Summary: Firms that are profiting from patents (without actually producing or inventing anything) want us to obsess over and think about the rare and few cases (some very old) where judges deny Alice and honour patents on software

SOFTWARE patents are a dying breed and thus a dying business for patent law firms. They know it, hence they’re angry and vindicative. Some of them even attack judges (the messengers). These patents keep dying both inside and outside the courtroom (e.g. PTAB) in the US, in spite of some USPTO examiners granting them, probably in an effort to inflate some numbers.

According to this patent attorney, “VA Dist. Ct. Killed 8 Wireless Patents under Alice/101: http://assets.law360news.com/0878000/878025/https-ecf-vaed-uscourts-gov-doc1-18917727618.pdf” (deemed abstract and thus ineligible).

We have not seen a single article about this case. None!

What we are seeing, on the other hand, is patent law firms’ sites romanticising/bringing up old cases, like this quick mention of McRO behind a paywall. To quote:

The full Federal Circuit has denied a bid by Electronic Arts and other gaming companies to rehear its September decision that found McRO Inc. software patents for lip-sync animation technology patent-eligible under Alice, according to an order issued by the appeals court Friday.

In other words, nothing is changing. But again, this is one among perhaps four (just 4!) decisions in the whole year when the Court of Appeals for the Federal Circuit (CAFC) ruled not to invalidate a software patent. What about all the rest? What about all those patents (hundreds if not thousands) that PTAB and the courts invalidated? Shouldn’t the patent microcosm inform clients (and potential clients) of the reality?

Mishcon de Reya, the nasty and malicious firm that the EPO hired to spy on/silence Techrights, has just been quoted in relation to the same CAFC case, courtesy of a relatively new site:

Bandai Namco Games America has been denied an en banc rehearing in its cornerstone software patent case against McRO.

All regular active judges for the US Court of Appeals for the Federal Circuit heard the petition and issued their response at the end of 2016.

Mark Raskin, partner at Mishcon de Reya, who is serving as trial counsel in the case, said: “We’re very excited that the entire Federal Circuit has recognised the technical innovations of our client’s inventions and the California cases will now proceed, hopefully expeditiously.”

The McRO case drew a lot of attention with its interpretation of the landmark Alice v CLS Bank decision.

As we noted before, Mishcon de Reya also works for Microsoft and the EPO. It’s hardly surprising that the firm advocates software patents. Another legal firm — one that the EPO hired to threaten Techrights — promotes the UPC.

There is another new article from a law firms’ platform, covering the Amdocs case (also at CAFC) as follows:

An interesting case came out of the Federal Circuit in Amdocs (Israel) Limited v. Openet Telecom, Inc., No. 2015-1180, 2016 WL 6440387 (Fed. Cir. Nov. 1, 2016) in which the Court reversed the district court’s granting of Openet’s motion for judgment on the pleadings on the basis that the patents were not directed to patent eligible subject matter under § 101. This is significant not for the result but for how the Court arrived at its conclusion. The majority and dissenting opinions offer several important insights: (1) the Court is struggling to find the proper “decisional mechanism” for deciding whether a software patent is directed to patent ineligible subject matter; (2) members of the Court continue to suggest borrowing from other sections of the Patent Act to analyze Section 101; and (3) claim construction can be very effective at staving off dismissal based on patent eligibility.

This ‘news’ is more than two months old. Why aren’t these legal firms covering some of the latest? Probably because it’s not convenient for them. It’s not good for their business. █

PM May's view 'We're not leaving only to return to the jurisdiction of the European Court of Justice' won't be true for a long time, if ever https://t.co/Q7MnXNAdcA

— Luke McDonagh (@DrLukeMcDonagh) December 8, 2016

PM May: "The UPC is not an EU court. Let's ratify."

Baldrick: "But the UPC is bound by EU law & CJEU."

PM May: "Shhh, Farage may hear us!"

— Luke McDonagh (@DrLukeMcDonagh) November 30, 2016

Summary: The issues associated with the UPC, especially in light of ongoing negotiations of Britain’s exit from the EU, remain too big a barrier to any implementation this year (and probably future years too)

THE UPC was a big topic, more so towards the end of last year, especially because of Lucy’s ludicrous statement about it and then her resignation/firing, culminating in yet more uncertainty and a limbo. SUEPO correctly (if not belatedly) took note of top posts in the patent microcosm’s sites. On IAM it wrote: “IAM blog’s top 20 most-read stories of 2016 (IAM Magazine, 22 December 2016). EPO info can be found at reference points 9, 11, 15 and 16.”

“A lot of the above articles are actually not about the EPO directly but about the UPC, which Battistelli keeps promoting.”On Kluwer Patent Blog (Team UPC) SUEPO wrote: “Brexit and EPO unrest in top ten of most popular posts Kluwer Patent Blog in 2016 (Kluwer Patent Blog, 01 January 2017). EPO info can be found at reference points 1, 3, 5, 7 and 10.”

As we noted here a couple of days ago, IP Watch too shared some statistics and noted that articles about the EPO topped their list. A lot of the above articles are actually not about the EPO directly but about the UPC, which Battistelli keeps promoting. Battistelli lies a lot about the UPC. According to what he told the media in 2015 (his so-called ‘media partners’ even printed these lies), the EPO was in great shape and UPC would have been a done deal and ready to roll last year. We recently wrote the following series which explains why, as long as the UK intends to leave the EU, the UPC is basically stuck or deadlocked. Brexit and UPC are inherently incompatible. Revisit the following:

• The UPC Scam Part I: EPO-Bribed Media Outlets Lie to Brits (and to Europeans) About the UPC
• The UPC Scam Part II: The Patent Echo Chamber at Work, Prematurely Congratulating Itself in Its ‘News’ Sites
• The UPC Scam Part III: The “Patent Mafia”
• The UPC Scam Part IV: Bumps Along the Road for UPC, With or Without the UK and Brexit
• The UPC Scam Part V: Unitary Patent Regime a Fantasy of Patent Trolls
• The UPC Scam Part VI: The Real Story Which People Missed Due to Puff Pieces Seeded by Battistelli-Bribed Media is That UPC Technically Cannot Come to the UK
• The UPC Scam Part VII: A Fine Mess in the Making, as Nothing Can be Made of It Amid/After Brexit

Towards the end of this series we quoted Dr. Luke McDonagh (University of London’s Law School) quite a lot. He is a UPC sceptic in the sense that he does not believe it can happen and next month he will speak about it, debating with/against the patent microcosm. [via]

“Brexit and UPC are inherently incompatible.”McDonagh is not a patent attorney and he is definitely not part of the patent microcosm, so his input on this subject has been refreshing and valuable. We look forward to his talk and maybe even reports about it (probably not only to be covered by the patent microcosm’s sites). From the description of this event: “At this event Dr Luke McDonagh of The City Law School will launch his new book ‘European Patent Litigation in the Shadow of the Unified Patent Court’ (Edward Elgar, 2016) with a panel discussion on the impact of Brexit on patent litigation in the UK and elsewhere in Europe, with a particular focus on the forthcoming Unified Patent Court and future relations between the UK and EU.”

The book’s description can be found here (first chapter free, as mentioned here before) and to quote from the outline: “Making use of evidence from within the business and legal communities, this book highlights the key issues concerning the new system and examines what the impact of the reforms is likely to be on Europe’s patent litigation system in the near future.”

In its current form, the UPC is in impasse/deadlock. It won’t become a reality unless something quite radical happens. █

Summary: A look at some of the latest spin and the latest shaming courtesy of the patent microcosm, which behaves so poorly that one has to wonder if its objective is to alienate everyone

THE patent reform in the US (AIA, especially after Alice) brought us the blessing known as PTAB, which is responsible for the immediate and permanent elimination of many software patents and the reduction in litigation. It lowered confidence in even more of these software patents (potentially hundreds of thousands of patents).

“”Idiotic”, “impotence”… what next? Will Watchtroll accuse judges and PTAB of rape and pedophilia too?”PTAB continues to scare people who made a living from software patents (not software, just patents). With his habitual insults directed at PTAB, Gene Quinn (Watchtroll) continues to fling criticisms at PTAB, bemoaning the latest decision which he summarises with the word “idiotic” in the image (and IBM’s patent chief actually boosts these people, who also attack judges! See the image at the top!).

“Idiotic”, “impotence”… what next? Will Watchtroll accuse judges and PTAB of rape and pedophilia too? Frankly, these people are a lot more rude than anything we have ever seen and some of those people actually advertise themselves as professionals. “If a machine is patent ineligible bc it is an abstract idea,” Watchtroll wrote in Twitter, “no point in keeping powder dry. The 101 fight is now.”

He wants a “fight”.

“Telling Watchtroll about software development is an exercise in futility; he doesn’t even know how software works.”Well, the Section 101 fight is over. The patent microcosm lost. Most software patents are dying and this is good because, as Benjamin Henrion put it in his reply, “patents also destroyed software development.”

Telling Watchtroll about software development is an exercise in futility; he doesn’t even know how software works. I debated this in length with him and then he chickened out, blocking me in Twitter.

Watchtroll (a front for the patent microcosm, not just one person) is now lobbying Trump to makes Patent Chaos Again (as expected, with lots more of this lobbying to come).

“These have included enabling the PTO to attack patent validity in a second window,” says the article, “attacking classes of inventions such as software and medical diagnostics…”

“PTAB is a lot more professional because these financial incentives hardly exist, which makes their staff more objective.”Nobody is “attacking” and there is no “fight”. As we pointed out here before, the attorney known as Patent Buddy uses words like “survive”, “kill” etc. rather than use terms that don’t pertain to war. The people actually call PTAB a “death squad!” Picture that for a connotation.

Here is Patent Buddy saying about the above case: “In the MRI-101 Invalidation Decision, the PTAB Reversed the Examiner finding eligibility under 103, but not 101.”

Examiners at USPTO have historically been rewarded to just award lots of patents, irrespective of quality or prior art (which can take a long time to assemble and study). PTAB is a lot more professional because these financial incentives hardly exist, which makes their staff more objective.

Earlier this week we found this lawyers’ site claiming that “[t]he tide may be turning in the Section 101 landscape and it is making waves in the patent practice area.” No, it’s not. The patent microcosm lives in wonderland and only pays attention to a few CAFC decisions that suit their agenda. The article says that CAFC’s “latest rulings on the issue—Enfish v. Microsoft Corp., BASCOM Global Internet Services v. AT&T Mobility, and McRO v. Bandai Namco Games America—possibly signal a new direction for patent eligibility in a post-Alice era. On the damages front, the U.S. Supreme Court grabbed headlines with its highly anticipated ruling in Samsung Electronics v. Apple, the first design patent case to be examined by the Court in over a century. Our panel of experts discussed these issues as well as patent trends on the horizon in 2017.”

“There’s no “win”, it’s not a game. It’s also not a “war” or a “fight”.”We actually debunked this just recently (December 27^th), in relation to similar claims about CAFC cases. Less than a handful of cases (less than one hand’s fingers) don’t change years of patent invalidations, including by Judge Mayer, whom Watchtroll is insulting (see above again).

CAFC is soon going to decide whether challenging low-quality USPTO patents (through PTAB) is acceptable, says MIP, noting about a particular case that CAFC “has granted en banc rehearing in Wi-Fi One v Broadcom. The court will consider whether judicial review is available for a patent owner to challenge the USPTO’s determination that the petitioner satisfied the timeliness requirement governing the filing of IPR petitions” (these are the petitions that typically initiate invalidation by PTAB).

Regarding this new article from lawyers’ media, one person wrote, “CAFC vs. PTAB decision discrepancies: Who wins?”

There’s no “win”, it’s not a game. It’s also not a “war” or a “fight”. In fact, most of the time CAFC agrees with PTAB, so the framing of infighting is simply incorrect and inappropriate. To quote the actual article:

Apple Inc. has won at least a moral victory in a fight with the U.S. Patent and Trademark Office over touchscreen technology.

The U.S. Court of Appeals for the Federal Circuit agreed with Apple on Tuesday that the patent office failed to sufficiently explain why Apple’s method for reconfiguring touchscreen icons is unpatentable due to obviousness.

