04.02.16
Posted in Law, Patents at 11:55 am by Dr. Roy Schestowitz
Portrait of Chief Justice John Marshall, 1862
Summary: The patentability of software in United States (US) continues to be challenged by courts and by PTAB (Patent Trial and Appeal Board), with no signs of the Supreme Court (SCOTUS) changing that any time soon
In order to better understand the evolution or devolution of the USPTO, we must rely on sources that are both knowledgeable and reasonably objective (or make their biases known upfront). Justin Blows’ useful blog (authored by an Australian patent lawyer) is all about software patents and it now covers many recent examples of software patent cases in the US [1, 2, 3, 4, 5, 6]. Among these examples this morning we see this lawsuit from a Microsoft-connected mega-troll, Intellectual Ventures, a lawsuit from Trading Technologies, which has been stockpiling software patents, and a lawsuit from IBM, a proponent of software patents and patent aggressor. What all 9 have in common (all of them were published at 6 AM GTM) is that they involve software patents used offensively in the courts, irrespective of their outcome, which Mr. Blows is trying to analyse in order to assess prospects of software patents in the US.
“…we must rely on sources that are both knowledgeable and reasonably objective (or make their biases known upfront).”A firm of patent lawyers has just released a paper in support of software patents and calls it a “Comprehensive Study” (probably for perceived legitimacy). It has been advertised using a paid press release and based on the title alone we can see the bias (“Enforcing Software Innovation” is gobbledygook).
“Are Software Patents Relevant?”
That’s the title of this good new article which states:
While proponents (usually with deep pockets) have touted their benefits, software patents have also been used in the software industry to suppress innovation, kill competition, generate undeserved royalties, and make patent attorneys rich. So I ask, are software patents still relevant?
It’s no secret that the engineering software business is extremely competitive, as it always has been. The engineering software business has also proven to be a very fertile ground for lawsuits regarding patent infringement, reverse engineering, and outright copying and pasting blocks of code.
The software industry is very different (or unique) for a lot of reasons, including pace of innovation, code reuse, reducibility to maths/logic, difficulty of tracking/enforcement, ‘export’, zero-cost copying and so on. Patents are completely inadequate for this area/domain. Virtually every well-informed software developer would attest to that.
“Patents are completely inadequate for this area/domain.”“A rare instance of PTAB finding patent-eligible subject matter in a covered business method case,” wrote a patent lawyer about this article regarding PTAB. It says that the “The U.S. Patent Trial and Appeal Board (PTAB) recently found a business method patent eligible under 35 U.S.C. § 101, in one of the first such decisions since the institution of Covered Business Method (CBM) Patent Reviews and the Supreme Court’s decision in Alice Corp. Pty Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014).”
Bear in mind that for patents on software or business methods to survive Alice is the exception now. As Bilski Blog has just put it (publishing new charts and figures): “It’s difficult to say whether we’ve reached a steady state as to the boundaries of patent eligibility. The high rates of ineligibility decisions is likely to incent patent defendants to continue to argue against more traditional types of software. At some point, the courts will likely say enough is enough, and start to hold the line. Attempting to time the market is a fool’s errand.”
“The very existence of software patents makes the job of programming (coding/development) uncertain if not impossible.”Alice/§ 101 has changed so much for the better. It’s a rare case of SCOTUS versus patent lawyers (greed) and lobbying from large corporations. Based on this updated list of upcoming SCOTUS patent cases, there’s still nothing that can annul or undo Alice, however there will be a decision regarding design patents.
Speaking of § 101, this new article says that yesterday “the Court [was] scheduled to consider grant of certiorari in Retirement Capital Access Management Co. LLC v. U.S. Bancorp, No. 15-591, where the firstQuestion Presented asks “[w]hether subject matter eligibility under 35 U.S.C. § 101 is a ground specified as a condition for patentability [for post-grant review] under 35 U.S.C. § 282(b)(2).””
Things do change in the US and they certainly change for the better when it comes to software patents. If only more groups, such as the EFF (focused on trolls), worked towards the same goal…
Intuitively speaking — and studies serve to reaffirm this — no software developer really wants software patents. The very existence of software patents makes the job of programming (coding/development) uncertain if not impossible. █
“The Moral Law tells us the tune we have to play: our instincts are merely the keys.”
–C.S. Lewis
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Posted in America, Microsoft, Patents, TomTom at 11:01 am by Dr. Roy Schestowitz
Reign by fear and terror, protectionism for few mega-corporations
Summary: A look at the US patent system, as viewed from the lens of Professor Dennis Crouch, founder of Patently-O
Continuing our emphasis on the USPTO today, right now we focus on Patently-O, a decent source of information about patents (albeit sometimes a tad biased because of Dennis Crouch's occupation and surroundings/environment).
Based on this new article, the Court of Appeals for the Federal Circuit (CAFC) has ruled that ITC cannot weigh in on “Purely Electronic Products”, however that’s defined. Remember that the ITC helped Microsoft embargo competing mice from Asia when Microsoft’s patent aggression began, not too long before the historic TomTom lawsuit which served as a deterrent to many other Linux distributors after 2009. “In its panel opinion,” says Patently-O, “the Federal Circuit held that the USITC jurisdiction over the importation of “articles that infringe” does not extend to the “electronic transmission of digital data”. Rather, Section 337 of the Tariff Act is limited to “material things” as used in common parlance (i.e., beyond an “electron’s invariant mass” that may be associated with a digital transmission). See Dennis Crouch, Federal Circuit Bites Back against USITC Expansion into Electronic Importation, Patently-O (November 10, 2015). That original panel included Chief Judge Prost who wrote the majority opinion along with Judge O’Malley who also issued a concurring opinion and Judge Newman in dissent.”
“Remember that the ITC helped Microsoft embargo competing mice from Asia when Microsoft’s patent aggression began, not too long before the historic TomTom lawsuit which served as a deterrent to many other Linux distributors after 2009.”Other articles from Patently-O note (regarding Cuozzo v. Lee) that “it may make the most sense for the Supreme Court to dismiss the claim construction issue as improvidently granted but retain question two regarding the appeal of institution decisions.” We wrote about this case in the middle of February, right after Antonin Scalia had died.
