01.07.17
Posted in America, Deception, Patents at 5:03 pm by Dr. Roy Schestowitz
Nostalgic and picky/selective (as always and forever) with ‘facts’, ignoring what’s inconvenient
Summary: Firms that are profiting from patents (without actually producing or inventing anything) want us to obsess over and think about the rare and few cases (some very old) where judges deny Alice and honour patents on software
SOFTWARE patents are a dying breed and thus a dying business for patent law firms. They know it, hence they’re angry and vindicative. Some of them even attack judges (the messengers). These patents keep dying both inside and outside the courtroom (e.g. PTAB) in the US, in spite of some USPTO examiners granting them, probably in an effort to inflate some numbers.
According to this patent attorney, “VA Dist. Ct. Killed 8 Wireless Patents under Alice/101: http://assets.law360news.com/0878000/878025/https-ecf-vaed-uscourts-gov-doc1-18917727618.pdf” (deemed abstract and thus ineligible).
We have not seen a single article about this case. None!
What we are seeing, on the other hand, is patent law firms’ sites romanticising/bringing up old cases, like this quick mention of McRO behind a paywall. To quote:
The full Federal Circuit has denied a bid by Electronic Arts and other gaming companies to rehear its September decision that found McRO Inc. software patents for lip-sync animation technology patent-eligible under Alice, according to an order issued by the appeals court Friday.
In other words, nothing is changing. But again, this is one among perhaps four (just 4!) decisions in the whole year when the Court of Appeals for the Federal Circuit (CAFC) ruled not to invalidate a software patent. What about all the rest? What about all those patents (hundreds if not thousands) that PTAB and the courts invalidated? Shouldn’t the patent microcosm inform clients (and potential clients) of the reality?
Mishcon de Reya, the nasty and malicious firm that the EPO hired to spy on/silence Techrights, has just been quoted in relation to the same CAFC case, courtesy of a relatively new site:
Bandai Namco Games America has been denied an en banc rehearing in its cornerstone software patent case against McRO.
All regular active judges for the US Court of Appeals for the Federal Circuit heard the petition and issued their response at the end of 2016.
Mark Raskin, partner at Mishcon de Reya, who is serving as trial counsel in the case, said: “We’re very excited that the entire Federal Circuit has recognised the technical innovations of our client’s inventions and the California cases will now proceed, hopefully expeditiously.”
The McRO case drew a lot of attention with its interpretation of the landmark Alice v CLS Bank decision.
As we noted before, Mishcon de Reya also works for Microsoft and the EPO. It’s hardly surprising that the firm advocates software patents. Another legal firm — one that the EPO hired to threaten Techrights — promotes the UPC.
There is another new article from a law firms’ platform, covering the Amdocs case (also at CAFC) as follows:
An interesting case came out of the Federal Circuit in Amdocs (Israel) Limited v. Openet Telecom, Inc., No. 2015-1180, 2016 WL 6440387 (Fed. Cir. Nov. 1, 2016) in which the Court reversed the district court’s granting of Openet’s motion for judgment on the pleadings on the basis that the patents were not directed to patent eligible subject matter under § 101. This is significant not for the result but for how the Court arrived at its conclusion. The majority and dissenting opinions offer several important insights: (1) the Court is struggling to find the proper “decisional mechanism” for deciding whether a software patent is directed to patent ineligible subject matter; (2) members of the Court continue to suggest borrowing from other sections of the Patent Act to analyze Section 101; and (3) claim construction can be very effective at staving off dismissal based on patent eligibility.
This ‘news’ is more than two months old. Why aren’t these legal firms covering some of the latest? Probably because it’s not convenient for them. It’s not good for their business. █
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Posted in Deception, Europe, Patents at 4:14 pm by Dr. Roy Schestowitz
The EPO‘s Battistelli has lost his main UPC ally in the UK, Lucy Neville-Rolfe
Summary: The issues associated with the UPC, especially in light of ongoing negotiations of Britain’s exit from the EU, remain too big a barrier to any implementation this year (and probably future years too)
THE UPC was a big topic, more so towards the end of last year, especially because of Lucy’s ludicrous statement about it and then her resignation/firing, culminating in yet more uncertainty and a limbo. SUEPO correctly (if not belatedly) took note of top posts in the patent microcosm’s sites. On IAM it wrote: “IAM blog’s top 20 most-read stories of 2016 (IAM Magazine, 22 December 2016). EPO info can be found at reference points 9, 11, 15 and 16.”
