11.28.16

EPO Caricature: Slowing Down Justice and Giving Luxury Cars as Gifts

Posted in Europe, Humour, Patents at 4:09 am by Dr. Roy Schestowitz

Summary: The latest cartoon making the rounds is about SLAPP and alleged bribery in Croatia (more on that soon)

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11.27.16

Director Lee’s USPTO Managed to Drain the Swamp Filled by David Kappos and His Colleagues, But Trump Will Likely Dismiss Her Soon

Posted in America, Patents at 6:06 pm by Dr. Roy Schestowitz

Progress can be halted and regression soon follow for oligarchy’s sake

Source: David Kappos interview with Intellectual Property Magazine (2010), modified by us

Summary: Just as the USPTO begins to get its act together and limit patent scope based on reasonably liberal SCOTUS Justices there are many reports suggesting that the Director of the USPTO will be driven out, courtesy of the Trump presidency that will also perturb SCTOUS

THE USPTO has a longstanding patent quality problem, albeit with Alice and few other top-level decisions (Mayo for instance) things are improving somewhat.

The other day we found Jaguar Land Rover pursuing patents on facial recognition, which basically means software patents. I have peer-reviewed papers for international journals about this subject; no doubt this is about software patents — possibly a thing that UK-IPO would reject outright. Here is what Britain’s worst paper wrote about it:

Motorists could soon unlock the doors of their car simply by walking up to it and taking a selfie.

Jaguar Land Rover is developing technology that uses facial recognition and gait analysis to detect when owners of its vehicles approach, to open the doors for them.

Details have been revealed in a recently published patent application by Jaguar Land Rover, but it is unclear when the technology might become available.

Nothing innovative here and also it’s about software. Shouldn’t the post-Alice guidelines^* at the USPTO disqualify this? How about this other new patent application? It’s one which TechDirt introduced the other day with the headline “Sony Wants To Patent A System For Scoring Journalists’ ‘Veracity’,” noting that it’s too obvious for a patent. To quote directly: “Like anyone wouldn’t have come up with such a system if there wasn’t patent protections?”

“Nothing innovative here and also it’s about software.”Let’s face it, David Kappos has made more of a farce out of this system, having worked for IBM, a big proponent of software patents. Is the leadership of the USPTO ‘on loan’ (to large corporations)? Kappos now works as a software patents lobbyist and IBM is one of his clients. It disgraces the whole patent office on ethical grounds and nobody seems to mind.

Looking at some scholarly figures from Patently-O (published this past week, probably for some paper of his), it seems evident that Kappos did a lot of damage to patent quality. As Patently-O put it: “You’ll note the discontinuous nature of the average-PTA chart. The break-point in early 2010 shows the impact of the Federal Circuit’s Wyeth decision holding that the PTO had been under-calculating the adjustment.”

That’s also the Kappos impact. Here is another new graph. This graph, in our assessment, may simply mean that patent law firms broaden their applications’ “template” (notably with citations) in order to patent some more junk and make it seem credible, well-researched. To quote: “The number of references cited per patent continues to rise, albeit more slowly in recent years. For patents issued in 2016, the average patent includes more than 50 cited references. In my view – this is great, although it would certainly help if the examiner was given some clue as to why the reference is deemed relevant or what portion of the reference is relevant. (If an examiner has a question, they can ask the applicant). A not-surprising facet of the growth in references-cited is that almost all of the growth is in applicant-cited. Compared with 10 years ago, applicants cite 26 more references per patent (on average) while examiners cite only 1.5 more per patent. As you might also note from the difference between median and average – the citation distribution is highly skewed. Example: If we take the top-5% of patents from 2016 (those with the most references cited) – they include 35% of all of the cited references. My experience with this skew is that patent applicants considered more valuable by their owners are more likely to submit more prior art references.”

“Let’s face it, David Kappos has made more of a farce out of this system, having worked for IBM, a big proponent of software patents.”There is another new graph at Patently-O and the way we interpret it is quite simple: Quality of patents at the USPTO (or complexity of patents) is declining. Patent examiners don’t seem to mind. The more, the merrier.

