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. █

Seoul Plaza, South Korea

Summary: An outline of recent stories about patents, where patent quality is key, reflecting upon the population’s interests rather than the interests of few very powerful corporations

THE NEW YEAR IS ABOUT to start and we are eager to see governments all across the world recognising that patents have gone too far if examiners are granting millions of them. Techrights was never an anti-patent site; rather, it was pro-patent quality. We need to limit patent scope so as to ensure that the practical (or economic) impact of patents benefits society at large. The former Chief Economist of the EPO spoke about it earlier this winter.

“We need to limit patent scope so as to ensure that the practical (or economic) impact of patents benefits society at large.”Florian Müller has this new article about a Korean antitrust ruling. We have been writing about rulings of this kind for nearly a decade (going back to the Korean ruling on monopolistic Intel) and 3 months ago we wrote about Microsoft's latest patents controversy in Korea. We remind readers that Korea’s official position is that software is not patentable (different from Japan’s and China’s policy).

“I wish to point out,” Müller wrote, “that ACT is generally very IPR owner-friendly, but when it comes to FRAND licensing of standard-essential patents, its positions are pretty consistent with mine. An organization that takes similar positions on FRAND (and of which Google is a member) is the Brussels-based Fair Standards Alliance. Presumably the reason the FSA hasn’t spoken out on the Korean ruling yet is simply that people in Brussels tend to be on vacation this week (to a far greater extent than in the U.S.).”

“For the record, Florian Müller assured me he had been in no way associated with (or paid by) Microsoft for several years now.”As we noted earlier this year, the Fair Standards Alliance is rather mysterious, but the same cannot be said about ACT. I politely told Müller it’s worth pointing out that Association for Competitive Technology (ACT) is a Microsoft front group with decades of history (going back to the nineties, under another name and acronym). We have exchanged some messages about that [1, 2, 3, 4]. For the record, Florian Müller assured me he had been in no way associated with (or paid by) Microsoft for several years now. A lot of what we wrote about Florian Müller is no longer relevant/applicable as he left behind his Microsoft work and has no intention to do that again. Some people will never forgive him for that, but I have. I believe that he’s not “up for sale” now that he leads a team of “app” developers, hence not dependent on contracts from companies like Oracle, either.

“Just updated post on antitrust ruling against Qualcomm with link to unofficial translation of KFTC press release,” he added, after he mostly focused on ACT’s message. Here is a report we found about the news earlier this week:

A South Korean regulator said it would fine Qualcomm Inc. about $853 million for alleged antitrust violations, the highest such penalty handed to an individual company here, as the U.S. chip maker faces global scrutiny over its patent-licensing business.

A lot of people later discussed the relevance of this to the situation in China, where Qualcomm’s shakedown efforts have only met very limited success.

The Reinhold Cohn Group, writing this new article (“China may become more liberal towards business method and software related patents”), reminds us that China has gone bonkers with patent scope. SIPO now copies/emulates the mistakes of the USPTO and it already becomes a patent trolls’ heaven. It’s beneficial to nobody. “On 27 October 2016,” as the law firm put it, “the State Intellectual Property Office of China (SIPO) published, for comments by the public, proposed draft revisions to its current Examination Guidelines for examining software-related inventions. In the draft revised Guidelines SIPO goes one step further, as, in addition to granting patents on software-related inventions that solve a technical problem, is willing to allow patents for data carriers, and, in some cases, even for business methods.”

“SIPO now copies/emulates the mistakes of the USPTO and it already becomes a patent trolls’ heaven.”So basically they want to be the garbage dump of failed patent applications, or the equivalent of scholarly journals that almost blindly accept every submitted paper (and are hence worthless and have no following). We are gratified to see the USPTO departing from this lunacy left (having been accentuated) by David Kappos. Incidentally, some LLC (usually trolls) turns out to have sued the USPTO for last year’s long outage; it has just lost the case^*.

Jasper L. Tran, writing in the Iowa Law Review, has just published “Abstracting About “Abstract Idea”” — a short paper in which he tackles the classification of some patents as “abstract”. Also today, an article titled “Software patent eligibility in Canada: IP year in review” was published but then deleted, maybe by accident. █
__________
^* To quote Pharma Patents Blog: “On December 2, 2016, Judge O’Grady of the U.S. District Court for the Eastern District of Virginia granted the USPTO’s motion to dismiss the complaint brought by Elm 3DS Innovations, LLC over the “holidays” declared December 22-24, 2015 when the USPTO experienced a power outage that impacted its electronic filing systems. The decision may leave other stakeholders wondering whether Elm was not the best party to challenge the USPTO’s action, or whether the action is simply unreviewable under the APA.”

Summary: The growing embrace of “China” as the convenient bogeyman for those who oppose patent reform and wish to see a resurgence of patent chaos, from which they personally profit at victims’ expense

THE USPTO may be in self-perpetuating denial about it, but software patents are a dying breed in the US as courts don’t tolerate them. The EPO, in the mean time, moves in the opposite direction, but we’ll leave the EPO out of this post’s scope.

Unhappy With Insufficient Number of Lawsuits and Collateral Damage

Paul Morinville, a prominent opposer of patent reform in the US (and part of Watchtroll’s ilk), whines that “PTAB procedures are now invalidating nearly 90% of all patents they evaluate.” Yes, so what? Alice and other cases are pretty clear about it and PTAB, unlike patent examiners, is not being pressured to just bless every patent in the name of “production” or “success” (again, a growing problem at today’s EPO).

Morinville picks on Google (large company as his latest scapegoat) and some of his online friends already heckle me for pointing that out. To quote his article: “Over the next decade, the Supreme Court would eliminate injunctive relief and then for all intents and purposes, invalidate their patents first under Bilski and then under Alice. The courts also changed the way claims were written, thus invalidating thousands of patents retroactively. The America Invents Act’s PTAB procedures are now invalidating nearly 90% of all patents they evaluate. The courts also radically reduced damages for patent infringement.”

That’s good. But wait until Morinville brings up the bogeyman again — the same bogeyman that David Kappos has been summoning recently.

Let’s Envy China

“With China strengthening its patent system,” Morinville says, in probably the most ludicrous part of the whole article. China is actually weakening patents by granting almost everything that comes through SIPO’s doors, causing a patent hyper-inflation and an epidemic of trolling. How is that desirable to anyone but the patent microcosm? These anti-AIA think tanks and lobbyists (like Morinville), who want more lawsuits and more litigation, continue to infest the Web and a lot of them congregate around Watchtroll these days. This pattern of China-blaming or China-shaming mirrors what the Democratic Party in the US has been doing with Russia as of late.

Watchtroll wants the USPTO and the courts to start another race to the bottom and give/approve patents on everything, just like SIPO in China. One might call it “the litigation lobby” — for all it want is more and more lawsuits (which the lobby profits from). Watch another new Watchtroll article, this time by Steve Brachmann, the henchman of Quinn. So people who don’t even develop anything insist that “China” is the threat and that “Chinese patent guidelines” are a threat to the US rather than to China itself.

What kind of post-truth nonsense have we sunk to here?

Watchtroll, in another new article, says “Keep it Cordial” while Quinn attacks everyone who does not agree with him, even judges (see the image at the top).

What a nasty Web site this is. For IBM’s patent chief to occasionally link to it probably takes some guts because it says a lot about IBM, which has gone rogue (even IBM employees now protest/object to the management over that infamous Trump fawning).

China’s Growing Trolls Epidemic

China’s situation with regards to patents is not good. As we have been pointing out since the summer, SIPO grants far too many patents, including software patents. “This is especially true for software patents where the scope of patent protection is rather vague,” says this new article from China, which also mentions Xiaomi, a company that got trolled through India, as we noted before. To quote the relevant part:

As Chinese smartphone brands work to carve out a spot in the major-league global smartphone industry, they are increasingly being dragged into an international patent war with foreign tech firms.

The latest case saw San Francisco-based audio tech firm Dolby Laboratories lodge a lawsuit against Chinese smartphone companies Oppo and Vivo in India, accusing them of infringing on its patented technology. Back in 2014, Chinese tech firm Xiaomi was barred from selling phones in India after Sweden-based Ericsson filed a complaint with an India court alleging patent infringement.

The Ericsson-Microsoft patent trolls strategy (using trolls as proxies) was mentioned here twice this month [1, 2] and Xiaomi is again being mentioned by the Microsoft Windows-powered IAM (with other Microsoft connections). It is again embellishing Microsoft's patent extortion against Linux as follows:

The May agreement between Microsoft and Xiaomi was undoubtedly the IP deal of the year and it was also an excellent example of how patents can play a role in broader commercial agreements. Under the terms of the deal, Xiaomi undertook to pre-load Microsoft products on to more of its mobile devices, the two sides agreed to a cross-licence and the US software giant transferred 1,500 patent assets to the Chinese company. The transaction provides an excellent foundation for Xiaomi as it looks to grow its business in the US and for Microsoft as it continues its penetration of the Chinese market.

