11.22.16
Posted in America, Asia, Europe, Patents at 11:35 am by Dr. Roy Schestowitz
Summary: Chinese policy on software patents and the acceptance of patent trolling is bad news not just for China but for companies everywhere, as they too become vulnerable to trolls and to Chinese companies that file cases in the West
NOT ONLY the EPO and USPTO wrestle with the question of software patenting, as we last noted in our previous post. According to this new article (behind paywall), “US-based IP owners [read trolls] to look to Europe as a place they can get better, more effective rights,” Benjamin Henrion wrote today.
“It’s a real problem and it can destroy what’s left of Europe’s software industry (discouraging development and/or investment).”We have been warning about this for a while and we already see patent trolls coming to the UK, emboldened by the EPO’s bad policies. It’s a real problem and it can destroy what’s left of Europe’s software industry (discouraging development and/or investment). Do we want London to become another EDTX?
Texas, based on this new tweet, attracts ‘business’ like patent lawsuits. By not serving justice but instead serving trolls and aggressors it now welcomes ‘business’ from Asia. “Hitachi filed patent suits in EDTX v Huawei and ZTE,” IP Hawk wrote and IAM commented on it as follows: “Japanese company takes on Chinese companies in EDTX. Can’t happen very often.”
IAM is both a proponent of patent trolls and a tracker of them in east Asia as of late (many articles about it, some of which we wrote about before). China/Far East trolls are a growing problem also for Western companies because some large Chinese firms already take their lawsuits to EDTX (Texas) and demand a lot of money. China’s state-connected telecom ‘arm’, Huawei, reportedly liaises with a large patent troll, InterDigital, which we covered here before (even a decade ago). To quote IAM’s article: “When Huawei and InterDigital revealed that they had entered into a broad worldwide licensing agreement recently, it brought to an end a years-long dispute over standard-essential patents that at times had been rather ugly. Now, relations between the two companies couldn’t be more different as they look to partner on future research and development efforts – and, potentially, on monetising patents, too.”
“Why is China doing this after working to expose Microsoft’s patents that had been used to extort Android device makers across China?”The trolls epidemic sure spreads fast in China this year. “Enemies no more,” one person wrote, “patents bring InterDigital &Huawei together. Consequences could be significant.”
It’s especially important if one considers what kind of patent these are. Henrion says “no glory for the trolls.” However, for them it’s quite a win and definitely more glory (when the giant of China gives legitimacy to a such a giant troll). This gigantic deal will probably help InterDigital go after a lot more companies, even in China.
Why is China doing this after working to expose Microsoft’s patents that had been used to extort Android device makers across China? Well, China seems eager to destroy the progress it made by letting SIPO off the hook, pursuing just quantity (not quality) of patents, very much like Battistelli at the EPO.
This new article by Peter Leung was publishes yesterday and said “China Looks to Boost Protection for Software Patents”. Have they made it official now? To quote Bloomberg:
A draft revision to China’s patent examination guidelines released late last month will likely make it easier to get software and business method patents.
Other proposed changes to ease the standard for amending granted patent claims should also help patent holders and, especially, patent assertion entities, practitioners say.
The draft guidelines follow developments that some have interpreted as evidence of China’s maturing and improving environment for IP owners. The guidelines are not law but rules for instructing examiners at China’s State Intellectual Property Office (SIPO) on how to properly examine patent applications.
It’s hard to see what China has to gain from this; SIPO definitely gets more power and money, but at whose expense? Moreover, why has SIPO not learned no lessons from the USPTO’s mea culpa? █
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Posted in Europe, Patents at 11:01 am by Dr. Roy Schestowitz
The EPO is going nowhere fast
Summary: New problems for the EPO, another new example of EPO defying Parliamentary instructions and laws, and an update about the UPC, which makes progress nowhere but countries that recently received ‘gifts’ from Battistelli
THE situation at the EPO is growingly chaotic (whereas the USPTO is rather stable). It’s not because of an erratic workforce but because of an insane management style. “Fired?” one person asks about the President of the EPO today. “If the article is correct, he should be imprisoned.” Well, Battistelli won’t be imprisoned, not just because the EPO is effectively above the law but because rich and well-connected people tend to be exempted from such laws. As we noted here before, Battistelli is close to Nicolas Sarkozy, who got away with corruption and has thankfully just lost the opportunity to seize power again. Some readers wrote to us about it.
The article from which we extract this comment was published this morning and said:
Fallout from Euro Patent Office meltdown reaches Dutch parliament
The extraordinary meltdown at the European Patent Office (EPO) has started to draw political attention, with the Dutch parliament planning a debate on the organization and its ongoing problems.
Socialist member of the Netherlands Parliament, MP Sharon Gesthuizen, received strong backing to her request for the debate following the dismissal of a key EPO staff member earlier this month by EPO president Benoit Battistelli, and a majority of MPs have now supported the motion.
As a result, the Dutch government is expected to draw up a formal response about the EPO and its view on recent events.
The debate is an escalation of a long-running battle at the patent office that has seen Battistelli suspend several prominent members of its staff union, as well as a member of the Boards of Appeal, for blocking his reform efforts and for criticizing his heavy-handed efforts to force them through.
