Original: English [PDF] | German [PDF]
Summary: As EPO President, Battistelli shows poor comprehension or lack of respect for the rule of law just months after taking the job
Battistelli has less than half a year left at the EPO
Original: English [PDF] | French [PDF]
Summary: Going back to the dawn of the Battistelli era, irregularities appear very early on (such as the above, which exacerbated over time, as shown below)
Summary: Blue Coat (now owned by Symantec) has attempted — and failed — to invalidate all of Finjan’s patents using Section 101/Alice; those who are in the business of trolling view that as particularly good news because the judgment came from Timothy Dyk and Todd Hughes (much younger and appointed a few years ago)
THE USPTO had granted software patents far too easily before Alice, so in recent years we saw a lot of patent trolling from the likes of Finjan (such trolling is drying up over time, owing to courts’ decisions which repel further action).
The high-profile patent trolls and their supporters were glad to see that, for a change, after a case reached the Court of Appeals for the Federal Circuit (CAFC) the troll got its way. To give one example: “Finjan v Blue Coat Federal Circuit 1/10/18 reverses-in-part because as to 1 of 4 patents, patentee “failed to apportion damages to the infringing functionality”; court also agrees with def that “$8-per-user royalty rate was unsupported by substantial evidence.”
“Just because Alice isn’t applicable in certain cases doesn’t mean much; sometimes that is just the case.”Another one wrote: “The patentable subject matter ruling is interesting, and also because the opinion was authored by Judge Dyk, and joined by Judge Hughes, both of whom have a pronounced history of finding claims ineligible.”
Another proponent of trolls called them “anti-patent jurists” (as if being selective or expecting high quality makes one “anti-patent”). “But didn’t Dyk and Hughes,” he said, “two of the most anti-patent jurists on the Federal Circuit decide that at least some claims were patent eligible under 101?”
“Turns out that this decision is likely to be cited a lot in the future.”They try to personify it… at least they don’t resort to sexual orientation slant like corporate media does [1, 2].
Just because Alice isn’t applicable in certain cases doesn’t mean much; sometimes that is just the case. “Section 101″ isn’t always a winning argument, obviously…
Media of the patent microcosm covered this 3 days ago. It said:
The U.S. Court of Appeals for the Federal Circuit on Wednesday upset a $39.5 million award in long-running patent litigation between Finjan Inc. and Blue Coat Systems Inc., causing a San Jose federal judge to throw the brakes on another ongoing trial between the cybersecurity rivals.
Turns out that this decision is likely to be cited a lot in the future. “Finjan v Blue Coat Syst (Fed. Cir. 2018) PRECEDENTIAL,” said the above person. “Claims Directed to Computer Virus Detection Held Patent Eligible under 101; Other Issues in Decision: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2520.Opinion.1-8-2018.1.PDF …”
“Finjan sued the enabler of the EPO’s police state (surveillance and censorship), but we ought to leave that aspect aside in the context of patents.”We don’t have much sympathy for Blue Coat in particular; what we see here one evil firm against another evil company (the latter at least makes and sells something). Finjan sued the enabler of the EPO's police state (surveillance and censorship), but we ought to leave that aspect aside in the context of patents.
Nicole R. Townes and Daniel Kiang from Knobbe Martens took the time to write about it. “After a bench trial,” they said, “the district court concluded that one of the asserted patents is directed to patent-eligible subject matter under Section 101.”
CAFC did not agree about all 4 patents. This is the key part: “With respect to patent-eligibility, the Federal Circuit affirmed the district court’s finding that the claims were not directed toward an abstract idea for two reasons. First, the claims were drawn to behavior-based virus scanning which analyzes a downloadable’s code and determines whether it performs potentially dangerous or unwanted operations. This was different than the traditional method of code-matching virus scanning. The Federal Circuit determined that this was an improvement in computer functionality. Second, the results of the behavior-based virus scan are attached to a new type of file which enables a computer security system to perform tasks that it could not do before. Also, the claims recited more than a mere result and provided specific steps of generating a security profile that identifies suspicious code and links it to a downloadable.”
That’s just software patents.
There might even be another trial. To quote: “The Federal Circuit found that Finjan failed to present a damages case for one of the asserted patents that could support the jury’s verdict and remanded for a determination of whether Finjan waived its right to establish reasonable royalty damages under a new theory and whether to order a new trial on damages.”
“IBM — like Microsoft — is literally in the business of fueling patent trolls these days.”What is also interesting about this case is that there are ramifications for Symantec (Finjan is suing just about the whole security industry, except Microsoft, as it is deeply connected to Finjan).
