06.14.16

Rights Groups, Media, Developers and Others Are Rising Up Against Patent Trolls, But the Problem is Always Software Patents

Posted in America, Patents at 10:54 am by Dr. Roy Schestowitz

The problem is the tactic or the weapon, not the size of the plaintiff…

Summary: A roundup of news about software patents-wielding patent trolls, including some of the latest publicity about (and against) them

THE LENIENCE at the USPTO has given rise to patent trolls, which barely exist in Europe because software patents are not legal here (loopholes aside). Here is a new article about Europe and patent trolls:

Does Europe Have Patent Trolls?

They study all patent suits filed from 2000-2008 in Germany’s three busiest courts and most cases filed from 2000-2013 in the UK. They find that PAEs (including failed product companies) account for about 9% of these suits and that NPEs (PAEs plus universities, pre-product startups, individuals, industry consortiums, and IP subsidiaries of product companies) account for about 19%. These are small numbers by U.S. standards, but still significant. Most European PAE suits involve computer and telecom technologies. Compared with the United States, more PAE suits are initiated by the alleged infringer, fewer suits involve validity challenges, fewer suits settle, and more suits involve patentee wins.

In the previous post we reminded readers that software patents are a dying business (or dying breed) in the US, no matter what patent lawyers say. However, when patent trolls target small entities, will the patents go to court at all and get invalidated there? The process can be hugely expensive, time-consuming, and there is no absolute assurance of invalidation.

When patent lawyers say the truth about patents and what they have become we learn quite a lot right from the horse’s mouth. “Former patent lawyer speaks out against trolls,” explains this one person about Ira Blumberg (writing at AOL), who “explains why Congress must fix patents” (they mean stop trolls).

Read the following article from start to end. Here are some highlights:

Why patent trolls won’t give up

Luckily for me, this didn’t apply to the patent world. I spent seven years on the “dark side” working for patent trolls before coming back to the light. Patent trolls are companies that derive all or almost all of their revenue by asserting patents against other companies.

My experiences while on the “dark side” profoundly shaped my view on the role that Patent Assertion Entities (PAEs), or patent trolls, play in the tech industry. The struggle between PAEs and companies that produce and sell products is not as stark or binary as “light and dark,” or “good and evil,” but the fact remains that PAE litigation does more harm than good.

The tech industry is fertile ground for PAE litigation, with its many patents, plentiful companies and an increasing global reliance on technology. PAEs have no incentive to stop unless we in tech work together to stand up against them.

[...]

Lenovo believes strongly in protecting innovation, and having seen the real threats that trolls can pose, I pushed to join LOT Network, a non-profit community of companies that work together to minimize their exposure to patents owned by trolls. With fellow members like Red Hat, Canon, Logitech and Subaru, we’re making a real dent in the pool of patents that would be useful to PAEs. At last count, nearly half a million patent assets were protected from being used as weapons in PAE litigation against members of LOT Network.

As someone who has spent time on both sides, I feel a call to speak out against frivolous and overpriced patent litigation. The work I did for both PAEs and corporations was certainly legal, but not the same: While I was always on the right side of the law, I prefer being on the right side of innovation.

Companies want to create technologies that matter five years from now and beyond, so patents continue to matter. Frivolous lawsuits and those demanding damages far in excess of the value of the allegedly infringed patent detract from our ability to push innovation and better products forward. I hope that many more voices in tech will join mine in decrying the harmful effects of needless patent litigation — our future depends on it.

“Former Patent Troll Admits That Patent Trolls Are Bad For Business And Innovation” is how TechDirt summarised the above article, noting: “I’ve spoken to a few patent attorneys who have fought against patent trolls who have admitted to me that, at times, it’s quite tempting to give up and join the other side, since patent trolling is fairly easy and incredibly lucrative. You just have to sell your soul and give up the idea that you’re doing anything productive or good in the world, and instead become a pure bottom feeder. Someone who did exactly that is apparently Ira Blumberg, who is now speaking out about his experiences working on “the dark side” of patent trolling. Blumberg didn’t end up going to one of those tiny patent trolls, but rather left a job at Intel to go work for Rambus, a company not everyone considers to be a patent troll, but which certainly has a history of being an aggressive patent litigant. From Rambus, Blumberg then joined the world’s largest patent troll, Intellectual Ventures. He eventually left IV and is now at Lenovo. So he’s been actively on both sides of the patent troll situation — as an active participant in suing operating companies while working for companies that did nothing but license, and at companies that are relentlessly pursued by patent trolls.”

There are other new data points regarding patent trolls. As United for Patent Reform put it, “HarvardHBS study finds patent trolls prey on businesses with new cash flows” and here is the accompanying page which says: “The study, “Patent Trolls: Evidence from Targeted Firms,” examines the rise of patent lawsuits driven by nonpracticing entities (NPEs), or firms that hold on to patents for the sake of enforcing their IP rights rather than using them to innovate and produce products that benefit consumers. The authors — Lauren Cohen at Harvard Business School and the National Bureau of Economic Research, Umit G. Gurun at the University of Texas at Dallas, and Scott Duke Kominers at Harvard University — find that NPEs behave like “opportunistic patent trolls,” targeting vulnerable companies with frivolous lawsuits. They also conclude that these activities have a “real negative impact on innovation,” causing companies to reduce their innovative activity after coming in contact with NPEs — whether through settlements or after losing to one in court — and crowd out some companies that would otherwise create products that benefit society.”

“There are other new data points regarding patent trolls.”“Patent trolls are targeting developers & could potentially sue anyone who uses the Play Store or App Store,” United for Patent Reform added, linking to this article about a story that became very hot last week. Uniloc, a patent troll which we have written about for years, attacks Android developers right now. Here is some background: “Austin Meyer is the developer behind X-Plane. A few years ago, he uploaded the app to the Google Play Store and was very unexpectedly hit with a lawsuit from Uniloc in 2012. The firm claims it patented the idea behind the app market. That’s right, Uniloc isn’t going after the Meyer for making a flight simulator; it’s going after any company that uses Google Play. It’s already targeted a bunch of other popular apps, including Minecraft.”