This has been known for a while and it was possibly Techrights which was first to report it about a week ago. “It’s hard to believe this is still on-going,” one person wrote. “This is well past the stage of “He might be doing the right thing”. Now, he’s taking the piss. Batelli needs fired imo.”
The thugs who run the EPO already give the EU a bad name and one commenter weighed in to point out the same old fact: “Please note that the EPO is quite separate from the EU. Different organisation, different treaties, some differences in member states.”
Does the EU/EC realise just how much damage the EPO is doing to it?
According to this new observation from Benjamin Henrion (FFII), “EPO explains how they keep granting software patents with their “further technical effect”” (link to new PDF from the EPO omitted for privacy reasons).
Indeed, based on our fast assessment, in page 22 and thereabouts the EPO makes it abundantly clear that it snubs the EU Parliament on the subject of software patents, which are supposed to be banned in Europe.
Earlier today the EPO promoted its pro-software patents event in another country where software patents are not even legal. How crooked does the EPO hope to appear worldwide? Also today the EPO pushed out there what it called “facts”. These are not “facts” but disgusting propaganda and lies from the EPO and EUIPO, as foreseen as long as a month ago and debunked repeatedly since.
As I pointed out to Henrion the other day, when the EPO says “no comment” these days it’s actually an improvement because whenever it makes a statement this year it’s almost always filled with lies. Distortion of the truth has become the norm at the EPO (management) and reports of cosmetic changes at the EPO this week overlook the fact that not many stakeholders will still pursue EPs after the current crisis (not at these prices/fees anyway).
Speaking of crookedness under Battistelli, recall what happens in Lithuania when it comes to patents and what Battistelli did in Lithuania at a very strategic time. According to this new update on the UPC (going nowhere without the UK), Lithuania is still acting like a Battistelli “yes man”:
A bill on ratification of the UPC Agreement and a bill on the establishment of a Nordic-Baltic regional division of the UPC were approved on 3 Novermber 2017. They will enter into force on 1 July 2017, according to the website of the Lithuanian IPO. Before that time, amendments to the patent law of Lithuania will have to be adopted. These have already been submitted to the parliament.
What a total waste of time. The UPC in its current form isn’t going to happen. But if one believes the lies from Battistelli and the EPO, then it looks achievable. █
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11.20.16
Posted in Europe, Patents at 12:27 pm by Dr. Roy Schestowitz
Summary: Accountability at the EPO takes two steps forward (two new ILO cases) and one step backward (Transparency International going more or less defunct in Germany), but workers continue to speak out and demand change
“EXCEPTIONAL public delivery” from the ILO is expected very soon (later this month). This was mentioned here about a week ago and a few days ago this news from ILO came out, specifying exactly which cases were set apart to be published separately, probably because they are more important. To quote the news:
The Tribunal will exceptionally deliver in public four judgments adopted at its 123rd Session separately and earlier than the remaining 93 judgments adopted at the same session.
The four judgments are:
- No. 3723: Atil No. 2 v. WMO (application for execution of Judgment 3348)
- No. 3750: Mngola v. Global Fund
- No. 3785: Fritz No. 2 v. EPO
- No. 3796: Vermeulen v. EPO
Those judgments will be announced in public on Wednesday, 30 November 2016 at 3 pm at the ILO (Room XI, floor R2).
They will be published on the Tribunal’s website (ilo.org/trib) shortly after the delivery.
Geneva, 15 November 2016
Dražen Petrović, Registrar
These two EPO cases (third and fourth above) are probably of high impact and more profound than, e.g. the van Breda case which SUEPO is pressing on [PDF] (more to do with finance and illness, less with human rights), but we shall know for sure at the end of this month.
“Put simply, the EPO hires some of the potential overseers/critics, which is a common technique that only the affluent can afford to pull off (oil companies habitually do this in countries that they pollute).”Making the EPO wholly accountable or holding particular managers accountable where they deserve it has gotten rather difficult not just because of impunity/immunity (with ILO being years behind, drowning in additional EPO complaints) but also entryism. Put simply, the EPO hires some of the potential overseers/critics, which is a common technique that only the affluent can afford to pull off (oil companies habitually do this in countries that they pollute).
Transparency International (TI) ‘merger’ or overlap with the EPO was noted here before, giving as a prominent example Jana Mittermaier, ex-Transparency International worker and now PR person for the EPO (or “Mittermaier the Liar” as I cautiously called her the other day, after she had relayed the management's lies about its union-busting activity).
“TI, say what?”
That’s what one reader told us about them.
“TI is in crisis, too,” this readers added. “Have you read the very bad news about recent Transparency International “issues”?”
We were actually not aware of it, but it’s very fresh news (days old in the press, as recent as a couple of days ago, i.e. Friday). “Read Stuttgarter Zeitung (in German),” our reader told us, “and perhaps better to understand read in English” the following:
Transparency International is in crisis. The organization needs to cut costs and restructure its international secretariat in Berlin. At the same time, Transparency is fighting against its workers’ council in the local courts. In a bid to ease tensions, Transparency has also now made changes to its leadership.
