Summary: A look at some of the latest spin and the latest shaming courtesy of the patent microcosm, which behaves so poorly that one has to wonder if its objective is to alienate everyone

THE patent reform in the US (AIA, especially after Alice) brought us the blessing known as PTAB, which is responsible for the immediate and permanent elimination of many software patents and the reduction in litigation. It lowered confidence in even more of these software patents (potentially hundreds of thousands of patents).

“”Idiotic”, “impotence”… what next? Will Watchtroll accuse judges and PTAB of rape and pedophilia too?”PTAB continues to scare people who made a living from software patents (not software, just patents). With his habitual insults directed at PTAB, Gene Quinn (Watchtroll) continues to fling criticisms at PTAB, bemoaning the latest decision which he summarises with the word “idiotic” in the image (and IBM’s patent chief actually boosts these people, who also attack judges! See the image at the top!).

“Idiotic”, “impotence”… what next? Will Watchtroll accuse judges and PTAB of rape and pedophilia too? Frankly, these people are a lot more rude than anything we have ever seen and some of those people actually advertise themselves as professionals. “If a machine is patent ineligible bc it is an abstract idea,” Watchtroll wrote in Twitter, “no point in keeping powder dry. The 101 fight is now.”

He wants a “fight”.

“Telling Watchtroll about software development is an exercise in futility; he doesn’t even know how software works.”Well, the Section 101 fight is over. The patent microcosm lost. Most software patents are dying and this is good because, as Benjamin Henrion put it in his reply, “patents also destroyed software development.”

Telling Watchtroll about software development is an exercise in futility; he doesn’t even know how software works. I debated this in length with him and then he chickened out, blocking me in Twitter.

Watchtroll (a front for the patent microcosm, not just one person) is now lobbying Trump to makes Patent Chaos Again (as expected, with lots more of this lobbying to come).

“These have included enabling the PTO to attack patent validity in a second window,” says the article, “attacking classes of inventions such as software and medical diagnostics…”

“PTAB is a lot more professional because these financial incentives hardly exist, which makes their staff more objective.”Nobody is “attacking” and there is no “fight”. As we pointed out here before, the attorney known as Patent Buddy uses words like “survive”, “kill” etc. rather than use terms that don’t pertain to war. The people actually call PTAB a “death squad!” Picture that for a connotation.

Here is Patent Buddy saying about the above case: “In the MRI-101 Invalidation Decision, the PTAB Reversed the Examiner finding eligibility under 103, but not 101.”

Examiners at USPTO have historically been rewarded to just award lots of patents, irrespective of quality or prior art (which can take a long time to assemble and study). PTAB is a lot more professional because these financial incentives hardly exist, which makes their staff more objective.

Earlier this week we found this lawyers’ site claiming that “[t]he tide may be turning in the Section 101 landscape and it is making waves in the patent practice area.” No, it’s not. The patent microcosm lives in wonderland and only pays attention to a few CAFC decisions that suit their agenda. The article says that CAFC’s “latest rulings on the issue—Enfish v. Microsoft Corp., BASCOM Global Internet Services v. AT&T Mobility, and McRO v. Bandai Namco Games America—possibly signal a new direction for patent eligibility in a post-Alice era. On the damages front, the U.S. Supreme Court grabbed headlines with its highly anticipated ruling in Samsung Electronics v. Apple, the first design patent case to be examined by the Court in over a century. Our panel of experts discussed these issues as well as patent trends on the horizon in 2017.”

“There’s no “win”, it’s not a game. It’s also not a “war” or a “fight”.”We actually debunked this just recently (December 27^th), in relation to similar claims about CAFC cases. Less than a handful of cases (less than one hand’s fingers) don’t change years of patent invalidations, including by Judge Mayer, whom Watchtroll is insulting (see above again).

CAFC is soon going to decide whether challenging low-quality USPTO patents (through PTAB) is acceptable, says MIP, noting about a particular case that CAFC “has granted en banc rehearing in Wi-Fi One v Broadcom. The court will consider whether judicial review is available for a patent owner to challenge the USPTO’s determination that the petitioner satisfied the timeliness requirement governing the filing of IPR petitions” (these are the petitions that typically initiate invalidation by PTAB).

Regarding this new article from lawyers’ media, one person wrote, “CAFC vs. PTAB decision discrepancies: Who wins?”

There’s no “win”, it’s not a game. It’s also not a “war” or a “fight”. In fact, most of the time CAFC agrees with PTAB, so the framing of infighting is simply incorrect and inappropriate. To quote the actual article:

Apple Inc. has won at least a moral victory in a fight with the U.S. Patent and Trademark Office over touchscreen technology.

The U.S. Court of Appeals for the Federal Circuit agreed with Apple on Tuesday that the patent office failed to sufficiently explain why Apple’s method for reconfiguring touchscreen icons is unpatentable due to obviousness.

Apple applied for a patent in 2009 on its method of using a sustained touch to activate an icon, which then allows a person to drag the icon to a new location on the screen. A patent examiner found the claim obvious in light of separate prior inventions on sustained touch and dragging. Combining the two inventions “would be an intuitive way” to rearrange touchscreen icons, the examiner concluded and the Patent Trial and Appeal Board affirmed.

