… now do something similar. Sites like IAM just call that NPEs.

“For NPEs,” (i.e. trolls) Florian Müller explained the other day, “it’s often actually desirable to make litigation more, not less, expensive. Speed and injunctive relief attract them.”

Yes, this is a truthful statement and it helps demonstrate how to mitigate/tackle the trolling epidemic if there was sufficient desire, just like limiting trolls’ movement/travel. Currently, in the Eastern District of …

Summary: One of the lesser-publicised cases of EPO witch-hunting, wherein a member of staff is denied a salary “without any notification”

JUST over a year ago we started the “Insensitivity at the EPO’s Management” series — a series which dealt with ethical rot at the EPO under Battistelli. The last part dealt more specifically with intolerance of criticism.

“The only ones which are definitely more tragic are those who ended tragically with suicide, I have no doubt to say.”
      –AnonymousRecently, someone told me s/he had been mistreated by EPO management, which even stopped paying the salary! S/he “had to conclude that [the] monthly wage has been completely suspended since [...] and that happened without any notification.”

This is like sacking or suspending someone without even telling him/her. It’s arguably worse than the infamous “house ban” of a judge (which was an illegal move, recently followed by halving of the salary). The following is new to us and it shows another dodgy kind of practice at the EPO. We are going to look into it, even if quite gradually in the coming weeks, as we suspect it will be part of a growing problem/pattern.

“The office has been exploiting my health loss and the dramatic situation of a deadly disease in my family.”
      –AnonymousA short while ago the EPO promoted Praktika Internships, which we deem a method of giving well-paid examiners some competition to drive them out and/or reduce their salary, pension etc. “This is what you can expect from the Praktika Intern programme,” the EPO wrote, but only ill-informed people would apply for a job at the EPO, where massive layoffs are believed to be on their way.

“I am sure there are some details that I can share with you,” said the person whom we spoke to, “some of which are actually public and not related to my case, yet hidden in the maze of info that the net floods us with every minute.

“It would be also very difficult to summarize facts here. When you will get some of them, events that span many years, but acutely affect me up to a critical point for the last two and a half, I won’t be surprised if you will find my case the worst among the four or five that are now at a critical phase, such as the three suspended staff representatives, the suspended judge. The only ones which are definitely more tragic are those who ended tragically with suicide, I have no doubt to say.

“And later they wonder why people hardly want to work for the EPO anymore?”“The office has been exploiting my health loss and the dramatic situation of a deadly disease in my family. The Office exploited the situation deliberately all the way through, until the final death of my mother, whom I wasn’t allowed to visit, not even in the extreme moments, and further on after such tragic death, by exerting further pressure on me, in spite of my certified illness, also by interfering with the severe mental illness of my father, whom the Office did not restrain from contacting directly, causing unnecessary distress to him, only to check upon me and my whereabouts. I should add that the Office imposed on me a real house arrest, in spite of explicit and urgent recommendations from my doctors against such a pointless measure. I had also to face defamation, fabrication of evidence, the breach of every single rule and procedure that they have thrown at me: disciplinary ones included.”

In the coming weeks we intend to shed more light on what seems to have become a modus operandi inside the EPO. This one case, like previous ones we covered, seems to fit a pattern. By sharing with our readers the hallmark of such attacks on staff we hope to help employees better protect themselves, or at least take/initiate more effective action. And later they wonder why people hardly want to work for the EPO anymore? █

Seoul Plaza, South Korea

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

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

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

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

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

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

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

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

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

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

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

Summary: The US Supreme Court (SCOTUS) is planning to weigh in on a case which will quite likely drive patent trolls out of the Eastern District of Texas, where all the courts that are notoriously friendly towards them reside

MANY patents granted by the USPTO have become the basis for ruinous lawsuits filed by patent trolls, which may soon be dealt an unprecedented and much-needed blow.

Patent trolls are not just a minor nuisance or some small random parasitic companies without products; some of them are gigantic and many are covers (or fronts) for large corporation seeking to shield themselves from counterclaims. Consider this new story about “Cayman Global”, yet another ‘IP’ proxy, this time for Faraday Future. “The Verge reports that Faraday Future does not own its intellectual property, and that it is instead owned by a separate entity called FF Cayman Global,” Business Insider wrote the other day. Microsoft too has created its own patent assertion entity — the one it uses to taunt Linux and Android all the time.

Florian Müller and LWN have both highlighted this good article published on December 27^th by Daniel Nazer of the EFF. To quote: “Patent trolls were down but certainly not out in 2016. After a massive burst of litigation at the end of last year, we saw a noticeable drop in patent troll lawsuits at the start of this one. But trolls began returning to court as the year continued and 2016 will likely end with a relatively small overall decline. Consistent with recent trends, troll cases clustered in the Eastern District of Texas. Approximately one in three patent suits were filed in that remote, troll-friendly district, and these suits were almost all filed by companies with no business other than suing for patent infringement.”

“Microsoft too has created its own patent assertion entity — the one it uses to taunt Linux and Android all the time.”A lot of patent trolls lose their battles as software patents reach the wastebasket or never get used at all (due to low certainty of settlement/prosecution).

In 2017 we expect the case that will likely destroy trolls to be decided on by SCOTUS. This new article by Sasha Moss, Technology Policy Fellow at the R Street Institute, says that the “U.S. Supreme Court announced earlier this month it will hear the appeal of a patent infringement case brought by Kraft Foods Group Brands LLC against zero-calorie sweetener manufacturer TC Heartland LCC.”

Even lawyers’ sites wrote about this, e.g. “Will forum shopping days, like holiday shopping days, soon come to an end?”

“Only the more ‘extremist’ sites of (and for) patent lawyers, as we noted here before, prefer to say that nothing will change.”Professor Michael Risch wrote about this case that Patently-O, where he wrote/published his piece, predicts is going to kill patent trolls’ business model. To quote Risch, “I should note that the outset that I favor TC Heartland’s position from a policy point of view. I’ve long said in a variety of venues (including comment threads on this very blog) that there are significant problems with any system in which so much rides on where the case is filed. And I think that’s true whether you think they are doing a great or terrible job in the Eastern District of Texas.”

Only the more ‘extremist’ sites of (and for) patent lawyers, as we noted here before, prefer to say that nothing will change. We shall see next year, but the one newly-introduced factor will be the Republican government and perhaps several new appointments of Justices. █

Summary: Nokia’s saber-rattling (and now lawsuits) against Apple are a worrying sign of what’s to come, impacting Android OEMs as well as Apple, which is why the post-Microsoft Nokia is dangerous

TAKING advantage of USPTO-granted patents (for the most part), Nokia started a patent war against Apple just before Christmas [1, 2] and many journalists/pundits were already on holiday, so they did not have a chance to comment. Maybe this was Nokia’s intention as the timing of the press release was at the very least suspicious. Few were even around to cover the followup action, for instance, this complaint that got covered by Matthias Verbergt who said “Nokia Corp. said Thursday [two days before Christmas] it has filed additional complaints against Apple Inc., alleging the iPhone maker has infringed 40 of its patents.” Florian Müller said “Nokia suing Apple over 40 patents in 11 countries” (yes eleven!).

“Nokia is a European company, so there is a concern here that US culture of litigation is spreading to Europe already (the UPC would make a trolling culture even more prevalent if it ever became a reality).”When Nokia/trolls pick on the industry of mobile phones everybody loses, not just Apple. Android too tends to be affected, sooner if not later (than Apple). Nokia is a European company, so there is a concern here that US culture of litigation is spreading to Europe already (the UPC would make a trolling culture even more prevalent if it ever became a reality).

Florian Müller told me that “during the Apple v. Nokia antitrust lawsuit in California” some interesting information is likely to surface. “With Conversant,” he explained, “formerly known as Mosaid, being one of the defendants, I guess MSFT’s involvement will be at issue and MSFT witnesses will be deposed.”

As a reminder, MOSAID received patents from Nokia, at Microsoft’s instruction. This may become very relevant a piece of evidence at a trial/antitrust probe.

“Android too tends to be affected, sooner if not later (than Apple).”“Nokia Is Playing With Fire With Its Patent Infringement Case Against Apple,” one report explained, and another said “Apple and Nokia Could Each Score Victories as Their Patent Battle Unfolds” (usually only the lawyers win in such scenarios). Android sites rightly treat this as Android news because if Apple loses, then expect Nokia to go after Android OEMs too. The latest developments were barely (if at all) covered by the media, probably just as Nokia had hoped. There are now several articles about this in English alone, but if it didn’t happen shortly before Christmas, we’d expect hundreds of reports if not thousands. Matt Levy wrote a poem about this and today (Boxing Day) Müller said that “Nokia’s litigation tactics and privateering ways are, without a doubt, vexatious. So I couldn’t disagree with Apple if it made the case that it’s just not reasonably acceptable for Apple to have to do “business as usual” with a Nokia subsidiary under the present circumstances.”

“Apple should invoke Alice,” Benjamin Henrion (FFII) wrote, “especially for H264 compression algorithms where captive patent courts still allows them…”

Henrion, a Belgian, is well aware of Nokia’s history of patent aggression — a subject we have been covering here since 2007. Take note of this news from Belgium that speaks of “85% tax deduction for qualifying income from patents, copyrighted software, breeders rights, orphan drugs and data or market exclusivity” (sounds like Patent Boxes, but not exactly the same).

“Henrion, a Belgian, is well aware of Nokia’s history of patent aggression — a subject we have been covering here since 2007.”Apple should definitely move to invalidate Nokia’s patents. All patents (there are 40 of them) should be susceptible to criticism, as examiners are not perfect and there are no flawless examinations. Incidentally, Patently-O has just written about “The “Right” to Challenge a Patent” in an antitrust context. “In his recent article,” it says, “Antitrust Economist (and lawyer) Erik Hovenkamp argues that the “right to challenge a patent” should also be an important consideration in antitrust analysis. Hovenkamp defines these “challenge rights” as “the (statutory) rights of third parties to challenge patents as invalid or uninfringed.” Antitrust comes into play when a license or settlement agreement includes challenge restraints that would contractually prevent the exercise of the challenge rights.”

Sounds very much applicable to the case above and as we have said from the very start, we hope that Apple will demolish those patents of Nokia, which might otherwise be asserted against Android OEMs (if this hasn’t been done in out-of-court settlements already). █

Nokia suing everyone… except Microsoft.

Summary: Few days before Christmas Nokia decides that the backlash from the media would be minimal enough to finally show its true colours and rear its ugly head again, putting a tax on phones that actually sell (unlike Nokia’s)

VERY LATE LAST NIGHT (as late as 2 AM) we wrote about a story which Nokia probably hoped the media would not notice/cover all that much (hence the timing/date in the year). Nokia is a patent troll now. “Meanwhile,” as this article puts it, “Apple has accused Nokia of using the ‘tactics of a patent troll’.” It’s not just about Apple as Nokia will go after Android OEMs next (if it hasn’t already).

It’s the ‘Microsoft effect’. The company likes turning other (usually vulnerable) companies into a pile of patents, weaponised against Microsoft’s rivals. There are many examples of that which we’ve covered here over the years.

