01.06.17
Posted in Asia, Patents at 7:27 am by Dr. Roy Schestowitz
Delhi Gate at night
Summary: India’s resilience in the face of incredible pressure to allow software patents is essential for the success of India’s growing software industry and more effort is needed to thwart corporate colonisation through patents in India itself
IT HAS BEEN a while since we last wrote about software patents in India. The subject is growingly important because a lot of the world’s software is nowadays being crafted in India, much in the same way that a lot of hardware is made in China.
According to today’s news, “India’s patent office has rejected an application by German telecom major T-Mobile International AG seeking a patent for an invention related to a method for optimising the operational times and cell exchange performances of mobile terminals.”
“Currently, India has a patent system that mostly helps foreign companies cement/impose their monopoly on a vast population.”“The rejection of T-Mobile’s patent is the latest in the growing number of software patents,” says the article. For nearly a decade now we have been showing how large multinational corporations such as BT, IBM, Microsoft and others have been pushing India (sometimes even shaming India) into the trap which is software patents. They are habitually helped by their patent lawyers in India, who gleefully join the lobbying efforts. These lawyers bamboozle fellow Indians on behalf of large corporations that pay their lawyers a lot of money. We urge Indians to reject and resist these terrible attempts to hobble India’s thriving software industry. Even some large Indian companies (such as Infosys) have already changed their mind.
Currently, India has a patent system that mostly helps foreign companies cement/impose their monopoly on a vast population. This has been accomplished in many disciplines except software and it would be wise for India to keep it that way. A further improvement would be to reassess patentability in other domains, such as those that impact generic medicine (India already done exceptionally well in this domain). Here is a new report from the Times of India that says “[a]round 80% of the more-than 43,000 domestic product and process patents have been secured by foreign entities – many of them global technology giants like Qualcomm, Samsung and Philips.”
“We urge Indians to reject and resist these terrible attempts to hobble India’s thriving software industry.”Notice Qualcomm in there. It is a highly abusive company whose patent practices are so cruel and notorious worldwide. Consider this new article from CCIA‘s Matt Levy. Read the second paragraph to see how Qualcomm — like Microsoft — is basically corrupting academia (showered with money in exchange for bias) in an effort to thwart saner patent policy:
If you’ve followed the patent reform debate, you’re probably familiar with Qualcomm. Qualcomm has literally spent millions opposing reform, including around $6 million lobbying in the first 3 quarters of 2016, millions on television and print ads, a lot of money given to law schools to fund sympathetic research, and on and on. It’s hard to blame the company, given that Qualcomm’s licensing segment netted about $6.5 billion in profit in fiscal year 2016. You can find that information, and more, in Qualcomm’s 10-K for 2016.
India would be wise to shape its patent law not based on what companies like Qualcomm and their patent law firms (can be Indian) are saying. India should listen to its engineers, programmers, etc. Too many times we find articles on the subject which are composed by lobbyists, large corporate executives, or law firm that strive to embellish their financial bottom line. Today in the Irish press there is this article about “start-ups” (i.e. small companies) which advises them — among other things — to pursue patents. It’s a waste of money; there are other things they should be doing with their money (limited budget) because unless a small company is merely a patent troll it will never manage to make much of these patents. They’re just worthless ‘trophies’, overshadowed by massive patent ‘warchests’/’arsenals’ like IBM’s or Microsoft’s. Counterattacks in the lawsuit sense mean that they’ll never become David in the David versus Goliath sense. They’ll go broke trying to become David. The article from the Irish Times mostly quotes “Fergal Brady [...] an examiner in the Irish Patents Office [who] says his role is to settle the issues of “What are you describing? Is it clear? Has it been done before?” when it comes to patent applications.”