This is just one of those exceptions where the CAFC does not fully agree with PTAB and wants the judgment reassessed.

The bottom line is, things are progressing in a positive direction as the US patent system persists in improving patent quality. It’s well overdue. Here we have a new case which “focuses primarily on §101 issues.”

“The bottom line is, things are progressing in a positive direction as the US patent system persists in improving patent quality.”To quote: “The oral argument of the week is MACROPOINT, LLC v. FOURKITES, INC., No. 2016-1286 (Fed. Cir. Dec. 8, 2016) decided by a Rule 36 judgment.”

Those who claim that Section 101 is losing its potency or that CAFC is at war with PTAB or anything like that are being extremely dishonest and typically — if not always — they are the ones directly profiting from these misconceptions/distortions.

Watchtroll and its ilk need to go away or not be taken seriously. Time after time we have demonstrated that the site’s purpose is to attack those who don’t agree (even judges!) and sometimes to organise 'echo chamber' events so as/in which to lobby officials.

Watchtroll is to the patent world what Trump is to civilised politics. █

Reference: Trump escalates attack on ‘Mexican’ judge (this ‘Mexican’ judge was born in Indiana actually)

Summary: In light of Trump’s awkward history with judges (e.g. attacking them) one can hope that upcoming patent cases at the highest court won’t be affected by his pro-big corporations agenda

THE PATENT landscape in the US has changed a lot in recent years, especially after AIA (half a decade ago). Software patents, for instance, are a dying breed. This does not mean that things will continue to improve; they can get a lot worse as soon as a new President is inaugurated, to the chagrin and regret of many Americans. Lobbying of Trump has already begun, for instance by the Internet Association (large corporations, not what it sounds) and by IPO. They want the old order of things and they represent a threat to software developers.

AIPLA, another such entity which acts like a think tank (like oil companies in favour of offshore drilling), is telling the USPTO that they want more secrecy. It makes sense for them. As Patently-O put it the other day, “I would say even after/if the USPTO adopts a rule, be very careful if you have patent agents communicating directly with clients, without supervision of a lawyer, because there’s also the possibility that a court won’t follow the Queen’s University case and hold there is no privilege, anyway. That’s already happened in Texas.”

Well, as new articles continue to stress (the latest being, e.g. [1, 2, 3, 4, 5]), Texas may soon end its status as trolls’ capital, but only if SCOTUS rules rationally. This is yet another blow to the ‘old guard’; it represents patent progress and improvements that favour ordinary people, not oligarchs like Trump and a lot of his prospective cabinet members.

We urge people to support groups like the EFF, which growingly mention software patents and openly oppose these. Latest from the EFF’s Daniel Nazer [1, 2] is this article about this month’s “Stupid Patent”, which he explains as follows:

As you head home for the holidays, perhaps passing through a checkpoint or two, take some time to think about U.S. Patent No. 6,888,460, “Advertising trays for security screening.” The owner of this patent, SecurityPoint Holdings, Inc., has sued the United States government for infringement. SecurityPoint recently won a trial on validity [PDF] and the case will now proceed to a damages phase. So, unless the validity decision gets overturned on appeal, we’ll soon be paying tax dollars for the idea of moving trays on carts.

[...]

In a trial before the Court of Federal Claims, the government argued that this claim was obvious because moving trays using carts was well-known in many contexts. The court disagreed. The court suggested that even if using carts to move trays was well-known, the government needed prior art specifically for security checkpoints (arguably the government had such evidence, but the court disagreed on that point too).

In fairness to SecurityPoint, evidence at trial suggested that it had developed a good system for managing trays and carts within the confined space of an airport security checkpoint. But the patent’s claims are far broader than any specific solution. This is something we often see in patent law: someone develops a (fairly narrow) innovation, but then broadly claims it, capturing things that are well-known or banal. This sort of claiming hurts follow-on inventors who develop their own ideas that wouldn’t infringe any narrower claim, and weren’t invented by the patent holder. But because the broader claim is allowed, their own inventions become infringing. Here, claim 1 is not limited to any particular kind of cart, tray, or scanner. The claim really reads on using a couple of carts to move trays and, in our view, should have been found obvious.

Nazer’s colleague at the EFF has meanwhile advised institutions like universities not to give their patents to trolls. They actually mean “patents”, not “inventions” (as the headline puts it). These are not the same thing. “Research funded by the United States government should benefit everyone,” the EFF explains. “That’s why EFF so strongly supports the idea of writing an open access requirement for federally funded research into the law as soon as possible. It’s also one reason why we recently launched Reclaim Invention, a campaign asking U.S. universities to rethink their patenting policies. It’s crucial that federally funded research be made available to the public so that anyone can read and use it, not just people with institutional connections. But even if the public can read government-funded research, patents on inventions that arise from it can still fall into the wrong hands and undermine the public interest.”

