11.19.16
Posted in America, Intellectual Monopoly, Patents at 2:50 pm by Dr. Roy Schestowitz
Michelle Lee (below on the left) wanted patent reform, but Donald Trump will quite likely crush it
Summary: Another signal that whatever progress was made at the USPTO (tightening patent scope among other improvements) could soon be crushed by a Republican administration
THE US patent, copyright, trademark etc. system is likely to change under the new President. He has some rather notorious experience trying to tilt the trade marks system to his own advantage, being a reckless billionaire who was born very rich and privileged. Protectionism (perpetuating might, power, and money) comes naturally for Trump.
An opportunity to advise the USPTO is reportedly being given, but megacorporations and their lobbyists (and/or lawyers) will surely dominate the proposals and ensure that virtually nothing changes for the better.
“Protectionism (perpetuating might, power, and money) comes naturally for Trump.”As expected, the new President will herald an era for billionaires (like Donald Trump) and their copyright/trademark/patent monopolies. IAM thinks that patent reform will be put on hold. Here is why: “In her keynote speech USPTO Director Michelle Lee predicted that once patent reform did come back on the agenda it would be more targeted than previous, more comprehensive proposals.”
According to this article from IP Watch: “Now in her final weeks in office, United States Patent and Trademark Office Director Michelle Lee today looked back over the Obama administration’s work on patents and made predictions for the next administration due to take over in January. She hailed the outgoing administration’s successes and said to expect a continued focus on a strong IP system, legislative changes on hot button issues but not right away, and continued engagement around the world.”
Here is what Wall Street’s media said: “President-elect Donald Trump’s pick to head the Patent and Trademark Office will likely be very different from Director Michelle K. Lee, who was Google’s top patent attorney before heading the PTO.”
“Under Kappos’ leadership the USPTO granted terrible patents and led to a mess that only in recent years (post Alice, Mayo and AIA) started to improve a bit.”Whoever is picked next, it hopefully won’t be yet another corporate lobbyist turncoat like David Kappos. Under Kappos’ leadership the USPTO granted terrible patents and led to a mess that only the recent years (post Alice, Mayo and AIA) started to improve a bit.
Found via Patently-O prior to all the above was this publication from the USPTO itself (directy).
MIP is meanwhile chatting with the commissioner for trademarks at USPTO. It doesn’t seem like she too will be removed from her position. █
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11.18.16
Posted in America, Europe, Patents at 7:18 am by Dr. Roy Schestowitz
Summary: Another new example of an attempt by large corporations to speak ‘on behalf’ of small businesses and shape patent law for themselves, very much to the detriment of these small businesses
EARLIER this week Benjamin Henrion caught a glimpse and had a go at this letter to Donald Trump (PDF). He said that the “Internet Association speaks about patent litigation for small companies, while none of its members are small” (this can be verified by checking their site). Dimitris Xenos called it a “classic!” and we have made a local copy [PDF] as it’s likely to be removed in the future, making the Internet Association less accountable for these actions.
We have become familiar with and grown accustomed to this tactic (Microsoft has a front group that still does this, for decades now). While the EPO marginalises the appeal boards (if not getting rid of these boards altogether, in preparation for the UPC) we keep seeing the likes of Bristows, principal boosters of the UPC, claiming that the UPC would be good for SMEs (a complete, utter lie, see what SMEs themselves are saying). The firm refuses to give up on the UPC even though without the UK it’s going nowhere. See what it has just published in its increasingly neglected blog:
Following Finland’s ratification of the Agreement on a Unified Patent Court (UPC) on 19 January 2016, the government issued on 26 May a legislative proposal (Bill 87 2016) to enable establishment of a local division of the UPC in Helsinki. The Bill’s first reading in parliament was on 25 October, and parliament approved the Bill in its second reading on 28 October 2016.
It does not mention that Finland — like the UK — might be leaving the EU not too long from now. It’s generally considered to be one of the most likely nations to leave next. Like chronic liars that speak about the UPC’s impact on SMEs, the Internet Association hopes we’ll lose sight of who and what it stands for. The members are all large companies and its just another front group of theirs.
When it comes to patents, shaping everything in favour of megacorporations (like those owned by Trump) is to be expected. It’s MEGA (corporations), not MAGA. Hopefully it won’t be the same in Europe; it is under Battistelli and it’s one among many reasons he needs to leave. █
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11.15.16
Posted in America, Deception, Europe, Patents at 7:51 am by Dr. Roy Schestowitz
Those who profit from war aspire to see more of it (the more, the merrier) and the same goes for patenting
Reference: War Is A Racket
Summary: Patent profiteers continue to mislead the public, even small and cash-strapped businesses, about patents, in an effort to get more and more patents out there, yielding wars (litigation), saturation of weapons (too many patents to keep track of without some dedicated attorneys), and a generally terrible system which rewards aggressors, not innovators that are genuinely productive (construction as opposed to destruction of perceived rivals)
This morning we spotted a very misleading headline, courtesy of Luciano Ricondo from Ladas & Parry LLP. Software patents are not patent-eligible anymore (or hardly so, even if the USPTO accepts them before they reach a high enough court that tosses them out), but this article is just the typical listing of very exceptional cases where CAFC somehow accepted a software patent or two (an appeal can still have these invalidated). Why are we still seeing such articles? Just look who the authors are, they try to sell their services.