[...]
The current court case in the Berlin labour court highlights the difficulties Transparency has in dealing with its own staff. The organisation is currently restructuring its Berlin-based international secretariat. The secretariat is the backbone of the global organisation, supporting the national chapters in their work. But over time, a number of well-paid executives have assembled near the top during the tenure of managing director Cobus de Swardt, who has been at the helm of Transparency for nearly a decade. This week, the South African national has lost some of his responsibilities to a newly-appointed second managing director, according to information obtained by correctiv.org.
To cut costs, Transparency sought to flatten hierarchies and cut staff. The organisation’s workers council attempted to strengthen employee rights by establishing a so-called finance committee (German: Wirtschaftsausschuss). Such a committee can for example demand management to disclose certain financial information. Transparency’s management is trying to prevent the formation of this committee, even filing a legal case against it.
This bodes negatively not just for the EPO but also for Germany. And it’s not all that much better in The Hague, where a Dutch speaker (speaking on behalf of the EPO) got away with saying on Dutch television that he would snub the highest court in the country!
“A disaster for the whole European Patent system is on its way, watch the soon upcoming decisions of the German Bundesverfassungsgericht on its constitutionaly [sic].”
–AnonymousNeanderthal standards in the Netherlands towards journalists and bloggers too can be tolerated? Remember that the EPO threatens me over my writings about the EPO and it also banned/blocked IP Kat to suppress access/publication. Where were Dutch politicians when the EPO threatened publishers and around the same time spoon-fed Dutch ‘journalists’ some libel to spread (publish) about an accused judge whom Battistelli does not like?
What on Earth has the EPO become and how is it allowed to get away with these actions in supposedly civilised nations that sport international courts? Many EPO insiders keep asking those same kinds of questions. In Merpel’s latest writings there is an implicit/subtle call for outside intervention. There are 20+ comments in that first comment thread (about the accused judge), but to quote a little selectively (there’s some noise among the signal there), this is “so sad” and “disaster for the whole European Patent system is on its way, watch the soon upcoming” (link to comment). The full comment says: “This is all so sad. The mere fact that the members of the boards of appeal just carry dealing with their cases instead of loudly protesting against this incredible situation demonstrates how little remains of their independence and judicial status. A disaster for the whole European Patent system is on its way, watch the soon upcoming decisions of the German Bundesverfassungsgericht on its constitutionaly [sic].”
“In case it is decided to ignore your suggestions at the next administrative council we will have all our answers and better get ready for the end of the EPO.”
–AnonymousIn reply to that latter part one person wrote: “Please note that – different from what had been envisaged in the court’s outlook for 2016 – a decision (unfortunately) does not seem to be “soon upcoming” at all. This does not change by frequently claiming that the opposite was the case. Apart from that, bearing in mind the possible political impact of the decision and the manner the German Constitutional Court recently dealt with similar matters, I would be rather sceptical that any meaningful guidance can be expected, let alone a convincing solution.”
There are also some pro-Battistelli comments there (however few) and these take up a lot time and energy from the on-topic discussions.
“How many months more before your already widely dysfunctional institutions will descend into chaos?”
–Anonymous“Thank you so much Merpel,” one reader wrote. “A most accurate and detailed summary of the deeply sad situation under this president. I hope (I am sure) that this analysis will circulate to all interested parties. In case it is decided to ignore your suggestions at the next administrative council we will have all our answers and better get ready for the end of the EPO.”
Experience suggests that politicians care about these scandals only if/when they have something to politically gain from them. Some people now compare this to US politics (and election), noting that “the 24/7 freak show doing business under the brand of “US politics” hardly gives you any ground for gloating. How many months more before your already widely dysfunctional institutions will descend into chaos?”
“Maybe someone in the new US Administration will set their sights on the EPO.”
–AnonymousOne reply to this said: “Maybe someone in the new US Administration will set their sights on the EPO. The failure to provide a truly independent judicial review instance could arguably count as a breach of TRIPS. Grounds for an action against the EPO contracting states? Let’s see…”
We sure hope that some outside intervention (ILO is too slow and TI is virtually defunct) will save the EPO. If often seems like the Office and the supine Organisation cannot be saved anymore (as it’s too late, they’ve been rendered dysfunctional from the inside, compromising the very core structure as envisioned in the EPC). █
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Posted in Africa, Asia, Deception, Europe, Patents at 11:28 am by Dr. Roy Schestowitz
Winning by knocking others over?
Summary: Assessment of patent systems based on litigation (or “enforcement”) still a misguided yardstick but a glorified theme in the news sites controlled by (and for) the patent ‘industry’
“BEWARE,” AntiSoftwarePat[ents] wrote the other day, “Patent Trolls pretending to be ‘Inventors’ https://www.cta.tech/Policy/Issues/Patent-Reform/Urge-Congress-to-Support-Patent-Reform.aspx … #FixPatents because #PatentsMatter pic.twitter.com/qcdWnTA8v0″
The death of software patents may be already upon us, but now we need to ensure that these patents don’t cross the Atlantic and spawn new patent trolls in Europe. They have already crossed the Pacific and are growingly an issue (even an epidemic) in east Asia. We wrote more about this over the weekend and last weekend; in fact, this has been a recurring theme* here since about 2 months ago. It seems like a runaway issue as while it’s gradually dying out in the US the same symptoms can not been seen elsewhere and the EPO under Battistelli implements or emulates some of the worst aspects of the USPTO, including software patents in Europe.
