10.31.17

More Information Emerges About Provenance Asset Group LLC, Where Thousands of Nokia Patents Are Being Passed Through

Posted in Microsoft, Patents at 2:12 pm by Dr. Roy Schestowitz

Legacy of Microsoft’s Stephen Elop

Photo by Luca Sartoni

Summary: A press release about Provenance Asset Group LLC finally surfaces and we worry it might fuel a litigation campaign against Android OEMs, much to Microsoft’s pleasure

THINGS have been pretty grim at Nokia since Microsoft showed up. Not only have there been loads of layoffs but work on products — including Linux projects — got axed. There’s nothing like that anymore. Nothing left.

Rocky Nokia has ended up as little more than a pile of patents — a fact which we predicted back in 2011 (and it did, in fact, become a reality very quickly after all). It didn’t take long for Microsoft to actually instruct Nokia to offload patents onto patent trolls — those which Microsoft could control anyway. In a sense, as we foretold, Microsoft has truly turned Nokia into patent trolls’ arsenal.

The latest passage of Nokia patents was to Provenance Asset Group LLC, a dodgy and mysterious new group that IAM elaborates on. Here are potential distribution destinations and the type of patents at hand:

While the portfolio has approximately 4,000 US assets, the overall stockpile of IP changing hands is more than 12,000 individual patents in 4,500 families – with significant coverage in key European and Asian markets – making this one of the largest deals of the last five years.

The rights, which include assets from both Alcatel-Lucent (which Nokia acquired in 2016) and Nokia-Siemens (a joint venture which the Finnish company bought out in 2013), cover a broad range of technologies including telecoms, gaming, semiconductors, software, Wi-Fi and Internet of Things (IoT).

Provenance Asset Group LLC, a group that was virtually non-existent a few days ago, has just issued this press release (probably its first). To quote: “Initially the assets are drawn from more than 4,500 patent families comprised of 12,000+ individual patents and patent applications acquired by Provenance from Nokia, a global leader in creating technology to connect the world. Provenance will build on this foundation by acquiring litigation-grade patents from other leading global companies.”

That sounds just like IAM, but then again IAM is a stenographer for patent trolls. Who is behind this shell? “McCurdy will serve as CEO of the new company, while Lynch assumes the role of President. Quatela will serve as a special advisor and member of the board. Provenance is based in Essex, Connecticut with offices in Rochester, New York.”

We expect some lawsuits and/or blackmail to come out of it. They didn’t get these patents just to sit on them. Will Microsoft direct/orchestrate these attacks? We don’t know yet, but we’ll watch closely.

Meanwhile, based on this new report, MasterMine is back in action (we wrote about it a few months back) and Microsoft may be in trouble again:

The Federal Circuit reversed the invalidation of data-mining patents that Microsoft Corp. sued to nix amid infringement allegations, finding Monday that functional language alone was not enough to show the patents impermissibly indefinite for claiming both an apparatus and a method.

While denying patent-holder MasterMine Software Inc.’s appeal of a Minnesota federal court’s claim construction, the panel determined the patents still did not run afoul of Federal Circuit precedent.

However this ends up, we certainly hope that Microsoft will stop attacking — directly and indirectly — GNU/Linux. People are not foolish and they can see what Microsoft is up to, including its lobbying for software patents. █

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Tightening Patent Scope and Limiting ‘Damages’, Starting With the Obviously Ridiculous Cases

Posted in America, Apple, Asia, Patents, Samsung at 12:59 pm by Dr. Roy Schestowitz

Rounded corners are not a novel concept

Summary: Patent battles over designs carry on in the US (hopefully to be abolished by the US Supreme Court some time soon) and the Singaporean High Court says it cannot revoke patents

EARLIER this month we wrote a couple of articles about design patents [1, 2]. Any design can already be covered using trademarks and copyrights, so patents are a misfit. The US Supreme Court might actually put an end to these.

“Any design can already be covered using trademarks and copyrights, so patents are a misfit. The US Supreme Court might actually put an end to these.”Right now the high-profile case/s involving design patents would be Apple/Samsung. It’s everywhere in the media. CCIA wrote about that yesterday, challenging the extraordinary ‘damages’ claimed by nonsensical things such as ’rounded corners’. From the conclusion:

The test proposed by the Solicitor General, as adapted by Judge Koh, just isn’t workable in practice. While it’s better than Apple’s test, which would have included the intent of the defendant as a factor (potentially resulting in different articles of manufacture for the same exact product depending on the defendant’s state of mind, an even worse problem than the defendant’s business practices), the Solicitor General’s test doesn’t provide sufficient ability to ascertain the correct article of manufacture from the face of the patent, relying instead on the defendant’s product and business practices.

The best solution would be to simply eliminate § 289, the statute that provides a special “total profits” remedy for infringement of design patents. The special rule § 289 represents was created when the most common remedy for infringement was a share of the infringer’s profits. These days, when the typical damages remedy for patent infringement is a reasonable royalty, there’s simply no need for § 289.

