12.04.16
Posted in America, Patents at 5:24 am by Dr. Roy Schestowitz
The patent microcosm is hijacking public debate for marketing/self promotional purposes
A widely-used technique for misspeaking and misrepresenting one’s customers
Summary: A roundup of news about software patents and demonstration of the sheer bias in the media, which is mostly controlled or steered by the patent microcosm rather than actual inventors
THE STATUS QUO of patentability of software at the US patent office isn’t too encouraging to those who have made a living by pursuing software patents, either as applicants or as patent agents.
“Here is a CAFC/PTAB case almost nobody in the patent microcosm wrote about (probably because of the outcome, which is rightly viewed as undesirable to this microcosm).”What we’re observing these days is a lot of cognitive dissonance and cherry-picking, especially among patent agents and lobbyists of companies like Microsoft and IBM. They only see the ‘wins’ and refuse to see the ‘losses’. Take for example the new article (“Federal Circuit Takes A Common Law Approach to “Abstract Idea” Determinations in Alice Cases”) from the patent microcosm. It focuses on the Amdocs case and makes a case for software patents. Another such article, this one regarding Oracle, explains “How to Overcome Rejections Based on the Alice Decision” (“Highlighting the claim limitations helped Oracle avoid the Alice Rejection,” as the author put it in Twitter). They are still pursuing tricks and workarounds, seeing that PTAB and CAFC invalidate software patents faster than they can come up with new tricks and workarounds.
Here is a CAFC/PTAB case almost nobody in the patent microcosm wrote about (probably because of the outcome, which is rightly viewed as undesirable to this microcosm). WIPR did cover it and said:
The US Court of Appeals for the Federal Circuit has handed down a mixed patent ruling, in what is a successful outcome for Apple and Domino’s Pizza.
In a decision handed down yesterday, November 29, the court affirmed in part and reversed in part decisions by the Patent Trial and Appeal Board (PTAB) in three covered business method (CBM) reviews.
The decisions addressed the subject matter eligibility of certain claims of US patent numbers 6,384,850; 6,871,325; and 6,982,733.
Internet-based solutions provider Ameranth owns the patents, which disclose computer systems with hardware and software.
We wrote about Ameranth not even a single time in the recent past (not a few times but none, in spite of us writing extensively on the topic for over a decade) and looking it up suggests that it’s known for almost nothing but litigation. It makes one wonder if the company is based just on litigation, i.e. flirting with “patent troll” status. We wrote about Ameranth last year and half a decade ago [1, 2, 3], always in relation to litigation.
Either way, some of its patents got invalided by PTAB (at long last) and as usual, as is so common among patent trolls, the patents are on software.
“The news regarding Ameranth, irrespective of the parasitic nature of the company, is bad news to the patent microcosm.”In other news sites, CAFC/PTAB killing yet more software patents got a short mention (only two paragraphs!). To quote: “A federal appeals court on Tuesday further narrowed the patents that Ameranth Inc can assert in litigation against dozens of companies that use online ordering systems, invalidating the few claims that had survived review by the Patent Trial and Appeal Board (PTAB) last year.”
The news regarding Ameranth, irrespective of the parasitic nature of the company, is bad news to the patent microcosm. Watch how they misuse language; terms like “attack” refer to reassessment of patents, PTAB is called “death squad”, and district courts taking the side of the defendants is “Patent Invalidity Offense” (as if the defendant is magically becoming the offender).
“Three TiVo Patents Reinstated after NY Judge Found Alice Analysis Improperly Applied,” one patent attorney wrote the other day, citing this decision [PDF].
“The language of the patent microcosm sure is misleading.”They typically use words like “survive” (or “reinstated” in this case) when the offender/aggressor gets its way. Get it? Those who litigate and force others into courtrooms are merely “surviving”. Not the defendant. If the defendant/victim wins, then it’s said to be “attacking” the patent; it’s a “Patent Invalidity Offense”. The language of the patent microcosm sure is misleading. Roles or narratives are being inverted/reversed.
In other news from the docket, a US “court sua sponte vacated the prior district judge’s summary judgment order invalidating defendant’s advertising campaign analysis patents for lack of patentable subject matter because the asserted claims were not directed toward an abstract idea.”
This does not necessarily mean it’s the end of it. This just means a new decision will be issued. Given the possibility that it will be escalated upwards to CAFC, assume that these patents are likely invalid. If even a district judge previously found/deemed these patents to be invalid, then CAFC will almost certainly say the same (it’s a lot more strict than district courts).
“If even a district judge previously found/deemed these patents to be invalid, then CAFC will almost certainly say the same (it’s a lot more strict than district courts).”“Meanwhile,” says a new article from American Lawyer (behind paywall), “the U.S. Supreme Court in 2014 tightened eligibility standards for software patents” (that’s a factual statement).
Another news site went with the headline “Is a Software Patent Worth the Time and Effort?”
“Although patents for things other than software are legitimate and have a clear purpose,” asserts the author, “software patents feel like a joke.”
“Why take only Enfish into account? What about the hundreds of other decisions, the large majority of which were against software patents?”So are such patents “worth the time and effort”? Well, not anymore. Don’t trust what patent lawyers (sellers) say about software patents, as they know they mislead us. Watch what they wrote for IAM ‘magazine’ in the latest issue. The title is “Unlocking revenue opportunities in software patent portfolios after Enfish” and it’s behind a paywall. Why take only Enfish into account? What about the hundreds of other decisions, the large majority of which were against software patents?
The lunacy deepens when one looks over at Watchtroll. “We are only just now starting to come out of the software patent wilderness with the Federal Circuit recognizing that at least some software is patent eligible,” this article says, but actually, more recently, CAFC pretty much invalided all software patents because of a decision from a prominent judge (whom Watchtroll personally attacked shortly thereafter).
It’s no exaggeration to say that hundreds of thousands of software patents in the US (including already-expired ones) are bunk. Here is one of them, the EFF’s “Stupid Patent Of The Month” for November. To quote:
Stupid Patent Of The Month: Movies From The Cloud
The Onion once ran a piece titled “I invented YouTube back in 2010.” The joke, of course, is that YouTube launched in 2005. This month’s Stupid Patent of the Month is just as ridiculous. US Patent No. 8,856,221, titled ‘System and method for storing broadcast content in a cloud-based computing environment,’ claims a mundane process for delivering media content from remote servers. This might have been a somewhat fresh idea in, say the mid-1990s, but the application for this patent was filed in 2011.
The patent suggests using “at least one server” that should have “a memory that stores media content and a processor.” The server then communicates with “a consumer device” that can send messages and receive content. Aside from these prosaic details, the patent makes only a half-hearted effort to distinguish its supposed invention from the massive array of cloud-based media services that already existed when it was filed. For example, the description suggests that existing services were inadequate because customers might pay a flat monthly fee yet make few downloads. The patent recommends tailoring customer cost to the content actually downloaded. But even if that was a new idea in 2011 (and it wasn’t), routine pricing practices should not be patentable.