Managing IP (MIP), in the face of strides against software patents in the US, sets up an event that seems to be promoting a case that helps patent trolls (Halo). To quote this new post about a so-called ‘webinar’ (usually dialogue/monologue with some programme): “Federal Circuit and district court rulings interpreting the Supreme Court’s Halo opinion on enhanced damages were analysed in a webinar presented by Managing IP and Fitzpatrick” (we can envision the content based on the presenters**).
These “enhanced damages” would be mostly applicable to patent trolls (or serial patent tax collectors) and this decision will, without a doubt, embolden some of them to make them more demanding/aggressive in courts. They can broaden the number of victims and the ‘protection money’ extracted from each.
On to a similar topic, Florian Müller revisits FRAND — a subject he used to habitually cover back in his Android-hostile days. This time it’s about automotive companies, namely Daimler and Hyundai. To quote:
About four to five years ago, there was a time when “FRAND Patents” would have been a more suitable name for this blog than “FOSS Patents”: the pursuit of sales and important bans over standard-essential patents (in violation of pledges to license them to all comers on fair, reasonable and non-discriminatory terms), royalty demands far out of the FRAND ballpark and exorbitant damages claims were the three most important symptoms of a huge underlying problem, and I did what I could to shed some light on what was going on and going wrong.
While I’m glad that some of the worst potential consequences were avoided at the time, I have realized that there is some unfinished business in that area. Antitrust settlements and court decisions were helpful. Some of them, such as Judge Posner’s 2012 Apple v. Motorola ruling, were really great. But attempts to abuse FRAND-pledged SEPs are still rampant. Various SEP owners are still seeking injunctions (not in all jurisdictions but definitely in some). Royalty demands and damages claims still appear to be out of line in too many cases.
These patents are problematic for many reasons, especially for Free/Open Source software. To see automotive companies joining this wave is troubling to say the least and now that automotive companies are also patenting the act of driving cars we find this new article which speaks of “Patents Driving Autonomous Car Technology”. To quote a portion: “Autonomous cars is a new Technological leap in the field of transportation. Imagine millions of cars, heavy duty vehicles, ships etc. being driven without drivers which will save a lot of human labor. Also, if such technology makes commuting safe and makes you reach your destination in time with 100% safety, it will save many innocent lives which are lost every year due to human carelessness or negligence while driving.”
There are already some patent trolls in this area, if not the dashboard level (e.g. navigation) then AI.
We continue to worry about patent trolls, about FRAND (or RAND, or SEPs) and of course about software patents, but at the core of these issues we have patent maximalism, or the belief that the more patents exist and are actively enforced against most entities, the better off society will be. See this new article (behind paywall) from IP Watch to witness a symptom of this disease. Called the “Online [Patent] Enforcement Index,” what we have here is “Konstantinos Alexiou [who] created the Index Of Patent Systems Strength, which ranks the effectiveness and efficiency of the patent systems of 49 countries.”
Are people serious about this? Is this what it boils down to? Ranking countries based on patent activity, as if the more means merrier? Totally misguided and dangerously so! █
______
* Days ago IAM wrote about patent trolls which now operate in Korea, notably “Intellectual Discovery”. To quote somewhat of a background that’s appended to the article: “Intellectual Discovery, on the other hand, saw its CEO Kwang-Jun Kim quit last month amid what he claimed to be a budget crisis at the SPF. Quoted in a feature in the most recent issue of IAM, Kim suggested that Intellectual Discovery would become a fully privately held entity, and that hook-ups with other patent monetisation companies may well be on the cards. “Going private means we would have a little more freedom – we would be able to broaden our horizons, perhaps working with non-Korean operating companies and partnering with other NPEs, if those scenarios are consistent with our strategy and goals,” he told me. The DSS transaction seems to fit this picture pretty well; but it is likely to be one of the last deals to have been done largely on Kim’s watch. Whether the person who steps into his shoes continues along this course remains to be seen.”
** MIP is very pro-plaintiff, as one might expect the messenger of patent law firms to be. Here is its new article about how “Philips and Masimo have ended their long-running dispute over blood oxygen measurement patents” and here is an update from the Eastern District of Texas, where “Medtronic has been ordered to pay $20.4m in damages by an Eastern District of Texas jury for infringing a doctor’s patents related to idiopathic scoliosis treatment” (guess who pockets a lot of this money other than the plaintiff).
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11.19.16
Posted in Europe, Patents at 5:39 pm by Dr. Roy Schestowitz
Summary: Belatedly (after a lot of unjust suffering and half a dozen suicides), having taken a closer look at some of the latest terrible policies from Battistelli and his goons, the press along with politicians and bloggers chastise the EPO and call for immediate remedial action
THE EPO is rotting and along with it the reputation and demand for its services. Will the European economy be so thoroughly damaged by it? Unless Battistelli and fellow thugs of his are removed, everyone will suffer, not just patent examiners but also attorneys, applicants, grantees, large European corporations and of course the European public. We need to sort out this mess before it’s too late!