A corporate partner at Kemp Little currently sells snake oil, including patents, to cash-limited SMEs that ought to focus on producing and selling products, not reading and producing paperwork. Andy Moseby called this “legal advice for small businesses”, but it seems more like shameless self-promotion that would have small businesses pay a lot of money for lawyers (to receive bad advice that then necessitates more of these lawyers).
“In reality, especially when it comes to code (software), copyrights provide sufficient protection and there is virtually no need for software patents (these are harder to get and a lot harder actually enforce anyway).”Secrecy rather than patents may work better sometimes and considering the breadth of patents out there, it’s more likely that a small company will get sued (or extorted by a patent troll) than be in a position to sue some other company using a patent or two. It’s just expensive and risky. In fact, this new article from Asterion Inc (US) stresses “the advantages of trade secret litigation,” highlighting it as a better option than patent litigation. In reality, especially when it comes to code (software), copyrights provide sufficient protection and there is virtually no need for software patents (these are harder to get and a lot harder actually enforce anyway).
The discussion about software patents in New Zealand, a common ground for lobbyists of firms like IBM and Microsoft, seems to be back with this report about “[p]ossible changes to NZ divisional patent practice”. We haven’t quite heard of it elsewhere, but thankfully, as far as are aware, the country has no software patents or a trolls epidemic — something which there’s a growing number of instances of in Europe (thanks, EPO!) and fewer in the US, owing to much-needed changes at the USPTO.
“The bottom line is, the patent system should restrict patent grants to few ideas that are actually novel and ground-breaking, not become enslaved by the mirage of quantity of patents as surrogate/function of innovation.”A subject which we mentioned not too long ago was the use of machines not only to examine patents but also generate and file patents. A bunch of computers generating patents to be examined by other computers would result in billions of crappy patents that only computers can process (and make no sense of anyway). A Web site called Futurism has just published an article about that (“When an AI Invents Something, It Should be Credited as the Inventor“). Well, patents are a dime a dozen now (low quality), with about 10 million of them in the US alone, so machines are already needed to deal with the chaos/maze, based on this new article from Innography Inc (US). We need stop patent maximalism because it renders the whole patent system too chaotic for people to keep abreast of (even just in their own field/domain) and it leads to a lot of litigation, patent thickets, etc. Maybe one day there will be a proportion of patents that is computer-generated and people won’t be able to distinguish these from ‘real’ patents crafted by actual humans. Then, other issues may crop up, for instance the existence (or inexistence) of an actual investor. Today there’s this new article which says: “Normally, if Client A and Lawyer A have a confidential communication, disclosure of it to a third party waives any privilege. However, if Client A and the third party have a “common interest,” there is no waiver. So, for example, if a licensor communicates with patent prosecution counsel for the licensee about prosecution of a foreign counterpart of the licensed patent, there might be a privilege.”
A system wherein there’s just a bunch of machines talking to one another would completely distort the very notion of innovation. What would be the point of such a system?
The bottom line is, the patent system should restrict patent grants to few ideas that are actually novel and ground-breaking, not become enslaved by the mirage of quantity of patents as surrogate/function of innovation. Only a clueless, antiscientific, deranged individual like Battistelli would make quantity rather than quality the primary goal, while at the same time pondering (allegedly) replacing examiners with machines or giving up examination altogether (so any machine can automatically generate as many patents as it’s capable, even if it’s all gobbledygook). █
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11.14.16
Posted in America, Patents at 4:49 pm by Dr. Roy Schestowitz
Politics being put aside for a moment, except patent aspects alone
Photo credit: Marc Nozell from Merrimack, New Hampshire, USA
Summary: Patent news from the United States, as discussed in several prominent patent blogs over the past week (when news was dominated by Donald Trump‘s election win)
Trump and Patents
THE US political system is in somewhat of a divisive turmoil right now and even today people wonder what this will mean for patents (“The Next Unknown in Intellectual Property“). Based on the appointments made by Trump (so far), it’s going to be more of the same as corporations and lobbyists will steer policy; there is no sign of revolution there.
Here is what Patently-O had to say on the subject: “The question on everyone’s mind is how the patent office and patent system will be restructured once Donald Trump becomes president. Trump has substantial personal experience protecting and enforcing his own trademarks, including attempts to protect more controversial marks such as ‘you’re fired.’ However his businesses have few if any patent rights and have relied on the perception of luxury rather than innovation for their successes.”
Here is what IAM, apologist of patent trolling, said about the subject:
Well, hands up if you saw that coming! For those of us who lived through the Brexit referendum, the idea that polls and betting markets are accurate forecasting tools was shown to be nonsensical months ago; but, even so, Donald Trump’s victory over Hillary Clinton in the US presidential election has come as a surprise to many – we really should have known better.
President-elect Trump will be inaugurated on 20th January, so he has just over two months to get his policy priorities sorted out and his top team in place. Given that he has so much to do, it is unlikely that IP will be at the forefront of his thinking; however, there will be a lot of members of the US IP community wondering what the future will bring for patent, trademark and copyright owners.
Agenda of patent maximalists too continues unabated. Frommer Lawrence & Haug LLP, a law firm, is trying to figure out how to work around the law and get software patents in the US (article by Joseph Saphia and Bonnie L. Gaudette) and Professor Dennis Crouch speaks of the Chevron deference (background here), saying that “[t]his change would breathe new life into Challenges of the AIA Trial system, USITC decisions, as well as a large host of USPTO procedural examination rules and fees.”