“A lot of the above articles are actually not about the EPO directly but about the UPC, which Battistelli keeps promoting.”On Kluwer Patent Blog (Team UPC) SUEPO wrote: “Brexit and EPO unrest in top ten of most popular posts Kluwer Patent Blog in 2016 (Kluwer Patent Blog, 01 January 2017). EPO info can be found at reference points 1, 3, 5, 7 and 10.”
As we noted here a couple of days ago, IP Watch too shared some statistics and noted that articles about the EPO topped their list. A lot of the above articles are actually not about the EPO directly but about the UPC, which Battistelli keeps promoting. Battistelli lies a lot about the UPC. According to what he told the media in 2015 (his so-called ‘media partners’ even printed these lies), the EPO was in great shape and UPC would have been a done deal and ready to roll last year. We recently wrote the following series which explains why, as long as the UK intends to leave the EU, the UPC is basically stuck or deadlocked. Brexit and UPC are inherently incompatible. Revisit the following:
Towards the end of this series we quoted Dr. Luke McDonagh (University of London’s Law School) quite a lot. He is a UPC sceptic in the sense that he does not believe it can happen and next month he will speak about it, debating with/against the patent microcosm. [via]
“Brexit and UPC are inherently incompatible.”McDonagh is not a patent attorney and he is definitely not part of the patent microcosm, so his input on this subject has been refreshing and valuable. We look forward to his talk and maybe even reports about it (probably not only to be covered by the patent microcosm’s sites). From the description of this event: “At this event Dr Luke McDonagh of The City Law School will launch his new book ‘European Patent Litigation in the Shadow of the Unified Patent Court’ (Edward Elgar, 2016) with a panel discussion on the impact of Brexit on patent litigation in the UK and elsewhere in Europe, with a particular focus on the forthcoming Unified Patent Court and future relations between the UK and EU.”
The book’s description can be found here (first chapter free, as mentioned here before) and to quote from the outline: “Making use of evidence from within the business and legal communities, this book highlights the key issues concerning the new system and examines what the impact of the reforms is likely to be on Europe’s patent litigation system in the near future.”
In its current form, the UPC is in impasse/deadlock. It won’t become a reality unless something quite radical happens. █
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01.06.17
Posted in Asia, Patents at 7:27 am by Dr. Roy Schestowitz
Delhi Gate at night
Summary: India’s resilience in the face of incredible pressure to allow software patents is essential for the success of India’s growing software industry and more effort is needed to thwart corporate colonisation through patents in India itself
IT HAS BEEN a while since we last wrote about software patents in India. The subject is growingly important because a lot of the world’s software is nowadays being crafted in India, much in the same way that a lot of hardware is made in China.
According to today’s news, “India’s patent office has rejected an application by German telecom major T-Mobile International AG seeking a patent for an invention related to a method for optimising the operational times and cell exchange performances of mobile terminals.”
“Currently, India has a patent system that mostly helps foreign companies cement/impose their monopoly on a vast population.”“The rejection of T-Mobile’s patent is the latest in the growing number of software patents,” says the article. For nearly a decade now we have been showing how large multinational corporations such as BT, IBM, Microsoft and others have been pushing India (sometimes even shaming India) into the trap which is software patents. They are habitually helped by their patent lawyers in India, who gleefully join the lobbying efforts. These lawyers bamboozle fellow Indians on behalf of large corporations that pay their lawyers a lot of money. We urge Indians to reject and resist these terrible attempts to hobble India’s thriving software industry. Even some large Indian companies (such as Infosys) have already changed their mind.
Currently, India has a patent system that mostly helps foreign companies cement/impose their monopoly on a vast population. This has been accomplished in many disciplines except software and it would be wise for India to keep it that way. A further improvement would be to reassess patentability in other domains, such as those that impact generic medicine (India already done exceptionally well in this domain). Here is a new report from the Times of India that says “[a]round 80% of the more-than 43,000 domestic product and process patents have been secured by foreign entities – many of them global technology giants like Qualcomm, Samsung and Philips.”
