05.09.16
Posted in Europe, Patents at 5:24 am by Dr. Roy Schestowitz
Another TTIP- or TTP-style behind-closed-doors agreement which infuriates those potentially affected (once they actually find out about it)
Summary: Position paper from a legitimate (not fake) group of SMEs blasts the Unified Patent Court (UPC) for being little more than a conspiracy of powerful businesses and other opportunists to work around the law, misrepresent SMEs, and undermine Directive 2009/24/EC (effectively a ban on software patents)
EARLIER this morning we wrote about the UPC in relation to misleading new propaganda from patent lawyers. The EPO has been lying to everyone, insisting that the UPC is legitimate and that it’s somehow “for SMEs” when the reality is exactly the opposite, as a recent scholarly paper about SMEs served to show. Patent lawyers who play along with the EPO’s propaganda are doing a lot of damage, but then again, remember that it’s “damages” from which they profit. They want patent war. The more, the merrier. As for the EPO, it now pays obscene amounts of money to a PR firm from the US, which in turn pays to organise UPC propaganda events in the US (definitely not for European SMEs). It takes extreme gullibility/ignorance to fail to see what’s happening here.
“It takes extreme gullibility/ignorance to fail to see what’s happening here.”When talking about SMEs we must remember that there are fake (AstroTurfing) lobbying groups of Microsoft, pretending to be fronts of SMEs (e.g. Association for Competitive Technology), but European Digital SME Alliance is not a fake one (members listed at the bottom of the statement below). As the statement states clearly: “The European Digital SME Alliance aims to ensure that ICT SMEs get talked to rather than just talked about.”
The latter is what has been happening for quite some time. We mentioned this. The European Digital SME Alliance is based in Brussels and Benjamin Henrion, who is also based in Brussels (the EPO increases/maintains lobbying presence there), paraphrased [1, 2] the European Digital SME Alliance as saying “An EU wide patent system should be based on EU law and not on an international agreement [...] UPC rules of procedure are illegal, undemocratic, no parliaments, even unconstitutional in DE” (not exact words).
Here is the statement in full, extracted and edited based on the original PDF:
European Digital SME Alliance
4 April 2016
Position Paper on Agreement on a Unified Patent Court
Insufficient legal protection for digital SMEs
The European DIGITAL SME Alliance is concerned that the Agreement on a Unified Patent Court (UPC) will undermine the legal protection of software developers against lawsuits based on possibly invalid software patents.
Under this agreement, companies may be convicted for an alleged patent infringement without first proving whether the patent in question is valid or not.
Threats to digital SMEs
The European software market is loaded with tens of thousands of software-related patents1. Patents can cover several features in a computer program. For small and medium sized software developers it becomes increasingly difficult to avoid those patents by using alternative means. The existence of software-‐related patents is per se questionable: software is sufficiently protected directly or indirectly by the copyright law for computer programs under Directive 2009/24/EC.
More in general, the validity of software patents is quite uncertain when looking at the overall patent collection. More than 50 % of all oppositions or nullity procedures against software patents lead to a partial or total revocation of patents2. Thus, there is no basis for trust on the reliability and completeness of the patent granting procedure.
All SMEs in the software sector can be accused of patent infringement and receive an injunction by a court. This poses a constant threat to the companies. The defence against a patent infringement lawsuit is costly and can take years. This situation is worse in countries like Germany, where the proceedings for patent infringement can lead to an injunction even though the lawfulness of the patent in question has not yet been determined. Injunctions
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1 The search for patents in the German Patent and Trademark Office containing the phrase „computer program“ in the patent claims led to 20.278 Hits on 10.11.2015.
2 http://www.epo.org/about-‐us/annual-‐reports-‐statistics/annual-‐report/2014/statistics/searches.html: In 2014, in opposition procedures at the European Patent Office in 31% of the cases, patents were totally removed and in 38% of the cases at least partially removed
force companies to withdraw their product from the market. Years after such injunction, when the SME has accumulated huge losses, a court may judge invalid the patent in question. Hence, companies that own large patent portfolios can use the threat of patent infringement lawsuit to undermine the competition of SME software developers in the market.
Creating a long-‐lasting legal uncertainty
According to the Agreement on a Unified Patent Court, when ruling on an alleged patent infringement, the local and regional chambers of the Unified Patent Court will be empowered to decide in their own discretion, whether an objection for nullity of the patent shall be taken into account. The chambers will have different options:
(a) They can decide about a counterclaim for revocation together with the question of patent infringement;
(b) they can suspend the patent infringement process until the nullity proceeding is ruled or
(c) they can decide about a patent infringement without considering the question of nullity.
Thus, the agreement fails to establish a legal precedence for the clarification of the validity of patents. Should the agreement come into force, it would extend the German approach of a conviction without prior clarification of the legal situation to all participating countries. Worryingly, the choice of an international agreement as operational tool will make it very difficult to review the content of the agreement over the next decades, thus worsening the consequences and perpetuating the damage to SMEs in the digital sector.