Another new Patently-O article says: “Most firms, of course, are aware of their ethical obligations to take reasonable precautions to secure client confidences, no doubt in part because the standard of care requires it, hacks are public knowledge, and in fact the FBI issued a warning several years ago on this point. But a Citigroup report dated almost exactly one-year ago said that lawyers still were behind the curve, and articles specific to IP firms (such as this one, calling IP firms the low-hanging fruit compared to the USPTO’s data) are out there also signaling warnings.”
“It’s as though we’re dealing here not with a patent system but a filing system, wherein patents are properly examined only when taken to court (or to PTAB).”Both IP [sic] firms and the USPTO are biased. They cater for themselves. Then there are the extremes like IAM 'magazine'. It’s expected that many people out there will be biased, but realisation of this bias is key. In many people’s view, Techrights too is “biased” — a claim we’re not trying to deny but at least make rather evident (e.g. from the style). Even journalists are biased, but they do a better job hiding it (or their publishers hide it while commissioning journalistic endeavors based on the paper’s agenda).
One very recent article from Patently-O said “lawyer must certify that, based upon a reasonable investigation, that a substitute claim is patentable” (lawyers typically do whatever it takes to just get the job done, i.e. patent something if working for an applicant/plaintiff or invalidate if working for a defendant/challenger).
“The US patent system is in a sordid, sad state.”One last article from Patently-O said: “The second point seems to be that conflict-free counsel would have obtained broader claims that covered Savi’s commercial products. Here, the appellate court said there was no evidence the USPTO would have issued the claims. It is not clear what was done by Axcess: did the expert compare the hypothetical claims to the prior art of record? If so, that would seem to be enough, but the appellate court stated that there had to be evidence of how the USPTO would have responded to hypothetical patent applications and “evidence from similar cases.” In a vacuum and without the full trial record, this seems odd. Again, the opinion is hard to follow.”
Given the PTO’s figures, it’s hard to imagine that they do any quality control at all, but now that there’s a $42 million verdict at stake suddenly they actually try to get the job done properly. It’s as though we’re dealing here not with a patent system but a filing system, wherein patents are properly examined only when taken to court (or to PTAB).
The US patent system is in a sordid, sad state. █
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Posted in America, Deception, Europe, Patents at 10:13 am by Dr. Roy Schestowitz
Summary: The latest illustration of biased coverage by IAM ‘magazine’, which is a Web site by patent maximalists for patent maximalists (or unsuspecting readers who are indoctrinated into patent maximalism)
SEVERAL days ago we explained why IAM doesn't say "patent trolls" (Spanish translation published this morning). The editor of IAM told me explicitly that he doesn’t believe in the term “patent trolls”, even though it’s clearly defined and commonly used (even by the highest judges last year).
Not accepting the term “patent trolls” in 2016 is a bit like refusing to accept the term “cloud” (which is also too vaguely defined, but nonetheless widely used). I personally worry that IAM’s agenda includes bringing a USPTO-style system/agenda (low quality) over to Europe. IAM is basically European but it is paid by many firms in the US, as we noted here before. Even patent trolls from the US put money in IAM’s coffers.
“IAM is basically European but it is paid by many firms in the US, as we noted here before.”A “Korean company claims that Facebook, Kakao, Line et al are infringing one of its patents,” wrote IAM the other day (Facebook does this too). The writer, Mr. Ellis, is quite alright and he correctly asserted that “Korean companies are not known for being particularly proactive or aggressive when it comes to asserting their IP rights.”
Wild, on the other hand (the boss of Ellis), keeps attacking patent critics, such as Rackspace, which spends a lot of time and money attacking software patents (we covered this before [1, 2, 3]). To make matters worse, Wild nearly associates himself with the blowhard Gene Quinn (whom we dubbed Patent WatchTroll), who is the most aggressive proponent of software patents (or at least most vocal). To quote Wild’s piece: “A couple of days ago Gene Quinn, who runs the IP Watchdog blog, had a Twitter spat with Van Lindberg, VP of technology at Rackspace, about the validity (or not) of the patents issued by the USPTO.”
“Shame games again? Like shaming Germany over UPC inaction? Repeatedly even?”As we noted here several times in March, Quinn now attacks everyone in the system who does not consent to granting software patents. He’s nearly as bad as Andrew Y. Schroeder and he likes confrontation (although he blocked me in Twitter after losing a long debate that left him utterly embarrassed).
“Almost all patent professionals acknowledge that 80% of patents are invalid,” Van Lindberg wrote. So hence begins Quinn’s and Wild’s coy shame game. Wild speaks to patent maximalists for ‘expert’ opinion on this statement and then ends with the words: “Should Lindberg now apologise to IPValue for misreporting the firm’s views? I’ll leave that to him to decide, but at the very least he might want to let his Twitter followers know that he got that 96% stat wrong.”
Shame games again? Like shaming Germany over UPC inaction? Repeatedly even?
Speaking of Twitter, Wild is apparently too shy to speak on behalf of IAM (where he’s the editor), so he uses some weirdly-named personal account of his, which alludes to a spa, whenever he writes anything to me.
“Is it really worth paying for a subscription to a ‘magazine’ so biased that trolls don’t even exist in it (instead they’re groomed and characterised as legitimate businesses)?”IAM’s agenda, which includes protecting EPO management, heralding the UPC (shaming its obstacles), grooming patent trolls, encouraging patent stockpiling and defending software patents needs to be widely understood not just by EPO workers but by anyone out there. Is it really worth paying for a subscription to a ‘magazine’ so biased that trolls don’t even exist in it (instead they’re groomed and characterised as legitimate businesses)? Wild is the worst of the bunch; some of the writers are OK, but Wild still gets to edit away what he does not like (or change words) and that’s a problem. I actually spent months reading every article in IAM before reaching this conclusion.
Watch this new article titled “New Marathon subsidiary heralds move beyond patents into technology licensing”. Alternative headline for the same article: “New Marathon subsidiary is a patent troll” (as per definition).
“IAM still doesn’t say patent trolls, not even in this latest article which calls a troll “NPE”, quite frankly as usual.”“WiLAN, Intellectual Ventures and Spherix,” it says, “have all entered into agreements recently designed to diversify their business models to varying degrees.”
It doesn’t say the “T” word (troll) and instead uses positive words like “agreements”, “diversify”, and “business models”. Maybe our Prime Minister should hire Wild to describe NHS crackdown as “investment”, bombings in Syria as “democracy”, and Investigatory Powers Bill as “safety”.
