Original: English [PDF] | German [PDF]
Also: English [PDF] | German [PDF]
Summary: The EPO‘s descent to tyranny was preceded by removal of the very pillars whose function could help prevent tyranny or at least react to it
Original: English [PDF]
Summary: The EPO‘s lack of an effective judiciary goes a long way back and demonstrates that Battistelli had suffered utter disregard for justice long before the social conflict or the feud with the union began
What would the world look like with billions of computer-generated patents (as some people have suggested)?
Reference: Information overload
Summary: The distortion of the patent system at the hands of the patent ‘industry’, which leads to granting of millions of patents that oughtn’t be granted due to duplication, prior art, and/or lack of merit
THE PATENTLY FALSE assumption that maximisation of the number of patents is both essential and desirable is a real problem. We see it everywhere in the patent microcosm, i.e. the ‘industry’ associated with patenting (rather than doing things on which patents get granted). The EPO is all about maximisation right now; the USPTO always had this problem, more so after the Reagan years. China too is moving in this direction, as we shall explain later this weekend.
Let’s go back to the basics. What are patents anyway? Patents are an exchange. A person gets granted a temporary monopoly in exchange for publishing his or her (or their) method, typically demonstrated using some physical device. Examiners used to be shown the claimed inventions (in real life, in person). The motivation is sharing of knowledge or contrariwise, avoiding the loss of technical advancement due to someone’s death (taking one’s trade/technical secrets into one’s grave). Patents are not bad per se; it just depends on how we view them and their original (intended) purpose. The same goes for copyrights and trademarks.
A few days ago someone wrote that the “USPTO trademark filing record shattered again in 2017, with more than 437,000 new applications, an increase of at least 12% in filings over 2016.”
It’s rather odd that trademarks and patents are both being dealt with by the same US-based office. Regardless, patents too are on the increase; the pace of granting increases, not necessarily because innovation is picking up pace (no empirical evidence of that). We wrote about this many times over the years; it’s a commonly-explored area in scholarly literature, too.
The other day CCIA noted that while courts eliminate many software patents, there’s no evidence that it affects the patent office all that much and it certainly has not slowed down granting. As the author put it, “the impacts of the Alice cases on patent examination have been relatively insignificant,” which is true. He cites WIPO data:
Third, the World Intellectual Property Organization (WIPO) released their annual Global IP Indicators report. There’s a lot of data in here on IP and patents worldwide. One interesting observation in the report—despite the “sky is falling” rhetoric about Alice and IPR, filings in the U.S. continue to increase. What’s more, grant rates were actually higher in 2014-2016, after Alice, than in 2010-2012. As I pointed out last year, the impacts of the Alice cases on patent examination have been relatively insignificant compared to the rhetoric surrounding them.
The WIPO figures alluded to above came out not too long ago. In fact, WIPO published this nonsense about “Innovation Hotspots”; what WIPO neglects to say us tgar one has to be rich to pursue patents worldwide; it’s not about innovation at all but mostly about protectionism, which some nations are better able to afford.
“These are the world’s top 10 invention hotspots, based on the number of international #patent applications filed,” it said in Twitter. Well, “international patent applications” are extremely expensive.
The same sort of flawed logic could be seen here at Kettering University just a few days ago. Kettering promotes the utterly baseless theory that inventorship doesn’t exist until/unless there’s a patent . “The study,” it says, “by economists from Harvard University, MIT, the London School of Economics, Stanford University and the U.S. Treasury, analyzes the backgrounds of patent-holders nationwide to determine shared characteristics of inventors. In a portion of the study looking at the education of patent-holders, Kettering University was fourth in producing alumni who hold patents – trailing only MIT, CalTech and Harvey Mudd.”
But does that not miss the point? Are people “inventors” only if they have patents? What about places like India, where most people are not wealthy enough to pursue patents (never mind India’s renowned limit on patent scope)? IAM and Spicy IP wrote a few days ago [1, 2] about IPAB. The outline from Spicy IP says “Justice Manmohan Singh Appointed as IPAB Chairperson under Potentially Illegal Tribunal Rules – Continues to Hold the Post of Chairperson of Appellate Tribunal for Forfeited Property” (IPAB was covered here before).
Remember that patents are only worth as much as quality control or the effort required to come up with them and assess them. Otherwise it’s just fool’s gold. Recently, Brazil nearly committed reputational suicide (damage to all granted patents) by ‘pulling an INPI’, i.e. just granting a patent for every outstanding application. Thankfully, plans have changed since then and it seems as though it’s not under consideration anymore. To quote the one single report we saw about it:
A potential procedure to fast-track the approval of more than 230,000 pending patent applications in Brazil, which some expected before the end of 2017, has not yet been published
A potential procedure to fast-track the approval of more than 230,000 pending patent applications in Brazil has not yet been published.
