02.28.19
Posted in Europe, Patents at 11:56 pm by Dr. Roy Schestowitz
Summary: Another upcoming opportunity for the EPO’s Boards of Appeal to say “no” to software patents; sadly, however, the judges lack the independence they need
THE U.S. Patent and Trademark Office (USPTO) is still coming to grips with courts’ consistent rejection of software patents. We’re still seeing new reports of yet more US patents (granted by the USPTO) that the Federal Circuit rejects based on 35 U.S.C. § 101. So does the Patent Trial and Appeal Board (PTAB), where inter partes reviews (IPRs) are growing in number. Anticipat has been trying to spin it all by selective (cherry-picked) statistics, but the trend is rather clear and we shall say more about it in our next post.
Yesterday afternoon Scott King and Matthew Hoyles at Kluwer Patent Blog wrote to say that “Computer implemented simulations referred to the Enlarged Board of Appeal” (the term “computer implemented” means algorithms).
Today, in the decision T 0489/14 the EPO’s Boards of Appeal published their referral of three questions relating to computer implemented simulations to the Enlarged Board of Appeal. Referrals to the EPO’s Enlarged Board of Appeal do not come around often, referrals in the area of computer technology even less so.
The purpose of referrals to the Enlarged Board of Appeal is to prevent divergence and/or provide clarity on the implementation of the law.
The Enlarged Board of Appeal of the European Patent Organisation (EPO) has another chance to thwart European software patents, but it’s tightly controlled by Team Battistelli/Campinos, so don’t expect that to happen.
“It shouldn’t be assumed that “Remain” means UPC is suddenly alright; quite the contrary at this stage as that merely raises yet more questions and causes a lot more delays (for years to come).”Yesterday the ‘geniuses’ at the PR department were still promoting software patents while calling these “CII” because they’re banned. “The next study visit taking place in The Hague will focus on peculiarities of CII-related patent applications and the challenges they pose in search and examination,” they wrote. Hours apart (earlier on and for the second time in one day) the EPO pretended to itself that it can grant such patents just by framing/describing these as “CII” (because they’re banned/verboten without such buzzwords). The EPO wrote: “Which computer-implemented inventions in #medtech can be protected by patents and how?”
They’re using “medical” and “SMEs” to distract from the fact that these are algorithms.
Proponents of software patents try to bypass the courts or create new ones that are questionable because of the way they operate. The UPC’s chances got even slimmer/prospects worse, as we explained a day ago; there’s growing uncertainty about what will happen (if anything at all) to Brexit. Nevertheless, Aurélia Marie (Cabinet Beau de Loménie) and Phil Burns (Wrays) continue to pretend that the UK already left the EU. Never mind if there’s no Brexit, at least not yet (if ever). Lexology published this: “The UK can decide to halt the process without consent from the other 27 EU States and stay in the EU at any time up to Brexit Day.”
It shouldn’t be assumed that “Remain” means UPC is suddenly alright; quite the contrary at this stage as that merely raises yet more questions and causes a lot more delays (for years to come). The UPC’s collapse means that the Enlarged Board of Appeal is here to stay; its decision on T 0489/14 will matter. █
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Posted in America, Courtroom, Law, Patents at 6:59 am by Dr. Roy Schestowitz
The future looks bright for software development in the US because software patents have perished
Summary: A roundup of American patent affairs; in short, nothing is really changing on the patent (scope) front and that’s a positive thing
THINGS are in general going well outside the chaotic EPO where António Campinos openly promotes software patents in Europe. Things improve in the sense that much of the world — including the US, Australia and Canada — are leaving software patents behind. They recognise that only lawyers and trolls want such patents; software developers strongly reject if not abhor such patents.
