11.08.16
Posted in Europe, Patents at 9:17 pm by Dr. Roy Schestowitz
Benoît Battistelli keeps digging his own grave
Summary: A large bundle of information about the latest horrible actions from Benoît the Terrible, who decided to bust unions also at The Hague, not just in Munich where he resides
TODAY, THE EPO is throwing another stupid and distracting party (an event called Patent Information Conference 2016) and after the social conference from an antisocial boss we expect to see social “workshops”, ones that are supposed to have taken place today and yesterday. But don’t expect staff to have attended or for anyone to genuinely care for this. Staff of the EPO was up in arms after it learned that on Friday the boss had fire yet another staff representative, as first covered in our site with this leak.
Today we heard of yet more “erratic behaviour” from Battistelli, but we shall leave that aside as a subject for another day.
Looking at some correspondence that got leaked to us, “Laurent Prunier is FIRED with immediate effect – no game changer” was the initial word, preceding if not almost coinciding with Battistelli’s announcement. “It has been reported that the EPO president has taken a final decision regarding our suspended Colleague in The Hague,” said one person. “After Els Hardon and Ion Brumme earlier this year it is now the turn of Laurent Prunier, elected Central Staff Committee and SUEPO official, to be fired with immediate effect!”
“One thing can be concluded,” said this message. “Fact is that the clear warnings given by the AC delegates in the last AC (see previous mail below) has had little influence on the President of the Office.”
Well, he certainly doesn’t seem to care.
“Under these conditions, despite many declarations of intent,” continued the message, “it is hard to believe that there is any significant paradigm change in the present management policy. And It bodes bad news for the further two further investigations and disciplinary cases running presently on The Hague Union officials… for the record, there have been also four further downgrades and several additional suspensions not listed over the past two years.”
We happen to be aware of some of them. Things are even worse than it appears to outsiders because de facto gag orders or scare tactics (or even blackmail) are being used to discourage or suppress facts. It’s like those fictional novels that are cautionary tales about totalitarian regimes. Apparently, some say, Mr. Prunier risks losing even his pension if he speaks out too much. What on Earth is this, an authoritarian failed state? At the very heart of Bavaria or in The Hague? How can it be and one can that persist?
At The Hague, told us one source “The Office does not allow demonstrations on the premises, and in the Netherlands public demonstrations cannot be organised spontaneously (the preparation takes about a week, at least). That’s why some staff members organised a spontaneous gathering to protest against the unfair dismissal of Laurent: 250 to 300 persons wearing solidarity T-Shirts spontaneously gathered on Monday morning in the canteen of the EPO’s The Hague branch. Sad and angry, they expressed their disagreement with the emperor’s bullying against their staff reps and the firing of Laurent.”
The protest photos from Monday was posted here yesterday (hours after they had been taken) and these help spread the message to more sites. “Even IAM could finally see the light,” one EPO insider wrote, after IAM said Battistelli had scored an "own goal".
Is IAM finally ‘defecting’? Does it realise that in order to save the EPO change in management is urgently needed?
IAM’s Editor in Chief (Joff) later published in the blog “EPO users and staff need the Administrative Council to get a grip on current events,” albeit he maintained caution, probably because he needs not to get into a fight with his buddies/parters at the EPO. Battistelli does not tolerate any dissent, or even a minor disagreement. To quote a portion:
What’s more, we have continuously pointed out that disputes between the EPO’s senior management and the staff union SUEPO were taking place long before Benoît Battistelli became the EPO president, and that the union has often been its own worst enemy by making explosive, unsubstantiated claims and by being highly provocative in its approach to negotiation. If being an EPO examiner is such a bad thing, we have always asked, why do so few people ever leave?
This was noticed by the following new comment that said:
Joff Wild of IAM writes:
EPO users and staff need the Administrative Council to get a grip on current events
I have always given the EPO’s senior management the benefit of the doubt, but increasingly it looks like I may have been wrong to do so. With the same things happening over and over again, what other conclusion can I reach – especially when I have met many SUEPO members and know them not to be agitating obstructionists, but people who genuinely want what is best for the office and those who use it.
Mr. Müller and I spoke about Joff’s motivations [1, 2] and meanwhile yet another article was written about the subject, arguing that “The Rule of Law (Rechtsstaat) is Endangered and Needs to be Defended!”
Here is the most relevant portion
The first two examples that, in my view, demonstrate how the Rule of Law is currently endangered came from the “ugly world” of politics. So you might not expect that my third one stems from an organisation which ought to be relatively apolitical, namely the European Patent Office. Unfortunately, however, all is not well there either. This has to do with the peculiar “constitution” of the EPO, the European Patent Convention, which only provides for an imperfect system of checks and balances and in particular does not subject the Office President to an independent judiciary, whereas the members of the Boards of Appeal are subject to being proposed by the President for being (re)appointed by the EPO’s Administrative Council. In other words, the Office President has a lot of power and the only entity that can control him is the same Administrative Council that elected him in the first place.