IAM still doesn’t say patent trolls, not even in this latest article which calls a troll “NPE”, quite frankly as usual. █
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Posted in America, EFF, Law, Patents at 9:25 am by Dr. Roy Schestowitz
Summary: Some news regarding patents with emphasis on the EFF’s situation and current strategy, which overlooks the core issue, software patentability in the United States
TODAY’s (or this afternoon’s) focus will be the USPTO. There is a lot to be said about the US patent system, both good news and bad news. As longtime readers of ours know, we’re not opponents of the patent system per se, we’re against software patents, which oughtn’t be granted at all because code is properly protected by copyright law. Virtually all software developers (based on old surveys and polls) agree with us on software patents. It’s hardly even a subject of debate inside the software community, only outside of it.
“Virtually all software developers (based on old surveys and polls) agree with us on software patents.”Days ago we remarked on the VENUE Act, the latest hyped-up bill which claims to tackle issues even if it’s a half-cooked solution. Last year we saw Innovation and PATENT Act (remember it? One of many incarnations and efforts [1, 2, 3, 4, 5, 6, 7]). They’re all just buzzwords and they focus on patent trolls, not patent scope. The effort taken to come up with those silly acronyms (like PATRIOT) shows that it’s more about marketing than about substance. As TechDirt has just explained VENUE Act (Nathan Leamer and Zach Graves, the authors, aren’t TechDirt people), “it isn’t the kind of comprehensive corrective to America’s “patent troll” problem that we’d like to see, the newly introduced Venue Equity and Non-Uniformity Elimination Act would address one small piece of the problem. The bill, S. 2733, would curtail rampant venue shopping that unfairly distorts legal outcomes by allowing plaintiffs to select friendly judges in advance.”
Given some judges’ or courts’ inclination to accept abstract software patents, this potentially has a positive effect on resistance to software patents. At around the same time as the above, TechDirt also reposted the EFF’s article (the EFF is a proponent of VENUE Act by the way) about Microsoft’s biggest patent troll, Intellectual Ventures, calling it “Mega-Troll” and stating that it “Hits Florist With Do-It-On-A-Computer Scheduling Patent” (software patent).
“This Microsoft-connected troll also attacks Linux and Android, as we showed here before.”To quote the EFF: “When it comes to patent trolls, no one is bigger than Intellectual Ventures. The Washington State-based behemoth is at the center of both patent trolling and the debate around patent reform. Though it claims to promote innovation, Intellectual Ventures is behind some of the most outrageous troll campaigns in recent years. Famous for hiding behind thousands of shell companies, it spawned Lodsys, the troll that harassed small app developers, and the Oasis Research litigation featured in This American Life.
“This month, Intellectual Ventures filed some fresh lawsuits against targets including JCPenney, Sally Beauty, and flower delivery service Florists’ Transworld Delivery. We checked out the asserted patents to see if any deserved our Stupid Patent of the Month award. All were worthy candidates, but one in particular stood out.”
This Microsoft-connected troll also attacks Linux and Android, as we showed here before. It is acting as a sort of Microsoft proxy, one among many. Intellectual Ventures also has a network of thousands of satellite firms, making it like a phantom that’s too cumbersome to properly track.
“Intellectual Ventures also has a network of thousands of satellite firms, making it like a phantom that’s too cumbersome to properly track.”Separately, based on this post from the EFF, “Blue Spike is a repeat patent litigation player. Lex Machina (a service that collects patent litigation filings from across the country) indicates there are over 100 lawsuits involving Blue Spike and its patents. Unsurprisingly then, Blue Spike’s campaign has garnered press attention. We’ve written about Blue Spike and its patents in connection with our “Stupid Patent of the Month” series. Others have written about Blue Spike too.”
In more positive news from the EFF, on Twitter it said: “Court orders that patent bully must pay EFF client’s attorneys’ fees.” Here is the corresponding article which says:
In a decision that could help other victims of abusive patent litigation, a court today ordered that Garfum.com Corporation must pay an EFF client’s attorneys’ fees. The court found that Garfum’s patent suit lacked merit and was litigated unreasonably.
Back in late 2014, Garfum sued a small photography website called Bytephoto.com for patent infringement. Garfum claimed to own the idea of having a ‘vote for the best’ competition, but on the Internet. Even though its absurd patent was plainly invalid under the Supreme Court’s decision in Alice v. CLS Bank, Garfum demanded that the owners of Bytephoto, Ruth and Steve Taylor, pay it $50,000. Given the substantial cost of defending even a frivolous patent lawsuit, the Taylors faced a difficult situation.
This has already been covered by Joe Mullin, who tracked patent trolls for about a decade. “The Electronic Frontier Foundation,” he wrote, “has advocated against ridiculous software patents for more than a decade, but it wasn’t until last year that the organization took on a pro bono client accused of patent infringement. A little-used video website called Garfum.com sued Pennsylvania photographer Ruth Taylor, saying she was infringing US Patent No. 8,209,618. Garfum, owned by a New Jersey man named Michael Garofalo, says the patent was infringed by the photo contests Taylor runs on her website, Bytephoto.”
Worth noting here is that we’re dealing with a software patent, again. Why doesn’t the EFF just tackle software patents as opposed to “stupid patents” or “patent trolls”? Better join the good fight, better late than never. █
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Posted in America, Europe, Law, Patents at 8:25 am by Dr. Roy Schestowitz
Shaping EU law in the United States’ think tank [EN | ES], in front of an audience that is barely even European
Summary: Margot Fröhlinger of the EPO and few other ‘insiders’ (profiteers, not inventors) promote their horrific vision of Europe’s patent system, which would make it appealing to US-based patent trolls and proponents of software patents as well as patent aggression/extortion (such as Microsoft, the main sponsor of Fordham IP)
THE EPO has learned no lessons from the backlash that led to a crisis. Battistelli has been advised to keep a low profile (he’s widely loathed), but his troopers now inherit the role of UPC advocacy (Battistelli and his bodyguards will come to London later this month to do this too).
The UPC basically threatens to kill what’s left inside the EPO that actually combats software patents, namely the independent boards and other external factors (the EPO is just a money-making machine, recklessly ignoring the EPC whenever this suits the narrow-minded goals). As this one comment puts it:
Sir Robin imagines less use of opposition at the EPO, once the UPC is up and running.