In another new article, this one about software patents in Amdocs v Openet, Crouch says:
In the end, I don’t know how important Amdocs will be, but it offers an interesting split decision on the eligibility of software patent claims. Senior Judge Plager and Judge Newman were in the majority — finding the claims eligible — with Judge Reyna in dissent. One takeaway is that the Federal Circuit continues to be divided on the issues. By luck-of-the-panel in this case, the minority on the court as a whole were the majority on the panel (pushing against Alice & Mayo). Going forward, the split can be reconciled by another Supreme Court opinion, a forceful Federal Circuit en banc decision, or perhaps by future judicial appointments by President Trump. I expect 2-3 vacancies on the court during Trump’s first term.
This is where things get potentially troublesome. Over the years we wrote about Scalia’s stance on software patents and now that he is dead no doubt some other Conservative Justice will be installed. People like Joseph Saphia, Bonnie Gaudette, Dennis Crouch and so on certainly hope for a resurgence of software patents. This is bad news for opponents of software patents, notably people who actually develop software. In the imminent future, however, there is nothing that can bring back software patents, based on today’s cumulative outline of SCOTUS cases from Professor Crouch. “Software is a field of technology that is closely akin to mechanical engineering,” said Cohausz & Florack, another law firm without a clue about software and how it works (it is extremely different from mechanical engineering). It’s yet another new rant about the scarcity of software patents or their lost legitimacy in the US.
FRAND
Software patents in the area of telecom continue to be a barrier to startups that use Free/Open Source software to get off the ground, so we must get patents out of industry standards. According to this new article from MIP, however, the plague of FRAND (similar or related to SEPs) is still there. To quote: “What level of royalty fee can be considered genuinely FRAND? There is disappointingly little case law on this question, says David Sant, but a pending case in the UK may provide guidance…”
If these patents are on software, then in lieu with the law the royalty should be zero (with “Z” before RAND/FRAND). Otherwise, bad things would happen not only in the UK but in the whole of Europe.
Speaking of telecom patents, “France Brevets Licenses NFC Patents to HTC,” says a new announcement and China is not tolerating Qualcomm with its SEPs and therefore China benefits. Here is the part about Microsoft's patent blackmail of Xiaomi over its Linux products: “The privately-held company has reportedly run margins as slim as 1.8%, perhaps explaining why its biggest third-party acquisition has been a hybrid licensing deal with Microsoft, potentially allowing it to gain 1,500 patents without a big upfront cash payment.”
That’s nonsense. As we wrote at the time, Microsoft used patents to compel Xiaomi to preload Microsoft malware on millions of products, reaffirming that Microsoft still hates Linux and attempts to destroy it from the inside using patents.
Netflix v Rovi
Back in 2015 there was press coverage about Netflix v Rovi and there is some good news from the US right now. As a credible and good reporter put it (not some patent lawyers), “TiVo’s “TV Guide” patents are DOA at appeals court”. To quote his article:
A five-year-old patent brawl between Netflix and Rovi (now TiVo) has reached a turning point, with the US Court of Appeals for the Federal Circuit upholding a major lower-court victory by Netflix.
The litigation between the two companies began in 2011, when Netflix sued to invalidate a batch of patents on Rovi’s digital entertainment guides, for which Rovi had demanded Netflix pay licensing fees.
The patents described ways of navigating TV and other video content online. Even after Netflix lawyers bested Rovi at the International Trade Commission and then pounded all five patents out of existence at district court last year, Rovi said it would push forward with an appeal.
Now it’s clear that Rovi’s strategy to patent digital TV guides has hit a wall. Just a few days after Rovi’s lawyers made their oral argument, a panel of judges at the Federal Circuit upheld (PDF) the lower court’s decision in its entirety without comment.
As a reminder, Rovi is now connected to the world's largest patent troll, Intellectual Ventures, which is in turn strongly connected to Microsoft and Bill Gates.
Patent Quality
Courts quite certainly are growing tired of software patents and fewer software patents are even brought before the court (probably the more potent among them). The USPTO hosts a “patent quality conference” these days, perhaps realising that quality is a problem after the US Government Accountability Office (GAO) explicitly said so. To quote Patently-O: “The following is reprinted from USPTO Director Michelle K. Lee’s “Director’s Blog.” On December 13, 2016, the USPTO is hosting its next patent quality conference.”
Just hosting a conference about it does not, in its own right, improve quality. One can hope though. As for Trump’s policy on it, this may remain somewhat of an enigma but with more Conservatives at SCOTUS things don’t look particularly promising. █
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11.13.16
Posted in America, Patents at 12:28 pm by Dr. Roy Schestowitz
Summary: A roundup of news about software patents in the face of aggressive lobbying from patent law firms that depend on them
THE STATUS of software patents in the US is very iffy right now. If software patent/s cases are revisited and rulings are appealed a sufficient number of times to reach CAFC (sometimes even SCOTUS), they simply won’t survive. It makes one wonder if patents on software only exist on paper (but not in practice) in the United States and whether it’s worth suing anyone using software patents anymore.
The case of Amdocs v Openet received a lot of attention recently. Patent law firms used it to pretend to themselves (or to clients) that CAFC was softening its stance on software patents, but that’s just wishful thinking — the kind of thinking (or optimism) now embraced by Fish & Richardson PC, a frequent litigator that we covered here a great deal in the past.