Don’t expect the patent microcosm to ever accept what they are paid to be in denial over. Software patents are an abomination, they don’t promote innovation, but they certainly bring more income to some patent law firms. Here is Peter Brewer obsessing about “patent agent” (middleman) over at IAM and another person’s remark on evergreening, which is a great example of patent systems being misused to just infinitely guard monopolies, not promote innovation. Warren D. Woessner, a patent maximalist, obsesses over the new patent eligibility guidelines not because he wants scope to be narrowed but because he wants everything to be expanded. Also see this IAM “report” about CAFC. Why are these pieces dominating the news feeds and where are actual scientists in the news. They are being spoken about (by the patent microcosm) but not for. It’s a real problem. The same thing happens in social media sites.
“It’s no exaggeration to say that hundreds of thousands of software patents in the US (including already-expired ones) are bunk.”Consider this tweet from a patent attorney (“What does #TRUMP mean for patent eligibility? “Intellectual Property is HUGE!! Alice is a DISASTER! Let’s make patents great again!””).
Well, boosters would certainly wish for that. “Making patents great again” is also the title of one new article from IAM ‘magazine’, promoting the idea that resurrecting software patents is “great”. What they mean by “great” is more and more of them, i.e. patents of lower quality, hence not great at all.
“Don’t expect the patent microcosm to ever accept what they are paid to be in denial over.”Talking to patent lawyers who profit from patents on software at developers’ expense, Benjamin Henrion said that “software patents are a disaster for our profession.”
Well, they are great to the profession that is taxing software development by dragging software developers into courtrooms and expensive settlements that would not at all be needed if software patents didn’t exist.
No doubt the patent lawyers want software patents back and the employer of the above patent attorney also challenges Mayo right now. A few days ago it wrote that “[t]he Supreme Court’s current definition of a law of nature is scientifically incorrect. The analysis of this issue is quite complex, but I will attempt to summarize the issue. The Court’s definition in the Mayo case came down to: “the relation itself exists in principle apart from any human action. The relation is a consequence of the ways in which thiopurine compounds are metabolized by the body—entirely natural processes. And so a patent that simply describes that relation sets forth a natural law.””
This same firm wrote in relation to the US patent system that “the GAO [Government Accounting Office] attempted to identify the factors that contributed to “low quality patents.””
“So the folks at GAO actually asked scientists, engineers, biologists etc. Not patent lawyers. How dare they?”As one might expect, the firm does not agree with the Government Accounting Office and tries to dismiss it. It says this “report was prepared at the request of the House Judiciary Committee, which asked the GAO to examine trends in patent litigation and identify opportunities to improve patent quality. To address the latter, the GAO attempted to identify the factors that contributed to “low quality patents.” The GAO’s analysis of these factors was based primarily on a lengthy survey of USPTO patent examiners on various factors that affected the quality of the applications they examined.”
So the folks at GAO actually asked scientists, engineers, biologists etc. Not patent lawyers. How dare they?
At the end of the day we have a conflict between scientists and lawyers. There’s no point denying it and perhaps it’s time for scientists to better organise for a better patent system — a system that puts science — not the revenue of patent law firms — first. █
Permalink
Send this to a friend
Posted in America, Europe, Free/Libre Software, GNU/Linux, Microsoft, Patents at 3:42 am by Dr. Roy Schestowitz
Summary: An update on Intellectual Ventures and Unwired Planet, whose operations pose a growing problem for Free software and Linux-based products (e.g. Android)
Patent trolls, as we noted in the previous post, are a growing problem in China and UPC in Europe can also make them a growing problem in Europe, basically emulating the mistakes of the USPTO.
“”Working with” as IAM refers to it basically means agreeing to cooperate with an extortionist.”IP Watch, speaking to LOT Network’s Ken Seddon, mentioned the problems associated with trolls on the first of the month, taking stock of the type of trolls that FTC spoke about (against) a couple of months ago. To quote: “Patent assertion entity (PAE) activity has skyrocketed in the past decade and much discussion has occurred around what to do in response to patent holders whose strategy is more focused on legal battles than innovating. One notable group has risen up to bring together global companies to address the PAE issue with a novel sharing approach. In an interview with Intellectual Property Watch, Ken Seddon, CEO and President of LOT Network, talks about the group’s rapid growth, what’s coming next, and how not to bring a squirt gun to a nuclear fight. ”
In our previous post we showed that Intellectual Ventures had expanded in China. Well, IAM continues to groom this troll, the world’s largest patent troll, which is Microsoft’s patent troll. See this promotional article and another new article which euphemistically calls patent extortion “NPEs” “monetisation”. “Working with” as IAM refers to it basically means agreeing to cooperate with an extortionist. IAM makes patent trolls look so benign that it’s appalling if not disgusting. That’s what happens when the patent trolls pay IAM…
“IAM makes patent trolls look so benign that it’s appalling if not disgusting. That’s what happens when the patent trolls pay IAM…”In other news, a network of sites published an article titled “How Big Law and Big Banks Took the Fight to Intellectual Ventures” [1,2], reminding us that Intellectual Ventures is very malicious and parasitic.
Speaking of Microsoft’s biggest patent troll, watch what Microsoft does with Nokia‘s patents other than extorting Android OEMs and passing patents to patent trolls like those that fund IAM. To quote the new article: “Under the terms of the agreement, HMD got exclusive rights to use the Nokia brand on mobile phones and tablets globally (except Japan) for the next 10 years, standard essential cellular patent licenses, software for feature phones…”
Those “standard essential cellular patent licenses” are among the reasons Microsoft ‘stole’ Nokia and now taxes a lot of the mobile industry using patents, even without selling any phones of its own. Not only Nokia’s patents serve to accomplish this goal. Ericsson’s patents too have been weaponised and Ericsson essentially created patent trolls that even operate in Europe (London).
“Ericsson’s patents too have been weaponised and Ericsson essentially created patent trolls that even operate in Europe (London).”Recently, Ericsson’s most prominent patent troll (Unwired Planet) did some damage even to PTAB, which has been responsible for intercepting a great number of software patents in the US. We wrote quite a lot about it last weekend and for those who don’t remember, the Court of Appeals for the Federal Circuit (CAFC) ruled to weaken PTAB. More coverage on CAFC coming out in favour of this patent troll of Ericsson — and indirectly against PTAB scope of operation — came from legal-centric sites [1, 2] at the beginning of last week.
