09.03.16
Posted in Europe, Marketing, Patents at 12:29 pm by Dr. Roy Schestowitz
Recruitment drive with Kool-Aid. Academics would rarely be found who are ignorant enough to remain unaware of EPO abuses and choose to apply for work there (attracting talent is crucial for attracting applicants willing to pay high fees)
Summary: A lot of EPO staff is fleeing (faster than the EPO is able to recruit) and the EPO’s marketing tactics have reached the bottom of the barrel
THE European Patent Office (EPO) is a lot worse than the USPTO in terms of its reputation right now. It’s largely the fault of Battistelli, who basically implemented a fast suicide plan for the Office. He brought his friends to management, he attacked the staff union, he lied to the press, he attacked the boards, and he even ruined patent quality while lying about it (citing a source which was paid by a PR firm he had wasted over a million Euros on). Even by a Republican politician’s standard/yardstick Battistelli has been a miserable failure and a cautionary tale for the Council. Why was a politician (let alone a Republican one) put in charge of a scientific institution in the first place?
The EPO was once a powerful, reputable Office with top-class staff. It was widely respected. It now looks feeble and this damages Europe as a whole. Dead EPO forums (with more threads than replies in this case [Caution: epo.org link]) are a symptom of this decline. The EPO's PR team just keeps promoting this in Twitter because almost nobody is participating and spurious, expensive events are being set up, even in the United States, where the EPO had IAM set up a pro-UPC event earlier this year. They are producing glossy brochures in America (Canada also — not just the US — as we shall show another day or later today) and the Office is going to Uncle Sam to talk about software patents (not really legal in Europe and increasingly phased out even in the US). Here is the EPO unleashing a new PDF [Caution: epo.org link] with some bland foreword by the sociopath, Battistelli. This event will start just over a week from now. The PR people are still asking all people to participate in Battistelli's self-serving lobbying event using irrelevant (maybe in error) introductions (the EPO lost track of the years, thinking next year is 2016 again). More curiously, however, they’re just 'spamming' universities at a very high pace right now (here are examples from the past few days [1, 2, 3, 4, 5, 6, 7, 8, 9]), hoping that these universities will mention the EPO or try to associate themselves with the EPO. There is no sense of shame anymore, is there? These universities, however, as we here showed before, rarely play along. They might have realised that Battistelli is a bad connection/affiliation/neighbourhood.
Right now, undeniably, the EPO has very severe recruitment issues (we saw the numbers and will cover them some day), but it shamelessly lies to staff about it. It’s almost begging for job applications and it lowered the requirement considerably (doing more harm than good in the face of staff exodus). █
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09.02.16
Posted in Europe, Patents at 3:09 am by Dr. Roy Schestowitz
“When asked by Ars, the EPO’s spokesperson mentioned the imminent arrival of the unitary patent system as an important reason for revising the EPO’s internal rules…”
–Dr. Glyn Moody
Expect a possibly new (or reused) name for the same bad scheme that favours trolls and large corporations
The EPO is being run like a cliquish family business these days… and it shows [1, 2, 3, 4]
Summary: The European Patent Office (EPO) may never see the UPC becoming a reality (almost definitely not under Battistelli) and staff of the EPO should antagonise any attempt to replicate and make it a reality
THE UNITARY patent, or UPC (Unified Patent Court)*, threatens the EPO‘s staff, especially or in particular parts of the Organisation which are currently foreseen/expected to be made redundant by unitary courts, with rumours suggesting that their jobs would go somewhere like Paris (Battistelli’s gift to France perhaps).
Not much is known about the UPC right now because Brexit undermined it so badly that it may never happen at all (in no shape or form). SUEPO noticed that this German programme covered the subject, presumably “(from 14’35’’ onwards, Das Erste, 17 August 2016): on the Unitary Patent.”
“German State TV “Das Erste” Plusminus,” told me one person (who informed many others as well), has a “very critical report about UPC-from 14’35’’ onwards, Das Erste, 17 August 2016″ (a translation of it would be very much appreciated as we already have a translation of a similar TV report from Italy).
Suffice to say, there are voices in the media that do try to advance the UPC. The boosters of the UPC (like Team UPC) act as though everything is alright (it’s not!) and MIP has just published another Unitary Patent and UPC “progress report”, even though there has been no concrete progress. To quote the summary: “UK IPO speaks out on UK’s involvement in the UPC and Unitary Patent system; UK patent attorney body CIPA prefers UK in the system; experts to discuss the latest on the UPC and post-Brexit patent strategies at MIP European Patent Forums in September.”