The Symantec connection is explained here in relation to another Microsoft-connected troll, Intellectual Ventures.
The year’s first substantive patent-eligibility decision from the Federal Circuit is a rare victory for the patentee. It is also further evidence that the outcome of an eligibility analysis may be more dependent upon how the analysis is carried out than the actual language of the claims under review.
[...]
The Court began by distinguishing Finjan’s claim with those of Intellectual Ventures I LLC v. Symantec Corp., where the Court concluded that “by itself, virus screening is well-known and constitutes an abstract idea.” Particularly, claim 1 (as construed) requires that “the security profile includes details about the suspicious code in the received downloadable, such as . . . all potentially hostile or suspicious code operations that may be attempted by the Downloadable.” Thus, “[t]he security profile must include the information about potentially hostile operations produced by a behavior-based virus scan.” In this light, the claimed invention is distinguishable from traditional virus scans that look for previously identified patterns of suspicious code in executable programs.
Here’s a new report which suggests that the above possibley leads to mistrial:
A California federal judge on Wednesday granted Symantec unit Blue Coat’s request for a mistrial in a cybersecurity patent infringement case brought by Finjan, saying a just-issued Federal Circuit decision striking damages in a related case called for a fresh jury, free from certain impressions about damages and willfulness issues.
The presiding judge said she agreed with concerns expressed by Symantec-acquired Blue Coat Systems that the Federal Circuit’s opinion in the prior case affects many of the issues that have been discussed in the current trial…
As we noted in our previous post, IBM was helping the troll last year. IBM — like Microsoft — is literally in the business of fueling patent trolls these days. When these trolls are indebted to IBM and Microsoft they will sue neither; instead, they’re more likely to sue IBM’s and Microsoft’s competitors. That may be an implicit if not explicit part of their agreement. █
Does the US want a patent bully as a flag bearer of its patent system?
Photo source (modified slightly): The 10 Most Powerful Women in Technology Today
Summary: With 2017 figures coming to light (and to the mainstream/corporate media), we scrutinise what has received the most attention and why it’s detrimental to the reputation of the US patent system
THE USPTO, formerly run by a former IBM employee (and current IBM lobbyist for software patents), does no favour to its reputation. David Kappos still working as a lobbyist contributes to the perception of “revolving doors” or brokering.
The latest figures from the USPTO reaffirm such perceptions; there were two angles in corporate media this past week, one being China/India (nationality) and another IBM (by firm). The firm behind the figures wrote that “Chinese companies increased their US #patent count by 28% in 2017 from 2016.”
Here is the original page and the press release that said “IFI CLAIMS Announces 2017 Top U.S. Patent Recipients”.
Michael Loney, apparently visiting Hong Kong this month, wrote: “A record number of patents were granted by the USPTO last year, according to the 2017 IFI Claims US Top 50.”
“China is among top 5 U.S. patent recipients for first time,” said this headline from official/state media in China (the English-speaking site).
“China Becomes One of the Top 5 U.S. Patent Recipients for the First Time,” said Wall Street media, which also focused on nationality of applicants.
Chinese inventors received 11,241 U.S. patents last year, a 28 percent increase over the same period in 2016, according to a report released Tuesday by IFI Claims Patent Services, a unit of Fairview Research LLC. That propels the nation into the top five recipients for the first time, behind the U.S., Japan, Korea and Germany, but ahead of Taiwan.
A lot of it was a PR exercise from IFI and IAM played along with blog posts like this one (“Patents no barrier to Chinese smartphones in the US market”). “For licensors,” it said, “it means that aside from Apple and Samsung, a big swathe of the world’s biggest mobile device sellers simply won’t see the US as a critically important market. That means any effort to enforce patents against them will be most effective somewhere else.”
Most of the press coverage, however, was not about nations but about firms. We did a comprehensive media survey and found that dominant headlines stated things like “IBM Breaks Patent Record in 25th Straight Year as Number One” and “IBM led on patents in 2017, Facebook broke into top 50 for the first time” (Samsung 2nd, Canon 3rd). As IBM has outsourced or sent overseas many jobs, there were also headlines such as “India 2nd largest contributor to IBM’s over 9,000 patents in 2017″ and “IBM tops US patent list in 2017, Indian arm among major contributors”.
9,043 US patents for IBM just this past year. While the company is suing a lot of companies or compelling them to pay 'protection' money to avoid litigation. The USPTO is debased due to this tendency to just sue aplenty, but thankfully the courts have become tougher. Watchtroll wrote this:
IBM inventors received a record number of U.S. patents in 2017, again blowing past their own previous record to sail past 9,000 issued patents. The 9,043 U.S. patents issued to IBM in 2017 represents an average of nearly 25 patents a day. These 9,043 U.s. patents were granted to a diverse group of more than 8,500 IBM researchers, engineers, scientists and designers in 47 different U.S. states and 47 countries.
