the Patent Office lacks personnel with expertise in the field, increasing the likelihood of granting meritless psychedelic patents. Moreover, because Indigenous communities pioneered many aspects of modern psychedelic therapies, their patenting by Western corporations may promote biopiracy, the exploitation of Indigenous knowledge without compensation. Importantly, control of psychedelics by a small number of companies may stifle innovation and reduce access to these therapies. The Essay presents proposals to reduce the risk of biopiracy and the issuance of meritless psychedelic patents. Potential solutions include the implementation of psychedelic patent pledges, the creation of psychedelic prior art repositories, and the tightening of patentability requirements for novel drug therapies. The Essay concludes that ultimately, due to their importance to the advancement of science and public health, psychedelics are appropriately viewed as research tools, eligible only for limited patent protection.

        • Supreme Court gives certainty to patentees in unlawful means economic tort claims

          Dealing requirement upheld as an essential component of the tort, leaving intact the current system for litigating patents in the UK


          This case concerned an appeal brought by the Secretary of State for Health and the NHS Business Services Authority (the appellants) against Servier. The appellants fund the cost of medicines dispensed by the NHS in England. Servier developed and manufactured a drug, perindopril, used for the treatment of cardiovascular disease including high blood pressure, and also marketed it as "Coversyl".

          In 2001, Servier applied to the European Patent Office (EPO) for a patent claiming the alpha crystalline form of the tert-butylamine salt of perindopril. In 2004, the patent was granted by the EPO, including a UK designation. Opposition proceedings were brought against the patent, which was upheld by the EPO's Opposition Division in 2006.

          Servier sought to enforce the UK designation of the patent in the English courts and obtained preliminary injunctions against competitors who wanted to launch generic versions of perindopril. However, the generic companies counterclaimed that the patent in suit was invalid and they were successful at the trial in 2007. That decision of invalidity was upheld by the English Court of Appeal in 2008, and in 2009 the EPO's Technical Board of Appeal revoked the patent. The appellants had not been involved with the proceedings at the EPO nor in the English courts.

        • The Federal Circuit holds that the Structure of the PTAB is Constitutional [Ed: Reassessing the legitimacy of lousy patents that are used for extortion is perfectly reasonable]

          Is the Patent Trial and Appeal Board (“Board”) constitutional? This was a question asked by Mobility Workx in Mobility Workx, LLC v. Unified Patents, LLC, 2021-1441, 2021 WL 4762265 (Fed. Cir. 2021). Mobility Workx raised this challenge on appeal from a decision by the Board finding that Mobility Workx’s patents were unpatentable as obvious. On appeal Mobility Workx argued, among other things, that the Board’s structure violated due process and the Appointments Clause. The Federal Circuit held that Mobility Workx’s constitutional arguments were without merit and remanded to the Director to determine whether to grant a rehearing. Id. at *1. Judge Newman, however, filed a dissenting opinion arguing that Mobility Workx’s due process arguments and challenge under the Appointments Clause deserved further review.


          Mobility Workx raised two constitutional challenges to the structure of the Board. First, that the “Board members have an interest in instituting AIA proceedings to generate fees to fund the agency and ensure future job stability.” Id. at *2. Second, that “individual [APJs] have a personal financial interest in instituting AIA proceedings in order to earn better performance reviews and bonuses.” Id. Each are discussed below in turn.

          Mobility Workx argued that the structure and funding of the Board violates due process because the “the fee-generating structure of AIA review[] creates a temptation for the Board to institute AIA proceedings in order to collect post-institution fees [] and fund the agency.” Id. at *4, *5 (internal quotations and citations omitted). Specifically, Mobility Workx alleged that the Chief APJ, Deputy Chief APJ, and Vice Chief APJ perform two unconstitutionally permissible functions, they (i) participate in AIA review proceedings and provide policy direction and (ii) oversee fiscal planning and expenditures of the Board. Id. at *5. Mobility Workx alleged that this is an “impermissible mixing of judicial and administrative/executive roles,” citing Tumey v. Ohio, 273 U.S. 510 (1927) and Ward v. Monroeville, 409 U.S. 57 (1972). Mobility Workx, LLC, 2021 WL 4762265, at *5.