“India would be wise to shape its patent law not based on what companies like Qualcomm and their patent law firms (can be Indian) are saying”Patent examiners are not the “bad guys” (or girls). They are just trying to make a living by scrutinising patent applications. However, at the EPO and at the USPTO, immense pressure has been put on examiners to make decisions too quickly, rendering them totally incapable of doing their job properly. To make matters worse, they are sometimes offered incentives to do their job leniently, either granting in error or rejecting applications in error, settling for low patent quality or diverting all the financial damage to courtrooms (externality). █
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01.03.17
Posted in America, Asia, Europe, Patents at 10:45 am by Dr. Roy Schestowitz
EPs are becoming ever more useless (hence a waste of money) under Battistelli
Summary: To nobody’s surprise, the past half a decade saw accelerating demise in quality of European Patents (EPs) and it is the fault of Battistelli’s notorious policies
THE overpaid ‘king’ of the EPO (who keeps the salary he is giving to himself secret, like in a third world country) keeps rewarding himself and his protectors for leading the Office in a self-destructive path — a lethal trajectory that would leave nobody but them (the top-level management) well off financially. The have the economic tenacity of oligarchs that prey on states for profit. They need to be stopped before it’s too late (if it’s not too late already, as redundancies loom over the horizon).
Earlier this afternoon an article from Heise’s Christian Kirsch was published in German. An automated translation of the article tells us it’s much of the old stuff, i.e. not much new information. “Proceedings before the ILO may take up to ten years,” explains Kirsch and also “there are different opinions between the employees and Battistelli about the “improvement in productivity” that he has advanced in the EPO.” To quote the automated and unedited translation: “Visible the first time in 2011. At that time, were the President suggested that the employees from the surplus of the Office a bonus of 4,000 euros net pay. On the other hand, the employees’ representatives expressed their opinion: such a bonus signals that the goal is above all to grant many patents and consequently to generate a high fee. It is, however, essential to examine the applications thoroughly and to maintain the high standard of the EPO in the granting of patents.”
IP Kat‘s debunking of patent quality claims is cited also. To quote: “Auditors and patent attorneys, however, are skeptical about what Battistelli’s “productivity increase” is about, which should have amounted to about 14 percent in 2015. To interpret the figures according to the British Blogs IPKat considers out that the Office has resorted to “cherry-picking”…”
A lot of the rest deals with the spineless [cref 96056& chinchillas] of the Administrative Council, the attack on the independence of the appeal boards, attacks on SUEPO, and at the very end Brexit’s effect on the UPC (the automated translation there is too mangled to be comprehensible).
Looking across the Atlantic at the USPTO, things appear to have meanwhile improved. As Patently-O said after the new year had begun, patents continue to be challenged by PTAB, which is sort of an equivalent of the appeal boards in the EPO (though not exactly similar). One new article says about claims of temporal separation between two communications in a patent that a court stepped in and:
On remand, the PTAB will decide whether the prior art the claim elements as they are more narrowly defined.
Remember that PTAB did not even exist more than half a decade ago!
Battistelli’s vision of the EPO is akin to that of a registration office with minimal appeal opportunities. Because hey, who needs justice anyway? It’s not as though today’s EPO cares about justice. Not even of its own employees…
Another new article of Patently-O says:
The Supreme Court has in recent years routinely rejected the Federal Circuit’s rigid, cabined interpretations of the Patent Act. While no one knows what the future holds, today’s practitioner’s conduct may be judged by a more stringent standard than suggested in Therasense and proposed here. That has happened with eligibility, obviously. Given that the Supreme Court could hold that the Patent Act requires more than avoiding intentionally obtaining a patent that you know you shouldn’t get, and given that that interpretation will likely be applied to all issued patents, and given the USPTO’s statement that it hopes that the new definition will result in less disclosure, one can see a trap for the unwary practitioner. This may give practitioners a false sense of security.
By “practitioners” he means the patent microcosm, or the bunch of people who profit from patent maximalism without actually producing anything (other than paperwork).
