02.07.16

SIPO (China’s Patent Office) Taken Over by Patent Maximalists

Posted in America, Asia, Patents at 2:20 pm by Dr. Roy Schestowitz

Maximalists are what some call “Extremists”

Assuming that more patents (a la USPTO) lead to more happiness

Summary: A look at China’s race to the bottom (decline in quality) when it comes to patents, assuming quite wrongly that quantity is more important than quality and severe penalties for perceived infringement will spur innovation

PATENT maximalists, who are stereotypically (as per the stigma) patent lawyers, try to equate economies with patents. Some equate innovation or progress with patents. The media which they control (author) is often a source of humour or a subject of ridicule. Watch how this EPO-funded blog, for example, urges startups to waste their money on patents right now. Suicide advocacy?

“China plans to take measures to curb the patent infringement over internet,” Benjamin Henrion wrote, “ISPs to take censor the net for patmafia” (patent mafia).

“Patent maximalists, who are stereotypically (as per the stigma) patent lawyers, try to equate economies with patents.”Here is the respective article which says: “Almost four months after the submission of the draft Patent Law Amendment Bill of China proposed by SIPO, which passed through the Bureau Affairs Meeting of SIPO in late August 2015, the Legislative Affairs Office (LAO) of the State Council released this draft on 2 December 2015, for further public consultation. In the meantime, the Bill has been developed as a Preparatory Project in the Legislative Programme 2015 of the State Council from the Research Project in the last year. The above signs indicate that the Amendment Bill can be expected to be finally passed by the National People’s Congress (NPC) in two or three years.

“The Chinese government has paid increasing attention to the importance of intellectual property in recent years. In June 2014, the Standing Committee of the NPC heard the Report on the Implementation of the Patent Law and emphasized that the Patent Law Amendment Bill should focus on enhancing the protection of patent right and on coordination and convergence amongst laws. To that end, the latest draft Bill includes, amongst other things, provisions aiming at strengthening patent enforcement, enhancing protection of design patent, perfecting service invention system, promoting exploitation and utilization of patent, and giving more power to the Patent Reexamination Board.”

“China’s SIPO is making a mistake here; it’s the same as USPTO mistakes, notably the reduction in patent quality so as to eliminate the backlog and just approve almost every application, to the point where the number of granted patents nearly doubles in just a few years.”China, as we noted here some weeks/months ago (on numerous occasions), is lowering patent quality for the sake of quantity. This is widely known a problem. As IP Watch (critic of patent maximalism) put it the other day, “China Continues High Growth In IP Filing, But Is There More To The Story?”

China’s SIPO is making a mistake here; it’s the same as USPTO mistakes, notably the reduction in patent quality so as to eliminate the backlog and just approve almost every application, to the point where the number of granted patents nearly doubles in just a few years. Did innovation magically double in a number of years? If not, then what we clearly have here is a system gone awry. █

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The Alice Case Continues to Smash Software Patents (This Time OpenTV’s); Will the EPO Ever Pay Attention?

Posted in America, Europe, Patents at 1:54 pm by Dr. Roy Schestowitz

The ‘magic’ of abstract patents is gone

Summary: The potency or the grip of software patents in the United States is quickly eroding, but the EPO continues to act as though software patents are legitimate

PATENT lawyers in the United States cannot sigh in relief. Their business prospects are being diminished as the USPTO is pressured to reassess examination guidelines (never mind the cheeky loopholes), in lieu with court rulings on software patents. It’s becoming harder to get software patents and even if one gets granted a patent on software, the likelihood of a court honouring such a patent is slimmer.

Patent lawyers who have long relied on the USPTO issuing patents on software are still disseminating tips for getting around the rules and patent software. The following new example, calling the domain “cybertech” (buzzword for computer security) is all about software and it says (courtesy of greedy patent lawyers): “Cybertech companies regularly struggle with the question of whether to patent core algorithms. If those algorithms are discoverable by anyone who examines your product, patent protection is the way to go. Also, your products contain many sub-features. Consider patenting only those aspects that will drive product sales. While most people think of patents as technical documents, really, they are business tools. A patent is only valuable if crafted in a way that prevents others from interfering with your business objectives. Therefore, it is best to strategically consider your innovations by asking: “How necessary is this feature to my prospective competitor?” You should patent only those features that provide strategic advantage to the company.”

Actually, increasingly, companies find that US courts, including the most pro-software patents courts and districts (like CAFC and Texas), simply deny software patents. Here is the latest example that we found last night (there are many other such examples, some of which we covered before):

OpenTV patents ‘abstract’ under Alice

OpenTV’s data communication patents in the US are invalid under the Alice Corp decision, a district court has ruled in the Swiss TV technology company’s spat with Apple.

The US District Court for the Northern District of California held on 28 January that the patents were abstract under the Supreme Court’s 2014 Alice Corp v CLS Bank ruling and lacked an inventive concept.

The subsidiary of Kudelski Group, OpenTV, filed the lawsuit against Apple in May 2015, arguing that the iOS and OS X operating systems infringed patents for securely communicating data between devices.

Apple sought to prove that the claims of the patents were abstract and filed a motion to dismiss the case.

US patent lawyers (and full-time software patents propaganda source) say “people like Inventors Digest contributor and patent attorney Gene Quinn, and Jay Walker, who has millions of dollars invested in patent software and related businesses, completely disagree with Cuban.” Mr. Cuban turned from investing in a notorious patent troll to fighting against patent trolls and against software patents (explicitly so). He’s definitely not a patent troll. Jay Walker, on the other hand, became little more than a patent troll (we wrote several articles about it) and Gene Quinn we often referred to as “Patent Watchtroll” because he had defended patent trolls, not just software patents. It’s rather revealing that patents lawyers and trolls (or people who profit from trolls) are rather anxious.

