08.16.16
Posted in America, Europe, Patents at 12:22 pm by Dr. Roy Schestowitz
“James Logan freely admits that he’s never made a podcast,” according to USA Today (source of the photo below)
Summary: Jim Logan of Personal Audio (a notorious Texas-based patent troll) is still fighting with his bogus patent, having already caused enormous damage with a single software patent that should never have been granted in the first place (due to prior art, not just Alice)
THE USPTO‘s examiners have been so eager to grant patents and perhaps so out of touch that they granted a patent on podcasting to some parasite, in spite of extensive evidence of prior art (even the Patent Office has acknowledged this by now). As a result, many innocent people with a podcast had been hit (extorted) until the EFF stepped in to help. We last wrote about this earlier in the month and it turns out that after years of disputes the patent troll (which is the patent holder) is still not giving up. Just look what a monumental mess just one single erroneous grant by the USPTO has caused!
“Just look what a monumental mess just one single erroneous grant by the USPTO has caused!”Joe Mullin says that the “[p]odcasting patent troll fights EFF on appeal, hoping to save itself” (this patent is pretty much its entire capital/existence*). To quote:
The owner of a patent on podcasting is hoping to snatch victory from the jaws of defeat.
Personal Audio and its owner, Jim Logan, lost their patent last year after lawyers from the Electronic Frontier Foundation showed the US Patent and Trademark Office that various types of Internet broadcasts pre-date the patent, which claims a 1996 priority date.
The podcasting patent became famous and received national media attention after it was used to sue several high-profile podcasters, including Adam Carolla, who raised $500,000 and fought back for a time before reaching a settlement in 2014. Personal Audio had also sued several big TV networks, and its case against CBS went to a jury in September 2014. The jury found the patent valid and awarded Personal Audio $1.3 million, a victory that Personal Audio’s lawyers have noted in their appeal arguments.
The controversy is now in the hands of the US Court of Appeals for the Federal Circuit, the court that handles all patent appeals. A three-judge panel heard arguments over the matter earlier this month.
Let this become a famous example of why software patents are a great menace to everyone, not just to developers. Sites of patent lawyers continue to advocate for software patents under the guise of ‘analysis’ (cherry-picking by patent lawyers who still resort to Enfish, despite admitting that it changed little or nothing at all) and WatchTroll, a vocal proponent of software patents, asks a loaded question in his latest headline, “Would Monopoly® be patent ineligible under Alice?”
“There should be absolutely no software patents in Europe (no matter what Battistelli does to ruin the EPO and crush the EPC these days), especially now that the USPTO demotes these.”Here again is the regression/resort/retreat to Enfish and BASCOM hype, as if two decisions among many hundreds will somehow salvage software patents as a whole. To quote WatchTroll: “The application of the Supreme Court’s decision in Alice v. CLS Bank by the Federal Circuit has been disappointing, to say the least. There have been some rays of hope for innovators with decisions in DDR Holdings, Enfish and BASCOM, but these bright spots shine so radiantly because they are scattered in a sea of despair.”
Despair to who? To patent law firms, i.e. not to actual development powerhouses and/or programmers.
We regret to see the Battistelli-run EPO being lured into software patenting in spite of the EPC. There are already misplaced priorities which favour large US-based companies at the EPO and the EPO increasingly uses the term “ICT”, which some can interpret as a vague insinuation/synonym of software patenting. See this pair of new tweets [1, 2] that ask: “Know how US & European practice differs for ICT applications?”
There should be absolutely no software patents in Europe (no matter what Battistelli does to ruin the EPO and crush the EPC these days), especially now that the USPTO demotes these. “Ever been to EPOPIC? Here are this year’s topics,” the EPO now writes in relation to an upcoming event. Looking at the sidebar under “key events” we see “ICT seminar 2016″ and “Indo-European conference on ICT-related patents 2016″, so there’s clearly some kind of a trend developing. The UPC threatened to bring software patents to Europe (so said multiple domain experts) and also bring patent trolls like Jim Logan. It’s a true danger when people like Battistelli race to the bottom in the name of “production” (even if it’s faked). █
_______
* Wikipedia says the firm, which is a “Texas-based company,” was “formed to enforce two patents applied to podcasting.” It’s described as a “patent holding company” (euphemism for troll).