Here in Europe, there may be some good news as Florian Müller, who used to promote/defend FRAND back in the days (it’s similar or related to standard essential patents), says that Germany pushes back against FRAND, citing antitrust reasons. To quote:
There was a time when I spent most Fridays–and occasionally also a Tuesday–in Mannheim (and on trains from Munich to Mannheim and back) to watch numerous smartphone patent trials. After coming to terms with a prohibition on making Internet connections from the courtroom (which prevented me from live-tweeting about the proceedings), I generally enjoyed my visits. I admired the depth of the judges’ technical understanding and their effective trial management (authoritative, but not authoritarian; highly facts-focused, but with a great sense of humor that I know other trial watchers also appreciated). There are, however, two notable exceptions from my fond memories: the incredibly dry air in the courtrooms and, more than anything else, the Mannheim judges’ take on what the obligation to license standard-essential patents on FRAND terms should mean for patent infringement remedies.
We certainly hope that these congregations of trolls, including those that try to tax every phone running Android, will be pushed back by courts. What we have here is a network of few large companies operating through patent trolls (i.e. resistant to lawsuits themselves), hoping to tax everything and everyone. Nobody benefits, except few rich people at the top. █
Permalink
Send this to a friend
Posted in Asia, Patents at 3:04 am by Dr. Roy Schestowitz
Summary: The race to the bottom (of patent quality) in China, the growth of patent trolls in the region, and the ruinous litigation strategy which now spills over even to the US — through the Eastern District of Texas — and may inevitably come to Europe (especially if the UPC ever becomes a reality)
NOT ONLY the USPTO but also SIPO, the patent office in China, permits patenting of software. We have been writing a growing number of articles about SIPO earlier this year as its policy generally got worse and the number of patents filed/granted has gone through the roof, only by lowering the standards of patents and thus their actual worth. Plainly put, China became just an assembly line of low-quality patents — something which is a recipe for trouble because patent trolls, for instance, can leverage such patents in bulk against those unable to defend themselves and demand ‘protection’ money, irrespective of the actual merit of the patents in question.
The other day we saw someone writing that “[a] Chinese company bought patents from Intellectual Ventures – another sign of the growing importance of IP in China,” but actually that’s just a sign of growth of patent trolling in China. Getting patents from the world’s biggest patent troll (groomed by Microsoft and Bill Gates) is not a sign of progress and the article cited came from the patent trolling proponents at IAM, whose latest issue continues to groom patent trolls and whose blog shows that those notorious/defunct patent courts in Texas are attracting the SLAPP equivalent of patents. Right now even east Asia exploits these courts and targets of theirs include Samsung, which develops many products with Linux in them.
IAM never viewed patent trolls as a bad thing (they have been promoting this in Asia recently, with growing focus on Korea, China, and even Japan) and based on this tweet, today they’re “very excited about IPBC Asia 2016, which starts in Shanghai on Sunday.”
What will they be saying to people at the event and what will they be telling readers? See this new article from the ‘magazine’: “Defending a patent case in the brave new world of Chinese patent litigation” (as if what they need more of is litigation that enriches lawyers rather than engineers).
Based on the past week’s reports, China’s patent maximalism (and patent trolling that ensues) is a growing epidemic [1, 2, 3, 4, 5, 6] and this article by Glyn Moody, titled “China Files A Million Patents In A Year, As Government Plans To Increase Patentability Of Software,” says it’s a very misguided plan. “Good luck with that,” he wrote sarcastically. “As the book “Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk” by James Bessen and Michael J. Meurer chronicles, software patents and their associated lawsuits have imposed a huge net cost on the US technology ecosystem. It’s mostly patent trolls and lawyers who have benefited from the thicket of intellectual monopolies that has threatened to strangle innovation. The same is likely to happen in China as it foolishly follows the US down the path of allowing patents on everything under the sun.
“That may be good news for the West in the long term, as the Chinese tech industry descends into an orgy of patent infringement suits that saps its resources and energy. But in the short term, many of the Western companies that are operating in China are likely to get caught up in this expensive, pointless mess too.”
China’s patent trolls are coming to other countries too, so the problem impacts not only China itself. See IAM’s article/blog post that says “Chinese company scores injunction on four Samsung devices over “pattern unlock” patent” (software patents).
“Last Sunday,” it says, “a Chinese-language news site based in coastal Fujian province reported that a local company had earned a surprising and difficult victory over Korean company in a four-year-old patent infringement battle. In a first-instance decision, the Intermediate People’s Court of Fuzhou is said to have ordered Tianjin Samsung Communication Technology Co to stop the production and sale of four infringing handset models, and pay damages of 10 million yuan ($1.5 million) to the plaintiff, Fujian ETIM Information & Technology Co.”
Suffice to say, IAM supports all this chaotic policy, being a site that’s for and by patent maximalists. It even shames those who try to reform the system to discourage trolling. Not too much of a surprise given that IAM’s funding sources include trolls… █
Permalink
Send this to a friend
12.03.16
Posted in Europe, Patents at 11:46 am by Dr. Roy Schestowitz
Summary: The backlash against Battistelli spills well outside the EPO and is now apparent even at the French National Assembly
THE EPO may not be the only casualty of the rather psychopathic (with God complex) Benoît Battistelli, the man who was somehow put in charge of the EPO only to destroy the institution Europe once took pride in.
Battistelli is certainly one for the history books; he does enormous damage not just to the EPO technically (bad patents, brain drain etc.) but also to its reputation. Moreover, he spoils the reputation of France and creates/reinforces an antipathy stigma that’s hard(er) to shake off, even though some of Battistelli’s victims are French.
Repeating what was said before by a female French politician (arguing Battistelli is “extremely damaging to the image of France”), Philip Cordery now tells the French National Assembly that Battistelli is a “disgrace to France”, according to this new article from The Register (published on a Saturday, their third article about the EPO this past week). To quote:
President of the European Patent Office (EPO) Benoit Battistelli is a disgrace to his country, the French National Assembly heard Wednesday.
“La présence du Français Benoît Battistelli à la tête de l’Office nuit aujourd’hui gravement à l’image de notre pays,” stated MP Philip Cordery in an address to the secretary of state for industry, Christophe Sirugue.
The extraordinary personal attack comes as a number of politicians, media organizations and staff unions across Europe have joined a growing chorus of criticism against the civil servant for continued attacks on his own workers.
For over a year, Battistelli has held several key members of the EPO staff union in disciplinary hearings and on restricted pay, claiming that they had been intimidating other employees. Last month, he took the momentous decision to fire the union’s former secretary, Laurent Prunier, despite an explicit resolution of the EPO’s governing Administrative Council telling him not to do so.
Comments in IP Kat (right now/this past week) aren’t much more flattering and some some of them blame more than just Battistelli; blame is put also on the Council for refusing or failing to fire Battistelli and his ilk.
To quote one comment:
You may well be right. Perhaps this is why Monsieur le President feels so secure, despite conducting himself in a manner that would land him in civil court (and perhaps also in criminal court) in any EU country.