Judge Koh has been dealing with these cases for a long time. She has a lot of power in her hands. Will she or will she not tell Apple to go where the sun won’t shine and apples don’t grow?

“Judge Koh has been dealing with these cases for a long time. She has a lot of power in her hands.”Curiously enough, yesterday an article was published regarding the Singaporean High Court dealing with questionable patents. Like the US Supreme Court, it probably ought to get rid of design patents (or guide future judgment of existing ones towards that), but in reality it seems to have put patents before human rights and whatever lawyers demand. Not reasonable.

Here is the summary:

A recent ruling made clear that Singapore’s High Court does not have original jurisdiction to hear patent revocation proceedings even if they are brought by a counterclaim in infringement proceedings. If the ruling stands, it would mean all revocation cases will have to be started at IPOS

IPOS is the Singaporean equivalent of the USPTO. Why would the High Court need to defer and consult the lowest level in the chain again?

“The US has, belatedly and contrariwise, gone in the opposite direction, recognising that it needs to work for scientists and technologies, not lawyers and prosecutors.”As we argued on several occasions earlier this year, IPOS and Singapore in general (their effectively one-party state) have been trying to embolden patent aggressors rather than foster innovation. It’s the same in China. The US has, belatedly and contrariwise, gone in the opposite direction, recognising that it needs to work for scientists and technologies, not lawyers and prosecutors. █

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“EPI Makes No Protest When the AC Connives With Battistelli to Trash the Rule of Law”

Posted in Europe, Law, Patents at 11:49 am by Dr. Roy Schestowitz

The public image of the EPO is severely damaged due to miscarriage of law and low patent quality

Summary: The man whom EPO insiders have dubbed “Blatterstelli” (Blatter-Battistelli) carries on acting as though he’s virtually if not practically above the law, but complaints are piling up and the future of the EPO is now as uncertain as the UPC’s future

THE EPO may be Europe’s most lawless place. One can be charged at any time, with made up allegations, then dismissed and prevented from seeking future employment (without risking loss of one’s pension).

“One can be charged at any time, with made up allegations, then dismissed and prevented from seeking future employment (without risking loss of one’s pension).”It gets even worse than this. For nearly two months we have been writing about how the EPO ‘deletes’ holidays. It effectively forces staff to show up at work on public/national holidays. SUEPO wrote about it last week, but then deleted it (we had made a copy, thankfully fast enough). It now says something about it to the Munich-based staff (under SUEPO Munich). Here is the introduction:

On 31 October 1517 a German monk, Martin Luther, nailed his Ninety-five Theses on the door of the All Saints’ Church in Wittenberg thereby initiating what is called the Reformation. For the 500th anniversary of the Reformationsday, 31 October will be a lawful holiday in all of Germany, but not at the EPO. It is now time for SUEPO Munich to publish its own Theses.

The full PDF is in German and there’s probably no English translation on its way. Not that it matters all that much; the nature of it would probably mean a lot more to native Germans anyway (more so than Europeans who moved to Munich for this job). It’s an insult if not worse than an insult. Battistelli is flexing his muscles and reminds staff that he is essentially above the law and there’s nothing staff can do about it.

Speaking of “above the law,” someone wrote to tell us early this morning that when it comes to the UPC, “Germany hits the brakes” (for good perhaps).

“Very entertaining law firm audio podcast,” we got told, discusses “the contents of the German constitutional complaint. The interesting part starts at around minute 13:35, well worth listening to!”

The tweet says: “Learn how 1 individual singlehandedly added years to #UnifiedPatentCourt ratification” (the term “added years” is an understatement because it might not be stalling but slaying).

This show is astonishing because what we have here is McDermott speaking to its own staff, Henrik Holzapfel, “an IP partner in McDermott’s Düsseldorf office,” based on the outline. We’ve listened to this show and were surprised to hear them saying that Europe had been calling for UPC for 50 years. That’s nonsense. They keep trying to blame “one person” (there’s repetition of this, belittling the complainant) and they reveal that there are 170 pages in this complaint. At least we now know the scale of it. The Unitary Patent is dead if what they say is true; the issues range from language (discriminatory against SMEs, e.g. several overlapping motions in different languages), there are severe issues pertaining to appointment of judges (sitting with attorneys, creating a conflict of interest), then the 6-year term and renewal thereof by a committee which also has a conflict of interest. The whole thing sounds so… Battistelli-ite. In the complaint, “a lot of it are [sic] not without merit,” the show host admits. They are speaking about the possibility that this will undermine the entire UPC; both agree that there’s merit but focus on the complainant instead.

How did the UPC even get as far as it has? We’ve been openly asking that question for at least half a decade. It’s obviously unconstitutional in many nations, but when it comes to EPO it doesn’t seem like anything matters (international laws, the EPC, national law, human rights, courts at The Hague, ILO rulings).