Permalink
Send this to a friend
Posted in America, Patents at 11:24 am by Dr. Roy Schestowitz
Hoping for a post-Alice software patents rebound/resurgence, obviously
Summary: Now that the actions of the Patent Trial and Appeal Board (PTAB), which have been consistently upheld by the CAFC in precedential decisions, are suddenly being questioned the patent microcosm gets all giddy and tries to undermine PTAB (again)
SEVERAL decades ago the Court of Appeals for the Federal Circuit (CAFC) officially brought software patents to the USPTO. Things have been getting a great deal worse since then, as lots of very fundamental programming ideas turned into a monopoly, potentially enforceable against anybody with a computer and low-cost keyboard (and some rudimentary coding skills or access to the Internet, e.g. BBS for source code).
Well, as we noted the other day, based on early birds like Patently-O (typically ahead of the curve), PTAB (which is hostile towards software patents) is now being challenged by CAFC. WIPR has just published an article about it:
The US Court of Appeals for the Federal Circuit has agreed to hear a dispute surrounding the rules for amending patents in Patent Trial and Appeal Board (PTAB) reviews before its full panel of judges.
In a decision handed down on Friday, August 12, the Federal Circuit decided to hear en banc a case involving a pool-cleaning product owned by Aqua Products, vacating its previous opinion.
This was then mentioned also by MIP and bigger Web sites for and by patent lawyers. “In a rare grant of a petition for rehearing en banc,” one author said, “the court decided that an appeal “warrants en banc consideration” of who bears what burden when amending in an IPR. In re: Aqua Products, No. 15-1177, slip op. at 2 (Fed. Cir. August 12, 2016). From the very beginning of IPRs, the Patent Trial and Appeal Board has required the patent owner to bear the burden on a motion to amend.”
This is an important case for defenders of the de facto ban on most software patents, especially in light of Alice. As another new article from MIP put it this morning, “The Federal Circuit has issued a rare reversal of the Patent Trial and Appeal Board” (PTAB’s use of common sense reversed in Arendi v Apple). The legitimate concern here is that CAFC, which is not exactly known for integrity (contrariwise, it’s known for mischief and abuse in recent years), will interfere in the operation of PTAB, dominated by scientists rather than lawyers or judges with a law degree and not the faintest clue about programming. Here is another lawyers’ site stating that the “Federal Circuit [is] Going En Banc on IPR Standards for Amending”. Given that many patent lawyers now equate PTAB with “death squads” (what will they call it next? Stalin? Hitler?), we’re not terribly surprised to see this kind of bias or patent jingoism. A lot of patents news sites are hard for people to comprehend, probably by design/intention (jargon and reference to sections/cases rather than explicit concepts). This way the patent microcosm can ‘monopolise’ analysis and coverage, eventually misleading the readers and making it seem as though everything is rosy for software patents.
“A lot of people who promote software patents also wrongly equate patents with innovation.”In my personal view, the patent systems per se are not the problem; the problem is patent maximalism and limitless scope, as advocated by those who profit from that (notably patent law firms). They have cheapened/diluted patents/innovation to the point where many patents, once scrutinised in a court of law, simply get discarded. Increasingly, with PTAB around, some or these are discarded before they even reach the court (only after USPTO ‘examiners’ rubberstamp these). Notably, unassertible patents (because these patents are crap and their assignee/owner knows it) are not safe anymore.
A lot of people who promote software patents also wrongly equate patents with innovation. They have never implemented a single computer program in their entire life; they’re just armchair marketing people (shameless self-promotion) harping about “protection” or “innovation”, as if patents are not a two-edged sword that impedes and discourages development, usually impacting the smallest developers most profoundly because these developers cannot afford going to court. █
Permalink
Send this to a friend
Posted in Courtroom, Europe, Patents at 10:28 am by Dr. Roy Schestowitz
Summary: Things are becoming ever more troublesome at the EPO as the Administrative Council enjoys inaction from the International Labour Organization (ILO), in spite of its role in destroying much-needed oversight at the behest of Battistelli
IN our only article about the EPO yesterday we mentioned the RFPSS meeting. Things are eroding if not disintegrating at the EPO and it’s taking its toll on staff while no effective oversight exists anymore. Someone in IP Kat‘s comments remarked on the contents of yesterday’s material as follows:
On the subject of pensions, there is some interesting commentary from the CSC on the latest RFPSS meeting.
http://techrights.org/wp-content/uploads/2016/08/sc16129cp.pdf
“The Office thus unnecessarily lowers the probability of reaching our long-term objective for the return on investment, thereby deliberately creating a situation that could be used to trigger further major reforms.