          The Federal Circuit reasoned that Mobility’s argument was unfounded. First, unlike the mayors in Tumey and Ward,2 the Director and not the Chief APJ, Deputy Chief APJ, and Vice Chief APJ, is responsible for the agency’s finances. Id. Like Dugan v. Ohio,3 the role of the APJs in budgetary decisions is remote because while the USPTO is a fee-funded agency with its annual operating costs paid through collecting fees, its budget is set by the President and then Congress. Id. at *6. Therefore, the Federal Circuit found no due process violation under Tumey based on the fee-structure of the Board and funding of the agency.

        • Moot Court: Aka Spinning Class at the Law School [Ed: Patently-O in bed with the patent litigation 'industry' (also gets paid for this).]

          Folks at McKool Smith have provided some funding and so the winner receives a nice $1,000 check.

        • Qiagen North America Holdings Inc. v. Handylab, Inc. (Fed. Cir. 2021)

          The inter partes review (IPR) provisions of the Leahy-Smith America Invents Act have been castigated by many for the propensity of the Patent Trial and Appeal Board (PTAB) to find claims challenged in these proceedings to be anticipated or obvious (albeit this outcome has been less frequent for technologies in chemical and life sciences patents). Perhaps one reason for this less predictable negative outcome in these technologies is the countervailing (to some extent) deference the Federal Circuit has been compelled to give Patent and Trademark Office decisions on factual questions (see Dickinson v. Zurko), and the reliance of anticipation and obviousness rejections on the facts adduced by the parties in IPRs. These considerations came into play recently in the Federal Circuit's non-precedential opinion in Qiagen North America Holdings Inc. v. Handylab, Inc., affirming the PTAB's Final Written Decision (FWD) finding that the claims challenged in the proceeding were non-obvious.


          Having determined that the scope of evidence properly relied upon by the Board in making its non-obviousness determination to be (primarily) each parties' expert witness testimony, the panel held that there was substantial evidence supporting the Board's holding, including that "Qiagen's Petitions contained only 'a single reference to reasonable expectation of success, in a conclusory statement that "a POSA would have been motivated to combine the multiplexing PCR unit of [the '186 patent] with a conventional integrated machine such as in [the cited published patent applications]'" with a high expectation of success.'"

        • New Report Shows That Europe Lags Behind on Robotics Patents [Ed: Patent litigation lawyers see everything in terms of patents and lawsuits, so they ignore meaningful measures like patent quality actual R&D; in this case, a convicted corrupt firm uses shaming tactics to propel 'sales']

          A report from the Centre for Security and Emerging Technology (CSET) has shown that European Countries lag behind China, Japan, South Korea and the US for patenting technologies related to robotics. CSET is a policy research organization within Georgetown University’s Walsh School of Foreign Service.

        • Hyundai Motor Ranked 3rd in Global Self-driving Patent Applications [Ed: These patents are not products, but KIPO perpetuates old myths of patent litigation firms, equating one thing to entirely another]

          The Korean Intellectual Property Office (KIPO) said on Nov. 11 that Korean companies, including affiliates of Hyundai Motor Group and LG Group, are rapidly increasing their self-driving patent applications.

        • U.S. Patent Eligibility Muddle Sets It Apart From Other Countries [Ed: Longtime patent maximalist Matthew Bultman now works for oligarch 'Mike' Bloomberg, opposing patent quality because patent extremists and profiteers sponsors his 'journalistic' work]

          Ericsson Inc. has patented a media coding invention in more than 90 countries—but in the U.S., patent examiners needed some convincing it was eligible for protection.

          Ericsson’s application was rejected multiple times, with questions about whether it met eligibility criteria in U.S. patent law. Its patent attorneys had to rework the claims and wrangle with the agency.

          According to Ericsson, an examiner eventually allowed the patent, but suggested it was a coin flip whether the patent would survive an eligibility challenge in court.