This is misleading. All we have here is patent extortion by Microsoft against Linux, even in China where the government of China took a strong stance against it (even leaking a list of Microsoft patents that are secretly being sued to blackmail Chinese companies like ZTE). We believe that Huawei, the world’s leading Android OEM these days, is still able to resist Microsoft’s Mafia-like tactics. Microsoft repeatedly failed to sign a patent deal.

The bottom line is, China has become a dangerous place patents-wise. Is that desirable to anyone but the patent microcosm? Of course not. █

Summary: A look at reports that highlight activity of patent trolls, including less traditional kinds of trolls which act as satellites of larger companies that wish to distance themselves from bad publicity

DEPARTING for a moment from EPO coverage and not necessarily focusing on the USPTO either, let is be accepted that patent litigation in the US (usually “litigation central”) is down sharply and the golden age of patent trolls is ending, just in time for Ray Niro's death (he is the father of patent trolling).

IAM, which often speaks for patent trolls, bemoans these latest findings from Mark Lemley et al (proponents of patent reform and opponents of patent trolls):

But in a second paper published in the Patently-O Patent Law Journal, the team at ROL together with Professor Mark Lemley of Stanford Law School and Stanford law student James Yoon, have done a deep dive into the litigation data to see just how the litigation success rates vary for patents bought on the secondary market. The study combined two data sets: one for every patent lawsuit filed in 2009 and 2010 litigated to a substantive decision; and another which analyses USPTO assignment records to pick up all transactions and assignments for the patents in question. Ultimately, they were left with 516 litigation decisions in which the patentee won 24.2%. Just over half of the patents, or 280, had been transferred before any litigation began.

Overall they found that the patent owner won in 21.1% of the cases for patents that they had bought and in 28% of the cases for patents they had developed in-house. It’s widely accepted that winning an infringement lawsuit in the US these days is an uphill struggle, whether you’re litigating your own portfolio or one you have acquired, but the study added a lot of detail when it looked at how different types of entity fared when they litigated patents they had purchased.

Not only does it show that trolls’ business model is suffering; it also shows that certainty in litigation is quite low right now. Considering the low quality of many US patents (examination not as thorough as courts’ examination with expert witnesses), this is hardly surprising. The USPTO gave lots of worthless patents to many parties, and some parties (like IBM or Microsoft) received tens of thousands of such worthless patents, which are only worth something when used in bulk against a small plaintiff that cannot afford to challenge them all in court. This has indeed been Microsoft’s strategy against Linux and IBM now follows similar footsteps. These two companies increasingly act like trolls because they simply cannot sell products in various domains they had aspirations in (like Microsoft in mobile/devices).

The form of trolls has been shifting and changing. “PAE” is the buzzword du jour.

Patent troll CSIRO, which now faces legal barriers w.r.t. CRISPR, has begun making headlines again and someone sent us this report titled “CRISPR — the biggest biotech discovery in decades — is stuck in legal limbo”. This is the “last important patent interference proceeding to come before a panel of its judges,” Natalie Rahhal wrote for MIP in New York. CSIRO is not a traditional kind of troll, but in many ways it resorted to behaviour that is indistinguishable from trolls’. We wrote many articles about it around half a decade ago.

Trolling, however, is not just a passing fad because as quality of patents sinks to gutter levels in China patent trolls are starting to emerge and neighbours of China too gradually buck this trend. Some Korean banks are creating a patent troll in Korea, says IAM this week, noting the following:

It is worth pointing out that KDB Infra IP Capital is not the only SPF among MPEG-LA licensors; compatriot Intellectual Discovery as well as Japan’s IP Bridge are also pool members, having acquired SEPs from operating companies in their home countries.

We have written a great deal about MPEG-LA, a truly malicious patent troll headed by Larry Horn — himself quite a notorious character. MPEG-LA pools together quite a few patents from quite a few companies. When it comes to litigation, it acts very much like a troll, led by Mr. Horn. Quite a few patents of MPEG-LA are expiring or already expired, but this troll resorts to evergreening using its newer pseudo ‘standards’, as mentioned here before.

Right now it is important to recognise the strong correlation between patent quality and the severity of the patent trolling epidemic. We regularly remind readers that most patent trolls rely primarily if not solely on software patents, so in order to combat all that trolling we need to organise against software patents everywhere. █

SEVERAL years ago we wrote a lot of articles about the thug and troll Ray Niro, whose ugly legacy we summarised in this Wiki page. We have hardly heard his name for years, but today IP Kat pays respect to this father of patent trolling as if there is a duty to say something nice because he is dead. Our own list of articles about him can say a lot about how horrible a person he was, but obituaries in news sites are unbelievable pieces of hogwash. Won’t they just stop eulogising this thug?

Just because he’s dead doesn’t mean he was benign or even benevolent. He was a malicious person. As someone has just put it in relation to Acacia: “Argh. F****** patent troll. Fired people & sued people who actually made stuff, hence profitable quarter. Patent trolls…”

Niro was the initiator of all this. He has had so many victims. He has done enormous damage to the US, which is now infested by trolls. Speaking of which, IAM and their troll friends, who are hoping to expand in China (and are succeeding at that to some degree), have come to China with their agenda. Once of Intellectual Ventures, the world’s largest patent troll which is connected to Niro, Blumberg played a role in IAM’s extravaganza in the East. To quote the relevant part:

Talking trolls – While the debate around ‘patent trolls’ using poor quality patents to extract low value litigation settlements has dominated IP policy discussions in the US, there has been relatively little focus on it in China. To what extent that might change was brought up in the second plenary session today by Lenovo’s head of IP Ira Blumberg. Asked by session moderator Brian Hinman, the chief IP officer of Philips, to identify the things that keep him up at night, Blumberg said that his long-term concern was that if patent damages awards continued to increase, the number of patents available to buy continued to grow as a result of widespread filing and with preliminary and permanent injunctions available, then ‘patent trolls’ could become a major problem in the Chinese market. “If handled in the wrong way China could be beset by trolls,” he commented. As well as the prospect of higher damages and the growing threat of patent owners obtaining injunctive relief, the real threat to the Chinese market stems from the fact that it is such a large manufacturing hub. That gives patent owners great scope to disrupt a company’s production facility or its supply chain and might mean foreign and local businesses start to look to other jurisdictions to make their products. “If courts give out big awards then the natural reaction will be for companies to relocate their manufacturing,” Blumberg warned. “China needs to be very careful about how its patent system develops.” Once of Intellectual Ventures, Blumberg has become a vocal critic of trolling over recent years. As we have seen in the US, though, the problem with focusing on finding solutions to combat the perceived threat this business model poses often ends up causing a lot of unintended harm. The Chinese authorities would do well to consider that when they hear the kinds of dire warnings issued by Blumberg this morning. He does have a point, but careful, nuanced policy-making is perhaps the best way to solve any problems that arise. Looking to Europe, rather than the US, and finding out why there is no real troll problem there may also be a good idea. What is clear, though, is that as the Chinese patent litigation market does become more high-profile and more high-stakes, the troll debate is going to have to take place in the country.

This disease which is patent trolls needs to be purged. We can only remember Niro as the horrible person who started this disease. After his death many can breathe a sigh of relief, but his death alone isn’t enough to make his legacy of trolls go away. █

Summary: The race to the bottom (of patent quality) in China, the growth of patent trolls in the region, and the ruinous litigation strategy which now spills over even to the US — through the Eastern District of Texas — and may inevitably come to Europe (especially if the UPC ever becomes a reality)

NOT ONLY the USPTO but also SIPO, the patent office in China, permits patenting of software. We have been writing a growing number of articles about SIPO earlier this year as its policy generally got worse and the number of patents filed/granted has gone through the roof, only by lowering the standards of patents and thus their actual worth. Plainly put, China became just an assembly line of low-quality patents — something which is a recipe for trouble because patent trolls, for instance, can leverage such patents in bulk against those unable to defend themselves and demand ‘protection’ money, irrespective of the actual merit of the patents in question.

The other day we saw someone writing that “[a] Chinese company bought patents from Intellectual Ventures – another sign of the growing importance of IP in China,” but actually that’s just a sign of growth of patent trolling in China. Getting patents from the world’s biggest patent troll (groomed by Microsoft and Bill Gates) is not a sign of progress and the article cited came from the patent trolling proponents at IAM, whose latest issue continues to groom patent trolls and whose blog shows that those notorious/defunct patent courts in Texas are attracting the SLAPP equivalent of patents. Right now even east Asia exploits these courts and targets of theirs include Samsung, which develops many products with Linux in them.

IAM never viewed patent trolls as a bad thing (they have been promoting this in Asia recently, with growing focus on Korea, China, and even Japan) and based on this tweet, today they’re “very excited about IPBC Asia 2016, which starts in Shanghai on Sunday.”

What will they be saying to people at the event and what will they be telling readers? See this new article from the ‘magazine’: “Defending a patent case in the brave new world of Chinese patent litigation” (as if what they need more of is litigation that enriches lawyers rather than engineers).