As someone put it in a comment yesterday (with our emphasis added):

You ask why the EPI makes no protest when the AC connives with BB to trash the Rule of Law. It seems obvious to me: The Officers and Members of the EPI are frightened of losing their corporate clients.

The corporations have an interest in driving down the level of human rights that protect their employees. What could suit their purposes better, than 38 Sovereign States acquiescing in demolition of those human rights. After that, those governments cannot criticise a corporate employer for doing no worse than the government itself, as employer.

So, the corporations will not look kindly on any firm of patent attorneys that leaps to the defence of employees at the EPO. To the contrary; such firms will find that they start to get less work from their corporate clients.

Remember, a multi-national corporation is an entity without any morals. It is itinerant (a citizen of nowhere) driven only to reward its owners, the shareholders. To them must be delivered their quarterly return, their dividend, regardless what it costs. Human rights don’t show up on the balance sheet.

The next (and latest) comment is good also:

I think that the reasons for inaction of the professional associations (including the epi) are many, varied and complex. However, I would be very surprised if, for many of them, a key reason is an inclination to maintain influence by not rocking the boat too vigorously. This is likely to be a key factor for the “rebel” AC delegations too.

It is therefore beyond tragic that the current President appears to have discovered how to ruthlessly exploit this inclination of the AC and the professional representatives. Whilst it is impossible at this stage to be certain precisely how he does this, certain strategies stand out as obvious candidates.

The first theoretical possibility is bending / breaking the rules and then only later asking for the AC to sanction the actions taken.

The second theoretical possibility is securing (by fair means or foul) the undying loyalty of a sufficient number of AC delegates, and then ensuring that the stance taken by those delegates makes it “too difficult” for the “rebel” AC delegates to ever win the day on any meaningful issue.

The third theoretical possibility is deliberately presenting an outrageously bad proposal that contains some “straw men” upon which the “rebel” AC delegates can expend their energy and influence fighting. The second part of this strategy is to then, with great theatrics intended to give the impression of extreme reluctance, agree to changing points that do not matter to you… but only on the condition that other points (which were the ones you really wanted in the first place) remain without amendment.

I think that we can all agree that the first of these three strategies has been deployed on at least one occasion. I leave it for those intimately familiar with the workings of the AC to comment upon whether the other two have also been deployed.

With so many ways for the President of the EPO to exploit a key weakness of the AC, it is perhaps no coincidence that there is so much evidence of the tail appearing to wag the dog. The question is, which line does the President have to cross before the AC decides to tackle the problem head-on?

Events that have so far not provoked the AC into action include: a Board of Appeal ruling that the President had attempted to undermine their independence; a national court ruling that the EPO has not respected certain human rights; refusal of the President to obey a direct order from the AC in connection with disciplinary proceedings relating to staff representatives; and trashing of the EPO’s reputation (in particular with regard to quality, as well as failure to uphold the rule of law).

I would have expected any one of those developments to provoke a furious response from the AC. The fact that there has been no response after so many developments suggests that we can be fairly confident that the seeds of the EPO’s destruction will have been sown and nurtured, and will be starting to bear fruit before the AC realises how serious the situation has already become.

To be fair to the EPI, it did in fact criticise Battistelli, but soon thereafter it deleted its own criticism (we can only speculate/wonder as to why). █

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10.30.17

Links 30/10/2017: Linux 4.14 RC7, Acumos, Free/Open Source Software as Philanthropy

Posted in News Roundup at 7:37 pm by Dr. Roy Schestowitz

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The Diminishing Value of European Patents (EPs)

Posted in Europe, Patents at 4:57 pm by Dr. Roy Schestowitz

Summary: The lack of interest in the EPO’s services has just caused Battistelli to offer discounts — as pathetic as that may seem — and Grant Philpott continues promoting software patents

IT HAS BECOME common knowledge that the EPO is overgranting patents and in order to maintain an illusion of quality control it rejects applications based on minor technicalities rather than lack of merit/novelty. Prior art search is too ‘costly’ (in terms of time, talent and so on). People inside and outside the Office are noticing this and they are not happy. They’re quite rightly upset and some are courageous enough to speak out about it. What good is a piece of paper which courts are likely to disprove or disregard?

The number of patent applications is declining, the most talented/experienced staff is walking away, and the EPO cannot attract “demand” due to diminishing reputation. This was foreseeable and staff representatives warned about this. Earlier today Battistelli wrote in his ‘blog’ (warning: epo.org link) about his reactionary move. This was promoted about 4 hours later by the EPO and we interpret this is a desperate effort to spur “sales” using a discount. Battistelli, like a used cars salesman, tries to frame it all as “savings” for the “clients” and says it “equates to a 5% reduction which will save our users around 7 million Euro next year.”

“What good is a piece of paper which courts are likely to disprove or disregard?”Basically, European Patents (EPs of the past, present and future) have lost their value due to Battistelli and his abusive behaviour. He probably shaved off BILLIONS worth of “value” (losses for those who invested in EPs), but why should he care? All he cared about was the inflow of money, even if that led to the collapse of the Office in the long run.