“It makes one wonder if patents on software only exist on paper (but not in practice) in the United States and whether it’s worth suing anyone using software patents anymore.”Prof. Crouch recently counted citations of Mayo and Alice (the SCOTUS-level cases) and found that these go through the roof, typically invaliding bad patents by means of precedence. The graphs can be seen in this post. So, if anything, the impact of Alice is growing. It’s possible that only patents with very high certainty of validity would be asserted at this stage; this in effect can tilt the statistics and distract somewhat from the overall trend. What proportion of patents on software would the CAFC deem valid if it had to reassess each and every one of them (there are hundreds of thousands of them, so this is infeasible)?
A very recent article by Grant Langton and Joseph Teleoglou from Snell & Wilmer has a loaded headline: “Software Patents – Not a Waste of Money After All?”
Actually, they are a waste of money, assuming they are abstract and have no merit for a grant (the USPTO would probably grant these anyway because it’s greedy and impatient, unlike the courts). To quote Langton’s and Teleoglou’s shameless self-promotion: “Since the Supreme Court ruling in Alice Corp. v. CLS Bank International, that a specific software algorithm was ineligible for patent protection, rumors abound that all software-related inventions are unpatentable. Although the Alice decision made it more difficult to obtain software patents, clever patent attorneys continued to find ways to secure software patents for their clients. Recently, the Federal Circuit Court of Appeals (Federal Circuit) made their job easier by issuing software-friendly rulings in at least three cases.”
“What proportion of patents on software would the CAFC deem valid if it had to reassess each and every one of them (there are hundreds of thousands of them, so this is infeasible)?”Well, maybe they find tricks or loopholes for tricking the examiners, but what happens if these patents reach CAFC? Less than a handful of such cases this year were ruled in favour of the patent/s — a fact that patent law firms would rather we overlook.
We were somewhat amused to see this pro-software patents attorney reaching out to an old case by writing: “How a TB Diagnostic Test Patent Survived a 101/Alice/Mayo Challenge: http://www.newenglandipblog.com/files/2016/10/75-2016-08-31-Report-and-Recommendation.pdf …”
It’s a PDF that is rather old by now (August) and there is also this new tweet about a decision from July (CAFC). To quote: “Online Merchandise Customization Methods Were Not Patentable–Affm’d by the CAFC w/Rule 36: http://www.chicagoiplitigation.com/2016/07/online-merchandise-customization-methods-were-not-patentable/ …”
Could he not find any recent or new cases with which to bolster such a narrative? Surely not because, as Watchtroll recently put it, more people landed on a moon than patents on software accepted by CAFC (or something along these lines). The latest articles from Watchtroll are still head-scratching nonsense about CAFC (how to bamboozle judges into thinking that software patents are not abstract). Separately, Watchtroll asserts that Trump will give the upper hand to patent maximalists, but there is no evidence to support that with. For all we know, it can take years before anything changes at all. There is political turmoil in the US right now and patent policy is hardly on the agenda at all. It’s nowhere as urgent as Constitutional matters.
“There is political turmoil in the US right now and patent policy is hardly on the agenda at all.”Not only are patents on software fading away these days; patent litigation is, in general, going down. Here is an article with a misleading headline from Michael Loney. The headline should say something like “October patent litigation down for 4th year in a row” (based on the data), but instead it says “US patent litigation picks up in October” (as if it’s reasonable to compare different months of the year). To quote Mr. Loney, “October district court patent case filing was above average for the year, but 2016 is still greatly down on recent years. The entity filing the most cases in the month was a new entity suing broadcasters and publishers, with the EFF already labelling its patent the “Stupid Patent of the Month”…”
Prof. Crouch’s Web site, in the mean time, shows how the growing number of low-quality patent applications affected pendency.
Both data points (Mr. Loney’s and Prof. Crouch’s) serve to reinforce our belief that litigation falls as a function of software patents going away, which is correlated also to the number of troll cases/litigation (they typically use software patents).
Not only the courts are shooting down software patents in their country of origin/birth. PTAB does this too and based on this report, as expected, PTAB is being increasingly influenced by the vultures, the PTAB Bar Association (patent law firms). As MIP put it: “The PTAB Bar Association was announced on September 16 – the five-year anniversary of the America Invents Act. It was founded by more than 45 law firms with the mission “to promote the highest professional and ethical standards among lawyers and stakeholders who appear before the PTAB”. The association, which is incorporated in Virginia and based in Washington DC, will provide a forum for communications between the legal community and PTAB officials and administrative patent judges. The association noted it wants to “particularly share best practices and stay abreast of the rule making, procedure and jurisprudence emanating from the PTAB.””
“Lobbyists and bullies like Watchtroll keep shaming judges and boards, PTAB itself is being infiltrated and vilified by them, and just about every dirty trick in the book is attempted these days in a desperate last effort to Make Software Patents Great Again.”Think of the PTAB Bar Association as an annoying bunch of lobbyists — people who represent the interests of patent maximalists such as law firms, not scientists like those who work at PTAB. We worry that the growing and escalating veracity of attacks on PTAB's legitimacy can eventually ruin it. Attempts to undermine PTAB have already been brought before the court (CAFC), but fortunately these are failing yet again. Prof. Crouch’s blog has put it like this: “Today, the Federal Circuit denied SAS’s en banc request challenging the USPTO’s approach to partial-institution of inter partes review petitions. In a substantial number of cases, the PTO only partially agrees with the IPR petition and thus grants a trial on only some of the challenged claims. In the present case, for instance, SAS’s IPR Petition challenged all of the claims (1-16) found in ComplementSoft’s Patent No. 7,110,936, but the Director (via the Board) instituted review only on claims 1 and 3-10. [...] In what appears to be a 10-1 decision, the Federal Circuit has denied SAS’s petition for en banc review. Although the majority offered no opinion, Judge Newman did offer her dissent (as she did in the original panel decision).”