Unconstitutional rules of procedure
According to the agreement, an administrative committee composed by representatives of the signatory countries will be alone responsible for setting up the rules of procedure of the new Unified Patent Court. The rules of procedure deal with numerous matters of the procedure that concern the procedural rights of the parties.
The definition of this set of rules that regard the basic rights of the parties without democratic legitimation by the parliaments is, for countries like Germany, even unconstitutional.
Fragmentation of legal positions
Croatia, Poland and Spain are not signatories of this agreement.
The requests of the European DIGITAL SME Alliance
Digital SMEs need a European patent system that protects them from the attacks of owners of extensive portfolios often based on unlawful software patents. For small and medium sized software companies it is essential that the patent system prevent the implementation of questionable patents. Thus, the procedural law should ensure a complete examination of the patent, prior to the decision on conviction for an alleged patent infringement. An EU wide patent system should be based on EU law and not on an international agreement.
About the European DIGITAL SME Alliance
The European Digital SME Alliance (former PIN SME) is an association formed in 2007 to represent the interests of Europe’s ICT SME sector. Currently ten national and regional associations are members, representing tens of thousands ICT SME companies in Europe. The European Digital SME Alliance aims to ensure that ICT SMEs get talked to rather than just talked about. It provides a voice for ICT SMEs in the policy and business arenas and is already represented in several EU expert groups and taskforces.
Membership
BASSCOM – Bulgarian Association of Software Companies (BULGARIA), CNA -‐Comunicazione e Terziario Avanzato, Confederazione Nazionale dell’Artigianato e della Piccola e Media impresa (ITALY), UKITA, United Kingdom IT Association (GREAT BRITAIN), CONETIC – Confederación Española de Empresas de Tecnologias de la Información, Communicaciones y Electrónica (SPAIN), BITMi – Bundesverband IT-‐Mittelstand (GERMANY), GPNI – Groupement Professionnel National de l’Informatique (FRANCE), it-‐forum midtjylland (DENMARK), SwissMedia – Swiss IT & Multimedia Association (SWITZERLAND), Belgrade Chamber of Commerce, IT Association (SERBIA), Vojvodina ICT Cluster (SERBIA), STIKK – Kosovo Association of Information and Communication Technology (KOSOVO), Balkan and Black Sea ICT Clusters Network (ALBANIA, BOSNIA AND HERZEGOVINA, BULGARIA, GREECE, MONTENEGRO, ROMANIA, SERBIA, KOSOVO, TURKEY, REPUBLIC OF MACEDONIA, UKRAINE)
The UPC basically mirrors what we find in TPP and TTIP. It’s a corporate attack on democracy itself and it is falsely advertised to the public (if it’s advertised at all). Protests may be needed and more antagonism from those affected is now imperative. █
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Posted in Europe, Patents at 2:35 am by Dr. Roy Schestowitz
Battistelli and his ilk hope to keep it under the wraps, without any public backlash/flak like TPP and TTIP have received
Summary: The coup d’état of the EPO, large applicants (massive global corporations), and their patent lawyers continues with shameless lobbying, new unsubstantiated rumours, and the self-fulfilling prophecies strategy (to depress the opposition and lower its morale)
THERE is virtually no open debate or investigative journalism in the corporate media about the UPC (when it’s mentioned at all, if it’s ever mentioned, it’s corporate propaganda), the corporations-leaning deal which patent lawyers and their largest clients are crafting and drafting with help from clueless politicians, national patent offices, and EPO officials such as Battistelli. This is a travesty because if the public knew about it (especially the broader impact), there would be riots and protests in the streets.
“This is a travesty because if the public knew about it (especially the broader impact), there would be riots and protests in the streets.”While patent law firms keep us distracted with puff pieces like “Protecting software inventions in Europe” or “EPO developments on patentability of biotechnology inventions” (April 11th [1, 2, 3]) much bigger things are happening (not the openwashing of UPC, as seen in [1] below), which can serve to legitimise software patents in Europe and also bring patent trolls to the entire continent and beyond it (Britain gets them already).
Proponents of software patents already start to insinuate that it will be easier to be granted software patents in Europe than in the Unites States. As one of them put it a few days ago [1, 2, 3], “Message from the EPO to US Software Applicants: Give us your rejected, your software applns in 3600 yearning to be granted; The Alice-rejected inventions of your teeming shore, Send these, the disrespected, tempest tossed software inventions to us: We lift our lamp beside the Golden Door to issuance and validation in Europe.”