This does beg the question: if EU leaders wanted to achieve certain goals that would currently be illegal due to some irksome EU law or other, could they set up an international organisation in order to effectively bypass those laws?
For example, in order to deal with troublesome political enemies, could one or more EU Member States set up an international organisation (with the usual privileges and immunities granted to its staff) with a name such as “Totalitarian Organisation for the Re-education of Those Undeserving of Rights in Europe” – or “TORTURE” for short? I would like to think not, but what would stop it?
If there are mechanisms that would stop the creation of a hypothetical organisation such as TORTURE, what are they? Would any of them be applicable to the EPO? If they would, is it too late to trigger them now? If not, how can they be triggered?
It is clear that the President and his cronies have taken actions that are not “strictly necessary for its [the EPO's] administrative and technical operation”. I mean, at what point could it ever be argued that it is “strictly necessary” to fire a staff representative when your governing body has explicitly told you not to? Thus, due to the limitations of immunity under Article 3 PPI, the Organisation, if not any of its individual staff, ought to be liable for suit in a national court. Such suit might raise interesting questions of the duty of the President under Article 19(2) PPI.
I do hope that there is a way out of this mess for the EPO. However, I fear that only legal action at a national court will be the answer: as what is to stop another clique of self-serving, money-grabbing, sociopathic “politicians” taking over the management of the EPO once the current President finally leaves?
In reference to the Dutch Supreme Court:
I suspect the Dutch Supreme Court Appeal might answer your question. It seems the court will find in favour of the EPO but, of course, the decision may well say a lot more about whether the EPO is morally wrong but technically safe. In doing so it should define the boundaries since that is the crux of the matter – where does immunity start. Don’t be surprised if the court is very direct and critical.
The discussion about the Dutch Supreme Court continues as follows:
Despite the AG’s opinion, I can’t see any reason to believe that it is likely that the Dutch Supreme Court will find in the EPO’s favour. This is because the AG’s opinion is so demonstrably full of holes that it is embarrassing. ILO-AT’s remit simply does not cover complaints relating to the rights at issue, and so to point to the possibility of complaining to ILO-AT is no answer to the plaintiff’s arguments.
But perhaps you know something about the Supreme Court’s decision-making process that I do not.
I would rather have expected that the government of the Netherlands (as well as all other national governments and/or heads of international organisations) would be at pains to avoid any suggestion of “political” interference in the Dutch judiciary. The independence of the judiciary is, after all, one of the cornerstones of democracy in Europe.
Eponia does not need to obey anyone though, as it even openly brags about ignoring the Dutch Supreme Court if found guilty. As one person put it:
The independence of the judiciary is, after all, one of the cornerstones of democracy in Europe.
What century are you living in ?
Certainly not the 21st century in Eponia !
What a load of quaint antiquated Montesquieuesque nonsense !
ILO’s ruling too can probably be ignored by Battistelli’s EPO and here is one comment about ILOAT, citing a PDF that we uploaded about a week ago.
One of the two decisions which had been announced for exceptional public delivery by the ILOAT is now available here:
http://techrights.org/wp-content/uploads/2016/11/ilo-3785.pdf
It doesn´t seem extraordinary, but it is, and it might have serious implications for other appellants as well: the ILOAT refused to examine the case before it on its merits, but sent it back right away to the EPO for reconsideration by an Appeals Committe “composed in accordance with the applicable rules” (!!!)
By analogy it must be expected that the numerous cases pending before the ILOAT concerning e.g. the disciplinary measures taken against staff mambers, or the contested guidelines relating to investigations, data protection, right to strike, etc … will be remitted to the EPO in the same way. It is a pity, and clear evidence that the EPO administration does not even abide to the most elementary statutory rules.
“Facts are opinions,” one person wrote. “This is what EPO communication is about now. Facts are opinions…”
EPO announcements/interviews/messages to media are also filled with lies these days. Lies have become the norm; it’s a post-truth era for the EPO.
Battistelli, a Republican, does not seem to care what’s true, much like Donald Trump with his utterly bizarre opinions on climate. Only says ago Trump’s spokesperson Scottie Nell Hughes said “there’s no such thing as facts” and she earned many headlines for that outlandish remark.
Here is the full comment about the EPO:
Facts are opinions. This is what EPO communication is about now. Facts are opinions, firing staff representatives is not what it looks like, it is based on individual circumstances, it so happens that 100% of dismissals target senior union members. And opinions are facts: really, yes, the unnamed board member hid nazi memorabilia and weapons in his office, after all who are you to disagree, I am the one controlling communication here. All of this is a matter of degrees in a scale with no beginning and no end.
So of course no definitive action need be taken by the administrative council. We are all still talking and arguing, you see. Let us put things in perspective.
From my perspective, the time for talking is long gone; communication has become corrupted and dangerous. The rule of law has become an esoteric detail standing in the way of “modernisation” and “reforms”.
Do not ever take BB and his cronies for anything other than what they are.
The authoritarian style of management championed by the likes of Putin and Battistelli does no favrour to France ahead of increasingly worrisome elections. Battistelli’s political party seems to be having issues and a reader told us that “Sarkozy got sodded at the first round! Bastardelli’s caring daddy won’t get upped!! Yuk yuk!!!”
Well, maybe he’ll stay around at the EPO even longer than his current term, or work at some capacity to fulfill his horrible UPC fantasies (he has done this for more than half a decade).
Here is one more comment:
It is a pity, and clear evidence that the EPO administration does not even abide to the most elementary statutory rules.
That is only the tip of the iceberg.
The real problem is that the AC will not demand any consequences or call those responsible for the mess to account, in particular DG5 legal services dilettantes who have created the problem with their anticipatory obedience to the forces of tyranny.
You really have to wonder whether the AC will even realise the significance of this judgement.
We won’t be quoting any more comments because many of them merely give a platform to trolls. The economics of Internet trolling are spectacular. One provocative comment is enough to cause a storm and take everything off topic. Readers of ours who also read IP Kat comments (especially over the past fortnight) will know what we mean. █
Permalink
Send this to a friend
Posted in America, Patents at 1:27 am by Dr. Roy Schestowitz
Whenever you apply for a dubious patent a kitten (or teddy bear) dies
Summary: Challenging the false belief that the more patents society has the better off it will be, citing examples and news from north America
PATENT maximalism is a mindset if not a cult, promoted and spread mostly by those who profit from patent bureaucracy without creating anything (they don’t risk getting sued themselves). We often emphasise that in order for patent systems to maintain legitimacy (corporate and public support) they must ensure that patent quality is preserved (or attained/restored when lost). The interests of the wider public, or the externality, must be taken into account when defining boundaries for patents (patentability criteria). The same goes for copyrights and suffice to say copyright reformers now enjoy public support, which is why political parties like the Pirate Party almost gained control of Iceland last month.