One last post from Patently-O alludes to Donald Trump and notes that the majority of patents in the US are not even from the US. The part about ITC (where the I should stand for US, not “international”) says: “In an email, Prof. Mark Lemley suggests that we should look for “a rise in the importance of the ITC as we focus on blocking imports.” The ITC’s primary goal is to protect U.S. industries against unfair international trade. Lemley writes: “One interesting question is whether Trump will move the ITC’s jurisdiction back to its roots by insisting on a real domestic industry requirement.” Additional ITC movement could push-back against U.S. patents that are owned by foreign nations or unduly subsidized by a foreign nation.”

“He’ll turn the USPTO into a Great Swamp Again.”We criticised the ITC many times. It’s just an apparatus of US protectionism, so the I in the acronym is not suitable, like the W in WTO. Another article about Trump’s impact, this time from MIP, says: “A panel on the US election at the IP Dealmakers Forum speculated that the Trump administration may take a long time to appoint a USPTO director and the Republican leadership that worked on patent bills in the previous Congress will again push for reform” (we already noted that USPTO Director Lee may be on her way out).

We expect Trump to make the US patent system even worse, as corporate interests tend to be prioritised over people, based on his recent appointments. He’ll turn the USPTO into a Great Swamp Again. As for SCOTUS, expect more Conservative Justices there (not just a Scalia replacement), complete with preference for large corporations like Trump’s. █
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^* According to this new placement in IAM, the “USPTO seeks public comment regarding subject-matter eligibility” (covered here before). To quote: “On October 17 2016 the US Patent and Trademark Office (USPTO) announced that two roundtables will be held in the coming months to discuss patentable subject matter eligibility under 35 USC § 101. The roundtables have been set up to facilitate public comment and discussion regarding the USPTO’s current guidance on subject-matter eligibility as well as case law arising from interpretation of the requirements under 35 USC § 101.”

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Danger of Letting a Bunch of Patent Law Firms Attempt to Hijack the European Patent System With UPC

Posted in Deception, Europe, Patents at 5:11 pm by Dr. Roy Schestowitz

Summary: Team UPC, a collective of self-serving patent lawyers who produce nothing of substance, hopes that some time tomorrow the UPC will miraculously be revived in Britain even though it’s extremely unlikely

THE Unitary Patent (or UPC) will quite likely have its death reaffirmed tomorrow. Don’t expect Team UPC to admit this though. The UPC-centric bloggers from Bristows will carry on (now there’s “EQE roundup”) and so will the bloggers at Kluwer Patent Blog. We kindly remind readers that these people have a track record of even advertising false jobs, so don’t believe Team UPC and the EPO (chronic liars). It’s their wallet/agenda that speaks.

Thankfully for us, Battistelli cannot quite ‘buy’ the vote (or bribe) the UK for UPC ratification (it would require too big a gift), so the UPC is going nowhere here. Kluwer Patent Blog, a huge proponent of the UPC, cited Bristows (an integral British part of Team UPC) to come up with a bizarre headline that says “Announcement expected about participation UK in Unitary Patent and Unified Patent Court” (as if they already know in advance what will happen). To quote:

According to a Bristows report, ‘the UK Minister of State for Energy and Intellectual Property, Baroness Neville-Rolfe, will state how the UK intends to proceed regarding its participation (or not) in the system’.

Since the Brexit vote, the future of the UP system has been clouded in uncertainty. Ratification by the UK of the UPC Agreement is mandatory for the launch of the system, but after the Brexit vote it seemed this requirement could kill the UP, as it wasn’t sure at all the UK would still be prepared to remain in the new patent system.

There are no signs that Lucy Neville-Rolfe will override British democracy, so we don’t expect much to happen. As for Kluwer Patent Blog, watch the headline it produced two days earlier (merely a quote), seemingly giving instructions from self-serving firms in Italy so as to save the UPC.

