The Office which was once renowned for a good salary and enviable working conditions is becoming a collective of rookies without job security
Summary: Implementing yet more of his terrible ideas and so-called ‘reforms’, Battistelli seems to be racing to the bottom of everything (patent quality, staff experience, labour rights, working conditions, access to justice etc.)
THE PREDOMINANTLY FRENCH EPO management is a gold mine of scandals, yet German officials seem less interested in these scandals than French officials, seeing what a huge PR disaster Team Battistelli has become for France.
Germany’s Heiko Maas was mentioned here this morning and also last night in a caricature. He is now mentioned in this new article titled “Europäisches Patentgericht: Nun holpert die Vorbereitung in Berlin” (translation from German is needed) and we hope he intends to actually start paying attention to what happens at the EPO right now.
To quote one new comment from today:
I have a question:
How was the situation to begin with? The csc had legally chosen representatives in the appeal committee. Is that correct? Then BB suspended/dismissed those members. Is that correct? But they still remain the legally chosen representatives, wouldn’t they? So when management refuses them to take part in the appeal committee, who is blocking the procedure? Please, can someone explain to me if this is the actual situation? Thank you!
We have actually written about 4 articles about this. Battistelli, as one person explains, “warned (and possibly downgraded) the CSC appointed members. Because they did not vote as instructed…”
Does that sound familiar? Well, Battistelli threatened the independence of the boards, too. Then he wonders why there’s no perception of justice inside the Office? Here is the full reply:
The president warned (and possibly downgraded) the CSC appointed members. Because they did not vote as instructed by the lawyers of the EPO.
The CSC therefore decided, that they cannot appoint new members without a guarantee that they would not be punished for their work.
Formally, the CSC is therefore the blocking party.
Morally, the president.
Any newly appointed members would be tainted and cannot decide freely since those cases.
Speaking of the boards that lost their independence (a judge remains on house ban), watch this new tweet from the EPO, which links to this ‘job’ vacancy (warning:
epo.org link). It’s not actually a job but in the words of the EPO: “If you are a national judge in an EPC contracting state you can do an internship at the EPO boards of appeal…”
What kind of judge wishes to explore an internship? The Boards of Appeal (BoA) are SEVERELY (or critically) understaffed, so what the EPO needs is hiring of full-time staff, not interns.
Another new tweet from the EPO, posted today linking to this ‘job’ vacancy (warning:
epo.org link), says: “Professional representatives with experience in prosecuting European patent applications should have a look at this…”
Our suspicions seem to have been justified then. Battistelli is getting rid of (or driving away) experienced examiners that are well paid in order to hire low-salary temporary staff on short-term contracts or internships. EPs will be worthless if this carries on. Does the Administrative Council mind at all? They’re supposed to have patent quality on the agenda later this month. █
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Summary: A roundup of today’s outcomes from the US Supreme Court, which intends to review and decide on important patent cases
THE evolution of patent law helps determine the rate of innovation and competition. It’s not as simple as “more patents” mean “more innovation”. In fact, some patents help protectionism and actively impede innovation, so these cases are important, especially when they are decided by Justices in the US.
In a publicity stunt from the USPTO, the Office gives something called “Humanity Awards” and paints that as “health” (commonly-used PR trick), just as SCOTUS reassesses the granting of patents on DNA, potentially dealing a blow to rather malicious privatisers of life’s building blocks. Here is the hogwash from the Office:
The four winners are: the US Food and Drug Administration for an improved meningitis vaccine; the Global Good Fund at Intellectual Ventures for a cooler which can preserve vaccines for over a month without outside power source; Case Western Reserve University for creating a low-cost, accurate malaria detection device using magnets and lasers that allows better diagnosis and treatment; and GestVision Inc. for developing a quick, simple diagnosis test for preeclampsia, a potentially life threatening pregnancy complication, for use in developing regions.
There is also this new article about a SCOTUS decision that may end up affecting Life Technologies and Thermo Fisher. Here is an article about the case:
Oral arguments in Life Technologies v Promega are due to take place tomorrow in the US Supreme Court to determine whether the US Court of Appeals for the Federal Circuit correctly defined “substantial portion”.