Based on the past week’s reports, China’s patent maximalism (and patent trolling that ensues) is a growing epidemic [1, 2, 3, 4, 5, 6] and this article by Glyn Moody, titled “China Files A Million Patents In A Year, As Government Plans To Increase Patentability Of Software,” says it’s a very misguided plan. “Good luck with that,” he wrote sarcastically. “As the book “Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk” by James Bessen and Michael J. Meurer chronicles, software patents and their associated lawsuits have imposed a huge net cost on the US technology ecosystem. It’s mostly patent trolls and lawyers who have benefited from the thicket of intellectual monopolies that has threatened to strangle innovation. The same is likely to happen in China as it foolishly follows the US down the path of allowing patents on everything under the sun.

“That may be good news for the West in the long term, as the Chinese tech industry descends into an orgy of patent infringement suits that saps its resources and energy. But in the short term, many of the Western companies that are operating in China are likely to get caught up in this expensive, pointless mess too.”

China’s patent trolls are coming to other countries too, so the problem impacts not only China itself. See IAM’s article/blog post that says “Chinese company scores injunction on four Samsung devices over “pattern unlock” patent” (software patents).

“Last Sunday,” it says, “a Chinese-language news site based in coastal Fujian province reported that a local company had earned a surprising and difficult victory over Korean company in a four-year-old patent infringement battle. In a first-instance decision, the Intermediate People’s Court of Fuzhou is said to have ordered Tianjin Samsung Communication Technology Co to stop the production and sale of four infringing handset models, and pay damages of 10 million yuan ($1.5 million) to the plaintiff, Fujian ETIM Information & Technology Co.”

Suffice to say, IAM supports all this chaotic policy, being a site that’s for and by patent maximalists. It even shames those who try to reform the system to discourage trolling. Not too much of a surprise given that IAM’s funding sources include trolls… █

Reference/related: Affaire Bygmalion (Battistelli's political party when he was Mayor)

Summary: The warning signs coming both from the East and from the West, demonstrating the pitfalls of a policy too permissive on patents and thus on litigation

THERE IS A lot to be said today about the EPO and the UPC. The cautionary tale here is what happened in the US and what is still happening/developing in China. Both places fostered patent maximalism, resulting in patent trolling.

The patent microcosm, as expected and as we last noted yesterday, obsesses over whatever can weaken PTAB and strengthen bad patents like software patents (abstract concepts, not devices or chemicals etc.) so it latches onto Unwired Planet v Google right now.

“Who benefits from this? The patent meta-industry, obviously. At whose expense? Everybody else’s expense!”Over at the EPO-friendly MIP, Mr. Loney publishes article that says “The Federal Circuit’s Unwired Planet v Google decision will lead to more rigorous review of covered business method review petitions by the Patent Trial and Appeal Board and discourage filing” (which is a not good thing). Another new article, this one by Professor Dennis Crouch, demonstrates that the patent troll of Ericsson is doing a lot of damage to patent reform in the US. We already mentioned this the other day, with about two dozen articles from patent law firms that want to eliminate PTAB and return to patent maximalism (and restraint minimalism). These trolls of Ericsson already begin to leave their mark or make an impact in Europe as well, emboldened by the EPO and filing lawsuits in London.

The motivation here is clear to see: less barriers to and more patents in a lot more disciplines. Who benefits from this? The patent meta-industry, obviously. At whose expense? Everybody else’s expense!

Over at the EPO-friendly IAM, some time this morning it was claimed that the hotbed of patent trolls, China, is setting the ground for patent chaos in all of Asia. It was separately noted that a Microsoft patent extortion proxy, Intellectual Ventures, will be embracing yet another proxy (it reportedly has thousands of them!) to operate in China. Here is the key part:

All the available evidence points to Intellectual High-Tech KFT being a vehicle controlled by Intellectual Ventures (IV). It has made numerous acquisitions of patents over the last few years – the vast majority from Japanese corporates – and more than a fair few of these have ended up with III Holdings 3 LLC, an entity associated with the third iteration of IV’s Invention Investment Fund.

It is possible that there is an IV connection to the CPT transaction too. The Taiwanese company’s assignment to HZW is its first transfer of patents to a third party since July 2011 – when it assigned a substantial number of assets to none other than IV. At the time, IV’s man in Taipei was Don Merino, who later joined Transpacific IP and is now running his own IP strategy consultancy on the island. It wouldn’t be a surprise if some of the same people were involved in getting this deal done.

Great! More patent trolls.

Remember that the number of patents is not a measure of innovation, nor is it a reliable measure of wealth of countries (unless patents are expensive to pursue and cheap to come up with). In China and in the US the quality of patents is truly appalling at times. Software patents, for instance, are not innovative at all; they are a dime a dozen and some are so trivial that it’s jaw-dropping.

“Remember that the number of patents is not a measure of innovation, nor is it a reliable measure of wealth of countries (unless patents are expensive to pursue and cheap to come up with).”Earlier this week Benjamin Henrion said that “counting the number of patents is not measuring innovation. And when you start mixing a variable with another one, more meaningless.”

He alluded to something from WEF (Switzerland with its patent hype) that said: “This map tells you everything you need to know about #innovation in Europe” (Switzerland likes such maps because they’re convenient propaganda for Switzerland).

Henrion and I both know it’s nonsense. A lot of patent examiners know that too. As for patent law firms, they probably lie to themselves. As the saying goes, they’re paid not to understand (or it’s hard to understand something which you’re paid to not even wish to understand).

“When you sell patents for a living,” I told him, “then patents are the only thing that counts.

He rightly asked “again measuring innovation with patents?”

“Don’t take Europe down the path of patent maximalism or we shall all suffer for decades to come (until erroneously-granted patents expire).”Maybe the number of patent lawsuits too will become a false measure of innovation. If so, then the US has a serious innovation deficit because, as even Professor Dennis Crouch’s site put it this week, patent lawsuit are shown sharply. To quote the relation to AIA (patent reform in the US half a decade ago): “Prior to the America Invents Act of 2011, the courts allowed plaintiffs to join multiple parties as defendants in a single lawsuit – even when the only relationship between the parties was that they all were alleged to infringe the asserted patent. The AIA blocked those multi-party actions in its non-joinder provision. The result was that the number of lawsuits filed per year rose post-AIA even though the number of accused infringers actually dropped. This also means that anyone looking at trends in infringement actions needs to carefully analyze the data if their time span extends across the AIA enactment date.”

The US is cleaning up its act by axing a lot of software patents and it shows. What we learn from this is that the worse the quality of patents becomes, the more litigation takes places (and thus more money goes into the pockets of patent law firms).

Don’t take Europe down the path of patent maximalism or we shall all suffer for decades to come (until erroneously-granted patents expire). █

Reference: Hyperinflation

Summary: China’s obsession with patent quantity rather than quality (a disease that has infected the current boss of the EPO) is a cause for concern, except perhaps to patent lawyers who in the short term enjoy the temporary inflation (before hyper-inflation and implosion)

IN GERMANY at the end of the week we found this new article from Stefan Krempl (who often covers EPO scandals) — an article which deals with the subject we wrote about 2 days ago. IAM wrote about it as well and it was rather refreshing because, for a change, IAM actually explained that patents are a terrible measure of “innovation” — however one defines it. To quote IAM:

This blog has said it before.; but it is worth saying again: patent filing statistics are not a measure of innovation. They may be indicative of a country’s capacity for invention and innovation, they may tell us something about efforts to transition to a more ‘knowledge-based’ economy; but, then again, they may not. In fact, all they can really tell us with certainty is how many patent applications are being filed. Innovation is something of a qualitative, subjective concept. Patent filings, on the other hand, are a simple and objective matter of whole numbers. The latter is at best an inadequate metric for understanding the former.

Meanwhile, in another German site/blog called FOSS Patents, this time (for the first time as far as we’re aware) not composed by Florian Müller, “more rationality and a shift to China” was covered. Actually, as we noted here the other day, China shoots itself in the foot with patents and it will pay for that in the long run. China has adopted patent maximalism to the point where almost every crappy application becomes a granted patent and lends to a global inflation (if not hyper inflation) that will devalue all patents. Wait and watch what happens in the coming years/decade. China is already fast becoming a hotbed of patent trolls. █

Summary: India and China are moving in somewhat opposite directions when it comes to patents, as one realises their impact on people whereas the other chooses to repeat the mistake made by the United States (patent maximalism for corporate gains)

TECHRIGHTS spent over a decade writing about the USPTO and about as long writing about the EPO, especially when President Brimelow made mistakes “as such”. Patent scope is a crucial decision which impacts many sectors in a country; it’s simply misguided to believe or to think that more patents would translate into more innovation and commonwealth. It doesn’t work that way.

The latest IAM Weekly newspaper says in the “Editor’s round-up” that “we wondered whether one of India’s leading IT companies has all but abandoned software patents, looked at a patent-driven rapprochement between InterDigital and Huawei, and explained why Asian investors are sinking their money into IP management businesses.”

“Patent scope is a crucial decision which impacts many sectors in a country; it’s simply misguided to believe or to think that more patents would translate into more innovation and commonwealth.”We covered all of these (in recent days) and IAM has just published this “international report” about India, where software patents continue to be disallowed (excellent policy, which is routinely under fire from foreign multinationals, not domestic giants).

