09.06.17
Posted in Antitrust, Asia, LG, Patents, Samsung at 6:51 pm by Dr. Roy Schestowitz
The latest ‘revolution’ in China is deeply self-corroding
Summary: China’s short-term patent policy already backfires by attracting patent parasites (growing at the expense of producing industries)
IT was only days ago that mainstream media relayed the lie (unsupported by facts) that the US loses leadership to China (in the patents sense). All that the US ‘loses’ is patent trolling and other such nuisance. Earlier today we saw this new press release whose headline made it abundantly clear that patents are not about innovation but about “blocking competitors” (their words, i.e. opposite of innovation).
“In Korea (the South), which in principle does not allow patenting of software, there are two massive corporations which dominate the charts (not only in Korea).”As we have been noting here for about a year, China is creating a massive patent bubble; last year alone, for example, over a million patent applications were filed! Yes, over a million! Imagine how rubbish these must be to reach/added up to such a figure!
In Korea (the South), which in principle does not allow patenting of software, there are two massive corporations which dominate the charts (not only in Korea). Those corporations are LG and Samsung (especially the latter). Design patents should generally not be granted; that’s what copyrights and trademarks (or “registered designs”, not patents) are for, but Samsung joins this gold rush anyway, possibly in anticipation of more Apple lawsuits (this matter may soon reach the US Supreme Court). The other day Florian Müller said that the “Korean court denies Qualcomm’s motion to stay execution of KFTC antitrust ruling,” referring to yet another headache that we covered here before. The background:
Last December, the Korea Fair Trade Commission (KFTC) handed down a decision against Qualcomm that U.S. tech companies welcomed. The following month, the FTC and Apple sued Qualcomm on antitrust grounds in California. In March, it became known that Qualcomm’s refusal to licenses its standard-essential patents (SEPs) on FRAND terms to other chipset makers is one of the various concerns the Korean competition authority has.
Korea is a smart country; unlike China, it’s not being rushed into the patent bubble. It’s not being shamed into patent maximalism, either. Their regulatory agencies have already dealt big blows to US corporations such as Intel (we covered this at the time) and they don’t let bullying become the norm. Also, as we noted here many times before, Korean companies very rarely initiate legal action with patents (unless attacked first). It’s something about their culture.
“Korea is a smart country; unlike China, it’s not being rushed into the patent bubble.”Compare that to China.
“China’s top patent owner Huawei,” as IAM put it the other day, is ‘collecting’ patents right now (from a Japanese company). Here is what IAM predicts:
China’s top patent owner Huawei has continued its third-party acquisition efforts with the recent pick-up of seven US patent grants from Japanese company Hitachi. Several weeks on from that transaction, it doesn’t look like the apparent patent sale was part of a larger deal to settle the US legal tussle between the two companies, which is ongoing in the Eastern District of Texas. Instead it underline’s the Japanese company’s all-of-the-above approach to monetising patents as its business is transformed.
Those unruly patent zealots, as IAM put it in another article, have devolved into a “shouting match” in China:
A somewhat hostile question from an Apple-linked private practice lawyer sparked a heated and, at times, ugly exchange of the sort rarely seen at patent conferences in Beijing this afternoon. Apple and Chinese firm Iwncomm have been battling it out in Chinese courtrooms for more than a year, and attendees at the China Patent Annual Conference, which kicked off today at the China National Convention Center, saw it play out before their eyes.
Iwncomm is far from a household name, even in its native China (where it’s also known as Xi’an Xidian Jietong). But its IP profile has risen significantly since it became the first plaintiff to obtain an SEP-based injunction in China. In a session focused on IP licensing which also featured Apple senior legal counsel Steve Wang, Iwncomm managing director Cao Jun introduced his company and explained his view on why China shouldn’t be afraid to strengthen IP protections.
We have become accustomed to a lot of legal ‘action’ in China, unlike say in Korea or Japan (their courts are tougher on patents). As of this week, IAM calls some of the most horrible patent trolls “PIPCOs” (avoiding the term “troll” like Trump avoids “climate change”). It’s about china again (ZTE) and here is what the business model is compared to:
The PIPCO model is not entirely dead — the success of the likes of InterDigital, Rambus and Finjan show that it can still work for a select few — but it’s clear that most licensing businesses in the future will remain private.
We have been writing quite a bit about Finjan lately. It’ll hopefully perish in the US, but the likes of it seem to have spread eastwards to China.