There was also the Apple case which we have just covered and most prominently a decision (to come) about printer makers with their ripoff ploy (details above in the screenshot). There was no lack of coverage about it, ranging from “company restrict reuse of its ink cartridges”, “Patent Exhaustion with Printer Cartridges”, “Patent Exhaustion Doctrine”, “printer cartridge dispute on patent rights”, “patent exhaustion questions on foreign sales and post-sale restrictions”, “Patent Act—Exhaustion”, “Lexmark V. Impression”, to “Small Business’ Patent Case Against Lexmark” (quoting portions of headlines). Here is a decent new article about it from Courthouse News:
The Supreme Court has agreed to hear a closely watched patent case that will determine whether someone can import into the United States and resell a U.S.-patented article purchased abroad.
Generally, the buyer of a patented product has the right to resell that product to a third party, but the case here stems from printer cartridges that Lexmark International sold on the condition that they not be resold.
Lexmark brought a federal complaint in Ohio several years ago, saying Impression Products had acquired its spent cartridges abroad, refilled them and resold them.
For those cartridges that Impression imported into the United States, the products were priced more cheaply than Lexmark charged.
We look forward to this decision as we wrote about this case before and so did the EFF. █
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Summary: A $399 million judgment against Android devices from Samsung, with potential implications for other Android OEMs, is rejected by SCOTUS
Excellent news came through AP several hours ago: “Supreme Court throws out $399 million judgment against Samsung in company’s patent dispute with Apple over iPhone design.”
There will certainly be plenty of coverage about this, including quite a lot of rants from Apple advocacy sites. Apple lost a design/UI patent case. It has actually lost quite a few cases against Samsung by now. Many other patents in this domain will be generally lost too, by means of precedence (how many patents out there are no longer valid?).
Here is what Professor Crouch, who followed this case pretty closely, had to say:
In a unanimous opinion authored by Justice Sotomayor, the Supreme Court has reversed the Federal Circuit in this important design patent damages case. Although the case offers hope for Samsung and others adjudged of infringing design patents, it offers no clarity as to the rule of law.
There is also this bit of news that’s covered a week late and says:
Apple v. Ameranth: Federal Circuit Partially Reverses PTAB and Finds All Claims for Electronic Menus Unpatentable
On November 29, 2016, in Apple Inc. v. Ameranth, Inc. 15-1703, the Federal Circuit affirmed the Patent Trial and Appeal Board (PTAB) findings of unpatentable independent claims in a Covered Business Method (CBM) review and reversed findings of patentable dependent claims under 35 U.S.C. § 101. On appeal, the Federal Circuit agreed with Apple that there was sufficient evidence to support the finding that dependent claims 3, 6-9, 11 and 13-16 of Ameranth’s U.S. Patent No. 6,982,733 (‘733 patent) were unpatentable as describing insignificant post-solution activities. Despite Ameranth arguing for a substantial evidence standard of review, the Federal Circuit applied a de novo review standard in its reversal of the PTAB’s decision.
Things don’t look too promising for Apple in this CAFC case and another CAFC case, Ameranth, Inc. v. Agilsys, Inc., now gets covered in another site (it’s about PTAB). █
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Summary: The infamous father of patent trolling is dead, so we need to remember his real legacy rather than rewrite his history to appease his rich relatives (enriched by destroying real companies)
SEVERAL years ago we wrote a lot of articles about the thug and troll Ray Niro, whose ugly legacy we summarised in this Wiki page. We have hardly heard his name for years, but today IP Kat pays respect to this father of patent trolling as if there is a duty to say something nice because he is dead. Our own list of articles about him can say a lot about how horrible a person he was, but obituaries in news sites are unbelievable pieces of hogwash. Won’t they just stop eulogising this thug?