The United States undeniably moves away from software patents, so when the EPO promotes software patents in Europe it seriously discredits itself. It last did this on Thursday (i.e. three days ago) in Twitter, linking to what we criticised three days ago. The EPO is truly out of control and it needs to be stopped. Patent scope is just one of many dimensions of abuse. █

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EPO Staff Responds to Team Battistelli’s Expansion to Include French Economic Propagandist on the Payroll

Posted in Europe, Patents at 1:17 pm by Dr. Roy Schestowitz

Battistelli’s secret weapon in the fight against economists who prove him wrong (e.g. on UPC)?

Summary: With strings attached (like string puppets of Battistelli in various units including the Investigative Unit), can the new Chief Economist, who is French and paid by Battistelli, ever be trusted?

THE EPO‘s Team Battistelli, which is basically Battistelli and his inner circle, appears to be growing. Battistelli's days at the European Patent Office may be numbered, but not only he is the problem. There is entryism going on. Team Battistelli is so convinced that it is above the law and soon it will be able to manufacture its own supportive ‘research’ (in support of the lies).

“Team Battistelli is so convinced that it is above the law and soon it will be able to manufacture its own supportive ‘research’ (in support of the lies).”At the EPO, patents are not for SMEs, no matter what the PR team says. The patents are for large businesses, including many that are not at all European. According to this new article from IP Kat: “The Office of Chief Economist at EPO typically runs as fixed-term appointment from as short as one year to as long as nearly six. The appointment has always been external and the career profile has thus far been civil servant, academic or consultant. Most previous post holders have had strong ties with France or Belgium. Yann, a French national, will be the fifth Chief Economist.”

We mentioned this several days ago and we are gratified to see that commenters at IP Kat (many of whom work at the EPO) respond similarly. They point out some of the obvious problems, including influence in Brussels, lobbying, and so on. One commenter said: “Congratulations with your nomination, Yann. Here are three things your new boss might not have told you yet:

1. Battistelli nominated nearly exclusively french staff in top positions at EPO, hence the negative comments as to your nationality.
2. One of your predecessors Prof. van Pottelsberge was quite critical towards the patent system, for example: http://bruegel.org/2009/06/lost-property-the-european-patent-system-and-why-it-doesnt-work/
3. Your challenge will be to prove Battistelli is right, while most believe he’s not.

Another commenter wrote: “what a coincidence : another frenchman ! It is like the staff reps sanctioned : all suepo officials… another coincidence like VP1 recently said in an interview for Dutch Nieuwsuur” (more on that soon).

Here is a similar comment that says: “Oh, look! Another French appointment to the highest ranks of the EPO. Along with BB’s almost-entirely-French inner circle. I thought the EPO was a multinational organisation? Surely it is time for a chief economist who does not have “strong ties with France or Belgium”? Perhaps someone with a more Anglo-Saxon or Frankfurt-school view of economics, just for a change?”

“Strong ties with Belgium should come as no surprise,” added another person, “given that it’s the location of the European Commission. Paris has the OECD, where Dominic Guellec is now, and also produces some excellent IP and innovation economists. That said, there are plenty of good IP centres through the member states. For example, Nikolaus Thumm is in Spain at the Commission’s Institute for Prospective Technological Studies, and there are some excellent economists at Bocconi in Milan and Max Planck in Munich – to name just a few. A perhaps more glaring lack of diversity is that fact that all five appointees are male and white.”

“Oh, look! Another French appointment to the highest ranks of the EPO.”
      –AnonymousResponding to Nicola from IP Kat, who decided to focus primarily on the gender rather than nationality or ethnicity, one person wrote: “I agree with half of your statement but the other half has no bearing on the matter. The proportion of non-whites in Europe is insignificant.”

Another person told Nicola: “It’s hardly surprising is it ? In case you had not noticed the EPO is governed by a white male European geronotocracy. A good exemple is the Suisse delegation headed by the “honorary chairman” of the Admin Counsel (an innovative made-up position invented by the current EPO President when he was chair of the Admin Counsel). http://www.epo.org/about-us/organisation/administrative-council/representatives.html#ch The alpha male in question has retired as head of the national IPO and was replaced by a female (coincidentally a white European one):
http://kluwerpatentblog.com/2015/07/06/dr-iur-et-lic-rer-pol-catherine-chammartin-new-director-general-of-swiss-federal-office-of-intellectual-property/ Despite being well past his sell-by date he still continues to hog the seat on the Admin Counsel. And as for Mr. Minnoye and Mr. Lutz, just do not get me started on that track …”

“Perhaps someone with a more Anglo-Saxon or Frankfurt-school view of economics, just for a change?”
      –AnonymousAnother person added: 1. Whether you have a man or a woman at the top you won´t be able to see a difference in the way they lead a company. Yes, a woman will not assault chambermaids like Strauss-Kahn but from the point of view of managerial decisions being a woman is irrelevant. 2. Women have enjoyed a lot of privilege in the EPO, see the latest example of Elodie Bergot, with her spectacular jump from A3 to A6.”

We wrote about this leap from Bergot before (see part one, part two, part three, and this final part). She is the wife of Battistelli’s ‘protégé’ from INPI days. She was under-qualified.

“To Nicola,” one person wrote: “It is not that a discussion of gender or racial bias is out of place. It is that the real problem is somewhere else: all of Battistelli close men come from the same background: they are French, they come from the same universities and they are all freemasons. The fact that none is of a different race, gender or nationality is a consequence of that: the special political club to which they belong is only open to white males. So: your observation is true, but it is the symptom of a much bigger problem than you think.”

As far as I know, Battistelli is not in freemasonry (common misconception). He’s from a prestigious school which some say is more powerful a network.

“Women have enjoyed a lot of privilege in the EPO, see the latest example of Elodie Bergot, with her spectacular jump from A3 to A6.”
      –Anonymous“Thank heavens you didn’t mention the following mysterious connections,” responded another person, linking to this article from Techrights.

After Nicola had said that “more glaring lack of diversity is that fact that all five appointees are male and white” one person responded with: “To be honest, the situation at the EPO in respect of gender diversity is not such bad: amongst the union members severely sanctioned lately, there are two females and only one male.”

