01.14.18
Posted in America, Apple, Patents at 5:56 pm by Dr. Roy Schestowitz
The ‘natural enemies’ of a high-quality patent system keep weeping
Summary: The latest rants/scorn against PTAB — leaning on cases such as Wi-Fi One v Broadcom or entities like Saint Regis Mohawk Tribe, Apple etc. — are all coming from firms and people who profit from low-quality patents
THE excellent work of the patent appeal board in the US (at the USPTO it’s referred to as PTAB, similar but not analogous to BoA at the EPO) has attracted the wrath of patent maximalists. They cannot tolerate the concept of quality control or reassessment of patents they (or more typically their clients) were granted in the past. This is expected. The harder they resist, the more they’ve been hurt. And the goal ought to be decimating their role in this system because they tend to contribute nothing but feuds and FUD.
How about this from Adam Mossoff? His attacks on PTAB are a good sign because he is notorious for promoting everything that’s wrong in the patent system. He’s just working for a Conservative think tank serving patent trolls and the litigation ‘industry’. As this tweet put it, Mossoff says that the “@uspto’s #patent review board is denying basic rights to American innovators.”
What basic rights? Patents? They’re not rights. Drop this myth. They typically try to call patents “property” (which they're not) and then allude to “property rights” or whatever. Intellectually-dishonest garbage that Koch-funded ‘academics’ would say…
Let’s see who else it’s moaning about PTAB because that’s just pretty revealing. One site of the patent microcosm complained about PTAB’s inter partes reviews (IPRs) a few days ago. “Like many inter partes reviews,” it said, a “dispute started in district court. Multiple IPRs from the defendants followed: this petition against claim 1 of U.S. Patent No. 8,155,298, from Bright House Networks, WideOpen West Finance, Knology of Florida, and Birch Communications; another by the same parties against claim 20; a third by YMax against claims 1 and 20; and two more against related patents.”
And guess what happened. It’s gone! Good riddance. At low cost. This is what makes PTAB so important.
By contrast, IP Watch‘s Steven Seidenberg wrote about Oil States (a case about IPRs, indirectly affecting the Kochs). “The upcoming decision in Oil States Energy Services v. Greene’s Energy Group could have major ramifications for patents, copyrights, trademarks, and the USPTO,” he said. This is the main reason for lobbying from the likes of IAM and Watchtroll. They hope to change the outcome to stop or slow down PTAB. They want not only to weaken PTAB but to obliterate it. Earlier today Watchtroll wrote: “The Supreme Court had a lot to chew on last year, in part because so many issues were percolating at the Federal Circuit. In addition, the Supreme Court tends to reach consensus (or something closer to consensus) in patent cases, making them great issues for the court to consider when it sat with a vacancy last year. But based on our look at what’s sitting before the Federal Circuit now, there simply aren’t as many “big picture” issues warranting high court attention. And so, despite the high reversal rate, we doubt that the Supreme Court will show too strong an interest in taking patent cases for the following term.”
And then starts the PTAB bashing, which has become a daily routine at Watchtroll. One does not even need to look far back. Here’s Watchtroll’s attack on PTAB from 4 days ago, 3 days ago, and another one earlier today (second in a day and it’s a Sunday!) — already cited by some of the most extreme people (those who support trolls). Obviously, Watchtroll will attack PTAB again almost every day this month; Patently-O too used to do that for a while. Why? Because to these people, who make money from patent disputes, patent quality is the enemy.
One of the latest strategies for discrediting PTAB is latching onto the Native American tribes or even Apple. Some extremists keep linking to Law.com, which published two pieces about it before the weekend [1, 2]. It looks like Apple bashes a PTAB panel when the outcome does not suit Apple, so cherry-pickers now use that as ‘proof’ that PTAB must be corrupt. Law.com said: “Apple claims that its opponent contacted senior administration officials and the judges presiding over the case, swaying the outcome of an inter partes review proceeding.”
Would a site of the patent microcosm add an attack on PTAB? Of course it would. They all do. “IPRs Are the Best—Except When They’re Biased, Prejudiced and Violate Due Process,” says a sensationalist headline. The EFF’s Vera Ranieri responded by saying: “What’s clear from this PTAB story and the one with the Tribe is that the PTAB needs clearer rules and more transparency as to how it operates. Conspiracies will breed where facts are kept hidden.”