Truth be said, the UPC is in a limbo or in a death spiral/crawl. As we saw in TTIP and TPP, nobody in the “inner circles” wants to admit the death until it’s finalised and truly irreversible. Unless it’s redesigned completely, it has no chance. “EU Software Patents future will be decided tomorrow,” Benjamin Henrion wrote, “in the EU Council with the fate of the Unitary Patent,” but nothing will change. The UPC (as we know it, after several other names) is dead and endless lobbying by Team UPC has changed nothing at all, it just exposed Team UPC’s crudeness and disdain for democracy.

“More Brexit foot shooting,” one person wrote, “as UK now excludes itself from EU wide patent court due to start work in London. Bad news for patent lawyers…”

Henrion asked, “any link to an official source?”

This seems to contradict the optimism from Bristows, who have spread falsehoods (attempting to spread self-fulfilling prophecies) for at least a year. “A big day for the European patent systems,” wrote an anonymous EPO observer, but as we wrote over the weekend, we expect nothing substantial to change. The “UK [is] set to announce its UPC position tomorrow,” IAM (presumably Joff Wild) wrote. “We have worked through a few scenarios…”

“It seems that the future of the #upc #unitarypatent will be decided on Monday,” another person wrote, but IAM responded with: “This is most likely, but don’t rule out a delayed ratification after safeguards are established for UK’s post-Brexit position.”

Don’t trust IAM so much. Remember it organised pro-UPC propaganda events (even abroad) with support from the EPO and funding from the EPO's PR firm. Also, IAM is still not good at disclosures^* and there is another such event coming soon.

Shooting down the UPC is not “foot shooting” as the above put it, unless of course the British economy boils down to just a handful of greedy patent lawyers seeking to maximise profit by patent battles. Right now, as before, some patent law firms in Italy hope to snatch this business and according to this, “A. M. Pizzoli [was] talking about #UnitaryPatent at #FICPI Sweden meeting: Swedes still optimistic in spite of Brexit-related issues” (by “Swedes” he means some Swedish patent lawyers, not Swedes at large).

The UPC would obviously sacrifice patent quality, bring patent trolls from the US patent system, and probably serve as a weapon against the EPO‘s Boards of Appeal, especially judges. No doubt they're essential, but they are crushed by Battistelli. There were a couple of articles from patent law firms in the media this past week, both of which spoke about the Boards of Appeal of the EPO. Here they are:

1. Exceptions to reformatio in peius at the EPO

In T 2129/14, the EPO Boards of Appeal applied the exception to the prohibition of reformatio in peius established in G 1/99 to allow the patentee, as respondent, to make an amendment which extended the scope of protection of the patent in question compared to the scope of protection maintained by the Opposition Division.

The prohibition of reformatio in peius set out in G 9/92 is the principle that in appeal proceedings a decision must not be reached which puts a sole appellant in a worse position than if they had not appealed. Thus, where a patent is maintained in amended form by an Opposition Division and only the opponent appeals the decision, the patentee, as respondent, cannot amend the claims such that the scope of the patent after appeal proceedings is broader than after opposition proceedings.

2. Admissibility at the EPO’s Boards of Appeal – a change in practice?

The practice of the Boards of Appeal of the European Patent Office (EPO) in recent years (following decision T 1067/08 (High-activity phytase/BASF); and discussed in detail in the Case Law of the Boards of Appeal, 7th Edition IV.C.1.3.3) has been not to review discretionary decisions made during first-instance proceedings. By way of example, if an Opposition Division has taken a decision not to admit a document (eg new evidence or a new claim request), the Board of Appeal will generally not overrule that decision if it concludes that the Opposition Division had the right to exercise its discretion.

The following too got published: EPO Practice Infringement of Second Medical Use Claims in Europe

It is possible to obtain a patent from the European Patent Office (EPO) based on a new medical use of a known drug. The claim can be directed to using the drug to treat a different disease, or using the drug in a new method of treatment, such as a new route of administration or a new dosage. The EPO has wellestablished requirements for the patentability of these so-called “second medical use” claims, but it does not consider issues of patent infringement. Infringement in Europe is currently assessed on a country-bycountry basis by individual national courts.