That’s all talk and lobbying, no action. Meanwhile, as one new comment put it:
Instead of running after something which has gone, it would be wiser to put energy in saving what is left from the UP/UPC once UK has gone, but then to look at the matter with fresh eyes. The matter should be simplified and the influence of common law should be thrown overboard. After all, UK has left and the continent is not an area relying on common law.
Going back to MIP, there’s this new bit of coverage from Shanghai which says: “Post-coffee break, Gordon Harris, a partner of Gowling WLG, shared his observation on the impact of Brexit on IP rights. He stressed that EU registered IP rights remain protected in UK for the time being, and there will be no change to European patents.”
As usual, it’s patent (or IP) lawyers that dominate all those debates and it’s hardly surprising that they want more litigation and more problems. They profit from it. The more, the merrier.
EPO patents are already suffering a steep decline in quality (we covered this many times before); imagine the effect of combining that with some EU-wide courts, which would effectively empower all sorts of parasitic elements like patent trolls. Regarding the “Unitary patent and related developments,” said a not-so-recent (pre-Brexit) oral report from EPO staff, “Ten Contracting States have ratified the treaty so far, most recently Bulgaria. The ratification in the Netherlands is currently pending. The consequences of the Brexit votum are unforeseeable. The Italian delegation as well as the observers from Business Europe and epi called for “business as usual” and encouraged further engagement of the EU states to conclude the Unitary Patent. SR [Staff Representation/Representatives] confirmed that staff would in principle be ready and willing to make the Unitary Patent a success, i.e. a legal title with high legal certainty. But the SR also reminded the Council that solid search and thorough examination requires time. Political guidelines are to be given by a conference of ministers of the Contracting States according to Article 4a EPC. The SR repeated again that this conference is long overdue.”
Generally speaking, the EPO under Battistelli arrogantly disregards the EPC in all sorts of way. Not only that in fact; Battistelli also ignores national and sometimes international laws. These people want us to believe that there is some “greater good” in all this and all the abuses are somehow to be justified in the long term because of “reforms” like the UPC.
Now that it looks increasingly unlikely that the UPC will ever become a reality, where does that leave Battistelli? Why did the SR (as above) play along with only very cautious criticism? Are they already this afraid of the lunatic in chief and his goons? Has it become unacceptable to merely question the merits of the UPC? There are no merits.
The UPC is on the retreat these days; as we noted last month, it’s hardly even mentioned these days (internally and externally). Our guess is, the whole bundle of legislative laundering will be changed to overcome Brexit and maybe renamed yet again. Will staff be prepared to antagonise it? Already, boards of appeal (patent quality assurance) have essentially been ejected from the EPO’s building (exodus or diaspora imminent, probably as early as next year), so time is running out for those wishing to save the EPO rather than letting it become another USPTO (with virtually no quality control, lots of patents trolls, and leanings towards large corporations that effectively run it**). It now attempts to garner support by asking for feedback, at a time when press releases are issued aplenty to celebrate newly-granted software patents [1, 2].
Judging by some of the latest comments in IP Kat, people generally understand that the boards’ move to Haar has nothing to do with independence. To quote one such comment:
In spite of all the nice words, the message of Mr Battistelli to his staff drafting the proposal and arranging the move to Haar (and to the Administrative Council) was clear: here is what I want to do to the Boards of Appeal; now you arrange for it to happen somehow, and if necessary find an explanation why it is legal.
By the way, as an (unintended?) side-effect, the president is for the moment de facto himself in control of the Boards of Appeal; see http://amba-epo.org/; so far for independence…
Here is a comment about the legal opinion just formally unleashed by SUEPO:
The London-based lawyers, Bretton Woods Law, has produced a legal opinion concerning the actions of the President of the EPO, and the responsibility of the Administrative Council as well as the Member States of the EPO with respect to staff:
LEGAL OPINION – CONSIDERING THE ACTIONS OF THE PRESIDENT, THE ADMINISTRATIVE COUNCIL AND
MEMBER STATES OF THE EUROPEAN PATENT OFFICE
BREACHES OF BASIC AND FUNDAMENTAL RIGHTS AT THE EPO
I quote:
“It is not hard to see that many of the circumstances that have arisen at the EPO
amount to violations of the rights contained in the ECHR. To list but a few: fair
trial provisions are fundamentally absent at the EPO, since the President sits as a judge in his own cause; there is a lack of equality of arms, delays, an absence of due process and a tribunal that is itself beholden for its funding to the very institutions it is being invited to find against. The provisions in respect of sick leave (and the effective ‘house arrest’ of staff members) appear to contravene the right to a private and family life. The arbitrary treatment and abuses of the system in respect of staff representatives appear to be an attack on all of the rights listed above.”
