11.02.16
Caricature: European Patent Office as Mordor
Summary: The latest cartoon which is commentary about the working conditions at the European Patent Office (EPO)
Breaking the European Patent System With the UPC Hammer, Courtesy of the EPO and Lawyers-Centric ‘News’ Sites
Breaking what’s clearly not broken to build something new which doesn't work for anything or anyone but billionaires
When all else fails Battistelli characteristically uses a hammer
Summary: The latest overt pushes for the Unitary Patent, courtesy of biased (self-serving) media and the EPO’s Michael Fröhlich, who joins Margot Fröhlinger with her Unified Patent Court (UPC) advocacy that conveniently waves off Brexit
THIS new article from Managing IP (MIP), a proponent of the UPC, is very optimistic about the UPC. It’s hardly surprising given the site’s track record. Even though recruitment of UPC judges has been called off the site speaks of the UPC as though it’s some unstoppable gravy train which is also desirable. It’s neither; the public does not want it (at least the few who understand what it does) and it seems to have been derailed — quite fatally in fact — following Britain’s vote for Brexit.
“How can a continent with so many languages get along with the UPC? And now that the only large English-speaking member state may be out, why even have hearings and patents in English?”“UK Prime Minister Theresa May rules out influence of the CJEU and authority of EU law in a post-Brexit Britain,” MIP wrote, but “Labour party MPs demand answers from government regarding UK participation in the UPC and EPO” (we rebutted this spin before). MIP says “five more EU member states including Italy and Slovenia [are] expected to ratify the UPC Agreement early next year,” but without Britain and especially with lingering uncertainty about its status in the EU the UPC won’t get anywhere any time soon. Its death might not be “official” for several years to come, but it’s not too hard to see where this is going.
How can a continent with so many languages get along with the UPC? And now that the only large English-speaking member state may be out, why even have hearings and patents in English? How would Spain feel about it? Battistelli may think (as he’s a clueless nontechnical thug) that patent examination and accurate translations can be attained using algorithms, but he's wrong beyond words. Fools who think that automated translations are an excuse that can make patents go global (applicable everywhere) would have us believe that even patents in Mandarin (new MIP article about notoriously crappy patents from SIPO) would be legible in Latin/Greek-derived languages. At this stage we’re actually entering the twilight zone, wherein totally idiotic people like Battistelli make big decisions that can undermine the whole of Europe. According to another new article from MIP and from IP watch [1, 2], there is a new AIPLA President and he is one who used to be involved in software patents and ITC cases (embargo at the behest of large corporations). WIPR, in the mean time, writes about AIPLA 2016 and quotes the EPO’s Michael Fröhlich (another Battistelli and UPC “yes man”, not to be confused with Margot Fröhlinger [1, 2, 3, 4]) who will say just about anything — even lie — in an effort to make the UPC seem inevitable. From the report:
The Unified Patent Court (UPC) and unitary patent will become a reality, with or without the UK, according to a senior official at the European Patent Office (EPO).
Michael Fröhlich, director of international legal affairs at the EPO, was speaking in a personal capacity at the American Intellectual Property Law Association’s (AIPLA) 2016 Annual Meeting in Washington, DC.
He said: “The issue of the Brexit vote is the last hurdle in what has been a hurdle chase since the beginning. There have been hurdles that have been higher than what Brexit has posed … and this last one will be taken successfully.”
Slovenia is about to become the 12th country to ratify the UPC Agreement in the coming days, with Italy expected to become the 13th, according to Fröhlich, speaking on Friday, October 28.
He added that Germany plans to finish the parliamentary ratification process by the end of year.
They have been saying this for a long time, yet it never actually happened. Last year Battistelli said that UPC would happen this year and it’s already near December/Christmas. Progress made? Nothing. Even worse — the UPC has gone backwards/in reverse, owing primarily to the UK. Always remember that the EPO’s management is now living in (and accepting) Battistelli’s fantasy land. The man is deluded, maybe clinically damaged. He will say anything to get his way, even breaking his very own rules, then look for scapegoats (especially when he does not get his way). Recall what he's rumoured to have attempted to do even to Roland Grossenbacher (behind his back). Nobody is safe from the paranoia and vengeance of Battistelli, not even old allies/friends like Grossenbacher. Battistelli turned the EPO’s management into a dangerous cult.
“Always remember that the EPO’s management is now living in (and accepting) Battistelli’s fantasy land.”Be wary and sceptical of all the UPC propaganda that’s still abound. Here we have WIPR asking its choir (mostly patent law firms) about things that the choir would profit from. Nothing is said about the number of respondents and their nature, but this was used to generate misleading headlines about UPC, as usual (“Readers confident in UPC despite Brexit vote”).
WIPR did the same thing regarding software patents in the US about a week ago. As we said at the time, that’s like conducting a poll in Fox News about Donald Trump’s chance of becoming President. They’re asking an already self-selecting and biased population to reinforce an echo chamber’s mentality/mindset (self-deluding/self-misleading, disconnected from reality). █
Patent Maximalism is Destroying the European Patent Office (Just a Paperwork Assembly Line), Exile of Boards Ensures No Turnaround
…And the Administrative Council allows this to happen, knowing darn well the consequences
“Shallow understanding from people of goodwill is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.” ~Martin Luther King, Jr., 16 April 1963
Summary: The EPO is racing to the bottom of patent quality and the last resort, the Boards of Appeal, are being destroyed by Battistelli, who attempts to make this destruction appear like “improved independence” while the Administrative Council, led by Battistelli’s Pet Chinchilla, condones these outrageous moves or simply abstains rather than object (ruinous passivity)
THE EPO keeps following the footsteps of the old USPTO — the patent office in which there was only one goal: maximalise profit (for the Office). The inherent problem with this misguided strategy is that it’s short-term (and thus quite likely short-lived), as applicants sooner or later realise that their patents are being devalued and that the newer patents are not even worth pursuing. Too much of everything or too much of anything has a stigma or proverbs associated with it in many languages/cultures.
Watch this latest nonsensical piece of patent maximalism seeded by the EPO and EUIPO for cheap PR. The EPO is so proud that someone reprinted these lies — lies that even Managing IP refused to accept several years ago. Deloitte has also just released similar propaganda in the form of a press release. These people view the whole world in terms of patents (or so-called “Intellectual Property”, which also includes trademarks and other laws). “Industries that use IPR intensively have a huge impact on the economy, study shows. Here are the key findings,” the EPO wrote this week, repeating some of this whole nonsense. They try to take credit for every single segment of the science and technology world!