“What about the option of blocking it altogether?”Sadly, under the regime of the clueless Battistelli there is already some truth to it and this closer look by Merpel suggests that a wholly horrible package is expected to come with UPC. To quote: “Of course there are a number of things that need to be resolved as the clock starts ticking down on the UPC opening its doors, the Code of Conduct being one of them. However, while there is still time, it is important that the uncertainty and issues outlined in CCBE’s letter should be fully considered and addressed, with the current draft being a launching off point. Further, Merpel hopes that the current draft is circulated more widely so that the larger European profession, who will be bound by the Code, is given an opportunity to comment.”
What about the option of blocking it altogether? And why does Merpel assume that this is inevitable and that “the clock starts ticking down on the UPC opening its doors”? There are all sorts of great barriers which remain. The Bristows colleague of Merpel, a longtime proponent of software patents and the UPC, would probably have Merpel and others aware only of the ‘good’ news about UPC, not the rest. This booster has been meddling in UPC affairs for quite a while, this time omitting any of the negative publicity around UPC and instead latching onto this speculation from Italy. Italy opposed this package vigorously and rejected it strongly half a decade ago when it was called “EU Patent” [1, 2, 3]. It still hasn’t consented to it. “After a sunny lunch this afternoon,” the Bristows employee writes about herself in third person narrative, “the AmeriKat returned to her desk to find some very exciting news from her friends at leading Italian IP firm, Trevisan Cuonzo, about the status of Italy’s UPC ratification process.”
They would wish so, wouldn’t they?
“They hope that by giving the impression that nothing can stop the UPC the UPC will eventually defeat the antagonists, having lowered their morale.”So a law firm hears from another law firm about something and now they hope to give Italians the impression that their language and interests are being abandoned and there’s nothing they can do to stop it? Seems like yet another go at self-fulfilling prophecies. They hope that by giving the impression that nothing can stop the UPC the UPC will eventually defeat the antagonists, having lowered their morale. For shame. Those propagandists have been doing a lot of damage and Bristows played a significant role in this propaganda for quite some time, often taking advantage of IP Kat as a platform (because almost nobody bothers with Bristows’ own platform, even when they opportunistically — for marketing purposes — call it “Bristows UPC”).
Here is one comment posted in response to the rumour mill:
My guess is that the Netherlands will try to be with the first implementing countries at all cost… It passed the stage Italy currently is in months ago, and presented the agreement (well: the law approving the UPC Agreement) to parliament 2 months ago and is currently busy answering the first round of written questions by the responsible parliamentary committee. The government also requested the legislation to be fast-tracked.
However, there seems to be trouble with the advice of the Council of State (Raad van State) on the implementing legislation. The implementing legislation was thus not accompanying the approval of the agreement, when it was presented to parliament (which was the plan from the beginning), and the government has requested additional advice from the Council of State on “a new European patent system” (which is very special).
My guess therefore: NL will be nr 13, but the implementing legislation will come later….
Well, it’s a de facto coup; the UPC keeps changing names, which makes effective public criticism difficult and also misleads/confuses the public. EPO officials are not traveling to nations that wish to leave the EU and push the UPC down their officials' throats to bypass the referendum (or equivalent process). Not a coincidence. Bristow wants London to become a patent litigation hub and many other patent firms also look after their own interests, irrespective of what the general public wants and deserves. Watch how the London-based IAM tries pushing a similar meta-industry (patent feuds) into Asia, making it sound like a contest again (preaching and shaming, not objectively reporting):
Authorities in Shanghai have made fresh calls for the city to become an IP centre in recent months. The plans include efforts to improve IP rights enforcement, in both the judicial and administrative spheres, which is surely a prerequisite to having any sort of transactional activity. But like past blueprints, it also calls for building an ecosystem for IP trading, for example by attracting services providers that can facilitate and advise on deals, and professionals with the requisite expertise. The head of the Shanghai IP Office says that an IP ‘trading centre’ will be established within the year.
For a long time, Singapore and Hong Kong have been the most prominent jurisdictions vying for the hub mantle. The Lion City’s efforts have been decade-long and wide-ranging, and resulted in significant changes to the IP environment; the drive has seen it introduce a positive grant patent system, train its own patent examiners and other IP professionals, and open up the market to competition from foreign patent agents. Hong Kong’s plans, by contrast, have been more narrowly focused on IP trading, premised on its combination of a common law legal system and easy access to mainland China. Malaysia joined the fray about three years ago, pledging $65 million towards an IP financing plan that emphasised the collateralisation of patents, especially by SMEs.
Asia has been a lot more pacific on the patent front, but patent lawyers in Europe and the US obviously want to change that. They profit from making a mess. IAM itself is more of an advocacy site (for patent trolls, lawyers etc.) and it previously used shame tactics to pressure European officials to adopt the UPC, as we repeatedly showed here. █
Related/contextual items from the news:
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Using Private Cloud and Drupal as a starting point together with small expert partners and agile management the new platform for the European UPC has been shaped to the exact requirements and quickly adapted while more needs surfaced. The only ready to use Open Source tool used has been Zarafa Collaboration Platform which integrated with the Case Management System will provide secure email, instant messaging, file sharing and video conferencing to the platform’s users.