“We urge Indians to reject and resist these terrible attempts to hobble India’s thriving software industry.”Notice Qualcomm in there. It is a highly abusive company whose patent practices are so cruel and notorious worldwide. Consider this new article from CCIA‘s Matt Levy. Read the second paragraph to see how Qualcomm — like Microsoft — is basically corrupting academia (showered with money in exchange for bias) in an effort to thwart saner patent policy:
If you’ve followed the patent reform debate, you’re probably familiar with Qualcomm. Qualcomm has literally spent millions opposing reform, including around $6 million lobbying in the first 3 quarters of 2016, millions on television and print ads, a lot of money given to law schools to fund sympathetic research, and on and on. It’s hard to blame the company, given that Qualcomm’s licensing segment netted about $6.5 billion in profit in fiscal year 2016. You can find that information, and more, in Qualcomm’s 10-K for 2016.
India would be wise to shape its patent law not based on what companies like Qualcomm and their patent law firms (can be Indian) are saying. India should listen to its engineers, programmers, etc. Too many times we find articles on the subject which are composed by lobbyists, large corporate executives, or law firm that strive to embellish their financial bottom line. Today in the Irish press there is this article about “start-ups” (i.e. small companies) which advises them — among other things — to pursue patents. It’s a waste of money; there are other things they should be doing with their money (limited budget) because unless a small company is merely a patent troll it will never manage to make much of these patents. They’re just worthless ‘trophies’, overshadowed by massive patent ‘warchests’/’arsenals’ like IBM’s or Microsoft’s. Counterattacks in the lawsuit sense mean that they’ll never become David in the David versus Goliath sense. They’ll go broke trying to become David. The article from the Irish Times mostly quotes “Fergal Brady [...] an examiner in the Irish Patents Office [who] says his role is to settle the issues of “What are you describing? Is it clear? Has it been done before?” when it comes to patent applications.”
“India would be wise to shape its patent law not based on what companies like Qualcomm and their patent law firms (can be Indian) are saying”Patent examiners are not the “bad guys” (or girls). They are just trying to make a living by scrutinising patent applications. However, at the EPO and at the USPTO, immense pressure has been put on examiners to make decisions too quickly, rendering them totally incapable of doing their job properly. To make matters worse, they are sometimes offered incentives to do their job leniently, either granting in error or rejecting applications in error, settling for low patent quality or diverting all the financial damage to courtrooms (externality). █
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01.05.17
Posted in America, Deception, Law, Patents at 6:19 pm by Dr. Roy Schestowitz
Producing nothing, insulting everybody
Summary: A look at some of the latest spin and the latest shaming courtesy of the patent microcosm, which behaves so poorly that one has to wonder if its objective is to alienate everyone
THE patent reform in the US (AIA, especially after Alice) brought us the blessing known as PTAB, which is responsible for the immediate and permanent elimination of many software patents and the reduction in litigation. It lowered confidence in even more of these software patents (potentially hundreds of thousands of patents).
“”Idiotic”, “impotence”… what next? Will Watchtroll accuse judges and PTAB of rape and pedophilia too?”PTAB continues to scare people who made a living from software patents (not software, just patents). With his habitual insults directed at PTAB, Gene Quinn (Watchtroll) continues to fling criticisms at PTAB, bemoaning the latest decision which he summarises with the word “idiotic” in the image (and IBM’s patent chief actually boosts these people, who also attack judges! See the image at the top!).
“Idiotic”, “impotence”… what next? Will Watchtroll accuse judges and PTAB of rape and pedophilia too? Frankly, these people are a lot more rude than anything we have ever seen and some of those people actually advertise themselves as professionals. “If a machine is patent ineligible bc it is an abstract idea,” Watchtroll wrote in Twitter, “no point in keeping powder dry. The 101 fight is now.”
He wants a “fight”.
“Telling Watchtroll about software development is an exercise in futility; he doesn’t even know how software works.”Well, the Section 101 fight is over. The patent microcosm lost. Most software patents are dying and this is good because, as Benjamin Henrion put it in his reply, “patents also destroyed software development.”
Telling Watchtroll about software development is an exercise in futility; he doesn’t even know how software works. I debated this in length with him and then he chickened out, blocking me in Twitter.
Watchtroll (a front for the patent microcosm, not just one person) is now lobbying Trump to makes Patent Chaos Again (as expected, with lots more of this lobbying to come).