The governance in terms of risk monitoring is still unclear through inadequate role clarity, while such governance deficiencies are recognised as often leading to under performance”.
If one were inclined to believe in conspiracies, the actions of the Office (including eliminating independent oversight of finances, and seemingly ensuring “underperformance” of the pension reserve fund) could all be interpreted as preparation for an attempt to sequester the approx. EUR7,000 million in the reserve fund.
In such a hypothetical conspiracy, the Office would “manufacture” excuses to cut / eliminate pension benefits to those who should be the beneficiaries of the RFPSS fund, only to then conduct a new study that miraculously discovers a massive surplus in that fund. The conspiracy would then conclude with the pension fund surplus being “liberated” by the Office.
Of course, this is all very far-fetched and so ought to easy to dismiss as nothing more than pure speculation. Indeed, a far more plausible explanation is that there is no plan for a cash-grab, just an attempt to deal with the pension liability issue that I have discussed before. Still, the effectively lawless behaviour of the Office in recent years (especially when it comes to matters of staff rights / benefits) does make one wonder…
Someone then responded to that as follows:
I have been entertaining similar suspicions since before Mr. Battistelli’s too office, when his immediate predecessor generously spouted expressions like “fit for the future”, “doing nothing is not an option” (in other words: TINA — but what is the problem in the first place?) and imposing the IFRS charade. I would however employ a much stronger word than “sequester”.
The questions are IMO: who would be the happy beneficiaries of that heist, how would the loot be split among them, and how would it be transferred out of the EPOrg while maintaining appearances?
As we stated yesterday, we have no accounting expertise here (not even in our IRC channels), so we need to rely on input from those who understand such matters and can interpret the financial reports of the EPO. The following remark bemoans Battistelli's political background, which basically makes him unfit (as per qualifications) for the post he has held for over half a decade. To quote:
Don’t forget that there is a French Presidential election campaign coming up in 2017.
https://en.wikipedia.org/wiki/French_presidential_election,_2017
“Primaire à droite : les Amis de Sarkozy lancent un appel aux dons”
http://www.leparisien.fr/politique/primaire-a-droite-les-amis-de-sarkozy-lancent-un-appel-aux-dons-11-04-2016-5704991.php
This is why people who hold elected office for political parties should never be put in change of international organisations with large cash surpluses and no effective oversight.
Right now at the EPO there is virtually no accountability, as pointed out in another thread in relation to a subject we first covered here 2 years ago:
Perhaps we will never know. With the full knowledge and approval of the AC, one of BB’s first actions as president was to disband the only body (the Audit Committee) that could have provided transparency / independent oversight in connection with the EPO’s finances.
The ILOAT also placed its seal of approval on this dastardly act in Judgment 3698:
http://www.ilo.org/dyn/triblex/triblexmain.detail?p_lang=en&p_judgment_no=3698&p_session_id=122&p_language_code=EN
“The authority to establish or abolish the Audit Committee was vested in the Administrative Council alone, and these decisions did not infringe the complainant’s rights in any way, regardless of his role in the EPO.”
Judgment No. 3698 (originally in French) is dated a month ago (when many decisions came out, more than 80% of which rules against the EPO's management) and it relates to a decision we covered here last month. It’s Bernard Paye's complaint to ILO, which gave him a Pyrrhic victory many years too late. Here is the text of this decision with highlights in yellow. The complaint was made by “the principal author of the proposal to establish [the A]udit [C]ommittee,” based on the text:
Organisation internationale du Travail
Tribunal administratif
International Labour Organization
Administrative Tribunal
Registry’s translation,
the French text alone
being authoritative.
P.
v.