“What is your take-away?”
That’s what a patent maximalist asked at the start of this month when he presented a new graph of his, showing “Provisional Patent Application Filings”. I responded by saying that “getting utility patents in the US is getting easier, as quality in this domain is reduced…”
An increase in the number of patents should never be considered good news (good luck explaining this to a lunatic like Battistelli!)… unless these patents are somehow truly indicative of increase in innovation. Otherwise these may simply be indicative of declining quality control (or broadened scope/domains). The same goes for examination in schools and colleges; it’s often said here in Britain that if more students pass or excel at exams (with average grades going up), then it simply means that the exams got too easy/predictable and thus a poor/inadequate measure/yardstick of skills, intelligence, etc. (incapable of distinguishing good students from lesser good students).
According to this new report from MIP, “2016 Canada IP Report reveals fall in patent applications”. Here is the gist of it:
2016 Canada IP Report reveals fall in patent applications
A report co-authored by CIPO reveals statistics on patent and trade mark filing and granting in Canada since 2016
The Canadian IP system remains strong and that trends of the past several years mostly continued into 2015, according to a report released by Innovation, Science and Economic Development Canada and the Canadian Intellectual Property Office (CIPO).
The 2016 Canada IP Report provides filing data and analysis of Canadian IP rights domestically and abroad. It focuses on comparisons of last year’s statistics to those since 2006.
Is that really a bad thing?
Maybe there are alternative paradigms for interpreting this data. Later on (probably this weekend) we shall show what a mess the Chinese patent system is becoming due to SIPO’s terrible policy (we’ve already alluded to this in our previous post).
The patent maximalist now conveniently conflates patents with “property” (“Patent Law vs Property Law” — along the lines of the misleading term “Intellectual Property”), as if the more you have of it, the better. Pieces of paper that can be photocopied or whatever are hardly equivalent or equitable w.r.t. physical things. Moreover, with software patents, many of these papers describe things that are not physical, either. This kind of lunacy which is calling patents “property” needs to end in order to us to recognise what patents really are: a temporary, government-granted monopoly, given in exchange for publication (or dissemination) of ideas. I am not against patents, but I recognise their limitations and I believe that patents need to be few and defensible (in the broader societal interest/context).
Consider this new paper from a patent reformer/ist, Professor Mark A. Lemley. Watch what happens when patent maximalism goes out of hand. “Inventor Sued for Infringing His Own Patent. You Won’t Believe What Happened Next” is the title of the paper and here is the abstract (with our emphasis added):
The Supreme Court and the Federal Circuit have repeatedly emphasized the public interest in testing the validity of patents, weeding out patents that should not have been issued. But there is one important group of people the law systematically prevents from challenging bad patents. Curiously, it is the very group patent law is supposed to support: inventors themselves. The century-old doctrine of assignor estoppel precludes inventors who file patent applications from later challenging the validity or enforceability of the patents they receive. The stated rationale for assignor estoppel is that it would be unfair to allow the inventor to benefit from obtaining a patent and later change her tune and attack the patent when it benefits her to do so. The Supreme Court has traditionally disfavored the doctrine, reading it narrowly. But the Federal Circuit has expanded the doctrine in a variety of dimensions, and applied it even when the benefit to the inventor is illusory. Further, the doctrine misunderstands the role of inventor-employees in the modern world.
More important, the expansive modern form of assignor estoppel interferes substantially with employee mobility. Inventors as a class are put under burdens that we apply to no other employee. If they start a company, or even go to work for an existing company in the same field, they will not be able to defend a patent suit from their old employer. The result is a sort of partial noncompete clause, one imposed without even the fiction of agreement and one that binds anyone the inventor comes in contact with after leaving the job. Abundant evidence suggests that noncompetes in general retard innovation and economic growth, and several states prohibit them outright, while all others limit them. But assignor estoppel is a federal law doctrine that overrides those state choices.
It is time to rethink the doctrine of assignor estoppel. I describe the doctrine, its rationale, and how it has expanded dramatically in the past 25 years. I argue that the doctrine is out of touch with the realities of both modern inventing and modern patent law, and that it interferes with both the invalidation of bad patents and the goal of employee mobility. Should the Supreme Court take up the doctrine, it is unlikely to survive in its current form. Rather, it should – and will – return to its much more limited roots.
Stop patent maximalism at the EPO, the USPTO, and everywhere else. It has become an impediment to progress (or “innovation” — being the more popular buzzword among law firms) and thus antithetical to the whole basis of patent systems. █
Permalink
Send this to a friend
Posted in Free/Libre Software, Patents at 12:46 am by Dr. Roy Schestowitz
Part of the duopoly (with Visa)
Summary: Worrying signs that an area of Free/Open Source software innovation is getting impacted by the plague of software patents
EARLIER this year we alluded to Blockchain patents in relation to a sham promise from a company with no patents. It ought to be be widely known — as it certainly is widely recognised among people in the profession — that software patents on financial stuff are the least likely to survive in courts (irrespective of what USPTO examiners do).
And yes, according to this new article, “MasterCard (MA) Files for Blockchain Patents” (!).
A new article from Fortune (published yesterday) is titled “Are Blockchain Patents a Bad Idea?”
Consider whose interests Fortune is serving.
“Remember the connection of Blockchain to Bitcoin, Free/Open Source software, GNU/Linux, and the Linux Foundation. A lot of those are inherently not compatible with patents.”Truly troubling.
Remember the connection of Blockchain to Bitcoin, Free/Open Source software, GNU/Linux, and the Linux Foundation. A lot of those are inherently not compatible with patents.
Earlier today Sam Dean published the article “Will Patent Wars Bog Down the Blockchain Movement?”
Well, they can certainly cause a lot of damage. Other news about Blockchain today is optimistic about business prospects of Blockchain, but what happens if over the next year or two the most news we hear about Blockchain and hyper-ledgers relates to patents? As we noted here before, even Goldman Sachs dives into this gold rush of patents in this particular area.
Software patents need to end, but while the US cracks down of them they appear to have already spread to China, as we shall show later in the weekend. █
Permalink
Send this to a friend
Posted in Deception, Europe, Patents at 12:05 am by Dr. Roy Schestowitz
Remember that the EPO under Battistelli spends over a million Euros per year just manipulating the media
“[Microsoft's] Gates is trying to make sure that he has a proprietary position in controlling the tools that allow you and me to access information. And that’s profitable by definition. How would you like to own the printing press?”