Earlier today the EPO wrote: “With Patent Translate you can translate patent documents at the click of a button…

But not accurately. Many people have already pointed out the weakness of such translations. They’re of no use in a legal context; these are, at best, approximations.

The EPO is also planning this conference next week and today (Monday) we discovered that Grant Philpott (epic name for a grant-by-default policy) still promotes software patents in Europe. He is using buzzwords that are meaningless. There are photos there and the text says: “Grant Philpott @EPOorg about #patents created by #ArtificialIntelligence & #Computer-implemented #inventions #CII in #Industry40 @Telefonica”

“People who came up with the EPC would turn in their grave if they could see what Battistelli had done.”Where are the boards when one needs them? The EPO is not supposed to grant software patents, but Battistelli has already taken care of that by defanging judges. The EPO has sent the appeal board to ‘exile’ to prevent them having a sense of independence, or the courage to do their work without fear. Earlier today the EPO wrote: “How can you get to the new location of the Boards of Appeal?”

Maybe if there were exiled to Poland, nobody would bother appealing at all and patent quality would seem superb. What we have here is a crisis of governance and a collapse in patent quality. People who came up with the EPC would turn in their grave if they could see what Battistelli had done. █

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Irregularities at the EPO and UPC (Unitary Patent) Dodgy Dealings Should Draw Ire

Posted in Europe, Patents at 4:20 pm by Dr. Roy Schestowitz

Summary: The seriousness of the situation at the EPO ought to attract hard-hitting media coverage but does not; to make matters worse, voices of insiders and critics are being silenced

NOTHING is normal at the EPO. In just a few years it managed to turn from one of Europe’s most reputable institutions into a source of shame and a liability. There’s complicity enabling this also outside the EPO and we are currently investigating the alleged role of Belgium [1, 2]. Expect to hear more about it because it’s a subject of growing controversy even inside the EPO. Remember that Battistelli controls access to billions of euros, even without proper checks and balances. It’s enticing to suck up to him and he is alleged to have ‘bought’ votes of small countries (using money which wasn’t even his).

Comments about EPO scandals are locatable, but they have become harder to find due to censorship. The “line between expressing concern about the EPO’s governance and making ad hominen [sic] attacks,” says this new comment, has become the basis for censorship. But by “attacks” they typically mean the naming of people. As if one cannot even name individuals anymore. Here is this comment which IP Kat was ‘kind’ enough to approve:

Obviously there is a dividing line between expressing concern about the EPO’s governance and making ad hominen [sic] attacks. I can certainly understand that Merpel is concerned to prevent one spilling over into the other, and I think you do too.

The separate issue you raise is that the IPKat is no longer posting about the governance issues, which means there is less opportunity for others to express their concern. That might be regrettable, since the IPKat would be a much better forum for legitimate debate than a certain other website, precisely because Merpel filters out unreasonable comments and ad hominen [sic] attacks.

However, before complaining that the IPKat is no longer concerned, have you considered that the blog’s panel of contributors changes over time, and that each contributor tends to post on topics that happen to interest them? The lack of posts about EPO governance may simply be due to changes in personnel, rather than a deliberate policy of discouraging debate.

As the next comment put it, “should the purpose not be to post on topics to interest the readers?”

The next one said: “If it were a commercial concern such as a newspaper or magazine, and the contributors were being paid to write stuff to attract readers, then yes maybe. But it’s not.”

Too much speculation about IP Kat has given them the benefit of the doubt, first by attributing the censorship (they prefer the euphemism “moderation”) to a technical glitch and now the change of authorship. It’s nice and rather convenient to think that the silence is purely interests-related, but the real explanation for the silence is different, however, as it followed an embargo against the blog.

Thankfully, there are still some places where criticism of the EPO is tolerated and EPO insiders are quoting this new comment [1, 2, 3] which says:

Have a look at the structure proposed for reorganisation of DG1 and DG2:

https://www.epo.org/modules/epoweb/acdocument/epoweb2/261/en/CA-65-17_en.pdf

I understand that this new structure is being implemented. The trouble is that it tramples all over the EPC, which clearly requires the individual “in control of” DG1 to be independent (at least from a hiring, firing and disciplinary perspective) from the President of the EPO. Under the new structure, the “independent” VP1 will be left with only symbolic powers, with new COOs reporting directly to the President (and being hired / fired / disciplined by him) and taking over almost all of the substantive powers previously afforded to VP1.

So, in short, this is yet another example of the EPO’s executive (presumably with the full knowledge / complicity of the AC) effectively ignoring the provisions of the EPC. Regardless of what one thinks about the constitutional complaints, these kind of developments could take those complaints to a completely new level. That is, if the AC has proven itself to be incapable of ensuring that the EPO operates in accordance with the EPC, then it becomes an established fact that there is a “democratic deficit” that requires urgent action.