It is probably worth the paper it is written on for President Battistelli and his Administrative Council.
Still, I am looking forward to the decision of the High Court in the Netherlands about the EPO breaching fundamental human rights …
Here’s more on that:
Me too.
Alas, the “Hoge Raad” seems to have pushed their decision date a bit further down the road… 
From their site:
“15/02186 Europese Octrooi Organisatie en de Staat / Vakbondsunie Europees Octrooibureau (VEOB) en Staff Union European Patent Office (SUEPO)
Is de Nederlandse rechter bevoegd in deze zaak? En zo ja, moet deze vakbond door het octrooibureau worden toegelaten?
Conclusie 30 september 2016.”
Case number is there, and expected decision date.
A month to go, which puts it just beyond the next Board28 (22 September) and before the next AC meeting (12/13. 10.2016)
In December, we might see more party than decisions, as it’ll be meeting 150 of the AC. And that’s the AC which should discuss the results of the meeting regarding the social conference.
Well timed…
As the following comments note, Battistelli, who postponed any discussions about the social situation at the EPO until October, has produced propaganda to be used, for a payment, to lie to the Council (again):
And the Social Conference is arranged for 11th October – the day before the AC. Staff – but only the registered Union – can apply to participate but, with the ‘conference’ due to start and end less than 24 hours before the AC begins, it would be hard not to be cynical as to whether the conclusions may already have been decided or not.
The significance of the timing isn’t being overlooked:
What is the stated purpose of the “Social Conference”? If it is any way connected with the decision-making of the AC, then you would appear to have every reason to be cynical.
Also, do we know the proposed agenda for the next AC meeting? I would be very interested to learn what (if anything) the AC intends to do about the President’s interventions in case Art. 23 1/16, as well as whether they intend to make redress to the individual who was the subject of that case.
Remember the time Battistelli used his silly lobbying event and IAM propaganda to pretend (to the Council) that on the technical front everything was great? Again, well timed. The EPO is basically being run by villainous liars and since it’s like a family business there’s enough loyalty at the top to prevent dissent. █
_____
* The name of the UPC just keeps getting changed, making criticism of it harder to maintain and easier to dodge.
** USPTO Directors typically come from mega-corporations, a de facto policy which inevitably introduces a conflict of interests (one of them, David Kappos, became a lobbyist thereafter, serving his former employer and intervening in USPTO policies). The latest such Director is at least a female (Lee) — something which Brimelow might have something to say about after she got muscled out by “alpha-males”. From the figures that are publicly accessible, say some EPO insiders, “we can deduce that female staff are not fairly and equally treated since in particular very few senior managers are female. This is an inadequate situation for an international organisation in the 21st century.” The few females at the top are not only French but in some cases connected (friendliness and kinship) to Battistelli himself. One must be careful of appointment of women where these appointments are made by man who virtually control and use them for “femmewashing”. Not too shockingly, the Wall Street-funded political campaign of Clinton is supported by patent maximalists (mostly males), white male executives, and extremely chauvinistic regimes from Gulf states. The patent maximalists reportedly support Clinton because her patent policy, as we noted here before, echoes their wishlist and desires.
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09.01.16
Posted in America, Courtroom, Patents at 4:18 pm by Dr. Roy Schestowitz
And it doesn’t take the truth too well…
Summary: Discussion about the closure of patent law firms and the inability to defend software patents, which were granted in error for many years and are finally facing proper scrutiny
THE patent landscape surely came under long-overdue judgment and certainly it is changing. It’s changing quite rapidly. It is not changing in favour of patent law firms, that’s for sure; it’s actually the other way around as these firm are trying to adapt to these recent changes and learn new tricks — if any exist at all (here is Alexander P. Ott from McDermott Will & Emery trying new tricks to patent software in spite of the rules this week) — in order to pretend that everything is the same as before and ultimately convince examiners/judges likewise. As we have shown in recent months, this rarely works anymore and they have very little control over what PTAB does (appeals by the patent holder/s are rare and usually ineffective). The figures and the facts are out there, but patent lawyers actively suppress them and even attack the messengers. For few instances of this, see the example above (Breyer) and recall more recent insults. It makes patent law firms look rather mean-spirited and vindicative. They’re like a pack of hyenas now.
