07.02.16
Posted in Deception, Europe, Patents at 6:19 pm by Dr. Roy Schestowitz
English/Original
Article as ODF
Publicado en Decepción, Europa, Patentes at 12:02 pm por el Dr. Roy Schestowitz
Sumario: La declaración de la EPO prueba que Eric Blair (George Orwell) a la derecha, cuidadosamene reescribió para explicar mejor lo que Battistelli y sus compadres acaban de hacer para trae la situación de la EPO a un estado lamentablemente bajo
Poniéndo de lado a la nefásta USPTO por el momento, ya que hay algo urgente de responder a la EPO (algo de lo que explicamos en la tarde), considéren esta horrible pieza de propananda del estado parecido a Nor Corea, la EPO (advertencia: epo.org link y cada oración es una mentira Orweliana, excepto la oración que explica lo que la Sala de Recurso hace).
“Hubo un tiempo en el cualvariosexaminádores analizában todas las aplicaciónes individualmente, pere los examinádores de la EPO reconocen una caída en la calidad de patentes y aparentemente el abandono/eliminación de la participación multipersonal también (así que Battistelli simplemente sigue mintiéndo a los medios acerca de ello).”
Es un paquete desvérgonzado de mentiras, así que decidimos volver a escribir correctamente. Como un poco de fondo, tengamos en cuenta el papel fundamental de control de calidad en cualquier oficina de patentes, especialmente una oficina de patentes, que se esfuerza por tener alta reputación (con el fin de justificar altas tarifas).Hubo un tiempo en el cual varios examinádores analizában todas las aplicaciónes individualmente, pere los examinádores de la EPO reconocen una caída en la calidad de patentes y aparentemente el abandono/eliminación de la participación multipersonal también (así que Battistelli simplemente sigue mintiéndo a los medios acerca de ello).
El día de hoy la EPO escribió: “¿Cómo se puede averiguar si su idea es novedosa? Lo hace mediante la búsqueda de la técnica anterior. “Bueno,” la búsqueda de la técnica “es exactamente lo Battistelli está esforzándose para que los veteranos examinadores trabajen más rápido (es decir, más imprudentemente) y hacer el período de apelación más corto, las salas de recurso con poquísimo personal, haciéndo todo el proceso mucho más costoso para los que retan/desafían las ´patentes´ (es decir, poniéndo fuera del alcance por su costo prohibitivo para las pequeñas empresas en particular). Así que aquí está el anuncio “corregido” de la EPO:
Mayor grado de indulgencia y la reducción de calidad de las patentes gracias a el presidente de la EPO
1 de abril de el año 2016
En una decisión Battistellian, su Consejo de Administración que explota la Organización Europea de Patentes para el cuidado dental gratuita, acordó enviar al exilio las salas de recurso (BoA), a pesar del marco de la Convención Europea de Patentes.
Aprobado con un gasto enorme de dinero de cooperación a los Estados Miembros, la Organización Europea de Patentes aceptó una propuesta de demolición completa de la Oficina para reforzar la percepción de que no hay futuro para la BoA, en particular aumentando el incentivo para buscar otros empleos, y para hacen que sea difícil de recibir la aprobación presidencial para tal empleo alternativo. La BoA es el órgano que toma las decisiones sobre los recursos contra las decisiones de la Oficina Europea de Patentes relativas a las solicitudes y las patentes europeas.
“La decisión tomada ayer por fin logra la destrucción del sistema de apelación de la EPO, que erróneamente se había previsto desde hace muchos años. Después de dos intentos de destrucción que fracasó en 1995 y 2004, esto es un logro histórico “, dijo el presidente de EPO Battistelli. “El aumento tanto de la percepción de mala seguridad en el empleo y el alto costo de la BOA es esencial para asegurar mi propio trabajo y la eliminación de sistema de apelación de la EPO y para mantener su desaprobación a largo plazo”, explicó el presidente de la EPO.
Bajo el plan de demolición de los BoA actual será reestructurado en unas Juntas de Unidad de recurso internas de la EPO manejadas por un Presidente de las Salas de Recurso – una nueva posición -, responasable sólo ante un consejo de administración controlada por Battistelli y no a Battistelli directamente . Un comité auxiliar de nueva creación del Consejo de Administración, las Juntas de Comité de Apelación (BOAC), ayudará a periodistas manosear a políticos. Este enlace entre el Consejo de Administración BoA y estará a merced de un presidente al que evidentemente le importa un comino el estado de derecho.
El presidente de la EPO nombrará a un compinche – probablemente un ex colega de Francia o de alguien que se enfrenta a muchos cargos penales en otro país – al Presidente de las Salas de Recurso y por lo tanto mantener poderes de gestión relativos a las Salas de Recurso Unidad. El Presidente de las Salas de Recurso también servirá como el perro faldero de Battistelli, que actúa como una competencia al Presidente del Consejo de Administración. La reforma, además, tiene como objetivo aumentar el costo de las Salas en los próximos años, por lo que será más fácil de justificar cierre o la reducción perpetua.