No names mentioned here, but it’s clear who it’s all about. Days ago a French politician, Claudine Lepage, named the main culprit (who brought many French cronies with him). SUEPO has just published this English translation (there is another one for German readers) and we have highlighted in yellow some of the important bits, not the talking points ‘shipped in’ by Battistelli (basically a bundle of lies):

Written question on the social policy at the European Patent Office

Posted on 27 October 2017 by admin

I submitted a written question to the Minister of the Economy and Finances with regard to the social policy adopted at the European Patent Office.

The reply which I have just received from Bruno Lemaire, given what is at stake and the social context which prevails at the EPO, is more than deceptive.

In order, in company with other members of Parliament, to be able to keep track accurately the situation at the EPO, I feel obliged to respond to certain arguments put forward by the Minister.

The EPO has never been in deficit, and has always been self-financing, and the plan for the transformation of the organization adopted in 2013 was therefore never an obligation.

With regard to the social dialogue which the Minister refers to, every observer is well aware that this is reduced to the minimum, and that, on the contrary, the social malaise is a permanent feature within this international organization.

I am therefore calling upon the French Government to take note in full of the situation at the EPO, and to take all steps necessary to put an end to this social conflict, which, apart from the fact that it is seriously detrimental to the image of France, is also posing a risk to the health of the staff.

Read below the reply from the Minister, as well as my question:

Reply by the Minister of the Economy and Finances:

The European Patent Office (EPO), created by the European Patent Convention (EPC) of 5 October 1973, is an intergovernmental organization which has been in operation since 1977, which employs a staff of close on 7000 people coming from 30 different countries. In order to ensure the financial viability of the EPO in the long term, a plan for the transformation of the organization has been adopted, and in 2013 the Administrative Council introduced changes into the statutes relating to the staff of the EPO, imposed on the whole of the social structure (pensions, remunerations, social services, right to strike), in consultation with the staff representatives. These reforms allowed for the financial situation of the Office to be redressed within a few years, despite some specific organizational constraints which are inherent in respect of the international organization status of the EPO, and an establishment culture which is essentially fragmented, given that it has five establishments in four different countries. The reforms have nevertheless engendered social conflicts, accentuated by the legal status specific to international organizations. Following proceedings initiated before local courts, on 20 January 2017 the Supreme Court of the Netherlands overturned the ruling by the Court of Appeal of The Hague, and confirmed the legal immunity of the EPO. Being aware of these difficulties, France has consistently supported, within the Administrative Council of the EPO, the initiatives aimed at improving the situation and the social dialogue within theorganization, such as the launching of the social audit undertaken in 2016, or the resolution adopted in March 2016, inviting the President of the EPO to present to the Administrative Council a project for reviewing the staff statutes, making provision for disciplinary procedures to be reviewed and amended, as well as the directives relating to enquiries. On 28 and 29 June 2017 the Administrative Council accordingly adopted into the staff statutes new guarantees aimed at ensuring the independence and impartiality of procedures (enquiries, disciplinary measures, internal appeal), as well as the rights of defence (the right to remain silence or to be assisted by an advocate in particular).

Question by Claudine Lepage:

Ms. Claudine Lepage draws the attention of the Minister of the Economy and Finances to the situation at the European Patent Office (EPO). This intergovernmental organization and its 7 000 staff members, highly qualified persons recruited form 38 Member States, unquestionably makes a major contribution to innovation, competitiveness, and economic growth in Europe. For a number of years, however, the authoritarian and arbitrary social policy of this Office has been incurring major difficulties, in particular with regard to the respecting of the fundamental rights of the individual and the violation of social law. It must also be emphasised that four suicides in 32 months are a deplorable occurrence among the staff. Moreover, the
Court of Appeal of The Hague, to which recourse was made by staff representatives, in February 2015 condemned the social policy pursued by the EPO, ruling it contrary to fundamental rights. The French President of the Office nevertheless refuses to act on this decision, on the pretext that the Office enjoys a status of immunity. This management approach, which is highly open to criticism, is having a direct impact on the reputation of France among international institutions, and she therefore wishes to know whether provisions are going to be adopted in order to remedy this situation, which has gone on too long and which threatens the very future of the institution, at the moment at which, after thirty years of negotiation, agreement has been reached with regard to a Unitary European Patent, the issue of which will be entrusted to the EPO.

An open debate about what goes on at the EPO — without fear of retribution — is necessary if not imperative for things to improve. As we shall show in our next post, things are still getting worse. █

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Belgium’s Jérôme Debrulle, the EPO and the UPC Connection

Posted in Europe, Patents at 7:20 am by Dr. Roy Schestowitz

Summary: A deeper look into disturbing affairs at the EPO and likely facilitation of antidemocratic behaviour, potentially implicating the man above

WHAT goes on at the EPO is far from normal and it’s assisted by various people outside the EPO. They too have something to gain.