“It’s the ‘Microsoft effect’. The company likes turning other (usually vulnerable) companies into a pile of patents, weaponised against Microsoft’s rivals.”We have already found about a hundred reports about this in English, in spite of Christmas absence of many reporters (even from large British publishers, US publishers and several people at IDG [1, 2]). The Finnish English-speaking media touches the subject and Wall Street media puts it behind a paywall. Tripp Mickle and Matthias Verbergt say that “Apple Inc. and Nokia Corp. ​filed competing lawsuits over intellectual property used in the iPhone and other Apple products.”

Worth seeing in this case is what Apple finds out about the network of trolls (typically shrouded in secrecy). With evidence admissible by the courts about the patent trolls of Nokia and Microsoft we can improve our information here (growingly extensive and occasionally praised by people who come here in order to understand cryptic trolls.). Florian Müller says “First court hearings in the new Nokia v. Apple dispute will most probably take place in Munich in a few months. I’ll probably go and listen.”

“We believe that the date of the press release was designed (or intended) to dodge negative press coverage.”He also quotes Apple’s spokesperson as saying that Nokia “is now using the tactics of a patent troll to attempt to extort money from Apple…”

He is “not mincing words anymore,” Müller adds, and someone from Finland agrees with him. Finns do not blindly support Nokia. We speak to some Finns who are extremely upset at Nokia. It’s a national embarrassment to some.

As for IAM, it thinks it’s favourable to have patent lawsuit from a troll-like Nokia, but it lacks a vital
disclosure; Nokia’s patent troll MOSAID (now called “Conversant”) has paid IAM, which recently did a lot of puff pieces for it. Maybe that’s just IAM’s business model…

IAM says “Apple is against patent owners doing what they want with their patents to maximise their value.”

Whose value? And to whose advantage? And at whose expense?

“Not sure how that helps R&D,” IAM says, but Benjamin Henrion has already responded to them by saying “that helps P&L [patents and litigation], not R&D.”

We believe that the date of the press release was designed (or intended) to dodge negative press coverage. █

Image from BusinessKorea

Summary: With billions of dollars at stake (maybe over a trillion in the long run), the attempt to claw revenue using patents rather than actual sales has become complicated because of plurality of intermediaries, which Apple is trying to tackle with a new antitrust complaint

“In a major antitrust lawsuit Apple charged that Acacia is illegally breaking terms of patents acquired from Nokia,” according to The Street. This is pretty major news and definitely something that warrants a 2 AM article. Florian Müller has already produced a long blog post about it, accompanied by or coupled with the relevant documents.

“Readers can find details like a detailed history in our Wiki page about Acacia, including the hiring (by Acacia) of people from Microsoft and this troll’s repeated attacks on GNU/Linux.”As a reminder to our readers, Acacia is a Microsoft-connected troll. Readers can find details like a detailed history in our Wiki page about Acacia, including the hiring (by Acacia) of people from Microsoft and this troll’s repeated attacks on GNU/Linux.

“For a long time,” Müller wrote today, “I had hoped someone would finally do this. Last year I called out Nokia and others on their privateering ways, and it turned out that Nokia had industrialized the concept of privateering to a far greater extent than anyone else. My list of PAEs fed by Nokia contained all of the defendants in Apple’s antitrust suit–Acacia and Conversant (technically, Apple is also suing particular subsidiaries of those)–and more. That post prompted attempts by Ericsson and Nokia to explain away their privateering ways.”

Nokia‘s patents have also been passed to another anti-Linux/anti-Google troll called MOSAID (renamed “Conversant” since). These were, for a fact, passed at Microsoft’s instructions, as reported in the mainstream media at the time. There’s more on that in the Korean media. When it comes to patents, Nokia is still enslaved by or subservient to Microsoft.

“What does the future of dying mobile giants have in store then?”The full story isn’t just Apple hitting back at Nokia. “Breaking news,” Müller wrote later, “Nokia sues Apple in US and Europe over alleged patent infringement […] Venues: Eastern District of Texas, three German courts: Düsseldorf Mannheim Munich…”

Europe is a growing and increasingly attractive hub for patent parasites already, I’ve told Müller (who probably agreed). Germany and sometimes the UK (London) are favoured among those parasites (see Ericsson's troll choosing London for legal attacks — quite unprecedented a move for such an entity). “For the troll that Nokia is now,” Müller noted, “suing Apple in the ED of Texas is very appropriate. […] When Nokia was still making mobile devices, it had a predilection for the District of Delaware. Now: Eastern District of Texas. Times change…”

I told him that BlackBerry does the same thing now, having lost the market (to which Müller nodded with a retweet). We wrote about this earlier this week and earlier this year.

What does the future of dying mobile giants have in store then? Passage to trolls (the PAE type) that will tax everyone, everywhere? “Something big always seems to happen at Christmas in the patent market,” IAM wrote. “Remember the RPX Rockstar patents purchase a couple of years ago?”

Remember that IAM is partly funded by MOSAID/Conversant, i.e. part of the same ‘gang’. As for Rockstar, we wrote quite a few articles about it, e.g. [1, 2]. It’s like a front for Microsoft (Rockstar Consortium is a patent troll owned by Microsoft, Apple, BlackBerry, Ericsson, and Sony). As for RPX, it’s also a patent troll, with Microsoft having joined it 6 years ago.

“My list of PAEs fed by Nokia contained all of the defendants in Apple’s antitrust suit–Acacia and Conversant (technically, Apple is also suing particular subsidiaries of those)–and more.”
      –Florian MüllerNina Milanov, an occasional EPO sceptic, told Müller, “I hope Apple sees it through. Every time you settle, to some extent the troll has won.”

True.

“Last time Nokia sued Apple in Germany,” Müller responded, “it was extremely lucky. Key patents have expired. Will be more interesting this time around.”

If Apple gets to the bottom of all these satellite proxies that are patent trolls, it will be a good service not just to Apple but also to Android/Linux. iOS and Android command the market and all that the losers can do right now is attempt to tax those two. Even Oracle is trying to accomplish that. █

Summary: People correctly point out that the institutional crisis at the EPO extends to aspects other than fake trials against staff and affects actual stakeholders, who have pumped billions of Euros into the EPO only to see EPs turn to dust (or their value diminish considerably)

THE EPO has been rather quiet after the latest meeting of the Administrative Council, but union-busting attempts are still being made, even a week or so before Christmas.

At IP Kat, writers are still publishing friends’ and colleagues’ pieces. First it was Bristows that 'hijacked' IP Kat for UPC propaganda (to reach a broader audience and promote an agenda); now it’s EIP that sort of does the same with Darren Smyth having a colleague over, at least with disclosure (“This Kat is grateful to his colleague Andrew Sharples”). As a reminder, Smyth too is part of the UPC echo chamber and this article about the EPO was mentioned here briefly earlier this week. We will cover this today because the comments are noteworthy, more so than the article itself. As nearly everyone points out, the EPO behaves irresponsibly, as usual, probably in preparation for spin about patent quality at the EPO.

“One could argue that there is no provision in the EPC to deny applicants the patent they are entitled to by staying the proceedings and that the EPO is therefore acting “contra legem”,” one person wrote. Here is another take on it:

It is outrageous that the EPO is staying proceedings, whilst presumably still collecting renewal fees. I would love to know the legal basis for doing this.

The staying of opposition proceedings is perhaps even more absurd. This will simply mean that opposed patents will remain valid and enforceable unless and until a national court decides on their validity. If the EPO thinks the patents aren’t valid the indefinitely staying opposition proceedings is achieving the exact opposite as it has completely removed an Opponent’s opportunity to invalidate a granted European Patent.

“I can understand the EPO carrying on with searches for first applications and PCT filings but for other EP application,” another person insisted, “it does not make sense. If the EU guidance finds its way into the EPC, applicants might wish to withdraw their application and the search fee will only be refunded if the search has not yet started. Further, with publication of the search report, the applicant would be required to respond to the objections raised, for which they would not have the benefit of knowing how the rules were to be changed.”

“Jurisprudence is not highly esteemed in the EPO These days,” noted another person. “The EU-Commission, responsible for the BioT Directive, the model for Rule 26 EPC, can dictate how Article 53b and Rule 26 EPC are to be applied. Separation of Powers?”

Well, that is long gone! Look at the EPO itself. It’s a clusterfunk [sic]. Another person wrote that “the evidence, moral argument or even legal basis for “Patent protection is not appropriate for such procedures and their products” appears nowhere. Wish I could say that this surprised me.”

Lack of respect for actual laws is now a hallmark of everything that happens at the EPO, including so-called ‘disciplinary procedures’. A comment from another thread claimed that the attack on actual “independent” judges (collective punishment) whom Battistelli does not like “is mere retaliation, not only from the president but also from the AC.” Here is the full comment:

By no means I approve the transfer to Haar. But one thing has to be clear: it is mere retaliation, not only from the president but also from the AC.

Both have never accepted that the EBA has not acted in the way they wanted in the case of the suspended member.

It therefore remains a disgrace if the legislative and the executive try to interfere with the judicial. Separation of powers is a fundamental guarantee which should not be tampered with.

One of the members of the EBA who participated in the decision Art 23 has retired. Normally when a chairman of a BA retires, there is an article in the internal journal of the EPO (the Gazette). For this chairman, there is nothing. Is this a mere coincidence? I doubt it.

And going back to the other thread, another comment along the same lines:

It would be very interesting to read or watch an interview with the Administrative Council members presenting their vision(s) on the implementation of rule of law at the European Patent Office.

In particular, how the cornerstones of rule of law are seen by the Administrative Council:

Legality, i.e. legislative powers belonging to a representative body;

Balance/separation of powers, i.e. balance of legislative, executive, and judicial powers;

Independent judiciary, i.e. review of decisions and interpretation of law by an independent body.

The European Patent Office is in charge of taking generally binding decisions for the territory of 38 European countries, which implies adherence to rule of law as a fundamental principle of governance.

“The European Patent Office is in charge of taking generally binding decisions for the territory of 38 European countries,” says the key part, yet not many people — certainly not the German media — ever bother reporting about the many scandals. A comment posted in The Register offered the following advice to EPO staff (similar to advice from Florian Müller):

Find alternative work?

Those who really matter, those who scrutinize patents, are highly skilled. Surely they would be warmly welcomed in almost any tech company. When the EPO just grinds to a halt that should concentrate a few of those flabby minds.

Leaving the EPO can actually make things worse in the sense that it lets Team Battistelli replace veteran staff with temporary, clueless, inexperienced “rubber-stampers”, fulfilling what seems to be his awful vision for the EPO (replace the “P” with an “R” for Registration). █

Summary: EPO becomes another North Korea and depression rates soar to the point where people take their own lives

With potential culpability for deaths of employees, Benoît Battistelli is in hot legal water, but there is nobody to actually enforce the law against him at Eponia. Recognising the agonising working conditions at the EPO, CERN recently weighed in on numerous occasions. These are world-leading scientists who blasted Battistelli and SUEPO has just published yet another letter (this time in French) from CERN.