India got its balance right on patents (also when it comes to medicine, not just software), so why is China going the other way? This is already harming some of its own industry and attracts a great deal of trolls (making nothing and trying to extort everyone for money).

According to this new article from IAM, “IP analytics start-up PatSnap has closed its Series C funding with investments from Sequoia Capital’s China arm and Beijing’s Shunwei Capital Partners. The deal further underlines Asia-Pacific investors’ growing interest in IP management and strategy services.”

“Lack of quality control at SIPO leads to a false sense of growth, as is the case at the EPO under Battistelli where old files are pulled out and rubber-stamped for fake growth or illusion of growing demand, clout, etc.”This shows yet more of that obsession with patents, even in domains that require none of them. Companies that produce nothing want to make money and they are essentially a kind of trolling industry — like that which threatens to expand in Europe if the UPC ever becomes a reality.

Based on IP Kat‘s Tian Lu, there was some UPC propaganda in the EU-China IP Forum earlier this month [1, 2]. To quote a portion from the second part: “This panel on specialist IP courts also saw some optimism from Pierre Veron (member of the Drafting Committee of the Rules of Procedure of the Unified Patent Court and now a member of the group of experts advising the Preparatory Committee of the UPC), who expressed the view that even without UK participation post-Brexit, the other participating Member States of the EU would press ahead with the UPC project in the long term and would seek to ensure that the UPC will be a success.”

We are going to deal with UPC in a separate post, but let’s just say that it’s troubling to see these overlaps between China and Europe and it’s not because of fear of China (Chinophobia) but because of SIPO.

“China is fast becoming a hotbed of litigation and it already ‘exports’ such litigation to other countries (many reports on that these days).”Lack of quality control at SIPO leads to a false sense of growth, as is the case at the EPO under Battistelli where old files are pulled out and rubber-stamped for fake growth or illusion of growing demand, clout, etc. The SIPO examiners, as many professionals out there will agree/can attest to, just grant a lot of patents composed in Mandarin right and left. There are two new reports, one from MIP and another from IP Watch, which amplify SIPO’s propaganda, citing a WIPO report. Some Chinese patents that are counted at the EPO are not even translated into a European language, let alone examined/validated for their quality, yet here we have another repetition of the misleading claim that China ‘leads’ by having a crappy patent office that accepts crap applications. If one was to judge the USPTO similarly (over 10 million patents and counting), the EPO would look rather bad.

If only China adopted a saner approach to patenting (like in India), the world’s high-tech industries would be better off. China is fast becoming a hotbed of litigation and it already ‘exports’ such litigation to other countries (many reports on that these days). This problem is likely to become more apparent in the coming years. █

Summary: Chinese policy on software patents and the acceptance of patent trolling is bad news not just for China but for companies everywhere, as they too become vulnerable to trolls and to Chinese companies that file cases in the West

NOT ONLY the EPO and USPTO wrestle with the question of software patenting, as we last noted in our previous post. According to this new article (behind paywall), “US-based IP owners [read trolls] to look to Europe as a place they can get better, more effective rights,” Benjamin Henrion wrote today.

“It’s a real problem and it can destroy what’s left of Europe’s software industry (discouraging development and/or investment).”We have been warning about this for a while and we already see patent trolls coming to the UK, emboldened by the EPO’s bad policies. It’s a real problem and it can destroy what’s left of Europe’s software industry (discouraging development and/or investment). Do we want London to become another EDTX?

Texas, based on this new tweet, attracts ‘business’ like patent lawsuits. By not serving justice but instead serving trolls and aggressors it now welcomes ‘business’ from Asia. “Hitachi filed patent suits in EDTX v Huawei and ZTE,” IP Hawk wrote and IAM commented on it as follows: “Japanese company takes on Chinese companies in EDTX. Can’t happen very often.”

IAM is both a proponent of patent trolls and a tracker of them in east Asia as of late (many articles about it, some of which we wrote about before). China/Far East trolls are a growing problem also for Western companies because some large Chinese firms already take their lawsuits to EDTX (Texas) and demand a lot of money. China’s state-connected telecom ‘arm’, Huawei, reportedly liaises with a large patent troll, InterDigital, which we covered here before (even a decade ago). To quote IAM’s article: “When Huawei and InterDigital revealed that they had entered into a broad worldwide licensing agreement recently, it brought to an end a years-long dispute over standard-essential patents that at times had been rather ugly. Now, relations between the two companies couldn’t be more different as they look to partner on future research and development efforts – and, potentially, on monetising patents, too.”

“Why is China doing this after working to expose Microsoft’s patents that had been used to extort Android device makers across China?”The trolls epidemic sure spreads fast in China this year. “Enemies no more,” one person wrote, “patents bring InterDigital &Huawei together. Consequences could be significant.”

It’s especially important if one considers what kind of patent these are. Henrion says “no glory for the trolls.” However, for them it’s quite a win and definitely more glory (when the giant of China gives legitimacy to a such a giant troll). This gigantic deal will probably help InterDigital go after a lot more companies, even in China.

Why is China doing this after working to expose Microsoft’s patents that had been used to extort Android device makers across China? Well, China seems eager to destroy the progress it made by letting SIPO off the hook, pursuing just quantity (not quality) of patents, very much like Battistelli at the EPO.

This new article by Peter Leung was publishes yesterday and said “China Looks to Boost Protection for Software Patents”. Have they made it official now? To quote Bloomberg:

A draft revision to China’s patent examination guidelines released late last month will likely make it easier to get software and business method patents.

Other proposed changes to ease the standard for amending granted patent claims should also help patent holders and, especially, patent assertion entities, practitioners say.

The draft guidelines follow developments that some have interpreted as evidence of China’s maturing and improving environment for IP owners. The guidelines are not law but rules for instructing examiners at China’s State Intellectual Property Office (SIPO) on how to properly examine patent applications.

It’s hard to see what China has to gain from this; SIPO definitely gets more power and money, but at whose expense? Moreover, why has SIPO not learned no lessons from the USPTO’s mea culpa? █

Summary: Assessment of patent systems based on litigation (or “enforcement”) still a misguided yardstick but a glorified theme in the news sites controlled by (and for) the patent ‘industry’

“BEWARE,” AntiSoftwarePat[ents] wrote the other day, “Patent Trolls pretending to be ‘Inventors’ https://www.cta.tech/Policy/Issues/Patent-Reform/Urge-Congress-to-Support-Patent-Reform.aspx … #FixPatents because #PatentsMatter pic.twitter.com/qcdWnTA8v0″

The death of software patents may be already upon us, but now we need to ensure that these patents don’t cross the Atlantic and spawn new patent trolls in Europe. They have already crossed the Pacific and are growingly an issue (even an epidemic) in east Asia. We wrote more about this over the weekend and last weekend; in fact, this has been a recurring theme^* here since about 2 months ago. It seems like a runaway issue as while it’s gradually dying out in the US the same symptoms can not been seen elsewhere and the EPO under Battistelli implements or emulates some of the worst aspects of the USPTO, including software patents in Europe.

Managing IP (MIP), in the face of strides against software patents in the US, sets up an event that seems to be promoting a case that helps patent trolls (Halo). To quote this new post about a so-called ‘webinar’ (usually dialogue/monologue with some programme): “Federal Circuit and district court rulings interpreting the Supreme Court’s Halo opinion on enhanced damages were analysed in a webinar presented by Managing IP and Fitzpatrick” (we can envision the content based on the presenters^**).

These “enhanced damages” would be mostly applicable to patent trolls (or serial patent tax collectors) and this decision will, without a doubt, embolden some of them to make them more demanding/aggressive in courts. They can broaden the number of victims and the ‘protection money’ extracted from each.

On to a similar topic, Florian Müller revisits FRAND — a subject he used to habitually cover back in his Android-hostile days. This time it’s about automotive companies, namely Daimler and Hyundai. To quote:

About four to five years ago, there was a time when “FRAND Patents” would have been a more suitable name for this blog than “FOSS Patents”: the pursuit of sales and important bans over standard-essential patents (in violation of pledges to license them to all comers on fair, reasonable and non-discriminatory terms), royalty demands far out of the FRAND ballpark and exorbitant damages claims were the three most important symptoms of a huge underlying problem, and I did what I could to shed some light on what was going on and going wrong.

While I’m glad that some of the worst potential consequences were avoided at the time, I have realized that there is some unfinished business in that area. Antitrust settlements and court decisions were helpful. Some of them, such as Judge Posner’s 2012 Apple v. Motorola ruling, were really great. But attempts to abuse FRAND-pledged SEPs are still rampant. Various SEP owners are still seeking injunctions (not in all jurisdictions but definitely in some). Royalty demands and damages claims still appear to be out of line in too many cases.

These patents are problematic for many reasons, especially for Free/Open Source software. To see automotive companies joining this wave is troubling to say the least and now that automotive companies are also patenting the act of driving cars we find this new article which speaks of “Patents Driving Autonomous Car Technology”. To quote a portion: “Autonomous cars is a new Technological leap in the field of transportation. Imagine millions of cars, heavy duty vehicles, ships etc. being driven without drivers which will save a lot of human labor. Also, if such technology makes commuting safe and makes you reach your destination in time with 100% safety, it will save many innocent lives which are lost every year due to human carelessness or negligence while driving.”