La reforma institucional estará acompañado de un sistema de carrera mucho menos atractivo para los miembros y presidentes de las Salas, y la reubicación en Munich por las Juntas de Unidad de apelación ante un edificio separado con el fin de hacer más difícil para ir a trabajar y obligar a muchos al salir de su trabajo. Por otra parte, las nuevas restricciones relativas al empleo posterior al servicio de los miembros de la boa y presidentes tienen en cuenta la necesidad de hacer que sea difícil renunciar (riesgo de desempleo perpetua) con el fin de salvaguardar la integridad [sic] del sistema de apelación de la EPO mediante la prevención de cualquier riesgo de posibles conflictos de intereses, a diferencia de, por ejemplo, el nombramiento de la esposa de un amigo a una posición superior en la EPO de recursos humanos.
“Para hablar claro,” escribió una persona temprano hoy, “simplemente no hay salvaguardas en la EPC contra la corrupción (o para asegurar un apropiado balance de poder).” La amenaza de corrupcim viende no de empleados ordinarios. Al presente toda la corrupción viene del alto nivel gerencial, i.e los ¨Compadres de Battistelli¨. Para citar el comentario en su totalidad:
No, no todos son empleados de EPO. Pero, al parecer con aire acondicionado en el bolsillo de BB, ¿qué podemos hacer?
A la luz de los acontecimientos recientes, temo que sólo los acontecimientos fuera del control de los Estados miembros (por ejemplo, una decisión adversa de la corte constitucional de Alemania) posiblemente podrían pedir al CA a una acción decisiva. Pero, ¿realmente quiere que se llegue a eso?
Alternativamente, si los medios de comunicación tomaron más interés y minuciosamente investigado muy bien por qué es que el aire acondicionado toma las decisiones se hace, podría la OEP como a toda soportar las consecuencias si la evidencia clara de votos por dinero en efectivo (u otro beneficio personal), extorsión o cualquier otra se obtuvieron actividades ilegales? ¿O sería aún peor si nos dimos cuenta de que la razón es que los delegados de la AC realmente están de acuerdo con las opiniones del BB?
Es triste decir que el problema radica en el hecho de que los padres fundadores de la EPC no previeron que el presidente de la EPO podría (mal) uso de los recursos a su disposición para garantizar de manera efectiva que controle sus supervisores. Para hablar claramente, simplemente no hay suficientes garantías en el EPC contra la corrupción (o para garantizar un adecuado equilibrio de poder). (Debo señalar que no estoy alegando que no son definitivamente las prácticas corruptas pasando aquí, sólo que no hay nada en el EPC que podría detenerlos si no lo fueron).
Tiempos tristes para la EPO. Como observar un estado totalitario con sus ciudadanos a la merced del tirano. No pueden escapar debido a las nuevas sanciónes establecidas. Eponia se ha convertido en la nueva Corea del Norte, y el desgraciádo de Battistelli su LIDER SUPREMO.
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Posted in America, Apple, Deception, Patents at 2:59 pm by Dr. Roy Schestowitz
Summary: Some of the past week’s patent stories grouped together for easier absorption (sans the patent lawyers’ bias)
IAM ‘magazine’, which glorifies patent stockpiling and litigation (follow the money), basically continued to promote stockpiling of patents earlier this week. It’s about USPTO registration, which IAM uses to reinforce the notion of patents as “ownership” and innovation. Nicola from IP Kat, who is often sceptical of patent maximalists (she’s one of their best writers on such topics), linked to this paper and said: “The key finding is that, “55% of triadic patents are commercialized. We also find that 17% of all triadic patents are not commercialized but are at least partially for preemption, though only 3% of all triadic patents are purely preemptive patents.” Preemption is patenting for strategic purposes, rather than commercial. (You could argue the two are one and the same, but the paper focuses on preemptive non-use, as in strategic patenting with no intention to use the patent.) The paper goes into much more detail, but the punchline is that nearly half of triadic patents are not used, but ‘strategic’ patenting may be less prevalent than popular discourse would have you believe.”
“Patenting without boundaries devalues pertinent patents and harms confidence in patents.”What we appreciate about Nicola is that in spite of backlash in the comments (probably from patent lawyers) she continues to insist that when it comes to patents, more is not necessarily merrier. Patenting without boundaries devalues pertinent patents and harms confidence in patents. That’s just overpatenting. This is particularly true when it comes to software patents, which often correspond to very old ideas being implemented on a computer, on a device, over the Internet and so on. According to this new puff piece, for example, “Viridity Energy secures patent for transport-based energy storage software,” which probably corresponds quite loosely to something like the first software patent ever to be granted in the US (granted to Martin Goetz using the guise of “transport”). Software in general isn’t adequately protectable by patents but by copyright and there is no single patent that covers an entire computer program (there is no one-to-one correspondence and a single program can potentially infringe on thousands of software patents these days). We sure hope that the EPO won’t be gullible enough to believe otherwise.
Moving on a little, GoPro, which Microsoft extorted using patents earlier this year, becomes aggressive with patents of its own. As Digital Trends put it: “After Polaroid manufacturer C&A Marketing Inc. sued GoPro for copying the Cube’s design last year, GoPro is turning the tables, saying that it’s the Cube that is using GoPro’s patented technology. In a lawsuit filed Tuesday in the U.S. District Court in the Northern District of California, GoPro alleges that the Polaroid Cube copies two patents owned by the action-cam giant.”