Apple applied for a patent in 2009 on its method of using a sustained touch to activate an icon, which then allows a person to drag the icon to a new location on the screen. A patent examiner found the claim obvious in light of separate prior inventions on sustained touch and dragging. Combining the two inventions “would be an intuitive way” to rearrange touchscreen icons, the examiner concluded and the Patent Trial and Appeal Board affirmed.

This is just one of those exceptions where the CAFC does not fully agree with PTAB and wants the judgment reassessed.

The bottom line is, things are progressing in a positive direction as the US patent system persists in improving patent quality. It’s well overdue. Here we have a new case which “focuses primarily on §101 issues.”

“The bottom line is, things are progressing in a positive direction as the US patent system persists in improving patent quality.”To quote: “The oral argument of the week is MACROPOINT, LLC v. FOURKITES, INC., No. 2016-1286 (Fed. Cir. Dec. 8, 2016) decided by a Rule 36 judgment.”

Those who claim that Section 101 is losing its potency or that CAFC is at war with PTAB or anything like that are being extremely dishonest and typically — if not always — they are the ones directly profiting from these misconceptions/distortions.

Watchtroll and its ilk need to go away or not be taken seriously. Time after time we have demonstrated that the site’s purpose is to attack those who don’t agree (even judges!) and sometimes to organise 'echo chamber' events so as/in which to lobby officials.

Watchtroll is to the patent world what Trump is to civilised politics. █

Summary: Another example of UPC promotion from within the EPO (a committee dedicated to UPC promotion), in spite of everything we know about opposition to the UPC from small businesses (not the imaginary ones which Team UPC claims to speak ‘on behalf’ of)

YESTERDAY we wrote about how the Chairman of the Select Committee promoted the UPC based on false claims. It turns out it wasn’t a one-time thing as this document form the Central Staff Committee [PDF] contains yet another example of misleading if not false claims. The transcript in German says: “Es ist mir eine Freude, Ihnen und dem Engeren Ausschuss zum Abschluss der Verhandlungen zum Einheitlichen Patent als Vertreter des Personals gratulieren zu dürfen. Die Patentprüfer, die zukünftig das Einheitliche Patent prüfen werden, sind hervorragend ausgebildete Ingenieure und Naturwissenschaftler. Viele davon sind promoviert und haben respektable Erfahrung in Forschung und Industrie gesammelt. In ihrer Arbeit sehen sich die Kollegen streng dem EPÜ verpflichtet. Und gerade deswegen freuen wir uns, dass die Artikel 142 bis 149 EPÜ nun mit Leben gefüllt werden. Auch die IGEPA hat sich immer für das Einheitliche Patent ausgesprochen.

“It’s unreasonable to expect that an Office which is run by a notorious tyrant can produce something which serves the public rather than Battistelli and his corporate ilk.”“In ihrer täglichen Arbeit leben die Kolleginnen und Kollegen den europäischen Gedanken. Die Wirtschaftslandschaft in Europa ist geprägt durch kleine und mittelständische Unternehmen. Ein starkes und sorgfältig geprüftes Einheitliches Patent kann dazu beitragen, dass nicht nur die Großindustrie, sondern auch die KMUs davon profitieren. Leider müssen wir beobachten, dass für die Arbeit in den dreiköpfigen Prüfungsabteilungen kaum noch Zeit bleibt. Die Effizienzsteigerungen, von denen Ihnen hier regelmäßig berichtet wird, haben eben auch ihre Schattenseiten.

“Allerdings mag es ja durchaus in Ihrem Interesse sein, meine Damen und Herren, die Struktur des europäischen Patentsystems und der Europäischen Patentorganisation anders zu gestalten. Sie haben mit Artikel 172 EPÜ die Möglichkeit, eine Konferenz der Vertragsstaaten einzuberufen. Vielleicht genügt auch schon eine Konferenz der Minister der Vertragsstaaten nach Artikel 4a EPÜ, die eigentlich schon hätte stattfinden müssen, weil sie ja laut EPÜ mindestens alle fünf Jahre stattfinden muss. Ich kann Ihnen versichern, dass die Kolleginnen und Kollegen dann zu dem Erfolg des Einheitlichen Patents beitragen werden und spreche Ihnen abschließend meinen herzlichen Glückwunsch zu dem erreichten Abschluss aus.”

Automated translations of these paragraph suggest that the above admits “the economic landscape in Europe is characterised by small- and medium-sized enterprises. A strong and carefully tested Unitary Patent can help not only the large industry, but also benefit SMEs.”

However, a year later we know that nothing has changed and the UPC would harm everyone but large corporations (some of them foreign) and patent trolls.

If Team Battistelli is so eager to make the UPC a reality in spite of what the European public keeps saying, then it’s clearly an antidemocratic institution whose nature we shall continue to expose. It’s unreasonable to expect that an Office which is run by a notorious tyrant can produce something which serves the public rather than Battistelli and his corporate ilk. There’s an emergent pattern here — one that EPO staff is too familiar with by now. If EPO becomes an instrument of domination or occupation, then it needs to be overhauled, starting from the top. █

Summary: The UPC is neither desirable nor practical, especially now that the EPO lowers patent quality; but does the Select Committee understand that?

The EPO‘s Web site describes the Select Committee’s mission as follows: “The legal basis for the Select Committee is Article 9(2) of Regulation (EU) No 1257/2012 (“the Regulation”) and Article 145 EPC. The committee has been set up by the 25 member states participating in the unitary patent, to supervise the EPO’s activities related to the tasks entrusted to it in the context of unitary patent protection. The committee’s competences include the setting of fees.”

“According to insiders, Battistelli is trying to replace examiners with machines, paving the way to even worse patent quality.”According to this Staff Committee report [PDF] on the 147^th meeting of the Administrative Council (early 2016), the following statement was made in German by the Select Committee: “Wir begrüßen jeden Fortschritt in Richtung des einheitlichen Patentschutzes. Ich versichere Ihnen, dass das Personal hochqualifiziert ist, um das Einheitliche Patent mit sehr guter Qualität zu prüfen. Wie Sie wissen, werden europäische Patente oft nur in wenigen Ländern validiert. Mit dem Einheitlichen Patent wird es aber in vielen Staaten von uns erteilte Monopole geben. Daher ist es wichtig, dass eine sehr hohe Qualität gewährleistet ist. Ein sorgfältig geprüftes Patent benötigt aber Zeit. Wenn Sie auf Effizienz schauen, sollten nicht nur Produktionszahlen im Vordergrund stehen. Wenn die erteilten Monopole für die Wirtschaftslandschaft in Europa nützlich sein sollen, ist eine unbegrenzte Effizienzsteigerung nicht denkbar. Wir sind daran interessiert, immer besser zu werden. Eine Unterstützung durch IT-Tools ist sicher sinnvoll, aber versprechen wir uns nicht zu viel davon. Recherche und Prüfung muss immer von Menschen gemacht werden, wenn sie sinnvoll sein soll. Software ist und bleibt immer nur ein Hilfsmittel. Beachten Sie also, dass eine Steigerung der Effizienz bedeutet, dass pro Patentanmeldung im Durchschnitt weniger Zeit investiert wurde. Der Patentprüfer hat weniger Zeit für die Bearbeitung der Anmeldung gehabt. Wir sind bereit, zur hohen Qualität des Einheitlichen Patents beizutragen. Hierzu benötigen wir aber eben auch genügend Zeit, und ich hoffe darauf, dass Sie dies nicht außer Acht lassen werden.”

It says something along the lines of “we welcome any progress towards unitary patent protection.”

Obviously, as this is their mission, but the informed public is against it.

“I assure you that Staff is highly qualified to test the Unitary Patent with very good quality,” the above says, but under Battistelli (UPC booster) patent quality already nosedives.

“EPs are being invalidated in courts, yet Battistelli remains unaware of this.”The Chairman of the Select Committee (we assume Jérôme Debrulle) says “it is important to have a very high quality is guaranteed.” Well, that’s already a failed objective. Battistelli ruined the EPO, which certainly cannot be trusted to provide patents with unitary (Europe-wise and beyond) effect in prosecution.

“A support from IT tools is certainly useful,” the Chairman says, “but … research and testing must always be done by people…”

According to insiders, Battistelli is trying to replace examiners with machines, paving the way to even worse patent quality. There’s Early Certainty that Battistelli is losing his mind.

“We are ready for the high quality of the Unitary Patent,” the Chairman says, but what quality is that? EPs are being invalidated in courts, yet Battistelli remains unaware of this. █

Reference: Social democracy

Summary: Orwellian misuse of terms by the EPO, which keeps using the term “social democracy” whilst actually pushing further and further towards a totalitarian regime led by ‘King’ Battistelli

STAFF of the EPO is suffering. Staff representatives suffer even more.

The following Open Letter, published earlier this year, helps reveal just to what extent the union-busting activities of Battistelli have contributed to fear and erosion of staff representation in an institution that, without these safeguards, is basically no better than North Korea, with Battistelli as its “Supreme Leader”. To perfume it a little, Team Battistelli attempted to hijack adopt the term “Social Democracy” (something akin to the term used by Bernie Sanders in the US and in various other countries). Here is the letter in full (except the names of representatives, as they are already subjected to enough abuse from Battistelli and his goons):

Open Letter

Mr Benoît Battistelli
President of the EPO

ISAR – R.1081

Dear Mr Battistelli,

The so-called “Social democracy” was one of the policies introduced in July 2014 under the HR roadmap (CA/39/14), with claimed goals to “fill a legal vacuum, adapt and modernise [the EPO] social framework and provide improvements for a more efficient management of the Office.”..

After almost 2 years of implementing these policies none of these goals have materialised. Quite to the contrary and as pointed out by the AC in its recent resolution, the reality is a social situation that gives reasons for grave concern and has been acknowledged as a crisis, not only internally but by the media and other external, interested circles. The conclusion is that this situation is unsustainable and action will be required to meet the challenges set by the AC in its March resolution.

1. “Social Democracy” has a flawed design

The shortcomings of the “social democracy framework” have been pointed out repeatedly by the CSC and SUEPO, both during the statutory (albeit formally superficial) consultation processes and in diverse publications since its introduction, all to no avail.

A non-exhaustive list of unanswered communications is set out in the Annex.

2. Actual “Social democracy” is even worse than anticipated

Unfortunately, the reality of “Social Democracy” has gone well beyond Staff’s already pessimistic forecast. Just to cite some key points (see the CSC letter to the AC for more details):

- Despite all the promises made, the effective time allocated to Staff representation work has been reduced by well over 50% compared to historical figures (in accordance with Communiqué 49, the framework formerly in place). Internal documents show that this is not an accident but according to plan.

- Despite declarations that the new framework would “enhance the representativity and functions of both the Central and Local Staff Committees, regular arbitrary restrictions on nominations, duty travel and training have led to substantial disruptions to the internal functioning of these staff representation bodies. To summarise, staff representatives have been systematically hindered in organizing themselves in an autonomous, independent manner.

- The existing provisions for filling vacated positions, have not been followed: for instance, Mr Brevier (CSC deputy member from The Hague) has still not been allowed, since October 2014, to replace a CSC full member who resigned, He is still not allowed to dedicate 100% of his time for Staff Representative duties, due to an investigation, initiated by Ms Bergot now more than a year ago.

- Other staff representatives have also been targeted by the same and other investigations, which have already resulted in disciplinary procedures, the dismissal of two elected staff representatives and the downgrading of another one. These sanctions have been perceived as political rather than legal actions and were commented to be unfair and disproportionate disciplinary measures by both the media and the AC.

- Many Staff Representatives have in the meantime resigned because of perceived pressure (threats) from the administration and undue work pressure from their hierarchy. Of those remaining, many have suffered severe damage to their health, resulting in e.g. sickness, depressions or even burn-out.

To conclude, the work environment for staff representatives has become unsustainable. Maintaining the present framework amounts to harassment, is irresponsible and has led to severe damages both to the functioning of the institution representing Staff interests in the EPO and to the health of the individuals acting therein.