There are already some patent trolls in this area, if not the dashboard level (e.g. navigation) then AI.

We continue to worry about patent trolls, about FRAND (or RAND, or SEPs) and of course about software patents, but at the core of these issues we have patent maximalism, or the belief that the more patents exist and are actively enforced against most entities, the better off society will be. See this new article (behind paywall) from IP Watch to witness a symptom of this disease. Called the “Online [Patent] Enforcement Index,” what we have here is “Konstantinos Alexiou [who] created the Index Of Patent Systems Strength, which ranks the effectiveness and efficiency of the patent systems of 49 countries.”

Are people serious about this? Is this what it boils down to? Ranking countries based on patent activity, as if the more means merrier? Totally misguided and dangerously so! █
______
^* Days ago IAM wrote about patent trolls which now operate in Korea, notably “Intellectual Discovery”. To quote somewhat of a background that’s appended to the article: “Intellectual Discovery, on the other hand, saw its CEO Kwang-Jun Kim quit last month amid what he claimed to be a budget crisis at the SPF. Quoted in a feature in the most recent issue of IAM, Kim suggested that Intellectual Discovery would become a fully privately held entity, and that hook-ups with other patent monetisation companies may well be on the cards. “Going private means we would have a little more freedom – we would be able to broaden our horizons, perhaps working with non-Korean operating companies and partnering with other NPEs, if those scenarios are consistent with our strategy and goals,” he told me. The DSS transaction seems to fit this picture pretty well; but it is likely to be one of the last deals to have been done largely on Kim’s watch. Whether the person who steps into his shoes continues along this course remains to be seen.”

^** MIP is very pro-plaintiff, as one might expect the messenger of patent law firms to be. Here is its new article about how “Philips and Masimo have ended their long-running dispute over blood oxygen measurement patents” and here is an update from the Eastern District of Texas, where “Medtronic has been ordered to pay $20.4m in damages by an Eastern District of Texas jury for infringing a doctor’s patents related to idiopathic scoliosis treatment” (guess who pockets a lot of this money other than the plaintiff).

Summary: India’s retreat from software patents goes all the way to the top (huge businesses) and includes even Microsoft-connected companies like Infosys, where patent filings have reached an all-time low (single-digit figures)

THIS new article about the ITC speaks about patent shakedown in China courtesy of Qualcomm, which is in antitrust waters in more than one continent and is widely regarded as one of the worst patent bullies out there. Here is what the article says:

Mobile chipmaker Qualcomm Inc. (QCOM) was dealt a victory when the U.S. International Trade Commission voted Tuesday to look into Qualcomm claims that some of the mobile devices made by Chinese companies are infringing on the semiconductor’s hardware and software patents.

Notice the mention of “software patents.” This kind of shakedown in China is also accomplished using proxies in India, as noted here the other day. However, while India makes many software products it does not allow software patents (smart move!) and these patents are evidently a passing fad. Yesterday IAM said that Infosys CEO Vishal Sikka, who is openly against software patents, has almost entirely abandoned them. The company now worries more about Donald Trump [1, 2] than about patent protection. “The company’s annual report for 2015-2016,” according to IAM, “says it has 292 patents issued by the USPTO, a handful of others in Australia, Singapore and Luxembourg, and an aggregate of 424 pending patent applications.”

“Maybe it will also defect from Microsoft and increasingly embrace GNU/Linux and Free/Open Source software (FOSS), as Wipro attempted to do in recent years.”Patents filed (by Infosys) are just 9 in 2015/16, 19 in 2014/15 (right after Sikka became MD and CEO), 79 in 2013/14, 97 in 2012/13, 153 in 2011/12, and 91 in 2010/11. It’s not hard to see the trend here. Will it be zero next year?

Infosys has traditionally been like a Microsoft proxy in India (we wrote literally dozens of articles with examples of this), so it’s encouraging to see it diverging away from software patenting (unlike Tata, which is still yearning for them, as recently as last month). Maybe it will also defect from Microsoft and increasingly embrace GNU/Linux and Free/Open Source software (FOSS), as Wipro attempted to do in recent years. █

Summary: The EPO under Battistelli is increasingly just a pipeline of bogus/low-quality patents which fuel patent trolling all around the world and also in Europe (harming the European economy)

THE EPO under Battistelli’s awful leadership gradually becomes more software patents-friendly, whereas the USPTO is moving away from such patents. Such is the nature of the Office under Battistelli, the man who will be remembered as the person who brought down the whole Organisation, severely punishing staff that dared warn about it.

Software patents at the EPO should not be allowed, yet in two counties/continents that forbid these (India also) the EPO keeps promoting these. We have mentioned this many times before, especially last month. Today the EPO did it again and also today an article was published by Tufty The Cat (quite well known in patent circles). “The EPO issues invalid patents too,” said the headline and here is what the body said:

The sole drawing of the patent is shown here on the right. Basically, the patent claims a hairdressing salon in a shipping container (or some other kind of mobile structure) with a window cut into it. This is not, however, even the broadest claim. Claim 9 defines “A mobile structure for a hairdressing salon according to one of claims 1 to 7″. According to the usual EPO interpretation of the word “for”, this would cover any shipping container.

How this application got through the EPO system is at the moment quite beyond me. From a quick review of the prosecution file though, it seems that the examiner was persuaded that adding a window made the invention allowable over US 2006/137188 A1. Just in case anyone has any doubt about whether the invention is novel, let alone inventive, there is prior art in the form of shipping containers repurposed as hair salons such as this article from 11 June 2011 (before the 23 August 2012 priority date of the patent). For further avoidance of doubt, the internet archive wayback machine (which is normally accepted by the EPO as evidence of publication date) confirms that the article was available on 16 June 2011. One of the photographs in the article, shown below, seems to have everything required according to claim 1. Incidentally, the search that led me to this took about five minutes.

The subject of awful patent scope and EPO disregarding the instructions from politicians was discussed in Dutch Parliament yesterday. We have received more information since then and also engaged in a short discussion on the subject with the politician in question. One EPO insider said to us that a “similar debate should simultaneously take place in Germany, Austria and Belgium.”

Speaking of the EPO pushing software patents not only into Europe but potentially India too, see this new article from Jack Ellis at IAM. One patent maximalist said that “Dolby Selects India for Asserting Patents Against Chinese Companies,” but the actual headline is “Dolby is the latest foreign patent owner to select India for asserting against Chinese companies” and it shows a Western company playing a proxy game with patent predators in India (also see IAM’s remarks on this Harman acquisition):

Dolby has reportedly sued Oppo and Vivo in the Delhi High Court, accusing the two Chinese electronics and smartphone manufacturers of failing to pay appropriate royalties for use of its patented technologies. Dolby follows Ericsson in seeking to assert its rights in India, something that may indicate that the jurisdiction is growing in importance from an IP strategy perspective.

BGR India reported on Friday that the Delhi High Court had issued an order relating to cases that the audio technology company had filed against a number of defendants, including Oppo, Vivo and their parent firm BBK Electronics, as well as a number of affiliated local entities. IAM contacted Dolby on this matter, but the company declined to comment.

“Dolby follows Ericsson,” says the above and as we noted last year, Ericsson, a European company, officially brought patent trolls to Europe (to London in fact). █

Summary: A roundup of news about patent trolls, in particular their growth in east Asia and growing interest from parasitic firms like IBM and Microsoft (which have not so much left but a pile of software patents amassed in past years)

CHINA’S SIPO, which the EPO‘s President got close to (and increasingly imitates both in terms of degrading labour standards and poor patent quality), is becoming the generator of the world’s biggest platform for patent trolls. We have been pointing this out for a number of months now. It’s a harrowing scene because it means that an epidemic that (thus far) was almost exclusive to the US has spread like a pandemic to the world’s largest population.

A new article from John Collins and Steve Lundberg (yes, that crude software patents booster from Schwegman Lundberg & Woessner) is titled “Barrier to Business Patents Softening in China” and it reveals that China — like today’s EPO — encourages more patents irrespective of their quality and it already attracts patent trolls that utilise software patents. Has China learned nothing from the mistakes of the United States — mistakes that even government departments now openly speak of?

According to IAM, a site exceptionally sympathetic towards patent trolls (some of them pay IAM), says that “Qihoo 360 was actually the first company to have a GUI design patent granted.” Now it’s a highly litigious company, IAM says. With software patents, as expected, come the patent trolls to Asia, where patent quality nearly got abandoned (same mistake which the US had made). Here is another new example from IAM, though it does not use the “T” word. These trolls operate not only in China and as we pointed out before, some of them now go abroad and sue Western companies in plaintiff-friendly courts like those in Texas. They will certainly come to Europe as well, in due course. At the EPO, as we have repeatedly demonstrated, patent examination is too lax/lenient — a recipe for disaster for existing EP holders, if not future ones too. According to this tweet from the EPO: “Luis Ignacio Vicente del Olmo of @Telefonica : “The number of patent applications is increasing” #EPOPIC pic.twitter.com/BcmVRxswtD”

Does that mean more innovation or aggressive patent thickets that lock the ‘small guy’ (or business) out of the market?