If China doesn’t recognise just how misguided its patent policy is, not much will be left there other than lawsuits (as opposed to production). This is of course good for patent zealots like IAM and its funding sources, but very bad to productive companies. █
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Posted in America, Courtroom, Law, Patents at 6:07 pm by Dr. Roy Schestowitz
What’s more evil than software patents are people who constantly attack those who rule against software patents
Summary: The reality that software patents are a passing fad in the US is being challenged by those who profit from software patents (hint: they’re not at all developing any software)
EARLIER this week Benjamin Henrion alerted people to the publication of this new article which says “[t]he real enemy is software patents” in relation to an ongoing Facebook controversy. “I hope that Facebook and other multinational companies pool their resources to lobby for an end to software patents,” Henrion added. Here is what the article said:
Software patents are evil, but BSD+Patents is probably not the solution
[...]
Many open source software (OSS) projects led by industry giants use the Apache License 2.0 (henceforth the ASL2.0), compared with the MIT or BSD licenses which also enjoy popularity amongst many other OSS projects. This is the license used by projects in the Apache Software Foundation, but you can use the license without being part of the ASF. TensorFlow and many other important non-ASF projects use this license.
The ASL2.0 has appeal for enterprises for a few reasons. One obvious reason is being a redistribution-friendly, permissive license (like MIT / BSD), so you can include such code in closed source products that you sell. Another reason is that it makes patent grant rights explicit. In other words, the license grants users unrestricted use of any patented IP in the codebase in perpetuity. This patent grant applies transitively to any projects that use or redistribute the project in question.
Having code that is both permissively licensed and patented might seem a bit strange. Some companies may seek patents for IP created in OSS projects to try to protect themselves in future IP litigation . They have no intent of selling or profiting from the patents, but they want the IP distributed in their OSS projects to stay free and commercial friendly.
This is where the ASL2.0′s patent grant is so important; it protects both the OSS authors’ and users’ redistribution rights. Without this, a patent troll could start a lawsuit and potentially force code in an established OSS project to be removed, which would wreak all kinds of havoc on developers and users alike.
In my opinion, software patents are evil because they stifle innovation achieved through incrementalism, and software engineering consists of a lot of this.
[...]
The real enemy is software patents. I feel Facebook’s stance on this is ideological, and it seems unjust to make OSS developers pay the price for software patents’ continued legality in the United States. BSD+Patents may stop certain kinds of patent trolls, but the only real solution is to bring about an end to software patents altogether.
Bottom line is that I agree with the ASF’s stance on the BSD+Patents issue, and I hope that React will change its license. Further, I hope that Facebook and other highly profitable multinational companies pool their resources to lobby for an end to software patents.
We have already included nearly a dozen links about this controversy (BSD+patents) in our daily links. It has been going on for months if not a year (it’s only this summer when the subject resurfaced again and the arguments intensified).
“People like myself, who write software (since age 14 in my case), generally know that software patents are a sham. Software professionals do not want patents.”For the sake of concision, we wish to focus on the patents aspect and generally obsess over the text in bold above (it’s not us who added the bold faces).
People like myself, who write software (since age 14 in my case), generally know that software patents are a sham. Software professionals do not want patents. They need only copyrights. But the patent ‘industry’ profits not from innovation but from litigation; that’s why it keeps pushing for software patenting.
Earlier today we found this new publication from Nick Shipp (Kilburn & Strode LLP). It’s nonsense; this is based on a lie we debunked here before. This Court of Appeals for the Federal Circuit (CAFC) decision wasn’t about Alice or software patents. In fact, it wasn’t about software at all. As we said at the time, patent maximalists would attempt to spin the decision as a defeat to Alice. And we were right. These patent maximalists continue to twist this even a month later. From Nick Shipp:
The Federal Circuit’s Visual Memory decision continues to accentuate the need for technical advantages in patent specifications to avoid eligibility issues in the US and could emphasise the advantages of US attorneys drafting more detailed patent specifications. As we explore, these two points could have knock-on positive effects around the world, especially in Europe.
[...]
While it often takes years before changes in practices in US drafting take effect amongst US practitioners and those patent applications finally find their way into Europe, as European practitioners we see the slow shift in US practice post-Alice with a generally warm glow because it should help to mitigate some of the fundamental problems European attorneys face relating to patent eligibility before the EPO. Positively, for patentees, applying these changes in drafting practice should not only improve chances of avoiding Alice rejections in the US but also bring down prosecution costs in Europe, which can only be a good thing.