“While Europe is ethnically homogenous compared to other parts of the globe,” another person added, “the proportion of non-whites is not insignificant (in neither statistical or colloquial senses.) The non-white population of London alone is roughly 3.3M, which is bigger than many EPO member states. I fail to see how geographical/gender diversity has bearing but race/ethnicity doesn’t.”

“I guess that the EPO being a non-tax organisation, there is no need for the tax fiddling skills illustrated by certain multinational companies.”
      –AnonymousOne more person said: “I agree that in a broader context that the fact that all five appointees are white and male is a glaring lack of diversity. However, this appointment surely must also be viewed in the much narrower context of the current management situation of the EPO. The upper echelons of the EPO appear to in the process of being stacked with French nationals. So the appointment of yet another French national (regardless of gender or race) to such a position appears to be a much greater immediate concern than the, present but perhaps less immediately relevant, issues about gender and race.”

The point about race and gender misses a much more important point. It probably serves to distract from the debate people really ought to be having.

“C’mon Nicola,” said one more person, “that’s probably just another EPO ‘coincidence’,,,,,,,isn’t it???,,,. I can’t imagine for a minute that a thoroughly modern model European organisation like the EPO has a diversity glass ceiling that is potentially treble glazed and armour plated, can you?”

Another person added sarcastically: “I guess that the EPO being a non-tax organisation, there is no need for the tax fiddling skills illustrated by certain multinational companies.”

Here is a person making fun of President Battistelli’s qualifications in another thread (referring to INPI as “FPO”):

How kind of Madhouse to write in and say that I am “rather wrong”.

In fact, Madhouse confirms what I said, that the FPO indeed does not examine for patentability, bearing in mind that the key issue for patentability in 90% of cases is obviousness, which the FPO doesn’t go anywhere near.

Mr Moody you will perhaps already have grasped, that whether claimed subject matter is or is not novel is more or less a black and white issue, whereas whether or not it is obvious (within the meaning of the EPC) though, that is a judgement that requires years of specialised education, professional training and experience, of which President Battistelli has none.

Well, some people claimed that INPI just grants patents without examination. This is untrue. In any event, watch how a discussion that should have focused about Battistelli’s inner circles and vested interests/agenda got turned into a debate about feminism or political correctness. It’s unhelpful given the real (or core) issue at the EPO.

As a side note, economics shouldn’t be mistaken for a science. Economists are often hired to write a seemingly (on the surface) technical analysis to support an agenda of someone (or a business or a government), with omission where it doesn’t suit the required outcome/conclusion/hypothesis. Quantifiable measures in the economic sense/context are beyond the scope of this post, but there is plenty of literature out there about why economics are a sort of pseudo-science where money buys ‘results’.

If the new Chief Economist is as loyal to Battistelli as all staff must be (examine the evidence which is the vocation of people not 100% on Battistelli’s side), then Battistelli just got himself a lobbyist, not an analyst. █

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UPC: To Understand Who Would Benefit From It Just Look at Who’s Promoting It (Like TPP)

Posted in Europe, Patents at 12:18 pm by Dr. Roy Schestowitz

Summary: The UPC, which is designed to aid patent trolls and aggressors (and their lawyers), is still being advanced by the EPO and some misinformed (but loyal to these former groups) politicians

THE Unitary Patent Court (UPC) is not a step forward but a step backwards. Here is what Glyn Moody (not a patent lawyer or a patent troll) made of the UPC last week, in page 6 of his very detailed article: “EPO’s spokesperson mentioned… [UPC] … as an important reason for revising the EPO’s internal rules” (the context being an attack on staff). Moody filed this under the section “Trolls get ready for the unitary patent,” alluding to a fact that we so often revisit here. The Unitary Patent would work quite well for software patents and for patent trolls, even from abroad. It would not be beneficial to Europe. In this post we explore some recent developments in the race towards UPC, where the main racers are patent lawyers and their biggest clients (large and rich corporations).

Jane Lambert recently had an online dispute/debate. It started with her saying: “Looking forward to my talk on the unitary patent and the Unified Patent Court at 17:00 today in chambers” (UK).

As I pointed out to her, the UPC is not about helping SMEs but about destroying them, by allowing Europe-wide litigation against them. Lambert, who is based in the capital of patent lawyers, London (later Honley), responded with: “I see the UPC as levelling the playing field between SME in the UK and the Mittelstand in Germany and rest of the continent. UPC litigation still much cheaper than litigation in England and Wales alone (see table on page 50 of http://webarchive.nationalarchives.gov.uk/+/http:/www.hm-treasury.gov.uk/d/contra_vision_ltd_336_p4_163kb.pdf)” (see with context).

“If one wrongly assumes,” I responded, “that: 1) more/broader litigation is good. 2) companies only sue, never get sued.”

“Cost of litigation never includes EU-wide damages,” Benjamin Henrion added.

It’s a matter of simple economics. The public interests should be factored in.

The matter of fact is, trying to explain this to patent lawyers, who make money from disputes, can be an exercise in futility. Lambert said “UPC makes sense in cost savings even for litigation between 2 UK companies over a European patent designating the UK.”

“Those same companies will easily get sued,” I replied, “by other companies from ~30 countries around Europe. Good for lawyers.

“UPC is a recipe for an epidemic of litigation. Good for patent lawyers, even FANTASTIC for them.”

Henrion then added that “litigating/defending patents is simply out of reach for most of small companies, upc or not http://ur1.ca/ogv4q”

He also asked, “patents are a moving target then?”

Lambert then said this was “better than their being sued in several jurisdictions for essentially the same cause of action. Good for business.”

They wouldn’t be sued like that because the incentive to sue is low. Less money for lawyers. At this point we soon realised that nothing would convince lawyers that the UPC is bad because the UPC is not bad for them. The patent lawyers want what’s good for patent lawyers and their biggest clients (income source).

Lambert later added that “that’s exactly what happens already and it’s the start-ups and other small businesses that suffer the most under present system,” to which I responded with: “Startups are the ones reluctant to sue, and UPC won’t improve that for them. It’ll make them the victim of MORE lawsuits.”