As another EPO tweet put it the other day: “Luis Ignacio Vicente del Olmo: ” A smartphone may include more than 5000 patent families” #EPOPIC”

Wonderful! “Luis Ignacio Vicente del Olmo speaks about new challenges for IP as a result of the new technological paradigm,” the EPO says, adding that: “Luis Ignacio Vicente del Olmo of @Telefonica talks about trends in #ICT sectors & transparency of patent data #EPOPIC pic.twitter.com/wApNe223C1″

Some of that data comes to and from Asia, as this tweet notes: “Luis Ignacio Vicente del Olmo: “The European market is very attractive to companies outside Europe like from Asia & the US” #EPOPIC”

So how long before Chinese patent trolls come to Europe, even without that UPC (which would greatly assist them if it ever became a reality)?

IBM, which is already suing small companies using software patents, seems to salivating and drooling over litigation in China. See this tweet from IBM’s Manny Schecter, boasting that “China’s patent-lawsuit profile grows. http://www.wsj.com/articles/chinas-patent-lawsuit-profile-grows-1478535586 … via @WSJ” (article here but with limited access to non-subscribers).

“When a Canadian patent-licensing firm wanted to sue Japanese electronics company Sony Corp., it chose an unlikely venue: China.” That’s what the report says. IBM already sold quite a few pieces of its business to China and we can envision IBM trying to impose patent licensing deals in China, if not lawsuits too (for those not sufficiently ‘obedient’).

According to this new article from Liu, Shen & Associates, the notion of obligatory patent tax has already spread to China. “Standard essential patents have long been a hot topic in China,” they argue. “Hou Guang and Jia Hongbo of Liu,Shen & Associates explain the history and analyse recent developments…”

Standard essential patents (SEPs) block the use of Free/Open Source software (FOSS) and much more. IBM used to lobby for this kind of mess in Europe and look where it led to; rather than stop SEPs/FRAND IBM told the European authorities that software patents promote FOSS innovation (which is of course a lie).

Design patents in Taiwan (arguably part of China, depending on who one asks) are discussed in another new article. Japan and China phased in this nonsense, as we noted the other day and sooner or later we expect China to overtake the United States in terms of patent trolling, including trolling in places/parts of the US where litigation is ubiquitous and low-quality patents are routinely tolerated (not just Texas, the trolls’ capital). See this article titled “As litigation increases, China follows Japan in exploring state-subsidised IP infringement insurance”. It says that “[p]atent authorities in both China and Japan have recently brought forth proposals for patent office-subsidised IP infringement insurance. SIPO says it will focus on offering protection to Chinese companies expanding outside the country, while the JPO anticipates local SMEs using its insurance product both offensively and defensively in China. As litigation increases in China, and more Chinese companies expand abroad, companies throughout the region need all the IP risk management tools they can get.”

What a total waste of resources and energy. They handicap their own economy.

Over in the United States, says this article from IAM, Rockstar (a patent troll connected to Microsoft) pursues more shakedown, even though the FTC deemed this damaging to the country. IAM, being the trolls’ apologist that it is (or denier of patent trolling), attacks the FTC’s study which bemoans patent trolls (for the second time in less than a month!) and says this:

One of the significant outcomes of the Federal Trade Commission’s recent report on patent assertion entities (PAE) is that it very clearly differentiated between two types of licensing business.

On the one hand there were the litigation PAEs, who use the threat of infringement litigation to drive a large volume of low-dollar settlements. They, it was strongly implied, largely engage in the kind of abusive practices that many in the patent community criticise and drive a high number of lawsuits.

We are increasingly convinced that IAM is very eager, with money from Microsoft-connected patent trolls on its table, to see patent trolls go global. IBM too seems to like the idea, as the company has little left other than a pile of patents (same as Microsoft). Some companies are simply transforming into megatrolls; see what Blackberry does in Texas because its products are failing to sell. █

Summary: The latest examples of patent trolls around the world and a report about their activity or what fuels their growth (mostly software patents)

PATENT trolls thrive in countries that have software patents. It started with the USPTO (US), it later started to happen in the EPO (Europe), and it is already becoming an epidemic in SIPO (China), as we repeatedly warned in recent months. There are several reasons for this correlation and we explained these before.

Software patents are the weapon of choice of patent trolls in almost all cases (some say 70%). “Of the 16 patent lawsuits filed today,” wrote United for patent Reform the other day, “11 were filed by patent trolls — 69%. It’s time for Congress to take action to #fixpatents!”

They are right, but they suggest a fix that tackles trolls themselves, not the patents they tend to rely on. One part of the solution, whilst also pursuing end of all software patents, was mentioned by the EFF the other day when it wrote: “This bill would close the venue loophole in patent lawsuits. https://act.eff.org/action/fight-patent-trolls-support-the-venue-act-of-2016″

This mostly deals with the pattern of patent trolls choosing Texas. It does not deal with trolling itself or the type of patents that they usually buy to use against a large number of companies, especially small ones that cannot afford going to court. Vera Ranieri from the EFF very recently published the article “A Bit More Transparency in Patent Lawsuits” and in it she wrote:

Should patent lawsuits filed in federal courts be hidden from the public? We don’t think so, especially where a patent owner may be suing multiple people based on the same claim. Apart from the general principle that legal processes should be open to the public whenever possible, as a practical matter sealed filings prevent other people under legal threat from the same person from learning information that may be crucial to their own defense.

That’s why we were concerned when we noticed that numerous court filings and at least three court orders were made entirely under seal in a patent case. We contacted the parties to the lawsuit, Audible Magic and Blue Spike, and asked them to file public versions of significant court filings, redacting only information that was truly confidential. Audible Magic quickly agreed to EFF’s request. However, Blue Spike opposed it entirely, forcing EFF to intervene in the case and ask that the court order the filing of public-redacted versions of the sealed filings.

The court granted EFF’s motion to intervene and our motion to unseal. The court ordered Audible Magic and Blue Spike to submit redacted versions of any document a party wished to keep partially sealed. Again, Audible Magic quickly complied. The documents revealed, among other things, that Blue Spike had not created a product it advertised, called the “Giovanni Abstraction Machine,” despite Blue Spike’s public statements indicating otherwise. We also discovered allegations that Blue Spike’s owner, Scott Moskowitz, took the technology that formed the basis of some of Blue Spike’s patents from company called Muscle Fish,1 and therefore shouldn’t have gotten those patents in the first place. (The parties settled before trial, thus leaving the question of Moskowitz’s alleged misappropriation, and also the related validity of Blue Spike’s patents, unanswered.)

This is a very famous (or infamous) case and it’s one among many cases that EFF speaks about it, directly or indirectly. The focus on trolls at the EFF was very prominent last month [1, 2, 3], but also at the end of the month it published this article (cross-posted in TechDirt) about stupid software patents. Here is the latest ‘winner’:

Stupid Patent Of The Month: Changing The Channel

Is somebody really claiming to have invented a method for switching from watching one video to watching another?

This question comes from a lawyer at the New York Times, as an aside in an interesting article about the paper’s response to a defamation threat from a presidential candidate. Apparently, that defamation threat distracted the his legal team from their work on another task: responding to a patent troll. Intrigued, we looked into it. The patent troll is called Bartonfalls, LLC and its patent, U.S. Patent No. 7,917,922, is our latest Stupid Patent of the Month.

The patent is titled “Video input switching and signal processing apparatus.” It includes just two pages of text and, as the title suggests, describes an apparatus for switching between channels that come from different inputs (e.g. between cable channels and free-to-air broadcasts). The patent is directed to the equipment found in and around a 1990s television (such as VCRs, cable converters, satellite tuners). It does not even mention the Internet.

What’s noteworthy here is that again (as usual) we’re confronted with the description of a ‘pure’ software patent. It should never have been granted in the first place. It gave ammunition to trolls who produce nothing and sue everybody.

Over in Japan, based on what IAM says, patent trolls try to paint themselves “medical”. It’s the same trick which is so often used by the world’s largest patent troll, Intellectual Ventures, in order to pretend not to be a troll and to actually have something to offer to society. The corporate Japanese media (English-speaking) has just published “Outdated Design-Patent Laws Thwart Progress”, signaling a sort of worrisome imitation of the USPTO (where design patents are now poised to come under Supreme Court scrutiny).

Over in China, based on some other reports [1, 2], there a bubble of patents in the making. IAM gets rather excited about China’s SIPO becoming a cesspool of crappy patents, including software patents. Based on this one new report, a WiLAN subsidiary hits China, showing that companies from North America now run after everyone and everything in the Land of the rising Sun (Japan) and its much bigger neighbour. Patent trolls in China are not a new ‘thing’; but right now they gain a foothold and it’s a cause for concern because the EPO collaborates with them quite a lot. In fact, SIPO is like the role model of Battistelli, who doesn’t mind the quality of patents, just quantity (or short-term profit). Here is an IAM article that mentions software patents in China as though they’re desirable (IAM is a longtime booster of software patents). To quote:

Last Thursday, China’s State Intellectual Property Office (SIPO) published new draft guidelines for patent examination. Amid tweaks that will be greeted by pharmaceutical innovators, there are also changes to the standards for software patenting that should be a boon to companies seeking protection for computer programmes, something that has been increasingly difficult to obtain in the US and some other markets. SIPO says the measures are driven by “urgent demand” from innovative industries. It is the latest reminder that in the post-Alice environment, many observers say software protection is easier to obtain in China than in the US.