And speaking of patent scope, today IAM correctly points out that China has become the land of patent chaos. Patent quality barely exists there and Battistelli seems to be emulating that. He wants a production/assembly line, not a patent office. It’s far too easy to just grant a patent on every piece of garbage and figment of imagination; it’s a lot harder to come up with real inventions and ensure that these — and these alone — get granted a patent, making a European Patent (EP) synonymous with somewhat of a trophy. Here is what IAM (patent maximalists) wrote:
Pro-plaintiff China – Not only does China handle more patent applications than anywhere else on earth, as well as more patent suits, but it is now also becoming one of the world’s most patent-friendly jurisdictions. This was a trend that accelerated during 2016, when it emerged that the Beijing IP court – one of three established in the country in 2014 (the others being in Shanghai and Guangzhou) – had handed foreign rights owners a 100% win rate in its first full year of operation. What’s more, unlike their counterparts in the US, the Chinese courts are willing and able to hand out injunctions, as the likes of Samsung and Apple discovered last year. Not everything in China’s patent garden is rosy – damages are low (though getting higher), enforcement of court decisions is often a problem and there are issues around protectionism – but for a country that has no strong patent tradition, China has come a long way very fast. And with manufacturing jobs moving to lower cost countries, the government’s push for an economy built on innovation is only likely to reinforce this trend. Perhaps the most significant confirmation of what is happening came at the end of the year when it was announced that Qualcomm had settled a high-stakes patent dispute with mobile manufacturer Meizu. This was an American company that had taken action against a flag-waving local business and, in the end, the latter concluded it could not win. That says a lot.
Speaking of China, Tian Lu reviews a book of Qiao Yongzhong. “Many experts in China, including Dr. Qiao,” Lu explains, “feel no smugness with the huge patent filing numbers.”
It’s just a big heap of garbage. The EPO seems to be heading in the same direction, unlike the USPTO, owing in part to SCOTUS with the above-mentioned rulings.
For Europe to be competitive we must ensure that European authorities recognise the colossal damage Battistelli is causing and belatedly step in. █
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12.30.16
Posted in America, Asia, Patents at 2:42 pm by Dr. Roy Schestowitz
South Korea typically finds a healthy balance on patents, from which the country benefits (economy and innovation)
Seoul Plaza, South Korea
Summary: An outline of recent stories about patents, where patent quality is key, reflecting upon the population’s interests rather than the interests of few very powerful corporations
THE NEW YEAR IS ABOUT to start and we are eager to see governments all across the world recognising that patents have gone too far if examiners are granting millions of them. Techrights was never an anti-patent site; rather, it was pro-patent quality. We need to limit patent scope so as to ensure that the practical (or economic) impact of patents benefits society at large. The former Chief Economist of the EPO spoke about it earlier this winter.
“We need to limit patent scope so as to ensure that the practical (or economic) impact of patents benefits society at large.”Florian Müller has this new article about a Korean antitrust ruling. We have been writing about rulings of this kind for nearly a decade (going back to the Korean ruling on monopolistic Intel) and 3 months ago we wrote about Microsoft's latest patents controversy in Korea. We remind readers that Korea’s official position is that software is not patentable (different from Japan’s and China’s policy).
“I wish to point out,” Müller wrote, “that ACT is generally very IPR owner-friendly, but when it comes to FRAND licensing of standard-essential patents, its positions are pretty consistent with mine. An organization that takes similar positions on FRAND (and of which Google is a member) is the Brussels-based Fair Standards Alliance. Presumably the reason the FSA hasn’t spoken out on the Korean ruling yet is simply that people in Brussels tend to be on vacation this week (to a far greater extent than in the U.S.).”