          Ericsson’s experience, which it described in response to a request by the patent office for comments on eligibility law, highlights how some companies struggle with eligibility requirements in the U.S. in ways they say are different than other parts of the world. A patent office spokesperson said the office is reviewing the comments.

          While many other major IP jurisdictions have clear and predictable standards about what is eligible for patent protection, companies and attorneys say the U.S. system involves more uncertainty and a disconnect between the patent office and courts.

        • Venue: Out of Texas [Ed: Texas had been getting a reputation for fostering corrupt courts that generally seek to make a profit instead of serving justice]

          Ravgen sued Quest in W.D. Texas for infringing two patents covering pre-natal genetic tests. As the map shows below, Quest has dozens of “places of business” open within the Western District (Waco and Austin areas) where Quest was selling the services. So, venue was proper under the narrow venue statute for patent cases, Section 1400(b). Likewise, the court has personal jurisdiction over the defendant with Quest’s Texas-based operations allowing for specific jurisdiction under the minimum contacts test of International Shoe. But, even when jurisdiction and venue are proper, they may still be inconvenient.


          In his order, Judge Albright had noted that his familiarity with the patents at issue and his push for quick trial weighed heavily in favor of keeping the case in Waco. However, the appellate panel found that Albright should not account for any of his familiarity learned after Quest filed its motion for transfer. In addition, the Federal Circuit restated a prior holding that “it is improper to assess the court congestion factor based on the fact that the Western District of Texas has employed an aggressive scheduling order for setting a trial date.” Quoting Juniper.

        • What advisers (and in-house) can learn from BASF v Carpmaels [Ed: Patent lawyers can be very incompetent and EPO deserves more scrutiny than the lawyers, who aren't the biggest scandal in the grand scheme of things]

          Lawyers say missing EPO appeal deadlines is ‘almost impossible’ to rectify but that €1bn BASF claim provides no Schadenfreude

        • H. R. 5874: Restoring America’s Leadership in Innovation Act of 2021 [Ed: This ridiculous thing is only being pushed by patent maximalists funded by the litigation sector]
        • Congressional Republicans Propose to Abolish America Invents Act (and a Bit More) [Ed: Only patent litigation crackpots believe that such a thing can ever pass; they're been trying this for years if not more than half a decade and they always fail]

          It being the holiday season in America, it is perhaps appropriate that patent traditionalists get something more than coal in their stocking from Representatives Massie (R-KY), Gohmert (R-TX), Gosar (R-AZ), and McClintock (R-CA) in the form of H.R. 5874, the "Restoring America's Leadership in Innovation Act of 2021."

          The bill recites Congress's findings that the Leahy-Smith America Invents Act (along with "several decisions by the Supreme Court") have harmed the progress of Science and the useful Arts by eroding the strength and value of the patent system (Sec. 2). In addition, this Findings section asserts that "a United States patent secures a private property right to an inventor."

        • Finnegan Expands European Presence With Second Office [Ed: 7 hires or a small office is major news? While ignoring major EPO scandals and even crimes?]]

          International IP firm Finnegan, Henderson, Farabow, Garrett & Dunner plans to open an office in Munich in January, the firm announced Tuesday.

          The office will be Finnegan’s second European location, having opened its first in Brussels in 1993 before relocating it to London in 2013. Finnegan said its new office will include a team of seven lawyers and legal professionals led by experienced IP litigator Dr. Jochen Herr, who has been hired from Baker McKenzie.

        • IP firm Finnegan launches in Munich with Baker McKenzie partner [Ed: Seems like marketing rather than journalism]

          Intellectual property firm Finnegan, Henderson, Farabow, Garrett & Dunner announced Tuesday it's set to launch a Munich office with a patent litigator from Baker McKenzie.

          Dr. Jochen Herr will lead a team of three attorneys and three legal professionals who will work out of Munich, according to Finnegan.

          A representative from Finnegan declined to name the other individuals who will be part of the office, citing confidentiality concerns, though they said there will be an additional partner and two senior associates within the group.