What he fails to note is that this case wasn’t about software; watch how he proceeded to spinning it in regards to the EPO. Despicable!
Nick Shipp wasn’t alone this week. Another patent maximalist did his usual PTAB bashing. It’s almost the only thing he does these days. Here are some of his latest tweets:
- “patent atty https://www.linkedin.com/in/domenico-ippolito-10b9498/ … beats PTO on ALICE 101 rejection at PTAB for Ebay client, rare feat nowadays: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016002985-08-24-2017-1″ (source; “Question is,” I responded to him, “was it a software patent in the first place? Sometimes they are not.”)
- “PTO withdraws all 103 rejections, continues to rely on 101 bc PTAB will rubber stamp any “abstract idea” rejections https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016007918-08-24-2017-1″ (source; also covered today by Dennis Crouch, another PTAB basher)
- “Goldman Sachs learns $ can’t buy #patent happiness, loses on 101 at PTAB like the rest of us 99%ers https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016007788-08-24-2017-1″ (source)
- “IBM loses another #patent app decision under 101 at PTAB bc Wikipedia says “crowdsourcing” been around since 1714 https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016007667-08-23-2017-1 …” (source)
“Another patent maximalist did his usual PTAB bashing.”We could go on and on. PTAB bashing is high on the agenda right now, also in Dennis Crouch’s blog, which has become a PTAB bashing/lobbying blog trying to influence the Supreme Court into ‘abolishing’ PTAB (because there’s a window of opportunity soon). Watch what Crouch published earlier today: Alice bashing too. Will he bash the Supreme Court too when the Supreme Court sides with PTAB? Is Alice still something to be ridiculed more than 3 years since the Supreme Court decided on it?
A few days ago Crouch wrote about USPTO patents, unintentionally revealing that such patents have devolved into a template full of cruft that overwhelms examiners for fast-and-loose grants. “To be clear,” he wrote, “I’m not demonizing patentees who submit lots of references. What I’m working toward is whether the large number of references creates any special difficulty or benefits for the examination process and whether examiners receive any special assistance in considering the large number of references submitted.”
“Will he bash the Supreme Court too when the Supreme Court sides with PTAB? Is Alice still something to be ridiculed more than 3 years since the Supreme Court decided on it?”It’s an old strategy; in examination (in schools) too. Write lots and lots of stuff, especially references (which cannot be conceivably checked exhaustively), then make a rejection (based on the evidence) harder. It’s hard for an examiner to justify rejection without reading every single reference. When there are strict time limits and unrealistic expectations, as is (notoriously) the case in the EPO, what’s an examiner to do? Reject because there are “too many references”?
Incidentally, there is this new article today which says that CAFC is going to deal with the USPTO more directly, not just the patents granted by it but the “expenses of the proceedings…”
“We intend to follow the above developments closely because the patent microcosm is working overtime to subvert the system and undermine all the progress made under Michelle Lee (whom they managed to drive out of Office).”As Managing IP put it this afternoon: “Parties have been asked to brief on the issue of whether Section 145’s “[a]ll the expenses of the proceedings” provision authorises an award of the USPTO’s attorneys’ fees, after Federal Circuit ordered a sua sponte rehearing en banc of Nantkwest v Matal” (yes, Matal is still in charge).
We intend to follow the above developments closely because the patent microcosm is working overtime to subvert the system and undermine all the progress made under Michelle Lee (whom they managed to drive out of Office). █
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Posted in Europe, Patents at 5:17 pm by Dr. Roy Schestowitz
Summary: Dr. Ingve Björn Stjerna is publicly named as the person behind the UPC deadlock; the EPO is meanwhile pretending — as arrogantly as always — that no such deadlock exists and urges people to pretend it’s already a reality
THIS may be news to some (if not many). The main barrier to UPC (other than Brexit) is a complaint from Ingve Stjerna, a longtime watcher and critic of the UPC. For those who don’t know yet, the UPC is a scourge and a curse to Europe. It helps nobody but the litigation ‘industry’ (or those leaning to litigation for profit, notably patent trolls).
“It helps nobody but the litigation ‘industry’ (or those leaning to litigation for profit, notably patent trolls).”This post will not delve into the technicalities of the UPC or the legal impediment to implementation thereof. Instead, assuming many readers already heard the above news, we’ll go through some of the responses.
