11.29.16
Posted in Europe, Patents at 11:11 am by Dr. Roy Schestowitz
Summary: The ridicule of EPO management is a symptom of a poisonous work environment which now resembles an assembly line of bad patents, where employees are treated unfairly, severely, and in clear defiance of labour laws
“Out of the Muppet Show” is what a reader of ours called this video (apparently circulating internally right now). Also “pathetic”, but again, such characterisations say a lot about the general atmosphere at the EPO nowadays. Once upon a time the EPO was renowned for its high quality of examination (and thus high-quality patents) and nowadays, even this week, some companies still brag about grants of EPs, perhaps not realising that the EPO is a production line of low-quality patents, insiders tell us (more on that another day). In this particular new example, Medigus says it “has received a Notice of Intention to Grant a Patent from the European Patent Office (EPO) for its micro ScoutCam miniature camera technology. [...] patent will be valid until September 16, 2030.” We don’t know if the EPO will even last that long (in its current form). Its management is treated as a laughing stock by its very own employees and there are massive financial losses, not mention brain drain. █
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Posted in America, Asia, Europe, Patents at 10:37 am by Dr. Roy Schestowitz
How many patents are enough? A billion? To Battistelli it’s all about money (and self-glorifying photo ops), not innovation!
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). █
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Posted in Europe, Patents at 9:33 am by Dr. Roy Schestowitz
Long delay (about half a decade), then nothing
The famous report where ILO complained about EPO-induced workload
Summary: The International Labour Organisation (ILO) is once again failing too serve justice, instead just sending complaints elsewhere, in effect into a black hole
THE ILO may have its reputation, but how much does it really help labour in international institutions like the EPO? With small amounts of money in compensation (orders of magnitude less of the damage caused) or referral back to the EPO, where the notion of justice simply does not exist, what does that make ILO justice look like? It makes one wonder if there’s even any rationale at all for dealing with ILO anymore. The message they get across is that they either don’t care or just want to make it appear like they care (or both).
ILO is overloaded/flooded with EPO complaints, but that’s hardly an excuse when every pertinent case may represent a ruined life if not a ruined family. Two decisions were expected to be delivered today. Right now we cover the first, which was published along with another decision (to be covered separately). Here is local copy of this decisions, just in case of removal [PDF]
. The complainant is Mr S. C. F. and the judges are Barbagallo, Hansen, and Moore. Watch how useless the outcome was:
1. The decision of 24 June 2015 is set aside.
2. The case is sent back to the EPO for examination by an Appeals Committee composed in accordance with the applicable rules.
3. All other claims are dismissed.
The extract says: “As to the complainant’s request for oral proceedings, the Tribunal notes that the parties have presented their case extensively and comprehensively in their written submissions, which are sufficient to enable the Tribunal to reach a reasoned and informed decision on the only issue that must be determined at this stage. The request for oral proceedings is therefore rejected.”
One person told us that this “case sent back to EPO for examination by Appeals Committee composed in accordance with the applicable rules. Two members of the Appeals Committee were volunteers who were not appointed by the Staff Committee as specifically required. The applicable provisions and therefore the composition of the Appeals Committee cannot be considered to be the balanced composition as provided for by the rules.”
We hope that ILO is at least aware of its utter failure to serve a perception of justice, let alone justice. It serves to show just how out-of-control today’s EPO really is. Unlike Swiss CERN, this Switzerland-based institution is quickly becoming part of the problem. Battistelli can falsely claim — as he habitually does — that people have access to outside justice; but they haven’t. █
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Posted in Europe, Patents at 9:22 am by Dr. Roy Schestowitz
Showing their conCERN for people, not for ruthless tyrants like Battistelli
Summary: The European Organisation for Nuclear Research known as CERN is openly condemning EPO management and the Administrative Council for violation of human/labour rights, not to mention the other abuses that are rampant under Battistelli’s notorious regime
EUROPE’S most renowned scientific institution, CERN, is upset at the EPO and it doesn’t even hide it anymore. Publishing in its “CERN Bulletin” (not in Swiss but in French and in English), CERN says the following:
Here at CERN, the relations between the personnel and its delegates, the Management and the Member States take place currently in very favourable conditions, showing mutual respect, and attention to the points of view of the other parties, in order to reach a concerted position. We will take all actions within our realm to maintain this quality of relationship; but the situation at the European Patent Office reminds us that we shall remain vigilant about the due respect of the rights of the personnel and its representatives.