Imagine that; “25 patents a day” (recall what journalist Dan Gillmor recently said about that; he said that IBM “basically invented patent trolling and employs platoons of patent lawyers”).
So IBM has not much to show now but patents and patent deals/settlements. As if IBM becoming a kind of troll is somehow good for its reputation…
Our next post will revisit Finjan, a very notorious patent troll that IBM fed patents into as recently as last year.
“IBM has no choice,” IAM said. “Imagine the headlines if it ever fell off top place. It could well make a material difference. That may not be a great position to be in.”
Well, IBM used to be known if not renowned/famous for its very many patents. Nowadays it’s known for a lot of patent aggression, so the more patents it gets granted, the worse off society/industry will be. █
The Annotated European Patent Convention
“The 25th edition,” says the reference page, “updated up until 15 November 2017, was published on 18 December 2017.”
Summary: With quality of European Patents (EPs) and of EPO staff in rapid decline if not a freefall, we look back at the best-selling book from Visser, who warned that the Council/Organisation and the Office would “have other priorities than the role of law” if the Boards don’t enjoy true independence (which they no longer do)
EARLIER today we found this British law firm promoting the EPO for assessment of patent validity; but people say that the EPO has become a lot worse/inferior even to the Spanish patent office (which isn’t particularly renowned) and leaks have already shown that the EPO is not reliable for this kind of service because quantity is the mantra under Battistelli.
This has got to be a joke, but here is what they say:
In Europe, opposition at the EPO can be a cost-effective, time-efficient way to centrally challenge a granted European patent. There is a time limit for filing an opposition at the EPO, and if you miss that then each national patent derived from the European patent must instead be attacked individually according to national law. This can result in increased cost, time and effort compared to opposing the patent centrally at the EPO. Importantly, there is no estoppel in European National Courts based on opposition at the EPO.
What good is an assessment of patent validity that isn’t a good assessment? Mr. Herrnst can deny to himself (and in private meetings) that Battistelli destroyed patent quality, but the reality is hard to hide (Battistelli last lied about it some days ago as he heavily depends on that lie).
“So either Visser foresaw Battistelli or someone added it to the latest edition.”With Herrnst and Battistelli basically protecting each other (Herrnst is just another Kongstad so far), what chance is there for the Boards to become independent and actually add much-needed staff that can work independently and not punished/bullied like Patrick Corcoran?
Rule 12b in the above book says “it should be noted that the administrating council and the President of the EPO have decisive roles in a committee that monitors the independence of the Boards whereas both have shown on several occasions to have other priorities than the role of law…”
So either Visser foresaw Battistelli or someone added it to the latest edition. Either way, the EPC is now officially in crisis. Visser’s latest article (co-authored) is titled “A hope to succeed – are the EPO Guidelines misleading?” █
Shoot first, ask questions later (then run and hide)
Summary: The new document from Winfried Tilmann et al (Team UPC) is being defended by Team UPC not only by publicly attacking UPC critics (like the complainant) but also blogs critical of the UPC
OPEN debates or communications are generally essential. Democracy necessitates those. So it’s a shame that in multiple blogs other than its own Bristows is deleting comments about the UPC (its own blog does not allow comments at all). Such is the nature of Team UPC; it’s insular, leaning towards censorship, and cryptic/secretive. Because if only the public knew what it was really up to…
“Such is the nature of Team UPC; it’s insular, leaning towards censorship, and cryptic/secretive.”A couple of days ago we wrote about German UPC proceedings and we beat Team UPC to it, owing to pointers/tips from readers. This seems to have really upset Team UPC, which wanted to control the narrative of this release and treat a bunch of self-serving barristers as neutral or independent domain experts. Some people from Team UPC tried to heckle me publicly. They even use the word “conspiracy” (it’s not a word that I used). Maybe they try to associate truths about the UPC with “conspiracy theory” in order to discredit those truths. Whatever it is, all we’ve said was factual. They did not rebut a single argument. They don’t care that the UPC is neither desirable… nor legal… nor constitutional. All they care about is what fattens their wallet. Some were throwing personal attacks at me and calling “ad hominem” my blog post that does not name anyone but Tillman (very briefly at the top). What are these people even hoping to accomplish? A few weeks ago we noted that they had already begun personal attacks on the complainant himself; all this while moaning that he was keeping his identity secret for a number of months (who can blame him, especially gives those personal attacks he must have foreseen)?