The USPTO’s senior counsel for China, Mark Cohen, drew attention to the proposed new rules in a blog post last week, saying that they “appear to loosen the standards for obtaining software enabled inventions”. According to Cohen’s translation, a section of the Patent Examination Guidelines which asks applicants to describe “which parts of the computer programme are to be performed and how to perform them” is amended to add that “The components may not only include hardware, but may also include programmes”. If adopted, the guidelines would also make it easier to obtain business method patents, as they provide that: “Claims related to business methods that contain both business rules and methods and technical characteristics, shall not be excluded from the possibilities of obtaining patent rights be Article 25 of the Patent Law.”

The IAM Weekly E-mail, distributed on November 2^nd, mentioned this as well and said:

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IAM Weekly

Editor's round-up

See current issue
The death of software patents has been greatly exaggerated, at least
in China and the United States. On the IAM blog this week, we reported
on new examination guidelines at the Chinese State IP Office which
seem to indicate that it will be easier to get protection for
computer-implemented inventions in the country than it has been thus
far. Meanwhile, in an exclusive article the former chief patent
counsel at Microsoft explained why it has been a very good six months
for US software patent owners. The European Commission has just
released a detailed report on patent assertion entities which
concludes that troll-like behaviour is unlikely to be seen in Europe
for a number of reasons, including the preponderance of high-quality
patent rights and comparatively low litigation costs. Elsewhere, we
looked at Hillary Clinton’s IP policies and focused on a major
BlackBerry licensing deal in Asia. There was news, too, of
confidence-boosting third-quarter results from InterDigital, as well
as claims from its CEO that a recently launched Internet of Things
licensing platform could deliver significant revenue boosts in the
near future.

Joff Wild
Editor

IAM ‘magazine’ is meanwhile grooming yet another patent troll. It started last week and we expect to see more of that from IAM, which is now actually receiving money from some infamous patent trolls like MOSAID/Conversant.

One more item of news regarding patent trolls came from the trolls expert, Joe Mullin (who has written about them for about a decade). He decided to dive into the dark operations of ArrivalStar and here is what he found:

Since 2006, hundreds of US businesses have received letters informing them that they infringe patents belonging to Martin Kelly Jones, who briefly ran a business called “BusCall” in the early 90s. The Jones patents, owned for many years by a company called ArrivalStar, have been called out repeatedly as one of the most egregious examples of patent abuse.

ArrivalStar sent out hundreds of demand letters, often targeting small companies that couldn’t hope to afford a drawn-out defense of a patent infringement suit. It also took the unusual step of suing public transit agencies, saying their bus-tracking systems infringe Jones’ patents. The patents were moved into a new entity called Shipping & Transit LLC last year.

Jones and the lawyers who work with him have squeezed royalty payments from over 800 companies over the years, but little has been known about him, outside the short explanation included in the demand letters he sends out. Now, Jones has made what appear to be his only public comments since his inventions launched a decade-long campaign of lawsuits, in statements to The Wall Street Journal.

It’s sad to see that patent trolls are still treated with some level of recognition and companies like IBM have begun acting more like them (assimilation) because all they have is a huge pile of patents. Here is Manny Schecter from IBM saying that “If apple slicer for eye-appealing apple slices (US9427103) is eligible for patenting, so too should be software…”

MinceR from our IRC channels said that’s “pretty weak argumentation” and Toby agreed, saying that he too noticed.

As if one bad patent supports another… what utterly poor logic from Mr. Schecter. People elsewhere have responded to this tactless tweet of his.

Speaking of patents that are too problematic to defend, how about patents you’re not allowed to get away from, or SEPs as they’re sometimes called (a tax on any implementation with conformance)? It is truly an abomination w.r.t. the raison d’être of patent systems, yet here is MIP writing about it, calling it a “conundrum” rather than a travesty.

Negotiations over patent licensing are tricky. One bad sign is if parties start discussing standard-essential patents in detail

Michele Herman of Metabl and Richard Taffet of Morgan Lewis staged a mock negotiation yesterday as part of the session called “The Nuts and Bolts of Licensing: Strategies for Negotiating to Yes.”

Negotiations over patent licensing are tricky enough. But Herman said it’s a bad sign if parties start discussing standard-essential patents (SEPs) in detail.

In the case of SEPs, there are already many trolls and parasites out there (like WiLAN, which now expands to China). When does the patent system become simply an obligatory tax authority rather than a system where one can license to copy (having found something innovative), rather than comply/adhere to industry standards? RAND/FRAND also comes to mind. █

Summary: The appeal of patent trolling in the United States has taken a hit and a lot of the litigious abuse is shifting eastwards, to places that previously didn’t have such issues

AS THE EPO emulates the mistakes/errors of the USPTO by ushering in software patents and pursuing the UPC (more attractive to patent trolls) we increasingly worry that the end of an epidemic in the US won’t be its end worldwide.

According to recent figures from Lex Machina (which we wrote about earlier this month), the end of software patents already contributes to the demise of patent litigation there. It’s a very statistically meaningful difference and it is consistent (every month). In the words of Managing IP (MIP):

Managing IP reveals data on US district court patent case filing so far in 2016, as well as the biggest plaintiffs and defendants. Natalie Rahhal talks to patent lawyers to identify the biggest pressures on patent litigation

US patent case filing in US district courts fell in the third quarter, according to figures pulled from the Docket Navigator database. Some 1,130 cases were filed, down 13% from the 1,299 in the second quarter.

However, the third quarter was up 17% on the 965 cases filed in the first quarter. Patent case filing at the beginning of the year was subdued as a result of a rush of filing in November last year ahead of new rules requiring more disclosure in patent infringement complaints.

Well done to the US administration for improving patent policy somewhat, thereby reducing frivolous litigation and shakedowns. Good news for a change. But where does that leave the rest of the world?

“Well done to the US administration for improving patent policy somewhat, thereby reducing frivolous litigation and shakedowns.”Judging by the patent trolls-funded IAM and its many new articles about China [1, 2, 3, 4, 5], it sure looks like China becomes more like the US when it comes to patent litigation. It’s already rather chaotic. See this “sponsored article” (MIP was paid to publish this) about patent changes in China. It’s like opportunists pursue somewhat of a boom there — a boom in litigation. The same is true in Korea, Japan, Taiwan and Singapore, as we noted several times last month. Also see this article from IAM which says the Head of India’s top patentee wants more patent aggression. Have they learned nothing from the mistakes of the US? Korea, for a change, is at least coming to grips with the bubble of companies/entities that are just a pile of patents, based on IAM’s report about a resignation. Is Korea coming to grips with the threat of patent maximalism at long last? Here is a small sort of comparison between the situation in Korea and in China: “This blog has devoted quite a bit of coverage to one of the major divisions in China’s IP policy environment – what sometimes looks like a power struggle between judicial authorities and administrative ones. An analogous situation seems to be playing out in Korea. Local media reports say the Supreme Court there has floated the idea of abolishing certain administrative procedures related to patent validity and handing over those matters to the courts, which currently only review them at second instance.”

“If IAM has shifted its attention to Asia recently, it’s because a lot of the ruinous action moves to Asian countries.”The reason we link so much to IAM here isn’t that they’re accurate or objective; rather, as a matter of fact, they’re pro trolls and pro litigation. It’s important to know what the “other side” is saying. Speaking of IAM, this Microsoft-centric and Microsoft-powered site is now grooming Microsoft’s people again, even those responsible for patent aggression and extortion against Linux.

What IAM considers to be good business sense and success we should often interpret as the very opposite. If IAM has shifted its attention to Asia recently, it’s because a lot of the ruinous action moves to Asian countries. █

Summary: Another new example of software patents advocacy that somehow creeps in, finding its way into the mainstream press in India

THE subject of software patents in India keeps coming up, even though it has been more or less resolved for at least a decade. Lobbyists of multinational corporations like Microsoft and IBM, or Indian patent lawyers trying to attract more business (like frivolous lawsuits), keep bringing it up and the latest such effort comes from Venkatesh Ganesh, who bemoans the ban on software patents. The argument? Poorly made:

Hardware clause makes software patenting difficult

Changes in India’s software patent laws are stoking heartburn among companies that are looking to file patents in India, which could impact investment flows into the country.

Companies based in India and elsewhere depend on patents to protect their intellectual property and attract investments to succeed in a competitive marketplace. However, some minor changes to the patent guidelines have caused a major headache.

This is a complete fantasy or fairy tale. Who or what are those companies? Those oppressing India, like Microsoft which still actively derails the country’s software policy? Those that work for foreign corporations under the guise of being “Indian”?