        • Moderna and NIH face off over COVID patent creds [Ed: Notice the greed surrounding the vaccines; they only care about patents, never patients]

          Moderna and the National Institutes of Health are locked in a dispute over whom should be credited on patent applications covering the pharmaceutical company’s COVID vaccine, it emerged on Tuesday, November 9.

          The NIH, the US government’s biomedical research agency, says three of its scientists worked with Moderna to design the genetic sequence that prompts the vaccine to produce an immune response.

          It has urged the USPTO to recognise that its inventors should be named on the principal patent application.

          Moderna thinks otherwise.

          In a filing with the USPTO earlier this summer, the company said it had reached a good-faith determination that the three NIH scientists did not co-invent the vaccine. In the patent application, which has not yet been granted, it names several of its own employees as inventors.


          The court agreed with a 2018 decision by the EUIPO’s Opposition Division and a 2020 ruling by the Second Board of Appeal, both of which found that consumers might confuse AC Milan-branded stationery products for the ‘Milan’ range of goods already sold by InterES.

          The General Court concluded: “Since the word element ‘Milan’ is present in both the mark applied for and the earlier mark, the conflicting signs must be regarded as similar conceptually to an average degree for the part of the relevant public for whom that word has a meaning.”

          It added: “Even assuming that, as the applicant claims, part of the relevant public perceives the word element ‘AC Milan’ as a reference to that football club in the city of Milan, the conflicting signs both refer to the Italian city of Milan.”

        • Software Patents

          • Webinar on Recent IP Major Issues in South Korea [Ed: The patent litigation profiteers are shilling software patents in "Hey Hi" clothing]

            Practice on Al and Software Patents

          • Controlling An Avatar: Non-Technical [Ed: Bardehle Pagenberg still exploring the surface on which to push bogus abstract illegitimate software patents]

            In this decision, which might be interesting for game developers, the European Patent Office refused to grant a software patent on a method for controlling an avatar. Here are the practical takeaways of the decision T 3033/18 of August 2, 2021 of Technical Board of Appeal 3.2.04:

      • Trademarks

        • Whittaker’s forced to gin and bear it as the UK IPO throws out its opposition for lack of relevant evidence

          As a fan of gin, this guest Kat could not help but notice a recent decision of the UK IPO Opposition division involving two “Hare” brands. There, the UK IPO rejected an opposition on the ground that the opponent had failed to file sufficient evidence to substantiate its claims of reputation and goodwill regarding gin products [decision here, Opposition No. O/765/21]. So let’s take a look at what happened.

        • In-house: registered designs take chequered flag post-Ferrari [Ed: "Sources" means people who make money from paperwork (north of $200 per hour and the people who sponsor this site]

          The CJEU’s decision in Ferrari confirmed the flexibility of unregistered designs, but sources say registered rights are still more preferable

        • [Guest post] IP entering the Metaverse [Ed: Writing whole articles about buzzwords; "Hey Hi", "IP", "meta"...]

          By now most will have heard of the 'metaverse'. Announcements such as Facebook's rebrand of their corporate name to 'Meta' and Microsoft announcing virtual avatars in Teams - represented in the media as 'plays' for the metaverse - have reached centre-stage. What people are probably less likely to be aware of is the fact that conversations and investment in the metaverse have been ongoing in the video games industry for some time. For example, earlier this year Epic Games, the owners of popular video game 'Fortnite', completed a $1 billion round of funding to develop their own metaverse.


          More freedom to create will inevitably lead to more third party infringement. Previously, in video games UGC was contained within the walled garden of a video game with appropriate reporting tools to flag infringing content. In a metaverse, the walls will have come down, meaning that users will be able to create their own content in the wild without limitation. Furthermore, the interoperability of metaverses will inevitably require the mixing of IP between metaverses resulting in brands being used in unforeseen ways, for example, a children's avatar skin like Peppa Pig could be used in a horror survival game.