The result is that, thanks to Open Source based platform and by working with SMEs, the UK IPO team has been able to deliver to the Unified Patent Court team the project earlier than planned and under budget.
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Posted in Australia, Patents at 2:07 am by Dr. Roy Schestowitz
Summary: Even though much of the Australian and the international media focused on copyright-related findings of Australia’s Productivity Commission, the findings against software patents continue to be mentioned to this date
At the start of this month and end of last month we wrote about an Australian recommendation to abolish software patents for good. Some corporate media came to cover it several days later (even over a week later), under the headline “Australian Gov’t. Body Recommends Banning Software Patents”. Here are the opening paragraphs:
Australia’s Productivity Commission wants to exclude business methods and software from patentable subject matter under that country’s laws.
The APC’s draft report on Australia’s “Intellectual Property Arrangements” called for a patent law amendment to explicitly exclude those types of inventions from patent protection.
There is a “clear case” to disallow the patenting of software and business methods because there’s evidence that patents in those areas don’t encourage new or valuable innovation, the draft issued April 29 said. What’s more, such patents can impede competition.
Having contacted some Australian activists against software patents about this, I was surprised to see that they hadn’t noticed, probably because the media mostly focused on other findings of the Commission, mostly copyright-related. Here are Peter Caporn and Rebecca Hembling from Wrays, an Australia law firm, mentioning this aspect somewhere towards the end of their new analysis:
Business Methods and Software (BM&S)
The Commission suggests that their newly characterised technology subset ‘BM&S’ should be specifically excluded from patent protection. Patents on this technology is said to be ‘unnecessary’, a conclusion bound to inspire a robust response. The Commission has adopted a narrow view of how ip relating to business methods and software is used and the impact it has. It will be particularly interesting to see if the reasoning set out as support for this draft recommendation survives the submissions that it will no doubt attract in response.
It sure looks like much of the media either missed or overlooked this one particular aspect of the findings, which is somewhat of a shame. If nobody notices or takes into account such input, will it have a lasting impact? █
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05.08.16
Posted in America, Courtroom, Law, Patents at 6:46 am by Dr. Roy Schestowitz
US courts are constantly rejecting software patents, but the USPTO doesn’t seem to care and continues to issue them anyway
“LinuxFest Northwest 2016: Software Patents After Alice: A Long and Sad Tail” [via Montana Linux, which says “Deb Nicholson talked about the state of software patents after the United States Supreme Court’s ruling in the landmark Alice vs. CLS Bank case.”]
Summary: The ‘production line’ which the USPTO has devolved into (just accepting nearly everything that comes in) passes costs of spurious litigation to the public (externality to be taxed by monopolists, trolls, and patent lawyers) and new information serves to highlight this gross injustice which is motivated by USPTO greed and corporate control (vendor captivity)
Professor Dennis Crouch, still keeping abreast of “Pending Supreme Court Patent Cases” (there are interesting SCOTUS-level patent cases on their way), brings updates about USPTO adaptations to rulings such as Alice, which basically brought the end to a lot of software patents (the USPTO should obey court rulings and end software patents, but it’s too greedy to do so). The articles composed by Dennis Crouch are actually quite informative and they help us track how things are changing (Crouch’s work is academic/scholarly, so he hasn’t much to personally gain from patent maximalism). Writing about the latest in the Fitbit case, a patent lawyers’ site says: “As an update to our April 13, 2016 blog post, US International Trade Commission administrative law judge (ALJ) Dee Lord has granted summary determination that the asserted claims of two of Jawbone’s remaining patents in its Section 337 action against Fitbit are directed to ineligible subject matter under 35 U.S.C. § 101.”
“It’s not hard to see why large corporations are up in arms.”This is basically the latest high-profile legacy of Alice, which the USPTO (unlike courts, SCOTUS included) is still trying to ignore. The USPTO is still having discussions about the subject. According to a new bit of text found by Benjamin Henrion a few days ago, the USPTO says “Functions that are not generic computer functions and therefore amount to significantly more than an idea” (PDF therein).
Does the USPTO intend to ever obey court rulings? Or is it too rogue to accept that things have changed? Its former director, David Kappos, is now actively lobbying against the Supreme Court on behalf of huge corporations — a move which contributes to the perception of corruption in this whole system.
“Another new analysis from Crouch reinforces the idea that the patent office should enforce patent boundaries, restrict scope.”It’s not hard to see why large corporations are up in arms. Dennis Crouch, the pro-patents scholar, has done some research and plotted charts which show that what the patent system was created for ain’t so anymore. Crouch’s analysis is showing how large corporations get the lion’s share of patents (first author plus bosses etc. and people who want to get some of the credit), not independent developers (same in Europe) and he adds the following interpretation of the numbers/chart:
The primary goal of the patent system is to encourage innovation – “promote the Progress of Science and useful Arts.” For me, the nature of inventorship is a fascinating pursuit: what are the factors that lead to invention and what are the results of invention?