Given how important an independent and fearless judiciary is for a functioning system of checks and balances, an Office President would, in this author’s view, be well advised to exercise utmost restraint in interfering with the Boards of Appeal as the EPO’s judiciary. Yet I am afraid that this is not what happened in summer of this year. Quite to the contrary, the members of the Enlarged Board of Appeal (EBA) of the EPO made very clear that they actually felt threatened by disciplinary measures of the Executive Branch of the EPO, i.e. the President, and insufficiently supported by the Administrative Council. The clash came up in proceedings between the Administrative Council as Petitioner and a member of the Technical Boards of Appeal who seems to have been accused of libelling the EPO’s President and Vice Presidents, which he/she has apparently denied. The Enlarged Board stated in its decision this:
As the Petitioner did not clearly distance itself from the Office President’s position, there is the threat of disciplinary measures against the members of the Enlarged Board. It is then the Enlarged Board’s judicial independence in deciding on this case which is fundamentally denied.
I will not bother you with the complete background of this case that is summarized in the EBA’s decision and has amply been reported by IPKat, in my 2014 blog on the same case, and by others. Suffice it to say that the Enlarged Board had ordered to conduct its latest hearing coram publico, which apparently incensed the Office President (why? – honit soit qui mal y pense) to a degree that he felt he should intervene into the judicial proceedings by writing a letter to the Enlarged Board of Appeal which the Board perceived as a threat. Inter alia, the President instructed his lawyer to write that “In view, in particular, of the gravity of the reputational, security, welfare and public order risks identified, there is a strong case for saying that any decision to conduct this hearing in public would be unlawful because it could not be defended as either proportionate or reasonable”. (This may be right or wrong, but is it for the President to decide on whether it is lawful or unlawful to conduct the EBA’s hearing in public, or is it for the EBA itself???) And even more, the letter continued with stating that the President “will not hesitate to take any appropriate steps available to him to ensure the proper running of the Office and the safety of its employees”.
Now, might you argue, the President has just voiced his opinion to the EBA – so why should this be a threat? The problem is exactly the background of the case at stake, i.e. that the President imposed and immediately executed a house ban on a Board of Appeal member for alleged unlawful conduct, without adhering to the procedure prescribed in Art. 23 EPC. Who can guarantee to the EBA that such a thing cannot happen again, if the President feels that some conduct of the EBA is unlawful and sees only himself in the position to ensure the “proper” running of the Office?
I am afraid (and very sorry) to say that even among the EPO’s top officials, the principle of the Rule of Law does not seem to be respected very much. Where are you, Administrative Council?
Given the source of the above, a pro-EPO blog, we can deduce that Battistelli is rapidly running out of allies and regarding the above one comment said that “violation of all principles of due process sadly confirms the damage done to the whole institution.” Here is the full comment:
The following recent contribution refers to the situation at the EPO and mentions the lack of independence of the boards of appeal:
http://kluwerpatentblog.com/2016/11/07/rule-law-rechtsstaat-endangered-needs-defended/
In this respect the evident lack of support by the members of the boards of appeal for their colleague who has been maintained in limbo for almost 2 years now in violation of all principles of due process sadly confirms the damage done to the whole institution.
Looking forward to reading the upcoming decisions of the German Bundesverfassungsgericht on the constitutionality of an european patent system lacking a truly independent higher instance.
And also:
Kluwer Patent Blog has a post titled The Rule of Law (Rechtsstaat) is Endangered and Needs to be Defended!
It refers to the case of the suspended member of the Boa – but I quote:
“I am afraid (and very sorry) to say that even among the EPO’s top officials, the principle of the Rule of Law does not seem to be respected very much. Where are you, Administrative Council?”
Well, maybe it’s busy slaughtering chinchillas in Denmark.
Someone wrote a little poem about the situation:
Plum position falls foul of a one man gang
Representative Prunier dried out to hang
Unless the Muppets wake up fast
No functional office can this last
EPO on a highway to hell
Does the AC need some DC as well?
AC is the Administrative Council and DC is the Disciplinary Committee/s.
Regarding some of the above comments, one person asked “Why pick Germany and the Netherlands to review the cases? What about a UK review, for example? May one be more likely to exonerate El Presidente, I wonder.”
One answer to that was: “How many Epo staff work in the U.K.? Or do you propose to apply U.K. Law in NL, DE?”
Another person responded with “errrrmmmm – none, but then no EPO staff actually work under NL or DE law either.”
“French review,” said another. “And thanks for BB France!!!”
“Do not forget that the delegate from the Netherlands was (is) one of the few AC members that dares to withstand the President. The Netherlands was one of the few countries that voted against the reorganisation of the BoA,” added another person and someone who knows Prunier (presumably from the Office at The Hague) wrote:
I think all we can say is that so far the AC has shown itself to be about as much use as the proverbial one-legged man in the arse-kicking competition. Kicking arse is certainly not their forte so far.