–PaineWebber Media Analyst Christopher Dixon
Summary: Our observations regarding the apparent media disinterest in EPO scandals, especially at the very core of the EPO (principal host country)
LAST year, this year [1, 2, 3], and to some lesser degree even 2+ years ago we explained why German media barely covers EPO scandals (which happen right next door), being connected to beneficiaries of this whole arrangement in Munich and Berlin. Last week we also noted that the media in tiny Luxembourg wrote more articles about EPO scandals (in German!) than the German media itself. This is not acceptable. It’s almost as though it has got to be intentional. There is no lack of interest among the public, maybe cautiousness among media owners. Based on threats we received from the EPO (with wrong name in one of the letters), the EPO bullies other publications critical of the EPO (German-sounding names in the recipient’s template). We have more evidence that serves to reinforce a SLAPP culture under Battistelli, whose Vice-President has a history (proven track record) doing this for years in Croatia. Baseless legal threats induce self-censorship. Don’t forget that the contract with FTI Consulting targets Germany in particular. “Battistell & Clique must be stopped,” one reader told us, “and brought before court (like Volkswagen and other gangsters. Mafia).”
The EPO was covered quite widely in Dutch media this past week, and it’s not good news for Battistelli. But where was any of the German media?
Here is one new article from NRC. To quote the Dutch text: “De bedrijfscultuur bij het Europees Octrooi Bureau (EPO), gevestigd in Rijswijk, is nauwelijks verbeterd. Dat blijkt uit een brief van staatssecretaris Martijn van Dam (Economische Zaken, PvdA) aan de Tweede kamer. „Er is sprake van een wij-zij cultuur, gebrek aan wederzijds vertrouwen tussen management en personeel en een gebrek aan gedeelde waarden”, schrijft Van Dam. De kritiek van vakbond SUEPO, die de helft van het personeel vertegenwoordigt, is dat de Franse EPO-president Benoît Battistelli een autoritair bewind voert. In strijd met een resolutie van de raad van bestuur is in Rijswijk onlangs opnieuw een vakbondsbestuurder ontslagen, bevestigt Van Dam. De Hoge Raad besluit in januari of het EPO als internationale organisatie „immuun” is voor het Nederlandse arbeidsrecht.”
“Same story as this but shorter,” Petra Kramer told us about it. “Van Dam wrote a letter about EPO to the House.” We have already published Kramer's translation of the longer story.
Another large news site in Dutch covered these events a few days ago. To quote: “De hervormingen bij het Europees Octrooibureau (EOB) moeten worden voortgezet. Er zijn goede vorderingen gemaakt, maar er is nog te veel niet goed geregeld bij de instelling.”
And here is yet another new article in Dutch. We welcome translations.
Even some IP Kat comments mention the Dutch, e.g.:
It is tale telling that Ms Esther Ouwehand from the Dutch Animal Party has to take up the cause of the endangered species – the officials of the EPO. They are beyond hope, like the elephants
“The EPO was found guilty of infringing Human Rights by a second instance Dutch court,” a provocateur is being told in another comment:
@Zbrox:
The EPO was found guilty of infringing Human Rights by a second instance Dutch court. The case is now pending at the highest court.
You mention money, working conditions, etc. Do you really believe this entitles the EPO to infringe on Human Rights?
@Dissenting Opinion:
You somehow missed the point that moving the Boards is pointless.
Increased appeal fees will render the European Route very unattractive and pave the way for abuse from the part of the EPO/the examiners. The future of the UPC is uncertain, and certain EP member states are not and will probably never be members of the UPC (e.g. Switzerland, Turkey).
Please, cool down your emotions and consider carefully what you intend to post.
Regarding the UPC, we have a lot more to say about it. A petition against it may be on its way very soon.
The following new comment mentions the “Dutch Press”:
An AC storm is brewing! …
It is becoming more apparent to the outsider that we see in the EPO a more systematic use of staff rep dismissals instead of an isolated incident or coincidence as stated by the VP1 earlier in the year and in the Dutch Press. This is a clear indication for a toxic management style at work and EXTREMELY WORRYING!. Additionally the working methods of the Investigation Unit and the need for excessive security measures has been unprecedented and its financing for 2016 unexplained.
Where’s the German media? Pretending nothing happens? Even though the latest ‘action’ is centered at The Hague, certainly it’s of relevance to Germany. Heck, even the British press covers it (more and more regularly).
Frustration among Germans about this media blackout sometimes relates to or gets compared to “political correctness” censorship (on racial/religious themes) in the German media, but this one is purely financial, not fear of offence.
“I kindly ask you now to contact the GERMAN leading magazine DER SPIEGEL,” one reader told us. It’s pretty amazing that these large publications rarely if ever mention the EPO, especially amid all this turmoil. “DER SPIEGEL has not yet covered this story of fraud, abuse of power, arrogance of power, arrogance and abuse of diplomatic immunity,” our reader added. “I want however to bring this specific management policies to the SPIEGEL, and to the courts: They (The EPO) are operating in a (in my view, illegal but apparently casted-into-imperfect-contracts) vacuum, and current world issues (refugees crisis, Turkey crisis, #Trumpgate, #dieselgate ….) are playing in favour of Battistelli & clique……….”
Why no coverage about the EPO?
We therefore ask readers, especially German-speaking readers, to contact their press, including Der Spiegel. Get them interested in the story. Coverage of this is long overdue. There are no valid excuses.
“The most suited lawyer would be WOLFGANG KALECK (Berlin),” our reader told us, “by incident, his office is very close to the Berlin Suboffice of the EPO!!! KALECK is also Snowden’s lawyer in Germany, in the CITIZENFOUR movie a short sequence is shot with Ben Wizner (ACLU attorney) in his office close to the EPO suboffice in Berlin…”
Here is how to securely contact Der Spiegel (“USE ENCRYPTION,” our reader stressed, “PGP key via this page“).
E-mail is investigativ@spiegel.de.
We have already contacted Der Spiegel (in English), but have received no reply. Perhaps if more people do the same (pressuring editors) they’ll actually start caring and maybe even ending this appalling media blackout.
Suffice to say, Battistelli’s unprecedented campaign of manipulating and muzzling the media is itself a massive scandal. The BBC was going to cover it but eventually spiked the story, perhaps proving the very point it was going to write about. █
Permalink
Send this to a friend
12.02.16
Posted in Europe, Patents at 11:05 pm by Dr. Roy Schestowitz
Reference: Haar, Bavaria
Summary: Revisiting Battistelli’s effort to chop off the appeal boards that are necessary for ensuring patent quality at the EPO
THE EPO has this new announcement today (warning: epo.org link): “In its order for decision G1/15, related to the question of partial priorities and so-called toxic divisionals, the Enlarged Board of the EPO held that a generic claim encompassing alternative subject matter may not be refused partial priority, provided the alternative subject matter has been directly, at least implicitly, and unambiguously disclosed in the priority document. The reasoned decision will follow.”
This was actually covered earlier this week at IP Kat, under “BREAKING: Antidote found for poisonous priorities” and to quote:
The Enlarged Board of Appeal at the EPO has issued its order in case G 1/15, but not yet its decision. From the order, it appears that poisonous priorities have been neutralised.