Well, of course! A no-brainer, one might venture. Ever since the EPO started, in 1978, 70% of all oppositions have been filed by German speakers, all because of bifurcation in Germany of the issues of infringement and validity. Why bifurcation? The German basic law (Constitution) makes it unavoidable, right? But now? The UPC is going to sweep all that nonsense away, isn’t it.
In response to this, a patent lawyer wrote:
Yeah right. Opponents are going to abandon a low cost opposition for a high cost (with liability for costs) UPC. Both tracks will be used, and the added punch of a unitary patent will make opposition more compelling.
Then another patent lawyer said:
As ever, shrewd comment from Meldrew. Accepting that the unitary patent adds “punch”, what should be the business-like response of those going in fear of being punched, those who have seen the fist and fear its being used?
In Germany, up to now, it was to get their retaliation in first, and oppose whereas, in England, it was not. I venture to suggest that in England it made more sense, most of the time, to get one’s defence well organised but then wait for an attack which, mostly, would not happen. After all, litigation is supposed to be a last resort, isn’t it?
And if it were to happen, that an attack comes, and one really is sued in the unitary court for infringement, one would counter-claim for invalidity, would one not, as well as arguing non-infringement, all in the same court, the same action.
so, Meldrew, have times changed then, that you suppose pre-emptive opposition to be “compelling”?
And how about the “poor man’s opposition” namely filing at the EPO 3rd party observations on patentability? Hmmmmh, I doubt it. Why hasten the grant of the patent, with claims that enjoy a higher presumption of validity, claims paccking a greater “punch”?
And on it went:
Until the UPC has a track record it will not be clear whether it will encourage or discourage the fraternal enmity that occurs in Germany, but it is not that issue that concerns me.
It is the dramatically increased value of a European patent that will make it a more tempting target.
It is still possible at present to make a good living by selling products outside the holy trinity of DE-FR-GB and ignoring patents validated only in those countries. If the UP gets a big take up this option will decrease and there will be more people wanting to clear the path. To me this is very likely to result in an increase in oppositions.
As for 3POs, I use these a lot. My clients prefer early certainty to prolonged uncertainty, and would rather their competitors had strong patents my clients do not infringe, than uncertain patents my clients might infringe.
Far from being a “poor man’s opposition” 3POs are an essential part of an attorney’s toolkit, and they do not preclude later opposition. Perhaps this is why the number of 3POs is reported to have increased dramatically in recent years. Another factor here is the use of pre issuance submissions in the US. As our friends across the pond grow more familiar with such tools I would expect them to be used more. Particularly as you can say things in a 3PO you cannot say in a pre issuance submission..
The following should be expected from a site that attracts so many patent lawyers:
“From where I am sitting, EPO oppositions are going to continue, and are going to be the preferred option of weeding out bad patents. The speed of oppositions up to the OD is picking up, although the OD to TBA stretch is still too long. The, the EPO opposition route will remain cost effective compared to a UPC revocation action.”
Maybe Sir Robin was contributing his bit of Aprilfoolery before the due date? Unless the UPC starts systematically rejecting requests for stays of proceedings while oppositions are pending (and I don’t expect that), oppositions will remain interesting for alleged infringers if only as a delaying tactic. Tactically, the only drawback of an opposition vs. UPC invalidation is that the EPO is notoriously circumspect around evidence of public prior use. If your best attacks depend on such evidence, you may be well advised to go directly to the UPC to invalidate that patent. Otherwise, I’d start with an opposition.
Nice comments. Where do they leave us?
Horses for courses? There are WO and A publications best dealt with using a 3PO, others where that course would be contra-indicated. Then there are those cases which are more or less crying out to be opposed at the EPO. And then there are cases where one would hesitate to make the first move but would pile in to an opposition at the EPO if the patent owner makes the first move.
In short, every manufacturer ought to be actively keeping clear the path forward, by whatever means are best suited.
So, plenty of work for any European patent attorney with enough business acumen to help such clients arrive at the optimal strategy. And every reason to be confident, going forward, that the EU’s patent regime is fit, fair and economical, not only for patent owners but also for those bothered by patent owners.
As much as I admire Sir Robin, I cannot make much sense of the suggestion that litigation at the UPC might effectively do away with the need for EPO oppositions.
His suggestion may make sense for some litigants, but I doubt it will be all that many – at least not in the short term. This is because EPO oppositions will continue to make a great deal of sense for: (a) anyone seeking to knock out national validations in non-UPC countries (such as Spain); (b) those seeking to knock out opted-out EPs; (c) those of limited means who are seeking to “clear the path”; and (d) those with deeper pockets who want to play both systems.
To my mind, the majority of litigants will probably fall into at least one of those categories. However, it remains to be seen whether the balance changes once users become more familiar with how the UPC operates.
On that latter point, I suspect that the UPC will have a difficult time of it in the early years. This is because the legal system that the Court will need to apply simply has an astounding number of complexities and loopholes / gaps (and, arguably, is being improperly implemented by the Member States). In this respect, Ms Fröhlinger’s comments (if reported correctly) are potentially quite revealing. That is, if sorting out legal complexities is viewed in high circles as being “tedious”, it is no wonder that we are faced with a UPC system that currently looks to be half-baked at best.
“As a European Patent Office opposition needs to be filed within 9 months of grant,” noted one person, “it is only a useful process if third parties have a potential commercial interest in the patent at that time. Clearly, this will be the case in many instances, but not all, and it is technology dependent.”