Will CERN’s concern be enough to compel Battistelli to resign before the next death? His regime has already cost many people (and families) their lives and it cannot go on like this. Well, technically it can because Battistelli feels elated and above the law. In fact, judging by this tweet (linking to this “news” item at epo.org), the EPO is now becoming more like North Korea, with Battistelli as its “Dear Leader”. Congratulations to Battistelli for turning Europe’s finest institution into Europe’s shame and the subject of scorn from all across the world. He has killed EPO’s reputation, which took almost half a century to earn. Soon there won’t be applicants and renewals either. The EPO and its staff now live in borrowed time, exploiting what’s left of the inertia and the backlog. Mass layoffs are already a growing concern, hence job insecurity (it’s hard for former EPO staff to find a job in their discipline after a long EPO career).

“A range of measures are now being implemented to help ensure our safety,” the EPO said the other night. “Additional security measures are now in place for all visitors.”

Well, will they add safety (suicide) nets maybe? Just like in China? Would they help mask the issue?

“The safeguarding of staff, visitors and business is of paramount importance to the EPO,” the EPO wrote. Is that why EPO management drove people to suicide, having legally bullied them and did them extreme injustice? Words cannot express how disgusting that “news” item from the EPO truly is. What next? Will they build something like a Berlin wall around the Isar facilities, in order to prevent people from getting out?

Remember that the EPO does not obey the law; it doesn’t feel like it needs to, especially under Battistelli the arrogant bully with inferiority complex. Here is something which Florian Müller published yesterday, recalling his days as an activist against software patents:

In 2002, the EC proposed a “directive on the patentability of computer-implemented inventions.” It claimed back then and throughout the years of the legislative process (which ended when the bill got thrown out by the European Parliament in 2005, which is exactly what I had been campaigning for) that patents on “computer-implemented inventions” weren’t software patents. The examples that the supporters of the proposal gave all the time were about computer-controlled washing machines, automated braking systems, and airplanes. They said that the whole plan was only to ensure that innovations in those fields could be patented but software patents? No, they said that our movement was totally wrong since software “as such” was going to be excluded.

It was nothing but a damn lie. A damn lie propagated by the Commission, by the equally-mendacious national governments of the EU member states, large corporations (also including their industry bodies, of course), the European Patent Office (with respect to its credibility, let me just refer you to Dr. Roy Schestowitz’s great work concerning what is going on there), and patent attorneys in private practice.

What frustrated us the most was not even that those who directly or indirectly stood to gain from software patents were dishonest. That was very bad for sure, but the worst part was that news agencies and the general press kept propagating those lies–not merely in the form of quotes but in ways that portrayed the Commission position as the truth and our position as an opposing view by “open source” people. And when we talked to them, they often just referred us to what the European Commission was saying–no matter how much of a lie it was.

[...]

Unitary patent propaganda: first published, then taken down

Last year, the IPKat blog dismantled the Commission’s ridiculous propaganda for its unitary patent package (including the Unified Patent Court). Then the Commission pulled its statement, almost certainly due to the IPKat’s competent criticism.

The FFII’s Benjamin Henrion asked, “was it the FAQ of The EP saying unipat [UPC] is not about swpat […] https://media.ffii.org/Fosdem2016/ffii-fosdem2016-unitary-software-patents.pdf … slide 9.”

“I believe the IPKat article was about a different document but not sure,” Müller responded.

We wrote a great deal about the EPO lying regarding the UPC and also doing things that are legally dubious in order to advance the UPC. That’s part of the expected behaviour when one deals with a North Korea-inspired regime. Expect a lot of brainwash, lies, and retribution against anyone who dares even politely questioning these lies (as some SUEPO representatives occasionally did). █

Summary: Additional and belated remarks about Apple’s patent attacks on Samsung’s Android phones and the upcoming Supreme Court (SCOTUS) decision on Life Technologies Corp. v Promega Corp.

THINGS are about to change for the better at the USPTO because upcoming SCOTUS cases won’t challenge Alice (applicable to software patents) but instead jeopardise other kinds of patents.

Regarding the unanimous decision in favour of Android or Linux or Samsung (depends on how one looks at it), there have been endless streams of articles by now. We saw hundreds of articles in English (about 300 articles!) about it, not counting all the Apple fan blogs and articles in other languages. There’s also my personal take on it, as covered the other day (hours after the decision had been handed down). For those looking for some decent coverage, see Jurist, AOL, Ars, El Reg or even lesser known sites. Less objective (for either side) were IP Watch, MIP, TechDirt, and Bristows staff at IP Kat. Be careful of Apple advocacy sites disguised as news sites. Even SJVN decided to cover it, although it’s typically outside his scope. Florian Müller did a blog post about it and said: “Large parts of the (U.S. and global) tech industry will breathe a sigh of relief now.”

“We must understand that when it comes to patents the quantity (the more, the merrier) and quality (more is less or less is more) should be grounded on evidence-based analysis, not Battistellite ‘logic’ and Republican instincts.”“Yesterday’s Supreme Court ruling,” he later added, “means design patents won’t spell doom for alleged infringers anymore, but a lot depends on the Fed. Circuit” (CAFC). “The Supreme Court said what the Fed. Cir. got wrong; but now the same Fed. Cir still has to get it right,” he continued. “In 2017, we’ll see what happens.” As we noted here before, only the lawyers win in these disputes that last half a decade or longer.

IAM always complains when patent scope is restricted and this time was no exception; they’re hardly even closeted about their patent maximalist bias.

The net outcome here is a major loss for another kind of patent. We must understand that when it comes to patents the quantity (the more, the merrier) and quality (more is less or less is more) should be grounded on evidence-based analysis, not Battistellite ‘logic’ and Republican instincts. The EPO now moves in the opposite direction, broadening patent scope rather than tightening it.

SCOTUS is going to tackle another kind of patents quite soon (Life Technologies Corp. v Promega Corp.), as an article by Dennis Crouch, another from MIP, and more from patents-centric sites state with concern. Many articles have appeared in recent days and most of them are from the patent microcosm. We too mentioned this case before.

We continue to worry that Trump-appointed Justices (new appointees) to SCOTUS will ruin all/most of the patent progress made in recent years. Conservative think tanks, for example, are out in full force calling for the end of Alice as we know it. We’ll cover that separately later tonight. █

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. █

Reference: Hyperinflation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Summary: A large bundle of information about the latest horrible actions from Benoît the Terrible, who decided to bust unions also at The Hague, not just in Munich where he resides

TODAY, THE EPO is throwing another stupid and distracting party (an event called Patent Information Conference 2016) and after the social conference from an antisocial boss we expect to see social “workshops”, ones that are supposed to have taken place today and yesterday. But don’t expect staff to have attended or for anyone to genuinely care for this. Staff of the EPO was up in arms after it learned that on Friday the boss had fire yet another staff representative, as first covered in our site with this leak.

Today we heard of yet more “erratic behaviour” from Battistelli, but we shall leave that aside as a subject for another day.

Looking at some correspondence that got leaked to us, “Laurent Prunier is FIRED with immediate effect – no game changer” was the initial word, preceding if not almost coinciding with Battistelli’s announcement. “It has been reported that the EPO president has taken a final decision regarding our suspended Colleague in The Hague,” said one person. “After Els Hardon and Ion Brumme earlier this year it is now the turn of Laurent Prunier, elected Central Staff Committee and SUEPO official, to be fired with immediate effect!”

“One thing can be concluded,” said this message. “Fact is that the clear warnings given by the AC delegates in the last AC (see previous mail below) has had little influence on the President of the Office.”

Well, he certainly doesn’t seem to care.

“Under these conditions, despite many declarations of intent,” continued the message, “it is hard to believe that there is any significant paradigm change in the present management policy. And It bodes bad news for the further two further investigations and disciplinary cases running presently on The Hague Union officials… for the record, there have been also four further downgrades and several additional suspensions not listed over the past two years.”

We happen to be aware of some of them. Things are even worse than it appears to outsiders because de facto gag orders or scare tactics (or even blackmail) are being used to discourage or suppress facts. It’s like those fictional novels that are cautionary tales about totalitarian regimes. Apparently, some say, Mr. Prunier risks losing even his pension if he speaks out too much. What on Earth is this, an authoritarian failed state? At the very heart of Bavaria or in The Hague? How can it be and one can that persist?

At The Hague, told us one source “The Office does not allow demonstrations on the premises, and in the Netherlands public demonstrations cannot be organised spontaneously (the preparation takes about a week, at least). That’s why some staff members organised a spontaneous gathering to protest against the unfair dismissal of Laurent: 250 to 300 persons wearing solidarity T-Shirts spontaneously gathered on Monday morning in the canteen of the EPO’s The Hague branch. Sad and angry, they expressed their disagreement with the emperor’s bullying against their staff reps and the firing of Laurent.”

The protest photos from Monday was posted here yesterday (hours after they had been taken) and these help spread the message to more sites. “Even IAM could finally see the light,” one EPO insider wrote, after IAM said Battistelli had scored an "own goal".

Is IAM finally ‘defecting’? Does it realise that in order to save the EPO change in management is urgently needed?

IAM’s Editor in Chief (Joff) later published in the blog “EPO users and staff need the Administrative Council to get a grip on current events,” albeit he maintained caution, probably because he needs not to get into a fight with his buddies/parters at the EPO. Battistelli does not tolerate any dissent, or even a minor disagreement. To quote a portion:

What’s more, we have continuously pointed out that disputes between the EPO’s senior management and the staff union SUEPO were taking place long before Benoît Battistelli became the EPO president, and that the union has often been its own worst enemy by making explosive, unsubstantiated claims and by being highly provocative in its approach to negotiation. If being an EPO examiner is such a bad thing, we have always asked, why do so few people ever leave?

This was noticed by the following new comment that said:

Joff Wild of IAM writes:

EPO users and staff need the Administrative Council to get a grip on current events

I have always given the EPO’s senior management the benefit of the doubt, but increasingly it looks like I may have been wrong to do so. With the same things happening over and over again, what other conclusion can I reach – especially when I have met many SUEPO members and know them not to be agitating obstructionists, but people who genuinely want what is best for the office and those who use it.

Mr. Müller and I spoke about Joff’s motivations [1, 2] and meanwhile yet another article was written about the subject, arguing that “The Rule of Law (Rechtsstaat) is Endangered and Needs to be Defended!”

Here is the most relevant portion

The first two examples that, in my view, demonstrate how the Rule of Law is currently endangered came from the “ugly world” of politics. So you might not expect that my third one stems from an organisation which ought to be relatively apolitical, namely the European Patent Office. Unfortunately, however, all is not well there either. This has to do with the peculiar “constitution” of the EPO, the European Patent Convention, which only provides for an imperfect system of checks and balances and in particular does not subject the Office President to an independent judiciary, whereas the members of the Boards of Appeal are subject to being proposed by the President for being (re)appointed by the EPO’s Administrative Council. In other words, the Office President has a lot of power and the only entity that can control him is the same Administrative Council that elected him in the first place.