As far as Laurent goes, I’ve known him for a long time: he’s a fiery character with strongly-held opinions who isn’t averse to voicing them. Unfortunately, some seem to think that to do so within the context of a heated discussion amounts to harassment. If that’s true, I have certainly been guilty of harassment in the past. I personally don’t believe that the Laurent I know is guilty of harassment. Harassment is about bullying and spite. He may be guilty of expressing himself too forcefully or of intemperate language, but the Laurent I know is not a bully. Unfortunately, of course, neither I nor anyone outside a certain charmed circle know exactly what he is accused of which is said to amount to harassment. So who knows?
That’s why, in proper judicial procedures, rather than the banana republic/kangaroo courts we have here, evidence is tested in open court in public (unless there is a good reason why not) and weighed by an independent arbiter who considers only the law. Here, as in the (still-unresolved) case of the DG3 judge, we have a bunch of vague rumours and innuendos put out by Batistelli in his latest communiqué to justify his partial and self-serving adjudication.
In Laurent’s case, justice is neither done nor seen to be done. Nevertheless, I have already heard colleagues who should know better opining that they ‘haven’t much sympathy’ with his position, which seems to be another way of saying: ?I didn’t like him much and therefore he had it coming’.
Is this where we are now? Trial by prejudice?
“Has the alleged victim of LP’s harassment not been recently promoted,” one person asked, “consequently should a victim of BB’s harassment not be compensated as well?…WHERE IS THE JUDGE??”
Which judge? The one Battistelli illegally suspended? Nearly 2 years ago? “The EPO is becoming sick by the day,” the comment below says. Here it is in full:
Bingo!
and guess what they did it clever to cover up the reward. Technically this was no promotion but, after a selection procedure to a position designed for a very specific profile matching precisely the domain of competence of the individual concerned, he was appointed to a position higher graded.
And the “funny” thing is that Battistelli in his address email to staff (read smear campaign) on intranet about this sad story dared to complaint that Laurent did not presented excuses!
Well to whom should he do this: to the alleged victim who is not the one who filed the complaint since he is no victim or to the top manager close to Battistelli who filed the complaint and is a true harasser (everyone knows it by now)?
The EPO is becoming sick by the day
“How can they indulge in the EPO being driven in the wall, and forced in expenses,” another person wrote. The comment is fairly long:
It cannot continue this way and at this pace.
It is high time for the AC to make clear to the president and all the yes men and women around him that immunity does not mean impunity.
How can they indulge in the EPO being driven in the wall, and forced in expenses which do not have any other aim than to satisfy the president’s wish for retaliation against the boards of appeal. After all he started by disregarding the separation of powers.
When one looks at the vote in the BFC, it appears that the states which barely contribute to the filings have decided in favour of sending the boards to the outskirts of Munich. That this implies unnecessary extra costs for the users did not seem to have played a role.
That any organism which does not change dies, this is valid as well for the EPO. Any reasonable person will agree that changes had to be carried out at the EPO. But did it have to be in such a ruthless manner?
If the social climate would be as rosy as tooted out by the higher management of the EPO, why did the president not organise Christmas gatherings with staff for many years? This alone is revealing and says a lot.
“Indeed all organisms must change,” wrote another person. “And that applies to top management as well. And the AC. Maybe time for that 5-yearly conference to address failings at the top to deal with issues?”
No doubt changes are necessary at many levels as Battistelli’s departure, which is inevitable, won’t be enough to restore a decent working atmosphere. “Can’t we simply vote to leave the EPC? It would make things so much easier,” one person proposed, as if the Brexit effect now spreads to the EPO, not just the EU. One person, on the day of the US election, wrote: “Battistelli is the Trump of the IP world. Be careful IPpussyKat. Early Uncertainty…”
Well, both Battistelli and Trump manage to stay in the race no matter how extraordinary the scandals. Battistelli kills the EPO (Office) as well as the Organisation by suspending members of the Boards of Appeal. See this new legal article titled “Disclaimers face an uncertain future at the EPO: new Enlarged Board referral”:
The EPO Enlarged Board in G 1/03 decided disclaimers that did not have basis in the application as filed were in some cases allowable, but only where a disclaimer was required to: i) restore novelty over an A54(3) document; ii) restore novelty over an “accidental” prior art document, where the anticipation was “so unrelated and remote that the person skilled in the art would never have taken it into consideration when working on the invention”; or iii) disclaim subject matter that was excluded from patentability for non-technical reasons. This allowed a disclaimers to be made that would otherwise fall foul of Article 123(2), in other words the language of the disclaimer was not included in the content of the application as filed, but only in quite limited circumstances.
A further Enlarged Board decision in G 2/10 related to disclaimers, but instead to those that were based on subject matter disclosed in the application as filed. The Board did, however, state that the test to be applied is “whether the skilled person would, using common general knowledge, regard the remaining claimed subject-matter as explicitly or implicitly, but directly and unambiguously, disclosed in the application as filed” (point 4.5.4 of the reasons). This test was, according to G 2/10, the generally accepted “gold standard” for assessing any amendment for compliance with Article 123(2) EPC.