Another article explained that “Austin Meyer is the developer behind X-Plane. A few years ago, he uploaded the app to the Google Play Store and was it with a lawsuit from Uniloc. Uniloc claims it patented the idea behind the app market and it wants a share of the profits. It has already targeted a bunch of other popular apps, including Minecraft.”

“The story told by Austin Meyer is similar to the story of many other developers.”Promoting VENUE Act as the solution, United for Patent Reform wrote: “This patent troll claims it invented mobile app market & is suing developers in EDTX courts” (Eastern District of Texas).

Here is the corresponding video. “The empty patent troll offices in Eastern District Texas,” Benjamin Henrion called it.

United for Patent Reform linked to this original video and said: “”I am being sued in East TX for using Google.” Austin Meyer speaks out against the patent trolls threatening his app” (Android app). To quote the video’s summary, it only says: “I am being sued for using the Google Play Store. Others have been sued for using WIFI and scanners. It takes years, and about THREE MILLION DOLLARS, to defend yourself…”

Here is the video embedded:

The story told by Austin Meyer is similar to the story of many other developers.

To make matters worse, as this one person put it, there is a “spoiler: plaintiff’s attorney is judge’s son” (not so unusual when it comes to the patent system in the US. There are more stories like this in the corrupt patent system in Texas and EPO with Bergot).

Sadly, patent trolls now overwhelm the US system. They are sometimes fed by large corporations. “Of 22 patent suits filed today,” United for Patent Reform wrote some days ago, “19 were filed by patent trolls — 86%. It’s time Congress took action to #fixpatents!”

“This patent troll targets companies that track packages,” United for Patent Reform writes about another high-profile patent troll. “If Your Company Ever Tracks Packages, Beware of Lawsuit from Alleged “Patent Troll”,” says the accompanying article, which also mentioned the EFF as follows: “No way would Cugle pay the $25,000. He refused and sought out help from the Electronic Frontier Foundation (EFF), which sued Shipping and Transit in the U.S. District Court for the Southern District of Florida on May 31 for filing a frivolous patent claim against Cugle.”

“Sadly, patent trolls now overwhelm the US system.”The EFF is doing some good work here and it also takes note of “the story of how one company has filed 91 lawsuits over a patent developed with government” (subsidies to help tax the public).

The story was covered by NPR, which had already done some good reports about the patent system. As NPR put it: “What makes this beef between bodybuilders stand out is where the patent comes from: a prestigious research university. A scientist was looking into whether arginine could help fight heart disease. He got a patent on what he found. But his research hit a dead end, and, through a complicated series of events, his noble patent got caught up in a fracas between two bodybuilders and their lawyers. Naturally, we dove in.”

What we have here is corporate welfare (money from government) being used to tax the public, which is of course outrageous. And speaking of welfare, mind this new article (behind paywall) titled “Patents Can Be Dangerous to Inventors’ Welfare”

“Many inventors have gone astray defending patent rights,” the summary says. “Elon Musk and Tesla blaze a different path.”

Actually, Musk is a famous example of someone who made a fortune from government subsidies. For Musk to give away patents should be seen as an obligation, not goodwill. “Innovation” is increasingly just a buzzword/byword for patents; it’s all about business (income) for patent lawyers and protectionism for large corporations that they work for. Small businesses need not apply; they’re left to suffer. Here is the latest example of mutual patent protection among giants in Asia. IAM says that “[i]t looks as though Nissan has become the latest member of the License On Transfer (LOT) Network.” This isn’t exactly useful for anyone other than giant companies like Toyota.

“”Innovation” is increasingly just a buzzword/byword for patents; it’s all about business (income) for patent lawyers and protectionism for large corporations that they work for.”Here is another new example of patents being used for protectionism rather than innovation. As a trolls expert put it the other week: “Global Archery, an Indiana company that licenses its own foam arrows for archery games, sued Gwyther back in October. Global Archery founder John Jackson said that the foam-tipped arrows sold by Gwyther violated a patent he owns, and that Gwyther’s marketing on search engines infringes his trademark rights.

“Earlier this year, Gwyther took his fight public with a fundraising campaign, and published a video in which he implored his customers and fans to “Save LARP Archery!” That led to Global Archery asking for a gag order to stop Gwyther from speaking about the case.”

TechDirt later added that: “Global Archery claims that those arrows infringed on a patent it owns and that LARPing.org’s use of Google Ad-Words infringed on its trademarks. While both of those charges seemed destined for loserdom, as the German company would be the patent infringers and the Google Ad-Words thing almost never works, the fact that Global Archery was relatively big and LARPing.org is tiny meant that perhaps that would be enough to tip the scales. With that in mind, Newegg’s Lee Cheng jumped into the fray, helping to back LARPing.org’s legal efforts in defending itself.”

“Newegg can afford to spend millions on dollars in the courts (and sometimes manage to convince the judges to provide legal costs reparations).”Newegg actually uses its fights against patent trolls for marketing, not that it necessarily makes these battles tasteless (just self-serving). Newegg can afford to spend millions on dollars in the courts (and sometimes manage to convince the judges to provide legal costs reparations). But where does that leave the rest of us, who haven’t the deep pockets or the coffers Newegg enjoys? Where does it leave people like Austin Meyer?