Although these second medical use claims have been available in Europe since the 1980s, until recently it has been unclear how the manufacture and sale of a drug for a patented use can be distinguished in practice from the manufacture and sale of the same drug for a non-patented use. The English Court of Appeal has now clarified how infringement of such second medical use claims should be assessed in the United Kingdom.

Our main concern, as we noted here very recently, is that patent scope and thus patent quality at the EPO is compromised for the sake of patent maximalism — the same kind of thing that Team UPC strives to introduce. One might even dub it patent radicalism, not maximalism. █
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^* To give one new example of missing disclosures from IAM, watch what it said about patent troll MOSAID, a.k.a. “Conversant” (after the rename that helped dodge negative publicity), just a few days ago. Nowhere does the article mention that Conversant paid IAM. Instead it’s all just promotional language, e.g.: “Conversant IP Management has acquired a patent portfolio from Panasonic, according to an assignment recorded with the USPTO earlier this week. The transfer represents a new foray into the Japanese patent marketplace for the Canadian NPE after its role in managing the Elpida portfolio ceased earlier this year.”

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Links 27/11/2016: Linux 4.8.11, Linux 4.4.35, and Distrowatch Rankings

Posted in News Roundup at 4:08 pm by Dr. Roy Schestowitz

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11.26.16

Caught in a Lie Again: EPO Management Just Cannot Stop Lying, Even About People Whom It Gags Using Threats (to Cover Up Battistelli’s Abuses)

Posted in Europe, Patents at 5:33 pm by Dr. Roy Schestowitz

The Liar in Chief

“A fish rots from the head down”

Summary: Benoît Battistelli’s decision to dismiss staff representatives (in complete violation of what the Administrative Council demanded) is accompanied by yet more face-saving lies (clearly a sackable offense in a public institution which is functional and not a global laughing stock)

NOTHING that we see at the EPO surprises us anymore. In fact, we’ve become accustomed to assuming (and safely so, based on recent experiences) that everything EPO management says is a lie. It’s no exaggeration to say that the EPO is now in “Blatter mode” as the epic scandal continues to deepen.

Laurent Prunier responds to the EPO’s claims in a followup article from WIPR. Here is a portion:

Laurent Prunier, former elected member of the central staff committee and secretary of the Staff Union of the European Patent Office (SUEPO) in The Hague, has responded to statements made by the European Patent Office (EPO).

Earlier this month, Prunier was dismissed. He had been accused of harassment and defamation, but denied the claims.

Yesterday, November 24, WIPR reported staff members were holding a demonstration to show solidarity with “dismissed, downgraded and targeted staff representatives and SUEPO officials”.

Now Prunier has responded to a number of assertions made by a spokesperson for the EPO, stating that they presented a number of “incorrect facts”.

According to Prunier, the EPO’s spokesperson has no access to the investigation reports and to the disciplinary files, as they are confidential, meaning that they are in no position to certify that “all the rules were followed”.

The EPO got caught lying again, as its nasty PR department (with that TI conflict of interests) prefers to just say what sounds good rather than what’s true; it lies all the time and it gets caught even in circular lies or chaining of lies (one lie that helps cover up another). What a total mess!

Here is how one comment put it the other day:

WIPR published yesterday an article article about the dismissal of Prunier, and cited the statement of the Office that “The procedures were conducted according to our rules, which compare favourably to other international organisations [...]” etc. etc.

Today, they published the response of Prunier, who notices that “the EPO’s spokesperson has no access to the investigation reports and to the disciplinary files, as they are confidential, meaning that they are in no position to certify that “all the rules were followed” and further challenges every statement of the EPO spokeperson.

The EPO declined to further comment.

It’s worth reading.

Here is what another person said, regarding leaks that we openly called for (leaks related to this case):

Some honest and brave AC members who understand what is going on here should ask BB for the investigation reports of Prunier and for an overview in detail of which rules were followed. BB will never give the reports and that overview. It is clear why. Be honest, should you put your head in a guillotine? Leaking of that information is urgently desired. The EPO should further urgently sign the European Convention on Human Rights.