“For the record, Florian Müller assured me he had been in no way associated with (or paid by) Microsoft for several years now.”As we noted earlier this year, the Fair Standards Alliance is rather mysterious, but the same cannot be said about ACT. I politely told Müller it’s worth pointing out that Association for Competitive Technology (ACT) is a Microsoft front group with decades of history (going back to the nineties, under another name and acronym). We have exchanged some messages about that [1, 2, 3, 4]. For the record, Florian Müller assured me he had been in no way associated with (or paid by) Microsoft for several years now. A lot of what we wrote about Florian Müller is no longer relevant/applicable as he left behind his Microsoft work and has no intention to do that again. Some people will never forgive him for that, but I have. I believe that he’s not “up for sale” now that he leads a team of “app” developers, hence not dependent on contracts from companies like Oracle, either.
“Just updated post on antitrust ruling against Qualcomm with link to unofficial translation of KFTC press release,” he added, after he mostly focused on ACT’s message. Here is a report we found about the news earlier this week:
A South Korean regulator said it would fine Qualcomm Inc. about $853 million for alleged antitrust violations, the highest such penalty handed to an individual company here, as the U.S. chip maker faces global scrutiny over its patent-licensing business.
A lot of people later discussed the relevance of this to the situation in China, where Qualcomm’s shakedown efforts have only met very limited success.
The Reinhold Cohn Group, writing this new article (“China may become more liberal towards business method and software related patents”), reminds us that China has gone bonkers with patent scope. SIPO now copies/emulates the mistakes of the USPTO and it already becomes a patent trolls’ heaven. It’s beneficial to nobody. “On 27 October 2016,” as the law firm put it, “the State Intellectual Property Office of China (SIPO) published, for comments by the public, proposed draft revisions to its current Examination Guidelines for examining software-related inventions. In the draft revised Guidelines SIPO goes one step further, as, in addition to granting patents on software-related inventions that solve a technical problem, is willing to allow patents for data carriers, and, in some cases, even for business methods.”
“SIPO now copies/emulates the mistakes of the USPTO and it already becomes a patent trolls’ heaven.”So basically they want to be the garbage dump of failed patent applications, or the equivalent of scholarly journals that almost blindly accept every submitted paper (and are hence worthless and have no following). We are gratified to see the USPTO departing from this lunacy left (having been accentuated) by David Kappos. Incidentally, some LLC (usually trolls) turns out to have sued the USPTO for last year’s long outage; it has just lost the case*.
Jasper L. Tran, writing in the Iowa Law Review, has just published “Abstracting About “Abstract Idea”” — a short paper in which he tackles the classification of some patents as “abstract”. Also today, an article titled “Software patent eligibility in Canada: IP year in review” was published but then deleted, maybe by accident. █
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* To quote Pharma Patents Blog: “On December 2, 2016, Judge O’Grady of the U.S. District Court for the Eastern District of Virginia granted the USPTO’s motion to dismiss the complaint brought by Elm 3DS Innovations, LLC over the “holidays” declared December 22-24, 2015 when the USPTO experienced a power outage that impacted its electronic filing systems. The decision may leave other stakeholders wondering whether Elm was not the best party to challenge the USPTO’s action, or whether the action is simply unreviewable under the APA.”
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12.21.16
Posted in America, Asia, Deception, GNU/Linux, Microsoft, Patents at 8:39 am by Dr. Roy Schestowitz
Scare tactics and vengefulness from the Patent Maximalists’ Lobby
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. █
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12.14.16
Posted in America, Asia, Patents at 11:41 am by Dr. Roy Schestowitz
Serial litigators are finding no sympathy in courts these days
Summary: A look at reports that highlight activity of patent trolls, including less traditional kinds of trolls which act as satellites of larger companies that wish to distance themselves from bad publicity
DEPARTING for a moment from EPO coverage and not necessarily focusing on the USPTO either, let is be accepted that patent litigation in the US (usually “litigation central”) is down sharply and the golden age of patent trolls is ending, just in time for Ray Niro's death (he is the father of patent trolling).