It is important that, as international civil servants working at CERN, we shall keep regular contacts with our colleagues from other international and European organisations, in order to stay informed, and eventually show a display of solidarity when unacceptable practice happens.
We support our colleagues at the European Patent Office in the hardship that is imposed on them by the current Presidency. We take note of the efforts that the Administrative Council of the EPO has made public, in a motion dated March 2016, to try and solve the situation, but we regret that the EPO Presidency does not follow the recommendations of its Administrative Council.
We hope that more such institutions will come forth and condemn the EPO’s management. Otherwise there might be no EPO left, just some fossil with a bunch of rotting EPs that should ever have been granted in the first place (in the name of “production”). █
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Posted in America, Patents at 7:27 am by Dr. Roy Schestowitz
Summary: A week’s roundup of patent news from the United States, where there’s a mixture of good news, bad news, good reporting, and misleading (or selective) reporting
TAKING a break from European scandals and looking at the USPTO for a moment, there’s some good news and some bad news. This post is an outline of recent coverage and some interpretation of recent developments.
IoT and Other Buzzwords Targeted by Trolls
Using buzzwords for patent thickets, MIP published “Defining the IP landscape in IoT” several days ago. In simple terms , IoT is just a device with a TCP/IP stack, where IP stands for Internet Protocol, not Intellectual Property (quite a buzzword in its own right).
Another new article, published by a site that piggybacks the buzzword “IoT” (as meaningless as the buzzword “smart”), is titled “IoT Time: Don’t Feed the Trolls” and it speaks of a real and growing problem. Patent trolls, including some of Microsoft’s, are trying to tax — using patents — every device out there, even routers. One of Microsoft’s patent trolls that does this is still fighting for software patents. Here is what the article said:
The White House estimates that 62 percent of all patent-related lawsuits in 2014-2015 came from these trolls. And although it is a problem in the hardware space, it’s a much bigger one for software folks.
The New York Times in 2012 reported that the number of software patents has gone through the roof in the last few years, and software is hard for courts to nail down in terms of what, specifically, is the proprietary bit of code. Much of the code looks like any other code, even to experts, which leads to after-the-fact lawsuits asking for huge settlements years later.
Improved Patent Quality Means Less Litigation
The US patent system gives us many reasons for optimism, Trump’s presidency aside (we wrote about this last night). With better quality control in recent years the number of lawsuits sank, especially frivolous lawsuits from trolls. Here is how IAM put it:
It has been clear for most of 2016 that the number of new patent litigation cases was going to be down this year in the US. But it is now becoming ever more likely that the fall will be dramatic. According to the latest estimate from Lex Machina, the total amount of suits for 2016 is expected to be 4,586; that’s down from 5,822 last year, which was the second busiest on record.
This data from Lex Machina was mentioned elsewhere as well, though not in publications that are busy glorifying patents and attempting to inflate their value (no emphasis needed on such articles).
PTAB, Inter Partes Reviews (IPRs) and the Courts
David from Patently-O, a rather scholarly site, said that “courts continue to split on whether IPRs (reeexam, reissue, etc.) are “prosecution.””
In our view, a good analogy or parallel here is the EPO’s Boards of Appeal. Here is what David wrote:
I’ve written a lot about so-called prosecution bars (buy some of the books for Christmas gifts here! They make great stocking stuffers for toddlers), and this case is in many ways not that unusual but it does raise one interesting issue and serves as a reminder to both check your side and the other’s for folks who may need to be subjected to a bar, and its scope.