“…when Apple wants to remotely control your phone, microphone, cameras etc. (or allow others to gain such control) it’s OK “because copyrights!””GoPro may be aggressive with patents, but no company these days is nearly as aggressive as Apple, which sees its empire devoured by Google with Android. Apple is now pursuing patents on censorship, as quite a few sites correctly note. Rick Falkvinge (Pirate Party founder) correctly went with the headline “Apple patents technology enabling police to prevent iPhones from filming police abuse”. One article had the headline “Apple gets patent for remotely disabling iPhone cameras, raising censorship fears”, but many of the other articles about it (literally hundreds if not thousands of them) were so terrible that they repeated Apple’s talking points. Poor reporting took Apple’s word (at face value) on how cameras being hijack would be used; when Apple wants to remotely control your phone, microphone, cameras etc. (or allow others to gain such control) it’s OK “because copyrights!” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72]. How misleading. These lies dominated the media and made Apple’s patent look like “protecting artists” rather than censoring photographers (who are themselves artists). See the article “The New iPhone Might Shut Off Next Time You Try to Film the Police in Public” for better perspective, unlike advocacy sites of Apple patents. This one said: “The U.S. Patent and Trademark Office officially published a series of 44 newly granted patents for Apple Inc. today. In this particular report we cover an Apple invention that pointed to the coming indoor GPS trend that is about to come to market first with the Lenovo-Google Tango smartphone this fall. In our report covering the Lenovo phone we pointed to a feature that will be introducing augmented reality. To a certain degree this is covered in today’s granted patent. Apple’s technology discusses working with venues like a museum that could provide visitors with guided tours and beyond on a future iPhone. In 2014 we posted a report titled “Apple and Google Headed for an Indoor Location Services War,” and indeed they are with Lenovo-Google taking the first shot. The second aspect of today’s granted invention caused a massive roar from techies who were upset with the camera being able to block smartphone video recording at concerts.”
Speaking of Apple, IAM insinuates that iPhone sales ban in China is a bad thing (suddenly IAM thinks patent assertion is bad, probably because China isn’t paying IAM) and MIP says “Apple’s latest China setback could encourage patent trolls”. “The Beijing IP Court has ruled that the iPhone 6 and 6 Plus infringe the design patent of a Chinese-made smartphone, in a case that one IP lawyer believes could provide inspiration to patent trolls,” MIP writes. Well, if they are so supportive of patents, why is this bad when China uses patents? A bit of hypocrisy here, no? On the other hand, IAM published “Fujifilm’s Chinese pharma patent licensing deal marks a milestone in its IP-driven transformation” and “Qualcomm’s licensing model will be “destroyed” if it can’t win key China case, says its ex-Asian patent director” (also about china). So a monopoly abuser wishes to conquer China with patents that China doesn’t care for and IAM takes the side of the monopolist. How predictable. Moving further east to Japan, watch how IAM promotes/grooms Intellectual Ventures, the world’s largest patent troll (which came from Microsoft originally). IAM wrote: “Earlier this month, we learned that Intellectual Ventures (IV) is spinning out its Invention Development Fund (IDF) into a separate entity. The news was confirmed by Paul Levins, who has been head of IV’s Australia and New Zealand operations and is the Asia and Europe programme director for IDF, while speaking on a panel at IPBC Global 2016 in Barcelona. As I understand it, this process has been underway for a few months and is still ongoing – but this has not stopped IDF from doing deals.”
“We see more of the same bias coming from patent lawyers’ (supposedly ‘news’) sites, which prefer to treat all patents as necessary and those that sue companies as “doing the right thing” (irrespective of merit or benefit to science, technology, and society).”The word troll isn’t even mentioned in this article (nor is it mentioned in this new article about the patent troll of Ericsson, which now goes to Asia for some shakedown, extortion, blackmail or whatever). WatchTroll only puts the word troll in scare quotes, reflecting the same kind of bias. We see more of the same bias coming from patent lawyers’ (supposedly ‘news’) sites, which prefer to treat all patents as necessary and those that sue companies as “doing the right thing” (irrespective of merit or benefit to science, technology, and society). “Amicus Briefs Due Soon in Supreme Court Copyright and Patent Cases,” one such site said after it suggested how to destroy small companies using patents. “A tactic sometimes used by a well-established competitor against a startup is to accuse the startup of patent infringement,” the article said. “Unless the startup has deep pockets, it cannot really afford to defend a patent lawsuit…”
This is why patent trolls are particularly problematic for small companies. Sometimes patent trolls are just proxies/satellites of large companies. If only more patent lawyers’ sites cared to cover the subject… █
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Posted in America, Patents at 1:58 pm by Dr. Roy Schestowitz
Summary: A ruling from the US Supreme Court (SCOTUS) on Cuozzo Speed Technologies LLC v Lee paves to way to less software patents in the United States and why this matters
The Cuozzo case was a big win against software patents [1, 2, 3], having profound implications/impact at the USPTO and more so at PTAB. Just like Alice, this decision came from the Supreme Court, so we’re likely to hear a lot more about it in the future. In a nutshell, the US Supreme Court (SCOTUS) validated the approach by which PTAB invalidates software patents en masse, without relying on costly trials. Defendants or prospective defendants (i.e. victims) can eliminate patent threats without them even being asserted (and lawyers/attorneys paid a fortune to work on legal correspondence, analysis and so on).