Without the boards, especially without their complete independence, the EPO will certainly continue to fall into the abyss as patent quality declines and there is not enough capacity to correct this. A company called BioPorto has just issued a whole press release [1, 2, 3] to brag about a European Patent (EP) being approved at time of EPO turmoil and lack of quality control. How long will the perception of high value of EPs last? Based on Dutch attorneys, clients already start asking them troubling questions about the EPO.
This later comment, also posted in the above-mentioned thread, is alluding to a Battistelli Chinchilla, Bergot, and says the following about the HR angle:
Merpel,
Thanks for picking this up. Was beginning to wonder if you had been gagged.
With regard to your final witty comment “Of course this presents a shining opportunity for ambitious, concerned members of staff to take up the banner and step forward into leadership roles in the staff union. Those without dependent families and who are financially independent would be best suited to take on this career-ending role.”, I don’t remember if you previously noted that:
A. Standing for staff representation is at the president’s agreement and there is a ban on those at the end of their career. Staff don’t simply get to choose their representatives. Being close to retirement and likely to say what the heck, as you joke, is a good reason to prevent you from being a position to do so.
B. Being a representative means being moved administratively into a separate department run by his well-known HR Director. She must approve all your ‘work’ and its related travel etc. And sign off your holidays, sick leave etc. All a bit strange that staff are deliberately moved under the control of the person with whom they should negotiate/interact. Certainly one way to stifle the ‘awkward squad’ and, if all else fails, you can accuse them of harassment of each other and get them sacked (I don’t refer to Laurent’s case since that is secret).
C. And the threat to cut your pension at the presidents whim could take a column and a half to deal with as a final blunting instrument.
A “Fine Social Balance” (sarcastic) says:
BoA: “Madness is doing the same thing, over and over again, but expecting different results.”
SR: “Messing with madness is one thing, when madness is messing back, it is time to call the whole Social Conference off”
Someone then spotted “another report on the topic,” this time from IP Watch. “IP-Watch also reports that the Union Calls “Flash Demo” After EPO Fires Another Union Representative,” wrote another commenter, noting that “it was the first day of snow in Munich today.”
We’re expected to have our first day of snow in Manchester on Wednesday, but anyway, here is a portion from the article:
The Staff Union of the European Patent Office (SUEPO) called a 7 November “flash” demonstration in Munich after the office fired Laurent Prunier, SUEPO secretary in The Hague. The move dismayed employees encouraged after the Administrative Council (AC), made up of the office’s member states, last month pressured President Benoît Battistelli into backing off from two unpopular proposals for investigating and disciplining staff.
via the term “snipers of the Hague,” the source said.
[...]
The communiqué “is another example of an attempt of character assassination made by the president,” a source known as “epoinsider” told Intellectual Property Watch. Battistelli linked two disciplinary cases, the one against Prunier and one against Elizabeth Hardon,
We particularly like the part which says it “is another example of an attempt of character assassination made by the president” because we saw so much of this. In fact, the EPO even accused me of “defamation”, without even providing a clear example. They just can’t help shooting the messengers everywhere (even foreign/overseas). They’re like Stalin!
SUEPO’s public Web site has been updated to include much of the above and it currently says:
“Firings will continue until morale improves – Merpel revisits the EPO” (IPKAT, 7 November 2016).
“EPO users and staff need the Administrative Council to get a grip on current events” (IAM, 7 Novmber 2016).
“Union Calls “Flash Demo” After EPO Fires Another Union Representative” (IP-Watch, 7 November 2016).
“The Rule of Law (Rechtsstaat) is Endangered and Needs to be Defended!” (Kluwer Patent Blog, 7 November 2016), especially section 4 of the article dealing with the EPO.
“Fresh Euro Patent Office drama: King Battistelli fires union boss” – EPO president ignores his own admin council (The Register, 4 November 2016).
Earlier today someone asked the EPO if they “have a response to http://www.iam-media.com/Blog/Detail.aspx?g=85178c62-24df-403f-990d-f3f5f5c4ce51 … ?”
‘Do you believe in Fairytales,” an insider replied with a rhetorical question. “Me neither!”
The EPO will just pretend none of this is happening. What kind of social workshop actually took place on Monday and Tuesday? What a sham! The only “work” was Battistelli working on (or stroking) his big ego. █
Permalink
Send this to a friend
Posted in Europe, Patents at 7:30 pm by Dr. Roy Schestowitz
The race to the bottom of patent quality continues…
Photo credit: EPO Patent Information Conference 2016
Summary: European events that strive to expand the scope of patents so as to grant ever more patents, essentially by lowering patent quality, broadening range of applicability, and ‘automating’ translations
THERE ARE MANY PATENT events in Europe and some of them, as we mentioned last month, promote software patents in Europe, regardless of the Parliament’s opposition.