“Too much of everything or too much of anything has a stigma or proverbs associated with it in many languages/cultures.”In reality, the EPO needs the appeal boards and it needs outside (independent) auditors of patent quality. Sadly, Battistelli is allowed by his Pet Chinchillas at the Council to just demolish these boards, little by little, step by step. The EPO under Battistelli already rejects the law and doesn’t give a damn about what the European Parliament says, so much so that, as Benjamin Henrion put it today: “EPO software patent guidelines have been updated, they keep using the term “computer-implemented inventions” https://is.gd/U8GQmj” (this is a new publication from a British site).
Yet again, as a matter of fact, the EPO is pushing software patents that are against the EPC and the Parliament’s determination. This is happening every week these days, i.e. a lot more frequently than before. We have campaigned on this subject for a very long time (I have personally done so longer than this site’s existence) and this week comes yet another lie from the EPO (namely that people need no special software to apply for a patent, clearly a fallacy). Also this week we see the EPO using EPOPIC as yet another opportunity to distract from abuses, retweeting stuff like [1, 2].
“Why is the media no longer covering internal EPO affairs?”How many people are even aware of what goes on inside the EPO? As one insider put it (illustrating it visually too): “This is how it feels like walking through the EPO corridors in 2016″ (see the image and the responses there). Why is the media no longer covering internal EPO affairs? Have intimidation tactics worked? Why do insiders need to submit anonymous comments in some thread from almost 5 months ago? One such comment says: “The EPO is for sure a magic place with its 365 day/year Halloween, leave-no-trace social conferences and its alien AC support forces. Happy Halloween!”
“As a side effect, more of the EPO money is leeched towards Germany,” another person wrote about the relocation of the boards to Haar:
Re. Art. 36 EPC (weighing of votes):
Germany did not vote no in the Budget and Finance Committee…
I assume, Munich is happy that another building is now in use, thus earning taxes.
As a side effect, more of the EPO money is leeched towards Germany.Without the German vote, the weighing will be very close against the mass of smaller countries coming to the Administrative Council meeting in December (meeting 150! time for a fancy dinner!).
Here is a very detailed comment about what happened in the meeting behind closed doors:
Yes the German delegation seems to be playing a double game here.
During the June assembly they did not make any criticism of the planned move.The only delegations that criticised or questioned the proposal were as follows.
Switzerland
“The boards’ location falls within the EPO President’s powers. In the redesigned framework, the BOA President would also play a role, by drawing up their budget. Only via the budget can the Council exercise direct influence. So this is not a formal request either; we are merely pointing out that in our opinion the boards’ location has no bearing on their independence. The Swiss delegation is therefore not prepared to agree to any spending on relocating the boards, and suggests leaving them where they are.”Ireland
“Relocation: Ireland believes that a separate location for the boards of appeal is neither justified nor required. Users have already expressed the view that
the boards are considered to be independent from the rest of the Office and the fact that the boards are physically located in the Isar building does not
impinge on their independence. It seems that even a relocation within Munich would give rise to unnecessary expense and my delegation cannot see that the expenditure associated with such a move could be justified.”Austria
“As far as relocating the boards was concerned, those most immediately affected, i.e.BOA members and users, would have to agree. And the cost – even in the
Munich area – would also have to be taken into account.”Netherlands
There was no point relocating the boards, as proposed in Section C of CA/43/16; this would merely waste money.Slovakia
“The Office’s relocation proposal was certainly better than the original one, but even such a move should still be presented to the Budget and Finance Committee for opinion, because it would cost a lot of money.”Czech Republic
“Lastly, on the relocation issue it agreed with earlier speakers. This was more an internal management issue, and should be uncoupled from the
independence question. But if the majority was in favour of a move, it would oppose it.”Bulgaria
“Relocation did not seem essential, and the costs involved should be looked into.”Denmark
“Lastly, it was certainly not convinced that relocating the boards – whether in Munich or the vicinity – would make them look more independent.”
As we predicted years ago, the EPO is rapidly losing top talent and is becoming a paperwork pipeline (look at the recruitment standards), without much/any science in the mix. See these two new articles [1, 2] that show us in what ways the EPO is ‘evolving’. Brain drain continues, but the priority now seems to be more paperwork. Nicely done? Painful, covert way to kill any joy and pride associated with a job at the EPO?
Unless something is done to undo the coup, the EPO will end up like the chinchilla shown at the top, dissected and skinned for whatever profit may be in it. █
10.31.16
The Insane World of Patent Maximalism and Professor Joshua Pearce’s Case for Weakening Patent Rights
A Case for Weakening Patent Rights [PDF] (shown above are the first five pages among 70 in total)
Summary: Patent scope is being broadened to the point where it has gone way too far and academics push back against this trend, warning that patents are not accomplishing what they were originally intended to accomplish
THE PATENT system in the US, notably the USPTO (one branch among several), seems to be improving. This is good news for the competitiveness of the US. Contrariwise, the EPO has become a menace/liability to Europe.
“The Supreme Court finally accepted that software patents are on abstract things and should thus not be granted anymore.”An “EPO Advertisement,” an EPO insider wrote to us, is “Another Pathetic Attempt By The #EPO @ Desperately Fishing For New Engineers & Scientists http://www.telecompaper.com/jobs/engineers-and-scientists-in-various-technical-fields–444 …” (this link/advertisement was mentioned here before).
We still have a lot of material that we wish to publish about the EPO, but today we wish to share assorted news from the US. Some of it relates to Europe, as we shall explain as we go along.
It doesn’t matter if and when you implement something in a patent (one could be a troll with no products at all, at least not anymore). Based on this, all that matters is the filing date. “Regardless of whether the Phillips statement is correct,” Patently-O wrote yesterday, “going forward for Post-AIA patents, the court should now eliminate “the time of the invention” from its claim construction process. Under the statute, all of the focus now is on the effective filing date with invention shifted to a mere historic element of the patenting process.”