“These have included enabling the PTO to attack patent validity in a second window,” says the article, “attacking classes of inventions such as software and medical diagnostics…”
“PTAB is a lot more professional because these financial incentives hardly exist, which makes their staff more objective.”Nobody is “attacking” and there is no “fight”. As we pointed out here before, the attorney known as Patent Buddy uses words like “survive”, “kill” etc. rather than use terms that don’t pertain to war. The people actually call PTAB a “death squad!” Picture that for a connotation.
Here is Patent Buddy saying about the above case: “In the MRI-101 Invalidation Decision, the PTAB Reversed the Examiner finding eligibility under 103, but not 101.”
Examiners at USPTO have historically been rewarded to just award lots of patents, irrespective of quality or prior art (which can take a long time to assemble and study). PTAB is a lot more professional because these financial incentives hardly exist, which makes their staff more objective.
Earlier this week we found this lawyers’ site claiming that “[t]he tide may be turning in the Section 101 landscape and it is making waves in the patent practice area.” No, it’s not. The patent microcosm lives in wonderland and only pays attention to a few CAFC decisions that suit their agenda. The article says that CAFC’s “latest rulings on the issue—Enfish v. Microsoft Corp., BASCOM Global Internet Services v. AT&T Mobility, and McRO v. Bandai Namco Games America—possibly signal a new direction for patent eligibility in a post-Alice era. On the damages front, the U.S. Supreme Court grabbed headlines with its highly anticipated ruling in Samsung Electronics v. Apple, the first design patent case to be examined by the Court in over a century. Our panel of experts discussed these issues as well as patent trends on the horizon in 2017.”
“There’s no “win”, it’s not a game. It’s also not a “war” or a “fight”.”We actually debunked this just recently (December 27th), in relation to similar claims about CAFC cases. Less than a handful of cases (less than one hand’s fingers) don’t change years of patent invalidations, including by Judge Mayer, whom Watchtroll is insulting (see above again).
CAFC is soon going to decide whether challenging low-quality USPTO patents (through PTAB) is acceptable, says MIP, noting about a particular case that CAFC “has granted en banc rehearing in Wi-Fi One v Broadcom. The court will consider whether judicial review is available for a patent owner to challenge the USPTO’s determination that the petitioner satisfied the timeliness requirement governing the filing of IPR petitions” (these are the petitions that typically initiate invalidation by PTAB).
Regarding this new article from lawyers’ media, one person wrote, “CAFC vs. PTAB decision discrepancies: Who wins?”
There’s no “win”, it’s not a game. It’s also not a “war” or a “fight”. In fact, most of the time CAFC agrees with PTAB, so the framing of infighting is simply incorrect and inappropriate. To quote the actual article:
Apple Inc. has won at least a moral victory in a fight with the U.S. Patent and Trademark Office over touchscreen technology.
The U.S. Court of Appeals for the Federal Circuit agreed with Apple on Tuesday that the patent office failed to sufficiently explain why Apple’s method for reconfiguring touchscreen icons is unpatentable due to obviousness.
Apple applied for a patent in 2009 on its method of using a sustained touch to activate an icon, which then allows a person to drag the icon to a new location on the screen. A patent examiner found the claim obvious in light of separate prior inventions on sustained touch and dragging. Combining the two inventions “would be an intuitive way” to rearrange touchscreen icons, the examiner concluded and the Patent Trial and Appeal Board affirmed.
This is just one of those exceptions where the CAFC does not fully agree with PTAB and wants the judgment reassessed.
The bottom line is, things are progressing in a positive direction as the US patent system persists in improving patent quality. It’s well overdue. Here we have a new case which “focuses primarily on §101 issues.”
“The bottom line is, things are progressing in a positive direction as the US patent system persists in improving patent quality.”To quote: “The oral argument of the week is MACROPOINT, LLC v. FOURKITES, INC., No. 2016-1286 (Fed. Cir. Dec. 8, 2016) decided by a Rule 36 judgment.”
Those who claim that Section 101 is losing its potency or that CAFC is at war with PTAB or anything like that are being extremely dishonest and typically — if not always — they are the ones directly profiting from these misconceptions/distortions.
Watchtroll and its ilk need to go away or not be taken seriously. Time after time we have demonstrated that the site’s purpose is to attack those who don’t agree (even judges!) and sometimes to organise 'echo chamber' events so as/in which to lobby officials.