3. Negligent, unsustainable and not fit to meet the clear challenges set by the AC

The so-called “Social-Democracy” framework no longer allows the nomination of non-elected staff representatives to any working groups and statutory bodies. This has led to a situation where grooming of new staff representatives and delegation of work are impossible.

Combined with unfilled positions, due to resignations and dismissals, the result is today, that particularly in the big sites, the effective work capacity of available “fully fit and functional” staff representatives has reached an all-time low, which is not compatible with their duty to fully represent staff interests. More pertinently, this has become an issue of great concern in the context of the request made by the AC in its March resolution.

Clearly the situation is not sustainable in the long run and urgent action is required both to protect the health of the individual staff representatives and their capacity to genuinely and thoroughly represent staff interests.

4. Urgent action required: request authorisation to delegate work to non-elected Staff members

In the medium term, an in-depth review of the so-called “social democracy” is not only expected but required. The CSC is of the opinion that essential features of Communiqué 49 should be reconsidered and built in to the framework to overcome the obvious shortcomings of the present framework and render it more in line with democratic, best-practice standards used in similar international organisations in western civilisations.

In the short term, urgent action is required now to redistribute the workload. Hence the CSC herewith requests the President to immediately allow Staff Committees to delegate autonomously tasks to non-elected staff representatives as experts and to provide the necessary time to adequately compensate them.

The Central Staff Committee would like to stress that the Office’s apparent lack of due diligence on this matter, i.e. not following the recommendations outlined above, will continue to seriously jeopardise the announced negotiation process. It constitutes institutional harassment of the staff representation and, if continued, may lead to further complaints.

Yours sincerely,

The Central Staff Committee

We confirm that this letter was legitimately decided and produced by the Central
Staff Committee¹.

_____
¹ Pursuant to Article 35(3) ServRegs, the Central Staff Committee shall consist of ten full and ten alternate members.

The CSC presently consists of 9 full and 8 alternate members, because two have resigned in December 2014, one has been dismissed in January 2016 (against the recommendation of the Disciplinary Committee) and one refused replacement of a full member against Article 7(3) of Circular 355.

One full member of the CSC has been downgraded in Jan 2016 (against the recommendation of the Disciplinary Committee). In fact, the Office has launched investigations and disciplinary procedures against several other Staff representatives as well, affecting negatively their health.

[...]

cc.:
Principal Director 4.3
Members of the WG SR resources
Council Secretariat

Annex:

Non-exhaustive list of communications on the shortcomings and events of the so-called “Social-Democracy”:

- 23/06/2015 social democracy: staff representation dismantling is on track!
- 18/03/2015 [csc] letter to heads of delegation; restoration of social dialogue at the epo
- 08/12/2014 social democracy vs social peace
- 14/10/2014 [csc] battistelli’s “social democracy” – staff representatives banned from attending the administrative council for the first time in the history of the office
- 24/03/2014 letter to the members of the admin. council ” ‘social democracy’ will be quickly outdated”
- 24/03/2014 letter to ac delegations – “social democracy” – mr battistelli’s reform of the staff representation
- 24/01/2014 meeting the president 27.01.14 – social democracy
- 18/12/2013 trias politicabeyond the problems, the way out: “feuille de route” for social democracy by suepo
- 23/10/2014 [csc] the organisation of your central staff committee
- 26/05/2014 letter of vp1 to the local and central staff committee of 26.05.2014 – social democracy in progress
- 02/04/2014 reform of staff representation “social democracy”
- 12/03/2014 opinion of the members of the gac appointed by the staff committee on gac/doc 7/2014 – “social democracy”
- 14/03/2014 report of the 257th meeting of the gac on 4.3.2014 in the hague
- 21/02/2014 letter to mr r. lutz – request concerning “gac 7/14 – social democracy”
- 07/02/2014 social democracy reform of mr battistell
- 05/12/2013 letter to b. battistelli: working group social democracy

The exploitation or misuse of the term “social democracy” is rather gross. There is neither of those two things at today’s EPO. Battistelli does not understand democracy and probably never will. As staff representatives put it earlier this year [PDF] in another context, “President Battistelli has broken an EPO promise to staff to be properly involved in the management process in a Healthcare Insurance Advisory Committee in exchange for the additional risk put on them. President Battistelli seems to dislike advice: not only has he failed to create HIAC, he disbanded General Advisory Committee (GAC) and replaced it with the General Consultative Committee which, although fully populated by Vice-Presidents, is an inferior statutory body when compared to the GAC.”

In other words, Battistelli allows only Team Battistelli, i.e. those totally loyal to him, to decide on matters that don’t even involve them. It’s neither social nor democratic. █

Summary: The latest facts and figures about software patents, compared to the spinmeisters’ creed which they profit from (because they are in the litigation business)

“L

atest [Section] 101 Statistics Show Improved Validity Prospects at Dist. Cts, Not CAFC or PTAB,” said a patent attorney the other day, reinforcing our response to Mullin's article (titled “These three 2016 [CAFC] cases gave new life to software patents”). The reality in the US right now is undeniably bad for software patents, which are being chopped at PTAB’s block and CAFC’s block. Patent maximalists are trying to pretend otherwise and we repeatedly rebut their arguments, only to see these arguments resurfacing over and over again, courtesy of the usual suspects. If the lies are repeated often enough, then maybe prospective applicants (or clients in need of legal representation) will actually believe them.

“The reality in the US right now is undeniably bad for software patents, which are being chopped at PTAB’s block and CAFC’s block.”The other day we saw this new article titled “Assessing USPTO’s Memo On Software Claim Patent Eligibility”; we keep wondering if USPTO officials will become as rational and realistic as US courts. Right now they just strive to rubberstamp whatever they can and those who pay the price for it are both plaintiffs and defendants; only patent law firms profit from it.

“This method of presentation involves storing and processing applications or parts of applications at a user’s local personal computer rather than at a remote server.”
      –PatentDocsAs a side note — although an important note nonetheless — we can’t help but notice that IBM keeps trying to corrupt the system though its former Director, who had worked for IBM beforehand. IBM definitely used to be a (GNU/)Linux friend. Now it’s just an Apple promoter/pusher and a malicious patent aggressor. Yes, IBM has been rather busy going after small companies using software patents. Some of these companies, seeing what a menace IBM is becoming, belatedly turn to PTAB in an effort to invalidate these patents of IBM. Here is one report about IBM’s software patent that will quite likely be invalidated: “The ’967 patent relates to a method for presenting applications in an interactive service featuring steps for generating screen displays of the service applications at the reception systems of the respective users. This method of presentation involves storing and processing applications or parts of applications at a user’s local personal computer rather than at a remote server. This helps avoid possible server bandwidth issues that can be caused by the server being required to serve too much data to multiple users simultaneously. The ’967 patent lists many applications that can take advantage of this method of presentation, including games, news, weather, movie reviews, banking, investments, home shopping, messaging, and advertising.”

This is pretty trivial. It’s akin to caching.

Now watch what David Kappos is cited as saying again. “US is losing the innovation war,” he is quoted by IBM as saying, “to China” (where IBM finds buyers for its failing business units, notably Lenovo).

“Kappos is a paid lobbyist,” Benjamin Henrion noted, “working for patent trolls such as Microsoft or IBM.”

“IBM’s Schecter would know,” I replied, as “he’s IBM’s patent chief ^_^ so [he] has the ‘receipts’…”

What we have here is IBM citing as ‘proof’ a former IBM staff who is now an IBM-funded lobbyist for software patents. Look how dirty (as in dirty play) these people are…

And as if the greater the number of patents, the better… who would be foolish enough to actually believe this?!

“China pushing for software patents,” Henrion noted in relation to another Schecter tweet, “apparatus claims relating to software can contain both hardware and “program” components…” (links to “China Files A Million Patents In A Year, As Government Plans To Increase Patentability Of Software”)

“Kappos is a paid lobbyist working for patent trolls such as Microsoft or IBM…”
      –Benjamin HenrionChina is their new bogeyman. One of these people added: “But USA keeps working on UN-patentability of software. What’s wrong with this picture?”

Nothing is wrong with this picture. It’s a good decision. End software patents, end patent trolls.

“China is plain wrong on this,” Henrion wrote, separately noting (to Marietje Schaake regarding software patents in Europe) that it’s “like the unitary patent lie that it won’t affect software development.”

On a final note, worth seeing is this rant from Watchtroll and 'gang' about end of software patenting (or demise thereof). “Stepping Back from the Cliff: The Year Congress Didn’t Cave to the Anti-Patent Lobby” says the title. They’re currently taking stock of a terrible year for them [1, 2] — a year which saw the demise of patent trolls. Watchtroll continues to attack PTAB for doing its job and we can’t help wondering why IBM’s Schecter treats this like some kind of ambassador for his cause. Does IBM really want to be so closely associated with Watchtroll, who even resorts to attacking judges?

For a more balanced summary of recent events, see “Year in Review: The Top-Five Legal Developments of 2016″ (posted days ago). It has a section about software patents.

“…anti patent trolling would be better, even if trolling is considered pejorative.”
      –Benjamin HenrionThose who are against software patents, notably people who actually write software, are not “anti-patent” as Watchtroll tries to put it. In fact, as Henrion put it, “anti-patent is a gross and blunt exaggeration here. […] anti patent trolling would be better, even if trolling is considered pejorative.”

Patent trolls, in the majority of cases, rely on software patents. Take the latter away to get rid of the former. █

Summary: Selective emphasis on very few cases and neglect of various other dimensions help create a parallel reality (or so-called ‘fake news’) where software patents are on the rebound

“In 2014,” Joe Mullin recalls in a new article (published earlier today), “the US Supreme Court dealt a major blow to software patents. In their 9-0 ruling in Alice Corp v. CLS Bank, the justices made it clear that just adding fancy-sounding computer language to otherwise ordinary aspects of business and technology isn’t enough to deserve a patent.”

“Since then,” he continues, “district court judges have invalidated hundreds of patents under Section 101 of the US patent laws, finding they’re nothing more than abstract ideas that didn’t deserve a patent in the first place. The great majority of software patents were unable to pass the basic test outlined by the Supreme Court. At the beginning of 2016, the nation’s top patent court had heard dozens of appeals on computer-related patents that were challenged under the Alice precedent. DDR Holdings v. Hotels.com was the only case in which a Federal Circuit panel ruled in favor of a software patent-holder. The Alice ruling certainly didn’t mean all software patents were dead on arrival—but it was unclear what a software patent would need to survive. Even DDR Holdings left a teeny-tiny target for patent owners to shoot at.”

“The patent law firms want us to believe that software patents are rebounding or something, even though CAFC invalidates them as quickly as ever, SCOTUS repeatedly rejects attempts to override Alice, and the number of lawsuits involving software patents sank considerably this past year, based on numerous comprehensive/exhaustive surveys.”Ignoring some of the biggest cases of 2016, Mullin then argues that “[j]udges on the US Court of Appeals for the Federal Circuit found three more cases in which they believe that software patents were wrongly invalidated. What once looked like a small exception to the rule now looks like three big ones.” What about that one single CAFC case involving not one but three invalidations, courtesy of the judge some hold responsible for software patents in the US? Here is a new article about it (bumped earlier today):

Intellectual Ventures recently filed for a rehearing en banc in Intellectual Ventures LLC v. Symantec Corp. and Trend Micro Inc. for a decision made in the U.S. Court of Appeals for the Federal Circuit that invalidated three of its software patents. The variety of patents at issue, colloquially dubbed the “Do-It-On-A-Computer” patent, have been increasingly invalidated after the U.S. Supreme Court’s decision in Alice Corp. v. CLS Bank International.