Just because he’s dead doesn’t mean he was benign or even benevolent. He was a malicious person. As someone has just put it in relation to Acacia: “Argh. F****** patent troll. Fired people & sued people who actually made stuff, hence profitable quarter. Patent trolls…”
Niro was the initiator of all this. He has had so many victims. He has done enormous damage to the US, which is now infested by trolls. Speaking of which, IAM and their troll friends, who are hoping to expand in China (and are succeeding at that to some degree), have come to China with their agenda. Once of Intellectual Ventures, the world’s largest patent troll which is connected to Niro, Blumberg played a role in IAM’s extravaganza in the East. To quote the relevant part:
Talking trolls – While the debate around ‘patent trolls’ using poor quality patents to extract low value litigation settlements has dominated IP policy discussions in the US, there has been relatively little focus on it in China. To what extent that might change was brought up in the second plenary session today by Lenovo’s head of IP Ira Blumberg. Asked by session moderator Brian Hinman, the chief IP officer of Philips, to identify the things that keep him up at night, Blumberg said that his long-term concern was that if patent damages awards continued to increase, the number of patents available to buy continued to grow as a result of widespread filing and with preliminary and permanent injunctions available, then ‘patent trolls’ could become a major problem in the Chinese market. “If handled in the wrong way China could be beset by trolls,” he commented. As well as the prospect of higher damages and the growing threat of patent owners obtaining injunctive relief, the real threat to the Chinese market stems from the fact that it is such a large manufacturing hub. That gives patent owners great scope to disrupt a company’s production facility or its supply chain and might mean foreign and local businesses start to look to other jurisdictions to make their products. “If courts give out big awards then the natural reaction will be for companies to relocate their manufacturing,” Blumberg warned. “China needs to be very careful about how its patent system develops.” Once of Intellectual Ventures, Blumberg has become a vocal critic of trolling over recent years. As we have seen in the US, though, the problem with focusing on finding solutions to combat the perceived threat this business model poses often ends up causing a lot of unintended harm. The Chinese authorities would do well to consider that when they hear the kinds of dire warnings issued by Blumberg this morning. He does have a point, but careful, nuanced policy-making is perhaps the best way to solve any problems that arise. Looking to Europe, rather than the US, and finding out why there is no real troll problem there may also be a good idea. What is clear, though, is that as the Chinese patent litigation market does become more high-profile and more high-stakes, the troll debate is going to have to take place in the country.
This disease which is patent trolls needs to be purged. We can only remember Niro as the horrible person who started this disease. After his death many can breathe a sigh of relief, but his death alone isn’t enough to make his legacy of trolls go away. █
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Sometimes making one’s victims miserable (agony/suffering) is a sociopath’s deadly perk
Original photo: Erdoğan, 2012
Summary: The horrible regime of Benoît Battistelli has an enormous human toll (fatalities), far greater than the Office is willing to publicly acknowledge
REMEMBER how earlier this year Bavarian TV reported that Battistelli’s goons contributed a lot to the suicide of at least one employee? Remember how the EPO’s management responded to that? Remember the fact that Battistelli denies access for investigators to get to the bottom of it, perhaps fearing liability for deaths (or inducing deaths by breaking national laws in Germany)? A prominent retired judge from Germany compared this to Guantanamo Bay on Bavarian TV. Eponia is a lawless place. Battistelli is like the Sultan of Brunei and perhaps even like Erdoğan in 2016 (after the coup attempt).
Earlier today we wrote about Battistelli's attempts to retroactively legalise his own abuses so that he won’t have to obey the UN’s (or ILO’s) ruling, much like the British government continues to disobey the UN’s determination on Julian Assange’s fate.
“EPO staff who retired for health reasons have been constantly subjected to harassment and change of their status until they virtually do not know anymore where they are.”
–AnonymousWriting about the EPO’s “latest ILOAT case law,” one reader told us, “allow me a remark about the latest decision of the ILOAT concerning the wrong composition of the Appeals Committee in the EPO. The statement made by Battistelli in his rebuttal about 100 cases which are affected in wrong. This number doesn’t consider all other cases dealt with by the Appeals Committee in his wrong composition but which were not presented to the ILOAT. Virtually all the cases dealt with by the kangaroo court in the last 2 years. I suggest that all the complainant request to have their appeals re-examined…”
But there are other issues associated with these mistrials. We previously remarked on the toll of abject/utter lack of justice, including the effects on people’s health. Els Hardon even wrote about this explicitly in her gut-wrenching letters. “And there is also another point,” our reader added, “on which I would like to draw your attention, the number of suicides at the EPO. There are cases of suicides NOT reported by the office and concerning non-active /invalid staff. I cannot quote names but check the obituaries section in the last gazette. At least [one] of the persons listed, committed suicide if not two. EPO staff who retired for health reasons have been constantly subjected to harassment and change of their status until they virtually do not know anymore where they are. Is this the way Battistelli wants to get rid of invalids?”