She was alluding to another case that is mentioned spuriously and that we already covered last weekend. IAM keeps kicking this dead horse by writing about it:
The company, which bills itself as a “global leader in cost-efficient technology that enables high-volume text, voice and digital multi-media communications”, has accused Apple of infringing its IP in a district court action and has demanded $2.8 billion in damages. It has been on a remarkable run at the PTAB as it has looked to defend its rights, fighting off eight reviews brought not only by Apple, but also the likes of Unified Patents and AT&T. According to Lex Machina, of the eight IPRs that have been filed against Voip-Pal’s patents, six were denied institution while two (including the one in question here) had all of their claims upheld following institution.
That’s a record which suggests that the company has some very good quality grants; but the latest motion from the Cupertino-based tech giant shows the degree to which it, arguably more than any other defendant, is prepared to fight its corner in infringement disputes.
Citing Watchtroll, as usual, other defenders of patent trolls try to scandalise PTAB (using Voip-Pal for instance). Their ultimate goal it to lower patent quality, help trolls, and enrich themselves. Such patent zealots would still (never mind the tribe) come up with conspiracy theories (from which the tribes feed), so there’s a cyclic flow here or a loop. Sites like Watchtroll accuse PTAB of corruption, tribe lawyers then repeat that, and in turn sites like Watchtroll repeat what the lawyers say.
Regarding these lawyers, Michael Loney wrote about it in short form a few days ago. The St. Regis Mohawk Tribe has become a laughing stock for participating in a patent scam — a scam which is still being defended by the patent microcosm. Here’s one new example:
As previously reported, the St. Regis Mohawk Tribe filed a request for oral hearing that included a “request for discovery into the identity and impartiality of the merits panel assigned to this case.” The paper was replete with justifications for its request and specific discovery it was seeking, all premised on its apprehension that the Patent Trial and Appeal Board (PTAB) might deprive the Tribe of due process by, inter alia, empaneling an expanded panel of Board members (including specifically Chief Administrative Patent Judge David Ruschke) that would not be impartial in deciding whether the Tribe’s sovereign immunity precluded the Board from deciding on the validity of the patents (U.S. Patent Nos. 8,629,111; 8,633,162; 8,642,556; 8,648,048; 8,685,930; and 9,248,191) involved in the consolidated IPRs.
They just want to be exempted from the law and let a private company ‘borrow’ this immunity in exchange for money. How is that not a scam?
The scam is not PTAB but those who try hard to destroy or avoid it.
Saurabh Vishnubhakat recently wrote about Wi-Fi One v Broadcom (a case which concerns PTAB). This too mentioned another form of immunity: “The decision in Wi-Fi One v. Broadcom is the first real test, following Cuozzo, of the broad view that the Patent Office has taken of its immunity from judicial review in PTAB institutions. Going forward, it will likely be the dialogue between the Federal Circuit and the Supreme Court that defines the full contours of the agency’s discretion.”
Well, the Supreme Court will rule on IPRs within several months. No doubt the outcome can be swayed by online dialog and sites of private companies like this one will meddle as much as they can. Here they are saying that “Patent Office employees are creatures of incentives.”
Well, calling them creatures and all that shows how parent microcosm views them. Here’s the portion with its entire context:
Patent Office employees are creatures of incentives. It is well-known that patent examiners earn various counts for use in the USPTO’s internal quota system. PTAB judges are also measured by a count-based system, which is based on the number of decisions they author. It is no secret that Examiners and PTAB judges at times get creative with policies and practices to most easily meet their quotas. Here, we look at a recent decision that shows a practice of PTAB judges deciding only one ground of rejection without looking to the remaining pending ground on appeal.
USPTO examiners are incentivised to grant as much as possible, so what’s wrong with PTAB working in an opposite fashion to balance or negate that? For the patent microcosm, for obvious reasons, it’s only granting — not rejections — that brings a lot of money. If the goal of the US patent system is just to blindly grant as many patents as possible, then PTAB is harmful; but if the US patent system seriously strives for quality and justice, then PTAB isn’t just desirable but essential.
It’s not hard to see why PTAB faces resistance. The question is, who from? █
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Posted in Patents at 4:59 pm by Dr. Roy Schestowitz
Related: Ericsson Hired From the World’s Largest Patent Troll and Became a Massive Troll in Europe
Summary: The demise of patent-asserting/patent assertion business models (trolling or enforcement by proxy) may see front groups/media supportive of it diminishing as well; this appears to be happening already
THE US Supreme Court did quite a lot in recent years in order to stave off patent maximalism. For that we are grateful. Last year it gave us TC Heartland, which is already having a profoundly positive effect.
Sites like IAM may soon ebb away. They’re like lobbyists. Some sites like these already struggle (go silent or barely post anything new) because they rely on patent maximalism and trolls (which they promote).