Lambert concluded: “yes it will. The costs of litigation will be so much less than in this country. It will also be easier to obtain IP insurance.” Lambert later added: “Fragmentation of Europe is an enormous barrier to innovation in EU.”

Fragmentation is not the right word. It wrongly assumes that patents need to be global or universal. This clearly isn’t the case. Well, generally speaking, the UPC — like TTP, TTIP, ACTA and more confusing acronyms the public isn’t intended to understand — are hinged on a big pile of Big Lies. They empower multinational corporations and attempt to convince the public that this is somehow better for everyone. The UPC is similar to ISDS in the sense that one helps large businesses sue lots of businesses in one fell swoop. The latter lets them sue nations.

Wouter Pors, a patent lawyer whom we mentioned here several times before, was recently quoted as saying: “Wouter Pors @ #UPP2016 on strategic use of #UPC and #unitarypatent: strong patents more suitable to opt-in?”

When patent lawyers say “strong patents” they don’t mean strong innovation, it’s all about strong (high) profit for strong (rich) companies. Economists are needed here, but not ones who are funded (salaried even) by the EPO. As one shrewd comment put it the other day regarding the EPO’s new French economist (we shall write about that more in a separate article):

Perhaps Yann can turn his attention to the financial impact of the UP upon not only the EPO, but also European businesses?

Darren’s amusing piece (hypothetical discussion with a client) from 20 April 2015 points to reasons why the level of the official fees levied means that advent of the UPC might not be beneficial for all – particularly SMEs.

However, in addition to the issue of official fees, that is the equally important issue of advisory fees.

A little bird tells me that national governments may well be relying upon Article 149a to sanction what would otherwise amount to contraventions of Articles 2 and 64 EPC – i.e. to allow national patents, non-unitary EPs and unitary EPs to all have different effects when it comes to infringement.

On top of this, we have the possibility (now seeming much more like a certainty) that different Participating Member States (PMSs) of the UPCA will have different national laws. Thus, it seems that the process of determining whether a patent application that is eligible for unitary protection will be infringed by actions in country X will now comprise the following steps.

1. Has unitary effect been requested?
2. If so, who was the original applicant?
3. Did the (an) original applicant have a residence / place of business in a state that is a PMS for the unitary patent concerned?
4. If so, determine the applicable national law under Art. 7(1) and (2) of Reg. 1257/2012 (and if not, the applicable law is that of Germany).
5. Seek advice from an expert of the national law determined under step 4.

This is a much more complicated and expensive procedure for determining infringement than we have under the current system. And things just get worse if you are trying to determine freedom to operate in country X and you have identified several potentially relevant patent applications. This is because:
- the above, 5-step process will have to be repeated for each application;
- different applications may have different applicants (giving increased burden for steps 2 to 4) and may therefore be subject to different national laws (giving significantly increased costs in step 5); and
- it will not be possible to provide a definitive answer for step 1 until up to 3 months after the date of grant of the application concerned.

The last point could be particularly galling for clients. This is because it could mean that, whilst they will have to bear the burden of significantly increased costs for FTO, they will be presented with an equivocal conclusion (as there can be no certainty until well after grant of all of the relevant applications).

This might all be OK if the differences between national laws was such that the conclusions would be essentially the same under all potentially relevant laws. But that is certainly not how things appear to be shaping up for indirect infringement and, crucially, for “Bolar” / experimental use.

Will all of the above in mind, any comprehensive analysis of the economic impact of the UP system really ought to take account of the “hidden” costs of advice. If this is done, then I believe that there is certain to be a negative impact upon at least some (if not most) European companies.

Here is another new comment that alludes to the UPC:

I come back to your view, Madhouse, on what constitutes “examination” of patentability.

As we are now, the Enlarged Board of Appeal of the EPO is the commodore of all the ships in the fleet, the fleet I mean being the fleet of national Supreme Courts of the EPC Member States, when it comes to the substantive law of patentability in Europe.

But now we have a new Commodore, the UPC.

And if the UPC has put DG3 out to grass, why should the EPO attempt any longer to issue any decision at all on obviousness? Why should it ever refuse any application for a patent for the reason that the claimed subject matter, even if new, is clearly obvious. Why not save a ton of money and have it merely do a search and issue an advisory EESR opinion on obviousness, and leave it at that.

You know, like INPI does. And like the UK Patent Office used to do until 1978. Isn’t that the cost-saving, modern and efficient way to go? Is that not where BB is taking us all?

Right now we see all sorts of patent “professionals” (usually lawyers) encircling UPC critics like a group of vultures. They even have their own events in favour of the UPC (the EPO funds its own in participation with lawyers' firms). There are even some gullible politicians who are helping patent trolls and aggressive corporations from abroad harm Europe with the UPC, making foolish statements such as: “The new unitary patent will help Europe’s businesses to flourish” (the opposite is true).

“Enforce patent rights across EU with a single, streamlined proceeding may become very attractive to trolls,” Henrion noted, linking to a 2-page PDF on the subject (“MCC INTERVIEW: Dr. Christian Paul & Alastair J. McCulloch / Jones Day – EU Poised to Overhaul Its Patent System – New unitary patent and court are likely to shake up global patent dispute strategies”). This is cited by one of the sections below, which are precede by the following instruction: “On the heels of patent reform in the U.S., the EU is preparing to dramatically shift its approach to patent disputes. A new EU-wide unitary patent to supplement country-by-country patents and a new court system, with jurisdiction that makes it almost as big as the U.S. system, mean big changes ahead. In this interview, Jones Day patent litigators Alastair McCulloch, who leads the firm’s IP team in the UK, and Dr. Christian Paul, who is qualified as a lawyer and graduate chemist in Germany, discuss the likely impact of the new system and what Jones Day is doing to prepare clients for the changes ahead.”

A lot of politicians have a very twisted version of the UPC in mind because they’re being lobbied/greased up by patent lawyers and their clients. They seem to think that broader is better, just as they often think that more (e.g. patents) is necessarily better. Not just trolls but patent aggressors like Apple and Microsoft would benefit from patent maximalism, which augments scope and breadth, both in terms of domains covered and nations covered. Big businesses and their lobbyists, lawyers, paid politicians etc. are passing the UPC without any public debate or input, crushing anyone who stands in their way. The closest analogy we can think of right now is the TPP. Consider this new article titled “They promised us a debate over TPP, then they signed it without any debate” (published 3 days ago).