Given how important an independent and fearless judiciary is for a functioning system of checks and balances, an Office President would, in this author’s view, be well advised to exercise utmost restraint in interfering with the Boards of Appeal as the EPO’s judiciary. Yet I am afraid that this is not what happened in summer of this year. Quite to the contrary, the members of the Enlarged Board of Appeal (EBA) of the EPO made very clear that they actually felt threatened by disciplinary measures of the Executive Branch of the EPO, i.e. the President, and insufficiently supported by the Administrative Council. The clash came up in proceedings between the Administrative Council as Petitioner and a member of the Technical Boards of Appeal who seems to have been accused of libelling the EPO’s President and Vice Presidents, which he/she has apparently denied. The Enlarged Board stated in its decision this:

As the Petitioner did not clearly distance itself from the Office President’s position, there is the threat of disciplinary measures against the members of the Enlarged Board. It is then the Enlarged Board’s judicial independence in deciding on this case which is fundamentally denied.

I will not bother you with the complete background of this case that is summarized in the EBA’s decision and has amply been reported by IPKat, in my 2014 blog on the same case, and by others. Suffice it to say that the Enlarged Board had ordered to conduct its latest hearing coram publico, which apparently incensed the Office President (why? – honit soit qui mal y pense) to a degree that he felt he should intervene into the judicial proceedings by writing a letter to the Enlarged Board of Appeal which the Board perceived as a threat. Inter alia, the President instructed his lawyer to write that “In view, in particular, of the gravity of the reputational, security, welfare and public order risks identified, there is a strong case for saying that any decision to conduct this hearing in public would be unlawful because it could not be defended as either proportionate or reasonable”. (This may be right or wrong, but is it for the President to decide on whether it is lawful or unlawful to conduct the EBA’s hearing in public, or is it for the EBA itself???) And even more, the letter continued with stating that the President “will not hesitate to take any appropriate steps available to him to ensure the proper running of the Office and the safety of its employees”.

Now, might you argue, the President has just voiced his opinion to the EBA – so why should this be a threat? The problem is exactly the background of the case at stake, i.e. that the President imposed and immediately executed a house ban on a Board of Appeal member for alleged unlawful conduct, without adhering to the procedure prescribed in Art. 23 EPC. Who can guarantee to the EBA that such a thing cannot happen again, if the President feels that some conduct of the EBA is unlawful and sees only himself in the position to ensure the “proper” running of the Office?

I am afraid (and very sorry) to say that even among the EPO’s top officials, the principle of the Rule of Law does not seem to be respected very much. Where are you, Administrative Council?

Given the source of the above, a pro-EPO blog, we can deduce that Battistelli is rapidly running out of allies and regarding the above one comment said that “violation of all principles of due process sadly confirms the damage done to the whole institution.” Here is the full comment:

The following recent contribution refers to the situation at the EPO and mentions the lack of independence of the boards of appeal:

http://kluwerpatentblog.com/2016/11/07/rule-law-rechtsstaat-endangered-needs-defended/

In this respect the evident lack of support by the members of the boards of appeal for their colleague who has been maintained in limbo for almost 2 years now in violation of all principles of due process sadly confirms the damage done to the whole institution.
Looking forward to reading the upcoming decisions of the German Bundesverfassungsgericht on the constitutionality of an european patent system lacking a truly independent higher instance.

And also:

Kluwer Patent Blog has a post titled The Rule of Law (Rechtsstaat) is Endangered and Needs to be Defended!

It refers to the case of the suspended member of the Boa – but I quote:

“I am afraid (and very sorry) to say that even among the EPO’s top officials, the principle of the Rule of Law does not seem to be respected very much. Where are you, Administrative Council?”

Well, maybe it’s busy slaughtering chinchillas in Denmark.

Someone wrote a little poem about the situation:

Plum position falls foul of a one man gang
Representative Prunier dried out to hang
Unless the Muppets wake up fast
No functional office can this last
EPO on a highway to hell
Does the AC need some DC as well?

AC is the Administrative Council and DC is the Disciplinary Committee/s.

Regarding some of the above comments, one person asked “Why pick Germany and the Netherlands to review the cases? What about a UK review, for example? May one be more likely to exonerate El Presidente, I wonder.”

One answer to that was: “How many Epo staff work in the U.K.? Or do you propose to apply U.K. Law in NL, DE?”

Another person responded with “errrrmmmm – none, but then no EPO staff actually work under NL or DE law either.”

“French review,” said another. “And thanks for BB France!!!”

“Do not forget that the delegate from the Netherlands was (is) one of the few AC members that dares to withstand the President. The Netherlands was one of the few countries that voted against the reorganisation of the BoA,” added another person and someone who knows Prunier (presumably from the Office at The Hague) wrote:

I think all we can say is that so far the AC has shown itself to be about as much use as the proverbial one-legged man in the arse-kicking competition. Kicking arse is certainly not their forte so far.

As far as Laurent goes, I’ve known him for a long time: he’s a fiery character with strongly-held opinions who isn’t averse to voicing them. Unfortunately, some seem to think that to do so within the context of a heated discussion amounts to harassment. If that’s true, I have certainly been guilty of harassment in the past. I personally don’t believe that the Laurent I know is guilty of harassment. Harassment is about bullying and spite. He may be guilty of expressing himself too forcefully or of intemperate language, but the Laurent I know is not a bully. Unfortunately, of course, neither I nor anyone outside a certain charmed circle know exactly what he is accused of which is said to amount to harassment. So who knows?

That’s why, in proper judicial procedures, rather than the banana republic/kangaroo courts we have here, evidence is tested in open court in public (unless there is a good reason why not) and weighed by an independent arbiter who considers only the law. Here, as in the (still-unresolved) case of the DG3 judge, we have a bunch of vague rumours and innuendos put out by Batistelli in his latest communiqué to justify his partial and self-serving adjudication.

In Laurent’s case, justice is neither done nor seen to be done. Nevertheless, I have already heard colleagues who should know better opining that they ‘haven’t much sympathy’ with his position, which seems to be another way of saying: ?I didn’t like him much and therefore he had it coming’.

Is this where we are now? Trial by prejudice?

“Has the alleged victim of LP’s harassment not been recently promoted,” one person asked, “consequently should a victim of BB’s harassment not be compensated as well?…WHERE IS THE JUDGE??”

Which judge? The one Battistelli illegally suspended? Nearly 2 years ago? “The EPO is becoming sick by the day,” the comment below says. Here it is in full:

Bingo!

and guess what they did it clever to cover up the reward. Technically this was no promotion but, after a selection procedure to a position designed for a very specific profile matching precisely the domain of competence of the individual concerned, he was appointed to a position higher graded.

And the “funny” thing is that Battistelli in his address email to staff (read smear campaign) on intranet about this sad story dared to complaint that Laurent did not presented excuses!

Well to whom should he do this: to the alleged victim who is not the one who filed the complaint since he is no victim or to the top manager close to Battistelli who filed the complaint and is a true harasser (everyone knows it by now)?

The EPO is becoming sick by the day

“How can they indulge in the EPO being driven in the wall, and forced in expenses,” another person wrote. The comment is fairly long:

It cannot continue this way and at this pace.

It is high time for the AC to make clear to the president and all the yes men and women around him that immunity does not mean impunity.

How can they indulge in the EPO being driven in the wall, and forced in expenses which do not have any other aim than to satisfy the president’s wish for retaliation against the boards of appeal. After all he started by disregarding the separation of powers.

When one looks at the vote in the BFC, it appears that the states which barely contribute to the filings have decided in favour of sending the boards to the outskirts of Munich. That this implies unnecessary extra costs for the users did not seem to have played a role.

That any organism which does not change dies, this is valid as well for the EPO. Any reasonable person will agree that changes had to be carried out at the EPO. But did it have to be in such a ruthless manner?

If the social climate would be as rosy as tooted out by the higher management of the EPO, why did the president not organise Christmas gatherings with staff for many years? This alone is revealing and says a lot.

“Indeed all organisms must change,” wrote another person. “And that applies to top management as well. And the AC. Maybe time for that 5-yearly conference to address failings at the top to deal with issues?”

No doubt changes are necessary at many levels as Battistelli’s departure, which is inevitable, won’t be enough to restore a decent working atmosphere. “Can’t we simply vote to leave the EPC? It would make things so much easier,” one person proposed, as if the Brexit effect now spreads to the EPO, not just the EU. One person, on the day of the US election, wrote: “Battistelli is the Trump of the IP world. Be careful IPpussyKat. Early Uncertainty…”

Well, both Battistelli and Trump manage to stay in the race no matter how extraordinary the scandals. Battistelli kills the EPO (Office) as well as the Organisation by suspending members of the Boards of Appeal. See this new legal article titled “Disclaimers face an uncertain future at the EPO: new Enlarged Board referral”:

The EPO Enlarged Board in G 1/03 decided disclaimers that did not have basis in the application as filed were in some cases allowable, but only where a disclaimer was required to: i) restore novelty over an A54(3) document; ii) restore novelty over an “accidental” prior art document, where the anticipation was “so unrelated and remote that the person skilled in the art would never have taken it into consideration when working on the invention”; or iii) disclaim subject matter that was excluded from patentability for non-technical reasons. This allowed a disclaimers to be made that would otherwise fall foul of Article 123(2), in other words the language of the disclaimer was not included in the content of the application as filed, but only in quite limited circumstances.

A further Enlarged Board decision in G 2/10 related to disclaimers, but instead to those that were based on subject matter disclosed in the application as filed. The Board did, however, state that the test to be applied is “whether the skilled person would, using common general knowledge, regard the remaining claimed subject-matter as explicitly or implicitly, but directly and unambiguously, disclosed in the application as filed” (point 4.5.4 of the reasons). This test was, according to G 2/10, the generally accepted “gold standard” for assessing any amendment for compliance with Article 123(2) EPC.

Without the boards, especially without their complete independence, the EPO will certainly continue to fall into the abyss as patent quality declines and there is not enough capacity to correct this. A company called BioPorto has just issued a whole press release [1, 2, 3] to brag about a European Patent (EP) being approved at time of EPO turmoil and lack of quality control. How long will the perception of high value of EPs last? Based on Dutch attorneys, clients already start asking them troubling questions about the EPO.

This later comment, also posted in the above-mentioned thread, is alluding to a Battistelli Chinchilla, Bergot, and says the following about the HR angle:

Merpel,
Thanks for picking this up. Was beginning to wonder if you had been gagged.

With regard to your final witty comment “Of course this presents a shining opportunity for ambitious, concerned members of staff to take up the banner and step forward into leadership roles in the staff union. Those without dependent families and who are financially independent would be best suited to take on this career-ending role.”, I don’t remember if you previously noted that:

A. Standing for staff representation is at the president’s agreement and there is a ban on those at the end of their career. Staff don’t simply get to choose their representatives. Being close to retirement and likely to say what the heck, as you joke, is a good reason to prevent you from being a position to do so.
B. Being a representative means being moved administratively into a separate department run by his well-known HR Director. She must approve all your ‘work’ and its related travel etc. And sign off your holidays, sick leave etc. All a bit strange that staff are deliberately moved under the control of the person with whom they should negotiate/interact. Certainly one way to stifle the ‘awkward squad’ and, if all else fails, you can accuse them of harassment of each other and get them sacked (I don’t refer to Laurent’s case since that is secret).
C. And the threat to cut your pension at the presidents whim could take a column and a half to deal with as a final blunting instrument.