Yesterday we mentioned beer ingredient patents and New Europe now has this new article about it. To quote:
NGOs urge Carlsberg to rethink beer ingredient patents
The European Patent Office in Munich and the Carlsberg company were criticised on November 17 in an open letter by campaigners opposed to the patenting of plants and animals.
No Patents on Seeds, an alliance including Greenpeace, the Catholic charity Misereor, and globally networked small-scale farmers, called on the Danish brewer to voluntarily relinquish three patents it received earlier this year from the European Patent Office.
As reported by Deutsche Welle (DW), Germany’s international broadcaster, documents published by the EPO also list Heineken of the Netherlands as a patent proprietor.
On several occasions last week, including last night, we wrote about growing concerns in Dutch Parliament. Remember that the latest staff representative to be sacked by Battistelli was a Frenchman working at The Hague. According to what’s typically a very pro-EPO (and pro-UPC) blog, there is a “debate in Dutch Parliament about deteriorating social climate at European Patent Office” and here is a fragment from this very long blog post:
MP Sharon Gesthuizen of the socialist SP received support for her request from a majority of the MPs earlier this week. They have asked Secretary of Economic Affairs Martijn van Dam for a government letter on the developments at the EPO, which has one of its main offices in The Hague.
John Kerstens of the social democrat PvdA, who gave a speech last month during a demonstration of 350 EPO workers in The Hague, stated they deserve ‘attention for the reign of terror – this is how I call it – at the EPO.’ Esther Ouwehand of the Animal Party said she is very concerned and wants to know how the EPO can be brought under democratic control, despite the legal immunity the institution has according to the Dutch government.
The dismissal of SUEPO secretary Laurent Prunier, also a member of the EPO’s Central Staff Committee, was the latest development in years of turmoil, protests and conflicts between EPO employees and the authoritarian president Benoit Battistelli, who is accused of creating a climate of fear, putting workers under intolerable pressure and ignoring the organization’s own rules.
In reaction to a critical article on the IAM blog about the dismissal of the union leader, Battistelli explained in a letter that Prunier had been harassing an EPO colleague. In an ensuing letter of Prunier, he denied the allegations and asked for transparency: ‘The easiest solution for the public to assess the truth vs. story-telling is for Mr Battistelli to lift the confidentiality he imposes on me and I will gladly publish all the documents.’
What’s noteworthy here is not just the news from the Parliament but also the fact that pro-EPO blogs are quickly turning against Battistelli. Even IAM is showing more and more signs of dissent. And remember IP Kat? The blog which used to be critical of the EPO until the EPO threatened it with sanctions? Well, Merpel is back and she has very detailed reports about the Boards of Appeal of the EPO. The latest report from her is a multi-part series on the EPO’s “house ban”, issued under Battistelli’s orders (his massive ego is even bigger than the EPC!). To quote some key parts from this good article:
Remember the House Ban? How two years flies past
[...]
It is almost two years since Mr Battistelli illegally suspended a member of the BoA, confiscated the computer belonging to the Board member, and imposed a “house ban” to prevent access to the premises of the EPO. As readers of the blog will know, the Administrative Council subsequently tried to regularise the suspension, and suspended the member on full salary until March 31, 2015 (yes, more than 18 months ago, it’s not a typo).
Three attempts have been made, all spectacularly unsuccessful, to petition the Enlarged Board of Appeal to remove the member from office. Along the way, Mr Battistelli forcefully told the AC that it should ignore the rule of law and the Enlarged Board, told the Enlarged Board he would refuse to authorise any witnesses to attend its hearings, and demanded the Enlarged Board to provide an assurance that it would neither hear the case in public nor call any EPO witnesses. All of which was rather presumptuous on his part when he was not even a party to the Enlarged Board proceedings (despite which it was EPO employees presenting the case on behalf of the Administrative Council, not independent lawyers appointed by the AC).
[...]
The Enlarged Board has issued three decisions in the House Ban proceedings. In each of these decisions, the Board has ordered the European Patent Office to publish the decision, but the Office has flagrantly ignored those binding orders.
In the third such decision, the Enlarged Board noted that the Office had failed to comply with both of its previous orders, repeated that the earlier decisions should be published and made a formal order to publish the third decision as well. And … nothing happened. The Official Journal continues to be published on schedule with such important matters as the accession of Djibouti to the PCT, but curiously omitting the mandatory publication of these fundamentally important decisions on judicial independence and the relationship between the Boards, the AC and the President.
[...]
For the AC’s credibility to be restored at this very late stage, certain actions seem to be required.
1. The Board Member at the centre of the House Ban affair should be reinstated without further delay. The legal path has been followed and its outcome is clear. Suspension for an extended period at the insistence of management is incompatible with the requirement of judicial independence.
2. A clear signal should be given in the minutes of the next AC meeting that the actions of Mr Battistelli vis-a-vis the Enlarged Board are unacceptable, in terms of his instruction to the AC to ignore the Enlarged Board, and the actions which the Enlarged Board interpreted as threats to its operation and independence.