“Sites like IAM may soon ebb away.”“IP Bridge is the latest Japanese patent owner to join Avanci,” IAM wrote some days ago, “as JPO continues to mull SEP guidelines” and here is the corresponding article. What the patent trolls’ lobby (IAM) failed to say is that Avanci is a troll, headed by a person whom IAM recently crowned personality of 2017 (as gross as that notion may be). Here is what IAM wrote:
I recently caught up with IP Bridge executive vice president and CIPO Duke Ogata and we talked through the fund’s decision to throw its lot in with Kasim Alfalahi’s team, and how it fits into their long-term strategy. He was very clear about what signal the decision should send to the market, both inside Japan and outside: “IP Bridge has always tried to promote innovation in the Internet of Things. We don’t want to be an obstacle to spreading or disseminating IoT technologies. That was our motivation to join”.
“IoT” is just one of these buzzwords we mentioned earlier today; these are often a shallow mask for software patents.
“Companies like Ericsson, which essentially became patent trolls, are paying to mislead us all.”Alfalahi has come from Ericsson, which now operates through several patent trolls. Here is that buzzword again: “The @LESIntl les Nouvelles Article of the Month is ” #SMEs & Standard Essential #Patents: #Licensing Efficiency in #IoT (Internet of Things),” by Harris Tsilikas and Claudia Tapia. #LESGermany https://www.lesi.org/les-nouvelles/les-nouvelles-article-of-the-month …”
Claudia Tapia is Director IPR Policy at Ericsson and SEP is inherently anti-SME (or SME-hostile). Companies like Ericsson, which essentially became patent trolls, are paying to mislead us all. They know they cannot just attack everyone directly, so they operate through satellites and engage in patent stacking (a legal term describing exactly what they have been up to).
One well known satellite of Ericsson is now known as Unwired Planet (this troll used to be known as all sorts of other things, including Openwave). Here is a new article about TCL v Ericsson and its relevance to Unwired Planet, as explained some days ago by the patent microcosm:
The fourth US bench trial to determine a FRAND royalty is the first to use a top-down approach. It also has parallels to the UK’s Unwired Planet decision
Judge James Selna gave patent practitioners some holiday reading on December 21 when the public version of his fair, reasonable and non-discriminatory (FRAND) determination in TCL v Ericsson was released.
This is considered to be bad news. If Ericsson cannot pull off these tricks, perhaps nobody else can. Meanwhile, the number of articles and authors in the sites above has dropped; a large number of writers may already have left. That’s certainly true when it comes to IAM. Our prediction is that they will become obsolete. █
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Posted in Europe, Patents at 3:11 pm by Dr. Roy Schestowitz
Related:
Summary: Another one (among many) EPO documents about the alarming physical wellbeing of EPO employees and the management’s attitude towards the issue
I. The EPO Health Insurance:
II. Making Us Sick And Making Us Pay For It?
Summary
The administration has submitted a document to the next GAC which proposes amongst others to effectively remove the 2.4% (of basic salary) ceiling on the Vanbreda staff contribution. The staff representation considers such a proposal inappropriate and premature at a time when the alternative solutions (e.g. the internal insurance) unanimously agreed by the Vanbreda working group have not yet been implemented. More importantly, however, the staff representation strongly opposes any increase in staff costs as long as the Office neglects its duty of care towards staff by not protecting staff health and not implementing essential parts of the EPO health policy.
A. INTRODUCTION
In 2007, after a decade of nagging by the staff representation, the Office finally introduced a health policy and founded an occupational health department. The health departments have, however, been understaffed from the very beginning. Repeated requests from the staff representation to provide the newly hired occupational health physicians temporarily with a project manager to help them set up their departments were refused with the effect that they spent most of their first year battling their way through the Office’s red tape in order to order their material, hire staff etc. Two years later “sick leave management”, essentially: staying in touch with sick staff in order to offer support for a return to work1, is in place. The ergo-WUC network has also largely been reactivated and “work-pace” soft-ware has been made available to staff. But more remains to be done.
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1 Contact with the Occupational Health Service is voluntary. If you feel that the contact is not helpful for you, you need not continue. The Occupational Health Service furthermore cannot challenge sick leave (full-time or part-time) prescribed by your treating physician. Only the Medical Advisor to the Administration (Dr. Koopman) can verify sick-leave, following the procedure foreseen under Art. 62(nn) of the ServRegs.