In its article about the subject, IP Kat can’t help calling PTAB “death squad” (the patent lawyers’ insulting term for a software patents abolisher, i.e. quality control). Do we really need to compare patent (re)examination to murder or assassination (which is rarely practiced anymore for moral reasons)?
“Defendants or prospective defendants (i.e. victims) can eliminate patent threats without them even being asserted (and lawyers/attorneys paid a fortune to work on legal correspondence, analysis and so on).”A week ago we collected many opinions that had been published by law firms on the subject [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15]. We had a good laugh at patent maximalists who promote software patents for nearly a decade; they openly deny the existence or relevance of a case that they don’t like (see “Cuozzo: The Case That Wasn’t” and “Cuozzo, Phony IPR Statistics and the Death of the American Inventor”; at least these two were contrasted with “The importance of PTAB patent review proceedings for addressing low quality patents”). The “most recent example is Cuozzo Speed Technologies,” wrote Ars Technica, which as usual took a difficult subject and made it easier for non-lawyers to understand. Here is the outline: “Patent trolls don’t fare well at the Supreme Court. When they show up, their cases tend to result in decisions that are ruinous for the profit margins of their industry. Two prominent examples: the 2006 eBay v. MercExchange case effectively ended trolls’ abilities to get injunctions, and the 2014 Alice Corp. case made it far easier for patent defendants to invalidate abstract software patents.
“And yet, the cases keep coming. The most recent example is Cuozzo Speed Technologies LLC v. Lee, a case that was resolved earlier this week with an 8-0 opinion dismantling arguments presented by Cuozzo, a patent-holding entity controlled by two New York patent lawyers, Daniel Mitry and Timothy Salmon. The two attorneys own dozens of other patent shell companies through their consultancy, Empire IP.”
This case was a very important one not just because of the subject it addressed and issues it tackled. It’s important because it was decided at the highest possible level. By contract, see Immersion v HTC reports (not many of them exist) “Yesterday,” said patent law firms [1, 2], “the Court of Appeals for the Federal Circuit reversed and remanded the decision of the Delaware district court in Immersion Corp. v. HTC Corp.” In a sponsored “article” (they called it “REPORT”) for the EPO/FTI Consulting-sponsored IAM this case got a mention as well. Continuation filings are applicable not just to software patents and/or invalidation thereof. Therefore we haven’t been writing much about the subject and probably never will, unless or until SCOTUS rules on it (this latest decision, one among several, was only at CAFC level). █
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07.01.16
Posted in America, Courtroom, Patents at 6:39 pm by Dr. Roy Schestowitz
Credit: Robert R. Sachs
Summary: The trend which suggests software patents fade away in the United States, in spite of all the lobbying, remains largely uninterfered
AT TIMES when the USPTO does not care about patent quality (apathetic at best) and the Supreme Court is giving more power to CAFC, the originator of software patents in the United States, one must pay close attention to enemies of software development, i.e. those who promote software patents.
According to lawyers’ media (earlier this week), “At Federal Circuit, Death of Software Patents Exaggerated”. To quote the article’s basis for this headline: “The U.S. Court of Appeals for the Federal Circuit continues to carve out a sliver of room for software patents.
“Alice is a lot stronger (Supreme Court) than most precedents and Enfish has proven to be rather useless in practice.”“A three-judge panel on Monday found that a Texas federal judge jumped the gun when she ruled that software designed to filter internet content was ineligible for patent protection under the Supreme Court’s Alice decision.
“Judge Raymond Chen acknowledged that the patent claimed an abstract idea and that the claim limitations, taken individually, recite generic computer, network and internet components.”
It’s not just this one. Patent lawyers continue to worry about Alice killing software patents and any time there’s an exception to that they leap at the opportunity, as they did yesterday [1, 2, 3] (the second one is also here) after CAFC had thrown a bone [1, 2, 3, 4]. It is not too shocking that the court which brought software patents to the US and has become rather notorious for corruption is throwing a bone to patent lawyers. Here is MIP’s coverage of the case. “The Federal Circuit has found a software patent valid for the third time since Alice, ruling in Bascom v AT&T that “an inventive concept can be found in the non-conventional and non-generic arrangement of known, conventional pieces”,” says the summary.
Does this mean that people can now just say Halo, Enfish or Bascom in order to overturn decisions in favour of software patents? Well, not really. Alice is a lot stronger (Supreme Court) than most precedents and Enfish has proven to be rather useless in practice. As the National Law Review put it the other day: “Ever since the Supreme Court’s decision in Alice Corp. v. CLS Bank shifted the contours of patent-eligible subject matter, district courts have wielded the two-part test set forth in that decision to dispatch scores of business method patents as being directed to unpatentable abstract ideas. In a recent example, the Massachusetts district court invalidated a patent relating to inventory forecasting software using the Alice test.”