Some of the proponents of software patents are Team UPC, and despite Brexit, which effectively killed the UPC (it’s in a limbo now and cannot proceed), these bunch of people live in a fantasy land. There is no sign of the UK ratifying the UPC any time soon (or ever!), but the patent microcosm never gives up and it has just published yet another piece on the subject. Folks, get over it. Move on, the UPC is dead.
“Sadly, a growing number of EPO events and UPC events promote the software patents agenda and put at tremendous risk the frugal software industry, not to mention invite patent trolls to attack European programmers.”More relevant to today’s focus, however, is Grant Philpott, one of the (growing number of) people who came from the military and now work for Battistelli (we covered examples other than this).
People can see in the above photo (source) that much/just as we predicted (based on the abstract), he was talking about software patents using the misleading term “CII”. There are more photos in [ 1, 2] and while we don’t have the transcripts we can imagine what he said, based on the abstract which we remarked on before (there are more EPO events that interject this cheeky terminology). Last year we wrote several articles about his software patents agenda and at the end of last year we were threatened to remove an article with an E-mail from Philpott — one in which he urged his colleagues to grant patents to Microsoft faster (not all applicants are equal).
Sadly, a growing number of EPO events and UPC events promote the software patents agenda and put at tremendous risk the frugal software industry, not to mention invite patent trolls to attack European programmers. That includes yours truly. Later this month we can expect these people to congregate again and attempt to push the Trojan horse of software patents right through the gates of Europe. Someone sent us the following message earlier today, showing us that people like Winfried Tilmann (covered here many times before) will take somewhat of a lead:
Subject: Finalising the Unitary Patent Package – 30 Nov, Brussels
Finalizing the Unitary Patent Package:
Challenges and Ways Forward
Manos Hotel Premier
Wednesday 30th November 2016
Willem A. Hoyng, Partner, Hoyng Rokh Monegier
Pierre Véron,
Lawyer, Member of the Paris Bar
Véron & Associés
Frank Van Coppenolle
Head of High-Tech Patent Team, Gevers
European Intellectual Property Architects
Bruno van Pottelsberghe
Economist, Solvay Chair of Technological Innovation
ULB
Prof. Dr. Winfried Tilmann,
Of Counsel
Hogan Lovells, Düsseldorf
Darren Smyth
Partner, Patent and Design Attorney, London, EIP Europe LLP
Author for The IPKat & IP Alchemist
Member of the Editorial team for the Journal of Intellectual Property Law & Practice
On December 2012, after a 40 year long quest, the European Parliament and the European Council finally reached a formal agreement on two EU regulations, making the European Patent with Unitary Effect (EPUE) an achievable prospect. With almost all EU member states – except for Spain and Croatia – participating in the enhanced cooperation, the legislation is supposed to come into force by the end of the year 2016/beginning 2017.
Experts, however, argue about the intended cost saving factor as well as the theoretical simplicity the EPUE package will bring, being mostly concerned about the patchwork nature of the system. Also, with the recent Brexit vote, additional straits are adding up, making the future of the Unitary Patent unclear.
This timely Symposium will offer an opportunity to inform and find out more about the current developments and challenges regarding the Unitary Patent and the Unitary Patent Court. The conference will evaluate advantages and disadvantages, build strategies for businesses on how to proceed and support the exchange of information and best practices with experts, practitioners and policymakers at EU level.
Delegates will also:
Identify the latest developments regarding UP & UPC
Qualify various issues, opportunities and challenges regarding UP
Prepare for any eventuality and develop a successful transition strategy
Analyse ways forward and challenges for the industry in Europe
Examine practical issues such as the recruitment of judges, court procedures, fees and logistics
Find out more about methods to prevent UPC bifurcation, infringement and revocation
Develop strategies for protection and new portfolio creation under the new system
Discuss the potential impact of the Brexit vote on the future of the EPUE package
For further details, please refer to the enclosed event abstract and programme. Do feel free to circulate this information to relevant colleagues within your organisation.
In the meantime, to ensure your organisation is represented, please book online or complete and return the registration form at your earliest convenience in order to secure your delegate place(s).
Kind regards,
Conference Team
Public Policy Exchange
Tel: +44 (0) 20 3137 8630
Fax: +44 (0) 20 3137 1459
It’s stuff like this which motivates us to work even harder against the menace of patent maximalism — that same misguided plan which threatens to undermine not only the EPO but the whole of Europe. And for what? Foreign multinational corporations and their patent law firms (like the above people)? █
Permalink
Send this to a friend
Posted in America, Asia, Patents at 2:42 pm by Dr. Roy Schestowitz
Identify the patterns of patent trolling to effectively combat them
Summary: The latest examples of patent trolls around the world and a report about their activity or what fuels their growth (mostly software patents)
PATENT trolls thrive in countries that have software patents. It started with the USPTO (US), it later started to happen in the EPO (Europe), and it is already becoming an epidemic in SIPO (China), as we repeatedly warned in recent months. There are several reasons for this correlation and we explained these before.