Deplorable patent lawyers from north America will never rest. They will never give up. Bereskin & Parr LLP’s Cameron Gale, for instance, has just willfully given bad advice to businesses in spite of knowing software patents are worthless; these people even blast the law itself (or the policy of the Canadian Intellectual Property Office (CIPO)). Pure greed. But we have gotten accustomed to that. As it turns out, based on LWN’s article “Patent exhaustion and open source” (it was freed from the paywall on Thursday morning, or about 10 hours ago), lawyers have even entered Free/Open Source software events. This one is about Lindberg and it mentions Alice:
A patent is a limited legal monopoly granted to protect an invention, giving the holder the right to exclude others from using, making, selling, and importing the invention (including things that embody the invention) for a fixed period of time. Much has been said and written over the years about the extension of patents to cover ideas that are expressed in software, but software patents are definitely with us at the moment.
There are, however, a number of limitations on the rights that a patent grants. One of these is patent exhaustion, which protects the ability of those lawfully in possession of goods embodying patents to use, sell, or import those goods without interference from the patent holder. Exhaustion prevents the patent holder from profiting more than once from the sale of any particular item; in Lindberg’s words, as soon as the patent holder puts something “into the stream of commerce”, the patent rights are exhausted. If Alice holds a patent for an invention embodied in a widget, and she sells a widget to Bob, then Bob is protected against accusations of patent infringement because he acquired the widget from the patent holder. If Bob sells his widget to Carol, she is similarly protected; not because she has licensed the patent from Alice, but because Alice’s patent interest in that widget was exhausted by that first sale to Bob.
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We in the free software world have repositories, distributions, and mirrors; copies of source code are hosted by companies willy-nilly. Suppose that some company had mirrored a copy of a Linux distribution, with its thousands of constituent programs, each of which might embody one or more patents. Then that same company, because it is an authorized licensee for such of those patents as the company itself either held or had a right to use (by virtue of being in one or more patent pools or cross-licensing arrangements), would have exhausted those patent rights with respect to that software. Lindberg did add a caveat, however: courts frequently try to avoid surprising outcomes, therefore a court might follow the argument but decide not to allow it anyway.
At this point, Lindberg reminded attendees that Microsoft bought GitHub. After a short pause, the entire room, with a large proportion of lawyers in the audience, giggled, a sound that can only be described as chilling, then applauded. He then went further and proposed an N-way merge across copies of code bases sanitized by different distributors with respect to their different patent portfolios, to create code bases that are exhausted with respect to all patents that all those various distributors are authorized to use.
That Microsoft part is neither funny nor worthy of the applause. It is a real problem because Microsoft has weaponised patent trolls in order to sell Azure surveillance and entrapment. Maybe one day it will use the same tactics to push all code — private code too — into GitHub (for a fee).
While it seems unlikely that Alice is going away (any time soon), it’s worth keeping vigilant. The CCIA‘s Joshua Landau wrote on Twitter [1, 2] about Iancu’s attitude towards patent trolls and Alice: “This quote is a problem. American *patents* don’t treat anyone; progress does. Might need patents to make that progress, but as @PatentScholar, @colleen_chien, etc., argue, we don’t know for sure. Iancu could pursue the policy experiments to prove it. Not his priority. [...] The quote is symbolic of the misconception held by far too many – apparently including the @uspto director – that patents have inherent value, as opposed to being an instrument to drive progress and only being valuable insofar as they do so.”
“It is a real problem because Microsoft has weaponised patent trolls in order to sell Azure surveillance and entrapment.”Iancu is disgracing the U.S. Patent and Trademark Office (USPTO) by deliberately ignoring caselaw and granting patents he knows to be fake (like the President who gave him this job after his private firm had worked for him). Iancu is a symptom of the political meltdown and corruption under Trump. Decline in US patent quality has had the expected effect on litigation and application. Both are down, the former very sharply. It’s good news to everybody but lawyers (remember where Iancu came from).
Seeing that there’s no recourse, the lawyers have reverted to more action in Congress. Clueless Coons continues with his zombie legislation (two years in the making already [1, 2], still going nowhere in this fight against 35 U.S.C. § 101). It’s a bill that will never pass because technology companies have more power than the litigation industry. Here is what the litigation industry’s section of Bloomberg wrote some days ago:
House and Senate lawmakers are ramping up efforts to rewrite the definition of patent eligibility, in a bid to create greater legal certainty around patents held by pharmaceutical, life sciences and technology companies.