The context of all the above was this article from a Bristows employee (massive boosters of the UPC). It helps show that Margot Fröhlinger of the EPO is an enemy of 99% (or more) of Europe’s population as she pushes for UPC with the same old attempts at self-fulfilling prophecies. To quote the relevant bit:
Margot Fröhlinger (Principal Director, Patent Law and Multilateral Affairs, EPO) was the first to take the podium to discuss outstanding issues about the unitary patent. Next year, Margot explained, we will hopefully have a unitary patent and a Unified Patent Court (UPC) in Europe. This means a one-stop shop for post-grant procedure for protection and enforcement. This will help remove the complexity of a fragmented market, but there are other issues that need to be addressed – some which are quite tedious and which need to be dealt with by agreement by Participating Member States or dealt with by the UPC. The first issue is in relation to Unitary Supplementary Protection Certificates (i.e. SPCs based on unitary patents). The European Commission has recently announced that they are going to create a unitary SPC. Margot wishes them good luck. The creation of a unitary SPC may be as complicated as the UPC (which took 40 years). There are number of legal and political issues – i.e. creating a European unitary title that only has effect in some EU Member States? Who is going to grant unitary SPCs and fix the fees? Who is going to get the fees for unitary SPCs? At the moment SPC fees are retained by national offices. It will be difficult to create, but pending the creation of a unitary SPC, national SPCs can be obtained on the basis of the unitary patent. The EU Commission will be clearly stating this. The second issue is what happens if request for unitary effect is rejected by the EPO or is overruled by the UPC at the time when the validation deadlines has already expired. Member States mainly agree that they should reopen the deadline for national validations. This has been implemented in Sweden, Finland, Netherlands and Germany. The UK considers that the patent holder should just pay the national renewal fees (and would be protected). A harmonized approach on this point may be difficult. The third difficulty is where prior national rights lead to a limitation or revocation of the patent for the territory of one of the participating Member States after the registration of unitary effect. There are different solutions – either revocation or limitation of the unitary effect only for the territory of the Member State concerned, or revocation or limitation of the entire unitary effect and reopening of the deadline for national validations or loss of the entire Patent. The UPC may have to deal with this issue as well. The final issue is the double protection for the same invention by Unitary Patents and national patents. There is no prohibition under the European Patent Convention. This is left to Member States. Member States have different approaches – some allow double protection, others prohibit it. German law which traditionally prohibits double protection has now provided for double protection in their new draft legislation. This adds another layer of complexity and may impact the opt-out strategies of patentees. In conclusion, Margot says we should not compare the UPC and unitary patent with what an ideal world may look like – it needs to be compared with what the fragmented system is like now. The UPC and unitary patent is an improvement.
Here is Managing IP (MIP) with its own take on this:
Margot Fröhlinger of the EPO (see our recent interview with her) runs through some outstanding questions on the Unitary Patent and UPC:
The European Commission is going to create a unitary SPC – “I wish them good luck” says Fröhlinger, saying there are a number of legal and political obstacles.
What happens if a request for unitary effect is rejected by the EPO or over-ruled by the UPC after the deadline for national validation has expired (deadline is normally three months). She reports “intensive” discussions on this point, with most member states considering that the deadline should be reopened.
What if a national earlier right is invoked against a Unitary Patent in the UPC? This complicated question may be one for the UPC to tackle.
Double protection by Unitary Patents and national patents – this issue is left open, member states have different approaches.
TPP and TTIP are named along with UPC in the same page. Just so people know who it's all for and about. It’s quite an extraordinary coup. It’s class war.
UPC critics, or sources that are actually familiar with the gory details, correctly stated the following:
The costs of the unitary patent
In a recent interview Mr Battistelli claimed that the unitary patent (UPP) “is going to be more accessible, less costly and simpler, especially for Europe’s small businesses, with cost reductions in the 70-80% range.” According to Mr Battistelli, the cost of applying for and maintaining a European patent across the EU is currently around €159,000 over 20 years. Under the new plans, this would drop to “around €35,500”. We do not know how Mr Battistelli comes to his “pre-UPP” sum of €159,000 which seems extremely high. What we do know is that applicants rarely, if ever, apply for all EU member states and that the average life-time of a patent is closer to 12 years than to 20 years. The figure mentioned – if correct – is therefore unrealistic. SC/D 2/156 gives us some information about the fees for the UPP. According to that document the renewal fees for the 2nd to the 20th year (page 5/18) add up to €35.555. That is suspiciously close to the “around €35,500″ that Mr Battistelli mentions. But those are only the renewal fees, i.e. the costs for maintaining a European patent across the EU over 20 years. If the costs of translation, legal representation and the EPO’s procedural fees are added, the minimum cost of “applying for and maintaining” a unitary patent will be closer to €55,000.
The more fundamental question that Mr Battistelli carefully avoids is, however: should patents (unitary or other) be cheap, in particular taking into account that two-thirds of the European patent applications are not of European origin? Do we really want to risk flooding Europe with a mass of cheap, mostly non-European patents?
So, in short, Battistelli is either misguided (self-deluding) or lying.
Using the patent system as an instrument by which to defend the wealth of the already-wealthy (with the antidemocratic UPC coup) isn’t acceptable. It defeats the purpose of the patent system. Here we have MIP’s latest “progress report” for the UPC (as it there’s no chance of it being derailed like previous such efforts with different names). To quote MIP: “The UK parliament has approved legislation to implement the Unitary Patent Regulations and UPC Agreement in the UK. Parliament also needs to pass legislation implementing the agreed Protocol on Privileges and Immunities of the UPC before the UK can be fully ready to ratify. It not yet clear whether this will come before or after the EU referendum on June 23. Earlier this month, the UK IPO told Managing IP that the “referendum will have no effect on UK ratification”. Some will remain sceptical. Time will tell.”
“They’re making a complete mockery of democracy, much like the EPO which arrogantly views itself as being above the law.”The UK parliament never asked British people about this. They’re making a complete mockery of democracy, much like the EPO which arrogantly views itself as being above the law. Michael Loney, writing for MIP from New York, had this to say about Robin Jacob’s take on the UPC (which Brits never got told about or consulted about): “Sir Robin Jacob talks about his career in IP. When he started, “IP was asleep” around the world, then litigation took off. He adds that he believes the European Patent Convention is the best patent law in the world, and adds that there is a common law in Europe – but not common procedures. When parallel cases reach different conclusions in Europe, that is due to different evidence not different law, he says. [...] Asked to reflect on his career, Klaus Grabinski says the most interesting role is being a first instance judge. He agrees with Jacob that “material law” on patents is the same across Europe, and says the UPC will further that harmonisation…” (behind paywall)
The Bristows employee later added the following regarding Jacob:
“Sir Robin Jacob (UCL) was faced with the first question as to whether he would change anything about his career. Robin said no, that he was incredibly lucky, but noted that when he came to the bar, IP was a happy but quiet world. IP, he said was asleep, but he did not know why it was asleep especially as it was very much awake in the 19th Century. It woke up in England when an English judge started enforcing patents with the result that Americans, who were losing their patents in the US, started litigating in the UK. Hugh asked Sir Robin which patent law he considered to be the best patent law. Sir Robin said that the “European Patent Convention is the best written patent law in the world. It is clearly effective”. Hugh asked whether there was a difference between English patent law and European patent law. Sir Robin said there was not. English patent law is European patent law. Although the law is the same, it does not mean that judges of different national courts will apply the law the same. Often, he noted, a German and Dutch judge will likely apply the law similarly. The differences come when you look at procedural differences with the common law courts (UK) conducting a more intensive dive into the facts and evidence than the civil law courts (Dutch and German). Sir Robin commented that one area of IP law that no one has ever understood is trade mark law and particularly noted that smells should only ever be protected as a trade mark when consumers use their noses to walk around super markets to figure out what they are going to buy.”