Watchtroll is to the patent world what Trump is to civilised politics. █
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Posted in America, Australia, Europe, Patents at 5:27 pm by Dr. Roy Schestowitz
Reference: Loose Patent Scope Becoming a Publicity Nightmare for the EPO and Battistelli Does a China Outreach (Worst/Most Notorious on Patent Quality)
Summary: In defiance of common sense and everything that public officials or academics keep saying (European, Australian, American), China’s SIPO and Europe’s EPO want us to believe that when it comes to patents it’s “the more, the merrier”
RECENTLY, Australia’s Productivity Commission reiterated its opposition to software patents (as before), only to face protests from the patent microcosm (also as before). The report came out so close to Christmas that not many people covered it. During the holiday TechDirt wrote that:
Back in May we were both surprised and delighted by a thorough and detailed report from the Australian Productivity Commission noting that copyright was broken and harming the public, and that it needed to be fixed — with a core focus on adding fair use (which does not exist in Australia). It similarly found major problems with the patent system. It was a pretty amazing document, full of careful, detailed analysis of the problems of both the copyright and patent systems — the kinds of things we discuss all the time around here.
TechDirt focused on copyright aspects of the output from Australia’s Productivity Commission. We already wrote about half a dozen posts about the patent aspects of the Productivity Commission’s report (May and December). The bottom line is, the Productivity Commission basically bemoans both copyright maximalism* and patent maximalism; it specifically chastises software patents. These are seen as detrimental to Australia (rightly so!).
“The bottom line is, the Productivity Commission basically bemoans both copyright maximalism and patent maximalism; it specifically chastises software patents”Look at China for a cautionary tale. It’s quickly becoming a terrible place for inventors and producers to be in. “Patent inventorship has been disputed in several recent cases in China. Wenhui Zhang reviews four court decisions that provide lessons for inventors,” MIP writes. China’s patent office, SIPO, has become the dumpster of rejected patents — the place where one is guaranteed little scrutiny and lots of cheap patents (expensive in a court where the lawyers can make a killing). The EPO is going down the same route under Battistelli, although this transition is a gradual one.
“Right now it’s risky to even look at successful applications because that leads to higher liability/damages in case of infringement.”In a later post we are going to show just how quickly patent trolls are emerging in China as a result of SIPO’s policies. It’s quite incredible, especially in light of the death of patent trolls in the US (due to patent scope restrictions, among other restrictions).
Remember how the patent system was originally, as per the history books, conceived as a way to reward inventors and for publication of inventions? Not anymore. Right now it’s risky to even look at successful applications because that leads to higher liability/damages in case of infringement. And watch what MIP is currently saying about PCT. “For many patent applicants,” it says, “the primary value of the PCT is as a delaying tactic.”
Great for productivity, eh? Not.
“As a reminder, China is now (officially!) perfectly okay even with patents on software and business methods.”“With prosecution costs being a significant contributor to the total price of obtaining patent protection,” MIP says, “applicants are well advised to make strategic decisions early on in the application process to limit costs further down the line. International (PCT) applications are known by many applicants and IP professionals as a convenient delaying tactic when considering jurisdictions in which to file applications following a first filing.”
More than half a decade ago we wrote many articles about the dangerous vision of a global (or globalised) patent system and what it would entail. Now, imagine those million plus patent applications in China (obviously low quality patents) being pointed at every single country/company in the world. As a reminder, China is now (officially!) perfectly okay even with patents on software and business methods. █
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* The misguided idea that copyright scope, rigidness, lifetime etc. should be maximal if not infinite. This tends to promote centralisation of power/ownership, monopolisation, and harm to culture, curation, preservation, free expression, etc.
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Posted in Europe, Patents at 4:57 pm by Dr. Roy Schestowitz
Applications that belong in the wastebasket are approved to become European Patents
Summary: The problem associated with Battistelli’s strategy of increasing so-called ‘production’ by granting in haste everything on the shelf is quickly being grasped by patent professionals (outside EPO), not just patent examiners (inside EPO)
THE scandals at the EPO have not been abated, but we took a couple of days off and thus weren’t able to cover these.