The opinion is not online that I can find but is Emerson Electric Co. v. Sipco, LLC, 2016 WL 6833741 (N.D. Cal. Case No.16-mc-80164-DMR, Nov. 21, 2016). A third party, Linear Technologies Corporation (“LTC”) was served with a subpoena that included a request for its source code. LTC sought to ensure that one of the party’s experts, Ameroth, would not have access to it because he was participating in IPRs. LTC had not instituted the IPRs and was not a party to the litigation.
Everyone agreed to amend to include a prosecution bar in the protective order (apparently it did not, before the subpoena, contain one), but the dispute was over whether Ameroth could view LTC’s source code and still participate in the IPR.
Suffice to say, we’re huge fans of IPRs and of PTAB in general. It helps ensure greater and more reliable control over the quality of patents. It’s a bit like an independent (sort of) regulator of examiners. Its very existence is enough to compel examiners to think twice before they grant a patent in error. PTAB is almost like a watchdog, i.e. the very opposite of Watchtroll who just keeps attacking PTAB. It was sorely needed for over a decade and now it’s under never-ending attacks from the patent microcosm (profiting from the absence of such oversight mechanism).
Here is a very recent article titled “Federal Circuit PTAB Appeal Statistics – November 2016″. It’s from a site of patent law firms and it says:
Through November 1, 2016, the Federal Circuit decided 128 PTAB appeals from IPRs and CBMs. The Federal Circuit affirmed the PTAB on every issue in 101 (78.91%) of the cases, and reversed or vacated the PTAB on every issue in 9 (7.03%) of the cases. A mixed outcome on appeal, where at least one issue was affirmed and at least one issue was vacated or reversed, occurred in 11 (8.59%) of the cases.
78.91% affirmation rate is very high and it’s similar to the rate of CAFC invalidations of software patents.
MIP also wrote about PTAB last week (Mr. Loney writes a lot on the subject from New York). “Though the AIA and PTAB have made strides in curtailing the practices of the non-practicing “trolls”,” it said, “patents can still be monetized through these same methods by operational and non-operational companies alike.”
Watch what PTAB does to the patent troll of Ericsson, based on this report from MIP: “In Unwired Planet v Google, the Federal Circuit has declared: “The Board’s application of the ‘incidental to’ and ‘complementary to’ language from the PTO policy statement instead of the statutory definition renders superfluous the limits Congress placed on the definition of a CBM patent””
A lot of the press coverage last week actually focused on this one case. They have been pretty much ignoring all the cases which did not suit them and instead cherry-pick this one case. We’ll deal with that separately later.
PTAB made many people realise that passing the examiners’ ‘quality’ control at the USPTO is not enough, or as IAM put it: “The extent to which patent value and validity are correlated in the current market was called into question last week at Unified Patents’ annual meeting in Silicon Valley.” To quote IAM’s headline (it’s a blog post), “To understand a patent’s true value these days you have to factor in the PTAB” (which habitually shoots down patents even after a grant and without the patents being tested in court).
Remember how companies used to issue press releases to brag about being granted a patent or two? Well, watch how PTAB too gains recognition, based on this press release:
Voip-Pal Announces the USPTO Has Denied on All Grounds Institution of Unified Patents Inc.’s Petition for Inter Parted Review Filed
Voip-Pal.com, Inc. (“Voip-Pal,” the “Company”) (VPLM) is pleased to announce that on November 18, 2016 the Patent Trial and Appeal Board (“PTAB”) of the United States Patent and Trademark Office (“USPTO”) denied on all grounds a petition for Inter Partes Review (“IPR”), IPR2016-01082, filed by Unified Patents Inc. against Voip-Pal’s Routing, Billing and Rating Patent (“RBR”), Patent No. 8,542,815 (“815”)
Patent Microcosm Makes a Mountain Out of a Molehill
As we noted above, in one particular case CAFC did not agree with PTAB. It’s one of those exceptions or rare situations. As expected, patent law firms try to use this one case against PTAB’s legitimacy and they hope to overturn software patents’ death. How many articles did we find about it last week? Plenty! See [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15] and also “Federal Circuit Tightens Standard for AIA Review” (behind paywall), which generalises based on one single case. Greedy law firms ignored what CAFC has said about PTAB’s function until they got something that supports their narrative/business model, so now they amplify it. It obviously got PTAB foes (patent maximalists) all riled up (see Watchtroll) and various sites that wrote about it were careful to note that it’s just one case of many. If one actually bothers visiting the USPTO’s site, there’s a post there which calls PTAB a success. To quote: “As part of the USPTO’s ongoing Enhanced Patent Quality Initiative, in April 2016 we launched the Post Grant Outcomes Pilot, focused on pending patent applications that are related to issued patents undergoing an America Invents Act (AIA) trial proceeding before the Patent Trial and Appeal Board (PTAB). We’d like to report that the Post Grant Outcomes Pilot has succeeded in making examiners aware of patents related to applications they are examining that are involved in PTAB trials, and in turn has facilitated the timely and effective examination of applications.”