“The figures and the facts are out there, but patent lawyers actively suppress them and even attack the messengers.”As one might expect, uncertainty over a large proportion of patents (existing and prospective/pending) reduces confidence among patentors. They might as well not bother attempting to patent (or renew patents on) abstract things like “something on a device” or “something over the Internet” (notorious but ubiquitous types of patents). There’s plenty of prior art therein and usually no inventive step, just the ‘dressing up’ of an old idea. Judges can see that. Judge Jacob would have said “technical” = restatement of the same problem,” Benjamin Henrion wrote, suggesting that they should formally “abolish swpats and the biggest negative points disappear. Otherwise face abolitionists. Will find Pilch’s quote” (see Henrion’s tweet to that effect; Pilch is the FFII’s founder).
We sometimes hear about patent law firms struggling, but rarely do we hear about large ones (with nearly 100 staff) taking the beating. Let’s face it; reduced demand for patents would inevitably shrink the market (or meta-industry which is patent bureaucracy). Deflation is to be expected now (or soon), as growing realisation of the status quo spreads further than just to lawyers, who still try to keep their clients in the dark (longing for pre-Alice days and selectively covering new developments so as to maintain an illusion).
“They might as well not bother attempting to patent (or renew patents on) abstract things like “something on a device” or “something over the Internet” (notorious but ubiquitous types of patents).”Another patent law firm has just imploded and there was plenty of press coverage about it early in the week, e.g. [1, 2, 3, 4, 5, 6, 7, 8, 9]. The patent bubble seems to be bursting with Alice and Mayo, so this patent law firm — like others before it — is virtually being taken over by another firm from Texas (the capital of trolls where there is still affinity for software patents). Here is the ‘damage control’ or the face-saving PR about this now-defunct patent law firm. They try to make the staff transfer look like good news. “Lipstick on a pig” comes to mind here.
One patent lawyers’ site meanwhile bemoans the departure from an era of software patents (it’s a rare exception for them to be upheld by courts or boards post-Alice).
The detailed breakdown of the post-Alice situation for software patents is preceded by the following text:
It has now been a two years since the Supreme Court rendered its now infamous Alice v. CLS Bank decision. It is safe to say that the Alice decision has had a profound impact on software patent enforcement, both at the Federal Circuit and in the Federal district courts.
Here is a summary of Federal Circuit Section 101 software eligibility decisions. As you will see, very few software patents have been upheld by the Federal Circuit in the last few years.
Breakdown of Federal Circuit 101 Cases, Post-Bilski, by Inventive Subject Matter
Here come the patent maximalists to berate PTAB, quoting something new from CAFC. “The Federal Circuit has remanded the Veritas v Veeam Software case back to the Patent Trial and Appeal Board, finding its reason for denying a motion to amend “unreasonable”,” Michael Loney writes in MIP. This is probably seen by them as an opportunity to overturn, but still, that would not count in the figures above.
CAFC‘s hostility towards software patents is especially noteworthy because it’s the fault of this court that software patents exist in the US in the first place. Suffice to say, more people now recognise the correlation between software patents and trolling. It’s also unsurprising that patent attorneys are unhappy about this new “Unpatent Manifesto”, which attempts to take things even further. The person behind it explains his point with a hypothetical analogy, stating “it wouldn’t be possible for anyone to patent the next biological change in the human body, it shouldn’t be possible for anyone to patent the next invention that will represent a great evolution of our species.”
“The “Unpatent Manifesto” might as well just be renamed the Patent Quality Manifesto.”The author is especially concerned about patent trolls, which are a symptom of no (or far too little) patent quality at the USPTO. He wrote: “The patent system is also the home of the so called “patent trolls”, or non-practising entities. Their mission is to accumulate patents with the only purpose of extorting money to those pushing for innovation. They patent already invented things, and patent or buy obvious inventions so they can later threaten companies with a lawsuit.”