A major shift over the past few decades in terms of inventors listed on U.S. patents is the rise of team-based inventorship. Back in 1975, the vast majority of U.S. patents were issued to a single inventor. Since that time, there has been a steady trend toward more inventors-per-patent. Around 1990 we reached a point where, for the first time, more than than half of US patents listed multiple inventors. That trend toward more inventors per patents continues today.
Drilling down, the increase is seen in patents with three or more inventors. The chart below shows the percentage of utility patents with either one listed inventor (downward sloping double line) or three+ listed inventors (upward sloping line). The drop in the first almost exactly correlates with the rise in the second. Throughout this time, the percentage of two-inventor patents has remained steady at around 25%.
Another new analysis from Crouch reinforces the idea that the patent office should enforce patent boundaries, restrict scope. But his focus, however, is the number of claims per patent, showing a very sharp decline about a decade ago (patent barriers perhaps falling far too low, allowing virtually every patent application through, or more than 90% of them). He calls this “Right Sized Patents” and adds:
Many progressive policies focus on reducing disparities (income, wealth, education, and opportunities) that reflect some social injustice between those at the top and those at the bottom of our social spectrum. Conservatives often recognize the gaps but disagree about whether the result qualifies as injustice as well as about government’s role in redistribution.
Patent policy is often easier to implement than social policy (especially compared with other property law changes) because a new generation of patents emerges every twenty years and the old generation does not hang-around protecting and directing wealth but instead melds into the Soylent of the public domain.
In some ways though, patents are bucking the social trend and becoming more standardized and less diverse – at least by some outward measurements such as document size, claims per patent, and prosecution pendency.
To rephrase that last sentence (above), patents are bucking the corporate trend and becoming low quality and more trivial. It means that those who are poor will be further impoverished and those who are rich and powerful will have more ammunition with which to marginalise the small guys (or girls). More and more small guys (or girls) are under more threats from more patents and more corporations. This means they lose control; they’re being dominated. Bogus patents that are possible to invalidate in a court are too expensive to invalidate, and those whom they’re asserted against don’t face huge damages which can justify the legal bills (so they settle or close down the shop). Is this what the patent system was created for? Surely the opposite. The saddest thing is that the EPO too is gradually becoming more like that. █
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Posted in Patents at 5:47 am by Dr. Roy Schestowitz
Summary: Responses to a new batch of complaints from The Economist over what’s increasingly perceived as patents excess (due to maximalists who would have us believe that the more, the merrier)
“T
oo much of a good thing” is a famous term we have recurringly seen mentioned in relation to the USPTO, where patent quality has gone downhill and patent numbers skyrocketed, just like in China.
“Too much of a good thing” is the headline of this recent article from The Economist (very influential publication), which angered many patent lawyers when it said the truth about patents some time ago (less than a year). “The Economist is at it again,” IP Kat wrote some days ago, “when it comes to patents” (it’s sort of a rant, as words like “at it again” serve to insinuate).
“The Economist is at it again,” the author starts with (not just in the headline). “This time the issue is not innovation but the decline in market competiveness and the increase in industry concentration, both as embodied in the stickiness of oversized corporate profits. Companies are making too much money and displaying too little competitive instincts, preferring to consolidate their positions, to the detriment of the economy writ-large.”
When excessive, abundant, wide thickets of patents are everywhere, who benefits? It is interesting to see patent scope (or examination lenience) coming under attack from the Establishment media too, more than once even. What we found more interesting than the response from IP Kat are the comments in response to IP Kat, namely:
The Economist attack on patents mentions a number of legitimate problems with the patent system, including reducing the number of unenforced or weak patents. However, some of the proposed solutions, e.g. reducing patent terms and expanding the options for challenging patents without a full blown court case, seem to be unrealistic.
Reducing patent terms is virtually impossible since nearly every country in the world is a party to the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement, which mandates a 20 year patent term. Amending TRIPS would be far more difficult than amending the US Constitution. Forget it. An alternative solution would be to tinker with maintenance fees payable by patent holders. Before the European Patent Office, maintenance (renewal) fees are payable every year, start the third year after filing an application and reach €2000 by around year 10. If the US adopted a similar system, rather than only charging fees after grant of a patent and making them payable every 4 years, it could have a helpful effect.