“The Battistelli-led EPO wants to replace examiners with machines, so will machines too apply?”When patents cease to be viewed from the perspective of benefit to society or practical contribution we can expect them to become little more than trophies or a tool of taxation. Sadly, a lot of systems where low patent quality prevails (e.g. SIPO) are like that, with the US only belatedly tackling quality issues and the EPO getting worse over time. Another new article from Patently-O says that “the plaintiff stipulated that Merck’s Dr. Scholl’s process did not infringe and the case was dismissed.” In other words, the only one/s to benefit here would be legal representatives. What a wasteful system.
Regarding patent exhaustion, this recent article says that “[t]he Solicitor General’s recommendations make a cert. grant highly likely in this important case, which goes to the heart of two of the Supreme Court’s favorite patent topics: the scope of the patent right and the extraterritorial effect of U.S. patents. The strategic impact on large multinational businesses, complex licensing deals and so on is potentially enormous.”
“Will machines apply for patents, in order for them to be ‘examined’ by other machines and generate billions of ‘patents’? Where does this insanity end?”The Supreme Court finally accepted that software patents are on abstract things and should thus not be granted anymore. Why does the EPO fail to see this and actively encourages software patents in Europe these days (we gave about 4 examples so far this month). To make matters worse, also in relation to computer algorithms, some believe that Battistelli now envisions replacing patent examiners with deficient computer programs, as if human judgment can conveniently be swapped with a machine. Now, bear in mind that the following news is definitely not satire [1, 2, 3, 4, 5, 6]. Computer-generated patents are now being entertained too, along the lines of online humour where computer-generated academic papers (complete gibberish) got accepted into conferences/journals (SCIgen about a decade ago). The Battistelli-led EPO wants to replace examiners with machines, so will machines too apply? Because of the practices of hedge funds and other bankers, a lot of so-called ‘financial trading’ these days is just machines talking to other machines (algorithms drive the vast majority of trading volume). Are the patent systems next? Will machines apply for patents, in order for them to be ‘examined’ by other machines and generate billions of ‘patents’? Where does this insanity end? How can humans even keep up with such a thing and stay abreast of new patents? If the patent system becomes more like the financial sector (i.e. just a bunch of machines talking with other machines, rigging the system), won’t that render the whole system obsolete?
Here is Watchtroll, a proponent of patent maximalism, saying that “It’s Time to Fix the Global Patent System Before It Breaks Under the Weight of New Applications”. To quote:
What’s happening? Simply put, patent offices are failing to keep up with the growth of the innovation economy and the resulting increase in patent applications. Unfortunately, the problem could easily get worse in coming years. Many patent offices apparently have yet to process applications from recent years, when huge increases in applications have occurred.
It’s a problem that threatens to undermine the global patent system, but what’s both encouraging and discouraging by turns is that it’s largely a basic problem of good governance. Many of the solutions to the problem are relatively straightforward. They require the application of sufficient resources and a willingness to hire an appropriate number of examiners and share work between patent offices. These solutions are a matter of political will and effective management, rather than complex policy. Some countries have shown the will to turn things around, and we hope others will follow.
When patent monopolies become so abundant rather than scarce fewer people can actually bother (or find the time) to read them. What has become of the system? Infinite growth (in the pace of granting) isn’t indicative of faster innovation, just greater lenience and patent office greed. This system will basically kill itself unless it stops and puts barriers on patent scope so as to improve patent quality.
Here is a very recent Patently-O article titled “Bad Patents and the False Claims Act”. An excerpt:
The False Claims Act provides special incentives for whistleblowers to uncover fraud against the U.S. Government. The Act authorizes the whistleblower to file a qui tam lawsuit on behalf of the Government and then receive a cut of any recovered damages. See 31 U.S.C. §§ 3729–3733. The whistleblower here LDPFC appears to be a branch of the hedge fund Foxhill Capital.
This case involves Allergan/Forrest Labs U.S. Patent No. 6,545,040 that is listed in the FDA Orange Book as covering the drug Bystolic. The basic false claims argument is that the market price of Bystolic is high because of the patent coverage – but the patent is (allegedly) invalid. If true, this means that Medicare, Medicaid, and the VA hospitals are all paying more than they should for the drug. As stated by the complaint: “The current market price for Nebivolol (Bystolic) is a false price because the ‘040 patent is invalid.”
Although the legal theory makes sense, the facts may get in the way: Is the patent invalid (PTAB says its close, but no) and, if it is invalid – did the patentee have knowledge of the invalidity?
PTAB, as we wrote yesterday, is the best hope of the US patent system right now. It cleans up the mess left by excess. Among patents that have not expired yet, PTAB might be able to find hundreds of thousands that need to be invalidated (before they even reach the court, if ever). Sent to us from Prof. Joshua Pearce earlier this month was his new paper [PDF] titled “A Case for Weakening Patent Rights”.
“Among patents that have not expired yet, PTAB might be able to find hundreds of thousands that need to be invalidated (before they even reach the court, if ever).”It sure looks like academics too are getting it. They also seem to agree with what Techrights has been saying for about a decade. Too many patents in too many domains do more harm than good.
Looking at the news, here is a very recent story about amicable resolution to a patent dispute:
LG Electronics said Miele was infringing patents for so-called steam washing machines and has sent a letter demanding that the German domestic appliance maker stop using the technology, setting an end-October deadline for a response.
Miele has been and is willfully infringing on LG’s patents, LG said in the letter, sent last week and seen by Reuters.
“In the interest of finding an amicable resolution of this matter, we are open to having an in-person meeting in November to discuss how to resolve this matter,” the company wrote.
The idea of willful infringing in the area of washing machines may make sense; after all, there aren’t hundreds of thousands of patents on washing machines, unlike software. It’s actually possible to keep track of patents pertaining to washing machines. That’s what the patent system was made for and we are not challenging patents in the physical domain (like mechanics). See also the article “Pure Storage agrees $30m patent litigation settlement with Dell” (via “this year’s highest damages awards”). This is about hardware, not software.
“It sure looks like academics too are getting it. They also seem to agree with what Techrights has been saying for about a decade.”Compare that to news about surveillance patents and patents on impossible (or fictional) things. What on Earth is that?
These patents exist “because patents are paper tigers,” Benjamin Henrion wrote, “no working prototypes required.”
Not much novelty is required either, especially when patent offices make “production” their primary goal, choosing quantity over quality.