It says: “The Trans Pacific Partnership is a secretly negotiated agreement between 12 countries, including the US, Canada and Japan, which establishes punishing regimes for censoring and controlling the Internet, as well as allowing corporations to nullify safety, environmental and labor laws that limit their profits.

“The corporations and governments that backed TPP dismissed criticism of the secret negotiations process (even members of Congress and Parliaments were not allowed to know about the substance of the negotiations, though corporate lobbyists were), promising that there would be a “debate” after the TPP was finished (that is, when it was too late).

“Early this morning (US time), representatives of 12 countries gathered in New Zealand to sign TPP. We never got the debate.”

Also see TechDirt‘s “Countries Sign The TPP… Whatever Happened To The ‘Debate’ We Were Promised Before Signing?”

“As we discussed yesterday,” TechDirt wrote the following day, “the TPP was signed by all participating countries yesterday in New Zealand (though there’s still a big ratification fight required to make it matter). We have lots of issues with the TPP, many of which we’ve raised over the years — but the first issue that drew our attention to it was the intellectual property chapter. For years, we’ve questioned how it could possibly make sense to include intellectual property in a so-called “free trade” agreement, as intellectual property is the exact opposite of free trade. It’s a government granted monopoly and restriction on the movement of information. And, yet, in the past two decades, basically any international trade agreement has included sections concerning intellectual property.”

The EFF subsequently wrote: “Top officials of countries involved in the Trans-Pacific Partnership (TPP) are convening in New Zealand today to sign the final agreement. But really this ceremony is just a formality. We knew since November, from the day they announced a completed deal and made the text public shortly thereafter, that they would do this. These officials have not been accountable to the public. They have remained steadfast in excluding public participation and ignoring all calls for transparency over the more than five years of TPP negotiations. Because of this opaque process, trade negotiators were able to fill the agreement with Hollywood and Big Tech’s wish lists of regulatory policies without having to worry about how they would impact the Internet or people’s rights over their digital devices.”

According to the press in New Zealand:”Protesters in Auckland were estimated at more than 5000 at their height and a rump gathered outside SkyCity for several hours after the signing.”

Politicians who represent mega-corporations, i.e. not people, want the TPP to become a reality and the same typically goes for the UPC. Here in the UK the government treats ‘IP’ as a matter of threat. MIP connects this to the UPC as follows: “Purpose of reform includes Unitary Patents The existing law is said to be inconsistent (especially with the civil pre-action procedures) potentially harmful to competition and unclear. The reform seeks to harmonise the law across the relevant IP rights and will be extended to Unitary Patents and European patents…”

When the EPO, patent lawyers, politicians who promote the interests of large corporations and so on call for immediate introduction of the UPC we must remember their motivations. This has nothing whatsoever to do with Europe’s interests or even science and technology. It’s to do with power and domination by a bureaucracy or international oligopolies/monopolies, which often depend on this bureaucracy. It is a power grab. █

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Trolls Molestos: Rovi (del famoso Angry Birds) Ayuda al Más Largo Troll de Patentes de Microsoft Intellectual Ventures (Corregido)

Posted in Microsoft, Patents at 11:12 am by Dr. Roy Schestowitz

English/Original

Publicado en Microsoft, Patents at 5:32 am por el Dr. Roy Schestowitz

[Corrección: resulta que nos confundimos ya que Rovi y Rovio no son la misma compañía. Rovi es actualmente un parásito de patentes. Rovio frecuentemente es enjuiciada por trolles de patentes. Por lo tanto, algunos de las declaraciones abajo estan fuera de lugar.]

Los pájaros están más molestos y malos

Sumario: Alguna vez conocido como hacedor de juegos y más tarde como vigilancia en masa en jugadores, Rovi ahora se ESTA ALIANDO CON EL MÁS GRANDE TROLL DE PATENTES

BASADO en un sitio solventado por la OEP (sí la OEP paga a los medios ahora) que también es solventado por trolles de patentes (e.g promotores de eventos para promover y/o cambiar su imagen), Rovi reciéntemente acordo ¨unir fuerzas¨ con el troll de patente de Microsoft que también es el TROLL DE PATENTES MÁS GRANDE DEL MUNDO. Para citar al solventado por la OEP sitio de ´noticias´: ¨la compañía digital de entretenimiento Rovi e Intellectual Ventures (IV) anunciaron ayer que estan combinando su respectivos portafolios de patentes sobre la parte superior tecnológica y estan dispuestos a licenciarlos como paquete simple.¨

“¿Cómo estar siendo relacionado con un troll de patentes va ser beneficioso para un desarrollador de juegos?”Resulta que los inversores no han estado felices. Como este sitio de ´noticias´ solventado por la OEP lo pone: ¨Aunque los inversores parecen haber reaccionado negativamente a las noticias de la unión, los beneficios potenciales parecen claros para Rovi. La adición de bienes complementarios del portafolio de patentes de rango medio de IV podría mejors sus ofertas a prostectivos licensiarios y darle una mano más fuerte en negociaciones.¨

Tontería completa. ¿Cómo estar siendo relacionado con un troll de patentes va ser beneficioso para un desarrollador de juegos? Esto es bazofia de parte de los maximalistas de patentes quienes incluso rechazan usar la palabra ¨trolls¨.

El sitio de ´noticias´ solventado por la OEP incidentalmente, también pone lápiz labial en el último cerdito (intentando pun, refiéndose a Angry Birds) que es la dominada pro Microsoft Nokia (actuando ahora como un gigante troll de patentes en Europa). Ayer escribimos acerca de los ataques de patentes de Nokia contra Android, que están siendo públicos sólo después que Microsoft la subyugó.