“Alice not only prevent new software patents from being asserted (or granted, if the USPTO actually decides to follow the rules rather than chase gold); it also retroactively devalues or revokes old software patents.”This is generally the trend nowadays, as statistics serve to show. Software patents continue to drop like flies and there is no sign (at least not yet) of the Supreme Court reversing its course of action. Regarding Yahoo, which was destroyed by Microsoft, someone finally says the obvious about its patents, which are being put on sale. Yahoo’s patents may be worthless because they’re primarily software patents or in the words of a Forbes blogger: “The Yahoo patents being marketed cover a number of different technology areas, including e-commerce, search, messaging, and cloud computing. However, over 80% of these IP assets are categorized as software or business method patents.”
Alice not only prevent new software patents from being asserted (or granted, if the USPTO actually decides to follow the rules rather than chase gold); it also retroactively devalues or revokes old software patents. Speaking of which, yesterday the EFF’s Nazer presented the “Stupid Patent Of The Month: Storage Cabinets On A Computer” (as the name/title implies, this too is a software patent).
To quote Nazer: “How do you store your paper files? Perhaps you leave them scattered on your desk or piled on the floor. If you’re more organized, you might keep them in a cabinet. This month’s stupid patent, US Patent No. 6,690,400 (the ’400 patent), claims the idea of using “virtual cabinets” to graphically represent data storage and organization. While this is bad, the worse news is that the patent’s owner is suing just about anyone who runs a website.
“With few exceptions here and there (including some from CAFC) we remain quite confident that the trend remains phasing out of software patents in the United States.”“The ’400 patent is owned by Global Equity Management (SA) Pty. Ltd. (“GEMSA”) which seems to be a classic patent troll. GEMSA is incorporated in Australia and appears to have no business other than patent litigation. The patent began its life with a company called Flash VOS. This company once offered a product that allowed users to run multiple operating systems on personal computers with x86-compatible processors. The ’400 patent describes a graphical user interface for this system. The interface allows users to interact with “graphical depictions of cabinets” that represent memory partitions and different operating systems.”
The nice thing is, many patents that are like that and can be described in physical terms (or analogies) would quite likely be deemed too abstract to be patentable. With few exceptions here and there (including some from CAFC) we remain quite confident that the trend remains phasing out of software patents in the United States. Software patents proponents like patent lawyers would have us believe otherwise because they’re trying to find customers and sell their services. █
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Posted in Europe, Patents at 5:44 pm by Dr. Roy Schestowitz
So much for ‘unitary’ and ‘best’ patent office (based on EPO-connected punditry)
Summary: Battistelli’s regressive policies and extremely bad behaviour increasingly motivate people to avoid the EPO, which serves to reinforce the observation that Battistelli has become an existential risk to the EPO with his huge spendings on self-glorification, militarisation, and dubious secret contracts
THE LEGACY of Battistelli — irrespective of when he leaves the Office — will be one for the books. Battistelli won’t be remembered as anything but a tyrant who was so widely loathed by his own employees that his approval rate stood at a flat 0%, triggering warnings of a crisis inside the Organisation. Some top managers have left (or decided to leave) since.
Earlier tonight The Register composed a piece about the latest attack on the appeal boards, which the Office proudly lies about (the Office is accustomed to lying to staff, journalists and so on). Here is a portion of the article:
A determined effort to oust European Patent Office (EPO) president Benoit Battistelli amounted to nothing this week, as representatives from European countries instead spent two days rehashing a reform proposal.
The meeting of the EPO’s Administrative Council in Munich had threatened to become a showdown over Battistelli’s increasingly autocratic behavior – a situation the EPO’s staff encouraged by attempting to serve legal papers on the president and sending messages to council members asking them to fire him.
The council decided to effectively ignore ongoing disputes between staff and management however, punting the relevant agenda items to their next meeting in October.
Instead, the meeting focused on reform of the organization’s Boards of Appeal (BOA), which had themselves proved controversial due to Battistelli’s efforts to afford himself additional powers over what is supposed to be an independent body and process.
The council threw out the powergrab, approving a reform system that saw a new Boards of Appeal Committee set up as a subsidiary of the Administrative Council, and a newly created President of the BOA that will absorb some of the powers currently held by the EPO President.
At the moment, the sole comment there says “So very European,” which shows to what degree Battistelli has disgraced Europe, not just the EPO. He creates resentment towards EU institutions and distrust of/against French people, which as we noted earlier this year is a good reason for French politicians to stop him.
“Battistelli won’t be remembered as anything but a tyrant who was so widely loathed by his own employees that his approval rate stood at a flat 0%, triggering warnings of a crisis inside the Organisation.”George Brock-Nannestad, an occasional commentator who writes about the EPO, left a strongly-worded comment today. He said “it is no longer responsible to recommend obtaining a patent via the EPO,” directly as a result of Battistelli’s actions that can kill the Office in the long run. Don’t take the EPO for granted; when millions of Euros are spent essentially buying the media and tens of millions of Euros get thrown at private companies without even a tender we probably need forensic accountants to pay a visit, if Eponia permits it (even a bailiff is hardly allowed near the postbox and Croatian authorities struggle to successfully summon Željko Topić, who refuses to attend hearings about his alleged corruption). Here is Brock-Nannestad’s full comment:
The development, or rather winding down of the quality at the EPO is very saddening and yet another blow to the stability that permitted a certain amount of complacency of the professionals.