Sadly, in spite of media’s growing realisation that patent trolls are a problem, the real solution would come from invalidation of all software patents, rendering software developers about as free as they tend to be in Europe (as long as they don’t distribute software in the United States or fold too quickly [1, 2, 3]). █

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Enfish Case Has Not Salvaged Software Patents in the US, Proponents of Software Patents Admit

Posted in America, Law, Patents at 9:40 am by Dr. Roy Schestowitz

Much ado about [En]fish…

Summary: A roundup of news about software patents in the United States and why the media’s narrative (dominated by patent lawyers) clouds a rather grim reality for software patents, even after the Enfish v Microsoft case

THE USPTO continues to grant software patents, but relying on Alice at the US Supreme Court (SCOTUS), reassessments by courts or panels typically invalidate these.

SCOTUS and Halo v Pulse

“The USPTO continues to grant software patents, but relying on Alice at the US Supreme Court (SCOTUS), reassessments by courts or panels typically invalidate these.”Based on this new tweet, SCOTUS now recognises the patent trolls issue and even names it as such. This commentary on trolls ought to take into account the strong correlation between patent trolling and software patents (which trolls typically use). Here is what Patently-O wrote about SCOTUS just now: “The Supreme Court today issued an important unanimous decision in Halo v. Pulse – vacating the Federal Circuit’s rigid limits to enhanced damages in patent cases. The decision rejects the dual objective/subjective test of Seagate as “inconsistent” with the statutory language of 35 U.S.C. §284.”

The problem is, irrespective of damage limitations, patent trolls (which may be the spilling of a company’s patent portfolio acting as satellites) can just attack many thousands of firms or people, taxing each in turn. So loopholes remain in tact and overall it’s pretty ugly.

Court of Appeals for the Federal Circuit (CAFC)

It is worth noting that there’s an ever-growing gap between the judgment of USPTO examination — as per the management’s guidelines — and what US courts actually say, even corrupt courts like the Court of Appeals for the Federal Circuit (CAFC). Remember that it was CAFC which started software patenting in the first place and recently ruled in favour of Enfish, getting software patents proponents/maximalists (such as patent lawyers) all giddy and jubilant as though software patents are back with vengeance (they’re not).

Free Software

“It is worth noting that there’s an ever-growing gap between the judgment of USPTO examination — as per the management’s guidelines — and what US courts actually say, even corrupt courts like the Court of Appeals for the Federal Circuit (CAFC).”Software patents are problematic to software developers, no matter if they develop Free software or proprietary software. It’s probably a bit more of a problem for Free software developers because in order to freely distribute copies of their software they must not be coerced into making patent payments to anyone. “Patents and the open-source community” is a new article from LWN which deals with the topic. It is a very long article about a panel in which Professor “Moglen advised separating the past from the future when discussing tactics. For the future, he said, “we should prevent people from getting patents.” But, in the past, the problem is old patents “rising up and smiting” projects, harming innovation. The work that Choudhary does trying to abolish patents, he said, covered how to protect people in the future—and he fully expects SFLC to continue that work, arguing in front of the Supreme Court about the “design patent” case between Apple and Samsung. Furthermore, he said, “open-source software is an immense repository of prior art. Free software can help by educating people on all that we’ve invented and that you therefore cannot reinvent and patent.””

Samsung and Apple

Speaking of this (above-mentioned) “design patent” case between Apple and Samsung — a case which we last wrote about in the weekend — Florian Müller who dislikes Moglen (he once again told off the SFLC a few days ago) has “all the documents and the key points”. To quote his blog: “There never was any doubt that the question of whether the infringement of a single design patent by a complex, multifunctional product warrants an unapportioned disgorgement of profits would be an extraordinarily important one. Previous rounds of amicus curiae briefs already demonstrated broadbased support. But the level of support the petition has just received at this decisive stage exceeds my expectations.”

Days ago we explained why this is relevant and important to Free software. Previously we also explained why design patents are often similar if not indistinguishable from software patents (UI+callback function/s).

Patent Lawyers Upset

“There never was any doubt that the question of whether the infringement of a single design patent by a complex, multifunctional product warrants an unapportioned disgorgement of profits would be an extraordinarily important one.”
      –Florian MüllerSuffice to say, patent lawyers almost always support claimants (never mind justice or innovation). They want a lot of money to swap hands because it’s their source of revenue, other than/aside from obscenely high hourly charges. “How the United States Patent Office Became the Place Where Patents Go To Die” is an example of a new article which bemoans quality control and it is promoted by the usual suspects. It's not exactly surprising that the bubble is now imploding. Patent quality became a joke and over-evaluation of patents ensued. Opponents of the Alice decision continue to cheer for software patents (“Uber files patent on hyperlocal internet search” in this case), but sadly for them, the boat is leaving and software patents are now weaker (in the US) than they have ever been since their introduction by CAFC. “Recall that Enfish comes from a single CAFC panel,” IBM’s Manny Schecter wrote the other day, “when the CAFC ruled en banc in Alice it was splintered” (as a reminder, Schecter is a proponent of software patents not only in the US).

Reality Check From Software Patents Proponents

“I am thus concerned that Enfish will not be as useful as hoped in overcoming §101 Alice rejections.”
      –IP WatchdogWe were rather amused to find the most pro-software patents site out there publishing “Is Enfish Much Ado About Nothing?” The gist of it is that the Enfish decision hardly changed anything at all. To quote the key part: “I am thus concerned that Enfish will not be as useful as hoped in overcoming §101 Alice rejections. The patents at stake in Enfish appear to have been written with a confident view of the prior art and of the invention. So, if a specification does not confidently emphasize the “invention,” its “benefits over” conventional prior art, and “disparage” the prior art, will examiners and judges continue Step 1 characterizations at “such a high level of abstraction”? Is Enfish merely much ado about nothing?”