La razón de que esto exista en primer lugar (para aquellos que no lo sepan) es la guerra de patentes de Microsoft contra el Software Libre/Abierto. Esto incluye Android, que es la plataforma que compañías como Rovi tienen como objetivo. Intellectual Ventures (lease Microsoft) ha estado ATACANDO ANDROID CON PATENTES DE SOFTWARE. Es todo parte de la estrategia de acumulación de patentes por parte de Microsoft (término legal) contra Linux y el Software Libre. Ellos tratan de hacer menos efectivo e inviáble para un competidor al elevar costos asociados con el software, usando patentes de software y así controlar el mercado. █

“El principio de esta idea fue cuando estaba en Microsoft. Teníamos un problema de responsabilidad de patentes. Todas esas personas estaban viniendo a enjuiciarnos o demandarnos un pago. Y Bill (Gates) me preguntó si había una solución.” —Nathan Myhrvold, WSJ: Transcript: Myhrvold of Intellectual Ventures

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Estadísticas de Invalidación de Patentes y Costos de Litigación de Patentes (incluso si son falsas) Muestran que la Esfera de Patentes y los Estándares de Examinación son un Probleman, No Sólo en Los Estados Unidos

Posted in America, Europe, Patents at 11:09 am by Dr. Roy Schestowitz

English/Original

Publicado en America, Europe, Patents at 5:13 am por el Dr. Roy Schestowitz

El Alto Costo (incluso para partes inocentes) del maximalismo de patentes motivado por figuratismo y avaricia

Sumario: Demasiadas falsas patentes que no deberían haber sido otorgadas en primer lugar y fraudulentes jucios de patentes que terminan en favor del acusado sirve para mostrar el costo externo (o externalidad) cuando set trata de un bajisímo sistema de patentes que se esfuerza en otorgar muchas patentes irrespectivamente de su mérito.

El año pasado escribimos extensivamente acerca de las patentes de software en Europa, incluso en las cortes de Alemania, donde Apple había estado tratando de bloquear Android/Linux (Alemania es clave para mucho de estos juicios). Bueno, de acuerdo a esta interesante pieza de IP Kat, ¨la Corte Federal Alemana de Patentes (parcialmente) invalida 80% de patentes litigadas¨ y aquí hay otros números por patentes de software: ¨Por patentes de software y telecomunicaciones, el ritmo de invalidación es incluso más alto aún 88% (58% TOTALMENTE INVALIDAS, 30% PARCIALMENTE INVALIDAS, 12% MANTENIDAS). A los patentadores les va un poquito mejor en apelaciones, ya que el grado de victorias contra decisiones invalidatorias de patentes es alto (60%) que el grado de ganancias de apelaciones contra decisiones de mantener una patente (40%).¨

“Es de gran importancia cuando las patentes s son declaradas invalidas en las cortes por que ello significa que las oficinas de patentes simplemente han FALLADO EN HACER SU TRABAJO ADECUADAMENTE y como resultado muchas compañías tienen que gastar mucho dinero que NUNCA recuperarán (incluso cuando ellas sean absueltas).”Mucha gente leyó esto y dentro de poco tiempo muchos comentarios allí aludiendo a la OEP. Mucha gente tiene sentimientos encontrados acerca de esto. Es de gran importancia cuando las patentes s son declaradas invalidas en las cortes por que ello significa que las oficinas de patentes simplemente han FALLADO EN HACER SU TRABAJO ADECUADAMENTE y como resultado muchas compañías tienen que gastar mucho dinero que NUNCA recuperarán (incluso cuando ellas sean absueltas). Esto es una seria INJUSTICIA. Sirve también para mostrar el costo real de las oficinas de patentes que asocia el número de patentes con ¨innovación¨ (embarcandose así en una fiebre del oro de patentes).

Como fué revelado el otro día en un blog de maximálistas de patentes, patentes fueron declaradas invalidas en las corte sólo en apelaciones (i.e incluso más costos por cargos legales) porque los examinadores las otorgaron fácilmente (o fueron presionados para otorgarlas por la gerencia, si el ejemplo de la OEP otorgando Philpott fuera generalizado). El mismo blog también hablo acerca de trolls de patentes con patentes de software. Escribimos mucho acerca de la defensa de NewEgg contra tales trolles en los últimos años (NewEggs merece felicitaciones por su política en esta materia). Para citar del blog ¨en apelación el Circuito Fedearal notó -esta vez, que NewEgg estaba en una posición inrazonable -demandando una revisión nueva de las decisiones de la corte del distrito a pesar del precedente de la Corte Suprema al contrario. Sin embargo, el Circuito Federal siguio su práctica habitual requiriendo a cada parte solventar sus propios costos en la apelación.¨

“Las oficinas de patentes necesitan someterse a una examinación.”Así que de nuevo esta en apelación y los costos legales no seran devueltos. El costo de fraudulentos jucios de patentes (patentes inválidas) es pasado al acusado, quien incluso sea probado inocente todavía pierde (un montón de dinero). ¿Qué clase de justicia es esta? La UPC puede potencialmente traer mucho de esto a Europa y dadas las estadísticas (de Alemania) no deberiamos tolerarla. Las oficinas de patentes necesitan someterse a una examinación. Al presente no tenemos en Europa una efectiva supervisión, la cálidad es difícilmente impuesta desde el exterior, excepto desde la Corte Suprema, the EPC (vieja), y así. ¿Porqué son tantas falsas patente otorgadas en primer lugar? La OEP nos amenaza con llevarnos a juicio por la evidencia que hemos mostrado, algo permanece considerado.