The Intellectual Ventures loss (covered here many times at the time) isn’t the only such loss this year (for software patents at CAFC). We actually covered quite a few other such cases, but the patent microcosm prefers to obsess over just 3 or 4 cases, i.e. less than it takes one hand’s fingers to count. In our humble assessment, Mullin, who is an excellent journalist, fell prey/victim to the endless propaganda from the patent microcosm. The patent law firms want us to believe that software patents are rebounding or something, even though CAFC invalidates them as quickly as ever, SCOTUS repeatedly rejects attempts to override Alice, and the number of lawsuits involving software patents sank considerably this past year, based on numerous comprehensive/exhaustive surveys. █

Summary: Looking at some of the latest promotions of software patents in the US and where this is all coming from (and why)

THE stature of software patents proponents isn’t quite what it used to be (they speak from a position of weakness now) and potency of software patents is at an all-time low. As one legal site put it the other day, a lot of these people now hope that Trump will magically change something (to their advantage). The article states that “Brendan S. Lillis, an associate at Phillips Lytle LLP, concentrates his practice in all areas of intellectual property law, with particular emphasis on patent preparation and prosecution and opinion work in the software, mobile applications and electronic arts.”

“We are generally quite open and frank about the parasitic nature of most patent law firms out there.”The problem is, Lillis works for an industry that profits from litigation and applications that precede litigation. They view things from an entirely different perspective, in the same way that an arms industry views peace negatively (or apprehensively, if they’re publicly polite about it). A legal firm, Banner & Witcoff Ltd, has just given small businesses some really bad advice (to pay legal firms), but what is the point if a small business can barely even afford going to court?

We are generally quite open and frank about the parasitic nature of most patent law firms out there. They pretend to care about “small businesses”, the “small inventor” etc. but all they care about is themselves and huge corporations that bring them the most income (for protectionism). Don’t fall for their marketing pitch!

“Federal Circuit judges spar over software patents,” said the headline from lawyers media the other day. “Will they ever agree?” (behind paywall)

“Notice how, at the same time, pro-software patents sites such as IAM want us to believe that CAFC suddenly loves software patents and things are somehow changing.”Well, in the majority of cases the Court of Appeals for the Federal Circuit (CAFC) rules against software patents, which is all one needs to know. Fenwick & West’s Sachs kept track of pretty much all these cases and generated charts based on these. These charts were very helpful. But what Sachs means by “gift” is software patents. These people are making no (successful) endeavor to hide their agenda/subjective interpretation. Instead of showing some objectivity they are just promoting their own business (profit). They are producing and showing lots of charts and along/between the lines they also interject opinions about whether the outcome is desirable or not — quite unprofessional if this was scholarly work. What they are trying to accomplish at the blog (if it can be called that, as it’s growingly looking like marketing) is squashing of Bilski and Alice. Wolves in sheep’s clothing is what they are and they are exploiting the name Bilski (of the famous patent case) to do this. To quote from their latest post, “Alice Brings a Mix of Gifts For 2016 Holidays”:

As I previously reported, the monthly data showed a drop in the number of invalidity decisions as well as an overall downward trend in the invalidity rate for district court decisions. In December thus far there’s been an uptick in such invalidity decisions (seven thus far) and a few more may issue in the before the year is out. The dotted line above shows the invalidity over three month periods, to smooth out the monthly fluctuations; overall the trend has been downward.

Nonetheless, in October, I cautioned that “I would prefer to see these numbers hold for several months,” because the Federal Circuit “continues to affirm more invalidity decisions than it reverses.” This fact still holds true: there have been nine decisions by the Federal Circuit since October, and they have affirmed ineligible subject matter in seven of them (77%).

Notice how, at the same time, pro-software patents sites such as IAM want us to believe that CAFC suddenly loves software patents and things are somehow changing. They aren’t. That’s usually just agenda disguised as news — something which IAM does a lot of. Therein lies the business model of IAM. █

Summary: The British economy, which is dominated by SMEs, would be greatly harmed by the Unitary Patent if it ever became a reality, but echo chambers of the patent microcosm intentionally misrepresent such businesses and lobby politicians

THE EPO‘s management, led by an autocrat who has promoted the UPC for many years, would like us to believe that the UPC is an SME ‘thing’ (the very opposite is true).

Yesterday we saw MIP, which organised UPC propaganda events (funded by the usual suspects), trying to piggyback Sean Dennehey for UPC promotion. We wish to ensure that Dennehey knows what/who the UPC really is for, as these UPC propaganda events were set up specifically for the purpose of brainwashing public officials. The people who organise and fund such events are chronic liars, as we have chronicled here for a number of years. “Dennehey took on the role of acting chief executive following the Brexit vote earlier this year,” MIP explains, “when the IPO’s former head John Alty moved to the newly created Department for International Trade.”

Dennehey is actually a good guy. Since he took over the UK IPO (or UK-IPO) he has done something useful for a change — something that can help small businesses. He oughtn’t be seduced into the toxic illusion that the UPC would somehow help SME; it would, in reality, harm them the most.

The article from MIP is behind a paywall, but based on what is said about it (e.g. this tweet which says “Sean Dennehey outlines UK’s ‘very firm commitment’ to #UPC in wide ranging interview in @ManagingIP”), Dennehey simply ignores the fact that UPC is not compatible with Brexit and would definitely harm the UK, all for the gain of patent trolls, foreign companies, and their lawyers, which may (not necessarily) be based in London.

Why is the UPC highly unlikely to happen in the UK? revisit this 7-part series:

• The UPC Scam Part I: EPO-Bribed Media Outlets Lie to Brits (and to Europeans) About the UPC
• The UPC Scam Part II: The Patent Echo Chamber at Work, Prematurely Congratulating Itself in Its ‘News’ Sites
• The UPC Scam Part III: The “Patent Mafia”
• The UPC Scam Part IV: Bumps Along the Road for UPC, With or Without the UK and Brexit
• The UPC Scam Part V: Unitary Patent Regime a Fantasy of Patent Trolls
• The UPC Scam Part VI: The Real Story Which People Missed Due to Puff Pieces Seeded by Battistelli-Bribed Media is That UPC Technically Cannot Come to the UK
• The UPC Scam Part VII: A Fine Mess in the Making, as Nothing Can be Made of It Amid/After Brexit

We remind readers that Lucy has just left her job, after she foolishly promoted the UPC, defying logic and even getting slammed for it by domain experts. As this comment from yesterday put it: “And the Baroness is now moving on (to presumably greater things rather than as any disciplinary action). New hand on the tiller? And which direction will the joining go? Steady as she goes, or hard about and head for safe waters??”

Even an ode was put together about this (already!) and it spells out “SACKED”:

S o Lucy lasted 24 weeks at full throttle
A UPC genie needs to be squeezed back in the bottle
C ould be a rolling stone gathers no moss
K ing Batters loses a chinchilla,is mourning the loss
E ager beaver sought to lay the ghost
D id Lady Garden apply for the post?

Sean Dennehey ought to know, based on discussions he had with EPO staff, that not everything he is being told by Battistelli is true. That’s applicable to the UPC as well.

He has already resisted Battistelli in the last meeting (disciplinary procedures ‘reform’ in October) and resisted the exile of the appeal boards last week (latest meeting). The latter vote did not manage to sway the overall balance against countries whose vote Battistelli is allegedly buying, but it sends out the message that large European economies don’t act like chinchillas of Battistelli. They increasingly antagonise this crazed tyrant who is burying the Office and greatly harming stakeholders (like EP holders).

The EPO should actually staff the grossly understaffed boards, but all it does under Battistelli is throwing of interns at them (tweet from yesterday, along the same lines as earlier this month); that’s how Battistelli kills them (along with other measures), some say in order to demonstrate their ‘failure’ (same tactics which are being used against the NHS) and then propose UPC as the ‘fix’. █

Summary: Criticism of the continued, ever-accelerating erosion of patent quality at the European Patent Office (EPO) and shameless attempts by Battistelli to cover it up using money (EPO budget thrown at the media)

THE very few times that IAM merely took note of EPO scandals these mentions became top stories, according to figures published today by IAM’s editor. Shouldn’t IAM take that as a clue and actually engage in journalism, instead of persisting in propaganda for Battistelli? (see above)

“Shouldn’t IAM take that as a clue and actually engage in journalism, instead of persisting in propaganda for Battistelli?”The EPO, as even insiders tell us, continues to grant patents it should never have granted at all. This includes software patents. Even examiners who are against software patents eventually grant them (under pressure) and this new article should make furious anyone who has EPs. Values of EPs erode because patent quality ceased to exist under Battistelli. As the article puts it: “The European Patent Office (EPO) continues to grant many patents relating to antibodies, and in doing so applies the same patentability criteria as to other inventions. However, some commentators have suggested that antibodies are regarded as a special case by the EPO when evaluating inventive step / obviousness.”

For those who are not familiar with this domain, antibodies are (based on Wikipedia) “Y-shaped protein produced mainly by plasma cells that is used by the immune system to identify and neutralize pathogens such as bacteria and viruses.”

“The EPO, as even insiders tell us, continues to grant patents it should never have granted at all.”File this under another case of “patents on life” — a subject which even the USPTO has not been all that gullible about. Does Europe want to privatise or monopolise even fuctionalities associated with biology or the human body (naturally-recurring and found in nature)? Where does this end?

Brian Cronin, a Patent Attorney from the UK (who works in Switzerland now), has just published this article about “European inventive step” and having read the whole thing from Watchtroll (the rudest element of the patent microcosm) we are left unconvinced; nowhere does it mention the erosion of patent quality; instead if repeats the empty claims (from EPO management) of leadership on quality grounds, citing IAM of course. It concludes with this paragraph:

The EPO proudly boasts that it is consistently rated number one for patent quality among the world’s largest patent offices based on user surveys. Patent quality is also a major objective for the USPTO, who are striving to improve their lower user ratings. This article suggests that a contributing factor to the EPO’s perceived high quality is the coherent way inventive step is handled, this involving the institution of examining divisions and use of the problem-and- solution approach by the examiners and by EQE-qualified practitioners. As opposed to this, the USPTO’s lower rating can in part be explained by its piecemeal handling of obviousness and less coherent input. Improving patent quality is a mantra of the USPTO management. If they could take steps to improve the coherence in handling obviousness, improved quality would follow.

At the moment what we are seeing is that the USPTO actually does improve patent quality, resulting in less litigation and abuses, whereas under Battistelli the EPO goes in the opposite direction. Weeks ago an international patent law firm publicly stated that it’s now easier to get software patents in Europe than in the US, in spite of Europe’s ban on such patents. Lawfulness is long gone from the EPO.

When will IAM stop producing lies (whilst receiving payments from the EPO’s PR firm) and when will EPO management stop citing IAM as ‘proof’? We have already given examples where the EPO also bribes mainstream European media for puff pieces, which Battistelli later cites to support his dubious claims. Such is the corrupting influence of the Battistelli-led regime. It corrupts the media as a whole at the (very high) expense of people who apply for and maintain EPs (renewal). █

Summary: The growing embrace of “China” as the convenient bogeyman for those who oppose patent reform and wish to see a resurgence of patent chaos, from which they personally profit at victims’ expense

THE USPTO may be in self-perpetuating denial about it, but software patents are a dying breed in the US as courts don’t tolerate them. The EPO, in the mean time, moves in the opposite direction, but we’ll leave the EPO out of this post’s scope.

Unhappy With Insufficient Number of Lawsuits and Collateral Damage

Paul Morinville, a prominent opposer of patent reform in the US (and part of Watchtroll’s ilk), whines that “PTAB procedures are now invalidating nearly 90% of all patents they evaluate.” Yes, so what? Alice and other cases are pretty clear about it and PTAB, unlike patent examiners, is not being pressured to just bless every patent in the name of “production” or “success” (again, a growing problem at today’s EPO).

Morinville picks on Google (large company as his latest scapegoat) and some of his online friends already heckle me for pointing that out. To quote his article: “Over the next decade, the Supreme Court would eliminate injunctive relief and then for all intents and purposes, invalidate their patents first under Bilski and then under Alice. The courts also changed the way claims were written, thus invalidating thousands of patents retroactively. The America Invents Act’s PTAB procedures are now invalidating nearly 90% of all patents they evaluate. The courts also radically reduced damages for patent infringement.”

That’s good. But wait until Morinville brings up the bogeyman again — the same bogeyman that David Kappos has been summoning recently.