Yes, it is. Patent lawyers tried to over-emphasise it in order to change public opinion and influence policy-making people. The patent salespeople, on the other hand (in the same site), hope that this one single case will save software patents, not just at the USPTO but also at the courts. They are not paying attention to any case other than the Enfish v Microsoft case. How convenient…

Software Patents Proponents in Denial

Almost a month later (after the decision) Baker Botts LLP is still cherry-picking cases in an effort — however shallow — to shore up software patents. Banana IP (Banana Republic?) does the same kind of lobbying. We have already covered dozens of examples like these. These helped show how the media, especially lawyers’ media, continues to simply ignore every single case that’s ruled against software patents and lean on the rare exceptions instead. Edward Bray (of Marks & Clerk) is now cross-posting his ‘analysis’ in favour of software patents — an ‘article’ (lobbying/marketing) which we mentioned the other day. It just never stops, does it? Even a month later.

“Is Enfish merely much ado about nothing?”
      –IP WatchdogThe USPTO is doing the same thing, as we noted last month on a couple of occasions. Here is an explanation of how it goes: “Abstract idea – #USPTO memo on how the #CAFC Enfish patentability decision obstructed Alice http://www.uspto.gov/sites/default/files/documents/ieg-may-2016_enfish_memo.pdf … #swpat”

The patent office too is latching onto a single case when it serves to ‘sell’ more patents for more revenue. No separation between examination and policy?

Evidence serves to suggest that no matter what USPTO greed does, the courts continue to crush software patents, even after the Enfish decision. “Patents Directed to Electronic Delivery of Messages Found Ineligible in AZ in GoDaddy v. RPost,” Patent Buddy wrote the other day, linking to http://assets.law360news.com/0805000/805041/2016-06-07%20(doc%20344)%20order%20granting%20godaddy_s%20motion%20summary%20judgment%20and%20vacating%20trial%20dmwest_14483743(1).pdf (Alice is mentioned dozens of times in this decision’s PDF).

Many software patents have just died not only in the courts but also at PTAB, so how can patent lawyers argue with a straight face that a lot has changed? “Fatal Flaws of Subjective Alice/Mayo 101 Test [Are] Now Becoming Evident in Contradictory Findings Across Dist. Courts,” Patent Buddy wrote, but why is that test “subjective”? Because patent attorneys and lawyers don’t like it? Because it threatens their profit/income?

The matter of fact is that some courts get it right (they can see that algorithms are abstract), whereas some are still rather clueless (or bad lawyers for the defendant) if not corruptible, as was the case at CAFC before. Microsoft had a lot to gain from losing that case, as we explained last month.

“LinkedIn will soon be owned by Microsoft, which is itself a leading proponent of software patents.”Here is a case of software patents being used against Facebook, which has been stockpiling patents on software. To quote Patently-O: “Indacon’s U.S. Patent No. 6,834,276 covers an improved database system that adds “custom links” so that instances of a “link term” would point to a particular file in the database. Thus, applying this in LinkedIn, you might find that references to “Dennis Crouch” point to my LinkedIn profile. Of course, the way that Facebook & LinkedIn operate does not create the pointer-link for all occurrences of the term.”

LinkedIn will soon be owned by Microsoft, which is itself a leading proponent of software patents. What will this mean? Remember that the Enfish decision too involved Microsoft and people from Microsoft were pleased with the outcome. Speaking of Microsoft, the company is now hoarding software patents on quantum computing, based on this new listing. “Note that the USPTO also has a search engine for patent applications that are not yet granted,” wrote the author. “I am not listing those here. You can use that search engine yourself if you also want to see “Previews of the Coming Attractions”…”

Microsoft is by far the biggest threat to Free software when it comes to patent aggression.

Patents on Genome

“Indacon’s U.S. Patent No. 6,834,276 covers an improved database system that adds “custom links” so that instances of a “link term” would point to a particular file in the database.”
      –Patently-OThe Alice/Mayo test applies to more than just software. Bristows lawyers (i.e. patent profiteers who promote software patents) show no concerns about patent scope expansions. Based on this article from MIP, they aren’t going to say that patents on human genome are insane. Instead there’s promotion of that. As per the summary: “Genomic technology has rapidly created a multi-billion dollar growth industry. With life sciences companies scrambling in US and European courts for a share of the lucrative market, in-house IP counsel should start preparing for the next wave of IP litigation, explain Dominic Adair and Annsley Merelle Ward” (from Bristows).

Unless the USPTO gets a grip and stops granting patents on everything in nature, the valuation of patents and the confidence in the patent office will further erode, leaving patent lawyers reliant on illusions, lying to their potential customers, and overselling the prospects of patent litigation. How long can this madness last? It’s a bubble. █

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The Continued Collapse of Software Patents in the US, No Matter What Patent Lawyers Say

Posted in America, Patents at 8:21 am by Dr. Roy Schestowitz

Spinners everywhere

Umbrella spinner

Summary: New examples of software patents that simply cannot withstand or survive scrutiny, either at the appeal panels or at the court (where there’s no incentive to approve nearly everything, unlike the USPTO)

THE USPTO wishes to grant more and more patents for increasing revenue and growing influence. This is why it ended up with so many patents, perhaps the majority of which are bogus (based on prior art, abstractness etc.) and the bubble has begun imploding.

Making money by invalidating bad patents sounds like a good thing, but based on this new report from MIP, this business opportunity is being exploited by thugs and con men like Kyle Bass and Erich Spangenberg (we wrote about both of them in prior years). To quote MIP:

The Patent Trial and Appeal Board’s institution decisions on all 35 of the inter partes review petitions filed by Kyle Bass and Erich Spangenberg are now in

The Patent Trial and Appeal Board (PTAB) has issued institution decisions on all the inter partes review (IPR) petitions that involve hedge fund manager Kyle Bass.

As a recap, Spangenberg is one of the biggest patent trolls out there. Kyle Bass comes from a highly ruinous meta-industry and he destroys companies by going after key patents of theirs. Another new article about PTAB (also from MIP) says: “The Patent Trial and Appeal Board has invalidated two livestock valuation patents in the first PGR final written decisions. Only one of the 28 PGR petitions filed so far has been denied institution, with two settled and 11 waiting an institution verdict” (progress).