A “Fine Social Balance” (sarcastic) says:

BoA: “Madness is doing the same thing, over and over again, but expecting different results.”

SR: “Messing with madness is one thing, when madness is messing back, it is time to call the whole Social Conference off”

Someone then spotted “another report on the topic,” this time from IP Watch. “IP-Watch also reports that the Union Calls “Flash Demo” After EPO Fires Another Union Representative,” wrote another commenter, noting that “it was the first day of snow in Munich today.”

We’re expected to have our first day of snow in Manchester on Wednesday, but anyway, here is a portion from the article:

The Staff Union of the European Patent Office (SUEPO) called a 7 November “flash” demonstration in Munich after the office fired Laurent Prunier, SUEPO secretary in The Hague. The move dismayed employees encouraged after the Administrative Council (AC), made up of the office’s member states, last month pressured President Benoît Battistelli into backing off from two unpopular proposals for investigating and disciplining staff.
via the term “snipers of the Hague,” the source said.
[...]

The communiqué “is another example of an attempt of character assassination made by the president,” a source known as “epoinsider” told Intellectual Property Watch. Battistelli linked two disciplinary cases, the one against Prunier and one against Elizabeth Hardon,

We particularly like the part which says it “is another example of an attempt of character assassination made by the president” because we saw so much of this. In fact, the EPO even accused me of “defamation”, without even providing a clear example. They just can’t help shooting the messengers everywhere (even foreign/overseas). They’re like Stalin!

SUEPO’s public Web site has been updated to include much of the above and it currently says:

“Firings will continue until morale improves – Merpel revisits the EPO” (IPKAT, 7 November 2016).
“EPO users and staff need the Administrative Council to get a grip on current events” (IAM, 7 Novmber 2016).
“Union Calls “Flash Demo” After EPO Fires Another Union Representative” (IP-Watch, 7 November 2016).
“The Rule of Law (Rechtsstaat) is Endangered and Needs to be Defended!” (Kluwer Patent Blog, 7 November 2016), especially section 4 of the article dealing with the EPO.
“Fresh Euro Patent Office drama: King Battistelli fires union boss” – EPO president ignores his own admin council (The Register, 4 November 2016).

Earlier today someone asked the EPO if they “have a response to http://www.iam-media.com/Blog/Detail.aspx?g=85178c62-24df-403f-990d-f3f5f5c4ce51 … ?”

‘Do you believe in Fairytales,” an insider replied with a rhetorical question. “Me neither!”

The EPO will just pretend none of this is happening. What kind of social workshop actually took place on Monday and Tuesday? What a sham! The only “work” was Battistelli working on (or stroking) his big ego. █

Summary: A quick roundup of recent articles/reports/analyses about Apple v Samsung, including the impending Supreme Court (SCOTUS) case

APPLE’S longstanding patent war with Samsung (or Android, having started to attack it more than 6 years ago) has become a high profile story and probably the leading example of patent litigation in recent times, with a lot of money at stake.

As expected, patent lawyers go ahead and push forth their fairly tales about patents being surrogates for “innovation” (the 1%’s protectionism), this time in relation to Apple and Samsung. To quote Patent Lawyer Magazine:

The recent and numerous cases opposing companies like Apple and Samsung or Google and Oracle highlight that, today, patents are defensive weapons as well as offensive weapons according to the strategy developed by the holder. Many companies notice lately this functional ambivalence of the patent, just as a patent-related dispute happen, like its violation by a counterfeiter party who reproduces without any authorization the protected invention.

If adopting a strategy of patent application may appear expensive in front of the strategy of the secret which consists in keeping the invention undisclosed, it must be clear that the patents ensure an effective legal protection of the inventions against potential counterfeiters and also permit to the innovative companies recouping their Research & Development costs as a patent owner will be able to negotiate royalties for license agreements signed with firms interested in the use of the patented technology.

That’s a rather misleading framing. If one actually considers which patents Apple is suing with/over, then one hasn’t any doubts; it’s not about innovation at all. Maybe it’s about “first to file” or something along those lines. We have covered these patents many times over the years.

As should become apparent pretty soon — because certainly corporate media will be all over it — Apple’s patent war against Samsung will be discussed at SCOTUS, with design patenting as a whole coming under scrutiny. Here is an overview of some more cases to be discussed by SCOTUS:

Constitutional Challenge to Inter Partes Review: Although the Constitutional issues in Cooper v. Lee and MCM v. HP were law-professor-interesting, they were not substantial enough for certiorari. The Supreme Court has now denied the Cooper and MCM petitions — leaving the IPR regime unchanged. Although Cooper v. Square is still pending, its chances are slight. The Supreme Court has also denied certiorari in Encyclopaedia Britannica (malpractice), Gnosis (appellate review), and GeoTag (case-or-controversy).

A new 101 Challenge: In its first conference of the term, the Supreme Court denied all of the pending petitions regarding patent eligibility. However, Trading Technologies has filed a new petition asking whether a new card game is categorically unpatentable so long as it uses a standard deck (rather than a novel deck) of cards. My post on the case asks: Does the Patent Statute Cabin-in the Abstract Idea Exception? That question references Section 100 of the Patent Act that expressly allows for the patenting of new use of a known manufacture.

Extra Territoriality of Trade Secrecy Law: On the trade secrecy front, Sino Legend has petitioned to review the Federal Circuit’s affirmance of the International Trade Commision’s ban on Legend’s importation of rubber resins used for tire production. The underlying bad-act was a trade secret misappropriation that occurred in China and the question on appeal asks: Whether Section 337(a)(1)(A) permits the ITC to adjudicate claims regarding trade secret misappropriation alleged to have occurred outside the United States. A Chinese court looked at the same case and found no misappropriation.

Design Patent Damages: Oral arguments were held earlier this week in Samsung v. Apple. During the arguments, all parties agreed that (1) the statute does not allow for apportionment of damages but rather requires profit disgorgement; (2) the article-of-manufacture from which profits can be calculated may be a component of the product sold to consumers; and (3) the determination of what counts as the article-of-manufacture is a question of fact to be determined by the jury. The only dispute then was on the factors that a jury should be considered and when the “inside gears” of a product should ever be included in the calculation.

The fourth paragraph is about Apple (design patents, not software patents) and the second paragraph speaks of a Section 101 challenge, which isn’t yet likely to happen. Alice is likely to stay here for a long time to come. The focus of the above cases, or the framing that Patently-O has chosen, is ITC. The I in ITC stands for “international” — surely a misleading label. It’s like calling the KGB “international” because it goes (or went) abroad in order to get its way for its home country. The ITC is to US corporations what the FSB is to Russia’s government (or the Kremlin) and we should recognise that there’s nothing “international” about it. It’s not the UN. Now that the patent battles target Asian companies like Samsung IAM likes to obsess about the subject. This patent trolls-funded site wishes us to believe that patent tax that makes phones worse (removed features to avert risk of lawsuits) and more expensive is a desirable aspect. Phones from Samsung almost literally explode and all that IAM can think about is patents, patents, and more patents.

Over at MIP there has been more coverage of the above patent case of Apple v Samsung. Florian Müller foresees more action in this domain (not involving only design patents but much more).

Little attention is being paid to Apple’s practices or tradition of tax evasion with patents as a financial instrument. It continues to happen in Ireland where Apple has a notorious tax-dodging operation and pro-Apple sites touch on the subject yet don’t quite get to the bottom of it (“Apple Moves $9B Worth of iTunes Intellectual Property To Ireland”). Remember what we wrote about Patent Boxes earlier this year.

Joseph Robinson & Robert Schaffer (over at Watchtroll) write about a related case (a different Apple v Samsung). It is apparent that this site is growingly concerned about yet another case reaffirming the death of software patents in the US. Apple has more than one case against Samsung; there are software patents at stake as well, hence the relevance to us. Watchtroll is still opposing patent reform and uses the terminology of anonymous Twitter accounts that taunt us, e.g. “Efficient Infringement”. What a cesspool Watchtroll has become…

Going back to Müller, here is what he recently wrote about both Apple v Samsung cases that are high profile:

Was it just a coincidence that the Federal Circuit made a decision on an Apple petition for a rehearing about eight months after the original decision and just days before the design patents hearing in the top U.S. court? It may very well have been. But when there are already other oddities (such as the decision not to invite further briefing from the parties and hold a rehearing), it’s not impossible that there is a hidden message or agenda.

The Federal Circuit decision certainly gives Apple leverage. Limited leverage, though: the relatively most valuable one of the three patents on which Apple had prevailed at the spring 2014 trial has expired and the most iconic one, slide-to-unlock, is about as valuable in the age of Touch ID and comparable technologies as an ISDN or floppy disk patent.

“Experts Urge Supreme Court To Take A Bite Out Of Apple’s Patent Win Over Samsung,” said this recent report, stating: “As two of the world’s largest consumer electronics companies face off at the Supreme Court Tuesday, experts in legal, patent, technology and consumer advocacy fields are urging the Supreme Court to overturn a ruling in the smartphone war between Apple and Samsung that awarded the iPhone maker the total profit of patent-infringing Galaxy devices.”

Matt Levy wrote about this also [1, 2]. That was 2.5 weeks ago when he pulished some thoughts about “A Funny Thing [That] Happened on the Way to the Court” and to quote:

A funny thing happened on the way to the Supreme Court in yesterday’s Samsung v. Apple design patent dispute. The high court was expected to review the lower court’s award of the entire profits made for 11 different smartphone models — just under $400 million.

[...]

Unexpectedly, some time before the argument Apple had agreed to concede that the “article of manufacture” didn’t have to be the entire product sold. That is, Apple agreed with Samsung and the government that the answer to the question that the Court had agreed to decide is “Yes.”

Will design patents not be challenged even by Samsung after all? IAM (wshfully) thinks there may be alignment on the horizon. To quote: “For the last couple of years it has been apparent that the smartphone wars that have raged in US courts since 2009 have been reaching their final skirmishes. Peace deals between the likes of Microsoft and Google and Apple and Google, have brought many of the battles to an end. Except, that is, for what has probably been the most significant confrontation – Apple v Samsung.”

There’s no “Microsoft and Google” “peace deal”; Microsoft continues to attack Android OEMs with patents and it was Microsoft that initiated antitrust action against Android in Europe. Microsoft is a malicious firm that would lie to anyone, anytime.

Joe Mullin asked: “How much punishment is appropriate when it comes to design patents?”

MIP’s coverage at the time spoke of the arguments and Patently-O offered a “view from inside the courtroom”. It said:

At oral argument, Samsung informed the Court that it was dropping its “causation argument” (i.e., that § 289 must be read in light of background causation principles from general tort law) and wanted to focus on its “article of manufacture” argument (i.e., its argument that a successful design patentee should be entitled to the “total profit” from the “article of manufacture” but that the relevant article should be determined mainly by looking at whether the patent claims a whole design or only part).

We eagerly await rulings against Apple in both cases, one involving software patents and another design patents, which in this case closely resemble software patents in multiple ways/aspects. What’s at stake here isn’t just the price of Samsung phones but the financial viability of Android (Linux-based) phones in general. █

Summary: A local copy of a bunch of questions asked less than a month ago by Ulrike Müller at the European Parliament, regarding the unacceptable state of affairs at the European Patent Office (EPO)

IT has certainly been a while since we last saw (or heard) the EPO mentioned in the European Parliament, which has no direct authority over the EPO but should definitely be concerned about what happens in Eponia as it grossly violates the rights of European workers.