EPO
122nd Session
Judgment No. 3698
THE ADMINISTRATIVE TRIBUNAL ,
Considering the complaint filed by Mr B. Y. P. against the European Patent Organisation (EPO) on 15 March 2013 and corrected on 7 May 2013, the EPO’s reply of 5 March 2015, the complainant’s rejoinder of 24 April and the EPO’s surrejoinder of 31 July 2015;
Considering Article II, paragraph 5, of the Statute of the Tribunal; Having examined the written submissions and decided not to hold oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows: The complainant challenges the abolition of the Audit Committee of the EPO’s Administrative Council.
On 30 June 2011, following a proposal by the President of the European Patent Office, the Administrative Council adopted decision CA/D 4/11 abolishing the Audit Committee, one of its subsidiary bodies, with immediate effect. On 28 September 2011 the complainant, who was then Head of Internal Audit (Principal Directorate 0.6 of the European Patent Office), and Ms H., who chaired the Staff Committee, filed an internal appeal against this decision. They complained, inter alia, that the General Advisory Committee had not been consulted prior to the adoption of the challenged decision. In November 2012 Ms H. withdrew her appeal. Having heard the complainant, the Appeals Committee of the Administrative Council unanimously recommended on 11 December 2012 that his appeal be dismissed, considering, in particular, that the challenged decision had not been taken in breach of any “applicable legal provision”. By a letter of 20 December 2012, which constitutes the impugned decision, the complainant was notified that the Administrative Council had decided to dismiss his appeal.
In his complaint filed on 15 March 2013, the complainant asks the Tribunal to quash the impugned decision as well as decision CA/D 4/11 and to order the EPO to submit the initial proposal of the President of the Office to the General Advisory Committee. He also seeks compensation in the amount of 30,000 euros for the moral injury that he considers he has suffered and an award of costs.
The EPO submits that the complaint is irreceivable, in particular on the grounds that the complainant is impugning a general decision that does not adversely affect him. In the alternative, it asks the Tribunal to dismiss the complaint as unfounded.
CONSIDERATIONS
1. The Tribunal has jurisdiction under Article II, paragraph 5, of its Statute to hear complaints alleging “non-observance, in substance or in form, of the terms of appointment of officials and of provisions of the Staff Regulations”. In consequence, when “[t]he complainant does not allege the non-observance of any of the terms of his appointment or of any of the Staff Regulations applicable to him”, his complaint must be held to be irreceivable (see Judgment 2952, under 3).
2. The Tribunal observes that the complainant does not allege any violation of the terms of his appointment or of staff regulations that are applicable to him. His case does not relate to his administrative status but rather to the organisation of the EPO, his employer, for which he is plainly not responsible. The fact cited by the complainant that he was “the principal author of the proposal to establish [the A]udit [C]ommittee” that was subsequently abolished does not grant him any right to intervene in a decision to maintain that subsidiary body or not.
The authority to establish or abolish the Audit Committee was vested in the Administrative Council alone, and these decisions did not infringe the complainant’s rights in any way, regardless of his role in the EPO.
3. It ensues from the foregoing that the complaint, which the Tribunal is not competent to hear, is irreceivable and must be dismissed.
DECISION
For the above reasons,
The complaint is dismissed.
In witness of this judgment, adopted on 28 April 2016, Mr Claude Rouiller, President of the Tribunal, Mr Patrick Frydman, Judge, and Ms Fatoumata Diakité, Judge, sign below, as do I, Dražen Petrović, Registrar.
Delivered in public in Geneva on 6 July 2016.
(Signed)
CLAUDE ROUILLER
PATRICK FRYDMAN
FATOUMATA DIAKITÉ
DRAŽEN PETROVIĆ
The above relates to our previous post about complicity of the Administrative Council, in this particular case actively removing accountability or oversight from Battistelli, which the Council appears to be in bed with.
Citing another case, we have already shown how Battistelli worked against the European Patent Convention (EPC). How Battistelli can get away with all this isn’t something we can now defer to the Founding Fathers of the EPO anymore (most of them are deceased by now). █
Permalink
Send this to a friend
Posted in Europe, Patents at 9:35 am by Dr. Roy Schestowitz
Like FIFA coverups but much broader
Summary: A recollection of events prior to the latest Administrative Council meeting, where Benoît Battistelli’s failings and accountability for failing to correct them never even came up
“COMPLICITY” is increasingly becoming the correct term by which to describe the Administrative Council with its national delegations (who are supposed, at least in principle and in theory, to hold the EPO accountable). Disinterested or self-interested would be a more polite way to put/frame it. If they cared, they would have fired Battistelli already. Even if they kept their word or promise, he would be sacked by now. No secret endowments to this autocrat.