The European Patent Convention (EPC), as it was put together with a vision almost half a century ago, has been thoroughly compromised. Respect for the EPC came to an end under Battistelli, who treats the EPC like Donald Trump treats the Constitution. Don’t fall for this latest spin from Battistelli’s PR department. Battistelli, a crooked boss with the temper of Donald Trump and the facial expression of Arsène Wenger, has managed to alienate just about any member of staff. He has also alienated patent attorneys and applicants. He’s now living on borrowed time and the longer he stays, the greater damage he causes.
Recently, the EPO’s legal professionals were publicly admitting the mistake of granting patents on things that European authorities explicitly and repeatedly oppose. The EPO belatedly realised that granting patents on life makes everyone angry, including many examiners. George Lucas from Marks & Clerk wrote about it today and another article on this subject was cross-posted in at least three sites of patent lawyers [1, 2, 3]. To quote the key part: “While the U.S. is still sorting out “natural products” jurisprudence under 35 USC § 101, the European Patent Office (EPO) is wrestling with the patentability of plants and animals, and has announced an immediate stay on all patent examination and opposition proceedings in which the outcome “depends entirely on the patentability of a plant or animal obtained by an essentially biological process.” The stay was prompted by a recent Notice from the European Commission (EC) concerning Directive 98/44/EC on the legal protection of biotechnological inventions. In the Notice, the EC concluded that plants or animals derived from essentially biological processes are not patentable under the Directive. Until the EPO provides further guidance on this issue, applicants should exercise additional care in drafting the description and claims for inventions related to plants and animals.”
Yes, now they pay the price for an awful decision made years ago by the EPO.
In the US there are similarly controversial decisions about patents on nature/medicine (Merck). IP Kat has this new article today about “patents covering… claim the use of this dosage regime.” Citing the FDA, IP Watch wrote:
Biotherapeutic medicines are made out of living organisms and cannot be replicated. No generic medicines, which are exact copies of the reference product, can be made. The generic equivalent of a biotherapeutic would be biosimilars, which are highly similar products. The United States Food and Drug Administration has issued a guide to help producers to prove how close their biosimilars are to the biotherapeutics.
Typically the Boards of Appeal (probably the Enlarged one) would weigh in and make sense of it, but Battistelli’s EPO is marginalising these people. Quality control is a nuisance to one who reduces patent quality in order to reach misguided goals. See “EPO Enlarged Board Of Appeal Finds The Cure For Poisonous Divisionals”, published this week in a couple of sites for lawyers.
Citing this paper from 2015, “Comment on Enhancing Patent Quality”, someone from the EPO sphere urged us to consider the importance of patent quality. Brian J. Love from the Santa Clara University School of Law wrote in his abstract: “This Comment responds to the U.S. Patent and Trademark Office’s Request for Comments on Enhancing Patent Quality, published February 5, 2015. It proceeds in two parts. First, I share two general observations about the PTO’s current slate of New Quality Proposals: specifically, it fails to include any reforms that apply post-issue or any reforms that exercise the PTO’s fee-setting authority. Second, building on these observations and two recent empirical studies of mine, I outline two proposals that I urge the PTO to consider: specifically, an increase in maintenance fees and a decrease in fees for post-issue administrative challenges.”
We don’t expect the EPO to learn from the mistakes made by the USPTO in the past (things are improving now). In fact, things keep getting worse as Battistelli drives away a lot of staff and still expects double-digit growth (percent-wise) in the coming (current) year, as measured by the number of patents (or “products”) dealt with.
Kluwer Patent Blog, typically a mouthpiece for the UPC if not the EPO as well, is obviously aware of the EPO crisis because this year’s leading posts, as judged by number of readers, is topped by EPO (specifically the scandals) and UPC. A reader of ours “found this highly interesting post” which resembles what happened in IAM, as mentioned at the time (before Christmas) and to a lesser degree IP Watch.
It sure looks like concern about the direction the EPO has taken, also on purely technical grounds (not labour law but patent quality), is growing. Readers who didn’t read Techrights during the holiday may wish to revisit the leaked letter to Quality Support (DQS) at the European Patent Office. Now compare this to this latest puff piece from today. It says: “Complaints to the European Patent Office (EPO) are dealt with by a central EPO department known as Directorate Quality Support (DQS), which is also solely responsible for drafting and sending the official EPO response to the complainant. The default position is that both the original complaint and the reply thereto issued by DQS on behalf of the EPO are not made public, but rather are kept in the non-public part of the file to which the complaint pertains. This default position was apparently established by a decision of the President of the EPO in 2007. On the face of it, this would not appear to be a particularly contentious position, and is possibly justified given that complaints could be prejudicial to the legitimate personal or economic interests of third parties. Presumably the EPO would rather not place itself in a position of being a public outlet for any such potentially prejudicial remarks.”
