12.15.16
Posted in Europe, Patents at 9:08 am by Dr. Roy Schestowitz
And we welcome more information from the grapevine…
Photo credit: Bird & Bird, 2015
Summary: In spite of a thick layer of secrecy surrounding this week’s meeting of the Administrative Council, information is starting to come out in small doses
YESTERDAY we wrote about Carl Josefsson becoming President of EPO Appeal Boards, based on rumours that reached our ears. Alexander Esslinger, citing Mathieu Klos of Juve, said this morning that “Carl Josefsson [was] appointed president of EPO Appeal Boards by Administrative Council” and here is the source in German (translations would be handy).
There is still silence from the German media (a serious subject we’ll revisit separately) and an unacceptable level of indifference/apathy towards the EPO’s abuses. Not much is being said about the EPO, so we rely heavily on leaks and hearsay. SUEPO has just posted some photos from yesterday’s protest (as did we). Where was the German media? Where were German politicians? █
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Posted in America, Law, Patents at 8:46 am by Dr. Roy Schestowitz
Litigation scope challenged in TC Heartland v Kraft Food Brands Group (after Alice tackled patent scope).
End of the road for the notorious patent mess that only law firms consistently profited from?
Summary: The US Supreme Court’s Justices may soon put an end to the business model or the modus operandi of patent trolls
AS WE NOTED earlier this week, the US is no longer a good environment in which to be a patent parasite. Watch what happened to Apple after the Supreme Court had intervened (yes, it’s still in the news!), not just to small parasites that are commonly known as patent trolls. It’s rather revealing and the numbers from a new paper of Lemley et al reaffirm the trend.
All those recent SCOTUS decisions with yet more decisions to come (e.g. Lexmark, which is also still in the news, courtesy of John C. Bacoch and William R. Boudreaux from Brinks Gilson & Lione and MIP’s Natalie Rahhal) serve to show that SCOTUS, in its current composition (Justices), is rather intolerant towards patent bullies.
The reforms in the US (regarding patents) seem to be working out and weeding out “Patent Trolls Central”, the Eastern District of Texas (EDTX). Here is how Patently-O has just put it: “Goodbye E.D.Texas as a Major Patent Venue”
The headline may be sensationalist and premature, but here is how Patently-O justifies it:
In a case with the potential to truly shake-up the current state of patent litigation, the Supreme Court has granted certiorari in the patent venue case TC Heartland v. Kraft Food (SCT Docket No. 16-341). An 8-0 reversal of the Federal Circuit is quite likely, although my headline is likely premature.
Michael Loney, writing from New York, has also just covered the subject:
Supreme CourtThe US Supreme Court has granted cert to TC Heartland v Kraft Food Brands Group. The court will review the Federal Circuit law that allows a high concentration of patent cases in one district.
We wrote about this case before and so has the EFF (many times). For the uninitiated, EDTX boasts courts that are intentionally tolerant of plaintiffs, software patents and trolls. That’s how they used to attract ‘business’ or ‘clients’ (parties being sued or suing) and that’s why many patent law firms are based (or relocated to) there. █
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12.14.16
Posted in Europe, Patents, Rumour at 6:10 pm by Dr. Roy Schestowitz
Photo credit: Bird & Bird, 2015
Summary: Early information (or at least rumour) begins to trickle in as day one of the meeting of the Administrative Council of the EPO reaches its end
NOT much is known to us about the meeting of the Administrative Council of the EPO (information welcome), but we have learned that Carl Josefsson was elected as President of the BoA. We haven’t mentioned Carl Josefsson here before, but a source told us that he is “a senior Judge of Appeal, Svea Court of Appeal,” based on this page from the EPO’s Web site. “I guess that he is a part of the Wolfpack,” our source added. We also understand that this appointment was against the President’s wishes. He gave a talk earlier this year and he appears to be involved in the UPC fantasy [1, 2, 3, 4, 5].
“But everything is rumour,” our source emphasised. Josefsson is, as far as we know, Swedish. A fellow Swede, Catarina Holtz From the EPO Boards of Appeal (now retired), was a vocal critic of the EPO's management. █
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Posted in America, IBM, Patents at 12:37 pm by Dr. Roy Schestowitz
Steering policy in exchange for money, having acquired contacts and connections
Source: David Kappos interview with Intellectual Property Magazine (2010), modified by us
Summary: IBM, David Kappos, Watchtroll and the rest of this software patents bunch as seen in the news and in forums this past week and half (policy-shaping echo chambers disguised as debates or “roundtables”)
THE FORMER Director of the USPTO, David Kappos, came from IBM, one of the biggest patent bullies out there and also a worldwide lobbyist for software patents. It’s therefore hardly surprising that after his career at the USPTO Kappos continues to promote all the worst aspects of a patent system. A lot of the current mess, including the very low success rate of patent lawsuits, can be attributed to this fool. How did he even get this job? Maybe some connections in high places and pressure on Obama or something…
“A lot of the current mess, including the very low success rate of patent lawsuits, can be attributed to this fool.”Three years ago we said that the USPTO's software patents "roundtable" was rigged and last week we saw a similarly-rigged USPTO "roundtable" where no software developers were even present. It hardly ever gets any more farcical than this.