“Watch what Erdoğan is doing in Turkey right now (against military generals, judges, journalists etc.) to better understand how Battistellites (Benoît along with his largely French circle) are running the EPO.”Like in most autocratic regimes, control is exerted through fear and the Erdoğan- or Duterte-like Battistelli scares people at all levels, including delegates whom he bullies in plain sight (maybe to make an example). No wonder some top managers are leaving and others, who reportedly (based on rumours) thought about leaving, say the darnest things on TV in order to cover Battistelli's back.
Watch what Erdoğan is doing in Turkey right now (against military generals, judges, journalists etc.) to better understand how Battistellites (Benoît along with his largely French circle) are running the EPO. It’s something to be expected from third-world nations, but it’s happening in Bavaria, traditionally known for class and sophistication. Fear of Battistelli, including fear of firing him (long overdue), is apparent. Developments prior the latest Administrative Council meeting suggest that there was not a reversal of their position but rather abstinence from the topic of Battistelli’s abuses (breaking rules, including his own).
“The last B28 [Board 28, which privately admits there's an EPO crisis] meeting took place just ahead of the BFC meeting at the end of May,” we learned. “The B28 focused once again on following-up on the consequences of the resolution adopted by the Administrative Council on 16 March 2016. Of particular interest and importance for staff was whether there was any progress in the disciplinary matters, which should be fair and seen to be fair. According to the summary of conclusions of this meeting (B28/8/16), no tangible progress could be reported on then. In June, the President rejected the requests for review of Malika Weaver and Ion Brumme and thereby reconfirmed their disciplinary sanctions. Later the same month, the President apparently interfered with the independence of the Enlarged Board of Appeal proceedings, thereby preventing them from ruling on the merits in the case of the Judge accused of misconduct. Just a few days ahead of the Council meeting, the President suspended Laurent Prunier in The Hague, a further staff representative and SUEPO official to be sanctioned.”
“How convenient for Battistelli, who is no longer so far from his retirement anyway (maybe he will join Sarkozy with his political career thereafter).”One might expect, based on any of the above actions, that Battistelli would be considered in violation/deviance from the requirement set to him by the overseers. How can they possibly reconcile all this? Simple; just don’t mention any of that at all. That is precisely what happened at the meeting, as we wrote at the time. Based on text that was shown to us: “During the AC [Administrative Council] meeting, the Council was informed by both internal and external stakeholders on the flawed consultation process leading to the documents presented for their approval. As for the proposals themselves, among the more obvious deficiencies in the Boards of Appeal reform, the theme had been expanded to include post service employment restrictions and relocation and, according to the President, to be treated as a package. Finally, a review of the Investigation and Disciplinary Procedures which were originally on the agenda were postponed.”
That’s right. Postponed. 3 months! How convenient for Battistelli, who is no longer so far from his retirement anyway (maybe he will join Sarkozy with his political career thereafter). To quote further: “The circumstances leading to the disciplinary cases against staff representatives and Union Officials have been repeatedly raised with the delegations before and after the confidential Council session. [...] The only mention made in the summary of the C-session was that “the Council resolution will be followed up in one of the next meetings”.
This incredible procrastination shows that the Council is not at all interested in restoring stability to the Office. Put another way, the delegates are complicit; they’re a bunch of obedient cowards, maybe some of them paid for it.
In the mean time, judging by the spammy activity of the Twitter account this summer* (the PR team just keeps spamming for EIA 2017 e.g. [1, 2, 3, 4]), there is the assumption that Battistelli will survive another year. If that actually happens, how many workers will even stay at the Office now that resignations and early retirements skyrocket? Rumours we heard say that Battistelli wants to extend the term of Topić’s EPO appointment in spite of the criminal charges against him (not to mention extreme unpopularity among staff, whom he attacks like he attacked staff in Croatia). █
_____
* Or just talking to everyone in general, e.g. [1, 2].
Permalink
Send this to a friend
Content is available under CC-BY-SA