Software patents are the weapon of choice of patent trolls in almost all cases (some say 70%). “Of the 16 patent lawsuits filed today,” wrote United for patent Reform the other day, “11 were filed by patent trolls — 69%. It’s time for Congress to take action to #fixpatents!”
They are right, but they suggest a fix that tackles trolls themselves, not the patents they tend to rely on. One part of the solution, whilst also pursuing end of all software patents, was mentioned by the EFF the other day when it wrote: “This bill would close the venue loophole in patent lawsuits. https://act.eff.org/action/fight-patent-trolls-support-the-venue-act-of-2016″
This mostly deals with the pattern of patent trolls choosing Texas. It does not deal with trolling itself or the type of patents that they usually buy to use against a large number of companies, especially small ones that cannot afford going to court. Vera Ranieri from the EFF very recently published the article “A Bit More Transparency in Patent Lawsuits” and in it she wrote:
Should patent lawsuits filed in federal courts be hidden from the public? We don’t think so, especially where a patent owner may be suing multiple people based on the same claim. Apart from the general principle that legal processes should be open to the public whenever possible, as a practical matter sealed filings prevent other people under legal threat from the same person from learning information that may be crucial to their own defense.
That’s why we were concerned when we noticed that numerous court filings and at least three court orders were made entirely under seal in a patent case. We contacted the parties to the lawsuit, Audible Magic and Blue Spike, and asked them to file public versions of significant court filings, redacting only information that was truly confidential. Audible Magic quickly agreed to EFF’s request. However, Blue Spike opposed it entirely, forcing EFF to intervene in the case and ask that the court order the filing of public-redacted versions of the sealed filings.
The court granted EFF’s motion to intervene and our motion to unseal. The court ordered Audible Magic and Blue Spike to submit redacted versions of any document a party wished to keep partially sealed. Again, Audible Magic quickly complied. The documents revealed, among other things, that Blue Spike had not created a product it advertised, called the “Giovanni Abstraction Machine,” despite Blue Spike’s public statements indicating otherwise. We also discovered allegations that Blue Spike’s owner, Scott Moskowitz, took the technology that formed the basis of some of Blue Spike’s patents from company called Muscle Fish,1 and therefore shouldn’t have gotten those patents in the first place. (The parties settled before trial, thus leaving the question of Moskowitz’s alleged misappropriation, and also the related validity of Blue Spike’s patents, unanswered.)
This is a very famous (or infamous) case and it’s one among many cases that EFF speaks about it, directly or indirectly. The focus on trolls at the EFF was very prominent last month [1, 2, 3], but also at the end of the month it published this article (cross-posted in TechDirt) about stupid software patents. Here is the latest ‘winner’:
Stupid Patent Of The Month: Changing The Channel
Is somebody really claiming to have invented a method for switching from watching one video to watching another?
This question comes from a lawyer at the New York Times, as an aside in an interesting article about the paper’s response to a defamation threat from a presidential candidate. Apparently, that defamation threat distracted the his legal team from their work on another task: responding to a patent troll. Intrigued, we looked into it. The patent troll is called Bartonfalls, LLC and its patent, U.S. Patent No. 7,917,922, is our latest Stupid Patent of the Month.
The patent is titled “Video input switching and signal processing apparatus.” It includes just two pages of text and, as the title suggests, describes an apparatus for switching between channels that come from different inputs (e.g. between cable channels and free-to-air broadcasts). The patent is directed to the equipment found in and around a 1990s television (such as VCRs, cable converters, satellite tuners). It does not even mention the Internet.
What’s noteworthy here is that again (as usual) we’re confronted with the description of a ‘pure’ software patent. It should never have been granted in the first place. It gave ammunition to trolls who produce nothing and sue everybody.
Over in Japan, based on what IAM says, patent trolls try to paint themselves “medical”. It’s the same trick which is so often used by the world’s largest patent troll, Intellectual Ventures, in order to pretend not to be a troll and to actually have something to offer to society. The corporate Japanese media (English-speaking) has just published “Outdated Design-Patent Laws Thwart Progress”, signaling a sort of worrisome imitation of the USPTO (where design patents are now poised to come under Supreme Court scrutiny).