3. It should instruct Mr Battistelli to reinstate the recently dismissed Mr Prunier – after all, that was the standing instruction which he ignored by continuing to pursue and target the union leadership.
4. It should order that the next edition of the EPO Official Journal contains the approved texts for publication of the three “Article 23″ Enlarged Board decisions. If Mr Battistelli can’t find them for the publishers, the ever-helpful Merpel reminds all involved that they can be found here: No. 1, No. 2 and No 3.
“Please don’t forget the reinstatement of Liz Hardon and Ion Brumme and of course Malika Weaver (after degradation),” one person added in relation to action 3 and “under Action 3,” added another person, “please do not forget Aurélien Pétiaud, Michael Lund both unfairly downgraded for having done their job as staff representatives in the Internal Committee and Laurent Prunier having just been fired who dared to take courageous positions in front of Battistelli at several occasions on several highly sensitive files (eg. New Main building worth 250 Mio EUR; suicides at the workplace etc.)”
“The President of the EPO wants to move the Boards of Appeal to Haar,” Merpel noted in a followup (part 2). We believe that Battistelli plans to ultimately deprecate them, under the assumption that UPC can someone be made a reality (he gave false predictions and timeframe estimates time after time). To quote Merpel:
The President of the EPO wants to move the Boards of Appeal to Haar. “Where?” Merpel hears you ask. Precisely. Haar is a municipality on the outskirts of Munich, most famous (not that it is famous at all) for housing the largest mental hospital in Germany. Is this just a sick joke on the part of M Battistelli? Because there is nothing else that could justify this – excuse Merpel – insane idea, which is to the detriment of applicants and patentees, opponents, professional representatives, and the Board of Appeal members themselves.
The official justification for the move is to increase the perception of independence of the Boards of Appeal. But in the consultation of users carried out by the EPO itself, the geographical location of the Boards was overwhelmingly not considered an important factor to their independence. An earlier proposal to move the Boards to another city or country completely (which would have destroyed the Boards as we know them) has thankfully been dropped.
The idea put forward that members of the Boards of Appeal might be influenced in their decisions by the possibility that they might encounter in the canteen an examiner disgruntled because they have been over-ruled is ludicrous in principle, and not borne out by the actual experience of the EPO over the last four decades, even when first instance examiners worked in the same building as the Boards of Appeal. They no longer do. First instance divisions are located in other buildings in Munich, or in The Hague, or in Berlin. The person who does however share the Isar building with the Boards of Appeal is, of course, the President of the EPO, and Merpel gets the impression that he wants those pesky Board members as far away from his domain as possible.
Some new information emerges also in the many (and growing number of) anonymous comments there, but we shall get around to highlighting some of them in the next few days, depending on relevance to the latest developments. Susan Pickin has told me and told the EPO that “We could have them [the boards] in the UK [...] UK could offer to have them here…”
Heck, how about opening a whole branch of the EPO here in the UK and actually ensure that staff enjoys human rights? As a reminder, the EPO has been highly discriminatory against British workers as of late. And later it wonders why the UK won’t ratify the UPC? █
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Posted in America, Deception, Patents at 4:45 pm by Dr. Roy Schestowitz
Shutting their ears when they lose the argument
Summary: Although patent lawyers want us to believe that software patents are just fine (citing cases fewer than the fingers of one hand), the reality is rather grim for them and we explain why
SOFTWARE patents are a dying breed of patents (or patent family) in the United States. They might still be enjoying somewhat of a legacy or inertia (until expiry), but there’s not much of a future for them as long as Alice is upheld by SCOTUS (hopefully — and there’s absolutely no guarantee here — Trump’s Conservative Justices won’t reverse/override this decision/precedent).
“Over the past week we saw the predators bemoaning the state of software patents in the US.”FOSS-centric companies don't bother with such patents or simply give up on any prospect of lawsuits (defensive/retaliatory purposes only). This new article asks in its headline, “Is a Blockchain Patent Still Possible?”
Even if such a patent was granted, in the area/domain of financial software patents there’s probably the worst success rate (in the courts). Some estimate the success rate to be 10% or lower. “But regardless of whether a viable bitcoin patent exists,” says the article, “both Nakamoto’s 2008 article describing the bitcoin system and the bitcoin network in operation since 2009 qualify as “prior art” against any new attempt to patent a blockchain system.”
In simple terms, prior art in the Internet and especially post-World Wide Web era (1990s onwards) makes it hard to defend software patents, even if they have been granted in error by the USPTO.
“Imagine the reaction if accountants openly advertised methods for dodging/evading tax. Imagine if they did so on their own Web sites…”Over the past week we saw the predators bemoaning the state of software patents in the US. Haynes and Boone LLP bemoaned the scarcity of “Patent-Eligible Software Claims” (post-Alice) and later noted that such patents can barely withstand courts’ scrutiny. Just watch Haynes and Boone LLP moaning and sobbing because the US hardly tolerates software patents these days. They’re partly in denial over it and they latch onto few exceptional cases to make it seem as though things might be improving (cherry-picking tactics that piggyback particular Court of Appeals for the Federal Circuit cases).