Let’s Envy China

“With China strengthening its patent system,” Morinville says, in probably the most ludicrous part of the whole article. China is actually weakening patents by granting almost everything that comes through SIPO’s doors, causing a patent hyper-inflation and an epidemic of trolling. How is that desirable to anyone but the patent microcosm? These anti-AIA think tanks and lobbyists (like Morinville), who want more lawsuits and more litigation, continue to infest the Web and a lot of them congregate around Watchtroll these days. This pattern of China-blaming or China-shaming mirrors what the Democratic Party in the US has been doing with Russia as of late.

Watchtroll wants the USPTO and the courts to start another race to the bottom and give/approve patents on everything, just like SIPO in China. One might call it “the litigation lobby” — for all it want is more and more lawsuits (which the lobby profits from). Watch another new Watchtroll article, this time by Steve Brachmann, the henchman of Quinn. So people who don’t even develop anything insist that “China” is the threat and that “Chinese patent guidelines” are a threat to the US rather than to China itself.

What kind of post-truth nonsense have we sunk to here?

Watchtroll, in another new article, says “Keep it Cordial” while Quinn attacks everyone who does not agree with him, even judges (see the image at the top).

What a nasty Web site this is. For IBM’s patent chief to occasionally link to it probably takes some guts because it says a lot about IBM, which has gone rogue (even IBM employees now protest/object to the management over that infamous Trump fawning).

China’s Growing Trolls Epidemic

China’s situation with regards to patents is not good. As we have been pointing out since the summer, SIPO grants far too many patents, including software patents. “This is especially true for software patents where the scope of patent protection is rather vague,” says this new article from China, which also mentions Xiaomi, a company that got trolled through India, as we noted before. To quote the relevant part:

As Chinese smartphone brands work to carve out a spot in the major-league global smartphone industry, they are increasingly being dragged into an international patent war with foreign tech firms.

The latest case saw San Francisco-based audio tech firm Dolby Laboratories lodge a lawsuit against Chinese smartphone companies Oppo and Vivo in India, accusing them of infringing on its patented technology. Back in 2014, Chinese tech firm Xiaomi was barred from selling phones in India after Sweden-based Ericsson filed a complaint with an India court alleging patent infringement.

The Ericsson-Microsoft patent trolls strategy (using trolls as proxies) was mentioned here twice this month [1, 2] and Xiaomi is again being mentioned by the Microsoft Windows-powered IAM (with other Microsoft connections). It is again embellishing Microsoft's patent extortion against Linux as follows:

The May agreement between Microsoft and Xiaomi was undoubtedly the IP deal of the year and it was also an excellent example of how patents can play a role in broader commercial agreements. Under the terms of the deal, Xiaomi undertook to pre-load Microsoft products on to more of its mobile devices, the two sides agreed to a cross-licence and the US software giant transferred 1,500 patent assets to the Chinese company. The transaction provides an excellent foundation for Xiaomi as it looks to grow its business in the US and for Microsoft as it continues its penetration of the Chinese market.

This is misleading. All we have here is patent extortion by Microsoft against Linux, even in China where the government of China took a strong stance against it (even leaking a list of Microsoft patents that are secretly being sued to blackmail Chinese companies like ZTE). We believe that Huawei, the world’s leading Android OEM these days, is still able to resist Microsoft’s Mafia-like tactics. Microsoft repeatedly failed to sign a patent deal.

The bottom line is, China has become a dangerous place patents-wise. Is that desirable to anyone but the patent microcosm? Of course not. █

Summary: An incredible little essay signed by Benoît Battistelli, whom some colleagues hold accountable for the premature deaths of (up to) more than half a dozen EPO staff

THE EPO boasts the biggest liar in the world. Sepp Blatter is a Saint and an angel compared to him. The USPTO has some issues, but nobody ever dares compare it to anything like the EPO, where some executives would probably be in prison if they were not above the law. In some people’s views or minds, Battistelli employs terror tactics for ultimate control and he breaks national laws in the process. Yes, even Dutch politicians openly call it that and defend the characterisation with terms like “Gestapo” and “Reign of terror”. It’s almost an objective interpretation.

“Such are the symptoms of psychopathy; Battistelli’s mental state seem to have made him incapable of admitting any errors; instead he attacks anyone who dares tell him the truth, even delegates over whom he has no authority.”Benoît Battistelli is a master of institutionally violent autocracy, yet he pretends to be a victim of violence. He is a master of hypocrisy, lies, etc. while he accuses others of falsehoods. Such are the symptoms of psychopathy; Battistelli’s mental state seem to have made him incapable of admitting any errors; instead he attacks anyone who dares tell him the truth, even delegates over whom he has no authority. May the European authorities do to him what they did to Sepp Blatter, but they probably lack the authority to do so. They cannot even enter EPO facilities without prior permission (e.g. to independently investigate suicides).

And now, as we predicted last night, the EPO’s President shamelessly exploits the Berlin attack (warning: epo.org link). How about victims (fatalities) of the EPO's legal bullying and Battistelli's reign of terror? Did Battistelli fail to spot the hypocrisy? Is he senile or something?

“European Patent Office condemns blind hatred,” he wrote, yet anything Battistelli does seems to be driven by vengeance and hatred. Spot the hypocrisy from this man who turned the EPO into a “reign of terror”. He complains about terrorism now.

Benoît Battistelli speaks of “inclusive society based on fundamental principles of freedom, equality and justice.” Seriously? Signed by Battistelli?

“Says the man who keeps breaking German law and insists it’s OK because he’s enjoying immunity and impunity.”He says “sympathy goes to the victims, their families, relatives and friends.” Except those whose family and relatives Battistelli rebuked after his “Gestapo” drove loved ones to suicide?

“As a symbol of our solidarity with Germany and the German people,” Benoît Battistelli continued…

Says the man who keeps breaking German law and insists it’s OK because he’s enjoying immunity and impunity.

Benoît Battistelli says the “attack will never be able to destroy these principles, nor our values of cultural diversity…”

What principles? Benoît Battistelli must be a sick, demented person if he wrote all the above himself and didn’t merely sign it. He speaks of “tolerance and mutual respect.” That’s like Stalin or Pol Pot speaking of tolerance and mutual respect.

Another new low for the EPO… pass the vomit bag. █

Summary: Rebuttal to some recent articles from sites of (and for) the patent microcosm, or the meta-industry which wants more and more patents (hence more and more litigation)

PATENTS are a two-edged sword and for patent lawyers it means double-dipping. They profit both from the plaintiff and the defendant, or the aggressor and the victim. When people speak of the benefits of patents they often neglect to mention the harms; only one group benefits irrespective of the outcome.

“When people speak of the benefits of patents they often neglect to mention the harms; only one group benefits irrespective of the outcome.”The US, at a national level, wanted so badly to use patents against China and now China is schooling them using their own weapon. As the trolls’ voice (IAM) puts it, “[f]or US patent owners, a key element of their China strategies could be about to get much harder” (I have also heard this personally from an old friend who pursued or at least explored the option as recently as months ago).

The patent strategy of the US is clearly not working. The US is killing its very own businesses — especially small (or local) businesses — and only a growing meta-industry benefits. Watchtroll, part of this meta-industry, is now attacking another politician who does not agree with him and his grubby, money-grabbing hands. We don’t want to entertain IAM or Watchtroll too much (they are the opposition’s voice), but we are hardly surprised by these posts of theirs that border on personal attacks, lobbying disguised as news, and shameless self promotion.

“As one can expect, patent law firms ignore all the decisions they don’t like, then amplify rare exceptions.”Speaking of shameless self promotion, in these times when it’s widely agreed that software patents have become a waste of time and money (after Alice in particular) law firms like Knobbe Martens Olson & Bear LLP don’t want us to know the facts and instead cherry-pick cases to construct a flawed narrative. Hunter Freeman and Seann Patrick Lahey from McNair Law Firm give tips for overcoming a de facto BAN on software patents. Imagine if they gave such tips in areas of criminal law, immigration, etc. (like ways to avoid prosecution for rape/murder). It’s surreal, yet it has become so banal. This banality is now so prevalent that we must not simply ignore it. Here is Morgan Lewis & Bockius LLP cherry-picking PTAB/CAFC cases. As one can expect, patent law firms ignore all the decisions they don’t like, then amplify rare exceptions. Why? To mislead prospective/existing clients. They fight an information war.

“Having been awarded a software patent in 2016 is no small achievement,” says this new press release as if software patents are likely to survive courts like the Court of Appeals for the Federal Circuit (CAFC).

In the “PTAB Litigation Blog”, a blog run by a self-serving firm rather than unbiased observers, more of the expected bias can be found this past week. “The PTAB Currently Places The Burden Of Proof For Claim Amendments On The Patent Owner,” it says (as should be, rightly so). Is there a problem with that?

“It’s typically a sign of one firm’s financial failure if not bankruptcy, resulting in re-employment elsewhere.”Baker Donelson, another person from the meta-industry, is downplaying PTAB IPRs that are being used to invalidate many thousands (by extrapolation) of software patents in the US. Curiously, based on Donelson’s link in his article (IAM-hosted), the author’s employer is being absorbed. “Baker Donelson will combine with the well-respected national law firm Ober|Kaler as of January 1, 2017,” it says. Yet another example of one legal firm collapsing onto another in the post-Alice era? We’re losing count. It’s typically a sign of one firm’s financial failure if not bankruptcy, resulting in re-employment elsewhere. Sustainability of such firms is declining, spurring a panic and frantic attacks on Obama’s patent policy.

Let it be understood that software patents are not potent and CAFC has done virtually nothing to stop PTAB from invalidating software patents even outside the courts. Let it also be clear that the meta-industry (or patent microcosm as it’s sometimes called) created a misleading picture and constructed a parallel reality in order to further its agenda and embellish its bottom line.

“The era of software patents is over and the only opportunity for a rebound might be Justices and USPTO Director appointments by Trump…”See this new report about Verint Systems Inc. v Red Box Recorders that says “Plaintiff Verint asserted six patents against Red Box (U.S. Patent Nos. 7,774,854, 5,790,798, 6,510,220, RE43,324, RE43,386, and 8,189,763) in the District Court for the Southern District of New York. Red Box rebutted, asserting that all claims were invalid under 35 U.S.C. § 101 due to being directed to patent-ineligible abstract ideas.”

That’s Alice and if it’s pursued all the way up to CAFC or SCOTUS expect all these patents to be thrown away. The era of software patents is over and the only opportunity for a rebound might be Justices and USPTO Director appointments by Trump, which is why the meta-industry already lobbies him so unbelievably hard (more on that in the next few posts). █

Summary: The lobby for UPC continues to behave as though the UPC will be a reality “real soon now!” (maintaining an illusion of momentum) even though the reality is rather grim as Britain prepares to exit the EU

THE prevalence and frequency of lies emanating/coming from the EPO (Team Battistelli) and from Team UPC is verging the unimaginable^*. For those who still think that the UPC is just around the corner, read the following recent series of articles:

• The UPC Scam Part I: EPO-Bribed Media Outlets Lie to Brits (and to Europeans) About the UPC
• The UPC Scam Part II: The Patent Echo Chamber at Work, Prematurely Congratulating Itself in Its ‘News’ Sites
• The UPC Scam Part III: The “Patent Mafia”
• The UPC Scam Part IV: Bumps Along the Road for UPC, With or Without the UK and Brexit
• The UPC Scam Part V: Unitary Patent Regime a Fantasy of Patent Trolls
• The UPC Scam Part VI: The Real Story Which People Missed Due to Puff Pieces Seeded by Battistelli-Bribed Media is That UPC Technically Cannot Come to the UK
• The UPC Scam Part VII: A Fine Mess in the Making, as Nothing Can be Made of It Amid/After Brexit
• Memo “Deliberately Leaked to Cover up the UPC” With Its Many Associated Issues Amid Brexit
• Ignore the Bristows UPC Echo Chamber, the UPC is Not Happening
• Another New Book, This Time From Dr Luke McDonagh, Chronicles the Demise of the Unified Patent Court (UPC) Agreement

Unlike Battistelli, Team UPC, etc. we have no vested interest (let alone financial interest) besides the truth. A good analogy here would be the “WoMD” claims about Iraq. Some of these people know they are lying through their teeth (unless they actually believe their own lies), but there’s so much money at stake, so they cannot help themselves.