To ensure long-term preservation of the material we have copied it verbatim (it’s probably public domain if not Fair Use):

Parliamentary questions

26 September 2016

E-007090-16
Question for written answer
to the Commission
Rule 130
Ulrike Müller (ALDE)

Subject: Situation of staff working for the European Patent Office

Further to the replies to questions E-009256/2015 and E-000938/2016 can the Commission answer the following additional questions:

1. Bearing in mind that it acts as ‘guardian of the Treaties’, does the Commission see no legal possibility of enabling EPO employees to enjoy protection of their fundamental rights under Union law or of opening investigations into violations of fundamental rights, notwithstanding the fact that overseeing the application of Union law and applying the Treaties are, as specified in Article 17(1) TEU, one of its core tasks?

2. What proposals can it put forward, for instance in connection with future reforms of European primary and secondary legislation, in order to greatly strengthen its hand for the purpose of guaranteeing proper protection of fundamental rights within the EU and hence the EPO?

3. What practical steps has it taken in the current parliamentary term to encourage the dialogue between social partners referred to in the answer to Question E-009256/2015?

Here is the original in German:

Parlamentarische Anfragen

26. September 2016

E-007090-16
Anfrage zur schriftlichen Beantwortung
an die Kommission
Artikel 130 der Geschäftsordnung
Ulrike Müller (ALDE)

Betrifft: Situation der Beschäftigten in der Europäischen Patentorganisation

Kann die Kommission im Zusammenhang mit den Antworten auf die Anfragen E‐009256/2015 und E‐000938/16 die nachstehenden zusätzlichen Fragen beantworten:

1. Sieht die Kommission in ihrer Rolle als „Hüterin der Verträge“ selbst keine rechtlichen Möglichkeiten, den Grundrechtsschutz als Teil des Unionsrechts für die Bediensteten der EPO sicherzustellen bzw. wegen Grundrechtsverstößen Untersuchungen anzustellen, obwohl die Überwachung des Unionsrechts und die Anwendung der Verträge gemäß Artikel 17 Absatz 1 EUV eine ihrer zentralen Aufgaben ist?

2. Welche Vorschläge hat die Kommission, um beispielsweise im Rahmen künftiger Reformen im europäischen Primär‐ und Sekundärrecht ihre Möglichkeiten zur Gewährleistung eines angemessenen Grundrechtsschutzes auf dem Gebiet der Union und damit auch innerhalb der EPO maßgeblich zu verbessern?

3. Welche konkreten Maßnahmen hat die Kommission in der laufenden Wahlperiode ergriffen, um den in der Antwort auf die Anfrage E‐009256/2015 angesprochenen Dialog zwischen den Sozialpartnern anzuregen?

Hopefully Ulrike Müller and her colleagues at ALDE will reach out and attempt to help workers of the European Patent Office. They certainly need help and Eponia gives them none; all Eponia can give people are rude dismissal letters and disciplinary procedures that often end up in dismissal if not personal bankruptcy and/or physical/mental breakdown as well. █

Summary: The trajectory of the EPO under Battistelli’s leadership gives cause for very serious concerns, which include patent trolling and a humongous disservice to existing grantees of EPs (European Patents)

THE EPO may be going down the road of both China's SIPO and France's INPI (where Battistelli and many of his cronies at today's EPO top-level management came from). The Chinese have remarkably low patent quality (quantity over quality is the mantra) and the French, who fail to attract applications (French is spoken by far fewer people than Mandarin speakers), hardly care about quality at all. A French INPI clerk just rubberstamps (or simply files/shelves) everything that comes in. If the EPO follows the French model, then no examiners will be needed, just clerks who can follow a simple manual. How would one feel about one’s old/er EP/s if every crappy application on the EPO’s pile was suddenly granted or at least given hasty consideration for the sake of so-called ‘production’? Battistelli’s policy poisons the well or muddies the water right now. It is unfair to people who spent a fortune (and many years) pursuing EPs.

“If the EPO follows the French model, then no examiners will be needed, just clerks who can follow a simple manual.”As we noted here several weeks ago, east Asia is becoming attractive to patent trolls [1, 2], due in part to low patent quality (same as was the case in the US). There are more trolls and litigation, not just poor patent quality; there’s a correlation between those two things. SIPO is by far the worst in that regard. Korea and Japan, in the mean time, recognise the self-destructive nature of M.A.D. with patents, based on another article from IAM that says: “This blog has noted that one of the big themes in Asia’s automaking industry this year has been a significant move by Japanese and Korean brands to join defensive patent alliances. It’s a strategic shift for the industry that in many ways is being led by companies in this part of the world, rather than their North American and European counterparts. But Chinese companies have not yet followed the same path in significant numbers, and industry observers say with litigation on the rise there, buy-in from players in China will be crucial for these alliances going forward.”

One or two of IAM’s paid (partly by patent trolls) writers have focused a lot on Asia recently. See the latest issue’s “Patents in Asia 2016″ series, including focus on China, Japan, South Korea, and Malaysia. The feature item was actually about China, titled “Putting China’s patent rise into context” (all behind a paywall) and Jacob later wrote (partly in relation to this) that China welcomes crappy patent applications from the US, just like the EPO under Battistelli does. He recently started following me in Twitter (maybe out of curiosity, I find him a lot more balanced than Mr. Lloyd and Mr. Wild) and he didn’t put it in these words but instead he wrote:

It was eye-opening, but not necessarily shocking, to read on this blog last Tuesday the suggestion that Huawei’s mobile patents might generate up to 20% of all the patent income earned by Chinese companies. The conjecture appeared in a new research paper which seeks to revise (downward) earlier estimates of the total royalty stack on the typical mobile phone. The study looked at 49 major mobile licensors, of which Huawei was one of only two Asian operating companies (the other being Samsung Electronics).

Credit the Shenzhen-based company for building an IP team that has put it head and shoulders above its domestic competitors in terms of patent portfolio strength. I was reminded, though, of a quote by Huawei head of IP Jason Ding that appears in the issue of IAM out this week…

There is also an article about Foxconn.

Asian companies haven’t much to gain from a crappy patent system. Take Samsung for example. The most stupid patent that has made headlines in recent years (slide-to-unlock, hardly a novel concept at all) might soon cost Samsung more than $0.1 billion, based on reports like this new one and some remarks from Florian Müller (he wrote a lot more about it in Twitter). To quote Bloomberg (cited by Slashdot):

Apple Inc. won an appeals court ruling that reinstates a patent-infringement verdict it won against Samsung Electronics Co., including for its slide-to-unlock feature for smartphones and tablets.

In an 8-3 ruling, the U.S. Court of Appeals for the Federal Circuit said a three-judge panel was wrong to throw out the $119.6 million verdict in February. Instead, it ordered the trial judge to consider whether the judgment should be increased based on any intentional infringement by Samsung.

Does this not demonstrate how foolish software patents harm companies like Samsung, whose home country (Korea) does not permit software patenting (we wrote about this earlier in the month)? This new IAM article remarks on patent tax when it comes to phones, which makes them very expensive (“licensing return from mobile market at $14.3 billion”).

As for the patent system in France, where does one even begin? The patent system in France is worse than a bloody joke; one might even call it a facility for corruption in light of details about the Patent Boxes (we wrote about this too, several times in the recent past alone). Here is a new article about it, demonstrating that journalists have begun catching up with the dirty scheme:

France’s patent box legislation, which permits a 15 percent corporate tax rate for profits from licensing of intellectual property rights rather than the usual 35 percent corporate tax rate, is being challenged as unfair to the European Union single market.

The matter has come before the EU Code of Conduct Group for Business Taxation, where several EU countries—including Ireland, Bulgaria and the Baltic nations— are insisting the French patent box regime should be considered harmful.

Among those contesting France’s IP rate are EU member countries that were themselves previously criticized by France over their overall low corporate tax rates.

“The issue has surfaced because France insists its regime doesn’t need to be reformed as all EU member states agreed to do in 2014,” a European Union diplomat, who participates in the Code of Conduct Group of Business Taxation, told Bloomberg BNA Sept. 30.

“However, all other EU countries are reforming their tax regime and insist France must do the same. Some of these countries, many of them resentful over French criticism of tax dumping, are rejecting the French arguments against reform.”

In this new IAM article a connection between the French and the Chinese is highlighted, in the form of “France Brevets”:

Unlike IP Bridge and Intellectual Discovery, France Brevets did not provide comment for the feature, but anecdotal accounts suggest that there has been something of a shift in strategic focus at the firm in recent months – and the call for change has come from the highest levels.

It appears that securing a return on its 100% public sector investment is now the fund’s primary objective, with its aims of boosting the domestic SME sector and kickstarting a local market in IP assets taking a back seat, at least for the time being. Simultaneously, some key personnel have come and gone; in June, founding CEO Jean-Charles Hourcade was replaced by Didier Patry, who was previously head of IP at Eaton Aerospace and before that led Hewlett-Packard’s IP transactions department from 2002 to 2014. Pascal Asselot, who had served as the fund’s director of development and licensing since its establishment, departed in the same month.

The USPTO, which finally tightens patent scope and goes after trolls (more on that in articles tonight and tomorrow), isn’t the world’s worst; some of the worst are probably SIPO and INPI and this is what the EPO is connecting to (several days ago Battistelli bragged about meeting SIPO officials in the town where he used to be a mayor, over in France that's not even an EPO host nation). █

“US Pat RE39231,” wrote a patent attorney, eventually meant that “Apple Must Pat MobileMedia $3M for Infringing this Patent” (MobileMedia is not as real company and we wrote about it before, in relation to MPEG-LA and Larry Horn; we wrote about him in [1, 2]).

How many people out there know that MPEG-LA is a patent troll whose head himself is/was a patent troll? Not many people know this. Horn relies on dishonest lawyers from Proskauer Rose and sues Apple, which itself is part of MPEG-LA (we already took note of how bizarre this is).

Well, “Apple loses ringtone infringement case to Nokia and Sony’s patent troll firm,” according to the headline of this report. To quote: “Apple has been ordered to pony up $3 million in damages by a Delaware judge for infringing the patent of a firm partially owned by Sony and Nokia. The case, which has been running since way back in 2010, saw MobileMedia Ideas originally accuse Apple on 16 counts of patent infringement. Six years and plenty of court activity later, the original claim has been whittled down to just one patent pertaining to iPhone ringer alerts, for which MobileMedia has been awarded a tidy sum of money.”

A patent troll connected to Nokia — a legacy of Microsoft entryism and subsequent passage of patents to trolls like MOSAID — is somewhat of a pattern we’ve seen a lot of recently. Android too is being targeted by these trolls.

“MobileMedia Ideas just won a Delaware trial against Apple over a former Sony patent,” Florian Müller wrote about it. “May file further lawsuit now over iPhone 4S and later.”