B. UPPER LIMB DISORDERS
In 2004, TNO2 found that a whopping 39% of the EPO staff suffered from Upper Limb Disorder3 (ULD), and that 19% had been treated for those complaints. Even the best ergo-WUC is helpless when faced with un-ergonomic software, especially when combined with long hours on the computer and high work pressure. Since 2004 our software has not improved significantly from an ergonomic point of view, the time spent on the computer has not diminished, and neither has the work pressure. There is thus no reason to believe that the situation has improved insofar as ULD / RSI is concerned4.
We note that the EPO’s health policy prescribes regular risk analyses. These should include a follow-up on the TNO study. The Occupational Health Department is working on a proposal for a risk analysis. However, none has been made thus far and, obviously, any follow-up in practical measures is even further away.
The major overhaul of the Office’s computer systems now planned could provide an opportunity to greatly improve the ergonomics of the Office’s software. We do not, however, have much evidence that ergonomics has a very high priority compared to e.g. (perceived) “efficiency”. In particular: we have seen no clear ergonomics policy or guidelines for the soft-ware, we have not seen a dedicated budget etc.
C. PSYCHOLOGICAL PROBLEMS
Another major factor for staff ill-health, and apparently the most frequent cause of invalidity, are psychological problems. It is our impression that a high percentage of these problems are caused by, or at least aggravated by the Office, in particular by a frequently inappropriate management style at all levels. This is confirmed by all psychosocial studies done so far, including the staff surveys, and also by the psychiatrist5 whom the staff representation advises to staff in need of support. Our highest management displays a serious lack of understanding of, and respect for, the work of the EPO staff. Constant, badly thought-through changes in working methods and tools, constant reorganisations and more recently: a constant threat to the working conditions make things worse. For some staff the situation is further aggravated by the Office’s inability or unwillingness to control and take measures against line managers who cause serious distress to their subordinates. Last but not least, there is furthermore a lack of effective support for staff with work-place related health problems. In particular for examiners there are no alternatives for search and examination work. A high work diversity (search and examination for examiners, several “procedures” for formalities staff, a whole range of services for staff in the Personnel Dept. etc.) is asked from all staff, including staff in bad health. The department as a whole is furthermore penalized for keeping sick staff on board on reduced time and/or capacity since the number of budgeted posts has been reduced to the minimum and there are no super-numery posts for staff with reduced capacity. Simpler work elsewhere is no longer available since almost all such work has been out-sourced. The above deficiencies seriously hinder effective reintegration and contribute to high sick leave and invalidity levels.
We note that a psychosocial health risk management, starting with a psychosocial health risk analysis, is now generally considered an integral part of any modern staff health policy. Extensive
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2 TNO report
3 also called RSI (Repetitive Strain Injury)
4 Dr. Bosch expresses the opinion that the level of RSI has gone down based on the lower number of complaints received by her department. This can, however, have other reasons like staff with long-term complaints no longer seeking advise from the Occupational Health department.
5 Report Dr. Teuschel, 2008
information about psychosocial health management is provided by World Health Organisation6. We are, however, not aware that the Office has undertaken any serious initiatives in this respect. On the contrary: existing psychosocial support staff (by the Personnel Department, Amicale, Kids e.a.) is constantly under threat of budgetary savings.
D. THE PRICE TO PAY
Under the circumstances, it is not surprising that the sickness and invalidity figures in the Office are relatively high. This in turn leads to relatively high costs, in particularly in Munich where the charges made by the medical establishment are higher than in most of the other places of employment. In order to address these specific local problems, the staff committee has repeatedly requested support from the Office against medical doctors who are blatantly over-charging, but staff is still left to struggle on their own with bloated invoices and aggressive “Abrechnungsstelle”. Similarly we have asked for a “white list” of reasonably priced doctors and ideally “preferred providers” near the Office buildings to whom staff can go, if they so wish. Thus far no progress has been made in this respect.
We note that e.g. the EU has a separate insurance for the costs incurred due to accidents at work and/or occupational disease, which is entirely funded by the employer. It stands to reason that health costs that have been caused through the work are carried by the employer. This also provides a motivation for the employer to keep the working place as healthy as possible (the sort of direct link between “performance” and “pay” that the Office seems to favour for its staff!).
E. THE OFFICE’S “CURE”
The “cure” proposed by our administration is, however, neither improving the health of the staff through improved prevention at work, nor taking over the costs of work-related health problems: the Office is proposing to make staff pay for the consequences of the increase in health costs. Already working spouses have been excluded from cover or been made to pay. As a next step the Office proposes the removal of the 2.4% of basic salary as the ceiling on the staff contribution. The next in line are the pensioners who will be charged a percentage of their final salary rather than a percentage of their actual pension, as well as spouses of pensioners who will have to make use of their primary insurance.