Other such dishonest firms are openly trying to work out new ways by which to patent software, even when software patents are semi-officially not acceptable. Who are these people kidding? Courts of the highest level repeatedly say “no” to software patents, but Watchtroll tries to tell people how to fool the courts and get software patents anyway. How very typical from him.
“Where are the real journalists and why are news feeds dominated by pure marketing, composed by those who try to attract business by misleading claims (bias by omission)?”Imagine the reaction if accountants openly advertised methods for dodging/evading tax. Imagine if they did so on their own Web sites…
Another law firm was pushing the software patents agenda a few days ago. Rather than be frank with clients and acknowledge that Alice made such patents not worth pursuing they just add question marks (twice in the headline alone) and then name-drop the aforementioned cherry-picked CAFC cases.
Here we have another example of a patent law firm spreading this spin about software patents, again by cherry-picking CAFC decisions to suit their agenda.
Where are the real journalists and why are news feeds dominated by pure marketing, composed by those who try to attract business by misleading claims (bias by omission)? What ever happened to investigative reporting and well-funded newspapers? It’s all PR now.
Taking old decisions that somehow suit their narrative, patent law firms tried to tell us software patents were fine also (another example here). They suggested ways of ‘tricking’ CAFC. Here is another new example of that, courtesy of Husch Blackwell LLP.
“They only keep track of (or a record of) the “wins” and none of the defeats, in order to construct a false, misleading picture, then present that to clients under the guise of “advice” or even “news”.”When will we see an equal (or greater) number of articles that were not actually written by those who try to sell something? Imagine what war journalism would look like if 90% of it was composed directly by companies that sell arms…
Based on what we have been able to gather, all the latest cases yielded nothing but bad news for software patents. “US Pat 9,083,997,” said one attorney the other say, was “Killed by Twitter @ Dist. Ct w/Alice/101″ and Versata’s software patents came under scrutiny from Ford, as the following good news site put it:
Ford Motor Co. returned to the Patent Trial and Appeal Board on Friday to challenge three Versata software patents involved in a trade secrets and infringement case, just over a month after the board declined the auto maker’s request that the PTAB institute America Invents Act reviews.
In separate petitions, Ford argued various claims in the Versata Development Group Inc. patents are invalid because they are obvious. The patents cover automotive configuration manager software that Versata has accused Ford of stealing.
As we noted in our previous post, the Patent Trial and Appeal Board is the most prolific eliminator of software patents. As for Versata, we wrote dozens of articles about it in past years. We predict that its patents are now on the chopping block, but don’t expect patent law firms to pay attention to any of this. They only keep track of (or a record of) the “wins” and none of the defeats, in order to construct a false, misleading picture, then present that to clients under the guise of “advice” or even “news”. █
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Posted in America, Patents at 4:00 pm by Dr. Roy Schestowitz
Summary: Patent trolls and the meta-industry which creates nothing but lawsuits is growingly afraid of boards that ascertain patent quality at the USPTO
THE Patent Trial and Appeal Board (PTAB) is probably AIA’s best outcome. It helps eliminate software patents by the thousands, i.e. a lot more rapidly than courts do, and it erodes confidence in software patents — enough to discourage some new patent applications and even more so patent lawsuits (these have become too risky for the plaintiff).
As one might expect, the patent ‘industry’ (mostly patent law firms) is up in arms and some resorted to insulting PTAB. Others complained to the Court of Appeals for the Federal Circuit (CAFC), but it didn’t get them anywhere. CAFC has done nothing to stop or even slow down PTAB.
“CAFC has done nothing to stop or even slow down PTAB.”Here we have one of the more strident patent maximalists’ sites moaning to CAFC about PTAB, for PTAB is throwing away bad patents without giving assignees the benefit of the doubt. To quote the author: “The Federal Circuit remanded a final written decision of the Patent Trial and Appeal Board (“PTAB” or “Board”) because the Board invalidated certain claims in a patent without providing adequate notice or opportunity to the patentee to respond to an assertion about a prior art reference. Interestingly, in the In re NuVasive, Inc. opinion decided on November 9, 2016, the Federal Circuit reviewed the outcome of two IPR proceedings related to the same patent, U.S. Patent No. 8,187,334, directed to implants for spinal fusion surgery.”
Another one of those sites (albeit a lot more polite and usually professional/academic) wrote about PTAB and also about “non-reviewable decisions”, i.e. decisions without proper oversight:
Arbitrator as Arbitrary: Non-reviewable decisions (whether by the USPTO or by an arbitrator) are generally troubling because they create the potential for arbitrary awards that depart from both the law and facts.
The case was originally denied hearing by the Texas Supreme Court. On rehearing request, the Court has showed some interest by requesting further briefing from Jenner & Block and two amicus filings have supported the petition. Because it is a Federal Law (the FAA) that has prevented judicial review thus far, the case will be appealable directly to the U.S. Supreme Court once Texas gives its final word.
