07.08.17
Posted in Microsoft, Patents at 5:57 pm by Dr. Roy Schestowitz
Related: Patent Trolls of Microsoft and Ericsson Are Trying to Tax Everything, Especially Linux Devices
Summary: How Microsoft, together with non-practicing entities such as Intellectual Ventures and the nearly-defunct Nokia, continues to tax Android/Linux using patents — even in areas where Microsoft does not operate anymore
Patent trolls are still using as their principal source of ammunition patents granted by the USPTO. Most of these patents are software patents. Their arsenals vary in terms of size, but since nobody can sue a troll (nothing to sue over), one patent may be enough for the trolls to operate without risk of retribution (notably countersuit). Use of patents in bulk, moreover, overwhelms the defendant with “targets”, raising the cost of a legal fight and rendering out-of-court settlement more attractive an option (see Microsoft v Samsung in 2015). That’s just what Microsoft does to discourage legal challenge. Sometimes Microsoft simply attacks indirectly, via some well-funded, e.g. by Microsoft and Bill Gates, patent troll (it has plenty of such tentacles, including an in-house one).
“It’s a global problem because many businesses operate in the US, even if they’re not based in the US. This makes them susceptible to lawsuits.”The problem of US patent trolls isn’t compartmentalised. It’s a global problem because many businesses operate in the US, even if they’re not based in the US. This makes them susceptible to lawsuits. That includes companies in the far east — just about as far as it gets from the US.
There are many articles about trolls, but not about software patents. We’ll soon cover some of these articles and add our remarks on them. A new article, this one behind a paywall in Australia, says that “Patent trolls trawl for business” and starts as follows:
What better way to start the new financial year than with a cautionary tale about vexatious litigation.
There’s only one thing I fear more than getting the facts wrong and that’s getting embroiled in legal action, which I’m sure is the same for most professionals.
I have heard of quite a few companies that suffered from patent trolls. There are many thousands of such companies out there; some don’t speak about it for fear of retribution from trolls. They just pay the ‘protection’ money and try to move on. They also don’t want to signal that they’ll willing to shell out cash for trolls, as that too can make them an attractive target.
“Microsoft is trying to impose bundling (e.g. of Microsoft ‘apps’ inside Android) using patent threats, with forced sales of patents to soften the appearance or the nature of additional payments.”When the term “patent troll” is used many typically think of small entities, but not giant trolls such as the Microsoft-connected Intellectual Ventures or even the Microsoft-connected Nokia, which Microsoft now uses to relay patents to relatively big patent trolls. Microsoft is trying to impose bundling (e.g. of Microsoft ‘apps’ inside Android) using patent threats, with forced sales of patents to soften the appearance or the nature of additional payments. We wrote about it some days ago in relation to Nokia and a couple of days ago we stumbled upon the obligatory revisionism from IAM (the voice of patent trolls) — the same sort of revisionism it repeated endlessly after Microsoft had done it to Xiaomi. Regarding patent shakedowns by Nokia and Microsoft, this is what IAM wrote:
In last year’s Microsoft agreement, the 1,500 patents transferred quickly became the deal’s headline figure, an indication that Xiaomi wouldn’t shy away from major acquisitions as it sought to catch up to more established smartphone companies. It was seen as a measure that might allow the Chinese company to move ahead in its timeline for introducing mobile devices to the litigation-heavy markets of North America and Europe.
All that really happened was, Xiaomi paid Microsoft and in addition to that it was compelled to preload Microsoft ‘apps’. It was, as we explained at the time, yet another patent ‘settlement’. It was extortion. Microsoft was trolling. But it keeps embellishing the story (PR) over time….
We need to start recognising that patent trolls don’t need to have size as a criterion; rather, it’s the nature of their behaviour. In that sense, Microsoft is one heck of a patent troll these days. Its mobile business is virtually non-existent, so Microsoft just goes preying on companies that distribute Android. It wishes to make billions of dollars by just threatening companies with litigation.
“…Microsoft is one heck of a patent troll these days. Its mobile business is virtually non-existent, so Microsoft just goes preying on companies that distribute Android.”Not too long ago an article was published about the “growing disparity between NPE [trolls] and practicing entity patent damages” — an article based on a so-called ‘study’ from PwC, a paid liar for Battistelli*.