As for out-of court options for challenging patents, these may already go too far. Witness the recent activity of Kyle Bass, a well known hedge fund manager, in using Inter Partes Reviews (IPR) before the USPTO to challenge key pharmaceutical patents in order to take advantage of the effects of the challenges on the stock prices of the companies holding the patents. Another way to reduce the number of weak patents would be to raise the quality of examination by making a job as a US Patent Examiner more attractive. This could be achieved by increasing the compensation of Examiners, particularly senior Examiners. The compensation of US Examiners is significantly less than their counterparts at the European Patent Office (EPO). In fact, partners at European law firms have been known to leave their jobs to become Examiners at the EPO. This would be unheard of in the US.
Regrettably, any changes to maintenance fees or significantly impacting the compensation of Examiners would require the most unproductive Congress in history to stir itself from lethargy, which could be an unrealistic proposition.
The part which says “partners at European law firms have been known to leave their jobs to become Examiners at the EPO” (we know about exodus in the opposite direction) triggered this comment: “I have not heard of this at all in recent times.” Neither have we. People don’t want to work for the EPO, which has a serious brain drain problem, as we covered here before.
Here is another (newer) comment that says:
I haven’t read “The Economist” recently, but in points I and II it is absolutely correct, certainly in the fields in which I work. The gaming of the system by big companies is especially egregious. Thankfully the EPO has realised to some extent what’s going on and the Examiners involved (I’ve spoken with some of them) do their limited best to restrict some of the more outrageous cons. However, they are always playing catch-up.
On the far side of the Atlantic, where it sometimes seems that the USPTO selects examiners on the basis of a rather unique blend of incompetence, laziness, stupidity, sheer bloody-mindedness and downright dishonesty, things are often much worse, and these obstructive patents, filed purely for that purpose, block off whole areas of legitimate research and actually impede progress.
The patent system may not be broken, but it is certainly badly distorted and rigged against the little guy.
The part worth emphasising says that “it sometimes seems that the USPTO selects examiners on the basis of a rather unique blend of incompetence, laziness, stupidity, sheer bloody-mindedness and downright dishonesty, things are often much worse, and these obstructive patents, filed purely for that purpose, block off whole areas of legitimate research and actually impede progress.”
Amen to that. “Adding software patents as yet a further mechanism for concentration on top of that makes for a landscape that looks even more worrying,” says a later comment.
Thankfully it’s widely recognised, even in IP Kat circles, that software patents contribute little to competition, economics, innovation and so on. They oughtn’t exist at all. █
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Posted in Apple, Deception, Patents at 5:22 am by Dr. Roy Schestowitz
IAM: the IP Pravda
Summary: A look at this past week’s ‘reports’ from IAM and what they teach us about IAM’s agenda
IT is amusing to see how abusive some journalists can get, e.g. when news becomes advocacy or lobbying while still under the guise or cover of “journalism”. Such is the case of IAM, which even receives money from patent trolls, not just patent lawyers (whose interests are widely known). IAM isn’t alone in this category and it’s unfortunate that a lot of self-described ‘news’ sources in this domain are so biased that they have become meaningless tripe. This is where Techrights typically weighs in and attempts to intervene/interfere with the echo chamber.
Last month we wrote about software patents on driving and right now, using Apple’s term ("thermonuclear") IAM underplays the risk or the issue, stating: “My guess is that despite increasing litigation in the sector between operating companies and continued suits launched by NPEs, we are not going to see what we saw in the mobile communications industry.”
“The bottom line is, IAM advocates (not reports) more and more patents, more proprietary, less sharing, less peace, and more patent trolls, patent feuds, etc.”“NPEs” means patent trolls — a term that IAM never uses because it's paid by them. Patents on the act of driving (not a novel thing) are a real problem and after Tesla gave up on many patents pertaining to electric cars IAM ‘magazine’ (patent maximalists in ‘journalists’ clothing) shows that it is upset at this act which changes the climate of fear from patent litigation. It even tells Chinese companies what to think (see the headline “Memo to China’s electric vehicle startups: hope is not an IP strategy”).
What is this? Preaching or reporting? Having borrowed terms from Apple, IAM also plays up design patents, despite them being controversial enough to reach the Supreme Court. “Interest in design patents has increased recently,” IAM says, “particularly following Apple’s success in asserting its design patents associated with the iPhone and the iPad. Apple discovered that a few relatively inexpensive design patents were just as effective against Samsung’s smartphones as its arsenal of utility patents on various phone and tablet functions.”
“Don’t be misled by IAM. It’s not really a news site.”Actually, no. The case still hasn’t been decided. Even the Supreme Court decided to take on the subject and assess this kind of patents, which long ago we claimed are related to software patents (UI plus callback functions). Another new article from IAM wishes readers to believe that Apple woes being due to it being too proprietary aren’t quite so and Tesla is again brought up. Watch them preach again: “It would certainly appear to be the case that LeEco’s ecosystem-oriented, collaboration-based approach has propelled it very rapidly towards the top of China’s high-tech sectors. But rejecting the proprietary strategy characteristic of Apple – among many, many others – altogether could prove to be an unwise choice.”