We oughtn’t take the death of software patents for granted. Lobbyists and bullies like Watchtroll keep shaming judges and boards, PTAB itself is being infiltrated and vilified by them, and just about every dirty trick in the book is attempted these days in a desperate last effort to Make Software Patents Great Again. █
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Posted in America, Asia, Europe, IBM, Microsoft, Patents at 11:44 am by Dr. Roy Schestowitz
Also see: The Former Chief Economist of the EPO Warns That Battistelli’s Implicit Policy of Lowering Patent Quality (for Quantity) Will Bring Patent Trolls to Europe
Summary: A roundup of news about patent trolls, in particular their growth in east Asia and growing interest from parasitic firms like IBM and Microsoft (which have not so much left but a pile of software patents amassed in past years)
CHINA’S SIPO, which the EPO‘s President got close to (and increasingly imitates both in terms of degrading labour standards and poor patent quality), is becoming the generator of the world’s biggest platform for patent trolls. We have been pointing this out for a number of months now. It’s a harrowing scene because it means that an epidemic that (thus far) was almost exclusive to the US has spread like a pandemic to the world’s largest population.
A new article from John Collins and Steve Lundberg (yes, that crude software patents booster from Schwegman Lundberg & Woessner) is titled “Barrier to Business Patents Softening in China” and it reveals that China — like today’s EPO — encourages more patents irrespective of their quality and it already attracts patent trolls that utilise software patents. Has China learned nothing from the mistakes of the United States — mistakes that even government departments now openly speak of?
According to IAM, a site exceptionally sympathetic towards patent trolls (some of them pay IAM), says that “Qihoo 360 was actually the first company to have a GUI design patent granted.” Now it’s a highly litigious company, IAM says. With software patents, as expected, come the patent trolls to Asia, where patent quality nearly got abandoned (same mistake which the US had made). Here is another new example from IAM, though it does not use the “T” word. These trolls operate not only in China and as we pointed out before, some of them now go abroad and sue Western companies in plaintiff-friendly courts like those in Texas. They will certainly come to Europe as well, in due course. At the EPO, as we have repeatedly demonstrated, patent examination is too lax/lenient — a recipe for disaster for existing EP holders, if not future ones too. According to this tweet from the EPO: “Luis Ignacio Vicente del Olmo of @Telefonica : “The number of patent applications is increasing” #EPOPIC pic.twitter.com/BcmVRxswtD”
Does that mean more innovation or aggressive patent thickets that lock the ‘small guy’ (or business) out of the market?
As another EPO tweet put it the other day: “Luis Ignacio Vicente del Olmo: ” A smartphone may include more than 5000 patent families” #EPOPIC”
Wonderful! “Luis Ignacio Vicente del Olmo speaks about new challenges for IP as a result of the new technological paradigm,” the EPO says, adding that: “Luis Ignacio Vicente del Olmo of @Telefonica talks about trends in #ICT sectors & transparency of patent data #EPOPIC pic.twitter.com/wApNe223C1″
Some of that data comes to and from Asia, as this tweet notes: “Luis Ignacio Vicente del Olmo: “The European market is very attractive to companies outside Europe like from Asia & the US” #EPOPIC”
So how long before Chinese patent trolls come to Europe, even without that UPC (which would greatly assist them if it ever became a reality)?
IBM, which is already suing small companies using software patents, seems to salivating and drooling over litigation in China. See this tweet from IBM’s Manny Schecter, boasting that “China’s patent-lawsuit profile grows. http://www.wsj.com/articles/chinas-patent-lawsuit-profile-grows-1478535586 … via @WSJ” (article here but with limited access to non-subscribers).
“When a Canadian patent-licensing firm wanted to sue Japanese electronics company Sony Corp., it chose an unlikely venue: China.” That’s what the report says. IBM already sold quite a few pieces of its business to China and we can envision IBM trying to impose patent licensing deals in China, if not lawsuits too (for those not sufficiently ‘obedient’).
According to this new article from Liu, Shen & Associates, the notion of obligatory patent tax has already spread to China. “Standard essential patents have long been a hot topic in China,” they argue. “Hou Guang and Jia Hongbo of Liu,Shen & Associates explain the history and analyse recent developments…”
Standard essential patents (SEPs) block the use of Free/Open Source software (FOSS) and much more. IBM used to lobby for this kind of mess in Europe and look where it led to; rather than stop SEPs/FRAND IBM told the European authorities that software patents promote FOSS innovation (which is of course a lie).
Design patents in Taiwan (arguably part of China, depending on who one asks) are discussed in another new article. Japan and China phased in this nonsense, as we noted the other day and sooner or later we expect China to overtake the United States in terms of patent trolling, including trolling in places/parts of the US where litigation is ubiquitous and low-quality patents are routinely tolerated (not just Texas, the trolls’ capital). See this article titled “As litigation increases, China follows Japan in exploring state-subsidised IP infringement insurance”. It says that “[p]atent authorities in both China and Japan have recently brought forth proposals for patent office-subsidised IP infringement insurance. SIPO says it will focus on offering protection to Chinese companies expanding outside the country, while the JPO anticipates local SMEs using its insurance product both offensively and defensively in China. As litigation increases in China, and more Chinese companies expand abroad, companies throughout the region need all the IP risk management tools they can get.”