“The idea of willful infringing in the area of washing machines may make sense; after all, there aren’t hundreds of thousands of patents on washing machines, unlike software. It’s actually possible to keep track of patents pertaining to washing machines.”Henrion said this in response to IBM’s Manny Schecter, a proponent of software patents. “If the quantum space engine is impossible,” he wrote, “how can it be patented?”
So suddenly even Schecter realises that patent scope has gone way too far? See this new article titled “The latest patent for the ‘impossible’ EM Drive has just been made public – and it’s wild” (from Science Alert).
A patent on something which is not even possible shows what some patent systems have sunk to. Yet Schecter fails to see his own double standard. On a separate day he wrote: “US #patent 9464453 is for a themed cemetery! We need to promote software innovation more than theme innovation-software must be patentable.”
“A patent on something which is not even possible shows what some patent systems have sunk to.”Well, IBM is still promoting and lobbying for software patents while suing small companies using such patents. The above “must not be patentable,” Henrion told Schecter. “Freedom of programming is not for sale.”
Well, policy is up for sale in the US. That’s why we’re still seeing the sordid legacy of software patents there. That’s why the US attracted or created so many patent trolls. Earlier this month I had a whole (and long) article written about me, the messenger, as I criticise software patents and this upsets some people. I guess that the software patents proponents would rather not tackle the message and instead go ad hominem. It’s OK, I got used to that. What patent software proponents don’t get is, if they dislike me, then I must be doing something right. I don’t try to be liked by people whose agenda is the opposite of mine. █
The World Comes Tumbling Down for Software Patents and Patent Trolls
Summary: News analysis regarding the state of software patents as well as patent trolls that heavily depend on such patents and on highly biased courts which are based in Texas
EARLY in the month we wrote a variety of articles about Intellectual Ventures v Symantec, which was an important CAFC-level case that may have spelled the doom/end of software patents in the US. Today we bring together and present a potpourri of coverage related to this.
Free Software Foundation on the Effect/Impact for Free/Open Source Software
Now too long ago the Free Software Foundation (FSF) wrote about this case, saying that the judge “provides a strong case against software patent”. To quote:
Mayer lays out the First Amendment argument against patentability of certain subjects, noting that limits on the subject matter of patents are meant to protect free expression. Under U.S. law, 35 U.S.C § 101 (section 101) lays out the scope of patentable subject matter. In analysing this section, courts have carved out certain subjects as being outside the scope of patentability so as to protect freedom of expression. In particular, abstract ideas and mental process have been found too threatening to the free exchange of ideas to permit them to be locked up in patents. After outlining the basics, Mayer goes on to state that “Most of the First Amendment concerns associated with patent protection could be avoided if this court were willing to acknowledge that Alice sounded the death knell for software patents.”
Discussion Everywhere This Month
Recently, TechDirt dedicated a whole audiocast to the subject and titled it “Death Knell For Software Patents”. Obviously, as expected, patent law firms are still bemoaning the (almost) end of software patents and here we have Manatt Phelps & Phillips LLP remarking on the second anniversary of Alice, which is actually almost 2.5 years old by now. The Court of Appeals for the Federal Circuit’s (CAFC) mea culpa, as one might put it, is admitting that making software patents possible was a horrible mistake. Here is Christine Hall’s article about it, titled “Federal Judge Says Alice ‘Death Knell for Software Patents.’”
It’s not time to break out the champagne just yet, but opponents of software patents might have cause to be hopeful. There’s now a federal judge that openly agrees with them.
This isn’t just any judge, but a judge sitting on the Court of Appeals for the Federal Circuit (CAFC), which hears all patent appeals. He’s also not some bright-eyed newcomer to patent law. He was appointed to the Federal Circuit in 1987, where he was Chief Judge from 1997-2004.
On Friday, CAFC ruled that three patents Intellectual Ventures was attempting to use against Trend Micro and Symantec were invalid as they didn’t describe anything patentable. Although the ruling was pretty much business-as-usual and wasn’t unexpected, a concurring opinion by Judge Haldane Mayer went into uncharted waters. Alice Corporation versus CLS Bank International, he said, ended software patents.
“Alice” was the 2014 case in which the Supreme Court ruled that an abstract idea that “does no more than require a generic computer to perform generic computer functions” is not patentable. At the time of the ruling, many thought it would seem to invalidate almost all software patents, except that the Supreme Court bent over backwards to say otherwise within the ruling.
Judge Mayer spent 13 pages addressing software patent issues on several different fronts. For starters, he said they pose a First Amendment problem. “Patents, which function as government-sanctioned monopolies, invade core First Amendment rights when they are allowed to obstruct the essential channels of scientific, economic, and political discourse.”
It’s the free speech issues that led him to the conclusion that “Alice,” in effect, outlawed most if not all such patents. “Most of the First Amendment concerns associated with patent protection could be avoided if this court were willing to acknowledge that Alice sounded the death knell for software patents,” he wrote.
An article by Scott Graham of The Recorder has been titled “Software Patents on Shaky Ground With Federal Circuit in Case After Case” and it is no longer behind a paywall (a two-page short article).
Also see “Federal Circuit Finds Three Intellectual Venture’s Patents Invalid under the Mayo/Alice Framework” — an article that uses more legalese:
The Federal Circuit recently decided a case concerning three patents owned by Intellectual Ventures I LLC (“IV”). Intellectual Ventures I LLC v. Symantec Corp., Case Nos. 2015-1769, 2015-1770, 2015-1771 (Fed. Cir. Sept. 30, 2016). The district court had invalidated U.S. Patent Nos. 6,460,050 (‘050) and 6,073,142 (‘142) and found that Claim 7 of U.S. Patent No. 5,987,610 (‘610) was patent eligible. The district court had also found that Symantec Corp. (“Symantec”) infringed Claim 7 of the ‘610 patent, leading to an $8 million judgment. On appeal, the Federal Circuit held that all three patents were patent-ineligible under 35 U.S.C. § 101.
Patent Law Firms Partly in Denial
Software patents are still being squashed (we covered new examples last night), but their proponents try to find hope. “Alice/101 Patent Invalidity Rate at the Federal Circuit Is 91.4% of Patents Rendered Ineligible,” one patent attorney notes in relation to the statistics presented in Bilski Blog and “I think its the Fed. Dist. Cts. w/>50% 101 Valid Patents; The CAFC is still killing >90% of patents in 101 appealed cases,” he added. This was said in relation to Dan Barsky’s claim that “[f]or the first time since Alice the Fed Circuit has held more #patents valid than invalid @CAFCPatentDaily #intellectualproperty” (incorrect!)