Lawmakers are quietly meeting with company and trade group representatives to ask for suggestions on how to rewrite Section 101 of federal patent law, which defines what inventions may be patented. The U.S. Supreme Court has issued a series of decisions on patent eligibility that practitioners say have left the law poorly defined. Companies are uncertain about what inventions are patentable, and which granted patents can survive challenges.
“There have been a few Supreme Court rulings that have affected the ability of the patent office to know with certainty what is patentable, particularly in the realm of medical diagnostics and computer software, and these are areas of great growth,” Rep. Hank Johnson (D-Ga.), the new chairman of the House Judiciary’s intellectual property subcommittee, told Bloomberg Law.
This “Bloomberg Law” thing is just a litigation lobby in “news” clothing; we wrote about it before. We’re not surprised that they try to give rather than clip wings of this zombie legislation, which can be safely ignored for now (there are more such bills and they too have vanished).
“The person in question is an Internet troll, not just a patent troll.”It is also not surpising that patent maximalists like Dennis Crouch have not gotten tired of trying to push Section 101 questions into SCOTUS. Seeing that all these abstract patents are finished (good for nothing but putting in a frame and hanging on the wall like a trophy), they urge patent maximalists to give persuasive input and compel Justices to reevaluate the
Federal Circuit‘s stance.
It truly bothers these patent maximalists that not only courts throw out software patents (we have just seen several new outcomes to that effect and added these to our daily links because we no longer cover American patent cases); Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) have the same effect at a much broader scale (thousands of patents). Get used to it.
Speaking of SCOTUS, mind last night’s article about an upcoming case. Authored by Mike Masnick, it deals with two topics that TechDirt likes to cover: patents and attacks on free speech. “Calling a company a patent troll is not defamatory,” Masnick asserted. Here’s the introduction:
Over the years, there have been a few attempts — usually by companies that most of us would call patent trolls — to argue that calling a company a patent troll is defamatory. These arguments rarely get very far, because they completely misunderstand how defamation works. However, a company with some questionable patents around bank ATMs, called ATL, tried a few years back to sue a bunch of its critics over the “patent troll” name. Thankfully, the local court in New Hampshire correctly noted that calling someone a patent troll is protected speech under the First Amendment and is not defamatory.
The person in question is an Internet troll, not just a patent troll. He has been trolling me in Twitter even though I ignored him. A long time ago I came to consider that person to be borderline insane or a stalker and I was rather shocked to learn that the Supreme Court will give him even a minute of its time. Who next in SCOTUS? David Ike? █
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Posted in Europe, Patents at 5:11 am by Dr. Roy Schestowitz
Unitary collapse; even the “Law Society” knows it by now; eDossier officially dies tomorrow
Summary: The Law Society one among many who have virtually given up on the Unitary Patent, knowing that Unified Patent Court Agreement (UPCA) ratification is unlikely and Britain’s limbo prevents any further progress anyway; it means that national patent courts will continue rejecting a lot of European Patents, whose quality has declined considerably
TECHRIGHTS has never been about (pure) politics but rather about more technical things, including patents. Hence the focus on the EPO and USPTO along with legal cases. We’re not planning to write about pro- and anti-Brexit (there are lots of blogs out there which already cover it), but considering what happened over the past few days if not weeks it looks even more likely that UPC will never become a reality. The silence from Team UPC further reinforces this. They would be shouting from rooftops otherwise (but they don’t). Battistelli’s plan for the Office and for Europe goes down in flames.