          The difficulty for in-house counsel will be managing the risk of their IP being used in inappropriate and commercially damaging ways with the business's desire to be involved in the metaverse. Companies will need to reconcile their marketing team's desire for consumers to interact with IP in novel ways while also ensuring that the interaction is compatible with what the company considers to be acceptable use of their IP. This is particularly important since the opportunities for identifying and dealing with infringement issues within a metaverse are not yet clear. Whilst IP licences will be very important for retaining control, it may be difficult for a rightsholder to manage and exercise control if consumers perceive that they 'own' a digital asset. It is therefore important for the rightsholders to be upfront with consumers about any transactions involving IP licences to ensure there are no PR backlashes (especially within video games, which has a vocal and at times fragmented community).

        • [Guest post] Conference report: ‘The Fashion Marketplace: Law and Policy’ [Ed: Putting the fashion industry (mostly oligarchy which controls are the prestigious brands) ahead of free expression and human rights; misuses terms and uses fiction like "IP"]

          After an introduction to the legal landscape that currently applies to online marketplaces, the first panel focussed on the IP dimension of digital retail, with a recognition that the COVID-19 pandemic has pushed even more reluctant luxury fashion brands online. Some of the IP considerations discussed included: how brands preserve their cachet and luxury ‘aura’ in an online context; the legal impact of new actors intervening between brand and customer, including marketplace platforms and also influencers; and the counterfeit risk in an increasingly online world.

          On counterfeiting, Manon Rieger-Jansen spoke to the combined impacts of increasingly complex or opaque supply chains, the issues consumers face in identifying counterfeits online, and the role of marketplaces in preventing counterfeits making it to the consumer. There were some startling facts: trade of fake merchandise has risen such that it makes up 3.3% of global trade; and in a recent EU IPO report, it was found that as many as 1 in 3 people have been misled into buying counterfeits.

          With that background, discussion turned to what marketplaces are and should be doing, in a context where the MOU on the sale of counterfeits, which has been live for a decade, has failed to have the impact or gain the traction its founding members had aspired to. Heike Leichsenring was able to give a real-time view from within one of the world’s most well-known marketplaces, Amazon. Her description of the various ways in which Amazon is seeking to help brands battle counterfeits (via, for example, its 2017-launched Brand Registry) corroborated her expressed view that counterfeits are bad news for marketplaces too and it is in everyone’s best interests to be proactive. An interesting specific example of where Amazon is being forced to police activity even off-platform highlighted how social media is changing the game: Heike described how social media influencers have been found to be telling their followers that if they order certain on-platform non-branded items, they will in fact receive counterfeit branded goods.

        • German Bundesgerichtshof: Qualified geographical indications can be protected by trademark law also in the agricultural and foodstuffs sector [Ed: Misuse of overuse of the "law" for rich people's interests and nothing else]

          The German Supreme Court (Bundesgerichtshof) has issued a landmark decision on the relationship between national trademark law and the protection of geographical indications under EU law. The case is called “Hohenloher Landschwein / Hohenloher Weiderind”, with Hohenlohe being a region in Southern Germany, and Landschwein and Weiderind translating into country pork and grazing cattle, respectively (for the recently published full reasoning see here). The decision refers to the complex and sometimes confusing dual protection of geographical indications under special regulations and trademark laws at both national and European level.

          In the area of agricultural products and foodstuffs, EU Regulation No. 1151/12 (“GI-Regulation”) protects geographical indications and designations of origin against various forms of infringement, including direct or indirect use and imitation or evocation, as well as false or misleading indication regarding the essential qualities of the product. The Regulation therefore protects so-called qualified geographical indications – meaning that the geographical indication not only indicates the geographical origin of the product, but also refers to a certain quality of the product. The CJEU clarified in Bud (C-478/07- see here) that special regulations for geographical indications (like the GI-Regulation) preclude national protection, as it is exhaustive in nature. The GI-Regulation’s requirements can therefore not be circumvented by national protection with possibly lower requirements.

      • Copyrights

        • Could Banksy Sue Christopher Walken Over Destroyed Artwork?

          Actor Christopher Walken painted over a Banksy original on “The Outlaws.” Could the street artist claim a violation of his moral rights?