Whereas we would possibly understand such measures if everything else, in particular all more reasonable measures (e.g. the 6 unanimous measures of the Vanbreda working group), had been tried first and costs would remain well above the ceiling for several years, at this stage such measures are inappropriate:
at present the Office is making us sick and making us pay for it!
If the legislator has built in a ceiling then the intention must have been to protect staff from higher charges and to force the Office to manage staff health correctly. The latter has clearly not been done: a health policy has been adopted but essential parts such as risk analyses and management have not been implemented.
The staff representation therefore demands that the Office:
1) awaits the effect of the cost-saving measures already taken (amongst others increased reliance on the primary insurance),
2) implements the 6 further measures7 unanimously agreed by the Vanbreda working group, and awaits their effectiveness, and
3) awaits the full effective implementation of the OH policy,
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6 PRIMA-EF brochures
7 e.g. the self-insurance, which should save around 1,5 million Euro per year; see su09117cp
before considering introducing further changes in the financing of the EPO health insurance scheme that negatively affect staff, either in the short term or in the longer term.
The Staff Committee will reiterate this position in the GAC that takes place in the second week of September and, if necessary, again in the October Budget and Finance Committee and Administrative Council meetings. If all this will be in vain we will file internal appeals. In our opinion such appeals would have a good chance of success.
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Posted in Europe, Patents at 2:33 pm by Dr. Roy Schestowitz
Financially prudent, except when handing out cash 'gifts' for votes and secretly building himself a penthouse with a pub
Original: Presidential candidates set out their vision for the EPO | full article (copy)
Summary: “I have always admired creative people, inventors, those who, through their passion and their work, bring about scientific progress or artistic evolution. I was not blessed with such talent myself,” explained the EPO‘s President when pursuing his current job (for which he was barely qualified and probably not eligible because of his political work)
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Posted in Europe, Patents at 1:46 pm by Dr. Roy Schestowitz
Original: English [PDF]
Summary: An illustration of the glaring deficiency that now prevails and cannot be tolerated as long as the goal is to ensure democratic functionality; absence of the role of Separation of Powers (or Rule of Law) at the EPO is evident now that Battistelli not only controls the Council (using EPO budget) but also blatantly attacks the independence of the Boards of Appeal
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Posted in America, Patents at 11:57 am by Dr. Roy Schestowitz
Ignoring the ‘elephant’ in the room to obsess over something rather minor
Summary: IP3, which we've always considered to be nothing but a parasite, does what it does best and those who love stupid patents consider it to be some sort of victory
It’s 2018 now. Wow. We’re nearly 4 years after Alice. Free/libre software is everywhere (servers, desktops, mobile devices) and most coders share their code, so what good are software patents anyway? They’re barely even enforceable when code is exchanged in this fashion. Such patents clearly harm the profession which is software development (coding/hacking/programming), yet law firms promote these patents wholeheartedly. In spite of Section 101, which the high court repeatedly cited when it rejected software patents last year. Watchtroll is still struggling to come to grips with it. These people clearly lose the battle.
“Free/libre software is everywhere (servers, desktops, mobile devices) and most coders share their code, so what good are software patents anyway?”It’s no surprise really. Software developers want to produce software; lawyers, on the other hand, want to ‘produce’ lawsuits (which developers hate). High courts increasingly ‘get’ that and they rule accordingly. The EFF now talks about the subject, rightly naming “Stupid Software Patents” in this headline which is days old. Daniel Nazer wrote about AlphaCap, which we covered several times last year. Quoting Nazer:
This case began when a patent troll called AlphaCap Ventures sued Gust, a company that connects startups with investors around the world. Claiming its patent covered various forms of online equity financing, AlphaCap Ventures filed suit against ten different crowdfunding platforms. Most of the defendants settled quickly. (In many patent troll suits, even when the patent is very weak, the high cost of litigation pressures defendants to settle.) But Gust fought back. Faced with a defendant willing to actually challenge its patent, AlphaCap Ventures eventually dismissed its claim. The district court ruled that AlphaCap Ventures’ attorneys had litigated unreasonably and ordered them to pay Gust’s attorneys’ fees. The lawyers then appealed.
In their appeal, AlphaCap Ventures’ attorneys argue that the law of patent eligibility—particularly the law regarding when a claimed invention is an abstract idea and thus ineligible for patent protection—is so unsettled that a court should never award fees when a party loses on the issue. Our brief argues that this would be a very dangerous rule. Certainly, some patent eligibility questions are difficult. But that does not mean all eligibility questions are difficult. Our brief explains that many of the most prolific trolls have made objectively unreasonable eligibility arguments. Indeed, district courts have already awarded fees in a few cases where trolls made unreasonable arguments regarding patent eligibility under Alice.