What a total waste of resources and energy. They handicap their own economy.
Over in the United States, says this article from IAM, Rockstar (a patent troll connected to Microsoft) pursues more shakedown, even though the FTC deemed this damaging to the country. IAM, being the trolls’ apologist that it is (or denier of patent trolling), attacks the FTC’s study which bemoans patent trolls (for the second time in less than a month!) and says this:
One of the significant outcomes of the Federal Trade Commission’s recent report on patent assertion entities (PAE) is that it very clearly differentiated between two types of licensing business.
On the one hand there were the litigation PAEs, who use the threat of infringement litigation to drive a large volume of low-dollar settlements. They, it was strongly implied, largely engage in the kind of abusive practices that many in the patent community criticise and drive a high number of lawsuits.
We are increasingly convinced that IAM is very eager, with money from Microsoft-connected patent trolls on its table, to see patent trolls go global. IBM too seems to like the idea, as the company has little left other than a pile of patents (same as Microsoft). Some companies are simply transforming into megatrolls; see what Blackberry does in Texas because its products are failing to sell. █
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11.07.16
Posted in America, Asia, Patents at 2:42 pm by Dr. Roy Schestowitz
Identify the patterns of patent trolling to effectively combat them
Summary: The latest examples of patent trolls around the world and a report about their activity or what fuels their growth (mostly software patents)
PATENT trolls thrive in countries that have software patents. It started with the USPTO (US), it later started to happen in the EPO (Europe), and it is already becoming an epidemic in SIPO (China), as we repeatedly warned in recent months. There are several reasons for this correlation and we explained these before.
Software patents are the weapon of choice of patent trolls in almost all cases (some say 70%). “Of the 16 patent lawsuits filed today,” wrote United for patent Reform the other day, “11 were filed by patent trolls — 69%. It’s time for Congress to take action to #fixpatents!”
They are right, but they suggest a fix that tackles trolls themselves, not the patents they tend to rely on. One part of the solution, whilst also pursuing end of all software patents, was mentioned by the EFF the other day when it wrote: “This bill would close the venue loophole in patent lawsuits. https://act.eff.org/action/fight-patent-trolls-support-the-venue-act-of-2016″
This mostly deals with the pattern of patent trolls choosing Texas. It does not deal with trolling itself or the type of patents that they usually buy to use against a large number of companies, especially small ones that cannot afford going to court. Vera Ranieri from the EFF very recently published the article “A Bit More Transparency in Patent Lawsuits” and in it she wrote:
Should patent lawsuits filed in federal courts be hidden from the public? We don’t think so, especially where a patent owner may be suing multiple people based on the same claim. Apart from the general principle that legal processes should be open to the public whenever possible, as a practical matter sealed filings prevent other people under legal threat from the same person from learning information that may be crucial to their own defense.
That’s why we were concerned when we noticed that numerous court filings and at least three court orders were made entirely under seal in a patent case. We contacted the parties to the lawsuit, Audible Magic and Blue Spike, and asked them to file public versions of significant court filings, redacting only information that was truly confidential. Audible Magic quickly agreed to EFF’s request. However, Blue Spike opposed it entirely, forcing EFF to intervene in the case and ask that the court order the filing of public-redacted versions of the sealed filings.
The court granted EFF’s motion to intervene and our motion to unseal. The court ordered Audible Magic and Blue Spike to submit redacted versions of any document a party wished to keep partially sealed. Again, Audible Magic quickly complied. The documents revealed, among other things, that Blue Spike had not created a product it advertised, called the “Giovanni Abstraction Machine,” despite Blue Spike’s public statements indicating otherwise. We also discovered allegations that Blue Spike’s owner, Scott Moskowitz, took the technology that formed the basis of some of Blue Spike’s patents from company called Muscle Fish,1 and therefore shouldn’t have gotten those patents in the first place. (The parties settled before trial, thus leaving the question of Moskowitz’s alleged misappropriation, and also the related validity of Blue Spike’s patents, unanswered.)
This is a very famous (or infamous) case and it’s one among many cases that EFF speaks about it, directly or indirectly. The focus on trolls at the EFF was very prominent last month [1, 2, 3], but also at the end of the month it published this article (cross-posted in TechDirt) about stupid software patents. Here is the latest ‘winner’:
Stupid Patent Of The Month: Changing The Channel
Is somebody really claiming to have invented a method for switching from watching one video to watching another?
This question comes from a lawyer at the New York Times, as an aside in an interesting article about the paper’s response to a defamation threat from a presidential candidate. Apparently, that defamation threat distracted the his legal team from their work on another task: responding to a patent troll. Intrigued, we looked into it. The patent troll is called Bartonfalls, LLC and its patent, U.S. Patent No. 7,917,922, is our latest Stupid Patent of the Month.
The patent is titled “Video input switching and signal processing apparatus.” It includes just two pages of text and, as the title suggests, describes an apparatus for switching between channels that come from different inputs (e.g. between cable channels and free-to-air broadcasts). The patent is directed to the equipment found in and around a 1990s television (such as VCRs, cable converters, satellite tuners). It does not even mention the Internet.