Germany, based on this one patent law firm, wants UPC and patent litigation to be managed around Germany, but with Brexit here in the UK the UPC is essentially in a deadlock. Here is what the firm said:

Yesterday the draft by the German Federal Government for the implementation of the UPC Agreement was published. In this draft the Federal Government gives some statements on the costs and expected case number. The German Federal Government will invest the one-time sum of €1 million for starting the Central Division in Munich and expects a further €450,000.00 of yearly operational costs. Starting the four Local Divisions is expected to cost about €2 million and additional yearly operational costs of €900,000.00.

An article by Robert Smyth and Todd B. Buck of Morgan Lewis also entertains the UPC right now, in spite of the obvious issues due to Brexit. There were also many comments about it in IP Kat this week and last week, clustered around the usual Bristows UPC propaganda that is so habitually posted in IP Kat these days (the site is used by Bristow for propaganda purposes because nobody reads news from Bristows’ own site). Brexit has effectively made the UPC impossible (for the UK at least, if not all of Europe), but the fantasy lives on and Bristows staff writes:

Yesterday, the UK’s deputy permanent representative to the EU, Shan Morgan, signed the Protocol on Privileges and Immunities of the Unified Patent Court. The Protocol is necessary for the UPC and its judges to carry out their activities. The UK was the final remaining compulsory signatory to the Protocol to sign. The others – France, Germany and Luxembourg – signed the Protocol on 29 June 2016 (soon after the referendum). The UK still needs to pass national legislation to implement the Protocol before it can ratify. This will be done by way of a statutory instrument (SI). The UK’s signature of the Protocol will be recorded on the Council’s website shortly.

Just some words on a Web site (again) won’t remove the obvious legal barriers, not to mention the public backlash that would ensue. Ordinary businesses do not want the UPC; parasitic firms like Bristows do. Bristows is clearly in the propaganda business, not just the patent business. This distortion of facts does the firm no favours. █
______
^* Speaking of EPO lies, see this new EPO tweet linking to an article with sentences like “there were roughly 250 patent applications per 100,000 people” and conflating it with innovation/invention. Only a fool or a liar like the EPO’s PR department would use number of patents (expensive for people in poorer countries) as a measure/yardstick for inventiveness.

Summary: Croatian media helps Battistelli promote the UPC in Croatia, yet the EPO says nothing about it and the subject of criminal charges against the EPO’s Vice-President (Topić from Croatia) isn’t even brought up

SO-CALLED ‘reform’ at the EPO turns out to be a race to the bottom of everything, except litigation (more and more of it). “Residents of EPC contracting states can perform all procedural steps before the EPO,” the EPO wrote the other day, but “not in their language,” Benjamin Henrion responded. In other words, services are getting poorer (we have heard such stories from British applicants who complained that the EPO could not even properly deal with English). Imagine what a mess the UPC would be when it comes to languages — a subject we covered here many times before. It’s one of the main reasons Spain opposes the UPC, which will probably never take off anyway (not in its current form). If people need to hire the patent microcosm for services such as translations, not just legal advice, who is this whole system good for? Surely the middlemen, not the inventors. It’s especially prohibitive — from a financial point of view — to SMEs, which is why they oppose the UPC (don’t believe what the EPO and Team UPC say on ‘their behalf’).

“Quite a few people wrote to us about it, yet the EPO keeps absolutely quiet about it.”The EPO’s lies have become so routine that they’re mundane and banal now. EPO workers hardly believe anything their management says (and rightly so!). In fact, even EPO-friendly media like MIP refuses to accept this latest lie, not a study (commissioned by the EPO and EUIPO themselves, to assess themselves!). “This study by @EPOorg & @EU_IPO analyses the contribution of IPR-intensive sectors to the EU economy,” the EPO wrote a couple of days ago, but what they generally do is attribute the success of any domain where patents are grantable to the EPO and EUIPO, then pretend that they are worth trillions. We already mentioned this lie, which is habitually being used to promote the UPC.

The EPO is meanwhile providing a sort of UPC ‘attack map’, almost as though it’s pitching/speaking to patent trolls and showing off to them just how many companies in how many nations they’ll be able to attack with an EP and one single court ruling (in a foreign language).

Amid all this nonsense from the EPO’s Twitter account there is absolutely no mention and no announcements about Battistelli and his visit to the country where his bulldog is accused of serious crimes, as we first noted yesterday morning. Quite a few people wrote to us about it, yet the EPO keeps absolutely quiet about it. No Battistelli photo ops with Željko Topić’s protectors/successors at SIPO Croatia? Did he meet them to say something?

“This time, for a change, Battistelli did not just dispatch some UPC ‘lobbyist’ like Margot Fröhlinger or Grant Philpott.”Regarding “Battistelli in Zagreb,” one reader told us, “State media servis [sic] of Republic of Croatia – HINA, (www.hina.hr) made [an] interview with B. Battistelli.”

Here is coverage (see screenshot above) other than HINA news about Battistelli in Zagreb.

We waited patiently for more information as quite a few people appear to be talking about it and they are generally disturbed by this for numerous reasons.

“Regarding Battistelli’s visit to Zagreb,” one reader told us having sent more information, “I got this from Croatian sources.” We remind readers that Topić has quite a few enemies (or victims) in Zagreb and they too are eager to see this man facing justice, even arrested like some of his old friends. To quote the information we received:

Battistelli and Topić were guests at the celebration of SIPO’s 25th Anniversary which took place in Zagreb on December 9th.

According to information from sources in Croatia, the preparations for the event took place in great secrecy and the SIPO didn’t make any prior public announcement on its web site.

The celebration was formally held “under the auspices of the Government”, but the Croatian Government refused to contribute financially.

The Assistant Minister of Science Krešo Zadro was sent as the Government representative. This could be interpreted as a subtle diplomatic snub to Battistelli who prefers to have his events attended by top-ranking Ministers.

Sylvie Forbin, a deputy Director of WIPO and Christian Archambeau from the EUIPO also participated.

Unofficial sources say that the SIPO Director Kuterovac got funding for the event from EPO and WIPO.

A puff piece with photos is likely to appear on the SIPO website next week.

Here’s the link to the SIPO website
http://www.dziv.hr/hr/novosti/
http://www.dziv.hr/en/news/

A short report about the event appeared on the Croatian news portal “Panopticum”.
http://panopticum.hr/2571-2/

This report does not mention that Topić was in attendance.

An English translation follows

---

SIPO Celebrates 25 Years

Text: B. Dobrijević

Photo: S. Hoffmann

In Zagreb, on Friday, 9 December 2016, the State Intellectual Property Office (SIPO) celebrated its 25 years of existence. The celebration took place in the NCB under the auspices of the Croatian Government. The introductory remarks at the celebration were made by the Director of the institution, Ljiljana Kuterovac, and there was a welcoming speech on behalf of the Government of Croatia from the Assistant of Minister of Science, Kreso Zadro. The meeting was also welcomed by the President of the EPO, Mr. Benoit Battistelli, the Deputy Director General of WIPO in Geneva, Mrs. Sylvie Forbin, and Christian Archambeau, Deputy Executive Director of the EU Office for Intellectual Property (EUIPO) in Brussels.

We recall that after the establishment of the Republic of Croatia as an independent and sovereign state, it was necessary to establish the appropriate national institutions and, on 31 December 1991, a national body responsible for the protection of intellectual property which now bears the name of the Croatian State Intellectual Property Office was established.

The presence of Christian Archambeau is noteworthy because of his past role at the EPO. We wrote about him before.

Another message we have received says that the underlying/hidden purpose of Battistelli’s visit was UPC promotion. For the uninitiated, there are still many barriers to the UPC (not just Spain, which we mentioned above) and in relation to the UK see our “UPC Scam” 7-part series, plus two short followups:

• The UPC Scam Part I: EPO-Bribed Media Outlets Lie to Brits (and to Europeans) About the UPC
• The UPC Scam Part II: The Patent Echo Chamber at Work, Prematurely Congratulating Itself in Its ‘News’ Sites
• The UPC Scam Part III: The “Patent Mafia”
• The UPC Scam Part IV: Bumps Along the Road for UPC, With or Without the UK and Brexit
• The UPC Scam Part V: Unitary Patent Regime a Fantasy of Patent Trolls
• The UPC Scam Part VI: The Real Story Which People Missed Due to Puff Pieces Seeded by Battistelli-Bribed Media is That UPC Technically Cannot Come to the UK
• The UPC Scam Part VII: A Fine Mess in the Making, as Nothing Can be Made of It Amid/After Brexit
• Memo “Deliberately Leaked to Cover up the UPC” With Its Many Associated Issues Amid Brexit
• Ignore the Bristows UPC Echo Chamber, the UPC is Not Happening

“Battistelli [was] lobbying for Unitary Patent project in Croatia,” told us a reader, citing the Croatian media as proof:

This article which just appeared gives a clue as to what Battistelli was up to in Zagreb.

RH pozvana da se priključi projektu jedinstvenog europskog patenta
(“Croatia invited to join the European Unitary Patent project”)
http://direktno.hr/en/2014/eu/70154

I don’t have a full translation but the gist of it is given by this passage:
“Hrvatska je, uz Španjolsku, jedina zemlja Europske unije koja se još nije priključila projektu jedinstvenog europskog patenta, rekao je u razgovoru za Hinu predsjednik Europskog patentnog ureda Benoit Battistelli i savjetovao Hrvatskoj da zbog razvoja i širenja svojih patenata u EU to svakako učini.”

Translation:
“Croatia, along with Spain, is the only country in the European Union which has not yet joined the European Unitary Patent project , said the President of the European Patent Office Benoit Battistelli in an interview with the news agency Hina he advised that Croatia should make sure to do so in view of the development and expansion of its patents in the EU.”

This time, for a change, Battistelli did not just dispatch some UPC ‘lobbyist’ like Margot Fröhlinger or Grant Philpott. He went there himself and it would be valuable to know if he met some SIPO/government officials to discuss Topić's criminal charges. For a number of years now Team Battistelli went to great lengths to cover this up. Maybe there will be some photo ops and creative writings at the EPO’s “news” section and Battistelli’s “blog” next week (as early as tomorrow). When people search for stuff like “SIPO EPO” or “Croatia EPO” they’ll be a lot less likely to learn about the real story rather than some silly “anniversary” alongside UPC puff pieces. █

Summary: Another long installment in a multi-part series about UPC at times of post-truth Battistelli-led EPO, which pays the media to repeat the lies and pretend that the UPC is inevitable so as to compel politicians to welcome it regardless of desirability and practicability

THE UPC-CENTRIC EVENTS that we are seeing these days, some of which are organised by MIP (Managing IP) and IAM with support from the EPO, are a symptom of a rogue operation. Kluwer Patent Blog, part of Team UPC, continues to lobby for the Unitary Patent in the UK, even when it’s neither doable nor desirable, for reasons we are covering in this long series. Yesterday’s article from Kluwer Patent Blog was titled “Judge Grabinski: ‘Involvement UK is very positive for Unified Patent Court and Unitary Patent’” and it has attracted responses like “No democracy: such amendment would not need a revision of the UPC but could be implemented by the Administrative Com” or “Administrative Committee to replace the role of Parliaments to adapt the UPC in case UK leaves, pretty insane…”

Another part of Team UPC is joining this echo chamber. They are blogging about themselves under the heading “UK signals green light to Unified Patent Court Agreement”. But can they actually do this? No. Not really.

Earlier today we we covered yesterday's so-called 'roundtable' of the USPTO, noting the effect of having events or panels that are stuffed with just one side, barring any opposition from entering or at least speaking. This is what Team UPC has been doing for a long time and many examples were covered here over the years, predating even the name “UPC”. UPC hopefuls write about Brexit and the UPC, but the two are still incompatible. Watch what Darren Smyth, a booster of the UPC, wrote only days ago. Who is he kidding? Following all the misleading coverage from press paid for/bought directly and less directly by the EPO, some people still piggyback the false perception that the UPC will certainly come to the UK. Sorry, that’s not going to happen. Stop living in your bubble, UPC hopefuls…

All those sham debates like the one we wrote about this afternoon may make Team UPC feel confident, but they’re in for a surprise.