Can we trust anything PwC says about patent trolls (referred to by euphemisms)? “PwC’s 2017 Patent Litigation Study highlights a number of interesting US trends,” Managing IP wrote, “including the increasing gap between NPE and practicing entity damages and the top 10 awards ever…”
Well, by criteria such as “practicing”, Microsoft now qualities as a patent troll because it’s not practicing in the area of mobile. What will it take for more people to recognise that Microsoft too has been reduced to “patent troll” status (and a profitable one at that)? █
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* There is a lot to be said about the above, including the fact that EPO apologists keep referring as an authority to an EPO-funded ‘study’ which we repeatedly wrote about in the following past articles:
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Posted in Deception, Patents at 5:01 pm by Dr. Roy Schestowitz
And how patent ‘industry’ — especially its figureheads — continues to demonise the U.S. Supreme Court for daring to limit breadth of patents
Reference: Lockheed Martin-Funded Experts Agree: South Korea Needs More Lockheed Martin Missiles
Summary: The very latest pushes for patent maximalism — as seen in mainstream/corporate media in the wake of key decisions from the U.S. Supreme Court
“T
he U.S. Supreme Court decision in Alice v. CLS Bank International, 134 S. Ct. 2347 (2014), has made it more difficult to use patents to protect business intelligence,” says this new article behind a paywall. We expect it to resurface many times in the coming days, as this publication tends to bump it up (using mirrors) and bolster the illusion that software patents at the patent office are a desirable thing. But are they?
“…a lot of the media is simply dominated by the patent interests.”See, a lot of the media is simply dominated by the patent interests. In fact, more than 90% of the news articles that cover patents seem to be written either directly by law firms or those who end up just repeating what they say. They almost monopolise information on the subject.
As of days ago, Dennis Crouch was still poking fun at the U.S. Supreme Court’s decisions that bring balance to the US patent system, essentially limiting patent scope, magnitude and reach to a more reasonable level.
“…more than 90% of the news articles that cover patents seem to be written either directly by law firms or those who end up just repeating what they say.”In the coming days or weeks we are going to publish many articles which counter their misleading narrative/s. It seems to have become ever more essential.
Several days ago, on July 3rd, Dr. Lindsay Moore published the article “Patents Friend or Foe?”
The article comes from a pro-cannabis magazine/site, but it was composed by the patent microcosm that “specializes in the management of intellectual property assets for companies,” by its own admission. Here is what Moore wrote:
For those companies that have patentable subject matter, obtaining legal protection or licensing rights from legitimate holders may need to become a high priority. It is so important at the beginning of an industry to stake your claim early to make sure you get it, and to recognize that many inventors may be discovering some of the same things at the same time. In regard to multiple inventors, it was once the case that whoever discovers an invention first was entitled to the rights to it; however, under recent modifications in U.S. Patent Law, we now have a “first-to-file” system, so it is important to file at least a Provisional Patent Application to gain a priority date and be first in the queue.
Moore’s bottom line is that people should come to her firm to buy some “products” (or services), but all the above alludes to nature. Why should it be patentable at all?
“It’s still deeply disappointing that almost no software professionals are writing articles on the subject of patents.”The point it is making serves to show growing motivation for dissent against the patent system — a dissent which perhaps gains legitimacy when entities that don't deserve patents actively use them to sue the public (even the public that's funding these entities).
It’s still deeply disappointing that almost no software professionals are writing articles on the subject of patents. These people are busy writing code, whereas law firms are busy writing propaganda to tell us that programmers need and want software patents. They don’t. █
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Posted in America, Patents at 10:45 am by Dr. Roy Schestowitz
Funded by the public, but using patents to sue the public
Reference: State university system
Summary: The latest example/s of state universities that are suing the public (or private corporations) that helped fund these universities, having already wasted public funds on pursuing patent monopolies
THE US patent system is gradually repelling if not altogether driving away patent trolls. In the coming weeks we are going to show plenty of evidence, accumulated during May and June when we were busy covering European affairs.