“We are hoping to see more such cases where software patents are identified by determining the reducibility of the operation to pen-and-paper analysis.”If you see “livestock” in patents, then you immediately know something is amiss, either because the patent pertains to life or to software/mathematics in this case. Many of the patents which PTAB invalidates these days are software patents.

Speaking of software patents, mind this new decision [via] and blog post titled “Computer Memory Testing Patents Invalid Under 35 U.S.C. § 101″ (Alice likely). To quote the summary, action in this case can be “performed by humans without computers [and this] confirms [...] asserted claims are directed to patent-ineligible abstract ideas.”

We are hoping to see more such cases where software patents are identified by determining the reducibility of the operation to pen-and-paper analysis. This patent sounds rather similar to the Bilski one, which the US Supreme Court was not too enthusiastic about. █

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EPO and Its ‘Buddies’ in the Media Lobby for the UPC in Spite of and in the Face of Resistance

Posted in Europe, Patents at 7:51 am by Dr. Roy Schestowitz

Michael Fröhlich does Battistelli’s bidding, meddling with public policy

Photo credit: Nordic Patent

Summary: The takeover of media and public events (or panels) for the promotion of UPC and EPO reputation laundering should strike a nerve, for it shows the persistence of Battistelli’s arrogance (he believes he is above the law and has a blank cheque)

THE EPO makes the USPTO look very good because unlike the EPO, the USPTO does not buy the media and lobby the government, at least not until after service in Office (recall what David Kappos is doing nowadays).

“Journalistic misconduct for the sake of profit seems to have become acceptable.”Last week we wrote more than half a dozen articles about the EPO’s distortion of European media, and to some degree even US media, Indian media and so on. Journalistic misconduct for the sake of profit seems to have become acceptable. This morning the EPO was linking to puff pieces which cost millions of Euros to generate (total waste of budget), such as this article from Germany and shallow pieces, including from French government and French media, some of which was “media partner” of the EPO (it produced puff pieces this year, having self-censored last year). Perhaps when hiring PR agencies to lean on the media isn’t enough one just attempts to almost literally buy the media. There’s nothing in EPO ServRegs against that.

Based on the EPO’s Twitter activity this morning, the EPO is still lobbying for the UPC. No separation between policy and examination? To quote NPI (Nordic Patent): “Michael Fröhlich from EPO discussing some of the practical details of the UPC at PatTech” (last year Grant Philpott was doing something similar).

“Based on the EPO’s Twitter activity this morning, the EPO is still lobbying for the UPC.”The EPO’s mouthpiece, IAM, also joins the lobbying effort. Joff Wild has just said: “From an IP perspective, the immediate consequences of a Leave vote will be on the future of the Unified Patent Court and unitary patent project. Effectively, it kills this off until the UK formally departs from the EU. At IPBC Global last week there was some talk of the UK ratifying the agreement even after having voted to quit, on the basis that it is an inter-governmental treaty not an EU one; the thinking being that once the UK was in ways would be found to keep it there – a classic Euro-fudge, in other words. The more I think about that, though, the less likely a scenario it seems.”

The article is another example of preaching from IAM. Titled “It’s time for IP owners to start giving serious consideration to the possibility of Brexit,” it sounds more like instructions than reporting. One new comment in IP Kat speaks of the misconception that the EPO is an EU body:

Most of European citizens take distance with European organisations/institutions.

Not long ago, we saw a negative vote in The Netherlands.
The referendum about the “Act of the Association Agreement between the European Union and Ukraine” ended with 61% of voters voting against it and 38.2% of voters voting for it.
The true goal of the Dutch referendum was to attack Europe’s unity.
We have to take in account that the press coverage about the EPO scandal was huge in The Netherlands. A few weeks before the referendum, all Dutch citizens watched on television the EPO vice-president not respecting fundamental rights and denigrating the Dutch justice.
Of course, some experts will explain that the EPO is not a European Institution. But the reality is that 99,99% of the EU citizens believe that the European Patent Office is the second biggest European institution of the European Union.

Now in the UK, we see the EU referendum. Recent polls have indicated that the British public are in favour of a withdrawal.

In France, and in other European countries, the citizens perceive more and more the European organisations/institutions as corrupted, arrogant, above the laws. The European Patent Office is the perfect example of such bad behaviour.

I believe that if we want the EU survive, the European organisations/institutions have to do the first step, improve their own image and behave correctly.

Battistelli is rapidly becoming a threat to European unity as a whole. He discredits the European Establishment.

In relation to another comment, one asking whether it’s possible to remove Battistelli, the following three comments were posted:

No, no limits regarding the ServRegs, if the representatives vote in favour, even if against their national laws and obligations, and possibly against the intrest of their country. ATILO may decide it was illegal, but then the changes have already been implemented for about ten years, and in the meantime possibly even strengthened. And mostly ATILO only decides whether the rule adoption procedure has been followed.

And regarding Battistelli: sure he can be voted out of office. Article 11(4) EPC. Article 19(2) the PPI (Protocol on Provileges and Immunities) lays down the rules when the immunity of the President can be waived by the AC. But as we all know, the AC, most governments (including the host country Netherlands), and especially current top management do not desire to apply the provisions of the PPI, although the PPI is an integral part of the EPC (Articles 8 and 164(1) EPC). As such, the whole EPC should not be implemented without the PPI being implemented, and the PPI includes “the organisation shall co-operate at all times with the competent authorities of the Contradting States in order to [...] ensure the observance of police regulations and regulations concerning health, labour inspection, and to prevent any abuse of the priviledges, immunities and facilities provided for in this protocol” (Art. 20(1)PPI).

With all respect, the EPO does not lack legal brains – including externally recruited lawyers and BoA members. The law just doesn’t exist in the EPO because of immunity and the member states concerns not to infringe it. Rightly or wrongly.