Over in China, based on some other reports [1, 2], there a bubble of patents in the making. IAM gets rather excited about China’s SIPO becoming a cesspool of crappy patents, including software patents. Based on this one new report, a WiLAN subsidiary hits China, showing that companies from North America now run after everyone and everything in the Land of the rising Sun (Japan) and its much bigger neighbour. Patent trolls in China are not a new ‘thing’; but right now they gain a foothold and it’s a cause for concern because the EPO collaborates with them quite a lot. In fact, SIPO is like the role model of Battistelli, who doesn’t mind the quality of patents, just quantity (or short-term profit). Here is an IAM article that mentions software patents in China as though they’re desirable (IAM is a longtime booster of software patents). To quote:
Last Thursday, China’s State Intellectual Property Office (SIPO) published new draft guidelines for patent examination. Amid tweaks that will be greeted by pharmaceutical innovators, there are also changes to the standards for software patenting that should be a boon to companies seeking protection for computer programmes, something that has been increasingly difficult to obtain in the US and some other markets. SIPO says the measures are driven by “urgent demand” from innovative industries. It is the latest reminder that in the post-Alice environment, many observers say software protection is easier to obtain in China than in the US.
The USPTO’s senior counsel for China, Mark Cohen, drew attention to the proposed new rules in a blog post last week, saying that they “appear to loosen the standards for obtaining software enabled inventions”. According to Cohen’s translation, a section of the Patent Examination Guidelines which asks applicants to describe “which parts of the computer programme are to be performed and how to perform them” is amended to add that “The components may not only include hardware, but may also include programmes”. If adopted, the guidelines would also make it easier to obtain business method patents, as they provide that: “Claims related to business methods that contain both business rules and methods and technical characteristics, shall not be excluded from the possibilities of obtaining patent rights be Article 25 of the Patent Law.”
The IAM Weekly E-mail, distributed on November 2nd, mentioned this as well and said:
Subscribe
IAM Weekly
Editor's round-up
See current issue
The death of software patents has been greatly exaggerated, at least
in China and the United States. On the IAM blog this week, we reported
on new examination guidelines at the Chinese State IP Office which
seem to indicate that it will be easier to get protection for
computer-implemented inventions in the country than it has been thus
far. Meanwhile, in an exclusive article the former chief patent
counsel at Microsoft explained why it has been a very good six months
for US software patent owners. The European Commission has just
released a detailed report on patent assertion entities which
concludes that troll-like behaviour is unlikely to be seen in Europe
for a number of reasons, including the preponderance of high-quality
patent rights and comparatively low litigation costs. Elsewhere, we
looked at Hillary Clinton’s IP policies and focused on a major
BlackBerry licensing deal in Asia. There was news, too, of
confidence-boosting third-quarter results from InterDigital, as well
as claims from its CEO that a recently launched Internet of Things
licensing platform could deliver significant revenue boosts in the
near future.
Joff Wild
Editor
IAM ‘magazine’ is meanwhile grooming yet another patent troll. It started last week and we expect to see more of that from IAM, which is now actually receiving money from some infamous patent trolls like MOSAID/Conversant.
One more item of news regarding patent trolls came from the trolls expert, Joe Mullin (who has written about them for about a decade). He decided to dive into the dark operations of ArrivalStar and here is what he found:
Since 2006, hundreds of US businesses have received letters informing them that they infringe patents belonging to Martin Kelly Jones, who briefly ran a business called “BusCall” in the early 90s. The Jones patents, owned for many years by a company called ArrivalStar, have been called out repeatedly as one of the most egregious examples of patent abuse.
ArrivalStar sent out hundreds of demand letters, often targeting small companies that couldn’t hope to afford a drawn-out defense of a patent infringement suit. It also took the unusual step of suing public transit agencies, saying their bus-tracking systems infringe Jones’ patents. The patents were moved into a new entity called Shipping & Transit LLC last year.
Jones and the lawyers who work with him have squeezed royalty payments from over 800 companies over the years, but little has been known about him, outside the short explanation included in the demand letters he sends out. Now, Jones has made what appear to be his only public comments since his inventions launched a decade-long campaign of lawsuits, in statements to The Wall Street Journal.
It’s sad to see that patent trolls are still treated with some level of recognition and companies like IBM have begun acting more like them (assimilation) because all they have is a huge pile of patents. Here is Manny Schecter from IBM saying that “If apple slicer for eye-appealing apple slices (US9427103) is eligible for patenting, so too should be software…”
MinceR from our IRC channels said that’s “pretty weak argumentation” and Toby agreed, saying that he too noticed.
As if one bad patent supports another… what utterly poor logic from Mr. Schecter. People elsewhere have responded to this tactless tweet of his.
Speaking of patents that are too problematic to defend, how about patents you’re not allowed to get away from, or SEPs as they’re sometimes called (a tax on any implementation with conformance)? It is truly an abomination w.r.t. the raison d’être of patent systems, yet here is MIP writing about it, calling it a “conundrum” rather than a travesty.
Negotiations over patent licensing are tricky. One bad sign is if parties start discussing standard-essential patents in detail
Michele Herman of Metabl and Richard Taffet of Morgan Lewis staged a mock negotiation yesterday as part of the session called “The Nuts and Bolts of Licensing: Strategies for Negotiating to Yes.”
Negotiations over patent licensing are tricky enough. But Herman said it’s a bad sign if parties start discussing standard-essential patents (SEPs) in detail.