As we showed here during the holiday, Directorate Quality Support (DQS) has itself become a shameful failure and utter mess. Applicants who receive such terrible service even resort to complaining to politicians, only to discover that the EPO is immune to prosecution. █
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01.03.17
Posted in Finance, Free/Libre Software, IBM, Patents at 11:22 am by Dr. Roy Schestowitz
Those who have mastered monopolisation, not sharing, cannot be expected to behave as trusted partners
Part of the duopoly (with Visa)
Summary: Free/Open Source software in the currency and trading world promised to emancipate us from the yoke of banking conglomerates, but a gold rush for software patents threatens to jeopardise any meaningful change or progress
ANY company that built its presence/niche/empire on proprietary software sooner or later finds out that it is not sufficient in the face of competition that is based on sharing. Proprietary software is unable to compete with Free/Open Source software. Apple’s patent war on Android (Linux and Open Source), for example, is not new. We used to write a lot about it when it started (Apple v HTC) and Apple is gradually losing more and more of its battles (the higher up they do, the lesser the success rate, as the latest Supreme Court decision served to show — a decision to be discussed tomorrow). Even so-called ‘friends’ of GNU/Linux, Amazon for instance, are pursuing loads of software patents that are occasionally being used.
At the end of last year we gave new examples of software patents being used against Free/Open Source software in finance — the very topic which got this site started in the first place. Worrying about the same type of issues (the attack on Bitcoin/Blockchain [1, 2, 3]), yet another site wrote about it just before the year ended. To quote:
Creating a ‘Blockchain Industry:’ Patenting the Blockchain
Patent filings for blockchain technology have more than tripled since 2014; this spike includes patents filed by cryptocurrency exchanges such as Coinbase, payment processors like Mastercard, and banks like Goldman Sachs and the Bank of America.
According to a report conducted by law firm Reed Smith, the most popular areas for these patent applications are payment systems: both for traditional forms of money and for systems that will be used to trade cryptocurrencies or digital tokens. Mastercard, by way of example, recently filed four blockchain patents for separate steps along authenticating a transaction on the blockchain.
Given the behaviour of IBM as of late and its ambitions in this space (not to mention clients such as Goldman Sachs), it wouldn’t shock us if Big Blue too became not just a participant in the patent gold rush but also a serial patent bully (recall TurboHercules v IBM). This isn’t a wish but a growing concern; all that patent hoarding, as noted in a variety of Bitcoin-themed news site, will likely culminate in some legal wars and out-of-court settlements, leaving the same old oligopolies in tact. That’s just protectionism, not innovation. These patents are not trophies to them; they intend to use them one way or another (they’ll probably claim “defensively”). █
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Posted in America, Asia, Europe, Patents at 10:45 am by Dr. Roy Schestowitz
EPs are becoming ever more useless (hence a waste of money) under Battistelli
Summary: To nobody’s surprise, the past half a decade saw accelerating demise in quality of European Patents (EPs) and it is the fault of Battistelli’s notorious policies
THE overpaid ‘king’ of the EPO (who keeps the salary he is giving to himself secret, like in a third world country) keeps rewarding himself and his protectors for leading the Office in a self-destructive path — a lethal trajectory that would leave nobody but them (the top-level management) well off financially. The have the economic tenacity of oligarchs that prey on states for profit. They need to be stopped before it’s too late (if it’s not too late already, as redundancies loom over the horizon).
Earlier this afternoon an article from Heise’s Christian Kirsch was published in German. An automated translation of the article tells us it’s much of the old stuff, i.e. not much new information. “Proceedings before the ILO may take up to ten years,” explains Kirsch and also “there are different opinions between the employees and Battistelli about the “improvement in productivity” that he has advanced in the EPO.” To quote the automated and unedited translation: “Visible the first time in 2011. At that time, were the President suggested that the employees from the surplus of the Office a bonus of 4,000 euros net pay. On the other hand, the employees’ representatives expressed their opinion: such a bonus signals that the goal is above all to grant many patents and consequently to generate a high fee. It is, however, essential to examine the applications thoroughly and to maintain the high standard of the EPO in the granting of patents.”