They are both citing Bilski Blog (as above), which has tracked all these cases pretty exhaustively. Their problem is that CAFC and SCOTUS are a lot more potent or influential than other courts, especially those that are in Texas. Here we have Finnegan, Henderson, Farabow, Garrett & Dunner LLP expressing concern about the decision and another new article about CAFC, this time dealing with the tightening of patent scope in another area:
The US Court of Appeals for the Federal Circuit has affirmed the Patent Trial and Appeal Board’s (PTAB) decision to reject a patent application centring on an influenza drug.
Relenza (zanamivir) is a treatment for infection by an influenza virus, and was invented by Constantin Efthymiopoulos, who had applied for a patent relating to methods of administering the drug through inhalation.
One of the rejected claims states that zanamivir should be administered by inhalation through the mouth alone.
Has CAFC finally realised that patent maximalism is not desirable? Lawyers from Finnegan, Henderson, Farabow, Garrett & Dunner LLP certainly understand that they cannot patent everything under the Sun and here is what they say in a new article about Mayo/Alice:
In Affinity Labs of Texas, LLC v. DirecTV, LLC, Nos. 2015-1845-48 (Fed. Cir. Sept. 23, 2016), the Federal Circuit affirmed a district court order granting a motion to dismiss, holding that the asserted patent, directed to wireless streaming of regional broadcast signals to cell phones located outside the service region, was invalid based on lack of patentable subject matter.
In applying the first step of Mayo/Alice—determining whether the claim is directed to a patent ineligible concept (i.e., abstract idea)—the Court held the claimed invention was an abstract idea and “entirely functional in nature.” The Court found that missing from the claims was how to implement out-of-region broadcasting on a cell phone, and the specification was similarly deficient and in fact underscored the abstract nature of the invention.
Other law firms’ pessimistic notes on the likely end of software patents are worth taking stock of. On the 19th of the month Hodgson Russ LLP published a “A Silver Lining for Software Patents” and Wolf Greenfield & Sacks PC said that “It is Still Possible to Patent Software”, even though it is a lot harder and probably too risky to be worthwhile.
Reprinted with limitations by Amanda Ciccatelli under the same headline (in the form of “news”), we now have “Is Software Patentable?” To quote:
This case could have a significant impact for tech companies and startups if courts continue to take the Alice ruling to mean that software patents are null. So, what might this mean for the future of the tech industry? Brett Schuman, a partner in Goodwin’s IP Litigation Group, and an expert in patent law for startup and emerging growth companies, spoke to Inside Counsel about these questions and other Intellectual Property issues.
Well, startups don’t need software patents; it’s what lots patent trolls sue them out of existence with. Patent lawyers’ media lies about it.
Denelle Dixon Thayer, writing about the latest major CAFC ruling, says that “Software patents preventing free expression online” (as per the decision from the judge). To quote:
Should someone be able to get a monopoly on concepts for software? What if those concepts cover the basic pieces of something as important as the Internet? These are the type of questions constantly debated in the software industry, the patent office and the courts. What is generally overlooked, however, is the very real impact that software patents can have on freedom of expression. The Internet as a software platform is the largest channel of free expression in existence today. So the question we all need to consider now is how much do software patents restrain the rights protected under the First Amendment.
The Internet isn’t a single, uniform system. Rather, it’s a massive, collaboratively created platform, a large part of which is based on open software. It relies on multiple people and companies developing numerous pieces of software that must communicate with each other to work. Because patents allow a single person or company to exclude everyone else, a patent monopolizing basic Internet functionality causes enormous damage to the core of how the Internet is built and functions – the very thing that enables the Internet as a medium for expression on such a huge scale. Both Congress and the courts have recognized this kind of tension and accounted for it in the context of copyright and trademark law. Unfortunately, U.S. patent law has few built-in protections to ensure that patent monopolies do not overreach and restrict free expression.
Last week, achieving this critical balance between patents and free expression hit a crucial milestone. Judge Mayer in the Federal Circuit (the US court that hears patent appeals cases) wrote in a concurring opinion that patents directed at software running on generic computers can violate the First Amendment by creating barriers to communication, discourse, and the exchange of ideas online. In his opinion, he recognized that software and the Internet are widely-used, basic tools for expression. Mayer went further to declare that they are “essential channels of scientific, economic, and political discourse.”
An article by James M. Singer (Fox Rothschild LLP) said that “Federal Circuit Invalidates Three Software Patents; Judge Mayer Calls For Ban On All Software Patents”. From the opening parts:
In the past few months, the Federal Circuit reversed a two-year trend of overturning software patents by publishing three decisions that outlined various parameters in which software can be eligible for patenting. In those decisions (described in previous IP Spotlight posts published here and here) the court cautioned that not all improvements in computer-related technology are inherently abstract. It also said that when assessing patent-eligibility, one must be careful to not use patent-eligibility to invalidate a claim when the real issue with the claim is obviousness.
An article by Russ White has a misleading headline, “The Future of Software Patents” — as if there’s much of a future to them now…
At this point, software patents still stand in the United States. The reasoning of the primary and concurring opinion, however, is likely to be picked up by other courts, potentially reducing (or eliminating, over time) the enforceability of software patents. Since I’m not a legal scholar, I’m not going to comment on the overall likelihood of software patents becoming less than useful. Instead, what I’d like to think through is what the reaction of the network engineering world might be.
A survey taken by patent lawyers in site that targets them says software patents are not dead. But that’s like asking about Donald Trump in Fox News. The audience is already a subsection of the population which has biases/convictions. “Responding to WIPR’s recent survey,” WIPR wrote, “100% of readers disagreed with Mayer’s opinion.”
Well, obviously this means that people who profit from patents don’t like a decision against them. “100% of readers disagreed with Mayer’s opinion,” says the article, but it does not specify the number or respondents. Could be 8. Could be 80. Anything…
Intellectual Ventures and Other Patent Trolls in the News
Dealing with the troll (not company) that caused the latest panic among law firms, Bastian Best tries to defend it by saying: “Another example of the ” #patenttroll = patent owner I don’t like” argument” (or maybe he alludes to universities that feed Intellectual Ventures).