The “Unpatent Manifesto” might as well just be renamed the Patent Quality Manifesto. In our view, patents themselves are not inherently the problem to tackle; the lack of quality control means that in the US, for example, there are now nearly 10 million patents (including expired ones). That’s far too much as it shows that the system long ago got detached or deviated away from its original purpose. And it’s impossible for any one person or firm to keep abreast of. There’s a huge overhead. █
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Posted in Action, America, Debian, Europe, Patents at 3:56 pm by Dr. Roy Schestowitz
Valve of Steam OS (Debian GNU/Linux) fame
Summary: The latest target of BT’s patent bullying (shakedowns and lawsuits) is the company that has turned into somewhat of a Debian proponent (albeit with DRM)
BT is a patent aggressor whose activities in the court we haven't heard of in a while (it even targeted Android). BT shows no sign of relenting. This unpopular strategy carries on and the latest suggests that “British Telecommunications (BT) have filed a lawsuit against Valve claiming patent infringement. The action was brought “based on Valve’s continued willful infringement” of four patents (I’ll go into what they are in a moment) and was filed in Delaware on 28 July.”
“It resorts to patent aggression to make up for commercial issues, just like IBM (it too became a patent bully).”Notice the choice of Delaware. The British and US media wrote quite a lot about this lawsuit [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21]. So far we have found 22 articles about this lawsuit alone (that’s a lot for patent news) and it looks rather obvious that BT is just getting desperate. It resorts to patent aggression to make up for commercial issues, just like IBM (it too became a patent bully). █
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Posted in Europe, Patents at 3:40 pm by Dr. Roy Schestowitz
Control by fear even in Berlin?
Summary: A former EPO staff representative from Berlin got laid off, reinforcing the perception that anyone who dares criticise the misguided policies of the Office takes a huge risk
THE Napoleonic vision that Battistelli has of himself is truly an infectious disease (at the top management) and it’s hard to understand how such a character, which is inherently and fundamentally political (where lying — not science — is one’s art and trade), made it into high EPO positions (Council, then the Office). It’s not even allowed, as per the rules.
Like (in)famous autocrats, Battistelli chose to treat critics not as a source of guidance but as enemies. This is very common in the political world, but not in science, where people openly debate competing theories and present evidence for their views (like peer review).
We have already learned about Battistelli’s attacks on staff representatives in Munich (resulting in dismissals) and similar attacks in The Hague (dismissals seem inevitable at this stage). What we did not know, however, is that a former staff representative in Berlin was dismissed earlier this year. Whether or not it may be related to staff representation activities we don’t know, but we have asked around.
As people can recall, the EPO arrogantly pretends that all these disciplinary actions are mere coincidences and nothing to do with union-busting (it’s arrogant as it assumes people are utterly foolish and might actually believe this). Will this dismissal in Berlin too turn out to be connected to union activity? If anyone has information about this, please get in touch. In Vienna, the fourth EPO site, people who represent staff rarely identify themselves by name and in an expression of solidarity for fellow staff (in other sites) all we ever saw were hands of people.
Battistelli has nothing to be proud of. He fostered a culture of fear, no free thought (not openly anyway), and at the same time he scared away (or drove away) some of the key members of staff at the Office. One might dare say that if Battistelli ran a political party of his own, it would be a total disaster, driving a nation into recession or bankruptcy. Never again should the Council appoint a politician to manage scientists, especially not a psychopath like Battistelli. A lot of the top-level management is now stuffed with friends of his. █
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08.29.16
Posted in America, Europe, Patents at 1:45 pm by Dr. Roy Schestowitz
…as if anyone with an idea/invention can afford them.
Reference: Let Them Eat Cake
Summary: A reality check regarding software patents and regarding those who truly benefit from an expensive patent system with an even more expensive litigation process/proceedings
THE USPTO is cracking down on software patents. Like TTIP lobbyists, patent lawyers will never publicly admit this. It was the same in Europe while UPC hype was all the rage (before Brexit effectively killed it).