If anyone other than Prunier leaks these documents to us, Prunier himself cannot be punished as the leaks are not within his control or his own fault. We welcome any information readers may have on this case. The world deserves to know what goes on before Battistelli proceeds to dismissals of more staff representatives at The Hague (disciplinary procedures have already been initiated against more of them and they are not allowed to speak about that). It’s a reign of terror.

As Prunier made abundantly clear, these procedures against him were initiated not by ordinary staff but by a close associate of Battistelli, possibly Bergot (it’s hard to know without leaked documents).

Here is one quoteworthy comment from today. It makes a good case for the dismissal of Battistelli and reinstatement/compensation to those whom he attacked for attempting to save the EPO:

In March the Council requested the President:
1)to ensure that disciplinary sanctions and proceedings are not only fair but also seen to be so, and to consider the possibility of involvement of an external reviewer or of arbitration or mediation
2)pending the outcome of this process and before further decisions in disciplinary cases are taken, to inform the AC in appropriate detail and make proposals that enhance confidence in fair and reasonable proceedings and sanctions;
3)to submit to the AC a draft revision of the Staff Regulations which incorporates investigation guidelines (including the investigation unit) and disciplinary procedures which have been reviewed and amended;
4)to achieve, within the framework of the tripartite negotiations, an MOU simultaneously with both trade unions, which would have no pre-conditions or exclude any topics from future discussions;
5)to submit proposals to the AC at its June 2016 meeting, after discussion in B28, for immediate implementation of the structural reform of the BOA, on the lines of the 5 points agreed by the AC at its December 2015 meeting and of the legal advice given by Prof. Sarooshi, and taking into account comments from the Presidium of the BOA;
6)to submit proposals to the AC at its June 2016 meeting, after discussion in B28, for reinforcement of the AC secretariat and a clarification of its position in terms of governance.

Nine months afterwards he managed point 5 only with great help from the Council and with a widely criticized text, which the Council accepted only because they desperately needed some kind of reform.

In points 1,2,3,4,6 he completely failed.

Is it time to look for a President with the skills and will to carry out his mandate?

We welcome leaks related to the case. Surely there are at least a handful of people who have access to the documents and can send portions anonymously to us. Remember that in over 10 years we never compromised a source. █

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Benoît Battistelli’s Affinity for Tiny Countries Exploits the Ease of ‘Buying’ Their Votes

Posted in Europe, Patents at 5:00 pm by Dr. Roy Schestowitz

Good “bang for the buck” when cooperation money (or something along those lines) is granted (‘gifted’) to countries with low overall capital

Summary: The tyrannical boss of the EPO keeps his job by ensuring that small nations with a vote of equal weight to that of nations like France or Germany simply behave like “yes men” or at worst abstain from voting

LIKE the American patent system, the EPO has a big budget, but it’s often misused in favour of large corporations (or rich investors) rather than actual inventors.

What’s more, in the EPO at least, President Battistelli is said to be buying votes where he can. Tiny countries like Monaco get visited (new epo.org link to a new puff piece) for photo ops and as someone told us in the comments, it’s a country that got filed just FOUR (yes, 4!) EPO patents, so its relevance to the EPO is close to zero. But it’s only the country’s vote that Battistelli must be after. We wrote about this as recently as a week ago in relation to Lithuania. Battistelli — being the extremely unpopular chief of the EPO — likes small, tiny, corruptible countries because their votes count as much as big countries’ votes. This is the only way he can survive in his job. Watch this obscure blog that’s being promoted by the EPO (yesterday). It’s called “Monaco Life” and it’s a useless puff piece which says: “On the sidelines of the second meeting of the European Patent Office online users’ days, being held in Monaco from November 24 to 25, the Principality, represented by Jean Castellini, Minister of Finance and Economy, and the European Patent Organisation, represented by the President of the European Patent Office, Benoît Battistelli, have signed a working agreement that will bring the two sides closer.”

“People at the EPO are rightly concerned about their employer becoming a banana republic.”Yes, for 4 patents!