There is a battle right now; the battle happens — among other places — at the EPO. The litigation microcosm, which we often refer to as “Team UPC” (similar agenda to Team Battistelli), wants to sacrifice the entire continent for a quick buck (or euro). These people lie to the media about it and even hijack the voices of Europeans (individuals and businesses). This isn’t new. They have been doing this for nearly a decade. Battistelli has, at a personal capacity, been doing this since before he was EPO President (Ingve Stjerna covered that at the time and it’s in his latest book).
“Battistelli has, at a personal capacity, been doing this since before he was EPO President (Ingve Stjerna covered that at the time and it’s in his latest book).”Bech-Bruun’s Martin Dræbye Gantzhorn and Emil Bjerrum wrote and published this article earlier this week. It speaks about the Court of Appeals for the Federal Circuit (CAFC) in the US and it strives to expand the scope of patents in Europe. While the EPO and SIPO (China’s, not Croatia’s) move towards granting patents on just everything, in the United States the courts say “No” to a growing number of US patents (a subject we shall cover later tonight in a separate post).
Here is a portion from the new article of Dræbye Gantzhorn and Emil Bjerrum:
A US District Court decision of 4 August 2017 reduced the chances of patenting diagnostic methods. This decision illustrates well the challenges of applying for a patent on medical devices for diagnostic methods in the USA and EU.
[...]
The EPO does not exercise the same restrictive approach of distinguishing an invention from discoveries. Instead, however, the applicant will have to make sure that the invention is not categorised as a diagnostic method, the description of which includes all of the four steps from examination, collection and testing of data to the attribution of the deviation to a particular clinical picture.
So patent maximalists led by Battistelli and Team UPC can simply mis-classify a patent application in an effort to get around the rules. Curiously enough, the judge who is on house ban at the EPO (against the rules) issued a ruling against something akin to the above; it was one of his latest decisions if not last decision. When people do their work properly at the EPO (namely scrutiny of patents) they tend to get punished. Such is the implicit policy of Battistelli: grant or perish.
“So patent maximalists led by Battistelli and Team UPC can simply mis-classify a patent application in an effort to get around the rules.”Now, about the UPC, Team UPC’s Fiona Nicolson (Bristows) would have us believe that there’s progress in the UK. Nothing can happen here (really!) because of Brexit, yet this article that’s promoted by Team UPC is titled “Draft UPC legislation laid in Scottish Parliament”.
I too could have something “laid” in the Scottish Parliament when I visited it 3 years ago; that does not imply anything is going to happen. Almost nobody from Team UPC even bothered mentioning that over a month ago UPC was dropped from the agenda of the English/British Parliament. How come?
Similarly, back when Germany and German politicians with financial stake in the UPC did nefarious things, Team UPC was either silent or lied about it. Bristows in particular did a whole marathon of hogwash. They didn’t want political riggers to get caught.
“Similarly, back when Germany and German politicians with financial stake in the UPC did nefarious things, Team UPC was either silent or lied about it.”Thankfully, Ingve Stjerna explained to the authorities what Team UPC had done. He even went through videos of a 1AM hearing to manually identify faces of a few dozen people among ~600 politicians. The latest article/paper from him explained what happened and it’s truly jaw-dropping that Germany would stoop to such a level; it makes even Volkswagen look honest!
It’s no longer a secret that Ingve Stjerna is the man behind the complaint. SUEPO was exceptionally quick to take note of it. Earlier today, within just hours of this original report, SUEPO took note of Mathieu Klos’s article. It’s all about Ingve Stjerna. He first tweeted this in German and later in English too. “Identity revealed,” it said, “author of Constitutional Court case against UPC is Düsseldorf lawyer Ingve Stjerna” (he also tweeted teasers about it, like: “More details about DE constitutional complaint soon on juve.de”)
Ingve Stjerna is a brave man; we already dropped some hints about it (as soon as the complaint had been filed), but now everybody knows.
From the original article: “Lange wurde spekuliert, wer Ende März das Beschwerdeverfahren gegen den UPC-Vertrag beim Bundesverfassungsgericht eingereicht hat. Wie JUVE nun aus Politikkreisen erfuhr, handelt es sich bei dem Beschwerdeführer um den Düsseldorfer Rechtsanwalt Dr. Ingve Stjerna.”