The patent microcosm hates the EFF with a great passion; not only does it repeatedly mock the EFF (they mock us too, but we don’t give them the attention they crave) and the EFF already got sued several times for its “Stupid Patent of the Month” series (in every case so far the EFF has won the case/s; sometimes the case/s get dropped).
The other day we saw IAM, which promotes patent trolls, saying this:
It was an @EFF Stupid Patent of the Month in April 2016, now it’s been sold at the IP3 auction. Maybe not so stupid after all
So what?
“Stupid patents too can be used for bullying when the target of patent trolling is poor,” I told IAM, and thus “cannot pay for court” (fees). What IAM hopes for is a sort of generalisation that serves to discredit both the “Stupid Patent of the Month” series and all articles about patents which were previously described as “stupid”.
“Sometimes the patent trolls bash the EFF directly, not through their megaphones/front groups (like IAM).”IAM also said: “Results from latest IP3 #patent auction are starting to trickle out including news of a deal for a former “stupid patent of the month””
See how IAM is bashing the EFF? Sometimes the patent trolls bash the EFF directly, not through their megaphones/front groups (like IAM).
Here is what IAM wrote about it (a whole long blog post):
There’s not a huge amount of information publicly available on the company except that it’s registered in Texas, its IP appears focused on speech recognition technology and its portfolio was assigned to it by Empire IP, an NPE headed by a couple of former New York-based patent lawyers. Voice2Text was also in the spotlight in 2016 as it filed a series of five infringement suits, two against a company called Mutare Inc, and the rest against USCC Services LLC, Onvoy LLC and Phone.com Inc. All of them had reached a conclusion by the second half of 2016 or start of 2017.
Those suits did ensure that Voice2Text garnered some notoriety as one of its patents – no. 8,914,003 – which uses speech recognition to convert a voicemail into a text message, was featured as the EFF “Stupid Patent of the Month” back in April 2016. The advocacy group, a strong and long-time supporter of major patent reform in the US, makes it award to those grants that it deems to be particularly suspect.
So someone has just wasted money on bogus, worthless patents. So what? What we see here is a desperate attempt to insinuate that when a patent gets sold it suddenly gives that patent legitimacy. Where’s the logic in that? It’s not like the patent has just been tested in a lengthy court battle with appeals and expert testimonies.
Desperate attempts to get past TC Heartland could also be seen a few days ago when Docket Report wrote:
The court granted defendant’s motion to dismiss for improper venue because defendant did not have a regular and established place of business in the district through its use of an online retailer’s fulfillment centers.
The court did the right thing. It denied the effort to sue – using potentially “stupid” patents – in trolls-friendly/plaintiff-friendly districts. Don’t expect sites like Watchtroll or IAM to cover that. They’d rather pretend it didn’t happen and obsesses about the mere sale of one patent among millions (in an auction where sale prices can even be $1). █
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Posted in America, Europe, Patents at 10:37 am by Dr. Roy Schestowitz
The next generation of “over the Internet” or “on a computer”
The EPO’s examination division inspects prior art/dossiers. But does that do the job or just wrongly reinforces that idea (assuming consistency in terminology)?
Source: Presentation from Steffen Wolf [PDF]
Summary: In order to make prior art search a lot harder and in order to make software patents look legitimate (even in various courtrooms) the patent microcosm and greedy patent offices embrace buzzwords
THE EPO does not formally permit software patents. The USPTO still grants some, but like the EPO it requires that people disguise the ‘invention’ being software. This can be accomplished in all sorts of ways; first of all, they don’t use the word “software” and instead use words like “invention” along with mumbo-jumbo like “technical effect”. That in its own right can help mislead examiners who work in a rush with unrealistic quotas/demands.
“What happens when notorious buzzwords (which typically lack any concrete meaning) are introduced?”The images above, extracted from a staff survey (responses in English and German [PDF] and an old presentation from Steffen Wolf of the EPO), remind us of how EPO workers assess (or assessed) prior art etc. Some of them used to complain that semi-automated (or human-aided algorithms) would fail to identify prior art because of homonyms and synonyms. It requires an actual domain expert to assess.