          Actor Christopher Walken has a unique talent. He’s somehow able to come across as a total badass while at the same time looking like a nervous wreck. It’s quite a feat, which is why I think it would be so entertaining to watch him face off in a courtroom under cross examination by…wait for it…Banksy’s copyright lawyer.

          In what possible world would this happen, you ask?

          Well, if I’m being perfectly honest, it probably wouldn’t. But hear me out, because we’ve actually never been closer to what would be, without question, the lawsuit of the decade.

          Walken made international headlines last week when he painted over original Banksy artwork in the season finale of the BBC comedy-drama series “The Outlaws,” which is set in Banksy’s hometown of Bristol, England. (The series will be available to U.S. audiences on Amazon Prime early next year.)

        • Around the IP Blogs

          This week, a controversy involving a famous Hollywood actor damaging one of Banksy’s artworks has taken the news and Aaron Moss, on Copyright Lately, discusses the possibility of Banksy suing the actor based on infringement of his (?) moral rights.


          The Kluwer Trademark Blog analyses the interface between geographical indications and trade marks in light of a recent German Supreme Court’s decision, which highlighted that the geographical indication regime does not preclude protection of qualified geographical indications by way of national collective trade marks.

        • Is the Spanish implementation of Art. 17 CDSM compatible with EU Law? [Ed: Spain being turned into a satellite of the copyright cartel through the EU]

          Let’s imagine that, in the near future, the Court of Justice of the European Union (CJEU) receives a request for a preliminary ruling referring the following question:

          “Must Article 17(4) of Directive 2019/790 on copyright and related rights in the Digital Single Market be interpreted as precluding a national law which allows copyright holders to bring legal actions to compensate their economic harm, such as an action for unjust enrichment, against an online content sharing service provider which meets all the conditions laid down in Article 17(4) to be free from liability if, notwithstanding having made best efforts to remove it, unauthorized content keeps being exploited by that provider giving rise to meaningful harm to right holders?”

          If such a question is ever referred to the CJEU, the odds are that the referring court will be a Spanish one.

        • European Commission proposes a common European data space for cultural heritage

          Earlier this week, the European Commission published a recommendation for a common European data space for cultural heritage.

          As Executive Vice-President for A Europe Fit for the Digital Age, Margrethe Vestager, explained, “[t]he tragic burning of Notre Dame Cathedral in Paris showed the importance of digitally preserving culture and the lockdowns highlighted the need for virtually accessible cultural heritage.”

          The recommendation follows the evaluation of the previous recommendation on online accessibility of cultural material and digital preservation (discussed on the blog here) and aims to “accelerate the digitisation of all cultural heritage monuments and sites, objects and artefacts for future generations, to protect and preserve those at risk, and boost their reuse in domains such as education, sustainable tourism and cultural creative sectors.”

        • A Copyright Case that Pits H&M Against a Pattern Company Goes Before the Supreme Court - The Fashion Law

          The Supreme Court will hear an ongoing copyright case between Swedish fast fashion giant H&M and pattern-making company Unicolors on Monday, and consider whether the U.S. Court of Appeals for the Ninth Circuit erred in breaking with its own precedent, as well as the findings of other circuits and the Copyright Office in holding that the Copyright Act requires a district court to seek guidance from the Copyright Office when there are questions about the validity of a copyright registration but no evidence of fraud or material error on the part of the application-filing party. The case got its start back in April 2016 when Southern California-based Unicolors filed suit against H&M in the U.S. District Court for the Central District of California, accusing the fast fashion behemoth of infringing one of its geometric patterns – by way of a “remarkably similar” print – for two styles of garments. On the heels of a December 2017 verdict, in which a jury found that H&M had willfully infringed Unicolors’s copyright-protected pattern, and awarded the pattern company $846,720 in damages, attorney’s fees, and costs, H&M appealed.

        • Opinion: CJEU be warned, copyright referrals may be on the way [Ed: CJEU getting involved too late while lobbyists make a mess for financial gain at the law's expense]

          EU member states are beginning to speed up their adoption of the Copyright Directive into national laws, but divergences could spark more CJEU referrals

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