Apparently, nobody among those who are responsible for carrying out the letter and intentions of the EPC have any historical perspective. Like politicians they are only concerned with getting re-elected and of financing their seat [almost like in the US, where fundraising seems to be the main activity of those elected to Congress, at least by some reports].
However, changes that may be carried out in one year to what was a complete application processing system will have repercussions for 15+ years, and those users that need to consider where to put their “insurance” money cannot risk obtaining superficially shiny patents that hide structural weaknesses, and on the other hand they cannot tolerate similar quality patents from their present or future competitors.
For consultants to smaller enterprises at least, the lesson is clear: it is no longer responsible to recommend obtaining a patent via the EPO, and the sooner alternative solutions are found on an individual basis, the better, because then the reforms at the EPO will not be felt.
The remaning problem will be an overabundance of unworthy patents from the competition, compounded by the ease with which the wise fathers expect the Unified Patent to be obtainable, that is, what defences can smaller enterprises muster against patents that go from irritants to (almost) trollls? We are not foreseeing a move to remove the European Opposition as a legitimate means of defence (but who am I to predict anything?), and that is what is needed.
9 months (and much more, if you have an early awareness) is definitely sufficient to structure supplementary searches and to study the paltry arguments for patentability that we see more and more. There is indeed a matter of cost, but smaller enterprises have ganged together in the past in order to protect their mutual interests, and paying a patent opposition membership fee corresponding in some agreed way with their turnover. And remember, due to the asymmetry of the EPC, the losing proprietor cannot go to the courts to try to reverse the decision and thereby gain further extortion time. Even if the EPO were to reject all oppositions, the opponents still have the courts available.
I think we need to think this way, and the AC members will not really be opposed: their patent offices will once more have responsibilities, and if they cannot lift them now, due to complacency and heavy reliance on EPO examination service contracts, they will b….y well have to re-charge their batteries. The EPO project will be a parenthesis in history, a brain trust of huge dimensions will disintegrate, and there will be human sacrifices. Let us celebrate the 30 years during which we were proud, but we must move on.
My candidate for a single country in Europe in which it would be worthwhile to apply in all cases, is Germany. Dependent on your purse and competitive situation you would choose other countries as well. We are back to before 1978! Luckily there are still some practitioners out there with experience that goes that far back.
An ex/former UK-IPO examiner argues that AC delegates “not wishing to show ignorance will tend to follow the herd” and thus they’re accepting Battistelli’s proposals, never mind money and free dental care. To quote:
I fear that we have seen BB using the BBB principle to good effect (BBB = “Bullshit Baffles Brains”, and old UK Armed Forces saying). I know nothing about the AC delegates, but it seems to be a law of nature (as expounded many decades ago in the classic textbook “Parkinson’s Law”), that the sort of person who ends up in a committee like the AC, has seldom had “hands on” experience in the day-to-day operation of the organisation that they represent (often having come in from another field at high level), and, not wishing to show ignorance, will tend to follow the herd, especially if arguments are presented forcefully enough.
The EPO, argues this one person, is “expensive and unpredictable. It may be OK for the big boys, but it’s no longer a sensible option for SMEs.” The same is true for UPC, which Battistelli strives and works hard to make a reality:
National patents are suddenly much more attractive. Especially as many of the main patenting states have relaxed their requirements for local representation. The national route is now highly cost effective, and much less risky than putting all your eggs into the EPO basket. The EPO’s new appeals regime makes the whole EPO route much too expensive and unpredictable. It may be OK for the big boys, but it’s no longer a sensible option for SMEs.
Here is an explanation of why AC delegates are not speaking about Battistelli’s abuses and his many sackable offenses; instead he attacks those whom he abused even further (collective punishment a possibility for their defense of a colleague) and delegates just mindlessly play along:
Upon further reflection, it is possible that some interesting (deliberate) tactics may have been employed by BB at the latest AC meeting.
The reason for reflecting is this: why was the discussion of the reform of the BoAs so pressing (i.e. no. 1 item on the AC’s agenda), so complex (i.e. involving multiple proposals that, for no good reason, were tied together by the Office) and so controversial (i.e. so blatantly against common sense as to guarantee vigorous debate at the AC meeting)?
It could perhaps be that BB believes that the best form of defence is attack. If he can control the agenda and tie the AC in knots with a debate on the first item, then he neatly side-steps an issue that could have truly seen him in the firing line. He also gains months (instead of only days) to prepare his defence to any criticisms stemming from the recent EBoA (Article 23 EPC) debacle.
It may well be a lot more complicated than that. However, if it really was that simple, then the delegates to the AC need to wake up to the fact that BB may well be playing them for fools.
It should definitely be noted, just in case intention is misunderstood, that I’m a big proponent of the EU and also a defender of the EPO as an EU-wide project (and beyond the EU). However, what goes on right now inside the EPO means that Europe will lose on competitiveness and damage its reputation. The sooner Battistelli is tossed out along with his cronies, the better. We’re now approaching the point where doing so might be too late (boards of appeal are already being scuttled, making the situation irreversible and decisions virtually irrevocable). █
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Posted in Europe, Patents at 5:02 pm by Dr. Roy Schestowitz
Trying to float an utter wreck without even renaming it (like previous attempts)
Summary: The desperate attempts to race to the bottom with the Unitary Patent Court and Battistelli’s misguided effort to reduce patent quality and make up for it with greater patent quantity, in addition to increased fees (to discourage appeals, withdrawals etc.)