People at the EPO are rightly concerned about their employer becoming a banana republic. It does, after all, put their job and their whole career in jeopardy. It’s no longer much of a badge of honour to say you work (or worked) for the EPO and this new comment takes stock of the lies about the staff, courtesy of PwC. To quote: “Maybe there is a Triumvirate in the making with 3 President’s, e.g. BB for protocol matters, a new one for the executive EPO part and one for the BoA. The advantages would be that its suits BB’s royal ambitions and he can focus on his visits to Monaco, etc and high state visits according to protocol. Furthermore the AC can appoint somebody that really knows how an organisation with social partners works. Finally the story with BoA we all know. (Remark: to whom it may concern there is also a HR make-over in the pipe line, basically masking the social mess with a perfume of new PwC business clichés)…”

Speaking of small countries, a second article about the EPO came from Luxembourg this past week (not the first this year), in spite of being a very small nation. The German media is conspicuously quiet, but this article is in German yet not from Germany. Can anyone from Luxembourg or Germany translate this for us? SUEPO seems to have taken note of this second article, so perhaps they too intend to produce a translation. Here is the first article, which we have already mentioned the other day (SUEPO has already taken note of both articles). █

Related article: Benoît Battistelli: “An Earthquake Would be Needed for the Administrative Council… Not to Support My Major Proposals.”

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The Sad State of German Anti-Corruption Authorities and Investigative Journalism, as Demonstrated by the EPO

Posted in Europe, Patents at 4:15 pm by Dr. Roy Schestowitz

The EPO in Munich enjoys apathy and toothlessness that prevails in media and watchdogs around it

Summary: A personal view on why the EPO manages to get away with so many abuses while the media and watchdogs like Transparency International (TI) play along by doing nothing at all about it

THE EPO is very difficult to trust nowadays because the management routinely lies and the liars are sometimes former staff of the growingly-defunct Transparency International (TI), which was supposed to combat corruption but is increasingly participating in it (or helping to cover it up).

One reader told us, “referring to your article [the above] there’s another interference with TI by the person of Hedda van Wedel. The wikipedia article about CORRECTIV names her as member of the supervisory board. If you follow the link to the German wiki about Hedda [see Hedda_von_Wedel] it is noted that she was elected vice president of TI Germany in 2007…”

One has to wonder then who is left to expose the abuses at the EPO, as the government of Germany seems entirely disinterested and the media does a terrible job. The EPO and EUIPO are promoting a big lie, still in pursuit of ‘cheap’ (no fact-checking) press coverage (sometimes they get it), yet almost nobody in the German media speaks about the latest scandals. There was a long discussion about who’s a good journalist to contact about this and one person wrote:

for investigative journalism one golden rule : follow the money.

EPO has plenty (2.000.000.000 EUR / year budget and ZERO decent check-and-balances comparable to what can be found at UNO or EU)

They are currently building expensive in NL aren’t they ;o)

Be seeing you

Remember that the EPO effectively bribes/attacks media. It’s basically operating in a very corrupt and aggressive manner (like shipping/dishing libel through journalists while threatening others with libel lawsuits) and today someone posted this good point about why EPO scandals’ media coverage is so scarce. It’s “giving aid and comfort to “…exiteers”,” the person said. Here is the full comment:

Indeed it is difficult, for the reasons given by Sam McClure, to interest investigative journalists. I know, I’ve tried and so have others to my knowledge. There is an additional barrier he did not mention: anything “European” is considered by the media in many countries, even those with a “free” press, to be a sacred cow that cannot be criticized for fear of giving aid and comfort to “..exiteers”. Even if one could find a keen journalist, what mainstream media would touch this story?

Probably just about no “mainstream media” (corporate media), which is why many people still rely on Techrights for information and our Wiki page about the EPO is approaching half a million page views. █

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China Creates a Patent Bubble That Contributes to Patent Inflation

Posted in Asia, Patents at 3:45 pm by Dr. Roy Schestowitz

Worth of patents is declining as quality goes down and quantity goes up

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. █

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