One of the most obtuse examples of patent trolling is taxpayers-funded trolling, such as the NSA or NASA angle which we covered the other day. NASA, which is funded by the public, was literally offering patents to patent trolls [1, 2]. As for the NSA, it’s pursing “licensing” — presumably for surveillance that’s harming the very public which funds the NSA.
What about universities?
“As for the NSA, it’s pursing “licensing” — presumably for surveillance that’s harming the very public which funds the NSA.”Well, the University of Florida Research Foundation (UFRF) was mentioned here before in relation to patent aggression and yesterday IAM revealed that it wants immunity from challenge (at PTAB) — a subject that Patently-O explored several times earlier this summer. If a patent troll this large can incredibly enough claim immunity and rake in public subsidies, what public service does it serve really?
Think about it.
Might as well shut it down or ‘euthanise’ it.
Sites like IAM and the likes of them would resort to propaganda terms like “intellectual property” and then leverage words like “protecting” “property” from “stealing”, but the reality of the matter is that the only stealing here might be stealing of funds from the public.
“So universities, rather than being a pool of public knowledge, have simply become aggressors that can sue private companies at any time.”Well, we have many articles about patent trolls on the way this summer, but this one is unique because a US university is the plaintiff.
In the United States, with its increasingly-privatised universities (passing the Commons to private hands for personal gain), the universities become like patent trolls (paid by taxpayers still) and this is a subject we have been exploring a lot over the years. Sometimes the patents get sold wholesale to patent trolls such as Intellectual Ventures. Recently, another such article emerged, this time in Bloomberg. It was titled “PATENT-HEAVY SCHOOLS LOOK TO COURTS FOR IP PAYDAYS” and it said this:
If the Regents of the University of California and the California Institute of Technology see big paydays in their fight against tech bigwigs, could that further fuel the university patent boom?
A Bloomberg Law analysis of patent infringement lawsuits involving the top five universities that were granted U.S. patents last year offers insight into higher education’s courtroom battles against high tech in order to secure damages.
So universities, rather than being a pool of public knowledge, have simply become aggressors that can sue private companies at any time. Does that make sense to anyone? █
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Posted in Asia, Patents at 9:48 am by Dr. Roy Schestowitz
A self-harming shot in the foot per se
Summary: Further analysis of the changes just made to rules in the Indian patent office after intensive lobbying by companies that are not even Indian and are notorious for patent bullying worldwide
THE EPO has been warming up to and openly promoting software patents in clear defiance of the rules. The USPTO, by contrast, gradually moves away from this software patents bubble. What about India, probably the world’s biggest software producer? Well, we had covered the subject for about 9 years and revisited the subject twice in the past few days due to changes to rules. We lack the ‘legalese’ training/background to interpret the changes with sufficient authority, so we typically rely on legal professionals who break down the changes and analyse these.
“More companies can now pretend that their patents on algorithms somehow pertain to hardware like a “device”…”Our initial interpretation of the changes, based on patent maximalists (IAM) and Indian patent minimalists (The Centre for Internet and Society), is that these changes were bad*. They were detrimental to software developers as new loopholes were being opened, making more developers susceptible to infringement claims. As we wrote 2 articles about it recently we were anxious to see if someone can contradict this and a short while ago a patent law firm, RNA IP Attorneys, referred to these changes as “one step forward, one step backward”. Here are the details:
The Indian Patent Office predicament over software patents continues. The patent office has issued another version of modified guidelines for the patentability of Computer Related Inventions (CRIs) on June 30th 2017. This is the third time the guidelines related to patentability of CRIs have been modified. The first version of the guidelines was issued on 21 August 2015 (2015 Guidelines) which were later replaced by the guidelines issued on 19 February 2016 (2016 Guidelines).
[...]
The Patent office has now issued fresh guidelines to address concerns of stakeholders. One of the essential features of 2017 guidelines is deletion of the recommended test/Indicators to determine patentability of CRIs as detailed above. The guidelines were currently strictly applied by the examiner and in case the hardware and software did not pass the novelty test they were refused at the threshold. The deletion of these “test parameters” gives discretion to the examiners to focus on the underlying substance of the invention, not the particular form in which it is claimed. This is amplified by the clarification provided in the guidelines that when the issue relates to hardware/software relation, the expression of the functionality as a “method” is to be judged on its substance.