A few days ago we wrote about other new lobbying events that try to compel Congress to change the law in favour of software patents, in accordance with patent maximalists' Christmas wish list. The so-called IPWatchdog conference (we call it “Watchtroll”) was truly a disgrace because again it’s a case of patent law firms speaking about — not for — inventors. These firms want to gain at inventors’ expense. Remember that Watchtroll is to patent news what Brietbart is to world news; its founder is a blowhard who habitually insults judges and smears PTAB with sexual connotations. Watchtroll tries to meddle in patent law by truly despicable strategies and for self gain, not for scholarly purposes or anything like that.
Patent maximalists like Kappos, as it turns out based on his new article at Watchdog, support this kind of horrible Watchtroll think tank. In Kappos’ own words:
Recent changes to the U.S. patent system — emanating from both Congress and the courts — have pushed U.S. investment money overseas. To China, to be exact.
In his closing remarks to a recent Inventing America and IPWatchdog conference on dangers to the innovation economy, former U.S. Patent and Trademark Office director David Kappos said that in 2015, patent filings in China exceeded those of the next 20 countries.
What’s noteworthy about this article is that here we have an IBM-funded former USPTO Director (now lobbyist for IBM) promoting software patents and then getting promoted by IBM’s patent chief, Manny Schecter. To quote the alarmist, “Kappos: investments moving overseas in response to state of U.S. #patent law” (untrue).
We wonder when IBM will realise that it’s a bad idea to pay a former USPTO official (who had worked for IBM beforehand) to be a software patents lobbyist. Institutional corruption is definitely what this is; that’s a textbook example of it. Now that he is out of his lucrative job he converts influence and connections into money, on behalf of billionaires. It’s a bit like revolving doors, except there is no direct affiliation (he operates via a proxy).
“If former officials are up for sale and they are meddling in the affairs of the Office, then it’s a classic case of “pay to play” and unless we call out the culprits they will continue uninterrupted.”As Benjamin Henrion put it, “this is propaganda at best.”
Well, Schecter and IBM ought to know this because they are the ones who paid for this propaganda. They are still paying Kappos.
“Kappos is a lobbyist who needs lessons in basic economy,” Henrion continued. “R&D done in China, good sold in the US” (indeed and moreover China is fast becoming a den of patent trolling).
The US patent system still suffers from a high level of corruption due to this man. If former officials are up for sale and they are meddling in the affairs of the Office, then it’s a classic case of “pay to play” and unless we call out the culprits they will continue uninterrupted. █
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Posted in America, Asia, Patents at 11:41 am by Dr. Roy Schestowitz
Serial litigators are finding no sympathy in courts these days
Summary: A look at reports that highlight activity of patent trolls, including less traditional kinds of trolls which act as satellites of larger companies that wish to distance themselves from bad publicity
DEPARTING for a moment from EPO coverage and not necessarily focusing on the USPTO either, let is be accepted that patent litigation in the US (usually “litigation central”) is down sharply and the golden age of patent trolls is ending, just in time for Ray Niro's death (he is the father of patent trolling).
IAM, which often speaks for patent trolls, bemoans these latest findings from Mark Lemley et al (proponents of patent reform and opponents of patent trolls):
But in a second paper published in the Patently-O Patent Law Journal, the team at ROL together with Professor Mark Lemley of Stanford Law School and Stanford law student James Yoon, have done a deep dive into the litigation data to see just how the litigation success rates vary for patents bought on the secondary market. The study combined two data sets: one for every patent lawsuit filed in 2009 and 2010 litigated to a substantive decision; and another which analyses USPTO assignment records to pick up all transactions and assignments for the patents in question. Ultimately, they were left with 516 litigation decisions in which the patentee won 24.2%. Just over half of the patents, or 280, had been transferred before any litigation began.
Overall they found that the patent owner won in 21.1% of the cases for patents that they had bought and in 28% of the cases for patents they had developed in-house. It’s widely accepted that winning an infringement lawsuit in the US these days is an uphill struggle, whether you’re litigating your own portfolio or one you have acquired, but the study added a lot of detail when it looked at how different types of entity fared when they litigated patents they had purchased.