The bottom line is, IAM advocates (not reports) more and more patents, more proprietary, less sharing, less peace, and more patent trolls, patent feuds, etc.
Don’t be misled by IAM. It’s not really a news site. It just gives its limited audience what it wants. Like a think tank. Leave it for the choir to read. █
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Posted in America, Patents, RAND, Standard at 4:39 am by Dr. Roy Schestowitz
Anybody surprised by this?
Campaign promises versus actions
Summary: How public policy and guidelines are being warped by patent aggressors and super-rich opportunists rather than public/collective interest
EARLIER this year we showed how Microsoft-connected FRAND lobbying yielded discriminatory (against FOSS) policies in Europe. This is not a coincidence, it’s intentional. This is also one way to legitimise software patents through the back door.
“In some ways not much has changed since the IEEE Standard Association’s (IEEE SA) new patent policy came into effect in March last year.”
–IAMFRAND should not be acceptable for standards, for reasons that have been covered to death around the Internet. According to a new press release, NASA makes some patents (not many) “available in the public domain,” to use its own words. As Red Hat’s Jan Wildeboer put it in Twitter, “Good! But why not all?” We wrote about this before [1, 2]. As NASA is funded by taxpayers, hoarding patents makes no sense, especially when NASA auctions these away to patent trolls who can then tax the public.
Writing about standard essential patents and FRAND, IAM ‘magazine’ has just said: “In some ways not much has changed since the IEEE Standard Association’s (IEEE SA) new patent policy came into effect in March last year. There remains a group of tech companies led by Qualcomm, Ericsson and Nokia who refuse to license their standard essential patents (SEPs) under the new rules while, on the other side, the IEEE and another, larger band of tech companies including Cisco and Intel, insist that the changes were vital in bringing clearer guidelines to licensing on fair, reasonable and non discriminatory (FRAND) grounds.”
Nokia now feeds patents into patent trolls, at Microsoft’s request. One of these patent trolls literally pays IAM — a fact that even IAM’s editor was unable to deny when I asked him. Then we have Ericsson, which brought patent trolling to Europe, and also Qualcomm, which Will Hill explained 2 days as follows:
Heh, no surprise there. Qualcomm is a big Microsoft partner, allegedly “playing nice” for the “internet of things.” Maybe their existence is as a Microsoft proxy and PRISM partner, corrupting free software like Android from the inside. I wonder if they are one of the vendors that aggressively push for non free firmware that the guy behind Core Boot complained about in 2006 or so.
As a patent victim,
http://techrights.org/2007/08/07/patent-terrorism-asia-2004/
http://techrights.org/2007/12/13/patent-life-and-death/
Attacking Nokia with patents,
http://techrights.org/2007/11/26/acacia-patent-qualcomm-nokia/
http://techrights.org/2007/11/22/naughty-patent-apple-burst-nokia/
http://techrights.org/2008/03/06/uspto-breakage-ms-oss-hijack/
As a patent perp,
http://techrights.org/2008/01/11/hddvd-qualcomm-patent/
http://techrights.org/2009/11/25/us-patent-office-problems/
http://techrights.org/2008/12/04/ms-employment-patent-hawk/
http://techrights.org/2015/04/24/google-coexisting-with-swpats/
blocking legal reform
http://techrights.org/2007/10/26/patent-news-netapp-ms-verizon/
“working with Android” receiving Palm patents,
http://techrights.org/2014/01/25/palm-qualcomm/
Lock step with Microsoft in killing Windows 7 and Windows 8 to push Windows 10,
http://techrights.org/2016/01/20/escaping-microsoft-malware/
http://techrights.org/2016/01/21/biggest-fans-upset-at-microsoft/
Part of the empire,
http://techrights.org/2015/10/20/preferential-treatment-for-microsoft/
The latter bunch, those who advocate FRAND, are also asking for something unfair, unreasonable and discriminatory because it excludes FOSS. To quote IAM: “To Cisco’s Ohana that means that the IEEE dispute is about much more than a small number, albeit significant, changes to its patent policy. “I have never believed that the furore around the IEEE policy has much to do with the policy itself but more to do with the concerns that some companies have about contagion,” he says. “Fundamentally what they’re worried about is if what has happened at IEEE spreads beyond the IEEE.”
“Notice to what degree IEEE policy is guided by multi-billion multinationals.”Notice to what degree IEEE policy is guided by multi-billion multinationals. Where are public interests in all this? Well, just like in NASA’s case, we are seeing how even at a Federal or supposedly scientific level there’s no real debate about merit of policies, only self interest of a bunch of billionaires. And that’s a problem.