Consideren este nuevo análisis de un sitio de abogados de patentes. Es titulado ¨La patente de Mosanto sobre el Melor Resistente a Viruses es Revocada¨ y dice: ¨La patente fue solicitada en la OEP el 21 de diciembre de 2006 y el otorgamiento fue efectivo el 4 de mayo de 2011. La patente ha sido opuesta por inter alia, numerosas NGOs (Agencias Non Gubernamentales).¨

¿Necesita persistente política presión de las NGOs actuar como supervisión para codiciosas oficinas donde hay insaciable aspiración para incrementar el número de patentes, incluso para no éticamente ampliar la esfera de patentes (ejemplo en formas de vida)? █

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02.06.16

The ‘Offenses’ of EPO Staff Representatives Boil Down to Truth-Telling

Posted in Europe, Patents at 1:58 pm by Dr. Roy Schestowitz

Summary: Dutch television examined the documents of the mock ‘trials’ against SUEPO leaders and concluded that whistle-blowing (i.e. exposing abuses by EPO management), not misconduct, is the reason for overzealous dismissals

Benoît Battistelli’s harassment of staff representatives may some day culminate in his own dismissal (just a rumour for now). He has caused tremendous damage to the EPO and he is personally connected to a lot of people in management — people who are also among the biggest culprits.

Battistelli, who has a long habit (or addiction, or paranoia) of walking around with private bodyguards, compares his critics to something like 'snipers' or 'Mafia' (the ‘sniper’ remarks are clearly taken out of context). Battistelli deluded himself into thinking he's fighting some kind of war on terror, but the only threat he has faced so far is embarrassing information coming out to the media. The crushing of the unions and the pretexts for it are all about confidentiality, as if secrecy — as judged by management (to protect it from criticism/scrutiny) — is the most important thing. Truth itself is now an enemy of Team Battistelli, which is basically a self-guarding clique.

The following recent article (from the Dutch Broadcast Foundation), which SUEPO provided a translation of with images included [PDF], remarks on the nature of the allegations, which we highlight in yellow below:

Protest against ‘intimidation’ at European Patent Office

The European Patent Office in Rijswijk Marc Hamer / NOS

By:

Hugo van der Parre
Research Editor

Bas de Vries
NOS Net Editor

Employees of the European Patent Office (EPO) in Rijswijk are taking to the streets today. The employees are protesting the dismissal of two colleagues and the demotion of a third. Among the employees is the Dutch chair of the union, Elizabeth Hardon.

Lawyer Liesbeth Zegveld representing the union speaks of “outright intimidation”. The location in Rijswijk is the largest international organisation in the Netherlands, with 2,700 employees.

The punished employees all work for the European Patent Office union from its headquarters in Munich. According to the protestors, they are facing the consequences of the fact that they dared to criticise the “tyrannical” head of EPO, Frenchman Benoît Battistelli.

Head of the organisation Battistelli has an entirely different interpretation. According to him, he was forced to strike hard as the three employees did not follow internal rules in various ways and discredited their own organisation.

Lawyer Zegveld: ‘They are protesting against a culture of intimidation’

Tensions within the European Patent Office have been there for quite some time, but the issue now appears to be escalating. “It seems that constitutional rights just don’t apply here,” one of the employees said, who wishes to remain anonymous out of fear for reprisals. “We even have a kind of secret service that monitors the employees.”

The only supervisory entity at the top is the so-called Management Board, which consists almost entirely of the directors of the national patent offices of the 38 EPO countries. But they have yet to take a stand, according to the Suepo union. When Hardon appealed to the Management Board for help leading up to her dismissal, they just referred her back to Battistelli. He then not only kicked her out, but also cut her accumulated pension rights as an extra sanction.

We even have a kind of secret service that monitors the employees.

European Patent Office employee

A representative of the French parliament for French citizens abroad, Pierre-Yves Le Borgn’, called the sanctions imposed on the employees “a disgrace and highly unjust”. Member of the Dutch House of Representatives John Kerstens (of the Labour Party) wants “the Dutch cabinet to do everything in its power to ensure normal work relationships”. Kerstens: “Employee rights that are seen as completely normal cannot be infringed upon to such a degree that employees feel threatened and intimidated.”

Today’s protest march in The Hague will go from the French to the German embassy. The disgruntled employees hope to get the governments of both countries to intervene, and hope the Dutch government will do the same.

Rutte

The Dutch cabinet has yet to make a clear statement on the issue. In response to questions from the House of Representatives, Minister Asscher previously underlined that part of the problem is that the board of management of the European Patent Office has legal immunity. That means, among other things, that the Dutch Inspectorate (I-SZW) cannot be granted access to the offices in Rijswijk as long as Battistelli does not allow it.

The European Patent Office is currently building a new office near the current building in Rijswijk, costing €205 million. Prime Minister Rutte helped Battistelli lay the first stone in the summer of 2014. On its website, the city of Rijswijk states that the EPO “makes an important contribution to the Dutch economy by providing jobs to tens of thousands of people in The Hague area”.

Yesterday, the NOS asked the European Patent Office for a response to the criticism surrounding head of the organisation Battistelli. But as of last night, they had yet to respond.

The ‘charge’: slander campaign or constructed?

According to Benoît Battistelli, he is the victim of a targeted action led by his own staff. “We can now openly say that over the past two or three years, we have been the victim of an orchestrated campaign of which the goal was to destabilise and discredit the organisation,” the EPO president said last October in an interview with Financieele Dagblad.

The dismissed Dutch chair of the office’s own union in Munich is suspected of things including helping another colleague in that campaign. She is also said to have threatened colleagues and expressed that an internal procedure was being carried out against her. The latter is prohibited at the EPO as well.

According to union lawyer Liesbeth Zegveld, this is clearly a constructed charge against union chair Hardon. For example, documents examined by the NOS show that the ‘threat’ entailed no more than warning a colleague that they would be criticised if they accepted a certain position.

Nevertheless, Battistelli is cracking down hard on Elizabeth Hardon. She is not only being fired; she is also losing 20% of her accumulated pension rights. The latter is stricter than the advice the president received from an internal ‘disciplinary committee’ that examined her case.

That applies even more strongly to the case against the ex-chair of the Suepo union. His disciplinary committee recommended leaving most charges against him alone, but in his case Battistelli also opted for dismissal. The union treasurer’s salary went down by eight pay scales.

This is clearly not justice. It’s very gross injustice. We decided to make more of the information publicly available because only by accessing the claims can one see how truly ridiculous they are. The above says that “documents examined by the NOS show that the ‘threat’ entailed no more than warning a colleague that they would be criticised if they accepted a certain position.”