“Contact the delegates and let them know what kind of monster they’ve put in charge of the Office. They’re going to convene again just over a week from now.”We are aware of such stories and cases, but we did not know that these sometimes resulted in suicides. Perhaps it’s time to bring this to the attention of politicians across Europe. In a sense, the EPO can literally kill workers, if not working them to death then driving them to suicide after Team Battistelli ‘pulled an Erdoğan’. Remember that Erdoğan not only wants the death penalty back but also wants his opposition to suffer so much (mental torture) that they would want to take their own lives (but will be denied that request/ability). This was all over the news throughout the year.
“Thanks for all the work you do,” our reader said, but we still rely on readers to disseminate the message. Contact the delegates and let them know what kind of monster they’ve put in charge of the Office. They’re going to convene again just over a week from now. █
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Confer recent paper from Professor Joshua Pearce, "A Case for Weakening Patent Rights"
A Case for Weakening Patent Rights
[PDF] (shown above are the first five pages among 70 in total)
Summary: A rebuttal to some new articles about patents, especially those that strive to increase patent-related activities (usually for personal gain)
THE scope of patents in the US has been tightened by the US Supreme Court under Obama, but there is a growing threat — and belief among patent maximalists — that things will change under Trump (perhaps premature to speculate about this). PTAB is at stake, Alice is at stake, and perhaps more aspects related to AIA and the Supreme Court (where vacancies exist for Justices, not just because of Scalia’s death).
According to this new article, the “Supreme Court Patent Cases Haven’t Hindered Diagnostics Innovation, Preliminary Data Suggest” (article behind paywall). They might be referring to cases like Mayo (Supreme Court) and they need to stop conflating patents with innovation. In some cases, not only do patents contribute nothing to innovation but they actually harm innovation.
“PTAB is at stake, Alice is at stake, and perhaps more aspects related to AIA and the Supreme Court (where vacancies exist for Justices, not just because of Scalia’s death).”Gary D. Colby, writing for the New Jersey Law Journal (behind paywall), has just published and repeatedly pushed an article titled “Software Patent Eligibility May Be Informed by Copyright Law”. The summary/outline says “Dissents in two recently decided cases suggest that patent eligibility of “intangible” inventions finds analogies in copyright eligibility.”
Well, software developers want only copyright to protect their code. Many polls/surveys keep showing this, yet the patent microcosm ignores the findings and pretends that software patents are desirable (to the litigation industry they are definitely desirable, but at whose expense?).
As soon as the week started the patent microcosm started commenting on PTAB and “inventorship” (something the lawyers never did, they only speak about it). To quote the concluding part, “until the PTAB rules definitively that inventorship error is not a ground on which PGR may be based, it is our view that failure to raise that ground in a petition will most likely lead to an estoppel on the issue. See 35 U.S.C. § 325 (e). Thus, for now, any PGR petitioner that thinks it might have a possible basis for challenging inventorship better raise that ground in its PGR petition or risk being estopped from later challenging the patent on that basis.”
“Well, software developers want only copyright to protect their code.”The term “inventorship” totally misses the point that patents are granted not necessarily for inventorship. These sorts of fairy tales that are perpetuated ad infinitum in legal blogs do a lot of harm and software patents propagandists (who do not even know how software works!) call reformists the “patent infringer lobby” because they are trying to undermine Alice and the likes of it. See this disgusting latest article from Watchtroll for example. What is this? Is Watchtroll some kind of a troll? A spokesperson for patent trolls?
One last article worth noting was published by Jason Rantanen about the Court of Appeals for the Federal Circuit (CAFC) and it said this:
As expected, for the fiscal year ending on October 31, 2016, the Federal Circuit docketed more appeals arising from the U.S. Patent and Trademark Office than from the district courts. This result will almost certainly hold true for the calendar year as well: from January through October of this year, the Federal Circuit received 471 appeals arising from the district courts and 560 appeals arising from the PTO.
That’s because of PTAB, which is a growing force after AIA (the catalyst that introduced it). Some patent maximalists now use this as an excuse to weaken or lobby to altogether eliminate PTAB, bemoaning the ‘flood’ of appealed PTAB cases (examinations/IPRs) as though it justifies anything but more (new) hirings at CAFC. As is the case with programming (code), sometimes it requires more work to actually remove code than to add/write new code. In this case, what the USPTO needs is less patents, not more patents. It’s worth investing money in invalidation of bad patents. Sometimes less is more (or better quality of patents, higher certainty and so on).