We urge readers to check this whole ‘debate’ from start to finish; it’s Team UPC which operates like some sort of cult in secret events and funding that can sometimes be traced back to the EPO. It’s them who habitually dish/throw insults at those who stand in their way.
“We urge readers to check this whole ‘debate’ from start to finish; it’s Team UPC which operates like some sort of cult in secret events and funding that can sometimes be traced back to the EPO.”One of them has just published this blog post for a firm that stands to benefit from the UPC and pushes for it not only in the UK but also in other countries. And as usual, late on a Friday (sometimes Saturday), such pro-UPC pieces are published, hoping for lack of comment (i.e. challenge) altogether until Monday (or Monday moderation). They seem to have begun publishing these anonymously as they don't wish to be held accountable for misinformation. It probably won’t be long (expect Monday morning) before some rebuttal is posted in the comments (3 days after the original was posted, i.e. no audience to witness the comment/s).
Here we have a copy, posted by a UPC proponent and likely chosen by Bristows (“Kluwer Patent Blogger”) as it suited the agenda, lobbying for his firm/his pockets at Europe’s expense. A day later, still no comment, which is unusual except when there’s pro-UPC stuff during the weekend (all comments automatically go through moderation). It says this: “The constitutional complaint which was filed last year against German ratification of the Unified Patent Court Agreement, has been shrouded in secrecy. The complaint has not been published, nor the observations about the case, which the German Federal Constitutional Court (FCC) requested from goverment and a series of other organizations. Professor Winfried Tilmann gave his personal view on this blog and two days ago, The German Bar Association published its findings (co-authored by Tilmann) as well. Dr Alex Robinson, associate at Dehns, wrote an article about the developments, which Kluwer IP Law is happy to republish here as a guest post.”
“Their presence, which depends on money flow, is a tax on real (operating/producing) firms in Europe.”It is always amusing to see Team UPC attempting to accuse the complainant of secrecy; it’s an old strategy wherein one attributes (im)moral equivalence to one’s opposition in order to distract — sometimes pro-actively — from one’s own. It’s quite frankly laughable.
It’s not hard to imagine who promotes the above document and post. It’s promoted by Weber , “UPC tracker” (Thomas Adam, “Patent litigation aficionado,” by his very own bio of himself) and other UPC pushers; and by the way, to simply name people is not unethical; we are attempting to show that UPC advocacy comes from the same heavily-vested cabal that stands to benefit from UPC and played a role in creating it for self-enrichment. Many are litigation firms. If the UPC’s demise leads to many layoffs in such firms, then good riddance. Their presence, which depends on money flow, is a tax on real (operating/producing) firms in Europe. █
A badge of honour, coming from the likes of them…
Photo in the public domain, via Wikipedia
Summary: Darrell Issa, a man of patent reform in the United States, seems to be ending his political career and patent parasites are jubilant about it
Darrell Issa, who stood for PTAB and was repeatedly attacked by patent propagandists, will not seek reelection.
The news was barely notable enough for general news sites to cover. So who covered it? The patent propagandists of course…
Watchtroll continues its political witch-hunts, this time against Congressman Darrell Issa, who promoted good patent reform.
“The news was barely notable enough for general news sites to cover. So who covered it? The patent propagandists of course…”Paul Morinville, who is a liar and patent extremist, also reared his ugly head, trying to push his Watchtroll lunacy into Patently-O which instead wrote: “I received a funny email from Paul Morinville’s US Inventor group stating that “Thousands of US inventors are applauding Rep. Darrell Issa‘s decision to not run for re-election in California’s 49th district, and they’re hopeful his replacement will fix the job-killing problems the Congressman caused by weakening the nation’s patent system.””
Nonsense. Liar. He could not even pull together a protest of more than a dozen people.
As Patently-O then noted, “Issa is a listed inventor on dozens of patents (utility + design) related to the car alarm company he founded. This background meant that Issa was both knowledgeable and interested in the U.S. patent system.”
“He did a good job and he will be remembered for his role restoring some patent sanity in the United States.”Issa and also Patently-O are now being heckled by Conservative think tanks with trolls’ apologists like Adam Mossoff (he’s not a mere staffer). Those are parasites. Not people who themselves invented or developed anything. They’re more like lobbyists. They lobby for software patents and the interests of patent trolls down in Texas.
Other patent zealots came out with strongly-worded remarks such as “Good Riddance Rep. Issa.” And also “Ding Dong, Darrell Issa’s Gone.”
How very mature. But Issa should rest assured that being mocked by those horrible people is actually a badge of honour. He did a good job and he will be remembered for his role restoring some patent sanity in the United States. █
Dr. Roy Schestowitz
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