Actually, the core argument is that a patent troll — in this case the world’s biggest (which is also Microsoft-connected) — picks up all the patents and universities facilitate it. “Well,” Benjamin Henrion responded, Intellectual Venture “has many fans among some communities.”
Found via IPRsLaw was the context of it all — an article by the EFF that cites an analysis of Intellectual Ventures. Remember that it was Microsoft that created this monster, Intellectual Ventures, and the EFF urges people to “Tell your university: don’t sell patents to trolls.” Here is their source (which contains a lot of information):
To answer this, I have scraped the names of the original assignees for each of the U.S. patents in the portfolio from patent records (see annotated patents list). The analysis shows that nearly 500 of IV’s patents originally belonged to universities, including state schools (see Figure 1 and university-derived patents list).
The EFF mentioned this chart later on as well and the EFF’s Vera Ranieri said that “Patent Forum Shopping Must End” in relation to the VENUE Act:
As we’ve detailed on many occasions, forum shopping is rampant in patent litigation. Last year, almost 45% of all patent cases were heard in the Eastern District of Texas, a sparsely populated region of Texas probably more well-known as the birthplace of George Foreman than for any technological industry. EFF, along with Public Knowledge, has filed an amicus brief in TC Heartland v. Kraft, urging the Supreme Court to hear a case that could end forum shopping in patent cases.
The case is one of statutory interpretation. Prior to 1990, the Supreme Court had long held that in patent cases, the statute found at 28 U.S.C. § 1400 controlled where a patent case could be filed. However, in 1990 in a case called VE Holding, the Federal Circuit held that a small technical amendment to another venue statute—28 U.S.C. § 1391—effectively overruled this long line of cases. VE Holding, together with another case called Beverly Hills Fan, means that companies that sold products nationwide can be sued in any federal court in the country on charges of patent infringement, regardless of how tenuous the connection to that court. TC Heartland first asked the Court of Appeals for the Federal Circuit to revisit its law. EFF also supported TC Heartland at that court. The Federal Circuit declined the invitation.
More recently, the EFF’s Elliot Harmon said that “Patent Trolls Undermine Open Access”. To quote this newer analysis:
Patent Trolls Undermine Open Access
This Open Access Week, the global open access community has a lot to celebrate. Hundreds of universities around the world have adopted open access policies asking faculty to publish their research in open access journals or archive them in open repositories. A few years ago, open access publishing was barely recognized on the fringes of science; now, it’s mainstream. Three years after the White House’s groundbreaking open access memo, we may be on the verge of passing an open access law.
Again and again, we’ve seen how making the results of scientific research available to everyone is good for innovation. Innovators should be able to use and build upon the most up-to-date scientific research, regardless of whether they have the budgets and institutional connections necessary to access expensive journal subscriptions and academic databases—particularly when that research was paid for with public funds.
Shooting the messenger is the tactic used by Bastian Best again. “Another one-sided viewpoint by EFF,” he calls it, which is actually more polite than Watchtroll put it. In this particular case, the EFF agrees with Red Hat, whose “EVP speaks out on patent litigation abuse in EDTX”. To quote Red Hat based on this new article:
Help slow the drag with patent venue reform
As our country and North Carolina look to accelerate the growth of our economy and expand its reach to all citizens, one issue has been a continuing drag: abusive patent litigation.
One prevalent tactic of abusers is to haul companies into virtually any district court in the United States, including those far away and those in locations that have nothing to do with where you do business.
Under current patent law, infringement suits can be brought in courts with no or little connection to the parties in the litigation. “Patent trolls” use this weakness in the system to select the courts well-known for their friendliness to patent suits.
For most of these patent trolls, their court of choice is the Eastern District Court of Texas (EDTX), which has been the No. 1 venue for bringing patent suits for nearly a decade. The EDTX saw 44 percent of all patent infringement cases filed in the entire U.S. in 2015, with one judge overseeing more than a quarter of all cases – twice as many as the next most active patent judge.
As a home-grown, global company headquartered in North Carolina that has been recognized as one of the world’s most innovative companies, Red Hat has repeatedly been forced into court in the EDTX. We have no office there; we do no business from there. The patent litigation abusers have minimal contact there, sometimes just a small office. But they go for a leg up in that district, given its reputation.
Red Hat and other companies have tried to move cases to where we can get a fair hearing, but the rules to change venue don’t easily allow that. We believe patent infringement suits, just as other types of suits, should be heard in judicial districts that have a reasonable connection to the dispute.
They basically strive to limit the ability of trolls to choose Texas. Here is a TC Heartland Law Professor Amicus Brief, submitted by “Mark Lemley, Colleen Chien, Brian Love, and Arti Rai” against such patent trolling (mostly in Texas). To quote Patently-O:
From a policy perspective, the case is seen as a vehicle for defendants who do not like being sued in the Eastern District of Texas and into more venues perceived as more defendant friendly.
A group of 50+ law and economics professors led by Mark Lemley, Colleen Chien, Brian Love, and Arti Rai have filed an important brief in support of the TC Heartland petition that I have copied below. Their position is (1) the Federal Circuit has erred on interpreting the law; and (2) the permissive venue result has fueled many of the problems of our patent system.
Patent trolls don’t make as many headlines as they used to, but when they do, it’s about celebrities like Justin Timberlake and Britney Spears. This too is about Texas and Joe Mullin explains:
It’s getting easier than ever for defendants to win fees in patent cases, especially against “non-practicing entities” with no products. But don’t tell that to pop stars Justin Timberlake and Britney Spears.
The two celebrities and their respective production companies were sued by an entity called Large Audience Displays Systems, LLC (or LADS for short) back in 2009.
The patent-holder who came after them is Darrell Metcalf, the inventor of US Patent No. 6,669,346, which describes a way of displaying video images on massive, arced screens. Metcalf, who lives in California, set up an East Texas LLC called Large Audience Display Systems (or LADS for short) back in 2009, then sued the pop stars in that venue, along with the LA Lakers and the band Pussycat Dolls.
The case was transferred to California in 2011. The judge promptly put the case on hold at the defendants’ request, while the patents were under reexamination at the US Patent Office. Ultimately, the office rejected all the patent claims.