“Too many patent lawyers to my taste,” Henrion wrote to us regarding yesterday’s USPTO ’roundtable’. He watched the whole thing and said “Nader was there, but not even a[ny] software developers among the panels.”

Did we ever see any software developers at UPC events? Nope. Just lots and lots of lawyers and sometimes large businesses and executives who hire these lawyers. The EPO also dispatches Margot Fröhlinger to lie to the audience these days. Talk about preaching to the choir… what a pointless exercise in lobbying (to guests like politicians).

“UK government’s intention to ratify the UPC Agreement,” MIP wrote the other day (“Unitary Patent and UPC: A progress report” by Kingsley Egbuonu in London). But that is just meaningless if it cannot be done (it can’t). Here is how Egbuonu summarised it:

The German Federal Ministry of Justice updates Managing IP on Germany’s ratification timeline; IP Federation, BioIndustry Association, EPLAW and the UPC Preparatory Committee respond to UK government’s intention to ratify the UPC Agreement (UPCA); and some of the developments we expect in the coming months

Need we remind readers that MIP, Egbuonu’s employer, is virtually in bed with the EPO? We wrote about half a dozen articles about MIP’s UPC advocacy and relationship with the EPO. Do they really think that the public isn’t seeing this? Do they honestly believe they’re seen as objective observers?

Germany is still needed for intent to ratify the UPC. As Steve Peers put it last week: “UK & DE ratification will bring Unified Patent Court treaty into force treaty: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C_.2013.175.01.0001.01.ENG&toc=OJ:C:2013:175:TOC … ratification: http://www.consilium.europa.eu/en/documents-publications/agreements-conventions/agreement/?aid=2013001 … https://twitter.com/BrunoBrussels/status/803260415425843202 …”

It’s not as simple as that at all. In fact, if it ever gets this far, the population will quickly learn about what’s going on and then point out that these agreements are not constitutional and that the public is not being informed. It’s going to end up like ACTA and TPP.

Even UPC boosters like Darren Smyth wrote: “This does rather increase focus on the question of where is the German ratification? Are they ready to ratify yet?”

See this first comment on Darren Smyth’s cheerleading a week ago: “”pretty much a certainty” is a pretty bold claim in today’s world Darren!”

Here is another comment addressed at Darren, the UPC pusher (see his role in UPC propaganda events nowadays):

Sorry Darren, but “proceeding with preparations to ratify the Unified Patent Court Agreement (UPCA)” does not mean the UK will ratify the UPCA. The ratification is anything but certain.

The move is simply to gain time and to try to have a better bargaining position when the actual Brexit negotiations are starting.

The day UK will sign the protocol on immunities, I will believe that ratification is on its way. Before this, it is just gobbledygook.

In clear it means UPC is further delayed. As long as UK threatens to ratify the UPC, but actually does not do so, the UPCA will be held in limbo. It is meaningless to continue with the preparations if there is no clear will to ratify. The present statement is anything but a guarantee for ratification.

And even if UK would ratify, could any sensible representative advise his clients to go for a unitary patent when it is not clear what the future of the UPC will be once UK has left.

A proper decision on the ratification will not become before the start of negotiations under Art 50 Lisbon. It should be by March 2017, or even later when taking into account the legal battle about the involvement up front of the parliament.

The situation created by this statement is not very pleasant for the remaining contracting states, but that is not to be a surprise. It is like the participation in the EU: we want to participate, not for the sake of being a member, but simply to insure that nothing can happen which goes against our interests.

The only way for the other contracting state to get out the deadlock is to give a time limit to the UK for deciding whether they want to ratify or not.

And it goes on, without exception. Nobody in IP Kat comments has expressed any optimism about the UPC in a post-Brexit UK. The next comment says:

As some other commentators have remarked already, the government statement should not change much for the moment.

Bearing in mind the history of the UPCA and its contents, it is a rather bold claim to say that the UPC was “not an EU institution”. On the other hand, this is pretty much along the lines shown by the UPC proponents from the patent profession. Also, we have repeatedly seen such formalistic sharade being applied in the very same context, e. g. when it comes to the solution on Art. 6-8 or the position of the EPO in relation to unitary patent protection. It is rather characteristic of the project as such, that a government obviously sees itsef forced to rely on positions as weak as these.

Anyhow, the announcement should bring the German ratification procedure back to life shortly. Should it be completed smoothly (which is not certain), I would expect that at least the German ratification instrument will not be deposited until there is a binding solution of the UK ratification issue instead of cloudy declarations of intent.

“I’m forging ahead with my castle-building program for my goldfish,” one person said with the help of a parable, “even though it has been floating on its side for a week.”

“The one about building a castle for my dead goldfish is my favourite,” Tufty the Kat wrote about it in Twitter.

Many people already realise that the UPC bubble is about to burst, no matter what Lucy ("in the Sky With Diamonds") says. Just look at this tweet which seemingly agrees with the comments in IP Kat, even though it comes from Christopher Weber, a self-serving UPC proponent from Kather Augenstein. Recall Lucy with her photo op next to Battistelli -- one that she publicly bragged about. It basically sums it up, does it not? Those two were already pretty close, and one seems to have taken the role of “pawn”. Here is another visual reminder as a photo (or picture) is worth a thousand words:

Dr Luke McDonagh’s remarks in Twitter are also quite noteworthy. Here he says: “PM May: “The UPC is not an EU court. Let’s ratify.” Baldrick: “But the UPC is bound by EU law & CJEU.” PM May: “Shhh, Farage may hear us!””

We know some people who have already contacted UKIP about this and UKIP is aware of the issues. That won’t go down well, will it?

The UPC simply won’t (probably can’t) be ratified in the UK once businesses and people realise what it is and what it can do to them (not for them). McDonagh added: “But leaves UK in a position more enmeshed with EU law than before June 23rd ref; makes hard Brexit yet more awkward…”

“Postpone the difficult questions for later,” one person wrote to explain what May and Lucy do for Battistelli here.

Here is another comment about this unexpected and bizarre move:

What a pointless exercise.

Why should the UK ratify an agreement it may well be forced out of during Brexit negotiations? Is the UK really so naive as to think that the EU is not going to look after itself first?

Without a guarantee the UK should sit still and let the negotiations play out…..

Another person said: “This is beyond exciting. The wheels are still on the bus. It remains to be seen if there is sufficient fuel in the tank to reach the next service station, let us hope the journey is largely downhill and without too many red lights.”

And here comes another: “Wow! A case of the UK sacrificing its UK litigators to help smooth Brexit negotiations? Ratify so as not to block the UPC and then hope (or rather desperately wish) that some fudge deal will be found to allow the UK to participate at some point in the future when no longer an EU state.”

Another one: “Bonkers. Absolutely bonkers. How can we be signing up to the UPC whilst simultaneously leaving the EU and ending the jurisdiction of EU courts over the UK? Nothing about the way Brexit is being pursued by HMG makes sense, but then I guess we shouldn’t expect differently when HMG has been set such an impossible task.”

Like we said earlier, not a single comment is optimistic about this. “So we are going to have UE rights in force across Europe (in the UK) at the time of Brexit,” one person wrote hypothetically. “Will we also get transitional provisions to turn those into UK patents?”

The answer to this rhetorical question is “no”. It makes no sense whatsoever.

“I fear that this is the worst of both worlds for the UK profession,” wrote another person. “I had watched my Trade Mark colleagues who are today in an EU system and who are faced with the prospect of exiting it with a certain smugness until today. Now we have contrived to enter a system that we may need to leave.

“Blinding negotiation tactics too Neville-Rolf!

“Of course it is what CIPA appears to have been pushing for (although who knows what they have been doing really as they move in mysterious ways), either because they are skilled tacticians or terribly naïve. Time will tell which it is.”

Another person called it “Astonishing!”

“Perhaps the conclusion is that this improves the UK’s negotiating position,” this person added, “especially if the court gets well “embedded” in London?

“Not the best outcome for patentees, though. Even more uncertainty added to the UPC (which creates a great deal of uncertainty on its own – particularly during the transitional period). Should be fun working out all of the permutations for this one!”

Now quoting Theresa May herself to highlight the contradictions:

Theresa May. October 2016. Conservative Party Conference.

“Our laws will be made not in Brussels but in Westminster. The judges interpreting those laws will sit not in Luxembourg but in courts in this country. The authority of EU law in Britain will end.”

“We are going to be a fully independent, sovereign country – a country that is no longer part of a political union with supranational institutions that can override national parliaments and courts.”

“But let’s state one thing loud and clear: …. And we are not leaving only to return to the jurisdiction of the European Court of Justice. That’s not going to happen.”

So again, May is contradicting herself. She’s trying too hard to appease CIPA and some law firms.

Then came the epic comment that mentioned Michel Barnier‘s role in the UPC and it is pretty great an observation:

And the roller coaster continues…wow, just wow, haven’t had this much excitement in years, please pass the paper bag, I’m feeling a bit queasy. So according to our illustrious representative for IP, the UK is continuing with its efforts to sign up to a deal that will force sovereignty of the EU court system on its national courts even if it is no longer a member of the EU – can’t imagine how that will go down with the erudite population that so loudly voted to “take back control”…and, in passing, one in the eye for the greedy Italian governement though, eh, thinking its day had come to shine and bask in European institutional glory ? I wonder what Michel Barnier thinks of all this, he was after all, the mouthpiece of the political rationale to cajole the various EU states into agreeing to the UPC in the first place – the mind boggles !

Here is another good comment:

It seems Britain really does want everything: to leave the EU but to remain part of an important new EU patent system (which most of the Europeans outside Germany, France and UK didn’t want anyway). How can it think to ratify the UPCA when is has voted not to be part of the larger EU?
Isn’t this a case of the bureaucratic machinery wanting to plough on when the field has already disappeared in the storm?
Madness indeed and probably a waste of tax payers money..
Sorry to say (as a UK ex-pat lawyer) but the UK government behaving like a big kid that wants to eat the cherries and cream on the top of the cake but has already refused to eat the sponge layers….
A good parent would say, sorry Sweetie but you can’t have it all…

“This is just a pressure release valve,” explained a person, “they had to say something so they’ve said we’re going to keep going. No timescale on actual ratification, or even a commitment actually to ratify.”

And in reply to the above:

I too spotted the absence of a firm commitment to ratify.

If this is simply playing for time, however, it would have been better if the IPO had avoided statements such as “It [the UK] will be working with the Preparatory Committee to bring the Unified Patent Court (UPC) into operation as soon as possible”. If that is not intended to mean what it so clearly implies, then the UK will end up burning a lot of bridges… which would not be the best of starts to exit negotiations with the EU Member States!

So the media, some of it funded by the EPO, missed all these comments from actual insiders who know this stuff. “These are truly astounding news,” remarked a commenter, “that deserve a much wider circulation than the cozy club of patent specialists. But will anyone care in these times that some call “post-truth”?”

Another person asked: “Which department would ratify the Agreement? Is Neville-Rolfe’s or Boris’s?”

Well, they cannot pretend it’s not an EU thing, as the following comment points out:

Perhaps she hasn’t read the opening paragraph of the brochure on the UPC web site helpfully called “An Enhanced European Patent System”

“In December 2012 the Council of the European Union and the European Parliament agreed on two regulations laying the foundation for unitary patent protection in the EU. Shortly afterwards, in February 2013, 25 EU Member States signed the Agreement on a Unified Patent Court (UPC).”

I know she has been busy lately…

Later on another person wrote: “The UPC refers questions to the EU court. So will EU decisions have two incarnations – one ignoring the EU court decisions, and one for continental Europe?”

Still, they cannot simply pretend it’s unrelated to the EU. In the words of another commenter (most are completely anonymous, so there’s no fear or retribution for being honest):

From the official news release: “The UPC itself is not an EU institution, it is an international patent court.”

Ah, sure. Except that Art. 20 of that very agreement you intend to ratify explicitly says that the UPC shall apply European Union law in its entirety and shall respect its primacy, and Art. 21 adds that decisions of the Court of Justice of the European Union shall be binding on the UPC.