What’s noteworthy here is that again (as usual) we’re confronted with the description of a ‘pure’ software patent. It should never have been granted in the first place. It gave ammunition to trolls who produce nothing and sue everybody.
Over in Japan, based on what IAM says, patent trolls try to paint themselves “medical”. It’s the same trick which is so often used by the world’s largest patent troll, Intellectual Ventures, in order to pretend not to be a troll and to actually have something to offer to society. The corporate Japanese media (English-speaking) has just published “Outdated Design-Patent Laws Thwart Progress”, signaling a sort of worrisome imitation of the USPTO (where design patents are now poised to come under Supreme Court scrutiny).
Over in China, based on some other reports [1, 2], there a bubble of patents in the making. IAM gets rather excited about China’s SIPO becoming a cesspool of crappy patents, including software patents. Based on this one new report, a WiLAN subsidiary hits China, showing that companies from North America now run after everyone and everything in the Land of the rising Sun (Japan) and its much bigger neighbour. Patent trolls in China are not a new ‘thing’; but right now they gain a foothold and it’s a cause for concern because the EPO collaborates with them quite a lot. In fact, SIPO is like the role model of Battistelli, who doesn’t mind the quality of patents, just quantity (or short-term profit). Here is an IAM article that mentions software patents in China as though they’re desirable (IAM is a longtime booster of software patents). To quote:
Last Thursday, China’s State Intellectual Property Office (SIPO) published new draft guidelines for patent examination. Amid tweaks that will be greeted by pharmaceutical innovators, there are also changes to the standards for software patenting that should be a boon to companies seeking protection for computer programmes, something that has been increasingly difficult to obtain in the US and some other markets. SIPO says the measures are driven by “urgent demand” from innovative industries. It is the latest reminder that in the post-Alice environment, many observers say software protection is easier to obtain in China than in the US.
The USPTO’s senior counsel for China, Mark Cohen, drew attention to the proposed new rules in a blog post last week, saying that they “appear to loosen the standards for obtaining software enabled inventions”. According to Cohen’s translation, a section of the Patent Examination Guidelines which asks applicants to describe “which parts of the computer programme are to be performed and how to perform them” is amended to add that “The components may not only include hardware, but may also include programmes”. If adopted, the guidelines would also make it easier to obtain business method patents, as they provide that: “Claims related to business methods that contain both business rules and methods and technical characteristics, shall not be excluded from the possibilities of obtaining patent rights be Article 25 of the Patent Law.”
The IAM Weekly E-mail, distributed on November 2nd, mentioned this as well and said:
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IAM Weekly
Editor's round-up
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The death of software patents has been greatly exaggerated, at least
in China and the United States. On the IAM blog this week, we reported
on new examination guidelines at the Chinese State IP Office which
seem to indicate that it will be easier to get protection for
computer-implemented inventions in the country than it has been thus
far. Meanwhile, in an exclusive article the former chief patent
counsel at Microsoft explained why it has been a very good six months
for US software patent owners. The European Commission has just
released a detailed report on patent assertion entities which
concludes that troll-like behaviour is unlikely to be seen in Europe
for a number of reasons, including the preponderance of high-quality
patent rights and comparatively low litigation costs. Elsewhere, we
looked at Hillary Clinton’s IP policies and focused on a major
BlackBerry licensing deal in Asia. There was news, too, of
confidence-boosting third-quarter results from InterDigital, as well
as claims from its CEO that a recently launched Internet of Things
licensing platform could deliver significant revenue boosts in the
near future.
Joff Wild
Editor
IAM ‘magazine’ is meanwhile grooming yet another patent troll. It started last week and we expect to see more of that from IAM, which is now actually receiving money from some infamous patent trolls like MOSAID/Conversant.
One more item of news regarding patent trolls came from the trolls expert, Joe Mullin (who has written about them for about a decade). He decided to dive into the dark operations of ArrivalStar and here is what he found:
Since 2006, hundreds of US businesses have received letters informing them that they infringe patents belonging to Martin Kelly Jones, who briefly ran a business called “BusCall” in the early 90s. The Jones patents, owned for many years by a company called ArrivalStar, have been called out repeatedly as one of the most egregious examples of patent abuse.
ArrivalStar sent out hundreds of demand letters, often targeting small companies that couldn’t hope to afford a drawn-out defense of a patent infringement suit. It also took the unusual step of suing public transit agencies, saying their bus-tracking systems infringe Jones’ patents. The patents were moved into a new entity called Shipping & Transit LLC last year.
Jones and the lawyers who work with him have squeezed royalty payments from over 800 companies over the years, but little has been known about him, outside the short explanation included in the demand letters he sends out. Now, Jones has made what appear to be his only public comments since his inventions launched a decade-long campaign of lawsuits, in statements to The Wall Street Journal.
It’s sad to see that patent trolls are still treated with some level of recognition and companies like IBM have begun acting more like them (assimilation) because all they have is a huge pile of patents. Here is Manny Schecter from IBM saying that “If apple slicer for eye-appealing apple slices (US9427103) is eligible for patenting, so too should be software…”
MinceR from our IRC channels said that’s “pretty weak argumentation” and Toby agreed, saying that he too noticed.
As if one bad patent supports another… what utterly poor logic from Mr. Schecter. People elsewhere have responded to this tactless tweet of his.
Speaking of patents that are too problematic to defend, how about patents you’re not allowed to get away from, or SEPs as they’re sometimes called (a tax on any implementation with conformance)? It is truly an abomination w.r.t. the raison d’être of patent systems, yet here is MIP writing about it, calling it a “conundrum” rather than a travesty.