Not only does it show that trolls’ business model is suffering; it also shows that certainty in litigation is quite low right now. Considering the low quality of many US patents (examination not as thorough as courts’ examination with expert witnesses), this is hardly surprising. The USPTO gave lots of worthless patents to many parties, and some parties (like IBM or Microsoft) received tens of thousands of such worthless patents, which are only worth something when used in bulk against a small plaintiff that cannot afford to challenge them all in court. This has indeed been Microsoft’s strategy against Linux and IBM now follows similar footsteps. These two companies increasingly act like trolls because they simply cannot sell products in various domains they had aspirations in (like Microsoft in mobile/devices).
The form of trolls has been shifting and changing. “PAE” is the buzzword du jour.
Patent troll CSIRO, which now faces legal barriers w.r.t. CRISPR, has begun making headlines again and someone sent us this report titled “CRISPR — the biggest biotech discovery in decades — is stuck in legal limbo”. This is the “last important patent interference proceeding to come before a panel of its judges,” Natalie Rahhal wrote for MIP in New York. CSIRO is not a traditional kind of troll, but in many ways it resorted to behaviour that is indistinguishable from trolls’. We wrote many articles about it around half a decade ago.
Trolling, however, is not just a passing fad because as quality of patents sinks to gutter levels in China patent trolls are starting to emerge and neighbours of China too gradually buck this trend. Some Korean banks are creating a patent troll in Korea, says IAM this week, noting the following:
It is worth pointing out that KDB Infra IP Capital is not the only SPF among MPEG-LA licensors; compatriot Intellectual Discovery as well as Japan’s IP Bridge are also pool members, having acquired SEPs from operating companies in their home countries.
We have written a great deal about MPEG-LA, a truly malicious patent troll headed by Larry Horn — himself quite a notorious character. MPEG-LA pools together quite a few patents from quite a few companies. When it comes to litigation, it acts very much like a troll, led by Mr. Horn. Quite a few patents of MPEG-LA are expiring or already expired, but this troll resorts to evergreening using its newer pseudo ‘standards’, as mentioned here before.
Right now it is important to recognise the strong correlation between patent quality and the severity of the patent trolling epidemic. We regularly remind readers that most patent trolls rely primarily if not solely on software patents, so in order to combat all that trolling we need to organise against software patents everywhere. █
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Posted in Europe, Patents at 8:37 am by Dr. Roy Schestowitz
If it’s not too late already to save the EPO from collapse…
Reference: Hugo Chavez is Scaring Away Talent
Summary: Tyranny and an authoritarian management style at the EPO is taking its toll and the entire workforce is now at risk
THE severe actions from EPO management have made the working place exceptionally unpleasant, even to senior staff. We have never heard of (or from) a satisfied EPO worker and judging by the staff survey that was not sponsored (and controlled) by Battistelli, it’s the fault of Battistelli and his ilk. Things were nowhere as grim shortly after he had taken over. Judging by the number of departures (including early retirements), we can expect a severe loss of skills/experience inside the Office. This can be fatal.
IAM, which never cared about patent quality (it’s an impediment to trolls that sponsor IAM and IAM itself pushes for software patents even in India while covering up the obvious issues at the EPO), describes a similar manpower issue in India right now. The USPTO, which is generally improving right now (after decisions like Alice and Mayo), brags about improved patent quality. Lee, whom Trump reportedly plans to replace, has just spoken about the subject. To quote IP Watch:
Opening a conference on patent quality today, United States Patent and Trademark Office Director Michele Lee highlighted efforts of the administration in improving the quality of patents and addressing backlog of patent applications. Patent backlog is down by one-third since the start of the Obama administration, she said.
We intend to write more about the USPTO separately (later today), but let’s just say that with PTAB, CAFC, Alice and so on there are growing hopes among reformers (less so among the patent microcosm/patent maximalists who lobby Trump already).
At the EPO, patent quality is declining and earlier this week the EPO tried to hide this (probably in preparation for today’s meeting). Battistelli is demolishing the appeal boards (more of less the equivalent of PTAB in the US) and this article by Christian Balcer (Marks & Clerk) has just been reposted again to highlight shortened windows for appeal (one of many ways Battistelli has been using to crush/weaken the boards).
Yesterday the EPO wrote: “We have vacancies for engineers and scientists.”
What they mean to say was that they have experienced brain drain, as the Office is in a crisis due to Benoît Battistelli and his thugs. Those who can, with some exceptions, are leaving. “Join the Praktika Intern programme,” the EPO wrote yesterday, “if you have experience in drafting & prosecuting European patent applications…”
They just want low-cost labour to compete with the senior staff, forcing them into depression, under-capacity, or simply a rushed process of examination that resembles assembly line rather than proper research (e.g. prior art) which their qualifications, such as Masters and Doctorates, enable them to carry out.
The EPO wants to become another SIPO. A million patent applications per year is something they’ll never attain given the high cost associated with EPs and the growing realisation that today’s EPO is a sham.