The EPO does not have a President; it has a ruthless emperor. It doesn’t matter what the law says and what people below him may say, he and only he will have the last word. Appointments at the EPO’s management follow the standards of third world countries and so does the behaviour of this management. Where is the German media, which is suspiciously reluctant to shed light on any of this? █

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Rumours About Dismissal of Benoît Battistelli and New Letter From Union Syndicale Federale Blasting Battistelli’s Behaviour

Posted in Europe, Patents, Rumour at 1:16 pm by Dr. Roy Schestowitz

Summary: Things have been heating up since the dismissal of staff representatives at the European Patent Office (EPO) and some even spread rumours about withdrawal/dismissal of the EPO’s President

HAVING already covered the EPO‘s propaganda event a couple of days ago in Rijswijk, we can now move on to some rather interesting news.

Rumours about the withdrawal/dismissal of Battistelli are apparently not correct. He is said to have threatened to resign about a year ago, but he is still inside the EPO. “THE FARCE GOES ON,” told us a source earlier today. “A report on Battistelli´s speech in The Hague on February 4,” the source added, alluding to a longer report that we kindly ask readers to send to us. It´s a report on Battistelli´s speech at The Hague. In part it says: “On February 3 the EPO was abuzz with rumors about the withdrawal/dismissal of B. Battistelli, the president who has been trying hard, and managed more and more successfully, to bring this European institution into disrepute. It would have been too beautiful.”

We are still hoping to get the rest of it. In the mean time, thanks to SUEPO, we now have the following letter, which Union Syndicale Federale (USF) published for everyone to see. It is a self-explanatory letter. SUEPO called it “Letter to J. Kongstad – President of the EPO Council” and added: “In a communiqué, Union Syndicale Federale (USF) reported it is deeply shocked to hear about the latest, disproportionate measures against trade union officials taken at the European Patent Office (EPO) in January 2016. The letter is accessible here.”

We did some OCR, made a local copy of the original letter (just in case), and got the following in HTML form because it merits wider attention (some bits are highlighted, too):

Brussels, 25 January 2016

Mr J. KONGSTA

President of the EPO Council

Dear Mr Kongstad,

Union Syndicale Federale (USF) is deeply shocked to hear about the latest, disproportionate measures against trade union officials taken at the European Patent Office (EPO) in January 2016.

USF, together with numerous external observers and the media, has been following the deteriorating social situation at the EPO, especially since a Dutch Court of Appeal identified breaches of the European Convention of Human Rights at the EPO in its judgement of 17th February 2015.
The EPO has not yet met the requests of the judgement, nor has explained why fundamental rights decided and recognised by all thirty-eight Member States of the European Patent Organisation are inferior to the EPO’s need for autonomy.
The EPO has also not yet explained why it refuses to allow competent national authorities to investigate staff members’ suicides and their causes. In the meantime, the list of incidents of maladministration has grown beyond anyone’s imagination and has seriously stained the reputation of the EPO and the international public service as a whole.

Now, in January 2016, measures unheard of in modern society are being imposed on trade union representatives: one case of serious downgrading and two sackings. It has been reported that internal disciplinary boards recommended far milder sanctions. These recommendations were ignored and arbitrarily replaced by harsher, disproportionate measures.
From information publicly available, it is an obvious conclusion for USF that the charges in the above cases were based on formal confidentiality issues rather than on substance. To misuse a seriously deteriorated social situation so as to orchestrate provocations and construe charges against union representatives is fundamentally conflicting with the duty of care of an international organisation.

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Union Syndicate Service Public Europeen — Bruxelles (BE) • Union Syndicale Recherche — Ispra (IT) • Union Syndicale Recherche —Karlsruhe (DE) Union Syndicale Recherche — Petten (NL) ■ European Public Service Union Fusion — Bruxelles (BE) ■ Union Syndicale Office Europeen des Brevets — Berlin (DE) et Den Haag (NL) • Syndicat des Agents du Conseil de (‘Europe — Strasbourg (FR) ■ Union Syndicale Eurocontrol France – Bretigny (FR) • Union Syndicale Ecole Europeenne — Bergen (NL) ■ Union Syndicate Centre Europeen pour le Developpement de la Formation Professionnelle — Thessaloniki (EL) ■ Union Syndicale European Foundation for the Improvement of Living and Working Conditions— Dublin (1E) • Union Syndicale European Training Foundation — Turin (IT) ■ Union Syndicate de l’Institut Universitaire de Firenze (IT) • Union Syndicale Centre de Developpement de I’Entreprise — Bruxelles (BE) ■ Union Syndicale European Agency for Safety & Health at Work — Bilbao (ES) • International and Public Services Organisation — Frankfurt (DE) — Union Syndicate Federale – section Luxembourg (LU) — European Public Service Union — Cour de Justice — Luxembourg (LU) Gewerkschaft des Deutsch-Franzosischen Jugendwerks — Paris (FR) et Berlin (DE).

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USF urgently calls upon all EPO organs to annul the decisions taken against trade union representatives.

UDF calls upon all EPO organs to return to the rule of law and sound practice as commonly understood in the 21st century and to take all necessary corrective steps at their next internal meetings in order to avoid further irreparable damage to the Office’s reputation, as well as to the social climate at the EPO.

Yours sincerely,

Bernd LOESCHER
President

Addressees:

EPO Administrative Council
Cc: EPO President, Mr. B. Battistelli
Cc: SUEPO Munich, Ms E. Hardon, Mr I. Brumme, Ms M. Weaver

SUEPO added a link to the USF letter to Guy Ryder, Director General of ILO, where many complaints about the EPO have been piling up for years. The letter does not refer directly to the EPO, but SUEPO chose to highlight it by writing: “In a communiqué, Union Syndicale Federale (USF) submits a claim to the Director General of ILO aiming at a specific aspect of the functioning of the Administrative Tribunal of the International Labour Organisation. The corresponding letter is accessible here.”

We kindly ask readers to consider sending us the aforementioned report. We have never (in a decade) compromised the identity of a source and we want this report for future record/reference. █

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