The thing about the Enlarged Board of Appeal, an essential collective of judges and specialists, is that Battistelli wants them eliminated (but cannot because of the EPC).
Based on this week’s exceptional ILO decisions on EPO cases, which turned out to confirm that the EPO offers no justice, anything involving ‘justice’ against the judge from the Boards of Appeal should immediately be disregarded. While we haven’t really touched this subject in a while, there were some discussions about it at IP Kat and these are worth bringing to light (because many of the comments are Internet trolls and people feeding the trolls, which makes it hard to find the “signal” in the “noise”).
Responding to one of the parts (a two-part series from Merpel), one person wrote the following:
The question is: if it is necessary to separate physically the premises of the BoA from those used by the upper management of the EPO, why not relocating the latter to Haar instead? It would be far less inconvenient to all parties external to the EPO, Monsieur le Président would no longer need bodyguards to watch over his bicycle, and if the premises in Haar turned to lack space to accomodate the increasing amount of people working in said upper management, I’m sure that a nice white, padded room could be found for him in the nearby hospital…
The move to Haar — or the suggestion of Vienna beforehand — was always ludicrous. It seems like a clear punishment. It’s not about geography but the symbolism. One person focuses on logistics alone:
I can’t see the issue myself. Haar is only a few stops away on the S4 from the Ostbahnhof, so would be easy to get to from the centre or from the Airport. The proposed building is only a short walk away from the station. Obviously there will be grumbles about room layout and space, but there will surely be some reorganising to do anyway. Perhaps there is such a level of animosity that any suggestion, however, sensible, will always be objected to?
As the following put it, this was “primarily symbolic and designed to be irritating.”
How many parties go straight from the airport to a BoA hearing?
In any case, it is primarily symbolic and designed to be irritating. Oral proceedings before DG1 in the city, before DG3 in the suburbs. I’d be curious about how many legal bodies meet in areas outside cities. Isn’t the UPC court in London to be in Aldgate rather than Hounslow (next to Heathrow for non-local readers)?
We have heard that the intention might be to actually rent out the vacant space in the Isar Building and pay for some space in Haar, which (if true) would be absolutely ridiculous! Here is a long and somewhat informative comment:
So, the President will take over the Isar Building while DG3 is shunted off to the building out on the edge of town next to its hospital for the mentally sick.
I wonder now, how many international visitors to the EPO turn up, every working day of the year, to visit the EPO President?
And how many come to Munich for a Hearing before one of the Boards of Appeal, their professional interest and reason for visiting Munich being to find out whether a patent survives or falls, in one fell swoop, in anything up to 38 Member States and 600+ million consumers.
The justice which the EPO dispenses, at DG3 level, is of pan-European shareholder interest to all the world’s Global Titans. Yet, in a fit of vindictive pique, the EPO’s increasingly out of control President runs it out of town, making it sit like a vagrant on the edge of town, next to the hospital for the town’s mentally sick.
Given the amount of schmoozing BB does, in Davos and other places, with the World’s Top People, you would think the EPO’s current President would want for DG3 (the jewel in his crown) a smart and efficient place of business right in the heart of impressive Munich, where pan-European justice is dispensed efficiently and expeditiously.
Unless, that is, a majority of AC members want to see the EPO decline. If this attitude is representative of the mainland Europe of today, no wonder the UK wants out!
One person notes, pointing to the actual document, that this is likely irreversible at this stage (technically it is not):
I think it has already been approved. See CA/88/16 (23.09.2016)
https://www.epo.org/modules/epoweb/acdocument/epoweb2/232/en/CA-88-16_en.pdf
Then returns the debate about Haar’s reputation for its hospital/s for the mentally-troubled:
Mental health is a serious disease. Sufferers are know to throw themselves out of buildings, including those of the EPO.
Don’t trivialize it with puerile, insensitive comments.
This led to a somewhat distracting long debate about sensitivities, but still, some people insist it relates to the symbolism of this whole move:
Indeed, mental health problems should not be trivialized but it nevertheless remains that to a resident of Munich, the phrase “nach Haar schicken” does have the meaning of having someone detained in the mental health hospital there.
And in response to the above:
That’s ok then. As long as such comments are acceptable in Germany, it must be ok to make jokes at the expense of the mentally ill.
A UK equivalent for those who are less familiar with German culture and history:
I’m not sure that a joke was intended or made. If the UKIPO was transferred to Broadmoor, I think every Brit would recognise the location’s notoriety and would explain the cultural significance to any non-Brit.
Since you object , I will leave it to readers to work out for themselves what Broadmoor is famous for.
Quoting the Web site broadmoor.com, another person writes: “The Broadmoor is a AAA Five-Diamond resort in Colorado Springs, CO featuring an award winning spa, championship golf, meeting facilities, and much more.”
Another person adds: “Have ye never heard of St. Cadoc’s in Newport?”
“If BB was a Scotsman he’d send them all off to Carstairs,” says another person.
“As the local saying goes,” one person notes, “Lieber ein Haar in der Suppe als Suppe im Haar”.
Also this:
Glad to see that Tufty is at one with the president on this. Well done. And with all your appeals not to denigrate Haar, in Munich (and probably the rest of Bavaria, “sending someone to Haar” has the meaning desrcibed above – and you can’t change that! Just nice to see that the EPAs like you will also be sent to Haar in future
A more quote-worthy comment:
By the way, I find the denigrating of Haar due to it being the location of a mental hospital somewhat disturbing and in poor taste. If it was any other type of hospital I am sure it wouldn’t even be mentioned.
Some blame it on Merpel:
Tut tut IPKat, you are not doing yourselves any favours by the tone you are using in this report. The downward slide of the quality of writing on IPKat continues.
Your comment that: “Haar is a municipality on the outskirts of Munich, most famous (not that it is famous at all) for housing the largest mental hospital in Germany” is ill-advised, and you should retract it.
Besides, there’s nothing wrong with Haar. It’s going to be a lot easier getting to Haar from Munich airport than to anywhere in the centre of the City.
Putting aside this discussion about what the name Haar brings to people’s minds, Tufty the Cat got mentioned as follows:
Tufty the Cat presents the workaday, utilitarian view. It is a fallacy.
An Appeal Court on an industrial estate – how modern. Lunch at the kebab van. Taxi to and from the Airport Hotel. Nothing to see here, and it should get the expense bill down too. That’ll wash well at the next IPO conference in the US. Trebles all round.
If you look a little more deeply, the change should worry all EPAs.
The BoA will lose intangibles like the proximity to cultural venues, nice Restaurants, proximity to academic and judicial communities like the Max Planck IP law Institute, the LMU / TUM, the Munich courts. If you think that these points of Judicial sociology are details, don’t forget that 17th century judges mixed in London with people like John Locke, and perhaps that helped them to realize that the idea of a sovereign monopoly might just be put to good use in defence of the product of human minds. So the location of the Judges is important.