Finally, it may be noted that the Patents Act clearly excludes computer programmes per se. Thus guidelines have to be read with the provisions in the Patent Act. We believe the examiners would have discretion while determining the patentability of CRIs however may not allow blanket exclusion of hardware novelty requirement in a patent application by merely camouflaging the substance of the claim by its wording.
That last paragraph, regarding the “camouflaging” of “substance”, is what we alluded to the last time. More companies can now pretend that their patents on algorithms somehow pertain to hardware like a “device” and as the above puts it, the exclusion is on “computer programmes per se.” (similar to “as such” in Europe) █
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* When we say “bad” we mean pro-software patents. By contract, when IAM says “good news for patent owners,” as it did yesterday, IAM means good news for patent trolls and lawyers, not for society or businesses.
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Posted in Courtroom, Google, Patents at 9:23 am by Dr. Roy Schestowitz
Bullying with patents should never have become Google’s strategy
Summary: Waymo’s case is seeing claims narrowed, but Google should altogether drop the case and stop rattling patent sabres
THE US patent system is a system where patents regain some sanity, aligning better with the original purpose of patents.
Earlier this year we expressed our great disappointment at Google; it had sued a company using patents. I once urged some Google executives never to pursue patents as a business strategy, but did they listen? It didn’t look like it.
Having said that, based on yesterday’s report from a reliable source, Google has seemingly decided that being a patent bully isn’t too wise a strategy. Well, it’s too late to change the record or the perception that Google can be a patent aggressor. Still, after stockpiling patents on driving and suing Uber there is the following development:
Waymo has narrowed the claims in its lawsuit against Uber over self-driving car technology. Alphabet’s self-driving car company dropped most of its patent claims in an effort to streamline a planned October trial.
Drop the case altogether. Google or Alphabet or whatever they choose to call themselves these days would be wise to erase this embarrassing episode from history. Otherwise, much of our support for platforms such as Chrome OS and Android will be reduced to zero. We don’t support spoiled brats with patents. █
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Posted in Europe, Patents at 8:51 am by Dr. Roy Schestowitz
Reference: Greenwashing
Summary: In an effort to paint the EPO with the “green” brush and frame the EPO as a friend of Earth, the EPO keeps spreading puff pieces in the media, even though it has all along granted monopolies on almost everything in nature (in defiance of its very own rules)
THE EPO has a very toxic relationship with nature. EPO management keeps privatising what’s naturally-occurring (since before humans existed), giving individuals and large corporations monopolies over nature itself, even genome.
“EPO management keeps privatising what’s naturally-occurring (since before humans existed), giving individuals and large corporations monopolies over nature itself, even genome.”There are actually many protests (out in the streets) over it. Even the USPTO has never been as radical as the EPO when it comes to patents on life.
The EPO has no potent explanation/face-saving response to the protesters. It just tries to ignore them. The management is really that arrogant. If it suppresses protests and strikes by its own employees, what are the chances the public can influence outcomes?
“The EPO has no potent explanation/face-saving response to the protesters.”A couple of days ago we saw this latest greenwashing puff piece, tailored for the EPO’s PR department. We would not be surprised if it came about due to pressure from the PR staff… that’s just how the EPO operates, people who are familiar with these tactics once told us.
This latest wave of EPO greenwashing was alluded to the other day; they did it a lot last year and in 2015 also. It’s despicable. Why are so-called ‘news’ sites covering this? Is it because some ‘journalists’ have nothing better to do than cover non-news? Here is the gist:
Published on Monday, July 3, the policy brief aims to “encourage an informed debate on climate change mitigation technologies, with findings based on the most recent data sources”.
So they want to “encourage [...] debate” sort of like Battistelli wants to foster “social [...] dialogue” (pure PR).
2 days ago we saw this new press release about the EPO granting a patent which would likely harm patients. EPO policy leads to that. It encouraged monopolies on nature and only after considerable resistance it was forced to backtrack on some (December of last year), earlier this month (or the very end of last month, depending whether the decision or the actual announcement counts) formalising this as the new policy. Here is one new article about it:
Based on a proposal submitted by the Office, the Administrative Council of the EPO decided on 29 June 2017 to amend Rules 27 and 28 EPC to exclude from patentability plants and animals exclusively obtained by an essentially biological breeding process.