IAM, which often speaks for patent trolls, bemoans these latest findings from Mark Lemley et al (proponents of patent reform and opponents of patent trolls):
But in a second paper published in the Patently-O Patent Law Journal, the team at ROL together with Professor Mark Lemley of Stanford Law School and Stanford law student James Yoon, have done a deep dive into the litigation data to see just how the litigation success rates vary for patents bought on the secondary market. The study combined two data sets: one for every patent lawsuit filed in 2009 and 2010 litigated to a substantive decision; and another which analyses USPTO assignment records to pick up all transactions and assignments for the patents in question. Ultimately, they were left with 516 litigation decisions in which the patentee won 24.2%. Just over half of the patents, or 280, had been transferred before any litigation began.
Overall they found that the patent owner won in 21.1% of the cases for patents that they had bought and in 28% of the cases for patents they had developed in-house. It’s widely accepted that winning an infringement lawsuit in the US these days is an uphill struggle, whether you’re litigating your own portfolio or one you have acquired, but the study added a lot of detail when it looked at how different types of entity fared when they litigated patents they had purchased.
Not only does it show that trolls’ business model is suffering; it also shows that certainty in litigation is quite low right now. Considering the low quality of many US patents (examination not as thorough as courts’ examination with expert witnesses), this is hardly surprising. The USPTO gave lots of worthless patents to many parties, and some parties (like IBM or Microsoft) received tens of thousands of such worthless patents, which are only worth something when used in bulk against a small plaintiff that cannot afford to challenge them all in court. This has indeed been Microsoft’s strategy against Linux and IBM now follows similar footsteps. These two companies increasingly act like trolls because they simply cannot sell products in various domains they had aspirations in (like Microsoft in mobile/devices).
The form of trolls has been shifting and changing. “PAE” is the buzzword du jour.
Patent troll CSIRO, which now faces legal barriers w.r.t. CRISPR, has begun making headlines again and someone sent us this report titled “CRISPR — the biggest biotech discovery in decades — is stuck in legal limbo”. This is the “last important patent interference proceeding to come before a panel of its judges,” Natalie Rahhal wrote for MIP in New York. CSIRO is not a traditional kind of troll, but in many ways it resorted to behaviour that is indistinguishable from trolls’. We wrote many articles about it around half a decade ago.
Trolling, however, is not just a passing fad because as quality of patents sinks to gutter levels in China patent trolls are starting to emerge and neighbours of China too gradually buck this trend. Some Korean banks are creating a patent troll in Korea, says IAM this week, noting the following:
It is worth pointing out that KDB Infra IP Capital is not the only SPF among MPEG-LA licensors; compatriot Intellectual Discovery as well as Japan’s IP Bridge are also pool members, having acquired SEPs from operating companies in their home countries.
We have written a great deal about MPEG-LA, a truly malicious patent troll headed by Larry Horn — himself quite a notorious character. MPEG-LA pools together quite a few patents from quite a few companies. When it comes to litigation, it acts very much like a troll, led by Mr. Horn. Quite a few patents of MPEG-LA are expiring or already expired, but this troll resorts to evergreening using its newer pseudo ‘standards’, as mentioned here before.
Right now it is important to recognise the strong correlation between patent quality and the severity of the patent trolling epidemic. We regularly remind readers that most patent trolls rely primarily if not solely on software patents, so in order to combat all that trolling we need to organise against software patents everywhere. █
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12.06.16
Posted in America, Asia, Patents at 3:44 pm by Dr. Roy Schestowitz
Summary: The infamous father of patent trolling is dead, so we need to remember his real legacy rather than rewrite his history to appease his rich relatives (enriched by destroying real companies)
SEVERAL years ago we wrote a lot of articles about the thug and troll Ray Niro, whose ugly legacy we summarised in this Wiki page. We have hardly heard his name for years, but today IP Kat pays respect to this father of patent trolling as if there is a duty to say something nice because he is dead. Our own list of articles about him can say a lot about how horrible a person he was, but obituaries in news sites are unbelievable pieces of hogwash. Won’t they just stop eulogising this thug?