The USPTO is asleep at the wheel and it was granting software patents almost all the time. No wonder all this chaos has been happening. Trolls depend a great deal on software patents and they prey on software patents; it’s tempting to think that headlines like “Did trolls cost Twitter $3.5bn and its sale?” speak about/allude to patent trolls, but these actually speak of Internet trolls and Twitter happens to be a frequent target of patent trolls, too (patent trolls are a huge problem for them). Professor James Bessen, an academic who writes a lot about the subject, wrote about this new report. “Major breakthrough “Invention” cues new video after you finish another,” he said, in relation to the following news:
These days, it seems like software patents are falling down right and left. Hundreds of them have been invalidated by US federal judges since the Supreme Court’s 2014 Alice Corp v. CLS Bank. decision, and more patent-holders are getting sanctioned for their behavior in court. The economics of the patent-trolling business are changing in fundamental ways, and lawsuits are down.
It’s tempting to think the whole mess is going to dry up and blow away—but the lawsuits coming from companies like Bartonfalls LLC show that some patent lawyers are going to keep on partying like it’s 2009. Bartonfalls is a shell company formed in the patent hotspot of East Texas, and it sued 14 big media companies on October 11 over US Patent No. 7,917,922.
This is a software patent that really ought to be invalidated. Maybe it will.
Speaking of patent trolls that rely on software patents, see this relatively new article from Mother Jones:
Meet America’s Most Prolific Patent Troll
[...]
So if you send notifications telling customers that their orders have been filled, S&T will sue you for $25,000. Why? Because they claim to have patented this idea if it’s done via some kind of computer network. In all this time, however, the patent has never been tested in court. It’s never been worth anyone’s time.
This. Is. Ridiculous. If you call your customer on the phone, it’s fine. If you send them an email, you’ll get sued. It’s hard to conceive of anything stupider.
This was also covered by the Wall Street media, under the heading which puts it in perspective (based on one criterion among others):
America’s Biggest Filer of Patent Suits Wants You to Know It Invented Shipping Notification
Like almost every online retailer, Spice Jungle LLC emails tracking numbers to customers when they place orders. That’s why the small firm was dumbfounded when it received a demand to pay $25,000 for the right to do so.
There are several aspects to some of these latest developments; one major aspect is software patenting and another is patent trolling, both of which are tied together by causality and other correlations which we covered here before.
We are gratified to see that the USPTO and the US patent system (in general) is improving these days, unlike the EPO. █
10.30.16
FTC Slams Patent Assertion Entities (PAEs), Effectively Patent Trolls, Which Are a Growing Problem in Europe
Summary: A look at remnants of coverage of the recent FTC report as it relates to a new report from European officials
SEVERAL weeks ago the FTC released a very important report that criticised patent trolls, specifically the patent assertion (PAE) type.
Watchtroll protects patent trolls, as usual, saying that this report is “Doing More Harm Than Good”; then again, did we expect anything else from proponents of trolling and their denialists?
Here is the coverage from IP Watch (behind paywall). What this article means by “some” is the patent microcosm, e.g. trolls’ front groups and clients/representatives (patent lawyers).
“The EPO and UPC certainly make the patent trolls lick their lips.”Well, citing this article that we mentioned on Wednesday early in the month, “The behavior of Litigation PAEs is consistent with nuisance litigation” says FTC, according to this tweet.
Carlo Piana (European lawyer, mostly for Free/Open Source projects) says this “means ask settlement money < upfront unrecoverable litigation cost. Experienced that. Parasites.”
The problem is, as we noted in our previous post, that PAEs have come to Europe and this one person says “Patent Assertion Entities (aka patent trolls) in Europe http://publications.jrc.ec.europa.eu/repository/bitstream/JRC103321/jrc103321%20online%20version.pdf …”
This is actually the report that we wrote about yesterday in relation to Battistelli. It’s a 149-pages long report.
The EPO and UPC certainly make the patent trolls lick their lips. █
The Patent Trolls Are Moving East as Patents on Software Lose Their Lustre in the United States
Migration to Europe and to the Far East?
Summary: The appeal of patent trolling in the United States has taken a hit and a lot of the litigious abuse is shifting eastwards, to places that previously didn’t have such issues
AS THE EPO emulates the mistakes/errors of the USPTO by ushering in software patents and pursuing the UPC (more attractive to patent trolls) we increasingly worry that the end of an epidemic in the US won’t be its end worldwide.
According to recent figures from Lex Machina (which we wrote about earlier this month), the end of software patents already contributes to the demise of patent litigation there. It’s a very statistically meaningful difference and it is consistent (every month). In the words of Managing IP (MIP):
Managing IP reveals data on US district court patent case filing so far in 2016, as well as the biggest plaintiffs and defendants. Natalie Rahhal talks to patent lawyers to identify the biggest pressures on patent litigation
US patent case filing in US district courts fell in the third quarter, according to figures pulled from the Docket Navigator database. Some 1,130 cases were filed, down 13% from the 1,299 in the second quarter.
However, the third quarter was up 17% on the 965 cases filed in the first quarter. Patent case filing at the beginning of the year was subdued as a result of a rush of filing in November last year ahead of new rules requiring more disclosure in patent infringement complaints.
Well done to the US administration for improving patent policy somewhat, thereby reducing frivolous litigation and shakedowns. Good news for a change. But where does that leave the rest of the world?
“Well done to the US administration for improving patent policy somewhat, thereby reducing frivolous litigation and shakedowns.”Judging by the patent trolls-funded IAM and its many new articles about China [1, 2, 3, 4, 5], it sure looks like China becomes more like the US when it comes to patent litigation. It’s already rather chaotic. See this “sponsored article” (MIP was paid to publish this) about patent changes in China. It’s like opportunists pursue somewhat of a boom there — a boom in litigation. The same is true in Korea, Japan, Taiwan and Singapore, as we noted several times last month. Also see this article from IAM which says the Head of India’s top patentee wants more patent aggression. Have they learned nothing from the mistakes of the US? Korea, for a change, is at least coming to grips with the bubble of companies/entities that are just a pile of patents, based on IAM’s report about a resignation. Is Korea coming to grips with the threat of patent maximalism at long last? Here is a small sort of comparison between the situation in Korea and in China: “This blog has devoted quite a bit of coverage to one of the major divisions in China’s IP policy environment – what sometimes looks like a power struggle between judicial authorities and administrative ones. An analogous situation seems to be playing out in Korea. Local media reports say the Supreme Court there has floated the idea of abolishing certain administrative procedures related to patent validity and handing over those matters to the courts, which currently only review them at second instance.”