Here is an article about that:
Post grant pilot a success, says PTAB chief judge
A US initiative called the “post grant outcomes pilot” has been a success, according to the chief judge of the Patent and Trial Appeal Board (PTAB).
In a blog by David Ruschke, chief judge at the PTAB, and Drew Hirschfeld, commissioner for patents, the pair noted that the pilot had “succeeded in making examiners aware of patents related to applications they are examining”.
This in turn facilitated “the timely and effective examination of applications”.
As part of the US Patent and Trademark Office’s (USPTO) ongoing “enhanced patent quality initiative”, the pilot was launched in April to focus on pending patent applications that are related to issued patents undergoing an America Invents Act (AIA) trial proceeding.
We sure hope that Ruschke and his colleagues will keep their job after the Trump administration fills the swamp, as it so habitually does amid transition. It looks like Lee will be pushed out, so what will that mean for PTAB and the America Invents Act (AIA)? █
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Posted in Europe, Patents at 5:35 am by Dr. Roy Schestowitz
Summary: A recent comment about Battistelli’s misbehaviour and the Administrative Council’s utter failure to get a grip on him
It seems to be more widely known by now, even well outside the ‘IP’ community and the EPO’s applicants (industry), that EPO needs to be saved from Battistelli. Attorneys too speak about it collectively and one attorney, Mark Summerfield, decided write the following about the EPO (bottom of blog post at IAM):
The situation at the EPO continues to be of major concern to all stakeholders, not least patent applicants who pay substantial annual maintenance fees while their applications remain pending.
In some ways it has become irrelevant who is “right” or “wrong”, or where the truth lies. When an organisation becomes dysfunctional, ultimate responsibility resides with management. M. Battistelli appears unwilling, or unable, to accept this. His response to your opinion piece sought to deflect blame elsewhere, while this reply from M. Prunier calls M. Battistelli’s honesty and integrity further into question.
At the same time we have seen a similar lack of transparency at WIPO, in various national IP offices, and in the processes of negotiating multinational treaties with significant IP provisions (e.g. the TPP). A backlash against “elites” (i.e. those who would have us lie back and blindly accept that they know what is best for us) has already produced Brexit and delivered the US presidency to Donald Trump.
My impression is that (presumably well-intentioned) people within international organisations, governments, and the public services, have decided that truly democratic processes are just too hard and inefficient, and have appointed themselves as the “expert” arbiters and executors. Those who have become the losers in this process, whether they be union reps at the EPO, or disenfranchised residents of the US rust belt, have had their fill and are crying out for their voices to be heard.
Even if everything M. Battistelli says is true, he has still failed to provide the leadership the EPO requires to evolve and adapt to the challenges facing the global IP system. The paralysis of the Administrative Council in dealing with this crisis is something of which its members should be ashamed.
We agree on that last part. Any sane member of the Council would have long ago voted Battistelli out. But as long as they collectively act like his spineless chinchillas he knows he can get away with virtually anything, even clear violations of their instructions. █
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