10.31.17
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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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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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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