Citizens of India shouldn’t be gullible enough to believe the above and newspaper editors need to start filtering or fact-checking material that they publish. Too often they just copy-paste some lobbying material from patent law firms for the illusion of “balance”. That’s not how true journalism is done. █

Non-cooperation movement is needed here

Summary: The envoy of the US is trying to tell India how to run the country (stricter laws regarding copyrights, trademarks, and patents), as a condition for foreign investment by multinational corporations

PUTTING aside the EPO for a moment (we plan to cover Željko Topić later this week and USPTO over the weekend), earlier today we found some articles from Indian news sites. The US is, quite frankly as expected (see Cablegate to understand how it works), trying to bully India into the entrapment which is patent maximalism, maybe even software patents which are currently not legal in the country (and less so in the US as well, taking Alice into account).

“The US is, quite frankly as expected (see Cablegate to understand how it works), trying to bully India into the entrapment which is patent maximalism, maybe even software patents which are currently not legal in the country (and less so in the US as well, taking Alice into account).”Based on reports like this one [1, 2] (cross-posted), the US makes improving relationships with India contingent upon bending over to US corporations, changing patent laws for them. To quote one key paragraph: “He said that on the persuasion of the US government the present government of India has taken some initiatives to amend and make stronger IPR laws.” Other news reports [1, 2] look at another angle and the “USPTO continues to move forward with its Enhanced Patent Quality Initiative (EPQI),” says Patently-O today, “and is hosting a set of five Quality Forum events over the next month in DC, Milwaukee, KC, Baton Rouge, and Portland.”

So while the US itself acknowledges the problem with too broad a patent scope (see the recent report from GAO [1, 2]), it seems perfectly fine screwing around with patent scope in other continents, including Europe. Guess whose economies would be harmed and for whose benefit. █

Summary: The obnoxious company that is promoting Microsoft and software patents in a country that needs neither makes the headlines again (Financial Express)

THE SUBJECT of software patents in India has not been explored here in a while. It seems safe to say that the latest massive effort/push/lobbying by Microsoft, IBM et al failed and India will continue to reject/decline/refuse to patent software.

“Tata has spent years pushing for software patents and promoting Microsoft’s interests/lock-in.”The Microsoft partners from Tata (or TCS), however, are still lobbying for software patents in India, in essence painting themselves a foe of the country’s interests. Based on this new article (published earlier today): “In yet another instance of saying no to exclusivity for innovations in software development, the country’s patent office has rejected a patent application by Tata Consultancy Services (TCS) seeking protection to its claimed invention relating to organisation and development of technical documents, with few defects, minimal effort and less cost.”

Good. Tata has spent years pushing for software patents (see e.g. [1, 2]) and promoting Microsoft's interests/lock-in. We hope that our readers in India (a large proportion of our readers is from there) will push back against the likes of Tata. The country is better off without such corporations. Tata is often peripheral/adjunct/extension of foreign multinationals and it’s not alone. This harms Indian startups. █

Summary: Battistelli’s bad leadership at the EPO threatens to bring to Europe all the ills and menaces of the patent system in the United States

Battistelli has (almost singlehandedly!) done so much damage to the EPO. He brought into the EPO some truly dodgy people and former colleagues (and their family members), he attacked the staff representatives, and he even attacked justice itself (putting aside the poetic/Orwellian action of attacking a judge).

“He brought into the EPO some truly dodgy people and former colleagues (and their family members), he attacked the staff representatives, and he even attacked justice itself (putting aside the poetic/Orwellian action of attacking a judge).”How on Earth is Battistelli still working at the EPO and permitted to waste extraordinary amounts of money buying the media while lying to everyone? “In a sane world (not Eponia),” as I put it yesterday, “he’d be asked to pack up his things and leave by day’s end.” The only people dismissed so far are basically ‘whistleblowers’, i.e. people who are brave enough to say the truth — however politely — about Battistelli. It’s like Eponia became a miniature North Korea at the very heart of Europe and politicians lack the authority (sometimes even the will) to intervene.

According to this new article from Finnegan, Henderson, Farabow, Garrett & Dunner LLP: “In an attempt to tackle the backlog, the EPO has launched a new initiative to encourage applicants to abandon their applications in exchange for a refund of the official examination fee.”

“Patent applications will have run out in a couple of years. What then? No more examination at all?”Well done, Battistelli. Great job! So granting/approving (often in error) all sorts of very old applications takes its toll on new ones. What will be left of the EPO other than a fossil if this carries on? Patent applications will have run out in a couple of years. What then? No more examination at all? No examiners? Machine 'examination' alone? All applications accepted by default, irrespective of merit and novelty? Quite a few EPO insiders seem to believe so when they fear the worst and look at the French system, examining its obvious failures.

Another new article from Finnegan, Henderson, Farabow, Garrett & Dunner LLP says: “In this edition, we consider the IP5 offices’ proscription against the introduction of new subject matter into a patent application that has already been filed. While it is not surprising that all IP5 offices disallow introduction of new matter into a patent application, what constitutes “new matter” differs among the IP5 offices, as discussed below.”

IP5 is a collective term referring to large patent offices, including the notorious (for patent quality) USPTO. Mind the fact that the US is moving away from software patents right now (more on that in the weekend), whereas the EPO moves in the opposite direction. As a patent attorney implied the other day, the EPO is now more software patents-friendly than the USPTO. To quote [1, 2]: “I’m working on a family of software patents/apps where EPO allowed patent, surveved [sic] 2 oppos; but US rejected as ineligible. The software patent family is large, many countries. ONLY THE USPTO FOUND SUBJECT MATTER INELIGIBLE.”

“If the EPO gets away with granting more and more software patents (UPC would contribute a great deal towards that), then we should expect a lot of patent trolls to park in Europe and damage a lot of businesses (some of which I heard from personally).”The “EPO is corrupt,” Benjamin Henrion responded to him, reflecting a change in public perceptions.

If the EPO gets away with granting more and more software patents (UPC would contribute a great deal towards that), then we should expect a lot of patent trolls to park in Europe and damage a lot of businesses (some of which I heard from personally). This, in turn, would suck money out of the economy, elevate prices of things, and make Europe a lot less competitive. But hey, Battistelli can crow about “production, production, production!” (at least until the applications run out and operations dry up)

Yesterday we saw the EPO once again promoting its India-Europe software patents fest. Patent maximalists and boosters like Battistelli (who has no patents and no scientific background) would have us believe that the more the merrier; obviously! See what the page says; it speaks explicitly about software patents which are banned in Europe and also banned in India.

Speaking of which, here we have a British site publishing a new article titled “Patenting the abstract – can you patent code?”

It was published this morning and it talks about Europe and the UK:

Patent applicants, and indeed patent attorneys, can spend a lot of time gazing at that window, occasionally hurling rocks at it: where does the line lie between a computer program ‘as such’ and a computer program which can count as a ‘real’ invention? There is certainly no hard and fast answer to that and each idea must be assessed on its own merits. What we do have is a body of examples from cases which have been considered by the European Patent Office (EPO) and the UK courts which at least may help to clarify the boundary. In the examples which follow, I have made no particular distinction between cases in the UK and before the European Patent Office (EPO) although in fact there are differences (despite a broad intention of conformity). Currently, the UK Intellectual Property Office (UK IPO) seems much more likely to raise an objection that an idea is excluded from patentability – is a non-invention – than the EPO. That doesn’t mean computer-implemented ideas get a particularly easy ride before the EPO; the EPO’s current practice is only to consider ‘technical’ features as contributing to the inventiveness of an idea and, if your only technical feature is a common computer, the same idea that could be identified as a non-invention at the UKIPO could be determined to be not patentable as it is not inventive when considered at the EPO. That said, if I was asked to choose how to attempt to protect a computer-implemented idea in the UK right now, I’d chose to do so via the EPO – it is my view that the UK IPO is currently less friendly to potential ‘non-inventions’ than the EPO.

Over in India today we found this clueless new rant from a patents-centric person, bemoaning India’s ban on software patents. Watch some of his arguments:

Elite technology companies (including TCS, Yahoo, Samsung, Ericsson, Microsoft and Philips) from more than 10 countries had their CRI applications rejected in India in the past six months. Besides rejections, many applicants, including high-tech Indian companies such as Wipro, have started to receive negative examination reports calling for rejection of their patent applications. This can call into question the quality of patent examination in India for inventions in advanced software as well as communication technologies.

A lot of the companies named above actively feed patent trolls (Ericsson and Microsoft for instance) and are using software patents offensively, in highly controversial circumstances. If India’s laws prevent them from expanding the plague of patent trolling to India, then that is absolutely great. This author calls “elite technology companies” not Indian companies but a bunch of multinationals trying to cement their monopolies (or near monopolies). These arguments are similar to those made by the patent profiteers in Europe, notably patent law firms and tax-evading patent tax-wielding giants like Apple and Microsoft (which Battistelli is totally clueless about and offers preferential treatment to)

At the EPO, unfortunately, Battistelli remains a “President” for now, but he lost respect; staff distrusts him and some prominent delegates tell him off; they’re not afraid of him anymore, even in the face of epic tantrums. █