The following new comment relates to a comment we saw and mentioned the other day in relation to FFPE-EPO:
Administrative council meets in 2 days. An attempt to head off any opposition within the AC as BB shows how fair he is? I’m pretty certain there would also be a divide and rule about this as have all the members of the staff reps been awarded something? The ones I know will not be bought.
Battistelli is accustomed to wasting the EPO’s money just buying the media and potentially buying votes too (a sackable offense). Some people allege that he is trying to pull it off again.
“Will the AC , partners in crime, become tomorrow a group of refined thinkers,” one person wrote yesterday. Here is the full comment:
Will the AC , partners in crime, become tomorrow a group of refined thinkers and doers who deal freely and easily with the Eponians academic reflexes , unhindered by the often overwhelming foreknowledge of those in BB’s close circles?… A group armed with a critical , constantly alert outlook , with antennae and feelers reaching out in all directions, with ears permanently pricked and implausibly intelligent hearts. To look at the EPO differently , dispense with the obvious, communicate more deliberately with the Eponians and place their trust in them. Do they dare to take this leap in the unknown? A Wahlverwandschaft. There is no such thing as coincidence!
As we stated a couple of times earlier today, if the Administrative Council does not take firm action against Battistelli, then it will most definitely be viewed as complicit. There is no excuse left at this stage. The management, to quote EPO staff, is a disaster because “[t]rust in the European patent system has been seriously eroded” and “Mr Battistelli is causing immeasurable damage to the Office; he is now untenable.” █
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Posted in Europe, Patents at 7:43 am by Dr. Roy Schestowitz
Summary: Early photos from the afternoon’s EPO staff protest in Munich
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Posted in Europe, Patents at 7:29 am by Dr. Roy Schestowitz
World-leading scientists in support of EPO staff and against EPO management
Summary: The CERN Staff Association is disturbed to see that “the management of EPO has been attacking the representatives of the personnel on a regular basis.”
THE OTHER day we wrote about EPO staff receiving support from CERN, probably Europe’s most highly regarded scientific institution. Even the US public (and the USPTO) probably wish they had something like CERN, but what they have instead is NASA (it remains to be seen what Donald Trump will leave of it other than climate sceptics [sic]). CERN is the best bar none in its domain, the international leader in several areas of physics. The EPO cannot simply dismiss CERN as irrelevant.
Here is a message from CERN, which has reached us not too long before today’s protest:
Dear Colleagues,
On Tuesday, 29 November 2016, the CERN Staff Association published in Echo (their internal newsletter) an article regarding the very troubling situation of the EPO.
Over the past three years, the management of EPO has been attacking the representatives of the personnel on a regular basis. This has resulted in demotions and dismissals of representatives of the personnel. It is essential to inform all of our colleagues in international and European organizations of what is going on at the EPO. You can find the article published in Echo, along with further information on the issue, on the website of SUEPO (Staff Union of the EPO). (https://www.suepo.org)
In order to support our colleagues of SUEPO and to show that what is happening at the EPO is widely known, you may, if you wish, send messages of support and take a stance on this issue by contacting SUEPO directly at: hague@suepo.org and/or munich@suepo.org.
Best regards.
Joel Lahaye
CERN Staff Association
External relations
It has meanwhile emerged that ILO's staff too supports EPO staff and SUEPO’s Web site has just been updated to link to this announcement in English and in French. The text is not the same as in the E-mail we saw, so we reproduce it below:
The ILO Staff Union Committee supports the struggle of the EPO Staff Association to maintain its work under decent conditions and without retaliatory measures. Indeed, for three years, the staff of this organization has been working in a toxic environment where the deterioration of working conditions is well known.
The representation of the staff is constantly repressed in a brutal way (demotion, eviction) which, in fact, prevents any dialogue between the staff and its administration.
We encourage you to read the articles published by our colleagues of the CERN Staff Association (http://cds.cern.ch/journal/CERNBulletin/2016/48/Staff%20Association/2235528?ln=en) and the ECB (European Central Bank) (http://ipso.de/page.php?c=3)
The ILO Staff Union Committee has already communicated its support and solidarity to the staff of the EOB.
This mentions the ECB (European Central Bank), whose staff made a statement that we covered yesterday.
The number of voices against Battistelli’s regime is growing by the day/week and someone sent us “2 further letters in support of EPO staff, one from ILO Staff Union and another from USF.”
What will it take for the Administrative Council to become sober (not drunk on Battistelli’s “carrots”) and realise that this whole institution is now at risk and by failing to act they actually participate (complicity) in institutional corruption? Toasting over the protection of Battistelli somewhere like Kongstad's slaughterhouse* (getting drunk inside this echo chamber) won’t get their own career very far. █
______
* Many people choose to adopt rodents as pets, chinchillas being some of the most desirable among them, but to Kongstad and his wife chinchillas are just piles of bones with fur on them, bred/harvested purely for profit from Danish elites (and sociopaths abroad).
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