I knew we had now entered the post-truth era, but we are now into post-logic territory as well…

What would be funny now would be if Germany started dragging its feet on ratification, to get some extra leverage in the Brexit negotiations…

This UPC-related “announcement was devised by little Baldricks,” said the following, “completely clueless…”

I’m with the commenter “do not pull my leg”.

The announcement was devised by little Baldricks, completely clueless how mainland European minds work, who think they know how to “game” the forthcoming BREXIT negotiations, who have their cunning little plans how to come out of it with the best “deal” for England.

To those infected by wishful thinking I would suggest that the announcement reveals no HMG commitment whatsoever, just more playing for time, by an Organisation that hasn’t a clue what to do next.

Another response to the same post called it “bullshit beside reality!”

A longer direct response said:

our comments suggest that you believe that mainland European minds and English minds work differently? At best that sounds like some mild racism, or possibly you adhere religiously to national stereotyping? Without even appreciating which nations are involved: “Brexit means UK exit”. At least for the time being, the little Baldricks are meant to be devising cunning plans for the best “deal” for the UK.

I entirely agree that the little Baldricks don’t actually have any cunning plans and that HMG hasn’t a clue what to do next. Otherwise we wouldn’t need any announcement before actual UK ratification. Perhaps some political justification was required for the continuance of the ongoing UPC project at Aldgate Tower in London?

Responding to the above, one more person wrote: “Actually, it’s much simpler. HMG needed to give a firm decision at yesterday’s Competitiveness Council, because otherwise other European countries were planning to go ahead without us.”

So the consensus seems pretty clear in IP Kat comments. It’s a shame that the media, led by EPO-bribed publications, missed the real story and instead parroted publications like the Financial Times, obviously unaware of its financial ties to the EPO.

IAM has meanwhile been trying to shame Germany into the UPC. It has done this quite blatantly for a while and Benjamin Henrion wrote that they are “working on a Constitutional appeal in Germany. CETA was in the same process.”

“To the extent that the British public cares,” noted another observer, “this is going to be tricky to explain #UPC,” later noting “I say tricky, I mean it’s going to be highly entertaining to see the intellectual contortions necessary.”

“All [?] legislation for participation in #UPC has passed,” this person said later, “so no time for awkward questions in Parl’t”

Actually, there is plenty of time. Just a statement on some Web site is hardly enough to propel the UPC into a reality.

“This is true,” wrote the mouthpieces of Team UPC (MIP), “although it’s hard to think of a lobbying group that would push the anti-UPC case in UK at this time.”

Wait and watch…

It was the same in the days of battles over software patents.

“So Brexit means Brexit,” IAM wrote, “but maybe it’s going to be a bit softer than the rhetoric suggests. UK’s UPC ratification will create much goodwill.”

For who? IAM and its readers? On a separate occasion MIP wrote “UK to ratify UPC. Huge news for Europe, for global patent litigation & maybe an indication that whatever the rhetoric Brexit will be softish” (either way, Brexit means that UPC would be tricky if not impossible to start/maintain).

There were also some responses from other countries (“#EUCouncil #Compet Good news – UK about to ratify the unitary #patent agreement”), but these fail to take into account practical limitations. Who is this good news to? Patent law firms? Patent trolls? Patent bullies? All the above? At whose expense? And are they just building false hopes?

The real casualty here is the media, which Battistelli continues to corrupt as we wrote this morning. No wonder so many people fell for the delusion seeded by the Financial Times (financial ties to the EPO). █

A Case for Weakening Patent Rights [PDF] (shown above are the first five pages among 70 in total)

Summary: A rebuttal to some new articles about patents, especially those that strive to increase patent-related activities (usually for personal gain)

THE scope of patents in the US has been tightened by the US Supreme Court under Obama, but there is a growing threat — and belief among patent maximalists — that things will change under Trump (perhaps premature to speculate about this). PTAB is at stake, Alice is at stake, and perhaps more aspects related to AIA and the Supreme Court (where vacancies exist for Justices, not just because of Scalia’s death).

According to this new article, the “Supreme Court Patent Cases Haven’t Hindered Diagnostics Innovation, Preliminary Data Suggest” (article behind paywall). They might be referring to cases like Mayo (Supreme Court) and they need to stop conflating patents with innovation. In some cases, not only do patents contribute nothing to innovation but they actually harm innovation.

“PTAB is at stake, Alice is at stake, and perhaps more aspects related to AIA and the Supreme Court (where vacancies exist for Justices, not just because of Scalia’s death).”Gary D. Colby, writing for the New Jersey Law Journal (behind paywall), has just published and repeatedly pushed an article titled “Software Patent Eligibility May Be Informed by Copyright Law”. The summary/outline says “Dissents in two recently decided cases suggest that patent eligibility of “intangible” inventions finds analogies in copyright eligibility.”

Well, software developers want only copyright to protect their code. Many polls/surveys keep showing this, yet the patent microcosm ignores the findings and pretends that software patents are desirable (to the litigation industry they are definitely desirable, but at whose expense?).

As soon as the week started the patent microcosm started commenting on PTAB and “inventorship” (something the lawyers never did, they only speak about it). To quote the concluding part, “until the PTAB rules definitively that inventorship error is not a ground on which PGR may be based, it is our view that failure to raise that ground in a petition will most likely lead to an estoppel on the issue. See 35 U.S.C. § 325 (e). Thus, for now, any PGR petitioner that thinks it might have a possible basis for challenging inventorship better raise that ground in its PGR petition or risk being estopped from later challenging the patent on that basis.”

“Well, software developers want only copyright to protect their code.”The term “inventorship” totally misses the point that patents are granted not necessarily for inventorship. These sorts of fairy tales that are perpetuated ad infinitum in legal blogs do a lot of harm and software patents propagandists (who do not even know how software works!) call reformists the “patent infringer lobby” because they are trying to undermine Alice and the likes of it. See this disgusting latest article from Watchtroll for example. What is this? Is Watchtroll some kind of a troll? A spokesperson for patent trolls?

One last article worth noting was published by Jason Rantanen about the Court of Appeals for the Federal Circuit (CAFC) and it said this:

As expected, for the fiscal year ending on October 31, 2016, the Federal Circuit docketed more appeals arising from the U.S. Patent and Trademark Office than from the district courts. This result will almost certainly hold true for the calendar year as well: from January through October of this year, the Federal Circuit received 471 appeals arising from the district courts and 560 appeals arising from the PTO.

That’s because of PTAB, which is a growing force after AIA (the catalyst that introduced it). Some patent maximalists now use this as an excuse to weaken or lobby to altogether eliminate PTAB, bemoaning the ‘flood’ of appealed PTAB cases (examinations/IPRs) as though it justifies anything but more (new) hirings at CAFC. As is the case with programming (code), sometimes it requires more work to actually remove code than to add/write new code. In this case, what the USPTO needs is less patents, not more patents. It’s worth investing money in invalidation of bad patents. Sometimes less is more (or better quality of patents, higher certainty and so on).

“The term “inventorship” totally misses the point that patents are granted not necessarily for inventorship.”The US is currently in the process of cleaning up a mess created (or culminating) in the David Kappos era and thankfully we now see software patents being invalided by the thousands and patent lawsuits (including the majority of which that are filed by patent trolls) in a freefall.

It’s good for everybody. Except the patent microcosm… █

Excluding voices so as to include more patents (wider scope)

Summary: A look at yesterday’s “Roundtable on Patent Subject Matter Eligibility,” which lacked involvement from those actually affected by patents rather than those who sell, trade, and exploit these

ABOUT 24 hours ago the USPTO tried to pretend to be transparent by broadcasting a debate which was barely open to participation (read only, not read/write). As can be expected from such an event, key voices or views were prominently and conspicuously absent. “HAPPENING NOW,” the USPTO wrote in Twitter“, was a “talk on #patent subject matter eligibility until 4 pm ET today. Watch the livestream…”

“Was there anyone at this debate who does not work for a multi-billionaire like Bezos or some law firm?”How about actually speaking with them rather than being mere spectators? Were there any “real software developers [...] on the panel?” That’s what Benjamin Henrion rightly asked them because, as he later put it, “if you can follow the live stream, not many developers around.”

Daniel Nazer from the EFF quoted Jeffrey Dean of Amazon as saying that Alice invalidates patents that “remove more from public domain than they contribute to the public store of knowledge.”

“It sure seems like a lot of these ‘debates’ are happening in the absence of those whom they affect.”We remind readers that Amazon is among the pushers for software patents. Was there anyone at this debate who does not work for a multi-billionaire like Bezos or some law firm? Where are the actual developers? Their voice does not seem to matter at all when laws that apply to them are discussed. Henrion asked Nazer (not a developer), “are you on the chat?” Nazer never responded, but we’re generally used to this kind of conceited (high horse) attitude from EFF lawyers.

Either way, Henrion streamed the debate into a file and proceeded to YouTube uploads because “[t]he videos don’t play in Chromium, maybe MP4 patented format is to be blamed.” (which would be ironic!)

See herein the debate as it was uploaded, having been divided into four parts:

• USPTO Roundtable on Patent Subject Matter Eligibility (Part1)
• USPTO Roundtable on Patent Subject Matter Eligibility (Part2)
• USPTO Roundtable on Patent Subject Matter Eligibility (Part3)
• USPTO Roundtable on Patent Subject Matter Eligibility (Part4)

“Loved the slide with the big prime numbers multiplication,” Henrion remarked.

It sure seems like a lot of these ‘debates’ are happening in the absence of those whom they affect the most. To the organisers, that’s a feature, not a bug. Bias by design/composition. We see a lot of that in UPC panels/events/debates/consultations and here we have it when patents on software are at stake. Published earlier today by Juristat (targeting “patent lawyers”, based on its own account description) was this slide about “pros and cons of software patents”; well, judging by their Twitter activity, Juristat is more like a Trojan horse that would not tell the complete story about software patents as there are “many more arguments against them,” to quote Henrion’s response, than there are for them (profitable to patent lawyers etc.), as any software developer can probably tell. █

pwn3d by Eponia

Summary: The lies about the Unitary Patent are now being broadcast (Battistelli given the platform) by the publication that Battistelli pays

“SMELLY” behaviour from Battistelli has become so mundane or banal that it usually isn’t worth reporting. It doesn’t merit special attention, but Les Échos is a special case which we wrote about many times before, e.g. in:

• The EPO’s Media Partners Like Les Echos Already Produce EPO Puff Pieces (Marketing/Stenography)
• It Pays (Off) to ‘Bribe’ the Media: Watch How Les Échos Covers EPO Matters and Self-Censors
• French Newspaper Les Echos Censors Criticism of Benoît Battistelli and the EPO (Updated)
• Debunking the EPO’s Latest Marketing Nonsense From Les Échos and More on Benoît Battistelli’s Nastygram to French Politician
• A Look at the Latest Gross Deletionism at the EPO’s ‘Media Partner’, French Newspaper Les Échos
• Echo Chamber’s Lobbying: Team UPC Citing Team UPC as ‘Proof’ Regarding the UPC

“The UPC Scam” series will resume later today and Battistelli’s role in it is clear and is growing.

Here is the latest “blog” post of Battistelli (warning: epo.org link), promoted by the PR people and lying about the prospects of the UPC, as usual. The Liar in Chief took the time to spread UPC misinformation, doing so several days after the very misleading coverage from publications that he bought/paid for directly and less directly. They did this last week, as we mentioned in last week’s articles, and Les Échos too participated in this misleading coverage.

Apparently, one misleading article wasn’t enough as the EPO wants to gets its money’s worth, so now they hand over to the Liar in Chief, again with false predictions (as before, regarding 2016). They are using self-fulfilling prophecies as a method/trick for compelling officials to sell out (wrongly assuming inevitability) and make promises they cannot even commit to (due to constitutional limitations, among other limitations). “Another Mouthpiece EPO Funded Propaganda published by Les Échos,” one EPO insider called it.

Les Échos should be ashamed of itself for being a tool of a vindicative thug, a serial bully, a chronic liar, and the person who is right now the biggest embarrassment to France, according to a growing number of French politicians. █