“The term “inventorship” totally misses the point that patents are granted not necessarily for inventorship.”The US is currently in the process of cleaning up a mess created (or culminating) in the David Kappos era and thankfully we now see software patents being invalided by the thousands and patent lawsuits (including the majority of which that are filed by patent trolls) in a freefall.
It’s good for everybody. Except the patent microcosm… █
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Imagine one of those infamous panels about poverty and hunger in Africa, where not a single person on the panel is African…
Excluding voices so as to include more patents (wider scope)
Summary: A look at yesterday’s “Roundtable on Patent Subject Matter Eligibility,” which lacked involvement from those actually affected by patents rather than those who sell, trade, and exploit these
ABOUT 24 hours ago the USPTO tried to pretend to be transparent by broadcasting a debate which was barely open to participation (read only, not read/write). As can be expected from such an event, key voices or views were prominently and conspicuously absent. “HAPPENING NOW,” the USPTO wrote in Twitter“, was a “talk on #patent subject matter eligibility until 4 pm ET today. Watch the livestream…”
“Was there anyone at this debate who does not work for a multi-billionaire like Bezos or some law firm?”How about actually speaking with them rather than being mere spectators? Were there any “real software developers [...] on the panel?” That’s what Benjamin Henrion rightly asked them because, as he later put it, “if you can follow the live stream, not many developers around.”
Daniel Nazer from the EFF quoted Jeffrey Dean of Amazon as saying that Alice invalidates patents that “remove more from public domain than they contribute to the public store of knowledge.”
“It sure seems like a lot of these ‘debates’ are happening in the absence of those whom they affect.”We remind readers that Amazon is among the pushers for software patents. Was there anyone at this debate who does not work for a multi-billionaire like Bezos or some law firm? Where are the actual developers? Their voice does not seem to matter at all when laws that apply to them are discussed. Henrion asked Nazer (not a developer), “are you on the chat?” Nazer never responded, but we’re generally used to this kind of conceited (high horse) attitude from EFF lawyers.
Either way, Henrion streamed the debate into a file and proceeded to YouTube uploads because “[t]he videos don’t play in Chromium, maybe MP4 patented format is to be blamed.” (which would be ironic!)
See herein the debate as it was uploaded, having been divided into four parts:
“Loved the slide with the big prime numbers multiplication,” Henrion remarked.
It sure seems like a lot of these ‘debates’ are happening in the absence of those whom they affect the most. To the organisers, that’s a feature, not a bug. Bias by design/composition. We see a lot of that in UPC panels/events/debates/consultations and here we have it when patents on software are at stake. Published earlier today by Juristat (targeting “patent lawyers”, based on its own account description) was this slide about “pros and cons of software patents”; well, judging by their Twitter activity, Juristat is more like a Trojan horse that would not tell the complete story about software patents as there are “many more arguments against them,” to quote Henrion’s response, than there are for them (profitable to patent lawyers etc.), as any software developer can probably tell. █
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“Agreements” mean patent settlements
Summary: A quick look at the past week’s news and clues about Microsoft’s (and its broad army of patent trolls) strategy for taxing Linux, or imposing bundling at zero cost (to Microsoft)
THE STATE of patent trolling in the US is pretty bad and to make matters worse China is now emulating the US system by patenting almost everything and harbouring patent trolls that use rubbish patents (not even with their own name on these).
One aggregator of patents (lots of rubbish in one big pool) that we wrote about before is RPX. It’s like a massive patent troll whose members include Microsoft. According to this blog post from IAM, changes are afoot as a Senior Vice-President jumps ship:
Dan McCurdy, senior vice-president at RPX with responsibility for data and technology solutions, is to leave the defensive patent aggregator to become a partner with strategic IP consultancy Quatela Lynch. He will join on 1st January 2017, when its name will also change to Quatela Lynch McCurdy. The move comes just weeks after Laura Quatela, who founded the firm with former Kodak chief IP officer Tim Lynch in 2014, was named as the new chief legal officer of Lenovo, sitting on the executive committee and reporting directly to its CEO. Quatela will remain the majority shareholder of Quatela Lynch McCurdy and will act as a special adviser to the firm on non-conflicting projects.