“The silence from Team UPC further reinforces this.”Yesterday at IP Kat the Litigation ‘Society’ (“Law Society”) had its position outlined (“Law Society’s guidance on IP and No-Deal Brexit”); it’s just lobbying for more litigation and legal bills, as one might expect from a front group of law firms. But surprisingly enough UPC is not even mentioned. Their publications kept lobbying for the UPC under the guise of “news” (in the “Law Gazette”, which is really just “The Law Society Gazette”). Have they given up like IAM did? It is quite noteworthy that the EPO never mentions the UPC anymore (António Campinos has not uttered these words in many months), IAM isn’t covering the subject, JUVE covers it only on rare occasions (maybe once a month, echoing Team UPC) and the Law Society — unlike Team UPC — isn’t even listing it anymore.
Meanwhile at IAM, which has sunk in its ratings, there’s this self-promotional piece from Carpmaels & Ransford LLP (hence no paywall) that speaks of double patenting (we covered it some days ago). To quote:
For the first time, questions have been referred to the Enlarged Board of Appeal specifically addressing the EPO’s approach to double patenting. They concern the circumstances, if any, in which there might be a legitimate interest in the same applicant being granted multiple patents for the same subject matter.
It is possible that the Enlarged Board’s answers will have a significant impact on filing strategies that are frequently employed at the EPO. For example, the answers could be relevant to strategies that involve filing divisional applications to protect against commercial or legal uncertainties. Another common strategy that might be affected is the use of parent and divisional applications to prosecute subject matter at an accelerated pace (eg, narrow claims of the highest commercial value), while prosecuting other subject matter at a slower pace (eg, claims of broader scope).
The questions come from the Technical Board of Appeal 3.3.01, which handles pharmaceutical matters, and concern an application filed by Nestec SA. The application (09159932.4) was refused by the Examining Division following an assessment that Claim 1 was “100% identical” to the subject matter claimed in the patent from which 09159932.4 claimed priority. The Examining Division therefore argued that the grant of 09159932.4 would be contrary to the prohibition on double patenting referred to in the obiter dicta of Enlarged Board decisions G1/05 and G1/06. Nestec SA appealed the Examining Division’s refusal.
Well, double patenting is a hallmark of patent maximalism, which goes together with the decline of patent quality in general. Courts across Europe will, over time, reveal just how severe the problem has become.
“Battistelli’s plan for the Office and for Europe goes down in flames.”Mondaq has in fact just reposted some other IAM nonsense from Selin Sinem Erciyas (Gün + Partners) in which she inadvertently highlighted yet more evidence of the collapse of patent quality at the EPO and the serious, potentially fatal, consequences (access to medicines). This one is about generics:
A Turkish generic company filed an invalidation action against a leading US pharmaceutical originator company in Turkey and requested the invalidation of its patent – a Turkish validation of a European patent granted by the EPO. The opposition proceedings were still pending before the EPO at the filing date of the invalidation action in Turkey. The patent owner subsequently requested a delay of the national proceedings, stating that the patent claims could still be amended during the opposition and appeal proceedings before the EPO. Further, if the EPO proceedings were still outstanding, there could be inconsistency between the claims of the European patent and the claims of the Turkish validation. In addition, per Article 138/3, in proceedings relating to the validity of the European patent the patent owner has the right to limit the patent by amending its claims.
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Although there is no clear national provision in Turkey, envisaging the delay of invalidation proceedings until a final decision from the EPO, the new judge felicitously considered the options granted to a patent owner by Article 138/3 of the European Patent Convention and the possible unnecessary litigation costs and time that might arise from several expert examinations. The decision is a good example of the interpretation of indirect effects of the rights conferred to the patent owner by Article 138/3.
Turkey’s standards for patents probably aren’t so high; so it would be noteworthy when courts in Turkey too cite the EPC and reject European Patents. Also mind Moroğlu Arseven’s Gökçe Izgi and Yonca Çelebi with their new post titled “Patents in Turkey” (these include European Patents). Considering Battistelli’s love affair with China, one begins to wonder just how low patent quality has gone. The EPO recently decided to privately admit patent quality had gone awry (after a quarter billion euros were wasted). Speaking of coffins, Stephen Rowan and Nellie Simon said “eDossier Stock Management will stop on Friday 1 March 2019 at 16:00.” That’s tomorrow. eDossier and UPC can share a coffin. █
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