The US granted literally hundreds of thousands of software patents in just over a decade. In order to clean up this mess, which is basically a big chunk of invalid patents (clogging up the system), something like PTAB is not only useful but also necessary if not imperative. The reaction to PTAB from patent maximalists has been rather revealing. They just want more and more patents on just about everything someone does or thinks. It’s them who are the radicals or extremists, not reformers who remind them — as we habitually do — that the patent system was originally created to give incentive for publication and disseminate knowledge (or increase overall innovation), not to feed a newly-created collective of parasites who assume that more than 10 million patents should be filed and most patent applications be accepted by the examiners (and later by nontechnical judges).
The US is still floating in a swamp of bad patents and a popular phrase in the US right now is, “drain the swamp!” █
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Posted in GNU/Linux, Microsoft, Patents at 3:24 pm by Dr. Roy Schestowitz
“I’ve heard from Novell sales representatives that Microsoft sales executives have started calling the Suse Linux Enterprise Server coupons “royalty payments”…”
–Matt Asay, April 21st, 2008
Summary: In order to maintain the order of “Linux patent tax” Microsoft and its proxies (patent trolls like Intellectual Ventures) keep pursuing patent policy that is friendly towards software patenting
A FEW days ago we became aware of the Microsoft-friendly IAM with its latest/upcoming event (as usual, with patent maximalists as sponsors). It is an IAM event, so basically IAM agenda, including software patents promotion. They are hoping to shape patent policy (see “Programme”) and as Benjamin Henrion put it, it is “Microsoft and others writing swpat [software patents] law: “Key topics for legislators to consider: a solution for 101 uncertainty”…”
“As a reminder, earlier this year software patents from Intellectual Ventures were aimed at Linux devices (in the courtroom) and recently a failed case of Intellectual Ventures led to the potential death of all software patents in the US.”Longtime readers of ours probably don’t need to be convinced that Microsoft is still an enemy of GNU/Linux, at the very least by virtue of promoting software patents (there’s a lot more than that). Sites like Phoronix may have fallen in line with the “LOVES LINUX” nonsense (a PR campaign), but judging by the company’s actions — not mere words — it is still a vicious opponent that cannot be trusted.
The largest patent troll of Microsoft (which attacks Linux with software patents) still fights for software patents. Yes, Intellectual Ventures is just one among many Microsoft-connected trolls that prey on Linux. Here is one new report about it: “Earlier this week, Intellectual Ventures (IV) petitioned the full Federal Circuit to review the panel opinion inIntellectual Ventures v. Symantec, which invalidated two of its patents under section 101. Both patents—the ’050 and the ’610—are directed to filtering email or file content. (IV does not challenge the invalidation of a third patent, which was directed to receiving, screening, and distributing email.) The petition echoes concerns raised by clients, courts, and the patent bar about the growing uncertainty about what is—and what is not—patent eligible, especially in the area of software patents. Identifying two emerging fault lines in the court’s evolving section 101 jurisprudence, IV urges the full court to bring much needed doctrinal clarity and methodological consistency to the patent eligibility analysis.”
This was also covered in another report (partly behind paywall) which says “Intellectual Ventures asked the full Federal Circuit on Tuesday to review a panel decision that invalidated two of its patents on detecting spam and viruses for claiming only abstract ideas, saying the ruling “directly conflicts” with other decisions on patent-eligibility.”
“It would be nice if we did not have to mention Microsoft at all, but it just keeps interfering with (and trying to undermine) Free software, so it’s impossible to ignore this company.”As a reminder, earlier this year software patents from Intellectual Ventures were aimed at Linux devices (in the courtroom) and recently a failed case of Intellectual Ventures led to the potential death of all software patents in the US. It’s clear that Intellectual Ventures intends to keep fighting that decision. It wants to keep extorting all sorts of companies, extracting patent payments (settlements from them). Intellectual Ventures is closely connected not just to Microsoft but to Bill Gates personally.
IAM’s apologists of trolls had the cheekiness to say the other day that “as you know, a lot of infringement goes uncontested because of the cost of litigating in the US.”
That’s nonsense. “A lot of patent bullying goes unchallenged (‘protection money’ paid) because of the cost of litigation everywhere,” I told them and “seen it personally,” added the former lawyer of Samba, Carlo Piana. As Benjamin Henrion (FFII) put it, “politicians don’t care about small companies.”
“I thought big companies were the targets of litigation,” said Jamie Love (Knowledge Ecology International, or KEI for short), probably joking about this myth.
The matter of fact is, Microsoft and its patent trolls continue to lobby pretty hard for software patents, yet the Linux Foundation somehow found it appropriate to join Microsoft and help Microsoft spread its lies (e.g. that .NET is open even though it’s not and SQL Server comes to GNU/Linux even though technically it will run on top of a Windows kernel, which in turn sits on GNU/Linux).
I had a lot more to say about the Linux Foundation joining Microsoft (yes, it certainly feels like the suitable way to put it), but I wrote it succinctly in Diaspora* and other such sites as I wish to focus all energy and time on the patent systems, not on Microsoft specifically. It would be nice if we did not have to mention Microsoft at all, but it just keeps interfering with (and trying to undermine) Free software, so it’s impossible to ignore this company. █
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