It is meanwhile worth reminding readers that Intellectual Ventures, Microsoft’s biggest patent troll (with thousands of satellite firms of its own), is imploding, however this extortion and gate-keeping tool, which habitually attacks Linux, still plays a role of in the operations of Linux-based devices (which it taxes).
See this new article that says “a new intellectual property agreement gives Netflix the opportunity to license TiVo’s patent portfolios, as well as patents for over-the-top (OTT) offerings, which are held by Intellectual Ventures.”
How much of that money flows into the pockets of Microsoft and Bill Gates (a stakeholder in the troll at a personal capacity)? It’s hard to tell, but as we noted here before, Microsoft loves Linux patent tax. With China going crazy over patents, Microsoft recently managed to blackmail Xiaomi over its Linux products (we believe that only Huawei remains untainted by this Microsoft tax) and looking into Microsoft’s patent settlement with Xiaomi (they don’t call it a “settlement”, but it is one), IAM writes:
In the opening plenary of the day, featuring Xiaomi’s Paul Lin and Microsoft’s Micky Minhas, the ground-breaking deal announced in May between the two companies was, not surprisingly, the first topic for discussion. IP was a major driver of the agreement, as the Chinese smartphone maker acquired 1,500 patents from the software giant; but the transaction was premised on a much broader collaboration between the pair, with Microsoft applications now set to be included on Xiaomi mobile devices. Minhas, recently appointed as Microsoft’s head of licensing, revealed that the deal had taken a year to unfold after a senior Xiaomi executive had expressed the Chinese’s company’s desire to grow its IP portfolio. He added that one of the key drivers in making it all happen was the relationship between some of the key executives involved in the negotiations. Minhas, Microsoft head of business development Peggy Johnson and Xiaomi’s head of strategic cooperation Wang Xiang, all previously worked at Qualcomm, so there was a level of familiarity; while a face to face meeting between the respective company CEOs in March 2016 largely resolved outstanding issues and advanced the negotiation to the point where it became a matter of getting the contractual terms refined. But what really mattered more than anything, it seems, is that both companies had taken the time to understand each other’s perspectives and needs, and that both were fully focused on finding a win-win outcome. Goodwill, rather than good friendships, are the key to successful IP deal-making. Though, of course, it also helps to get along.
The part about “Microsoft applications now set to be included on Xiaomi mobile devices,” as we explained early in the year, is where patent extortion against Linux comes into play. The ‘new’ Microsoft just tries hard to hide what it does, either attacking Linux through trolls or compelling OEMs to ‘pay’ Microsoft for Linux/Android by shoving Microsoft malware into them (sucking up user data and sending it to Microsoft, never mind vendor lock-in through proprietary formats and code).
Don’t believe Microsoft’s claims that it has changed or that it “loves Linux”. It’s still the same old malicious company. It just learned how to lie/mislead better.
Quite a few GNU/Linux firms and even the Linux Foundation are now being paid by Microsoft (like silence money), so don’t expect them to speak out against this injustice. █
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Further Recent Posts
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SoftBank grabbed headlines (in the West at least) when it bought ARM, but will it soon grab headlines for going after practicing companies using a bunch of patents that it got from Inventergy, ARM, and beyond?
- Technicolor, Having Turned Into a Patent Troll, Attacks Android/Tizen/Linux With Patents in Europe
Technicolor, which a lot of the media portrayed as a patent troll in previous years (especially after it had sued Apple, HTC and Samsung), is now taking action against Samsung in Europe (Paris, Dusseldorf and Mannheim)
- Michelle Lee is Still “in Charge” of the US Patent System
Contrary to a malicious whispering campaign against Lee (a coup attempt, courtesy of patent maximalists who make a living from mass litigation), she is still in charge of the USPTO
- Our Assessment: EPO Wants a Lot of Low-Quality Patents and Low-Paid Staff With UPC (Prosecution Galore)
The European Patent Office seems to be less interested in examination and more interested in facilitating overzealous prosecution all across Europe and beyond; The Administrative Council has shown no signs that it is interested in profound changes, except those proposed by Battistelli in the face of growing resistance from staff and from ordinary stakeholders
- Links 16/2/2017: HITMAN for GNU/Linux, Go 1.8
Links for the day