What happens when notorious buzzwords (which typically lack any concrete meaning) are introduced? That seems to be happening a lot these days. Case of point? This new IAM interview which is promotion of an upcoming IAM event (for the patent microcosm). Like the EPO, these people use words like “Internet of Things/Industry 4.0 realm” (whatever that practically means; that typically alludes to old-fashioned devices with an on-board Internet/networking stack). That’s exactly how EPO management promotes software patents without uttering the term “software patents”. IAM added: “IP chief at ThyssenKrupp Stephan Wolke spoke to IAM about the importance of IP strategy and how the IP landscape is likely to develop over the coming years. Discover more here ahead of his session at IPBC Europe…”
“No concern for actual quality anymore; it’s all about numbers (e.g. of patents and lawsuits).”So they’ll just carry on promoting software patents; they’ll just abstain from the term itself. These terms are mostly helpful for legal (or litigious) reasons; these new terms also complicate prior art search. What we’re left with is more litigation. See the USPTO Patent Examination Research Dataset and the USPTO Patent Prosecution Research Data. No concern for actual quality anymore; it’s all about numbers (e.g. of patents and lawsuits). This is not what patents came to exist for.
Things have gotten so bad that Microsoft lobbying has just made it into IP Watch. Incredible. It’s a form of lobbying for software patents (under the guise of “AI”), just like at Watchtroll 3 days ago. Jones Day’s Andrea Weiss Jeffries, Emily J. Tait and Jason M. Garr also wrote about “Protecting Artificial Intelligence IP”. Never mind if “Artificial Intelligence” is a branch of algorithms, i.e. software patents in this context.
“Like we said a decade ago, one way to put an end to patent trolling is to target the weapon they most typically use: software patents”This is worrying as nearly nobody in the mainstream/corporate media even bothers pointing that out. The media is still dominated by patent law firm (as far as articles about patents are concerned). They even repost their articles across several domains to dominate and increase visibility. Their conclusion: “AI today is less about imagined scenarios in the far-distant future and more about real-world applications happening right now or on the horizon. Organizations having a robust and well-thought-out AI protection strategy in place will be best positioned to enforce their IP rights when infringement and misappropriation occur and, better yet, to prevent unlawful conduct before it occurs. Trade secrets and copyright provide unique protection for IP that cannot be achieved by patents alone.”
Well, patents on software (e.g. “AI”) aren’t even valid under Section 101.
We expect to see many more of these buzzwords in the coming months or years; it’s a relatively new trend in the patent world. We’ve just mentioned (in the previous article) how blockchains are used too, along with other novel-sounding terms. How about this new article from the National Law Review? Greedy patent lawyers from the firm Foley & Lardner LLP (salivating over the prospects of lawsuits) describe particular trolls as “Patent Assertion Entities” (PAEs) and speak of LOT:
As a middle ground, most of the automakers have joined the LOT Network, which directs its members to develop license agreements that prevent assertion of the licensed patents by Patent Assertion Entities against any other LOT members. Similarly, a large complement of automakers and suppliers have also joined Unified Patents, which provides a mutual defense by challenging the validity of patents asserted against its members. Whereas a non-practicing entity may traditionally seek small quick settlements from many companies, when the targets all group together in one of these membership organizations, the leverage shifts as all of the companies share the same burden that each use to handle individually. These organizations have shown a strong propensity to align their members and reduce litigation. However, it remains to be seen if the good will developed from sharing in the attacks from non-practicing entities will hold up when a major patent challenge arises between two members of these organizations.
Unified Patents, RPX and so on profit more when many patent trolls (or PAEs) become active. That’s just their business model. Citing some numbers from RPX, United for Patent Reform wrote in the past week: “According to RPX Corp., of the 46 patent suits filed Monday, 27 were filed by patent trolls. That’s 59%.”
On another (later) day it wrote: “According to RPX Corp., of the 22 patent suits filed yesterday, 18 were filed by patent trolls. That’s 82%.”
A lot of these involved software patents, probably the large majority of these. Like we said a decade ago, one way to put an end to patent trolling is to target the weapon they most typically use: software patents (doesn’t matter if these are framed as “AI” or whatever). There’s a logistical reason which explains why trolls are attracted to such patents. █
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Posted in America, Patents at 9:28 am by Dr. Roy Schestowitz
Background reading:
- Blockchain and Bitcoin Patents Help Demonstrate How Software Patents Get Used by Giants to Crush Emerging Technologies (‘Threats’)
- Blockchain Domain Infested With Software Patents, MasterCard Among the Culprits
- Financial Giants Will Attempt to Dominate or Control Bitcoin, Blockchain and Other Disruptive Free Software Using Software Patents
Summary: Blockchain software, which is growing in importance and has become ubiquitous in various domains other than finance, is perceived as an opportunity for disruption and also patent litigation; CNBC continues to publish puff pieces for Erich Spangenberg (amid stockpiling of such patents)
THE gold rush for software patents has recently morphed. Opportunists have been attempting all sorts of buzzwords to characterise the algorithms; sometimes they’re disguised as “AI” (more on that in our next post) and sometimes they’re disguised as something more concrete such as “Blockchain”.