Then comes the part about UPC:
“Justin Watts (Freshfields) was gifted with choosing who was the next judge to speak. He chose Judge Klaus Grabinski (Federal Supreme Court) who explained that being a first instance judge is far more fun than being a judge on the appellate court. This is because as a first instance judge you get to see how the case is being run on the front line and discover, like an inventor, the legal issues that need to be tackled. Echoing the comments from Sir Robin, Judge Grabinski stated the differences between European national courts are mostly procedural issues, not substantive. This could be seen, explained Judge Grabinski, at the judges symposium that is held every other year. The judges are split into groups by language to decide legal issues and often, the English and German groups would adopt more or less the same reasoning. The French groups would often come to a different result. Judge Grabinski considers that the German and UK courts are more harmonized as a direct result. The UPC will examine these differences in practice by virtue of the UPC procedural rules being a blend of common and civil law procedures. We will see what works and what does not work and whether there are issues that need to be harmonized further. Hugh asked whether or not the reputation of the first instance judge impacts how an appellate court deals views the first instance decision. He said no, that he did not have a blacklist of judges in mind. In the US, responded Hugh, it is sometimes better to have lost below and go up to the Court of Appeals on the basis of a decision from certain judges (ie. they are not well-respected so will be easier to overturn). ”
All the above wrongly assumes that UPC will become a reality, using overly optimistic projections of when it will happen (as if it’s a certainty that this will unavoidably happen and it’s just a matter of time).
Quite frankly, the UPC propaganda needs to stop and we urge all of our readers to put an end to it before it ever manages to leap beyond the gates like a Trojan bird catapulted by Battistelli and fellow barbarians. These are evidently a bunch of people drunk on power, wrongly assuming they’re above the law and also set the law (e.g. patent law a la UPC). In their own words… █
“The government is not trying to destroy Microsoft, it’s simply seeking to compel Microsoft to obey the law. It’s quite revealing that Mr. [Bill] Gates equates the two.”
–Government official
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Posted in Europe, Intellectual Monopoly, Patents at 7:40 am by Dr. Roy Schestowitz
Too much secrecy for a supposedly democratic society
Summary: A lot of back room activity (limited access conferences, secret contracts, shady deals) muddies the water when it comes to EUIPO (formerly OHIM), EPO, and WIPO
FOR quite some time now we have been hearing about the EPO‘s relation to EUIPO, which is more or less a new name for an existing entity. It is always important to ensure that such European entities adhere to and comply with European interests, or more generally the interests of ordinary people all around the world rather than massive corporations (usually foreign). Recall the time patents were used to monopolise cancer treatments in Europe, harming cancer patients. As it turns out, based on new reports (e.g. [1, 2]), GSK considers not keeping a monopoly (using patents) on certain cancer treatments, at least in poorer nations. This is the kind of news people want to hear.
“It is always important to ensure that such European entities adhere to and comply with European interests, or more generally the interests of ordinary people all around the world rather than massive corporations (usually foreign).”IP Kat, which recently celebrated its 10,000th blog post, takes a look at this new book about law design and patents in Europe — an interesting and dangerous cocktail or mix (to reuse Battistelli’s words). It’s not always clear whether design ripoffs can be prevented using trademarks, copyrights, patents, or some weird combination thereof. That’s where EUIPO comes into play. Responding to this new article about Fordham 2016 (an event we mentioned critically in English last night and in Spanish this morning), one person wrote: “The most important outcome of such a get-together is what is the consensus on how we should be pronouncing EUIPO” (as if the name is what matters and as if it’s to be determined in some closed echo chamber in New York, not even in Europe).
To quote IP Kat:
Dimitris Botis (Deputy Director of Legal Affairs at the newly named EUIPO) was next to discus the future of the EU trade mark system in particular the recent trade marks reform package consisting of Directive 2015/2436 and Regulation 2015/2424. The biggest change in substantive trade mark law is the deletion of the graphic representation requirement which means that it will be easier to register non-traditional marks. The exact impact of this change on filing practice and types of marks that can be accepted will not be seen until the implementing rules are issued on 1 October 2017. The second biggest change is to the functionality prohibition to “other characteristics”. There is now also an express requirement for clarity and precision in specifying the goods and services that are specified for the mark. It will be based on the “natural and usual meaning” of terms (i.e .interpreted literally). The new fee structure and levels with a new “one-fee-per-class” system is also a big change. There has been a moderate reduction of the application fee and substantial reduction of renewal fees. Dimitris also pointed out that there is also new EU Certification mark which can be registered to ensure the certification of the quality, material, mode of manufacture etc, but cannot be used in relation to geographical origin. Institutionally, there will be changes in terminology – hello EUIPO! But its not just changes in terminology, there is a change in management structure. The changes will be taking on a more political taste (the EU Commission has two seats now). The new Regulation also requires more cooperation between the Member States. Trevor Cook from Wilmer Hale said the change are really only technical in nature and do not generate a huge impact on substantive trade mark law. Dimitris agreed but the technical changes will ensure more efficient operation.
Here is what Michael Loney wrote for MIP in New York:
Two firsts for Fordham: Dimitris Botis’s debut and the first talk by someone from EUIPO (as OHIM was renamed on March 23). He summarises the changes in the EU trade mark package, on which there is a detailed session tomorrow afternoon.
He says the changes were “targeted amendments” to improve predictability and accessibility, and the most important is the abolition of the graphic representation requirement (effective October 1 2017).