Proponents of software patents seemingly resort to unrelated cases now, such as this patent. It’s about Mayo, not Alice, as it is not a software patent. The patent attorney writes “US Pat 8,586,610, administration of iloperidone; Survived 101/ Mayo Attack,” once again reusing these loaded words (like “attack” and “survive”, even when the “survivor” is the patent aggressor/plaintiff and the “attacker” is actually the defender/victim). Nice reversal of narrative, right? Like George Bush “defending” himself in Iraq and Ukraine “attacking” Russia…
“It was the same in Europe while UPC hype was all the rage (before Brexit effectively killed it).”Elsewhere in today’s news, we learn that “Prescient has received 13 patents on its software,” but software patents are pretty worthless right now. They just get invalided in the courts and the boards (and these are the ones whose holders actually believe have a chance, hence asserting them; the rest — or the untested patents — are likely easier to invalidate once scrutinised/challenged).
A pro-software patents site, Watchtroll, yesterday published this piece by Anthony de Andrade and Venkatesh Viswanath. It’s quite a shot in the foot actually as it serves to legitimise the site’s idealogical opponents. It shows that ‘global’ patents (applied for separately in several jurisdictions) is not for startups but for the richest people (or huge corporations). To get a patent virtually everywhere in the world (where it techncially matters) “an applicant would require $296,233 to file National Phase applications in said jurisdictions and maintain the applications” (renewal fees).
$296,233, eh?
“So much for protecting the ‘little guy’, eh?”For one. Single. Patent!
So much for protecting the ‘little guy’, eh?
This reminds us of Apple’s patents in the EPO — patents which Battistelli is totally clueless about. Remember that Apple is possibly the world’s richest company (by many criteria that are commonly assessed by major publications) and watch what it’s applying for now: “Apple filed for patent on unauthorized user biometric data collection system (AppleInsider) — If an “unauthorized user” (read: thief) uses an iPhone equipped with this technology, the device could capture a photo and fingerprint of the user for use by law enforcement. Not exactly rocket science to understand how this might be used by law enforcement remotely to assure a particular contact (read: target) is in possession of an iPhone, either. Keep an eye on this stuff.”
The Apple advocacy sites offer spin by reinforcing the idea that it’s OK because it will only be used against crime. To quote AppleInsider: “An Apple patent application published on Thursday describes a method of storing an unauthorized user’s biometric information, which can help strengthen security management or assist in device recovery and criminal prosecution in the case of a theft.”
“The Apple advocacy sites offer spin by reinforcing the idea that it’s OK because it will only be used against crime.”“Even as Apple contemplates surveillance software to catch thieves’ fingerprints,” IDG wrote, “it is also reportedly planning to redesign the physical elements of its devices that would make that approach possible.”
As usual, being an Apple story, it was all over the news (we saw more than dozens — perhaps hundreds — of articles, e.g. [1, 2]) and it was all praises and cheerleading, hardly criticism, just like that time Apple patented remote disablement of a phone’s camera (a ‘gentler’ form of kill switch that already exists).
“Apple had to spend a quarter of a million dollars getting a patent on this stupid ‘idea’ in every technologically-developed country, it would just be slush funds to Apple.”It takes sheer disregard for privacy and human rights to do what Apple expresses a desire to do here. It’s not at all innovation, just a lot of hype. If Apple had to spend a quarter of a million dollars getting a patent on this stupid ‘idea’ in every technologically-developed country, it would just be slush funds to Apple. Apple is suing companies (using patents) for billions. What about the mythical ‘little guy’? The patent system just isn’t for the ‘little guy’. Maybe it was a long time ago, but not anymore. See these comments in Reddit, one of which says about patent examiners: “They probably spend a lot more time digging themselves out from under the mountain of Apple / Samsung forms.”
This is, in essence, what the patent systems have turned into. To quote a comment that we mentioned yesterday (regarding the EPO), “Member States must decide very quickly if they wish to throw away more than 40 years of success, and replace it with a system that no longer rewards innovation, but instead becomes simply a tool for large corporations to dominate by means of their financial muscle.” █
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Posted in Deception, Europe, Patents at 12:41 pm by Dr. Roy Schestowitz
Prepare for some EPO propaganda about staff being happy, even when the Organisation admits there is a crisis and the President has a 0% approval rate
Summary: The European Patent Office (EPO) has done absolutely nothing to improve the work atmosphere, it just alters the marketing strategy somewhat
THIS week, while on retreat in Wales, I intend to dive into hundreds of EPO documents. There is a lot of ‘dirty laundry’ in there (plenty of documents), but now isn’t the best time to write about them because not many people — both staff and journalists — will pay attention (many are still on holiday). Don’t let the silence be mistaken for pacification. We expect that Battistelli will misinterpret this silence and predict it won’t take long for the "Social Study" propaganda to come out (they have renamed it and expect to release it in several weeks, surely with journalists to be contacted to play along and spread/embed the EPO's lies).