Negotiations over patent licensing are tricky. One bad sign is if parties start discussing standard-essential patents in detail
Michele Herman of Metabl and Richard Taffet of Morgan Lewis staged a mock negotiation yesterday as part of the session called “The Nuts and Bolts of Licensing: Strategies for Negotiating to Yes.”
Negotiations over patent licensing are tricky enough. But Herman said it’s a bad sign if parties start discussing standard-essential patents (SEPs) in detail.
In the case of SEPs, there are already many trolls and parasites out there (like WiLAN, which now expands to China). When does the patent system become simply an obligatory tax authority rather than a system where one can license to copy (having found something innovative), rather than comply/adhere to industry standards? RAND/FRAND also comes to mind. █
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Posted in America, Patents at 1:46 pm by Dr. Roy Schestowitz
But these are only about 10% of all cases (can be counted with the fingers of one hand this year), i.e. still the small if not minuscule minority
Summary: A roundup of District Court and Court of Appeals for the Federal Circuit (CAFC) news regarding software patents
HAVING just covered the good news, namely the decline/descent of software patents, now come the less convenient news, or the news that can throw a wrench at the party if one blindly believes the spin that accompanies the news. The ascent of Alice since 2.5 years ago profoundly changed everything in the domain of software patenting. It’s not hard to see why and it’s difficult to argue against it… unless one is a paid lobbyist like David Kappos, former USPTO Director.
First we have the case of Evolved Wireless, LLC v Apple Inc., a District Court (not Texas for a change) where the patents were ruled not ineligible. Here’s the gist of it:
The court denied defendants’ motion for judgment on the pleadings on the ground that plaintiff’s wireless communications patents encompassed unpatentable subject matter because the claims were not directed toward abstract mathematical algorithms
If this decision is appealed and reaches CAFC, expect the patents to die. Just look at CAFC’s recent track record. It’s as hostile as can be toward software patents and a key judge, the one responsible for software patents’ emergence, changed his mind and slammed software patents in a key decision involving the world’s largest patent troll, Intellectual Ventures. We already published several articles about this historic decision.
Meanwhile, says this patent attorney, “US Pat 7,412,510, Software Patent Survived Alice at the CAFC” and another proponent of software patents says “inexplicably CAFC did NOT kill this claim under 101: “computer code … to enhance” an accounting record http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1180.Opinion.10-28-2016.1.PDF … HOPE YET??”
What they hope for is that CAFC will change its course and stop “killing” (their term for invalidation) software patents, but they’re cherry-picking cases most of the time. It lets them shower potential or existing clients with dangerous optimism.
Michael Loney, writing from New York, says that “Federal Circuit finds software claims patent eligible for fourth time this year,” but four in a year is not much. To quote Mr. Loney:
“There is no such single, succinct, usable definition or test” for defining an abstract idea, the Federal Circuit said while allowing a software patent to survive a Section 101 analysis for the fourth time since May
Here is another article about this:
One major take away from this case is that this panel of the CAFC clearly believes software is patent eligible subject matter. At least some of the representative claims discussed (e.g., claim 1 of the ‘065 patent, page 20) is a computer readable medium claim reciting computer code for performing a series of operations. This is very welcome after comments in recent cases from certain judges suggesting that software should be per se unpatentable.
This decision can probably be appealed to the Supreme Court, at risk of overriding Alice. Here is corporate media, namely Barbara Grzincic at Reuters, covering this latest development as well:
A long-running patent fight between network-software rivals Amdocs (Israel) Ltd and Openet Telecom Inc will go at least another round, after a U.S. appeals court overturned a ruling that had invalidated four of Amdocs’ patents.
Other coverage came from lawyers’ sites [1, 2, 3] and pro-software patents lobbying sites [1, 2] where there are no disclosures about vested interests. Some of these articles contain misleading claims, such as “Federal Circuit seems to be loosening the reins on 101 software subject matter disqualifications,” even though CAFC is actually ruling against software patents in a large number of cases, especially high profile cases (like the aforementioned Intellectual Ventures case). No matter what the patent microcosm tries to say (usually spin), CAFC is basically trashing a lot of software patents and the recent decision from Judge Mayer was a death knell to many of them. Lawyers’ sites are understandably desperate for spin because spin sells (it attracts their target audience). The same happens in Europe; European “IP” news sites try to maintain an amicable relationship with the EPO, so they only say good things or nothing at all.
“Has IAM ever given a platform to opponents of software patents and to pessimists? It’s a rarity because that’s not what readers (paying subscribers) want to see.”Speaking of one such European “IP” ‘news’ site, once again it gives Bart Eppenauer (from Microsoft) a megaphone, and as usual in defense of software patents. He is trying to say that all is well for software patents, which is utter nonsense. Here is what IAM wrote under the headline “Key CAFC decisions confirm software is patentable in post-Alice world, says Microsoft’s former patent chief”.
Has IAM ever given a platform to opponents of software patents and to pessimists? It’s a rarity because that’s not what readers (paying subscribers) want to see.
Well, this sure is getting shallow and tiresome. Why don’t they just recruit Eppenauer and give him his own column at IAM? What he talks about isn’t news; it’s not even a new decision, just more entertainment of old staff with attribution to an overhyped person whom they like to grease up a lot (almost every month). █
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