Tom O’Reilly from Mobile Media Ideas is advertising for this patent troll. He passed around the press release “MobileMedia Ideas Wins Trial against Apple” and it said:

(CHEVY CHASE, MD, US – 21 September 2016) – MobileMedia Ideas LLC is pleased to announce that the US District Court for the District of Delaware today found MobileMedia Ideas’ “polite-ignore” patent (Re 39,231) for mobile phone call silencing valid and infringed by the iPhone 3G, 3GS and 4 and awarded $3M in damages. The case did not include the iPhone 4S, 5/5C/5S and 6/6 Plus on which there may be further proceedings. The patent was filed in 1994 by Sony Corporation, a pioneer in the development of mobile and other consumer electronics technology, and is now part of the patent portfolio licensed by MobileMedia Ideas.

MobileMedia Ideas President and CEO Larry Horn said, “We thank the jury for its service and hard work. This case could have been avoided by the taking of a license, however. MobileMedia Ideas’ business model is based on offering reasonable licenses to a valuable portfolio of important inventions widely practiced across a broad array of mobile phone and other portable products. We still welcome Apple to respect intellectual property developed by others with the taking of a license.”

MobileMedia Ideas was represented by a team of litigators at Proskauer Rose led by Steve Bauer and Kim Mottley of the Boston office.

In relation to an article/report mentioned here earlier this week, there is now an important update. Coming from the Korea Times, it says that the tax authority is likely to reject Microsoft’s appeal for refund of tax. To quote the opening parts:

The South Korean tax authority is expected to reject an appeal by U.S. software giant Microsoft Corp. to refund 634 billion won ($575.7 million) in a withholding tax, according to the tax authority and industry sources Thursday.

Microsoft filed complaints last month against the National Tax Service (NTS), seeking a refund of the withholding taxes paid by Samsung Electronics Co. to the NTS for using the software giant’s patents.

When will Microsoft pay the tax it has evaded? Above the law, still? A lot of the above sum comes from Linux-powered devices (we wrote about this many times before).

Those who believe that Microsoft has changed surely aren’t paying attention to what it does through patent trolls, through Nokia (which Microsoft demanded should pass patents to trolls), and in various distant countries like Korea. Microsoft just became a little more covert in its war against Linux. █

Summary: The unwanted elements of the patent system (as it stands at present) illuminated by very recent news and patent court cases

WE sometimes worry that our growing focus on the EPO has distracted somewhat from the patent quality problems at the USPTO. We spend an enormous amount of time looking into patent news from all around the world and occasionally something catches our eye that needs a quick comment but not a comprehensive rebuttal. Herein we lay out some recent patent news, with or without further comment.

Disclosure Requirements

“Patents cannot be used defensively, only as means of retaliation (M.A.D.) so that both sides suffer and only lawyers win (they profit from patent wars irrespective of the outcome).”When it comes to patents, rules vary wildly depending on the country. Here we have Switzerland-based site praising its own country on patents, but it’s only part of the story because for a rich country to have a lot of patents makes a lot of fiscal sense, for reasons we explained last month. The Swiss patent system and the role of Switzerland in the EPO requires taking into account Switzerland’s rather unique economy.

Mobile Patents

According to the patents-centric media, Judge Koh, probably best known in recent years for her involvement in Apple and Samsung trials, is still going strong. “The Senate Judiciary Committee on Thursday voted 13-7 to approve the nomination of U.S. District Judge Lucy Koh to the Ninth Circuit,” says this report.

One article, this one coming from a niche Web site, wrongly assumes that ‘app’ (buzzword, usually meaning software for mobile devices) development requires patents. If you develop a mobile ‘app’ and waste time/effort worrying about patents on software, then you’re probably doing it wrong and wasting resources. Patents cannot be used defensively, only as means of retaliation (M.A.D.) so that both sides suffer and only lawyers win (they profit from patent wars irrespective of the outcome). Deterrence using patents does not exist when trolls are involved.

“Microsoft had extorted HTC using patents as well; HTC chose to settle to avoid legal action and potential embargoes.”“Apple Was Hit with a $22M Verdict for Infringing an Acacia Patent,” wrote a patent attorney the other day. Acacia is a Microsoft-connected patent troll. As for Apple, when it sued HTC 6 years ago it showed that it too was quite a patent bully. “According to the complaint,” says another new report, HTC is being sued again and “the plaintiff [Infogation] alleges that Infogation Corp. suffered damages to its business from having its patent infringed. The plaintiff holds HTC Corp. and HTC America Inc. responsible because the defendants allegedly manufacture and distribute mobile phones containing software that infringes the plaintiff’s patents.”

They just can’t leave HTC alone, can they? Microsoft had extorted HTC using patents as well; HTC chose to settle to avoid legal action and potential embargoes. Speaking of embargoes (or injunctions), another example of the ITC being exploited for embargoes (using patent allegations before even a proper trial) can be seen in this new press release. So much for promoting innovation, eh? Promoting racketeering maybe… Microsoft has used the ITC for embargoes using patents for nearly a decade now.

“What’s a Patent Worth?”

“Patents are a lot like financial bubbles and are also an instrument of tax evasion some of the time.”That’s the headline of this article which says: “When a technology business fails, and the flesh of the going concern is stripped away, often the only thing that remains is a paper skeleton of potentially valuable patents. In 2011, Nortel Networks’ patent portfolio of wireless technology patents sold for $4.5 billion. A few years later in 2013, Kodak’s portfolio of digital imaging patents brought in $525 million. Now, Yahoo’s patent portfolio of nearly 3,000 patents is on the block, and experts estimate that it could sell for $1 billion. While “expert” valuations are not always accurate, (Nortel’s portfolio was initially valued at $1 billion, and Kodak’s portfolio was initially valued at $2.2-2.6 million; see http://spectrum.ieee.org/at-work/innovation/the-lowballing-of-kodaks-patent-portfolio) the estimates for Yahoo’s portfolio work out to more than $300,000 per patent, well in excess of the cost of acquisition.”

As we explained before, Yahoo’s patents are mostly software patents, thus they’re pretty worthless right now (after Alice).

Patents are a lot like financial bubbles and are also an instrument of tax evasion some of the time.

Hartig Drug Co. v Senju Pharmaceutical Co.

“Microsoft does this a lot to vendors that sell GNU/Linux, Chrome OS, and Android devices. It’s a form of extortion, depending on how it’s done and how severe the threats are, quality of patents (if disclosed) aside.”A patent maximalism site said about a fortnight ago: “Perhaps one of the most influential first year law school classes for the task of learning how to “think like a lawyer” is civil procedure. Particularly when the professor is bold enough to engage students on the intricacies of the topic, its intricacies can make for a challenging final exam. These experiences should come to mind for many antitrust lawyers when considering the Third Circuit’s decision in Hartig Drug Co. v. Senju Pharmaceutical Co., where the Court applied subject matter jurisdiction principles to reverse a District Court’s dismissal of Hartig’s antitrust allegations on the pleadings.”

Notice the antitrust element of it. It’s quite common when it comes to patent monopolies.

Asetek v AVC

“Patent lawyers say we need to respect patents, but they sure don’t respect copyrights some of the time.”This recent coverage of a case involving patents on cooling systems is also noteworthy. To quote: “The Asetek patents cover liquid cooling systems used to cool integrated circuits (such as those on a computer). Over the past several years, Asetek has sued several competitors for infringing the patents including CoolIT and Cooler Master. In 2014, Asetek sent AVC a letter accusing the company of infringing — however the letter mistakenly accuesd AVC of manufacturing the Liqmax 120s (it does not). After some letters back-and-forth, Asetek eventually sent a letter that it “believes that AVC is likely selling other infringing products in the United States.” After an unsuccessful meeting, AVC filed its declaratory judgment action. The question is whether these facts are sufficient to show an actual controversy between the parties.”

So this can formally become a lawsuit pretty soon, unless money is coughed out in pre-trial settlement. This too often turns out to be of an antitrust nature. Microsoft does this a lot to vendors that sell GNU/Linux, Chrome OS, and Android devices. It’s a form of extortion, depending on how it’s done and how severe the threats are, quality of patents (if disclosed) aside.

Stryker v Zimmer

Earlier this month we found some coverage of the case at MIP which explained: “The Federal Circuit has affirmed the jury’s finding of wilful infringement but vacated and remanded the district court’s award of treble damages, in its Stryker v Zimmer decision”

“Patent lawyers are so dishonest about so-called innovation, so why not plagiarise too?”We wrote about Stryker/Halo in the past. “The jury awarded Striker [sic] $70 million in lost profits,” explains another site. “On appeal,” it added, “the Federal Circuit affirmed as to infringement, validity and damages. [...] Most of the new Stryker opinion involves a recitation of the Federal Circuit’s previous opinion affirming the district court as to infringement and validity. The last three pages, however, deal with the § 284 enhancement issue on remand. What’s interesting is that the Federal Circuit is maintaining its bifurcated approach to enhancement of damages, first requiring a predicate willfulness determination followed by the judge’s discretionary determination of whether and how much to enhance damages. This is essentially the same process as before. See i4i Ltd. Partnership v. Microsoft Corp., 598 F.3d 831 (2010). Pre-Halo, the second step of the process (the district judge’s determination of whether and how much to enhance damages) was a totality-of-the circumstances analysis that was reviewed for abuse of discretion (i.e.: basically the same as the court required in Halo). Id. The Federal Circuit’s post-Halo approach to enhancement involves the same two steps, with the exception that the willfulness determination itself is guided by the holding in Halo rather than requiring the two-element objective/subjective determination of Halo. (The enhancement determination is too, but it’s hard to see much difference there.) Under Halo, the subjective component alone can be enough to establish willfulness.”

This was very good news for patent trolls. It still is.

Patent Lawyers and Plagiarism

“It sure looks as though patent trolling is a ‘thing’ in east Asia right now…”Patent lawyers say we need to respect patents, but they sure don’t respect copyrights some of the time. There is even plagiarism reported and potentially a lawsuit to provide evidence of it. “This creates some very interesting problems for lawyers,” said a patents pundit, “and calls to my mind the case a few years ago where a patent prosecutor was sued for using language from a patent in a specification for another client. I’m not a copyright lawyer, and so just raise this case for you to think.”

Patent lawyers are so dishonest about so-called innovation, so why not plagiarise too? Another article by Dennis Crouch speaks of patent malpractice today. It’s part of an outline of upcoming SCOTUS cases. To quote the introduction:

The Supreme Court will begin granting and denying petitions in early October. Meanwhile, several new petitions are now on file. Last week I wrote about the TC Heartland case as a mechanism for limiting venue. Without any good reason, the Federal Circuit overruled a 1957 Supreme Court case that had strictly limited patent venue as spelled out in the patent venue statute 1400(b). See VE Holdings (explaining its overruling of Fourco Glass). A result of VE Holdings is the expansive venue availability that facilitated the rise of E.D. Texas as the most popular patent venue. TC Heartland simply asks the Supreme Court reassert its Fourco holding – something that could almost be done with a one-line opinion: “REVERSED. See Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957).” The best arguments for the Federal Circuit’s approach are (1) the reasoning of Fourco itself is a bit dodgy; and (2) VE Holdings is well settled doctrine (decided 26 years ago) and Congress has revised the statutory provisions several times without amending. As a side note, several members of Congress have suggested they will act legislatively if SCOTUS fails to act.