“It may sound benign, but given the undisputed decline in EPO patent quality, is it worth bragging about?”There’s a similar/analogous situation at WIPO. IP Watch is playing along with WIPO’s PR/face-saving statements [1,2] (see below) today, whereas the EPO keeps rather quiet. In some promotional press releases, low quality control for EPO patents gets ignored and companies brag about intent to grant at the EPO. It may sound benign, but given the undisputed decline in EPO patent quality, is it worth bragging about? How long before the “Battistelli effect” is understood by all applicants?
For the first time in quite a while SUEPO published something today (not just a link). The workers are coming back (those who have not left or retired). “The London-based lawyers, Bretton Woods Law, specialise in the Rule of Law, International Human Rights law and International Administrative Law,” SUEPO explained this morning, sporting two PDFs that we made public a few months ago (these got leaked to us). “At the request of SUEPO, Bretton Woods Law produced a legal opinion concerning the actions of the President of the EPO, and the responsibility of the Administrative Council as well as the Member States of the EPO with respect to staff,” SUEPO continued. “In an Annex to the above document a number of the reforms are considered in the light of basic legal and democratic standards in Europe.”
“Expect September to be a busy month for EPO coverage.”One document is 22 pages long and the latter is 25 pages long. That’s a lot to read. But these are both well written and structured.
The EPO has not had any announcements for a while (other than the earthquake — Italy’s, not Battistelli's — getting exploited). Universities are still 'spammed' by the EPO (new examples in [1, 2], even repeatedly today) and sometimes this pushing truly works, as it comes not only from the EPO to all Twitter ‘followers’. It’s promotion of Battistelli's next lobbying event (if he survives this long at the EPO).
Expect September to be a busy month for EPO coverage. Nothing at all has improved (for many months). In fact, things got worse. Those who wish to send us information can do so securely using anonymity-preserving methods of choice. █
Related/contextual items from the news:
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Staff dissension? A thing of the past, according to WIPO. Staff are being included and are at the center of everything. And (after a major upheaval, including the firing of the oppositionist Staff Council president in 2014 followed by staff protests outside the building), the report states: “Finally, staff are at the front, left, right and center in organizing elections for a WIPO Staff Council through which, for the first time, all staff members will have the opportunity to exercise their right to vote.”
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The choice of hosting countries for new WIPO external offices and the Medium Term Strategic Plan 2016-2021 are among the hottest subjects of the week, according to several regional groups speaking at the opening today of the World Intellectual Property Organization Program and Budget Committee. Separately, the United States again called the attention to a 2015 treaty protecting geographical indications which they said should not be automatically administered by WIPO. And members called attention to audit and oversight issues at WIPO.
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08.28.16
Posted in America, Patents at 3:04 am by Dr. Roy Schestowitz
The very home (or origin) of software patents is finally breaking up with them
Summary: A roundup of new articles about software patents in the United States, 2 years into the post-Alice era (the US Supreme Court deeming patents on software too abstract to have merit)
WE are very pleased to see the USPTO (and also GAO) recognising that patent quality truly counts. The EPO under Battistelli treats quality control as a nuisance, which is a terrible mistake. A lot of people publicly acknowledge right now that software patents are somewhat of a “thing of the past”, even if few of these still trickle in past the examiners (later to be properly scrutinised by PTAB and/or the courts, whereupon there’s a reversal). Jakob Schnaidt, writing for MIP, said this: “In the early 1960s, patent practice was quiet and inventors often faced a hostile environment.” Nowadays, by contrast, “patent practices” take over the system (they write patent law by proxy), tax everything, and inventors face a hostile environment full of patent trolls and fear. Which way — or status quo — will we be better off with? Remember that back in the 1960s there was software but no software patents. In fact, back then FOSS (Free/Open Source software) was the norm; people openly shared source code and didn’t keep it secret. It didn’t work too badly, did it? A lot of software innovation happened around that time, arguably more so than today. Magazines used to publish source code (e.g. for compression) and there was no atmosphere of fear over patent lawsuits in the field of software.