Earlier today Max Walters spoke to Dr. Ingve Stjerna (or at least published about it). It’s Stjerna who remarked on the UPC lobbying in the UK. Here is some of the relevant stuff:

The German lawyer whose court action has put the new European patent regime on hold has described as ‘astonishing’ the UK’s apparent position that it can be a member of the system after Brexit.

Düsseldorf intellectual property attorney Dr Ingve Stjerna says the government’s stated plan to ratify the Unified Patent Court agreement appears ‘hardly reconcilable’ with its commitment to leave the jurisdiction of the Court of Justice of the European Union.

‘At the very least, an explanation is needed why in case of the UPC the creation of new obligations from union law and respective powers for the CJEU as well as a respective liability of the UK for union law violations are deemed acceptable, despite the envisaged objectives for leaving the EU,’ Stjerna said on his website.

[...]

Stjerna’s challenge questions the constitutionality of the German legislation enabling ratification. It also alleges a violation of a requirement under German law which stipulates that a majority of two-thirds of the members of the German parliament and Federal Council must rule on any transfer of sovereign powers to European institutions.

It is worth remembering that a lot of the UPC pressure in the UK comes from CIPA, which incidentally now exercises control over IP Kat (even if partial control).

Days ago we also wrote about Belgium and the suspected role its delegation had played in bolstering Battistelli (the language, for one thing, is a commonality). An EPO insider told me this morning that there is also a connection to the UPC. To quote: “Let’s give it a face, since November 2009, Mr. Debrulle is the Head of the Belgian Intellectual Property Office which depends on the Ministry of Economy. He represents Belgium within the Administrative Council of the European Patent Organisation. […] Mr. Debrulle is since March 2013 the Chairman of the EPO Select Committee which is in charge of the implementation of the Unitary Patent Protection. Any more questions? […] -1 Link to the UPC 2017 Speaker’s list (Jérôme Debrulle) http://www.unitarypatentsystem.eu/speakers/
-2 Link (EPO!!!) to Belgium AC Representatives (scroll down for BE) https://www.epo.org/about-us/governance/administrative-council/representatives.html#be […] The 2nd Belgium Representative in the Administrative Council is M. Geoffrey BAILLEUX, Conseiller.”

Any further remark would likely be spurious, but someone then wrote: “Shall we give a face to all other members of that happy congregation?”

The same person later said/quoted: “New UPC – #epo Administrative Council BE delegation Cartoon. “Belgium’s representatives, Jérôme Debrulle and Geoffrey Bailleux might need further scrutiny, say inside sources, for they have been enabling some rather dubious activity which merits inconvenient questions”…”

There’s even a picture there.

We are going to investigate this more closely in the coming days and invite further feedback on this matter from readers. As noted over the weekend, Belgium gave Battistelli some fiscal defense, whereas large European nations like Germany and the UK blasted the Office for it.

Worth noting (between the lines): the same Mercer that promoted Trump and Brexit (and became ever more notorious for it, due to his surveillance firm) now works for Battistelli’s EPO, serving in a financial kind of role. It figures. Things aren’t just normal. As someone put it yesterday, “IPKat no longer seems to be concerned about this serious governance deficit at the EPO.”

Here is the full comment:

I have no desire to offend Merpel’s delicate sensibilities or to libel anybody.
I would just like to make a few observations and hope that they will pass the scrutiny of the blog moderator(s).

It would appear that moves are underfoot at the EPO to lift the current 5% limit on the number of staff employed on fixed term contracts. Irrespective of the merits or otherwise of such a proposal it is likely to generate controversy. That is in the nature of these things.

However, an item of EPO “gossip” has just appeared on TechRights according to which the delegation of an EPO member state recently made a statement to the effect that the current EPO President had been asked by the President-elect to make sure that this measure was passed before he (the President-elect) took up office in July next year.

Whether or not this snippet of gossip has any substance it seems to throw up some interesting questions because it suggests that either:
(a) The President-elect is already intervening in EPO matters despite not having yet taken up office
or
(b) A national delegation is lying about the President-elect before he has even taken up office.

Whatever one is inclined to make of all this one thing is certain.
The governance of the EPO is characterised by a worrying lack of transparency.

What is also quite surprising is that IPKat no longer seems to be concerned about this serious governance deficit at the EPO.

Since IPKat is (one supposes) widely read by “users” of the EPO system, it is rather odd that it has now adopted a policy which seems to be aimed at discouraging debate about these matters.

As I said at the beginning, I am not trying to offend or libel anybody. Nor am I interested in spewing hate. I just wanted to air a few points and raise a few questions which in my mind seem perfectly legitimate and in the public interest.

Thorsten Bausch has also posted a long comment on the matter. His important article has been taken over mostly by a troll and troll feeders (in the comments). It’s better not to give them any attention whatsoever. There are, however, only two comments there (the latest 2) and here is what Dr. Bausch wrote:

Dear friends and commenters, can I perhaps bring the discussion back to what this article is about, i.e. the – well substantiated, whether you agree with it or not – opinion of Prof. Broß that the member states of the EPC have allowed extra-territorial and extra-constitutional structures to be established that are no longer under democratic and rule of law control. I think that this opinion raises at least two questions: (1) Is this so? (2) And if yes, should we accept it?