“Ingve Stjerna is a brave man; we already dropped some hints about it (as soon as the complaint had been filed), but now everybody knows.”We wish to caution EPO staff; Team UPC will target the individual, starting personal attacks as part of their lobbying campaign behind the scenes. Team UPC has always been nothing but a collective of thugs and liars. Just like Battistelli. Some of them already tried to compare me to “Daesh” or paint me as some kind of Russian stooge.
In reality, Ingve Stjerna is a friend of EPO examiners in the sense that he can redeem examination from the planned obsolescence/collapse of EPO (to make way for UPC and mass litigation).
Watch closely the behaviour of Team UPC in the coming few days or weeks. “What everybody thought” was the response of one German UPC booster (to the news about Ingve Stjerna).
“Duesseldorf-based Attorney at law Dr. Ingve Stjerna filed appeal against #UPC before German Constitutional Court… as I then speculated,” wrote another UPC booster.
“Watch closely the behaviour of Team UPC in the coming few days or weeks.”A longtime UPC critic, Francisco Moreno, said this to me in Spanish: “Sí, hay que ser valiente para poner en riesgo ingresos de tu gremio. No es casualidad que ejerza como abogado independiente (no en despacho)”
It means something like: “Yes, you have to be brave to put at risk your Guild.”
Someone who choose the Twitter handle “UPCtracker” (quite revealing of the bias) said: “This riddle out of the way, time to focus on the substance of the complaint, if any.”
So now starts the nitpicking, which will likely be accompanied by some personal attacks or scandalisation (same tactics used against Michelle Lee, PTAB and others).
“So now starts the nitpicking, which will likely be accompanied by some personal attacks or scandalisation (same tactics used against Michelle Lee, PTAB and others).”Translation of the above tweet, as I responded to UPCtracker, is: “we don’t care if UPC is a series of serious abuses, we just need it to profit from lawsuits!”
Meanwhile, the EPO acts as though it’s business as usual for the UPC. There’s an ongoing event about it in Munich, organised by Managing IP who told me today [1, 2]: “UPC judges: Last we heard – ‘recruitment process postponed’. NB: UPC Advisory & Administrative Committees responsible for appointments. [...] UPC judges: Administrative Committee (and others) established after UPC Agreement Protocol enters into force. Germany’s consent required.”
Nothing is happening any time soon. We wrote about it just over a week ago. There is no Unitary Patent, the UPC may already be a lame duck/dead, but watch what the EPO tweeted today: “What is the procedure for obtaining a #UnitaryPatent from the EPO? This guide explains it…”
“Stop advertising things that don’t exist,” I told them.
“Meanwhile, the EPO acts as though it’s business as usual for the UPC.”Remember when Team UPC advertised job openings for jobs that did not exist and probably never ever will exist? Will the EPO be taking payments for UPC-related services even though the UPC may never exist at all (anywhere)?
Also today the EPO was once again advertising a Margot Fröhlinger event that we mentioned before. “There’s still time to register for the #roadshow with @EPOorg,” it said. Why would anyone want to pay to be lied to by the EPO about the UPC? It beggars belief!
Managing IP‘s coverage from its event the other day said this: “Raimund Lutz says Germany’s Constitutional Court has asked for comments on the UPC lawsuit. #EUPatent2017 # unitary patent”
We wrote about it yesterday (specifically this tweet). UPCtracker (the real name is Thomas Adam by the way) responded with: “Q is: who was asked. If EPO (Mr Lutz’ employer) specifically, could imply structure of BoA relevant for DE constitutional cmplt after all?!”
“By all means notice how, even though great uncertainty looms over the UPC, the EPO and Managing IP (working together in Munich this week) carry on pretending it’s inevitable.”I told him that the “EPO is not a patent office but a lobbying operation that’s exempt from the law and commits crimes” (no accountability, so why not?)
Managing IP mentioned the UPC in another tweet from its event: “Final session: UPC’s ADR Centre & patent arbitration. @ClemensHeusch: CJEU in Huawei said 3rd party decision, so not mediation #EUPATENT2017 pic.twitter.com/lD1tzkjsMp”
By all means notice how, even though great uncertainty looms over the UPC, the EPO and Managing IP (working together in Munich this week) carry on pretending it’s inevitable. As Ingve Stjerna put it earlier this year, “the UPCA’s entry into force is not at all secured.” █
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