Just because he’s dead doesn’t mean he was benign or even benevolent. He was a malicious person. As someone has just put it in relation to Acacia: “Argh. F****** patent troll. Fired people & sued people who actually made stuff, hence profitable quarter. Patent trolls…”
Niro was the initiator of all this. He has had so many victims. He has done enormous damage to the US, which is now infested by trolls. Speaking of which, IAM and their troll friends, who are hoping to expand in China (and are succeeding at that to some degree), have come to China with their agenda. Once of Intellectual Ventures, the world’s largest patent troll which is connected to Niro, Blumberg played a role in IAM’s extravaganza in the East. To quote the relevant part:
Talking trolls – While the debate around ‘patent trolls’ using poor quality patents to extract low value litigation settlements has dominated IP policy discussions in the US, there has been relatively little focus on it in China. To what extent that might change was brought up in the second plenary session today by Lenovo’s head of IP Ira Blumberg. Asked by session moderator Brian Hinman, the chief IP officer of Philips, to identify the things that keep him up at night, Blumberg said that his long-term concern was that if patent damages awards continued to increase, the number of patents available to buy continued to grow as a result of widespread filing and with preliminary and permanent injunctions available, then ‘patent trolls’ could become a major problem in the Chinese market. “If handled in the wrong way China could be beset by trolls,” he commented. As well as the prospect of higher damages and the growing threat of patent owners obtaining injunctive relief, the real threat to the Chinese market stems from the fact that it is such a large manufacturing hub. That gives patent owners great scope to disrupt a company’s production facility or its supply chain and might mean foreign and local businesses start to look to other jurisdictions to make their products. “If courts give out big awards then the natural reaction will be for companies to relocate their manufacturing,” Blumberg warned. “China needs to be very careful about how its patent system develops.” Once of Intellectual Ventures, Blumberg has become a vocal critic of trolling over recent years. As we have seen in the US, though, the problem with focusing on finding solutions to combat the perceived threat this business model poses often ends up causing a lot of unintended harm. The Chinese authorities would do well to consider that when they hear the kinds of dire warnings issued by Blumberg this morning. He does have a point, but careful, nuanced policy-making is perhaps the best way to solve any problems that arise. Looking to Europe, rather than the US, and finding out why there is no real troll problem there may also be a good idea. What is clear, though, is that as the Chinese patent litigation market does become more high-profile and more high-stakes, the troll debate is going to have to take place in the country.
This disease which is patent trolls needs to be purged. We can only remember Niro as the horrible person who started this disease. After his death many can breathe a sigh of relief, but his death alone isn’t enough to make his legacy of trolls go away. █
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12.04.16
Posted in Asia, Patents at 3:04 am by Dr. Roy Schestowitz
Summary: The race to the bottom (of patent quality) in China, the growth of patent trolls in the region, and the ruinous litigation strategy which now spills over even to the US — through the Eastern District of Texas — and may inevitably come to Europe (especially if the UPC ever becomes a reality)
NOT ONLY the USPTO but also SIPO, the patent office in China, permits patenting of software. We have been writing a growing number of articles about SIPO earlier this year as its policy generally got worse and the number of patents filed/granted has gone through the roof, only by lowering the standards of patents and thus their actual worth. Plainly put, China became just an assembly line of low-quality patents — something which is a recipe for trouble because patent trolls, for instance, can leverage such patents in bulk against those unable to defend themselves and demand ‘protection’ money, irrespective of the actual merit of the patents in question.
The other day we saw someone writing that “[a] Chinese company bought patents from Intellectual Ventures – another sign of the growing importance of IP in China,” but actually that’s just a sign of growth of patent trolling in China. Getting patents from the world’s biggest patent troll (groomed by Microsoft and Bill Gates) is not a sign of progress and the article cited came from the patent trolling proponents at IAM, whose latest issue continues to groom patent trolls and whose blog shows that those notorious/defunct patent courts in Texas are attracting the SLAPP equivalent of patents. Right now even east Asia exploits these courts and targets of theirs include Samsung, which develops many products with Linux in them.