Prof. Broß’ accusations are dead-serious and may lead to either a dramatic change of the European Patent Organisation’s structure or to Germany having to leave the EPO. Remember that the very same arguments have been made and will likely continue to be made in the four constitutional complaints against the EPO currently pending before the Federal Constitutional Court.

It is true that Prof. Broß is not completely impartial here, as he has written a legal opinion in support of (and I assume at the request of) one of the plaintiffs in the four pending constitutional complaints. But this does not disqualify his views at all, in my view. I have no reason to believe that the opinions that he holds are anything but genuinely his own and, what is more, I am afraid that they hit the nail on the head.

I think that even the most benevolent observer of the developments at the EPO over the last 4 or 5 years cannot but come to the view that very, very strange and discomforting things have happened at the European Patent Office. Or are you aware of any other jurisdiction where the President is able to issue a house ban with immediate effect against a judge or, more precisely, a person who is supposed to have a judicial function (such as a Board of Appeal member)? And in which jurisdiction is it possible that the President then ignores the procedure literally prescribed in the law (Art. 23 EPC), according to which a Board of Appeal member may not be removed from office during this term, except if there are serious grounds for such removal and if the Administrative Council, on a proposal from the Enlarged Board of Appeal, takes a decision to this effect. There has never been such a proposal from the Enlarged Board of Appeal, to the best of my knowledge. And absent such a proposal, why did the Administrative Council back the President in this – in my opinion – simply illegal activity, thus again refusing the accused Board member the right of due process?

Obviously, I am no EPO insider and have no first hand knowledge of what happened, but the public facts suggest to me that there has been an unprecedented executive overreach here, which violates the essential principles of the Rule of Law and the accused member’s constitutional right to due process. I would very much like this to be publicly investigated and discussed. If the investigation results in that there was indeed a violation of principles of the Rule of Law and due process, then, at least in my humble opinion, a President who is responsible for such activities, should be immediately dismissed from the Office and does not deserve a pension. Which raises again the question about whether the President is adequately supervised by the Administrative Council. Prof. Broß has very strong views on this also.

In my personal opinion, the EPO structure should indeed be substantially changed in order to bring us back on the ground of elemental principles of democracy and rule of law. What the EPO needs is a true separation of powers:

Firstly, it needs an Administrative Council who takes its supervisory role seriously and engages in a critical and constructive dialogue with all EPO stakeholders, i.e. applicants, EPO representatives, EPO staff (including trade unions) and national judges – not just with the EPO management. The AC should independently inform itself of what is going on. It should also have an own website not controlled by the EPO President and should express its unfiltered opinions to the public there. Members of the Administrative Council should be fully paid for their activities by the member states and should not be allowed to accept any disbursement or other favors from the EPO management in order to avoid conflicts of interest.

Secondly, the EPO needs a President who understands his role within a democratic system of checks and balances and behaves accordingly.

Thirdly, the EPO needs an independent and effective judiciary to review EPO decisions with regard to European patents and patent applications and, importantly, on points of employment law. The ILO does not seem to be fit for this purpose. Decisions of this court must be binding on the President.

I am fully aware that this requires a diplomatic conference agreeing on changes for the betterment of the European Patent Convention, but I think this is unavoidable and should rather be seen as a chance. I would very much like to see a public debate on such proposals. The public has a duty to help the Administrative Council and the national politicians by coming forth with sensible proposals how the EPO’s future can be secured in the long run. But we should not put our heads in the sand and carry on as usual.

It certainly looks like in spite of censorship at IP Kat (which disturbed Bausch) the message is getting out. The reply to Bausch said:

Fully agree. Two points about your points…
The EPC explicitly states (Art. 4a) there should be a ministerial conference at least every 5 years. Since EPC 2000 there hasn’t been one and I haven’t even seen a discussion about it by the AC, although something about that there was a “it isn’t needed” response from someone at AC or Presidential level when someone enquired seems possible.
While the board member may or may not have done what was alleged (libel?} and I thought a German court case was running in parallel(?), I agree that there is a clear case of overreach by the executive which appears to be beyond reproach. They may have grounds for frustration (I don’t know or judge the validity of any accusations) but, as you say, that does not excuse any abuse of procedure from those who should and need to have legal and managerial competence. In many ways, the actions of the executive may be as wrong as the allegations made.