I’m surprised Julian Assange and Osama bin laden didn’t camp out at the EPO with it being so untouchable. All that lovely cheap food, saunas, spas, gymnasiums, polo pitches and horses. Have we finally identified the home of Lord Lucan?

Mr. Assange would never be safe in Eponia as the tyrant in chief would soon frame him “armed Nazi” or something to that effect; it’s easier to tackle truth-tellers that way. █

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Battistelli is Sending Threatening Messages/Letters Again, in Another Desperate Effort to Cover Up His Campaign of Defamation Against EPO Whistleblowers (Updated)

Posted in Europe, Patents at 7:02 am by Dr. Roy Schestowitz

Summary: Battistelli tolerates neither truth-tellers nor reporters, based on his latest (rumoured) actions, which should definitely demonstrate that he needs to be sacked a fortnight from now

Battistelli is off the rails again. His defamation campaign against a judge must apparently remain a closely-guarded secret, unless he controls the media and issues defamatory pieces just weeks after signing that infamous (and secret) FTI Consulting contract. We covered that last year.

“News from the disciplinary case,” one source told us, “which started today at the EPO: inside sources say that Mr. Battistelli sent a threatening message to the Enlarged Board of Appeal dealing with the case, to the effect that they should not let the public be present during the hearing. The EBA is said to take this very seriously and to have forwarded the president’s threat to the chairman of the Administrative Council.”

“…Mr. Battistelli sent a threatening message to the Enlarged Board of Appeal dealing with the case, to the effect that they should not let the public be present during the hearing.”
      –AnonymousAs we noted last week, a very small room was chosen, presumably by intention (to discourage public participation).

Is this finally (hopefully) the last straw that would lead to the sacking of Battistelli in 2 weeks? Remember how he also bullied delegates (Administrative Council). That was last year. How much more of this can Mr. Kongstad tolerate? As Board 28 put it, there is now a "crisis" and the entire Organisation, not just the Office (both are called EPO), risks collapse.

“As Board 28 put it, there is now a “crisis” and the entire Organisation, not just the Office (both are called EPO), risks collapse.”Earlier today, in the early morning in fact, we got the following tidbits of information about the hearing (or so-called ‘trial’): “EPO Boards of Appeal trial started some +/- 40 minutes ago. Start of proceedings against mr x. In room 109, one of the smaller rooms. [so they shifted to an even smaller room, not Room 131 which had been booked] Space for about twenty people. Apparently no press! One blogger present! Word is the Administrative Council is split into three factions. One around the Swiss delegation that wants to try to amend the proposals to get something acceptable. One (unidentified) that wants to reject outright. And the death eaters. Voldemort will not allow amendment, so there are likely to be two by the end. ‘Boards of Appeal trial’ in Munich against a judge, whose ‘crime’ seems to be saying the truth about the EPO…”

The main question at this stage is, has any of those attending brought a recording device and, if so, will that person share the audio with the press/bloggers? If only one blogger is present, then it’ll be easy to witch-hunt/punish that person. This is probably what Battistelli and his goons want. It’s also quite likely the reason a very small room got allocated at the 90^th minute, in spite of Room 131 (which is also not that big) being available/reserved.

Eponia is quite a crazy place and Battistelli wishes to make it even crazier.

“Is AMBA next to receive threatening letters?”“Surely,” wrote one commenter this morning or last night, “there must be some limits to what can be added to the service regulations, prohibiting post-service employment without compensation seems dodgy to me. Surely as well, there must be some way to impeach Battistelli or to lift his immunity.”

“Meanwhile at the EPO,” said another comment, “AMBA have produced another polite but scathing critique: http://amba-epo.org/”

We covered this the other day. Is AMBA next to receive threatening letters? Recall last month's letters. █

Update: “President wrote to the board,” we learned, “and said public should not be allowed. But public are in for the afternoon. Public were excluded for the morning.”

So much for fair ‘trial’ (or hearing). What is Battistelli so afraid of? To most people it’s a rhetorical question.

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06.13.16

Another EPO Staff Demonstration Planned for a Fortnight From Now When Battistelli Wishes to Make the EPO Even Crazier

Posted in Europe, Patents at 6:58 pm by Dr. Roy Schestowitz

Summary: More attacks on the basic rights of EPO staff are in the pipeline and provocative comments or spin about these have begun to emerge

THIS week is an important week for the EPO not just because of the spontaneous protest and what inevitably caused it but also because of tomorrow's 'trial' against a judge, whose ‘crime’ seems to be saying the truth about the EPO. No dissent is tolerated by Battistelli, not even within boards that are in principle independent from his regime. Battistelli already went as far as intimidating lawyers, staff unions, apparently spouses of staff representatives, politicians, delegates, and even yours truly. This man is crazy and his loyal confidants (whom he typically brought with him from France or ‘rescued’ from criminal charges in Zagreb) inherited a position with little effective oversight and over the past few years removed any oversight that had remained in tact. It’s quite a coup!

For those who believe that things are as bad as they can get, believe no more. It can get worse unless Battistelli, who is arrogant enough to totally ignore the Administrative Council and grossly defy their demands, gets canned. Here is what SUEPO says about Battistelli’s imminent plans. “The next attacks on staff,” SUEPO calls it, listing the proposals below:

On 29 and 30 June the next meeting of the Administrative Council will take place. The Office has prepared 5 (!) documents for decision that concern staff:

- CA/15/16 on self-insurance for health-care costs
This reform, if accepted by the Council, will give the President the full, unrestricted power to change the cover and reimbursement conditions of the EPO’s obligatory health care insurance whenever he sees fits, as he sees fit.

- CA/29/16 on post-service employment restrictions
This document proposes to give the President full, unrestricted power to decide whether an employee who has left the Office (resigned, retired or dismissed) may during two years take up a given new employment or unpaid activity. The regulations would apply to staff already in place and as well as colleagues who already left. They could seamlessly combine with the obligation for an active employee “to take the necessary steps for terminating … any employment exercised by his spouse where such employment is in any way connected with the Organisation and proves to be incompatible with that of the employee”, if the President so decides. A financial compensation is foreseen in none of the cases.