IAM never viewed patent trolls as a bad thing (they have been promoting this in Asia recently, with growing focus on Korea, China, and even Japan) and based on this tweet, today they’re “very excited about IPBC Asia 2016, which starts in Shanghai on Sunday.”
What will they be saying to people at the event and what will they be telling readers? See this new article from the ‘magazine’: “Defending a patent case in the brave new world of Chinese patent litigation” (as if what they need more of is litigation that enriches lawyers rather than engineers).
Based on the past week’s reports, China’s patent maximalism (and patent trolling that ensues) is a growing epidemic [1, 2, 3, 4, 5, 6] and this article by Glyn Moody, titled “China Files A Million Patents In A Year, As Government Plans To Increase Patentability Of Software,” says it’s a very misguided plan. “Good luck with that,” he wrote sarcastically. “As the book “Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk” by James Bessen and Michael J. Meurer chronicles, software patents and their associated lawsuits have imposed a huge net cost on the US technology ecosystem. It’s mostly patent trolls and lawyers who have benefited from the thicket of intellectual monopolies that has threatened to strangle innovation. The same is likely to happen in China as it foolishly follows the US down the path of allowing patents on everything under the sun.
“That may be good news for the West in the long term, as the Chinese tech industry descends into an orgy of patent infringement suits that saps its resources and energy. But in the short term, many of the Western companies that are operating in China are likely to get caught up in this expensive, pointless mess too.”
China’s patent trolls are coming to other countries too, so the problem impacts not only China itself. See IAM’s article/blog post that says “Chinese company scores injunction on four Samsung devices over “pattern unlock” patent” (software patents).
“Last Sunday,” it says, “a Chinese-language news site based in coastal Fujian province reported that a local company had earned a surprising and difficult victory over Korean company in a four-year-old patent infringement battle. In a first-instance decision, the Intermediate People’s Court of Fuzhou is said to have ordered Tianjin Samsung Communication Technology Co to stop the production and sale of four infringing handset models, and pay damages of 10 million yuan ($1.5 million) to the plaintiff, Fujian ETIM Information & Technology Co.”
Suffice to say, IAM supports all this chaotic policy, being a site that’s for and by patent maximalists. It even shames those who try to reform the system to discourage trolling. Not too much of a surprise given that IAM’s funding sources include trolls… █
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11.29.16
Posted in America, Asia, Europe, Patents at 10:37 am by Dr. Roy Schestowitz
How many patents are enough? A billion? To Battistelli it’s all about money (and self-glorifying photo ops), not innovation!
Reference/related: Affaire Bygmalion (Battistelli's political party when he was Mayor)
Summary: The warning signs coming both from the East and from the West, demonstrating the pitfalls of a policy too permissive on patents and thus on litigation
THERE IS A lot to be said today about the EPO and the UPC. The cautionary tale here is what happened in the US and what is still happening/developing in China. Both places fostered patent maximalism, resulting in patent trolling.
The patent microcosm, as expected and as we last noted yesterday, obsesses over whatever can weaken PTAB and strengthen bad patents like software patents (abstract concepts, not devices or chemicals etc.) so it latches onto Unwired Planet v Google right now.
“Who benefits from this? The patent meta-industry, obviously. At whose expense? Everybody else’s expense!”Over at the EPO-friendly MIP, Mr. Loney publishes article that says “The Federal Circuit’s Unwired Planet v Google decision will lead to more rigorous review of covered business method review petitions by the Patent Trial and Appeal Board and discourage filing” (which is a not good thing). Another new article, this one by Professor Dennis Crouch, demonstrates that the patent troll of Ericsson is doing a lot of damage to patent reform in the US. We already mentioned this the other day, with about two dozen articles from patent law firms that want to eliminate PTAB and return to patent maximalism (and restraint minimalism). These trolls of Ericsson already begin to leave their mark or make an impact in Europe as well, emboldened by the EPO and filing lawsuits in London.