In anybody has any inside information which can help us shed light on internal affairs, please get in touch. █

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10.29.17

Large US Companies Continue to Stockpile Patents, But US Courts Have Learned to Repel Patent Maximalism

Posted in America, Apple, IBM, Patents at 7:49 pm by Dr. Roy Schestowitz

Patents on software are just about as inane and worthless as patents on musical notes

Summary: In spite of misguided campaigns to accumulate/hoard tens of thousands of patents and then cross-license these, courts do not see the legitimacy of most of these patents

SEVERAL days ago someone pointed out this case of a lawyer who had been fired for being ethical. It’s not too shocking; lawyers aren’t expected to be honest, only to maximise profit. To quote:

The Third Circuit reversed the grant of the dismissal of a lawsuit by in-house counsel who sued because, he alleged, he was forced to choose between complying with an application filing quota or complying with his ethical obligations to the USPTO. The case, Trzaska v. L’Oreal USA, INc., (3rd Cir. July 25, 2017), is here.

“The complaint alleged that complying with the quota meant filing “frivolous” patent applications,” Generare Oy Ltd. told me about this. The situation may seem familiar to some.

What’s with all the stockpiling? Why has this become so normal? Yesterday we saw blind acceptance of patents and endless admiration of Apple/Steve Jobs, leading to this kind of terrible Web site which equates/conflates patents with innovation and celebrates accumulation of patents based on quantity alone (because large companies just cross-license a massive number of patents without even assessing these individually).

“What’s with all the stockpiling? Why has this become so normal?”The above is about Apple, but IBM too plays that game and IBM is far too proud of software patents that are likely invalid (it still uses these to bully rivals). See this press release [1, 2, 3] which said “IBM leadership in storage systems and software is based upon more than 380 system patents, including IBM FlashCore technology and more than 700 patents for IBM Spectrum Storage software.”

Around the same time (as this press release) we saw IBM’s patents chief gloating that “Snap-On gets hammered” by patents, having just been judged by a jury that probably does not understand what patents are. The report in question says this:

The Journal Sentinel reports Snap-on’s Rick Secor says the company strongly disagrees with the jury’s verdict and will “vigorously appeal.”

In the lawsuit, the Brookfield-based Milwaukee Tool says the lithium-ion battery packs it invented revolutionized the industry after the technology was introduced in 2005. It replaced packs that used nickel-cadmium batteries.

This particular case is not about software patents, but it’s interesting that IBM is keen to promote it. The patents chief has also just linked to a patent troll’s site (Dominion Harbor) in support of software patents. “The sad, confused state of US #patent eligible subject matter described here,” he said in relation to a patent troll known as Secured Mail Solutions (SMS) — a troll we just mentioned here the other day. To quote:

Because I believe that everyone, as a means of self-improvement, should occasionally test their patience and evaluate their ability to manage pain, I was reading the Federal Circuit’s recent decision in Secured Mail Solutions, LLC v. Universal Wilde Inc., upholding the district court’s ruling on the pleadings that Secured Mail’s seven asserted patents were all ineligible under 35 USC § 101. These patents all address tracking mail through an encoded marking, e.g., a barcode, QR code or URL, on the outside of a mailer which is intended to provide information to the recipient about the contents and the sender. Setting aside that when you see a panel of Prost, Clevenger and Reyna you know the patent’s dead, it’s just a matter of how they will craft the language to that desired effect, let’s just look at how the famed Alice test was handled in this case in general.

It’s safe to say that almost every such case now yields invalidity. Courts understand, in light of Alice, that it’s a matter of great certainty. Software patents are out.

“Software patents are out.”If the rumours are true, the USPTO‘s patent examiners too will soon follow suit. Maybe the EPO‘s also?

The EPO mentioned PCT applications a few days ago and so did Patently-O (compare China to Korea in this graph). PCT is the Patent Cooperation Treaty and if one nation abandons software patents, we can expect others to follow the lead.

Moreover, as Patently-O pointed out a few days ago, better examiners will result in fewer incorrect patent grants. The research explores the “[r]elationship between examiner specialization and examination outcomes.”

“So it shows empirically that “specialization is associated with a more stringent examination process,” as one might expect. Lack of knowledge (or ignorance) in the problem domain leads to more patents.”The summary says, “we find a significant degree of technological specialization among patent examiners working in the same art-unit. This specialization is less pronounced in some of the computer-related technology centers. We found no evidence that examiners specialize in handling important or controversial applications. And it seems that specialization is associated with a more stringent examination process, perhaps because it allows examiners to more easily identify relevant prior art.”

So it shows empirically that “specialization is associated with a more stringent examination process,” as one might expect. Lack of knowledge (or ignorance) in the problem domain leads to more patents. Here we see the importance of the recruitment process, or the ability to attract top talent. It’s hard to mislead examiners who assess patents in their own field of expertise. Consider for instance this new example that says: “The court found the defendant’s argument “not unreasonable,” but nonetheless rejected it. The “great weight of the case law” made clear that the duty to “disclose all material information to the patent examiner” did not extend to ensuring that “the patent examiner understands that information.””

Sadly, if the examiners don’t understand, they often just grant patents. It should be the exact opposite. If the applicant cannot properly explain to the examiners what is being claimed, then the examiner should assume it’s likely intentional. “If you can’t explain it simply, you don’t understand it well enough,” Albert Einstein famously said. He too was a patent clerk (before becoming famous). █

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