IP Kat‘s debunking of patent quality claims is cited also. To quote: “Auditors and patent attorneys, however, are skeptical about what Battistelli’s “productivity increase” is about, which should have amounted to about 14 percent in 2015. To interpret the figures according to the British Blogs IPKat considers out that the Office has resorted to “cherry-picking”…”
A lot of the rest deals with the spineless [cref 96056& chinchillas] of the Administrative Council, the attack on the independence of the appeal boards, attacks on SUEPO, and at the very end Brexit’s effect on the UPC (the automated translation there is too mangled to be comprehensible).
Looking across the Atlantic at the USPTO, things appear to have meanwhile improved. As Patently-O said after the new year had begun, patents continue to be challenged by PTAB, which is sort of an equivalent of the appeal boards in the EPO (though not exactly similar). One new article says about claims of temporal separation between two communications in a patent that a court stepped in and:
On remand, the PTAB will decide whether the prior art the claim elements as they are more narrowly defined.
Remember that PTAB did not even exist more than half a decade ago!
Battistelli’s vision of the EPO is akin to that of a registration office with minimal appeal opportunities. Because hey, who needs justice anyway? It’s not as though today’s EPO cares about justice. Not even of its own employees…
Another new article of Patently-O says:
The Supreme Court has in recent years routinely rejected the Federal Circuit’s rigid, cabined interpretations of the Patent Act. While no one knows what the future holds, today’s practitioner’s conduct may be judged by a more stringent standard than suggested in Therasense and proposed here. That has happened with eligibility, obviously. Given that the Supreme Court could hold that the Patent Act requires more than avoiding intentionally obtaining a patent that you know you shouldn’t get, and given that that interpretation will likely be applied to all issued patents, and given the USPTO’s statement that it hopes that the new definition will result in less disclosure, one can see a trap for the unwary practitioner. This may give practitioners a false sense of security.
By “practitioners” he means the patent microcosm, or the bunch of people who profit from patent maximalism without actually producing anything (other than paperwork).
And speaking of patent scope, today IAM correctly points out that China has become the land of patent chaos. Patent quality barely exists there and Battistelli seems to be emulating that. He wants a production/assembly line, not a patent office. It’s far too easy to just grant a patent on every piece of garbage and figment of imagination; it’s a lot harder to come up with real inventions and ensure that these — and these alone — get granted a patent, making a European Patent (EP) synonymous with somewhat of a trophy. Here is what IAM (patent maximalists) wrote:
Pro-plaintiff China – Not only does China handle more patent applications than anywhere else on earth, as well as more patent suits, but it is now also becoming one of the world’s most patent-friendly jurisdictions. This was a trend that accelerated during 2016, when it emerged that the Beijing IP court – one of three established in the country in 2014 (the others being in Shanghai and Guangzhou) – had handed foreign rights owners a 100% win rate in its first full year of operation. What’s more, unlike their counterparts in the US, the Chinese courts are willing and able to hand out injunctions, as the likes of Samsung and Apple discovered last year. Not everything in China’s patent garden is rosy – damages are low (though getting higher), enforcement of court decisions is often a problem and there are issues around protectionism – but for a country that has no strong patent tradition, China has come a long way very fast. And with manufacturing jobs moving to lower cost countries, the government’s push for an economy built on innovation is only likely to reinforce this trend. Perhaps the most significant confirmation of what is happening came at the end of the year when it was announced that Qualcomm had settled a high-stakes patent dispute with mobile manufacturer Meizu. This was an American company that had taken action against a flag-waving local business and, in the end, the latter concluded it could not win. That says a lot.
Speaking of China, Tian Lu reviews a book of Qiao Yongzhong. “Many experts in China, including Dr. Qiao,” Lu explains, “feel no smugness with the huge patent filing numbers.”
It’s just a big heap of garbage. The EPO seems to be heading in the same direction, unlike the USPTO, owing in part to SCOTUS with the above-mentioned rulings.
For Europe to be competitive we must ensure that European authorities recognise the colossal damage Battistelli is causing and belatedly step in. █
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