- CA/52/16 “standards of conduct” and investigations
The proposed regulations would give still wider powers to the Investigative Unit. They would also impose on staff the obligation to denounce their colleagues for any behaviour that is not in line with ill-defined “standards of conduct” or a long list of possible misconducts. Significantly, this obligation does not apply to “documents, deeds, reports, notes or information covered by specific requirements of confidentiality under the legal framework of the Organisation”, i.e. to misconduct by the Investigative Unit or other parts of the administration. Any references to data protection regulations have completely disappeared. We advise staff to read this document.

- CA/53/16 concerns a review of the disciplinary procedures
The change of regulation proposed in CA/29/16, if accepted by the Council, will take dismissals for professional incompetence out of the hands of the disciplinary committee and thereby double the time needed to challenge such a decision via an internal appeal rather than directly to ILOAT. It also introduces a “plea bargain” for employees who accept “unreservedly” the accusations against them. This very much smacks of coercion.

- CA/aa/16 concerns the planned reform of DG3
The document contains all the flaws already criticized in a previous version, and more. The document pretends that the proposals will increase the “perception” of independence of DG3, but in fact limits its independence.

The above seems to be ‘custom-made’ for particular cases and people whom Battistelli wishes to crush. This isn’t the first such incident. For instance, recall the retroactive legislation which we mentioned this morning. This smacks of monarchy disguised or ‘dressed up’ as politics.

SUEPO is not too optimistic about Battistelli getting the sack later this month and it explains why as follows:

What about the resolution of the Council?

In its March meeting the Administrative Council voted for a resolution clearly signalled Mr Battistelli what improvements were expected from him. Mr Battistelli has not just simply ignored the instructions of the Council but did exactly the contrary on several points. We will have to see how the Council delegates, in particular those of the smaller Member States, will react. Will they accept their responsibility for the Organisation and exercise their supervisory role, or will they bow their heads and be beaten – with free „urgent“ medical and dental care (the «urgency» to be decided by the President), prestigious jobs in the Council bodies and a generous share of the EPO’s 13 million Euro co-operation budget as a compensation for their hurt pride?

The Central Staff Committee (CSC) sent all the delegates a letter explaining why the above proposals of the President are wrong, and asking them to vote against these proposals. In order to further encourage the delegates to do the right thing we plan another demonstration on the first day of the Council meeting. Further details will be communicated as soon as possible.

Proposed Article 19 of the Service Regulations

(2) A permanent employee or former employee intending to engage in an occupational activity, whether gainful or not, within two years of leaving the service, shall inform the appointing authority thereof. If that activity is related to the work he carried out during the last three years of his service and could lead with to a conflict with the legitimate interests of the Office, the appointing authority may … either forbid him from undertaking that activity or give its approval subject to any conditions it thinks fit.

(8) The appointing authority may lay down further terms and conditions for the application of this Article to the respective employees; …

CA/29/16

With or without consent from staff and delegates, the Battistelli regime is treating the Appeal Boards like unwanted fossils, essentially demolishing these boards little by little. Some further attacks on the appeals process, as mentioned last week by a reputable blog, are now officially being confirmed by the EPO (warning: epo.org link), effective only a day or two after the Administrative Council’s meeting. There are two new articles today about the EPO Enlarged Board [1, 2] and it is abundantly clear that these boards are needed. To Battistelli, however, these are probably an obstacle or a nuisance to his ‘baby’, the UPC, and so-called ‘production’ (quality control is not desirable when one measures the wrong things with the wrong yardstick).

Looking at IP Kat today, we cannot help wondering; Are there so many Battistelli apologists out there or is EPO management perhaps sending people to IP Kat a week after censorship of the whole blog was attempted? There is a sharp rise in provocative comments and responses to these. Some of these try to spin the above changes as perfectly normal and banal, discrediting those who raise concerns and saying stuff such as this (from someone called “Peeps”, whom we never encountered before):

If that activity is related to the work he carried out during the last three years of his service and could lead to a conflict with the legitimate interests of the Office, the appointing authority may…

IF
AND
MAY…

Simple Boolean logic demonstrates the narrowness of application.

The polite response to it was as follows:

“Simple Boolean logic demonstrates the narrowness of application.”

Dear Peeps,

Actually, simple legal analysis demonstrates the narrowness of your logic – but you are probably not used to read and interpret legal documents – let me help you out here.

The problem with the passage that you cite actually is with the words “could” and “legitimate interests of the Office”.

How do you decide in advance what “could” lead to a conflict of interests with the Office?

And what are these “legitimate interests of the Office”, pray tell me?

But most importantly, who decides what could lead to a conflict and what are these interest?

Yes, the President.

And the only recourse you have against that is the ILO (7+ years).

You’re welcome.

Not to overuse the term “Internet troll”, is it possible that after the censorship of IP Kat backfired and was quickly abandoned there is a change of strategy managed by the PR agency/ies? watch them throwing more insults [1, 2] at each other, which is probably what pro-Battistelli messaging (or Battistelli apologists) would seek to generate. New pseudonyms like “PB” are being used. We never saw these before…

As we shall show later this week, the huge PR budget of the EPO goes a long way. Prepare for trolls. Imagine how far a bunch of fake letters (or AstroTurfing) can go when addressing the Administrative Council’s delegates. Lobbying behind the scenes can be a lot worse (i.e. more powerful) than public spin-meisters because there is no room for scrutiny of said claims. Battistelli’s EPO is unethical enough to attempt this. █

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Bought Media Coverage at the European Patent Office

Posted in Europe, Patents at 6:15 pm by Dr. Roy Schestowitz

When does paying the media become a punishable breach of service regulations by Eponia’s standards, especially when the rules are effectively written and rewritten by one man (Battistelli) for chronic self-glorification and systematic assault on dissent?