Two new petitions (Grunenthal v. Teva and Purdue v. Epic) stem from the same Federal Circuit OxyContin case and focus on anticipation and obviousness respectively. Grunenthal v. Teva questions how ‘inherently’ operates for anticipation purposes. Purdue suggests that – despite the final sentence of Section 103, that the actual circumstances of the invention should be available to help prove non-obviousness (but still not be available to prove obviousness). Another new petition includes the BPCIA case Apotex v. Amgen that serves as a complement to the pending Sandoz case questioning the requirements and benefits of providing notice of commercial marketing.

USPTO is Getting Sued Again

“What they mean by “monetisation” is shakedown or a gentle form of blackmail.”Last week we wrote about fraud at the USPTO, or examiners defrauding taxpayers as Florian Müller and others chose to frame it. According to this article, the USPTO has another embarrassment to cope with. To quote: “In Hyatt v. USPTO, Civ. No. 16-1490 (D.Nevada, Filed June 22, 2016), Hyatt asks for injunctive relief to stop the PTO from repeatedly ‘reopening prosecution’ in his cases and consequently shielding the cases from judicial review by either the PTAB or Article III courts. Hyatt is experiencing the common reality of examiners reopening prosecution once an appeal brief is filed.”

The Ts: Patent Tax and Trolls

“Well, patents on corn oil extraction are deemed invalid by a court, probably because the USPTO just issues a patent for every piece of paper that comes in, leaving courts to clean up their mess.”In recent weeks we wrote about what had happened in east Asia, where patent trolling is becoming an epidemic. It sure looks as though patent trolling is a ‘thing’ in east Asia right now and here is IAM writing about a new non-practicing entity (IAM would never use the T word). To quote: “Just over a month since display maker Sharp came under the formal control of Hon Hai Precision Industry (Foxconn), big changes to its IP operations are already in the offing. Nikkei Asian Review reported on Tuesday that the Japanese company’s IP function would be hived off into a separate IP management company on October 3rd, with one goal being to create more value from Sharp’s massive global patent portfolio. Speaking exclusively to IAM, Foxconn IP chief YP Jou confirmed how the responsibilities for the Sharp portfolio will be divided within the sprawling Foxconn IP apparatus, and revealed the team’s priority when it comes to monetisation.”

What they mean by “monetisation” is shakedown or a gentle form of blackmail. Speaking of so-called ‘monetisation’, this new report says that “[f]ive big holders of cellular patents, including Qualcomm Inc., are joining an effort proposed by Ericsson AB to jointly license patents in an emerging field called the Internet of Things.”

“Some person with an MBA spreads some myths about patents right now, as if companies just can’t do without them.”Here comes the patent tax to surveillance of all Things (IoT). “Qualcomm has long derived a chunk of their revenue from licensing,” said this one person, “so this isn’t a big change for them.”

Qualcomm also came under heavy regulatory scrutiny for it. Watch what IAM wrote about this. These guys are looking at the surveillance of all Things (IoT) only from the point of view of patents; yes, patents alone.

Patents on Corny Stuff

“Unless we get engineers to enter the political systems, we’ll continue to have lawyers with their lawyer buddies from college writing laws, including patent laws.”Well, patents on corn oil extraction are deemed invalid by a court, probably because the USPTO just issues a patent for every piece of paper that comes in, leaving courts to clean up their mess. This new press release says that “GreenShift Corporation (OTCQB: GERS) provided an update regarding the ongoing patent infringement action involving GreenShift’s subsidiary, GS CleanTech Corporation (“CleanTech”), and its corn oil extraction patents.”

Corporate Domination of IP [sic] Law

Some person with an MBA spreads some myths about patents right now, as if companies just can’t do without them. Watch the corporate sob story: “It’s clear the current system is working for no one except those who want money for nothing. America’s inventive spirit has been the lifeblood of our economic growth for generations, moving us from horse-drawn carriages to electric cars in just over a century. Missteps by the courts, Congress, and the Patent Office have threatened to drive that underground, unwittingly rewarding a few large corporations happy to profit off the work of others at no cost to themselves. That’s not the American way.”

“…TPP threatens to spread software patents almost everywhere. It is a truly villainous back room deal and it should be crushed.”What he is trying to say is that people accused of infringement “want money for nothing” and that it’s the “American way” to give large companies monopolies, so as to prevent others from competing. He advocates protectionism, not an American way. Unless we get engineers to enter the political systems, we’ll continue to have lawyers with their lawyer buddies from college writing laws, including patent laws. It’s the sad truth. Here is another new lawyers’ congregation (EPIP) where they speak ‘on behalf’ of inventors, developers etc. Notice the “IP” in the event’s name. The notion of so-called ‘IP’ (an umbrella for several totally separate things) helps mislead people into equating patents with copyrights and secrets; this event wasn’t about patents as it covered other aspects of so-called ‘IP’ (an umbrella for several totally separate things) and when people say “IP” we should always ask them to be specific. IP means nothing; copyrights, trademarks, patents and trade secrets do. Here is how EPIP started: “The plenary session kicked off with Professor Rochelle Dreyfuss highlighting the expansion of trade secrets protection globally, and the worrying potential unintended consequences. There are increasing concerns that trade secrets and economic espionage law in the US is being used to racially profile researchers. (Interesting coverage on the targeting of Chinese-American researchers here.) Dreyfuss discussed the potential negative impact of non-compete clauses on innovation, employees and economic growth. She argued that criminalisation related to trade secrets generates an especially strong chilling effect as high-tech workers are unwilling to risk incarceration. Dreyfuss also observed that TPP (Trans Pacific Partnership) does not create a minimum trade secrets standard, and is trying to express a new norm that information shouldn’t be free.”

Just to remind readers, TPP threatens to spread software patents almost everywhere. It is a truly villainous back room deal and it should be crushed. █

Summary: The latest new developments in the software patents landscape, including some of the latest vicious attacks on the Patent Trial and Appeal Board, which invalidates software patents at a rather high pace

IT CAN be truly sickening to see what goes on in the US amid the demise/end of software patents. As we noted the other day, the patent law firms fight back and they fight back dirty. Left unchallenged, they will have a lot of leeway and possibly discourage participation by those who merely apply the law. They’re bullies with ‘class’.

“Left unchallenged, they will have a lot of leeway and possibly discourage participation by those who merely apply the law.”Litigation and blackmail has a new euphemism, “Monetization”, over at patent law firms’ news sites. To them, it’s all about the money, never mind innovation, justice and so on.

After Alice, which put an end to many software patents, the monetisers come up with articles like “How to Overcome Rejections Based on the Alice Decision”. Litigation and prosecution, moreover, are described in terms from consumerism, e.g. “Repeated Clients”. What on Earth? Have they no tact. They pretty much show what they stand for and it’s nothing but money in this case. Watch this new example of marketing (“Patent Services USA Offers Inventors Who Conducted Invention Research Elsewhere with Investment Protection Up to $1,200″). Again, all about money…

“What ever happened to the promise of innovation and protecting the “little guy” (or gal, or inventor)?”What ever happened to the promise of innovation and protecting the “little guy” (or gal, or inventor)? Well, that’s all just pillow talk now. The system has been taken over by other interests.

Google wants to control your car along with the State (whatever the state may be) and files/pursues a patent on that. So much for innovation, eh? Big Brother must be very pleased.

“Watchtroll has got an agenda and it’s not even hiding it.”Well, continuing their attacks on PTAB/AIA, as expected and noted here the other day, Watchtroll and chums now pick on Google in the article “How the America Invents Act Harmed Inventors” (yet another PTAB/AIA attack piece, one among many recently). One Twitter account linking to this said: “How the America Invents Act Harmed Inventors – OR, How Google et al Stole Thousands of Inventions.” (Google is mentioned thrice in this article)

Watchtroll has got an agenda and it’s not even hiding it. More than 90% of (tested in courts/boards) software patents on this area (payments) are dead/dying, but Watchtroll is cherry-picking to make it seem otherwise. Another new Watchtroll piece is an attack on PTAB, as usual. Watchtroll is attacking PTAB almost every day now, for PTAB is invalidating software patents in lieu with Alice. In other words, it’s just doing its job and applying (or carrying) justice. How dare these people uphold the law? Resorting to insults like "Impotence", Watchtroll and chums have already turned the site into some kind of attack site (nonstop attacks on PTAB for invalidating software patents in the US, as can be seen almost every day these days over at Watchtroll). Here is another new example, this one from yesterday. If anyone deems Watchtroll (IP Watchdog) a legitimate source of information, now is a good time to reassess and reconsider.

“The title of this new article is “The CAFC finally issues the Planet Blue decision and it’s good news for US software patent owners,” but it could also be typed as “The CAFC finally issues the Planet Blue decision and it’s bad news for US software developers” (because software developers generally loathe software patents).”According to the EPO’s mouthpiece, which is also a longtime proponent of software patents (blatantly so): “The Court of Appeals for the Federal Circuit has issued its long-awaited decision in the McRO Inc., DBA Planet Blue v Bandai Namco Games America et al case. This involved two patents relating to lip synchronisation which had been ruled invalid on Section 101 grounds by the Central California district court months after the Supreme Court handed down its controversial Alice decison in June 2014. Owners of software patents in the US were hopuing that the CAFC would use this case to provide more clarity on the thorny subject of eligibility, and it looks like that has happened.”

The title of this new article is “The CAFC finally issues the Planet Blue decision and it’s good news for US software patent owners,” but it could also be typed as “The CAFC finally issues the Planet Blue decision and it’s bad news for US software developers” (because software developers generally loathe software patents).

Writing in another Web site, here we have another sort of attack on AIA and PTAB (behind paywall). The summary says: “An interview with McDermott Will & Emery partner Bernard Knight Jr., who served as the U.S. Patent and Trademark Office’s general counsel from 2010 to 2013 as the America Invents Act went into effect.”

“They mostly write about PTAB and complain (rudely or politely, depending on their style) about it for trashing software patents (their lifeline which taxes software developers and users).”Yes, because a USPTO insider would be truly objective about Congress enforcing/imposing restrictions on the USPTO? Another lawyers’ site has just written about Inter Partes Reviews (IPRs) at PTAB. It’s quite clear that patent law firms in the US are freaking out. They mostly write about PTAB and complain (rudely or politely, depending on their style) about it for trashing software patents (their lifeline which taxes software developers and users).

In other news, design patents (sort of like software patents) are being advocated by patent maximalists at Watchtroll, i.e. those who profit from them no matter who loses and who wins. Apple patents so-called solutions to problems that aren’t real, unless Utopia for humanity means making phonecalls inside the shower. It also patents non-original designs and then drags companies in the courtrooms over it. Samsung was wealthy enough to insist on appeals and this will soon reach the US Supreme Court. Florian Müller has the latest on that. Earlier today he wrote a long post and concluded: “If the Supreme Court (or Judge Koh on remand) finds that Apple failed to identify the relevant “article of manufacture,” then there won’t have to be another jury trial–and the clear message to the rest of the world would be that rationality has been restored with respect to design patent damages, period.” █