Over the past week the patents-centric sites wrote a lot about blockchains — a concept which we doubt the authors even understand (they rarely have scientific background). In the words of a new headline from IP Watch, “Blockchain-Related Patents On Exponential Rise, Lawyer Says.”
“Those are all software patents, with the exception of rare cases like hardware optimised for encryption and/or mining.”Does the lawyer know what blockchains actually are? How about Watchtroll, which yesterday wrote that “Cisco’s IoT Blockchain Merely Scratches the Surface of Distributed Ledger Technologies” (another buzzword in there, “IoT”).
2 days ago another patent maximalists’ Web site went with the headline “Blockchain Patent Filings Dominated by Financial Services Industry” (we already wrote, several years ago as a matter of fact, about how big banks and other financial institutions try to guard their monopoly/oligopoly from new technology, using these patents). To quote from the article:
With the recent surge in cryptocurrencies, as well as companies in the blockchain ecosystem, Envision IP analyzed the US patent landscape of the industry. We reviewed patenting activity for all aspects of the blockchain industry – digital currency standards, digital currency exchanges, blockchain algorithms and infrastructure, blockchain front- and back-end applications, and blockchain-related enterprise technology.
Those are all software patents, with the exception of rare cases like hardware optimised for encryption and/or mining.
“So even a patent troll says that Spangenberg is “becoming the Jim Malackowski of IP” and does not deserve the press coverage he has been getting.”What’s probably worrying right now is that there’s a patent troll who sends me hate mail trying to engulf the market, probably in his aggressive old ways (which he conveniently denies in spite of all the evidence). His efforts are now promoted by lovers of patent trolls from IAM and in turn by Alexander Esslinger, who is linking to the troll (Erich Spangenberg) as well as to various UPC boosters (like “IP Litigator at Bristows” Annsley Merelle Ward). These are people who are suing, not defending or passing knowledge. They’re aggressors.
And speaking of aggressors, watch Tom Hochstatter (Dominion Harbor) promoting this new puff piece of Spangenberg (the second in a row from the same network). Hochstatter, who himself works for a patent troll, complains that other patent trolls are dead (or dying). Here is what he said: “Can I be honest here…what has Erich really done in the last 7-10 yrs? IPNav is DEAD. Kyle Bass deal DEAD. IPwe? AYFKM Seriously, why’s he getting the press. He’s becoming the Jim Malackowski of IP. Please, for ’18, let’s find a young up-&-comer to pin the Pied Piper label on.”
So even a patent troll says that Spangenberg is “becoming the Jim Malackowski of IP” and does not deserve the press coverage he has been getting. What did the press say? It’s just copy-pasting whatever Spangenberg wants to say and whitewashing his track record of trolling.
“…these patents are likely invalid under Section 101 and are only useful as long as he avoids the courtroom, i.e. by going after cash-strapped firms behind the scenes (or sending them nasty letters).”“By his own account,” it says, “he didn’t make his IP fortune by not being aggressive. But Spangenberg describes his latest, and what he thinks will be the biggest and longest-lasting investing idea he has ever had, as something he stumbled into as a result of a friend convincing him to buy bitcoin.”
So rather than waste on crap (like dozens of luxury cars) over $100,000,000 he took from companies that actually make stuff (by threatening them) he now buys digital currencies. And on it goes: “When I first came across IPwe and Spangenberg’s own initial, broad brushstroke blog post about the “misfit trolls, geeks and wonks” getting into the blockchain, I assumed he was amassing patents in the space to repeat his software strategy — and so did some patent experts whom I consulted. I was wrong. While firms that have a history of monetizing patents they didn’t create are in fact major players in cryptocurrencies and the blockchain — Intellectual Ventures, which has had its fair share of critics over the years, is among the top five holders of bitcoin patents, according to Patexia research — Spangenberg views IPwe’s own patents in this space as a secondary aim.”
In his E-mail to me Spangenberg insinuated that I was wrong to assume he would use patents against players in the space, but that remains to be seen. Either way, watch this space as many of these patents are likely invalid under Section 101 and are only useful as long as he avoids the courtroom, i.e. by going after cash-strapped firms behind the scenes (or sending them nasty letters). He has done that before, so why not again? █
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