By “fast-track”, based on a prior report, they just mean approve. They apparently used words like “emergency” to justify such an extreme measure. It’s not only shady but also dangerous; we have only begun seeing just how broad a damage similar managerial approach has caused at the EPO. █
Summary: Companies on the decline, where the number of products already verges (or is) zero, decide to just sue the entire industry, thereby reinforcing the cautionary tale about patents as ‘insurance policy’ taking its toll on real (operating) companies
THE USPTO has long granted all sorts of bizarre software patents. Those were granted on ideas that had already been implemented elsewhere (without the coder/developer/programmer pursuing a patent). There was extensive prior art, but code at the time was rarely shared on the Web (definitely not in the nineties and back in the eighties there was no World Wide Web just yet).
“There was extensive prior art, but code at the time was rarely shared on the Web (definitely not in the nineties and back in the eighties there was no World Wide Web just yet).”One such company which pursued many software patents was IBM. It applied for (and received) a humongous number of software patents. That was back in the nineties and the decade that followed. It spent many years in the top spot for prolific patenters (classified by firm). Many of these patents are still valid as in not expired; but they’re not necessarily valid based on triviality and prior art assessments (if done properly). IBM is now trying to ‘monetise’ these patents and as we noted some days ago, IBM now goes after Web firms (there’s a pattern here). A few days ago GeekWire wrote that “IBM is suing Expedia, alleging that the popular travel site has for years been infringing on several of its patents, some of which date back to the early days of the internet.” Because those patents are about to expire and IBM is about to die (the company’s core business is slipping away and layoffs are routine).
Will IBM change its ways? We doubt it. For a number of years we’ve complained about IBM’s ferocious lobbying for software patents in the US, putting aside its many threats and lawsuits against Web firms (such as Twitter). IBM is now a taxman and it is eager to maintain this revenue steam; it has become similar to Microsoft over the past 15 years (Microsoft hadn’t been aggressive with patents until its monopoly was slipping away just before Windows Vista and the ongoing rise of Google/Apple).
“For a number of years we’ve complained about IBM’s ferocious lobbying for software patents in the US, putting aside its many threats and lawsuits against Web firms (such as Twitter).”A few days ago we wrote about the patent troll Finjan because it blackmailed FireEye. It is supported by Microsoft and it received some patents from IBM to bolster its trolling efforts.
“FireEye and Finjan settle,” said this headline just before the weekend. Understatement of the year? So far in 2018? To call trolling and blackmail a “settlement” is to grossly misrepresent what happened. Finjan does nothing but this. It’s a predator. From the article:
Cybersecurity firm FireEye has agreed to pay $12.5 million to patent licensing company Finjan as part of an agreement settling their patent dispute.
The settlement includes a patent licence agreement, granting cross-licences between the two companies for the disputed patents.
Or, in simpler terms, “protection money”. Finjan will now use that as ‘ammunition’ with which to threaten more companies (the few it has not already sued and/or extracted “protection money” from). It’s appalling. IBM and Microsoft actively helped this troll.
“Finjan will now use that as ‘ammunition’ with which to threaten more companies (the few it has not already sued and/or extracted “protection money” from).”Elsewhere in the news we find mentions of Ericsson's trolling practices in Europe. This case was concluded around Christmas (we wrote about it) and IAM rushes to defend the trolling with tweets like this: “Ericsson IP chief highlights “methodological and mathematical errors” in landmark TCL decision as Swedish mobile giant plots appeal…”
Notice how they only tell or emphasise one side of this story. So did the writer of the story, who tweeted this: “Goes without saying that this decision is not good for licensors but taken with UP v Huawei and other big SEP decisions we now have some much clearer guidelines such as use of top down methodology and variable regional rates. That can only be good thing for #patent licensing…” (trolling)
IAM’s coverage, as expected, means amplifying — right from the headline — only the side/assertion/creed of patent trolls:
Key ruling in high-profile US FRAND case “highly biased in favour of infringers”, says Ericsson’s chief IP officer
[...]
Speaking to the IAM blog Ericsson chief IP officer Gustav Brismark has made his first public comments on the judgment handed down by a California court just before Christmas in the Swedish telco’s high-profile FRAND licensing dispute with Chinese mobile manufacturer TCL. The decision, which was filed on 21st December, is the latest case involving standard essential patents (SEPs) to hit the courts and is largely seen to have gone against Ericsson.
This is the kind of coverage we have come to expect from IAM because the site (like the magazine and events) is little more than a megaphone of trolls and patent aggressors. It’s like ‘Watchtroll Lite’.
“This is the kind of coverage we have come to expect from IAM because the site (like the magazine and events) is little more than a megaphone of trolls and patent aggressors.”Watchtroll has just written about a case which we mentioned here before — a case wherein a firm is pushing aside smaller rivals. This is the kind of thing IBM has been doing for decades, relying on its vastly bigger patent portfolio and vastly deeper pockets. And speaking of which, watch this new report about Citrix using its patents against a smaller rival as a form of retaliation for “improper conduct”, “deceptive statements” and so on. Patents are just being used for leverage here; it’s not about patents but about the defendant hiring “a number of its former employees and executives in the last few years.” To quote:
Citrix added that the aim of the suit was to prevent Avi Networks’ “improper conduct” and to recover damages over its wrongful use of its patented technology in its Vantage Platform. Citrix also wants to stop Avi Networks from making “further deceptive statements” and selling its infringing product without the correct licenses.