In the case of SEPs, there are already many trolls and parasites out there (like WiLAN, which now expands to China). When does the patent system become simply an obligatory tax authority rather than a system where one can license to copy (having found something innovative), rather than comply/adhere to industry standards? RAND/FRAND also comes to mind. █
Permalink
Send this to a friend
Posted in America, Patents at 1:46 pm by Dr. Roy Schestowitz
But these are only about 10% of all cases (can be counted with the fingers of one hand this year), i.e. still the small if not minuscule minority
Summary: A roundup of District Court and Court of Appeals for the Federal Circuit (CAFC) news regarding software patents
HAVING just covered the good news, namely the decline/descent of software patents, now come the less convenient news, or the news that can throw a wrench at the party if one blindly believes the spin that accompanies the news. The ascent of Alice since 2.5 years ago profoundly changed everything in the domain of software patenting. It’s not hard to see why and it’s difficult to argue against it… unless one is a paid lobbyist like David Kappos, former USPTO Director.
First we have the case of Evolved Wireless, LLC v Apple Inc., a District Court (not Texas for a change) where the patents were ruled not ineligible. Here’s the gist of it:
The court denied defendants’ motion for judgment on the pleadings on the ground that plaintiff’s wireless communications patents encompassed unpatentable subject matter because the claims were not directed toward abstract mathematical algorithms
If this decision is appealed and reaches CAFC, expect the patents to die. Just look at CAFC’s recent track record. It’s as hostile as can be toward software patents and a key judge, the one responsible for software patents’ emergence, changed his mind and slammed software patents in a key decision involving the world’s largest patent troll, Intellectual Ventures. We already published several articles about this historic decision.
Meanwhile, says this patent attorney, “US Pat 7,412,510, Software Patent Survived Alice at the CAFC” and another proponent of software patents says “inexplicably CAFC did NOT kill this claim under 101: “computer code … to enhance” an accounting record http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1180.Opinion.10-28-2016.1.PDF … HOPE YET??”
What they hope for is that CAFC will change its course and stop “killing” (their term for invalidation) software patents, but they’re cherry-picking cases most of the time. It lets them shower potential or existing clients with dangerous optimism.
Michael Loney, writing from New York, says that “Federal Circuit finds software claims patent eligible for fourth time this year,” but four in a year is not much. To quote Mr. Loney:
“There is no such single, succinct, usable definition or test” for defining an abstract idea, the Federal Circuit said while allowing a software patent to survive a Section 101 analysis for the fourth time since May
Here is another article about this:
One major take away from this case is that this panel of the CAFC clearly believes software is patent eligible subject matter. At least some of the representative claims discussed (e.g., claim 1 of the ‘065 patent, page 20) is a computer readable medium claim reciting computer code for performing a series of operations. This is very welcome after comments in recent cases from certain judges suggesting that software should be per se unpatentable.
This decision can probably be appealed to the Supreme Court, at risk of overriding Alice. Here is corporate media, namely Barbara Grzincic at Reuters, covering this latest development as well:
A long-running patent fight between network-software rivals Amdocs (Israel) Ltd and Openet Telecom Inc will go at least another round, after a U.S. appeals court overturned a ruling that had invalidated four of Amdocs’ patents.
Other coverage came from lawyers’ sites [1, 2, 3] and pro-software patents lobbying sites [1, 2] where there are no disclosures about vested interests. Some of these articles contain misleading claims, such as “Federal Circuit seems to be loosening the reins on 101 software subject matter disqualifications,” even though CAFC is actually ruling against software patents in a large number of cases, especially high profile cases (like the aforementioned Intellectual Ventures case). No matter what the patent microcosm tries to say (usually spin), CAFC is basically trashing a lot of software patents and the recent decision from Judge Mayer was a death knell to many of them. Lawyers’ sites are understandably desperate for spin because spin sells (it attracts their target audience). The same happens in Europe; European “IP” news sites try to maintain an amicable relationship with the EPO, so they only say good things or nothing at all.
“Has IAM ever given a platform to opponents of software patents and to pessimists? It’s a rarity because that’s not what readers (paying subscribers) want to see.”Speaking of one such European “IP” ‘news’ site, once again it gives Bart Eppenauer (from Microsoft) a megaphone, and as usual in defense of software patents. He is trying to say that all is well for software patents, which is utter nonsense. Here is what IAM wrote under the headline “Key CAFC decisions confirm software is patentable in post-Alice world, says Microsoft’s former patent chief”.
Has IAM ever given a platform to opponents of software patents and to pessimists? It’s a rarity because that’s not what readers (paying subscribers) want to see.
Well, this sure is getting shallow and tiresome. Why don’t they just recruit Eppenauer and give him his own column at IAM? What he talks about isn’t news; it’s not even a new decision, just more entertainment of old staff with attribution to an overhyped person whom they like to grease up a lot (almost every month). █
Permalink
Send this to a friend
Content is available under CC-BY-SA