“Remember that back in the 1960s there was software but no software patents.”An industry full of (or rife with) patent lawyers is certainly good for “patent practices” but not for developers. An article which was mentioned here before but reposted/revisited by MIP over the weekend compares the situation in Japan to that of the US. “As Suntory and Asahi settle their patent dispute over non-alcoholic beer,” says the summary, “John A Tessensohn surveys the state of litigation in Japan, and compares it with the United States” (spoiler alert: there’s a paywall).
Japan is arguably the only country in which software patents are potent, other than the United States (which is moving away from them anyway). There are a few other east Asian countries where software patents stand a chance, but then again, quality control there is virtually non-existent. Consider SIPO in China for instance…
Looking at some recent patent news from the US, Cioffi, which was mentioned here before, uses software patents against Google. Cioffi does this in the Eastern District of Texas, the capital of patent trolls where courts advertise themselves as plaintiff-friendly. The US Supreme Court might eventually weigh in (latest reports on the case suggest that the software patents might somehow reach SCOTUS), potentially reaffirming its position on Alice. As one writer put it: “Central to the decision was the court’s interpretation of two of the claims that Cioffi had made in the patents pertaining to a “web browser process” and a “critical file.” While Cioffi’s lawyers maintained that the terms as defined in the claim were narrow and specific in scope, Google argued that there were no common definitions for these terms on which to base an infringement claim.”
After Alice these patents are not likely to survive. Cioffi is wasting its time and money and once it leaves the crooked courts of the Eastern District of Texas it doesn’t stand a chance. These patents are far too abstract and broad, as Google already points out.
“Sadly for lawyers, in order to win cases they need to do more than just call patents “medical” or “health” (to convince judges).”Revisiting MIP, there are a couple of new articles about PTAB’s fourth anniversary [1, 2]. “Covered business method (CBM) proceedings have lost some of their appeal recently,” says one article. The same goes for software patents and “two recent interesting ITC decisions involving PTAB proceedings,” as the latter article puts it, further reaffirming this (see the statistics presented/charted in the pages). The ITC‘s rejections of software (or abstract) patents were covered here very recently in relation to two cases, not just one. There’s almost no hope left for software patents in the US and vocal patent law firms are fuming. Watchtroll, for instance, is now resorting to ‘medi-washing’ (see “life-saving results” in the headline) of software patents, in an order to make it sound as though if the US doesn’t grant software patents, people will die! These truly pathetic tricks that exploit a perceived dilemma over life — a sort of hostage situation or ransom — just come to show how low Watchtroll would stoop (recall how he mocked PTAB a month ago). As we saw at the EPO’s appeal boards, calling software "device" or "medical" does not make the software patentable. And speaking of software patents on something “medical”, here is a new article titled “What have we learned from four years of digital health patent fights?”
“In 2012,” notes the author, “CardioNet sued several companies, including heart-monitoring company MedTel for allegedly infringing five patents by either selling devices or offering cardiac monitoring services using CardioNet’s software.”
We wrote about this case one year ago (“Healthwashing Patents”). Sadly for lawyers, in order to win cases they need to do more than just call patents “medical” or “health” (to convince judges). As this article notes, even Intellectual Ventures does not bother with the strategy. To quote: “The biggest of these NPEs, Intellectual Ventures, hasn’t filed a single suit in the mobile health space according to the firm’s website, though it has litigated aggressively in the telecom and digital camera spaces since 2012.”
“It’s only now, decades too late, that the US Congress, GAO, courts, ITC, PTAB and even the USPTO (however begrudgingly) acknowledge this was a mistake all along.”Yes, the Microsoft-connected Intellectual Ventures even went after Linux with such patents, as we showed earlier this year and last year. Finally, notes this article, Alice changed everything. To quote: “The judges in those two cases cited a Supreme Court precedent, Alice v CSL Bank. Much older precedents have created a category of inventions that are unpatentable because they constitute an “abstract idea”. Under Alice, a 2014 unanimous decision, the Supreme Court devised a test for whether computer software was a patentable invention or just the application of technology to an unpatentable human process, and therefore an unpatentable abstract idea. Both American Well and Jawbone failed that test.”
Patent law firms will tell us that this is bad news (for “innovation” of course!); so will officials-turned-lobbyists like David Kappos. But the reality is, such patents should never have been granted at all. It’s only now, decades too late, that the US Congress, GAO, courts, ITC, PTAB and even the USPTO (however begrudgingly) acknowledge this was a mistake all along. Better fix the system; better late than never. █
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