As we noted beforehand (on the same day), this is a massive blow to confidence in European Patents. They can retroactively be revoked in bulk and there is no opportunity to appeal.
“…this is a massive blow to confidence in European Patents. They can retroactively be revoked in bulk and there is no opportunity to appeal.”Has the EU/EP stopped the EPO from patenting life? And if so, why not stop the gross injustices and violations of labour rights?
Earlier today in the Indian press we found that the “[s]eed industry association welcomes EU [sic] body move on patents”. To quote:
The National Seed Association of India (NSAI) has welcomed the European decision to refuse grant of patents in respect of plants or animals exclusively obtained by means of an essential biological process.
The Administrative Council of the European Patent Office (EPO) voted for a change in the regulations of the European Patent Convention (EPC) in this direction.
“The EPO ruling gives clarity on product and further defines ‘the new variety’ developed through breeding, which is an essential biological process. The decision that it is not a subject matter of patent is a very important milestone in interpretation of IPR laws,” the National Seed Association of India has said.
What we are seeing here is the gradual realisation that the EPO is a pariah organisation and patent office, incapable of taking into account public interests and sometimes even directives/instructions from the European authorities. What category of patents may be next to be voided in one fell swoop? Maybe software patents, which are being granted every day in spite of the clear ban? █
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Posted in Europe, Patents at 8:18 am by Dr. Roy Schestowitz
And Ernst as the supposed 'supervisor' never really showed signs of resistance to Battistelli’s policies, either
Reference: Subversion
Summary: Key members of Team Battistelli retain positions of power and individuals who are soft on (or obscenely close to) Battistelli may gain seats in the coming year
WHETHER or not the EPO was going to be Battistelli-free, weeks ago we said that Team Battistelli (the collective) would likely remain in power. Friends of Battistelli and people who are loyal to him already occupy most of the key positions, even outside the Office (e.g. Patricia García-Escudero). Having made “an example” out of an independent judge by defaming and effectively ousting him (against the rules and against the spirit of the EPC), who would be courageous enough to stand up to Battistelli? Look or recall what allegedly happened to Roland Grossenbacher after he had attempted to counterbalance Team Battistelli…
“Ernst would be too weak to accomplish anything (like actual resistance to Battistelli, whom he is supposed to boss, from September until next summer).”Grossenbacher was a lot stronger and more influential than the next Chairman of the Administrative Council (Ernst), not just because Grossenbacher previously occupied Battistelli’s position but also because he is technical, older and so on. Ernst would be too weak to accomplish anything (like actual resistance to Battistelli, whom he is supposed to boss, from September until next summer). Lost time…
Found via this comment and via SUEPO, not to mention online accounts among other people who told us about it by mail, was this new coverage from Kluwer Patent Blog. A leak about this news was published by Techrights two weeks ago, so we basically broke the news about Battistelli leaving. The patent microcosm conveniently ignored us about it and is giving no credit (not that credit matters that much). Here is what these UPC boosters are saying 2 weeks late:
The search for a successor of Benoît Battistelli as president of the European Patent Organisation has started in full with the publication of a vacancy notice on the EPO website. It is obvious from the text that the controversial Battistelli, whose term in office ends in June 2018, has no chances to stay on.
According to the notice, which was decided on during last week’s meeting of the EPO’s Administrative Council (AC), candidates need to have ‘thorough knowledge and proven practical application of modern management methods, including an outstanding ability to establish and foster social dialogue’, among others. This seems to be a direct reference to the failure of the current president to improve the social situation at the EPO. Strikingly, it is merely considered as ‘an advantage’, according to the notice, if a candidate has ‘practical experience in patent matters, in-depth understanding of the patent system and knowledge of the European Patent Organisation’.
This isn’t the happy ending, but it might be a step towards it. As we stated last week (we were the first to report this), Alberto Casado Cerviño takes over as “new EPO Directorate-General Patent Granting Process,” as confirmed by the EPO yesterday (warning: epo.org link).