THE so-called 'expert teams' which conspired (along with EPO management) to create and pass the UPC are in a poor state of affairs right now. ‘Brexit’ left them speechless or on the run.
MIP has released an article originally composed just before the ‘Brexit’ vote. It speaks of the Boards of Appeal, which UPC threatened to make redundant (based on some speculations but not all). Now we know that even without the UPC becoming a reality the Boards of Appeal are in serious trouble. Battistelli just wanted to demolish quality control all along, making the EPO more like the USPTO where so-called 'production' doubled in a matter of years (because quality control became hardly applicable).
“Now we know that even without the UPC becoming a reality the Boards of Appeal are in serious trouble.”Writing about the EPO and UPC today, Finnegan, Henderson, Farabow, Garrett & Dunner LLP remind us that they live in a fantasy world. They speak of a “soon-to-open Unified Patent Court (UPC)” even though there’s no such court and no opening is expected any time soon (if ever).
“The UPC Preparatory Committee and EPO Select Committee have issued a joint statement saying they will continue with their planned work despite the Brexit vote,” MIP reports today. Well, ‘Brexit’ makes it impossible until/unless they cheat in some way, as they probably will. We expected this when we wrote about it last week and at the beginning of this week. UPC would simply mean more patent trolls in Europe, lower patent quality (including perhaps software patents), and more legal action everywhere. It’s a patent maximalist’s wet dream.
“How long can this last and who will pay the price of erroneously-granted patents?”The EPO is in a freefall. Large corporations get patents granted/examined in bulk (alienating SMEs which makes up much of Europe’s landscape) and in relation to an article mentioned yesterday and earlier today in Techrights there is now this official announcement titled “EPO launches fast-track patent examination with Australia” (warning: epo.org link). The EPO also takes note of changed rates on “refunds for withdrawals” (earlier today), so perhaps they think they can make up for loss of quality by higher quantity and increased fees. How long can this last and who will pay the price for erroneously-granted patents? These are somewhat rhetorical questions.
Europe is about to suffer a a great deal (perhaps for decades to come) as a result of Battistelli with his horrible policies and UPC fantasy, which was a waste of time and energy. Never before has Europe’s patent system been in such a state of turmoil. █
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Posted in America, Patents at 12:28 pm by Dr. Roy Schestowitz
Patent trolls will wear the halo after Halo v Pulse
Summary: A short review/overview of this past week’s coverage regarding Halo (the Halo v Pulse case) — a SCOTUS decision that will help patent trolls in the United States
Patent lawyers like to focus on the Halo decision because, just like the USPTO, patent activity makes them money (litigation, patent grants etc.) and the consequences of the activity does not matter to them. It doesn’t even bother them when patent trolls take over portfolios and tax everyone (the externality).
“It doesn’t even bother them when patent trolls take over portfolios and tax everyone (the externality).”According to some of the latest articles about Halo, e.g. [1, 2, 3, 4, 5, 6], one’s position depends on one’s interests/agenda. Battistelli’s mouthpieces (IAM), for instance, say that SCOTUS “lowers bar for awarding enhanced damages for patent infringement”, software patents lobbyists say that all is fine (even if it helps trolls, like those that fund IAM), Science|Business seemingly celebrates the decision, Forbes (i.e. the billionaires’ rag) speaks in terms like “innovation”, and patent lawyers call it “willful infringement”.
Coinciding with the latest report/overview of SCOTUS cases (by Dennis Crouch) there is this article which says:
Finally, and on a related note: The Supreme Court’s statement that it’s the time of infringement that matters and not later is really unworkable and flawed. A defendant, for example, who finds another piece of prior art later, closer to trial, surely can rely upon that evidence (and/or opinion analyzing it) as (a) confirming the strength of an earlier opinion or (b) providing evidence that, from that time forward, its infringement was not “egregious”?
A lot of patent maximalists focus not on the aspect which is relevant to patent trolls. This decision has, in general, been highly helpful to patent trolls who may now be able to go after more companies and demand even more money from them.
As always, when reading about patents in sites that are run by people who profit from patents, take everything with a grain of salt. █
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Posted in Deception, Europe, Patents at 12:02 pm by Dr. Roy Schestowitz
Summary: The EPO’s statement which proves Eric Blair (George Orwell) right, carefully rewritten to better explain what Battistelli and his cronies have just done to bring the EPO’s status to an all-time low
PUTTING the USPTO aside for a moment, as there is something rather urgent regarding the EPO to respond to (something we explained in the afternoon), consider this truly ugly piece of North Korean-like state propaganda from the EPO (warning: epo.org link and every single sentence is an Orwellian lie, except the sentence which explains what the appeal boards do).