Next up is Antony Taubman of WTO, who describes his logjam as “well-entrenched” with no work on the GI project for five years (for example). He’s here in New York to “harvest ideas” he adds.
Interesting to know, as noted above, that OHIM was officially renamed on March 23rd as it was barely advertised. Judging by the name alone, the IPO might one day become an umbrella organisation for the Patent Office/Organisation, assuming that “IP” is really what it is (just an umbrella term for copyrights, trademarks, patents, and maybe also trade secrets).
“Interesting to know, as noted above, that OHIM was officially renamed on March 23rd as it was barely advertised.”Some people inside the EPO are comparing Battistelli to Gurry (now best known for the WIPO scandals) and Campinos, who is rumoured to be a replacement for Battistelli and currently heads OHIM, aka EUIPO.
As one person chose to put it, “WIPO, OHIM, EPO: three of a kind?”
OHIM is probably an old name now, but here’s how the analogy goes:
On 24 February, a US congressional hearing took place on the accountability of WIPO. The Head of WIPO, Francis Gurry, stands accused of serious misconduct and of retaliation against
whistle-blowers, among whom is the chairman of the WIPO’s Staff Union, who was summarily dismissed a year and a half ago 1. The head of the third international property office, Mr Campinos, has thus far managed to stay out of the public eye. This may, however, be only a matter of time. We hear from staff at OHIM that he has a management style and disrespect for the rule of law that are very similar to those of Mr Battistelli. The three international IP offices have very different structures: the EPO is fully independent, WIPO is a UN agency and OHIM is an EU agency. They nevertheless seem to suffer from the same problems. How come? Maybe because the underlying causes are the same: a governing body that is almost entirely dependent on the head of the office for its information, lots of money and a lack of transparency that enables the head of the organisation to use that money to increase his personal influence, the whole topped up with immunity. Since the same causes tend to lead to the same effect, removing the responsible managers would not solve the problems. What is needed is a reform of the governance of these organisations, starting with more transparency and accountability – to the governing body and to the public.
Proper “transparency and accountability” — as the above put it — would at least inform the public about what the heck is going on at OHIM. There’s just way too much secrecy. In the EPO, for example, contracts of top management are a closely-guarded secret, as are contracts with private companies such as Microsoft and Gemalto. These aren’t public bodies. They act like private bodies [1, 2] which enjoy immunity from the law.
Expanding on the European Union IP Office (EUIPO), which makes it sound like part of the EU (unlike the EPO, which the EPC brought into existence):
Soon after Mr Battistelli took over, staff and the public were informed that bilateral agreements had been signed between the EPO and WIPO, and between the EPO and OHIM. It seems that the content of these agreements has never been made public. Glimpses can be found in other documents, e.g. CA/24/14 (points 51-57), for example, explains that the EPO will continue to
participate as an observer in OHIM bodies and working group meetings. As far as we know, OHIM also has an observer in the meetings of the Administrative Council of the EPO.
On a more permanent basis, Mr Telmo Vilela, a former co-worker of Mr Campinos in the Portuguese patent office, was hired by the EPO in DG5 but was transferred to the President’s office as soon as the opportunity arose. Furthermore according to CA/24/14 (point 57) IT co-operation between the EPO and OHIM is foreseen with the aim of “paving the way for the implementation of projects and activities based on harmonization and interoperability”. Mr Campinos is also Mr Battistelli’s favorite candidate for his succession as President of the EPO. A final bit of information: OHIM will change its name to European Union Intellectual Property Office (EUIPO) later this month.
It is worth noting that Battistelli had attempted to be head of WIPO before he became ruler of EPO. There is certainly a great degree of overlap here, some potentially implicating Željko Topić, VP4 at EPO. One thing that Topić’s SIPO has in common with the EPO and WIPO is staff suicides (usually dissenting voices).
There remains so much secrecy around these institutions (and extreme abuse against critics or people who ‘dare’ to explore the truth) that one must dig deeper and deeper. There’s certainly a lot of material these people are eager to hide (because they’re already hiding it, even when there's a deepening crisis). █
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Posted in America, Europe, IBM, Law, Microsoft, Patents at 6:25 am by Dr. Roy Schestowitz
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Publicado en America, Europe, IBM, Law, Microsoft, Patentes at 4:10 pm por el Dr. Roy Schestowitz
¿De Director de la USPTO a Cabildero por Maximálismo y Patentes de Software?
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Sumario: Reportajes de la Conferencia IP de Fordham sirven para mostra la siniestra parcialización que sirve sólo a los abogados de patentes y sus grandes clientes (como Microsof y IBM) pero también a las patentes de software (las que Microsoft y IBM han convertido ensu modelo de negocios ya que las ventas estan cayendo en picada)
LA Conferencia IP de Fordham (i.e. rellenada y/o empleada con abogados, no interes público, representantes) reciéntemente acabo y hubo material en ella relacionando a la EPO, la UPC, y patentes de software (que serán cubierto separadamente). A no ser que seas muy rico, no es posible para que tu atiendas y a menos que tu seas un maximálista de patentes, no tendrías una oportunidad de hablar allí, (sólo escuchar). Es una camara de eco, una reunión a puertas cerrads (casi), una conspiración o un grupo de interes (por ponerlo cortesmente). Es uno de varios de tales eventos (en grandes y sobrevaloradas ciudades) los cuales son esfuerzos para colectivamente moldear e influenciar leyes. Salidas/reportajes son como un poquito de ¨investigación¨ de grupos de interes. Voces disidentes no son permitidas, menos aún es permitido a los invitados hablar.
“Es uno de varios de tales eventos (en grandes y sobrevaloradas ciudades) los cuales son esfuerzos para colectivamente moldear e influenciar leyes.”Ahora mismo patentes de software en Europa son vaya cosa porque los Estados Unidos tales patentes están en retroceso, para disgusto de los abogados de patentes quienes se beneficiaron monetariamente de ellas (usualmente a costa de programadores como yo y millones de otros).
David Kappos, antiguamente de la USPTO y IBM (ahora cada vez más notoria por su agresión con patentes de software), esta actuándo como si el mismo estuviese arriba del dictámen de la Corte Suprema o como si SCOTUS estuviese equivocado (por sus propios intereses monetarios/personales). Uno debe recordar lo que Kappos hizo después de dejar la USPTO (ahora es una persona que está impulsando las patentes de software).