“It might be a good time to remind readers of Casado’s past and even the scandals.”The EPO is saying what Techrights reported quite a long time ago bar the spin (promotional language in the press release). With growing suspicions that Antonio Campinos might take over from Battistelli, worth emphasising is the following part: “From 1994 to 2004 he was Vice-President of the EU’s Office for Harmonisation in the Internal Market (OHIM). Mr Casado Cerviño was also a member of the Administrative Council of the European Patent Organisation from 1988 to 1994, and led the Spanish delegation to the Council from 2008.”
OHIM is now known as EUIPO, which Campinos is heading while enjoying that notorious immunity.
It might be a good time to remind readers of Casado’s past and even the scandals. He does — like much of Team Battistelli — have some skeletons in his wardrobe. Here is a list of some of our articles about him:
The fight for the EPO’s future and for justice at the EPO will certainly outlive Battistelli, whose legacy at the office is best described as subversion. █
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Posted in Europe, Patents at 7:22 am by Dr. Roy Schestowitz
King of his domain; any challenge (even to narrative) is out of the question
Summary: The sharp contrast between the attitude of the Ministry of Social Affairs and Employment (SWZ) when premises are occupied by King Battistelli and when they’re not
THE EPO drives a lot of its own employees to disability and death. Ask the employees. They will openly speak about it. The EPO is an atrocious employer.
“The EPO is an atrocious employer.”Quite a few EPO deaths are caused by suicide. The latest one happened weeks ago, but EPO management does not want to call it a suicide and it is preventing the authorities from investigating. It refuses to look into this itself, so basically there’s no accountability, inquest etc.
Regarding at least some of the suicides, Bavarian TV found the EPO’s management (with its controversial Stasi-like department [1, 2, 3, 4, 5, 6, 7) to be culpable. The EPO's management was very rattled by these findings and wanted them suppressed.
“Regarding at least some of the suicides, Bavarian TV found the EPO’s management (with its controversial Stasi-like department) to be culpable.”That helps demonstrate the sort of attitude adopted by the management and embraced by Team Battistelli.
The other day we wrote about an incident in the new building — a subject we revisited a couple of days ago because several Dutch-speaking people corrected us by clarifying that the fall was about 3 meters only (one floor) and thus extremely unlikely to be fatal. Well, this is why we typically prefer to wait for coherent translations rather than automated garbage (like that which clueless Battistelli believes can shoulder the UPC* and help replace examiners).
There is finally an English translation from SUEPO [PDF]. It translated one of the reports as follows (highlight is ours):
Person falls metres at new patent office building
RIJSWIJK – According to a police statement, someone fell onto a roof from a higher floor at the European Patent Office (EPO) in Rijswijk on Wednesday morning. A trauma helicopter was called with a mobile medical team on board. The victim has now been stabilised and brought to the hospital.
It is not known exactly what happened. The victim is believed to have fallen a couple of metres. The identity of the victim is not clear. And nor is his or her current condition. The victim is thought to be communicating, however.
The Ministry of Social Affairs and Employment (SWZ) inspectorate, the former Labour Inspectorate, will investigate the accident. The result is expected in three months.
New building
At the location of the accident, Patentlaan in Rijswijk, work is being carried out on the patent office’s new building. This office, the outline of which can already be seen clearly from the A4 motorway, will be 107 metres high and features a lot of glass.
“Unaccountable lobbying. That’s what the EPO has become.”So a fall is treated more seriously by the Dutch authorities than a person jumping out the window during office hours.
And they still grant the EPO immunity?! And pretend that the EPO deserves to be above the law while ramming the UPC down politicians’ throats, effectively trying to change the law? Unaccountable lobbying. That’s what the EPO has become. █
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* The UPC is thankfully stuck, but Team UPC is pressing on with “alternative facts”. Lies that were published yesterday were not exactly lies but half-truths from Bristows LLP. Everybody knows that the British government absolutely cannot proceed with UPC amid Brexit (inherent incompatibility), but be sure Bristows will spin that somehow, framing it as a sign of progress.
Moreover, published on the same day was this latest piece of lobbying; without even knowing the nature of the complaint at all (mere speculations about it) they tell us that the “German UPC challenge [is] statistically likely to fail” (because who needs higher German courts anyway…? Bristows staff knows better than German judges, without knowing anything about the nature of this case).
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