Citrix appears to have a beef with Avi Networks over its recruitment practices as well, as the smaller firm has hired a number of its former employees and executives in the last few years. This includes Avi Network’s current Chief Executive Officer Amit Pandey, who served as vice president and general manager of Mobile Solutions at Citrix from January 2013 to March 2014.
“Several other Citrix employees have left to join that company, bringing with them their knowledge of Citrix’s products and intellectual property,” Citrix complained in its filing.
What it means to say is that these employees simply know something and by virtue of knowing these things they become a liability. Citrix has been having business deflation issues and it now digs deep for patents with which to ‘punish’ rivals. How typical of software patents and those who possess them… █
Summary: The highest patent court (bar the US Supreme Court) has given no hope to those who pursue patents on virtually anything; Microsoft’s disputes with Mastermine and Biscotti are recalled by them, albeit these cases too offer little hope (unless they emphasise the dissenting, i.e. in the minority, judges)
THE Court of Appeals for the Federal Circuit (CAFC), unlike the USPTO, rejected software patents pretty much every time last year. We watched these things very closely and back in April we wrote that "RecogniCorp v Nintendo (CAFC Case) is Another Nail in the Coffin of Software Patents in the United States".
There was a Friday conference (that’s yesterday) on the RecogniCorp petition. As one patent maximalist put it, “I previously wrote about the pending RecogniCorp petition for writ of certiorari to the Supreme Court that asks for clarification of the Abstract Idea analysis. I see the basic question here as to whether Parker v. Flook is good law. The Supreme Court will likely discuss the case in their January 5 conference.”
We doubt the Supreme Court will look into it (beyond assessing the petition) because it rejected similar appeals in the recent past. The patent maximalists will no doubt hope for anything whatsoever that can annul or override Alice, but they aren’t getting close. Check out this new “2017 CAFC Guidance For Patent Prosecutors”. CAFC isn’t into patent maximalism and it’s certainly not disputing Section 101/Alice. The article spends a lot of space writing about this Microsoft case (covered here numerous times last year [1, 2, 3]):
In Mastermine, the Court considered the extent to which user-initiated methodology of a Customer Relations Management (CRM) system may be recited in system claims. The district court found certain claims of the patents-in-suit (7,945,850 & 8,429,518), indefinite for improperly claiming two different subject-matter classes citing IPXL Holdings, L.L.C. v. Amazon.com, Inc., 430 F.3d 1377( here). The Federal Circuit reversed.
In its reversal, the Federal Circuit provided helpful guidance to patent prosecutors on how to claim user-driven hardware features in the first instance, as well as how to impress upon a patent examiner that functional language of such claims does not cross the line to reciting a separate statutory class.
This case (Mastermine) was a setback for Microsoft, which fought back against infringement allegations. Similarly, Microsoft was recently dealt a blow from CAFC, where everyone but Newman sided with the plaintiff. Watchtroll wrote about that yesterday:
On appeal Microsoft challenged the Board’s standard of review. The Federal Circuit reiterated that anticipation is a question of fact subject to substantial evidence review, that ultimate claim construction and claim construction relying solely on intrinsic evidence is subject to de novo review, and subsidiary factual findings based on extrinsic evidence are reviewed for substantial evidence.
[...]
Judge Newman dissented with the majority’s finding that the Kenoyer reference neither anticipated nor obviated the ‘182 patent. After performing a clause-by-clause review of claim 6, she argued that Figure 1 of Kenoyer discloses all of the elements of claim 6 and, thus, anticipates claim 6.
Further and in opposition to the majority’s view that Kenoyer presents “multiple, distinct teachings that the artisan might somehow combine to achieve the claimed invention,” she argued that the Kenoyer reference explicitly combines the limitations to provide the same conferencing system as in claim 6. Finally, she argued that the majority’s statement that “Microsoft fails to explain how a computer, especially the computer in Kenoyer, would receive broadcast, cable, or satellite television signals” was baseless because Biscotti does not provide an explanation and both Kenoyer and the ‘182 patent treat such signals as known technology.
Sites like Watchtroll would rather emphasise the above (dissent) because, as they themselves acknowledged at the end of the year, CAFC left them with little hope of a software patents resurgence. The truth of the matter is, patent litigation is becoming harder and harder in the US — a subject we shall cover with some hard figures (2017 totals) tomorrow. █
Authoritarianism at the EPO goes back to the early days of President Battistelli
Original: English [PDF] | French [PDF]
Summary: Battistelli acts as though the GAC (General Advisory Committee) has absolutely no importance and impact. “This is the first time that we can recall this happening,” write the members nominated by the staff committee after no less than 234 meetings
More on stuffing/stacking of the GAC:
Original: English [PDF] | German [PDF]
Original: English [PDF] | French [PDF]
Summary: As far back as 7 years ago, the EPO‘s President (only a year on the job) stopped accepting any input from the GAC (General Advisory Committee) and just went along with the so-called 'roadmap' set forth by Élodie Bergot
Original: English [PDF] | French [PDF]
Summary: Best known for appointment/promotion by nepotism at the EPO, Élodie Bergot’s document is politely being criticised based on lack of technical merit
Dr. Roy Schestowitz
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