“David Kappos – no es un hincha de la decisión en sección 101 de la Corte Suprema,” dice la leyenda debajo de su cara. Cubrirémos los últimos desarrollos que pertenecen a la sección 101 en algun momento durante el fin de semana.
De acuerdo al perfil del evento, compuesto por un proponente de las patentes de software, Alice molesta a Kappos:
En términos de las decisiónes de la Corte Suprema, especialmente la decisión CLS versus Alice Bank, David dijo que es imposible hacer sentido de la Jurisprudencia de la Corte Suprema en sección 101. Tratándo de entender la sección 101, la PTO está atrapada por un set de decisiónes de la Corte Suprema que son incomprénsibles. Eso ha sido el arquitécto de la lucha real de la PTO para entender lo que es materia patentable.
El Juez O’Malley estuvo de acuerdo que es difícil de entender lo que es y noe es en términos de materia patentable, pero este desafío ha llevado a muchos más argumentos creativos de abogados quienes tratan de distinguir sus invenciones de la esfera de una situación CLS versus Alice Bank. Sir Robin intervino afirmando que en el mundo real la oficina de patentes no emite malos patentes – es inevitable Esto se debe a que es un proceso de examen unilateral llevada a cabo por un examinador que no se puede tener todo el estado de la técnica antes que él o ella y que es generalmente de escasos recursos. Esto se puede ver en Europa, donde una oposición tarda 10-15 años para decidir si una patente es válida. Se trata de un sistema que no funciona. La Ley de Estados Unidos inventa, Sir Robin, ve muy bien en comparación, ya que proporciona un más rápido, más eficiente régimen para hacer frente a la validez. También proporciona certeza, que es de enorme importancia.
David estuvo de acuerdo acerca de la inevitable de algunas patentes se concedieron indebidamente. En particular, esto es un problema cuando se le pide un examinador si una invención es abstracto – esa pregunta es totalmente subjetiva y, como se ha señalado Sir Robin, en una situación, por supuesto, patentes concedidas erróneamente serán inevitables.
Michael Loney, quién fue a Nueva York para cubrir este evento para MIP, escribió acerca del rol/papel de Kappos como sigue:
David Kappos quien, (como Hansen dice) todos saben, tiene 10 prióridades para quien sea el próximo president de los US:
Innovación = acción, progreso, liderázgo
US debe resumir su rol en el mundo como líder en innovación
El gobierno Federal guíara en campeonar y recompensar innovación
Gobierno necesita reconocer a los innovadores necesitán incentivos
El sistema de patentes es nuestro sistema para incentivar innovación – necesitamos un fuerte sistema de patentes
La Administración no debería alejarse del liderazgo en afinar el sistema de patentes, desde una posición de fuerza
Cortar abusos, pero con el punto de vista que los beneficios de patentes sobrepesan abusos ocasionales
El sistema de patentes debe tener precedencia en conflictos con otros sistemas de leyes especialmente la ley contra monopolios
Favoreceremos la creación de nuevas tecnologías y competición dinámica no protegiendo el estado de cosas (como las leyes antimonopolio lo hacen)
El sistema de patentes esta enmarcado en la constitución porque la innovación es acerca de lo que es lo próximo y no lo que es ahora.
El las Preguntas y Respuestas, dice que siente que la administración presente (Obama), en su segundo término, no ha sido apoyador de las patentes como fue antes o debería ser.
Sería mucho mas bonito si Kappos se mantuviera lejos de la política, no hable mamadas, y no contribuya a la impresión que los abogados de patentes y los agresores de patentes como IBM mueven la política a su favor, con ese dinero (billones de dólares) son pasados a sus bolsillos sin que ellos levanten un dedo y el resto de nosotros se joda. Ellos mismos desácreditan sus firmas y también desácreditan al sistema en su conjunto. No es mejor que lo que encontramos en ISDS. (e.g. en TTIP/TTP) o ACTA, pero hay menos cólera pública por que pocos miembros del público ‘grok’ las leyes de patentes. █
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Posted in Europe, Humour, Marketing, Patents at 6:16 am by Dr. Roy Schestowitz
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Publicado en Europe, Humor, Marketing, Patentes at 1:57 pm por el Dr. Roy Schestowitz
Sumario: Audi fragua una relación de 5-años de marketing y mutualmete-exclusivo contrato con la Oficina Europea de Patentes, prestando su nombre al altamente credible, respetable cuerpo internacional, donde la calidad es inquestionamblemente excepcional
APR 1 2016 [para immediata publicación bajo embargo hasta la fecha especificada] — MUNICH: Aprovechando el éxito de Volkswagen, FTI Consulting, la empresa de relaciones públicas de la EPO, ha anunciado con bombos y platillos el lanzamiento sin precedentes de una nueva campaña publicitaria de 5 años con el fin de mejorar la imagen ya perfecta y eternamente-inmaculada de la OEP. “Conduce tu Audi Home” es el título de esta emocionante campaña, que tendrá como objetivo las audiencias de televisión en los Países Bajos y Alemania. Con el lema memorable “usted es el jefe de” FTI Consulting espera que los clientes valoran un rápido crecimiento tanto moral y la confianzaa.
“Nuestras relaciones son excelentes.”
–Alto Oficial de la EPOEsta campaña de marketing es parte de una campaña en curso, que se extenderá a más países a través de Europa en su debido momento, dependiendo de la demanda de medios y de la percepción del mercado de productos finos de la OEP. Se esfuerza por tomar ventaja de la pobre demanda de vehículos de Volkswagen, que a pesar de figuras fantásticas y bajas emisiones (según lo confirmado por la Revista Internacional del Automóvil, IAM) no ha logrado establecer un lugar para sí en cualquier lugar fuera de Alemania.
En una declaración preparada, dijo un no-nombrado oficial de la EPO, ¨la nueva campaña llena un vacío y mejorará la imagen de la EPO.¨Comentando en el meollo del lema, el oficial explicó: ¨Nunca ha habido mejor tiempo para comprar un Audi. Nuestras relaciones son excelentes. Nuestra productividad esta más arriba que cualquier momento. Puedes manejar tu Audi como un jefe a cualquier lugar de Europa, tan lejos como Francia al Oeste y Croacia al Este.¨ █
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