Summary: Handelsblatt one among several publications (EU-wide and even in the US) that the EPO took under its wing — using EPO budget — in order to seed positive press coverage in nations as distant as India

LAST week we gave several examples of paid-for EPO coverage (paid for at the expense of EPO budget for the benefit of few top managers who milked it all for personal gain). So-called ‘media partners’ like this one (the Financial Times) became EPO mouthpieces, joining the likes of IAM and old media partners such as Les Echos. We needn’t explain why this is morally wrong. This is symptomatic of today’s EPO, where truth isn’t being tolerated, waste and abuse are rife, and a President with a management degree believes he’s a judge, a scientist, and maybe the next Nobel, as per his remarks at EIA2016 (God complex/megalomania).

“We needn’t explain why this is morally wrong.”Now, as expected, Handelsblatt delivers puff pieces, having become a mouthpiece of Battistelli. Yes, the EPO literally paid this publication (based on prior years) to become a “media partner” and produce puff pieces like this new one, which the EPO referenced earlier today (how convenient). We suppose there won’t be many critical investigative articles about the EPO (like this one or that older one) any time soon, at least not from Handelsblatt. Handelsblatter? Well, it’s often used as a source supportive of Battistelli's talking points. Expect more of that. Publishers and editors don’t bite the hand that feeds them.

Other German media helped relay the puff pieces from EIA2016 [2, 2] and so did Austrian press (the EPO did its job promoting these puff pieces today), not to mention French media and Cambridge again.

Do not forgot the crucial facts about spending of several millions of Euros (by some estimates) buying media, having already spent outrageous amounts of money on PR agencies (more on that later this week). IPO is apparently “pleased” about a thug and a megalomaniac tyrant having another chance at interjecting himself into the media, even though all of his staff (managers included) hates him with a great passion.

“Do not forgot the crucial facts about spending of several millions of Euros (by some estimates) buying media, having already spent outrageous amounts of money on PR agencies (more on that later this week).”Earlier today there was a spontaneous protest at the EPO (only days after the protest that coincided with EIA2016) and MIP took note of it as follows: “More protests at the EPO in Munich today after disciplinary measures against 2 staff members were maintained by President Battistelli.”

Meanwhile, in an effort to better control the message that the media gets, Team Battistelli offers surveillance (for self-censorship) contracts to BlueCoat providers and today’s reports suggest that BlueCoat sells itself to Symantec, which is quite an evil company that would certainly benefit from another evil company. To put evil appliances (usually purchased by the world’s most authoritarian regimes) inside the back rooms at The Hague is rather symbolic of what the EPO became under Battistelli’s regime.

Will Battistelli bankrupt the EPO by buying the media (controlling the message) before he finally steps down or his term reaches its end? █

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New Essay: EPO “president and Council are morally corrupt”

Posted in Europe, Patents at 5:23 pm by Dr. Roy Schestowitz

New essay about the EPO

Moral compass and management’s loss of it

The loss of moral compass of the higher management is nothing short of stomach-churning.

Unbridled craving for media exposure, unashamed cronyism in the pursuit of power concentration at the expense of checks and balance, abuse of our common assets for personal and exclusive benefit, vengeful oppression of dissenting opinions and immunity-bragging are now the norm. Coupled to a questionable taste for 1990s pseudo-corporate glamour, such trends have brought the mood in the organisation on par with that of Zamyatin’s dystopia¹.

Some leaders are inspirational, some are not. Inspirational leaders always lead by example. Inspirational leaders place all their emphasis on the duties they have, not the privileges they could claim, and certainly not on any immunity they may have. Immunity is the trump card of the irresponsible.

Current higher management’s taste for behind-the-scenes dealings, secrecy and information control is more than a warning sign; it presages the disintegration of the organisation. The collapse of moral values is always a prelude to disintegration.

‘Science flourishes where art and free speech flourish‘ once wrote N. Stephenson. Given the current atmosphere, our organisation is not on course to flourish.

German/American political theorist Hannah Arendt has taught us that blindly obeying ‘end-justifies-the-means’ policies is a sure path to moral ruin. This has happened to us in a mere four years. The oligarchic drift of the higher management has now gone too far.

And what of the Administrative Council, whose members come to Munich and endorse policies which would be illegal – and immoral – in their home country? Policies should first and foremost be judged on their moral implications.

The idea that anything that can be made legal is always morally acceptable has been discredited in Europe for decades.

Maybe tough decisions on the course of action of our organisation are necessary, but no one – and certainly not the EPO’s higher management – has shown that yet. If changes were necessary, it would surely be possible to put the arguments convincingly to staff, which is an intelligent body of people, and they, in turn, would surely understand the need, and be ready to make sacrifices.

However the policies embodying this course of action can only be accepted from a leader who has moral authority, deriving from his core personal values and transparency.

It is our observation that scientists and engineers are always more efficiently led by scientists and engineers, as do and did Charles Bolden (head of NASA) and Anne Lauvergeon (on the board of companies such as Total and Vodafone).

Austrian thinker Karl Polanyi warned us more than 60 years ago that there is great danger in deciding economic and industrial policies without having defined first the values of the society one wants to live in.

‘We used to have the spirit of the M.I.T, now we have that of Lehman Brothers‘ summarised a former member of our organisation.

The above text was proposed for publication by one of our colleagues two years ago. We publish it now since we think that it is even more valid than ever before.

EPO staff, national members of parliament, interested circles and the European public must publicly deplore the current system where

• president and Council are morally corrupt, and

• are actively engaging in destroying the Organisation which the member states have entrusted in their care

in order to provide an incentive to reinstate a moral authority in the supervisory body and at the higher management levels of the European Patent Office.

____________

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