The IEEE’s hostility towards FOSS isn’t a new thing. See for example the older articles below. █
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Posted in America, Bill Gates, Microsoft, Patents at 3:57 am by Dr. Roy Schestowitz
Summary: The world’s largest patent troll, composed of literally thousands of shells having been created by Microsoft with significant help from Bill Gates, is widening its reach to to the Google-backed Yieldify and TiVo (through Rovi)
NOBODY denies the fact that Intellectual Ventures (IV) is a patent troll, as per the definition of the term, and also the world’s largest one. It’s closely connected both to Microsoft and to Bill Gates (at a personal level/capacity), so we pay careful attention to it. We recently criticised IAM for grooming IV and now, based on a rare weekend update, IV speaks to IAM. As the editor put it: “Subsequent to the article’s publication, IV co-founder Peter Detkin got in touch with myself and Kent Richardson to comment on some of what it said; Kent then responded. Both have given me permission to publish their correspondence (note that this has been edited into IAM house style – so, for example, original US spellings have been turned into British English – but there no substantive changes were made).”
We understand why IAM entertains patent trolls’ marketing. IAM is, after all, partly funded by patent trolls, for whom it organises reputation-laundering events. It’s thus not hard to see why IV might view IAM as an ally rather than a suspicious or critical foe. There’s a sort of back-rubbing there.
Google came under fire some days ago because a company it backed has hooked up with IV. The Register‘s most trollish pundit, who habitually comments in IP Kat since weeks ago, said this (under the words “Um, Google… I thought you hated patent trolls?”):
Yieldify, the Google-backed startup accused of stealing code from British adtech company Bounce Exchange, has been making some unusual friends.
Yieldify has acquired an ancient web patent from III Holdings which was first filed in 2007. III Holdings is better known as Inside Intellectual Ventures, co-founded by Nathan Myhrvold. It has been dubbed “the most hated company in tech” and “the world’s biggest patent troll.”
IIV is a “NPE” (non-practicising entity), which gathers up patents and seeks to unlock their value through selling on or licensing the IP. This has been backed up by litigation, such as Samsung, a recipient of one of III’s sueballs.
In a court filing made last week, Yieldify made a request for declaratory judgement in its ongoing case versus Bounce Exchange, citing the IIV patent. This is a request for the case to be thrown out. The complaint also uses the patent in question to lodge an infringement claim against Bounce Exchange.
Here is another report about this, which correctly notes:
The patent wasn’t originally Yieldify’s, though. Yieldify has purchased the patent from Intellectual Ventures in order to open up a new front in its battle with Bounce Exchange. It was first submitted for approval to the US Patent and Trademark Office back in 2005 by Intellectual Ventures (IV), an organisation that CNET once described as “the most hated company in tech.”
There is a little more IV in the mix and it directly impacts Linux because DRM proponent and Linux kernel troublemaker (TiVo) reportedly gets together with a friend of patent trolls like Intellectual Ventures. As a patent maximalist’s site put it the other day: “Whether Rovi uses that war chest to attack competition (which becomes harder or easier as the anti-software patent pendulum continues to swing), or to further refine the Bolt and Rovi’s own media guides or both – the acquisition does spell positive for both companies and their stakeholders.”
One must remember that any proximity/link between IV and Linux can help Microsoft tax Linux using patents from thousands of different directions (IV has literally thousands of shells or satellites). A lot of patent trolls attack legitimate companies down in Texas and it’s hard to tell who they work on behalf of.
Vice has this new sort of ‘expose’ about Rodney Gilstrap, who was mentioned here before, e.g. in [1, 2, 3, 4, 5]. He is the patent trolls’ best friend at the court and to quote portions of this rather damning report:
The Small Town Judge Who Sees a Quarter of the Nation’s Patent Cases
[...]
The first thing people tell you about Judge Rodney Gilstrap is that he’s not from Marshall. In the small Texas city (population 24,000) east of Dallas where he presides as a US district court judge, where you’re from matters, and the 59-year-old Gilstrap was actually born in Pensacola, Florida. But because he earned both his BA and his law degree at Baylor University (three hours away in Waco, Texas), has practiced law in Marshall since the 80s, and married a local girl whose family owns the town funeral home, most folks forgive Gilstrap this blight.
[...]
Since taking the bench in 2011—moving literally across the street from his law office into the district courthouse—Gilstrap has become one of the most influential patent litigation judges in the country. In 2015, there were 5,819 new patent cases filed in the US; 1,686 of those ended up in front of Judge Gilstrap. That’s more than a quarter of all cases in the country; twice as many as the next most active patent judge.
Patent trolls are truly an epidemic, but they rely on software patents and corrupt courts (or states that harbour patent trolls for profit, much like tax havens that welcome tax evaders). What’s also crucial for everyone to remember is that many patent trolls work at the behest of some corporation lurking in the shadow, targeting its competition to drive prices higher or drive the competition out of the market. Intellectual Ventures already attacks Linux in various ways (from many directions), as we showed here before. █
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