“Once upon a time several examiners looked at each and every application, but EPO patent examiners admit a decline in patent quality and apparently decline/elimination of multi-person participation as well (so Battistelli just keeps lying to the media about it).”It is a shameless pack of lies, so we decided to rewrite it correctly. As a little bit of background, consider the vital role of quality control at any patent office, especially a patent office which strives to have high reputation (in order to justify high fees). Once upon a time several examiners looked at each and every application, but EPO patent examiners admit a decline in patent quality and apparently decline/elimination of multi-person participation as well (so Battistelli just keeps lying to the media about it).
Earlier today the EPO wrote: “How do you find out if your idea is novel? You do it by searching for prior art.” Well, “searching for prior art” is exactly what Battistelli is fighting against by compelling examiners to work faster (i.e. more recklessly) and keeping the appeal period shorter, the appeal boards understaffed, and the entire process vastly more expensive to challengers/appellants (i.e. unaffordable/prohibitive to small businesses in particular). So here is the ‘corrected’ announcement from the EPO:
Greater lenience and reduced patent quality for the EPO’s President
1 April 2016
In a Battistellian decision, his Administrative Council that exploits the European Patent Organisation for free dental care, agreed to send to exile the Boards of Appeal (BoA) in spite of the framework of the European Patent Convention.
Approved with an overwhelming spending on cooperation money to member states, the European Patent Organisation accepted a comprehensive demolition proposal of the Office to strengthen the perception that there is no future for the BoA, in particular by increasing the incentive to seek alternative employment, and to make it hard to receive presidential approval for such alternative employment. The BoA is the body that takes decisions on appeals against decisions of the European Patent Office concerning European patent applications and European patents.
“The decision taken yesterday finally achieves destruction of the EPO’s appeal system which wrongly was envisaged for many years. After two attempts of destruction which failed in 1995 and 2004, this is a historic achievement”, EPO President Battistelli said. “Increasing both the perception of poor job security and the high cost of the BOA is essential for securing my own job and elimination of the EPO’s appeal system and for maintaining its long-term deprecation”, the EPO President explained.
Under the demolition plan the current BoA will be restructured into a Boards of Appeal Unit within the EPO managed by a President of the Boards of Appeal – a new position -, who is solely responsible to a Battistelli-controlled Administrative Council and not to Battistelli directly. A newly created subsidiary committee of the Administrative Council, the Boards of Appeal Committee (BoAC), will help bamboozle journalists and politicians. This link between the BoA and the Administrative Council will be at the mercy of a President who blatantly disregards the rule of law.
The EPO President will appoint a crony – probably a former colleague from France or someone who faces many criminal charges in another country – to the President of the Boards of Appeal and therefore maintain managerial powers relating to the Boards of Appeal Unit. The President of the Boards of Appeal will also serve as Battistelli’s lapdog, serving as competition to the Chairman of the Administrative Council. The reform moreover aims to increase the cost of the BoA within the next years so that it will be easier to justify closure or perpetual downsizing.
The institutional reform will be accompanied by a vastly less attractive career system for the members and chairmen of the BoA, and a relocation in Munich for the Boards of Appeal Unit with a separated building so as to make it harder to go to work and compel many to quit their job. Moreover, new restrictions relating to post-service employment of BoA members and chairmen take into account the need to make it harder to quit (risk of perpetual unemployment) in order safeguard the integrity [sic] of the EPO’s appeal system by preventing any risk of potential conflicts of interest, unlike for example appointment of a friend’s wife to a top EPO position in HR.
“To speak plainly,” wrote one person earlier today, “there are simply not enough safeguards in the EPC against corruption (or to ensure an appropriate balance of power).” The threat of corruption comes not from ordinary employees. Currently, all the alleged corruption comes from the top-level management, i.e. Team Battistelli. To quote the whole comment:
No, not all of us are EPO employees. But, with the AC seemingly in BB’s pocket, what can we do?
In the light of recent events, I fear that only developments outside of the control of the Member States (e.g. an adverse decision from the constitutional court in Germany) could possibly prompt the AC into decisive action. But would we really want it to come to that?
Alternatively, if the media took more interest and thoroughly investigated quite why it is that the AC takes the decisions is does, could the EPO as whole withstand the fallout if clear evidence of votes for cash (or other personal benefit), blackmail or any other illegal activities was obtained? Or would it be even worse if we found out that the reason is that the delegates to the AC genuinely agree with BB’s views?
Sad to say that the problem here lies in the fact that the founding fathers of the EPC did not foresee that the president of the EPO might (mis)use the resources at his disposal to effectively ensure that he controls his overseers. To speak plainly, there are simply not enough safeguards in the EPC against corruption (or to ensure an appropriate balance of power). (I should point out that I am not alleging that there definitely are corrupt practices going on here, just that there is nothing in the EPC that could stop them if there were.)
The problem is of course hugely magnified by the fact that the president of the EPO has immunity, and does not believe that he need recognise the jurisdiction (let alone the judgements) of any national courts. So, if the AC will not bring him to heel, who on earth can? I am clinging to the straw that something positive will come out of the court cases in the Netherlands. However, I am not holding my breath on that (as, even in the event of a decision adverse to the Office, no doubt some way will be found to “fudge” the issue and carry on as normal).
Very sad times at the EPO. It’s like watching a rogue state whose citizens are stranded. They cannot even escape due to newly-issued sanctions. Eponia has become the new North Korea and Battistelli is its Supreme Leader. █
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