“If IAM has shifted its attention to Asia recently, it’s because a lot of the ruinous action moves to Asian countries.”The reason we link so much to IAM here isn’t that they’re accurate or objective; rather, as a matter of fact, they’re pro trolls and pro litigation. It’s important to know what the “other side” is saying. Speaking of IAM, this Microsoft-centric and Microsoft-powered site is now grooming Microsoft’s people again, even those responsible for patent aggression and extortion against Linux.
What IAM considers to be good business sense and success we should often interpret as the very opposite. If IAM has shifted its attention to Asia recently, it’s because a lot of the ruinous action moves to Asian countries. █
Courts Are Being Showered With Motions to Invalidate Software Patents, Former USPTO Officials Like Kappos and Stoll in a Panic
Officials-turned-lobbyists freak out as courts finally do something to combat USPTO greed
Summary: Representatives of large corporations’ interests, who used to actually hold key positions at the USPTO, are not particularly happy about the avalanche of software patents (slipping down the cliff)
Another death of software patents (in the US) was recently reported, but not much media attention has been paid to it. That’s pretty much what we expect when the media is controlled or steered by particular interests. It should be noted that software patents are dying in bulk in the US and the ‘mess’ this creates (more requests for invalidation) clogs up the system. As Law 360 put it the other day:
Three federal judges from California and Delaware speaking Tuesday at a symposium to honor retiring U.S. District Judge Ronald Whyte criticized the U.S. Supreme Court’s Alice ruling, saying it has spurred hundreds of patent invalidity motions in their districts, and its two-part test for analyzing patent validity is too subjective.
As a proponent of software patents put it, “Fed. Judges Report that Their Dockets Are Clogged by 101/Alice; Test Too Subjective to Use…” (that latter part is made up, it’s not even in the headline or the article, at least outside the paywall).
“Don’t think that lobbyists and think tanks of large corporations will just stay idle and watch this without a reaction.”What’s worth emphasising, verbatim from the above, is: “hundreds of patent invalidity motions in their districts” (good news!)
Don’t think that lobbyists and think tanks of large corporations will just stay idle and watch this without a reaction. Watch how in the David Kappos years patent quality in the USPTO sank to gutter level (we wrote about this many times before). This new chart speaks for itself. “In the end,” remarks the author, “the Patent Office was able to ramp-up production enough to end FY2016 with the most utility patents issued in any fiscal year in history – 304,500 utility patents!”
What they mean by “production” is what Battistelli means by production. It’s a distortion of the whole patent system for the sake of short-term profit gains. Battistelli basically repeats the mistakes of Kappos, who is nowadays a paid lobbyist for software patents. “In Europe” according to IAM, “they have not degraded patents like in the US, says Kappos #LESAM16″
Actually, they are now. Battistelli fancies himself another Kappos. As Benjamin Henrion said in response, “he means corrupt and malicious EPO still grants software patents?”
Well, it has certainly gotten there. Insiders told us this too.
“Don’t let the USPTO decide on patent scope.”So while the US moves away from software patents, having ejected this disaster who was David Kappos, Europe under Battistelli turns patent examination into a production line with minimal quality control — the very thing that the US Government Accountability Office recently warned about.
According to this very recent post, Kappos took his lobbying to AIPLA and “Director Lee is likely nearing the end of her term as USPTO Director.” Here is the part which mentions Kappos: “USPTO Director Michelle Lee offered a set of Remarks at the October 28, 2016 AIPLA Luncheon. As a presidential appointee, Director Lee is likely nearing the end of her term as USPTO Director. Although the likely election of fellow Democrat Hillary Clinton suggests a smooth transition that could extend her term beyond January 2017, I expect that she will step-down prior to that point and that Deputy Director Russ Slifer will step-up as Acting Director.”
According to this post from IAM, the USPTO improves patent quality somewhat (Mayo/Alice) and associated fees go up. A sign of improvement to come? Here is how Patently-O put it:
From the USPTO: The U.S. Department of Commerce’s United States Patent and Trademark Office (USPTO) today announced that as part of its effort to solicit input from the public regarding the legal contours of patent subject matter eligibility, it will be holding two roundtables, one in November and one in December.
“In recent years, the jurisprudence on the very basic issue of what is patent eligible subject matter has been evolving requiring adjustments by innovators, businesses, lower courts and administrative agencies such as the USPTO,” said Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office Michelle K. Lee. “Our goal is to minimize any uncertainty in the patent system by ensuring we not only continue to apply the statute and case law in this area as faithfully as possible, but also understand the impact of the jurisprudence on innovation by assessing what, if any, changes might be helpful to further support innovation.”
Don’t let the USPTO decide on patent scope. It’s not their job and they are biased because more patents mean job security for them, at the expense of the public that’s attacked by patent trolls and taxed at every corner by low-quality patents. As a cautionary tale look at the EPO.
Meanwhile, the Wall Street media gives a platform to the former USPTO patent commissioner — a broad platform in which to promote patent maximalism, as usual. Here is what Robert L. Stoll wrote earlier this month:
In conclusion, after a long spell of bad news, Planet Blue—along with decisions like Bascom and Enfish—provides software innovators, applicants and owners with not only increased clarity, but also concrete evidence that the courts are working to address the challenges arising from the Alice test and that we’re not headed for a software patent apocalypse (as some have claimed).
I, for one, remain optimistic that the courts and PTO are fully committed to a healthy patent system and will continue working to resolve the remaining issues around patent eligibility and to ensure that effective patent protection is available to innovations in software (and every other field of technology).
Why does Stoll call the end of software patents “bad news”? Is he — like Kappos — a former USPTO official that’s now de facto lobbyist on patent scope, where the goal is just maximising everything with little or no regard to public interests? See our previous article, the one about Stoll's meddling in policy.
For those who may be wondering about Intellectual Ventures v Symantec, it will be the subject of our next few posts (later tonight). It’s a game changer that may have really heralded the very irreversible death of software patents in the US. █
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