For Attorneys, what about the nice Restaurants and Hotels? many American clients love the chance to see Munich on their visits to BoA hearings…). Is a stay at the Airport Hotel and a taxi rise to and from quite the same thing? A Price cannot be put on such intangibles, and the EPO/AC Management only have the blunt managerial Tools of timeliness, total Appeals filed, total Appeals disposed. The intangibles don’t matter to them.
But what is explicitly happening, by design of the senior management, is a demotion of the BoA in the European legal order. In ten years, will the best minds apply to work there? Will seats in the BoA increasingly be filled by people who at one time wouldn’t have stood a chance? Will the BoA just become a glorified second examination instance in an industrial estate?
Once this happens, it will filter down to affect the reputation of EPAs. Our solicitor colleagues get to advocate in the nice city centre venue. EPAs will be left with a tin shed in a windy car park, and not forgetting the kebab van.
What would be the point in bothering anymore? Just file nationally.
And this is by design. BB is thinking 6 steps ahead of everybody else – you have to hand it to him.
It’s tempting to follow Tufty’s utilitarian approach, but the way that a society publically treats its judges illustrates the importance that society places on them. That is why, in the UK, they are so well paid. They cannot return to the free profession afterwards.
We need to view the move from the Isar building to Haar as a demotion of the calling of all IP professionals.
It then got the discussion more or less back on track, with comments including the following:
The new building in Haar is farer (you must take the S6 in addition to the S8) and there are no hotels close to it.
It is clearly a punishment for the BoAs, which affects also all EPAs. Fewer and smaller rooms for OPs too.
Anyway Haar is still nicer than Rijswijk.
The German AC delegation will perk its ears again when the Berlin EPO staff will be moved to Munich, this following the removal of the BoA to Haar. Why has this option not been mentioned in the AC document, bit of money saving…?
The EPO is moving in a very strange way. The root is, is my opinion, that the AC is not able to supervise the EPO, let alone decide what the AC wants and how this aim should be reached. A political question.
The Boards of Appeal move is, excuse the expression, simply insane. The only proper way is a change to the EPC. The documents were worked out back in the ’90, but never implemented. In the “recent” revision 1999, the Boards were not taken up, likely because the location of the Boards would not have been sorted out. A political question.
Now, the EPO has a President not respecting any orders. That should not have come as a surprise, considering the track record. The President very early publicly stated that getting elected is very difficult, but getting thrown out would require an earthquake “un tremblement de terre”. Wise words indeed.
Whether the facilities in Haar are suitable – they are not – is irrelevant for the discussion. The President threatened the Boards, intervened in their functioning and exerted such pressure as to infringe their judicial independence. A strong signal, as Merpel says, would be needed to put the President back in his place. The AC will not send such signal, and if the AC did, the President would ignore it. A political question.
Considering all facts, it is evident that the Boards shall be punished by moving them out of the Isar building. Cost, usability, impact on representatives/applicants, etc.: this is not relevant. It is a demonstration of power, period. The fact that Haar is known for its mental asylum fits quite nicely.
I would be very surprised if the move to Haar were stopped.
“They would have reason to be more cooperative before the first instance or simply renounce to thrash applications which are the vast majority,” writes the following person. “The boards are really redundant.” Well, Battisetlli tries to make it so with the UPC.
Well, they are lucky. There are less sexy addresses close to Munich, or would you want to have Dachau printed on your business card? The hearing room situation will be alleviated by bringing the appeal fees to a reasonable level,with drastically dropping numbers in appeals. The present rate is far too low. With the insane jurisprudence of the Boas to allow very late amendments and auxiliary requests and remitting them to the first instance, the appeal fee is a boon. For a thousand or so bucks you buy some 5 – 10 years in which you keep the applicafion alive without having to reply to pertinent but burdensome letters from examiners which might find their way into parallel proceedings in really important patent jurisdictions like the US. An appeal is much cheaper than a divisional und you may still file a divisional throughout the appeal even if it goes wrong, another BOA absurdity.
Once the fees are increased the appeals stemming from examination will dwindle. This would also increase the quality of granted patents when applicants could not be sure to get a second chance, despite the high fees. They would have reason to be more cooperative before the first instance or simply renounce to thrash applications which are the vast majority,
The boards are really redundant. There is no reason to provide a second level administrative review . With the UPC the European Patent Courts should not only deal with infringement and nullity but also appeal on examination and opposition. The higher cost would avoid abuse in either case. A “court” which is not even able to publish their own verdicts other than on Wikipedia and ipkat does not deserve a more prestiguous location. Afterall Karlsruhe, a rather modest place, is good enough for Germany’s constitutional court and a dreary place like Brussels good enough for the EU.
“Well of course there will be the shiny new UPC to send our revocation work,” writes this person. To quote:
Tufty thinks that “any suggestion, however, sensible, will always be objected to” but I wonder what exactly is sensible about moving the boards from a properly-appointed well-functioning building to one which is less well-appointed and downright inconvenient for all. This is not to mention the disruption to the boards and their staff.
There is nothing sensible about any of this and it has nothing to do with independence since only the wilfully blind would think that geographical distance = judicial independence. No, instead it (relocation and the freeze on new hires) has everything to do with (a) punishment and (b) deliberate downgrading of the boards, as Bottom Feeder has suggested above.
What will happen in future years – with oppositions dumbed-down (sorry “expedited” – but why by the way, since it won’t decrease the number of pending applications?) and the boards seriously weakened and seen as second rate, out in the sticks? Well of course there will be the shiny new UPC to send our revocation work – no need to bother with the quick-and-dirty expedited opposition and the appeal which will take 5 years. No sir – straight to the UPC. Is this one possible endgame?
We find it rather interesting that when people bring up mental health issues in relation to Haar (and the EPO) people say it’s insensitive. Like Battistelli himself. Sure, it does no favour to the place, but then again, the stigma is now somewhat of a cultural issue.
To finish it all, here is a little poem someone wrote about this whole situation:
Bringbackalib. Says…
B oards of Appeal bit the hand that feeded
A Haar of the dog now urgently needed
N ot only exiled out to the sticks
I t’s a ramshackle,depleted unit,a bit short of chicks
S uch wanton destruction at one man’s whim
H is cup runneth over,it’s looking grim
E benezer Scrooge said’What the Dickens?’ Giving a shrug
D oubtless Batters retorted with ‘Bah,Humbug!’
The fate of the boards doesn’t look too promising and it may also depend on the UPC — a subject we’ll revisit this weekend. █
Permalink
Send this to a friend
« Previous Page — « Previous entries « Previous Page · Next Page » Next entries » — Next Page »
Content is available under CC-BY-SA