The motivation here is clear to see: less barriers to and more patents in a lot more disciplines. Who benefits from this? The patent meta-industry, obviously. At whose expense? Everybody else’s expense!
Over at the EPO-friendly IAM, some time this morning it was claimed that the hotbed of patent trolls, China, is setting the ground for patent chaos in all of Asia. It was separately noted that a Microsoft patent extortion proxy, Intellectual Ventures, will be embracing yet another proxy (it reportedly has thousands of them!) to operate in China. Here is the key part:
All the available evidence points to Intellectual High-Tech KFT being a vehicle controlled by Intellectual Ventures (IV). It has made numerous acquisitions of patents over the last few years – the vast majority from Japanese corporates – and more than a fair few of these have ended up with III Holdings 3 LLC, an entity associated with the third iteration of IV’s Invention Investment Fund.
It is possible that there is an IV connection to the CPT transaction too. The Taiwanese company’s assignment to HZW is its first transfer of patents to a third party since July 2011 – when it assigned a substantial number of assets to none other than IV. At the time, IV’s man in Taipei was Don Merino, who later joined Transpacific IP and is now running his own IP strategy consultancy on the island. It wouldn’t be a surprise if some of the same people were involved in getting this deal done.
Great! More patent trolls.
Remember that the number of patents is not a measure of innovation, nor is it a reliable measure of wealth of countries (unless patents are expensive to pursue and cheap to come up with). In China and in the US the quality of patents is truly appalling at times. Software patents, for instance, are not innovative at all; they are a dime a dozen and some are so trivial that it’s jaw-dropping.
“Remember that the number of patents is not a measure of innovation, nor is it a reliable measure of wealth of countries (unless patents are expensive to pursue and cheap to come up with).”Earlier this week Benjamin Henrion said that “counting the number of patents is not measuring innovation. And when you start mixing a variable with another one, more meaningless.”
He alluded to something from WEF (Switzerland with its patent hype) that said: “This map tells you everything you need to know about #innovation in Europe” (Switzerland likes such maps because they’re convenient propaganda for Switzerland).
Henrion and I both know it’s nonsense. A lot of patent examiners know that too. As for patent law firms, they probably lie to themselves. As the saying goes, they’re paid not to understand (or it’s hard to understand something which you’re paid to not even wish to understand).
“When you sell patents for a living,” I told him, “then patents are the only thing that counts.
He rightly asked “again measuring innovation with patents?”
“Don’t take Europe down the path of patent maximalism or we shall all suffer for decades to come (until erroneously-granted patents expire).”Maybe the number of patent lawsuits too will become a false measure of innovation. If so, then the US has a serious innovation deficit because, as even Professor Dennis Crouch’s site put it this week, patent lawsuit are shown sharply. To quote the relation to AIA (patent reform in the US half a decade ago): “Prior to the America Invents Act of 2011, the courts allowed plaintiffs to join multiple parties as defendants in a single lawsuit – even when the only relationship between the parties was that they all were alleged to infringe the asserted patent. The AIA blocked those multi-party actions in its non-joinder provision. The result was that the number of lawsuits filed per year rose post-AIA even though the number of accused infringers actually dropped. This also means that anyone looking at trends in infringement actions needs to carefully analyze the data if their time span extends across the AIA enactment date.”
The US is cleaning up its act by axing a lot of software patents and it shows. What we learn from this is that the worse the quality of patents becomes, the more litigation takes places (and thus more money goes into the pockets of patent law firms).
Don’t take Europe down the path of patent maximalism or we shall all suffer for decades to come (until erroneously-granted patents expire). █
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