Some universities, desperate for cash (especially in periods of privatisation — the Trump way!), are hoping to make a ‘quick buck’ out of patents that the public actually paid for. This is going to become a bigger issue if schools and universities operate more and more like businesses in the coming years, enjoying no status like they did decades or centuries ago. It means that some universities, with staff that receives public grants, will become litigation mills, directly or indirectly (via trolls).

Speaking of desperate appeals for cash, this new article about Chapter 11 Bankruptcy (a process Trump has gone through plenty of times to secure his billions) says that last “week’s corporate news roundup includes the holding by a U.S. federal appeals court that secured indenture noteholders were entitled to a make-whole premium notwithstanding the issuer’s chapter 11 bankruptcy case, the addition by companies in their securities filings with the SEC of risk factors relating to the outcome of the U.S. Presidential election, and the termination by the PTAB of IPR proceedings as to patent claims between Microsoft Corporation and Enfish LLC, resulting in a non-appealable win for Enfish.”

This goes under “TERMINATION OF ENFISH-MICROSOFT INTER PARTES REVIEW PROCEEDINGS IMPLIED AS UNAPPEALABLE AFTER FEDERAL CIRCUIT DECISION AGAINST MICROSOFT” (a case we covered here before).

In our last article we reminded readers that after Enfish the Court of Appeals for the Federal Circuit (CAFC) ruled repeatedly against software patents, including in very high-profile cases. Unless the Supreme Court with some Trump-appointed Justices chooses to reverse Alice (won’t happen any time soon based on the dockets), it is safe to say that political impact on patent law is still just a distant threat. █

“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president. For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.” –Justice Ginsburg

End of the road for the notorious patent mess that only law firms consistently profited from?

Summary: The US Supreme Court’s Justices may soon put an end to the business model or the modus operandi of patent trolls

AS WE NOTED earlier this week, the US is no longer a good environment in which to be a patent parasite. Watch what happened to Apple after the Supreme Court had intervened (yes, it’s still in the news!), not just to small parasites that are commonly known as patent trolls. It’s rather revealing and the numbers from a new paper of Lemley et al reaffirm the trend.

All those recent SCOTUS decisions with yet more decisions to come (e.g. Lexmark, which is also still in the news, courtesy of John C. Bacoch and William R. Boudreaux from Brinks Gilson & Lione and MIP’s Natalie Rahhal) serve to show that SCOTUS, in its current composition (Justices), is rather intolerant towards patent bullies.

The reforms in the US (regarding patents) seem to be working out and weeding out “Patent Trolls Central”, the Eastern District of Texas (EDTX). Here is how Patently-O has just put it: “Goodbye E.D.Texas as a Major Patent Venue”

The headline may be sensationalist and premature, but here is how Patently-O justifies it:

In a case with the potential to truly shake-up the current state of patent litigation, the Supreme Court has granted certiorari in the patent venue case TC Heartland v. Kraft Food (SCT Docket No. 16-341). An 8-0 reversal of the Federal Circuit is quite likely, although my headline is likely premature.

Michael Loney, writing from New York, has also just covered the subject:

Supreme CourtThe US Supreme Court has granted cert to TC Heartland v Kraft Food Brands Group. The court will review the Federal Circuit law that allows a high concentration of patent cases in one district.

We wrote about this case before and so has the EFF (many times). For the uninitiated, EDTX boasts courts that are intentionally tolerant of plaintiffs, software patents and trolls. That’s how they used to attract ‘business’ or ‘clients’ (parties being sued or suing) and that’s why many patent law firms are based (or relocated to) there. █

Summary: Battistelli turns bad into worse by spitting on the very notion of accepting justice (from the highest court in The Hague or even the UN in this case)

THE system in Europe is often assumed to be vastly superior to many of the world’s systems. We used to take pride in the EPO being so much better than the USPTO and, among many things, rejecting software patents. We cannot say this anymore because Battistelli’s role model these days seems to be SIPO in China (where the quality of patents is about as low as it can get, it’s just an assembly line of papers). Battistelli “is boxing out of the corner now,” one reader told us in relation not only to the social issues but also the technical issues (patent maximalism is a disease that keeps spreading to the EPO). Applicants quickly realise that the value of EPs is sinking. Why would they even bother with pricey new applications, let alone renewals? Many of them won't. They’re gradually waking up to the destruction left behind by Battistelli (rushed examination, brain drain, etc.) and the injustices demonstrated by miscarriage of justice not just against clients [sic] but against hundreds if not thousands of EPO employees (approximately/at least a hundred cases in just 2 years, some impacting multiple employees per case).

“Applicants quickly realise that the value of EPs is sinking.”What the EPO does about this "crisis" (in the Board's own words) is the equivalent of shuffling chairs at the deck of the Titanic. Watch what is showing up in today’s news:

The EPO is expected to refuse to record assignments that do not satisfy the foregoing requirements.

Accordingly, we believe that in the future all assignments should be signed by all parties. Regarding the cases where an assignment has been executed but has not been recorded at the EPO, and where the assignment document was only signed by the assignor(s), you may consider obtaining a second signature from a representative of the assignee acknowledging acceptance of the rights. As another alternative, it might be possible for both parties to sign a “confirmatory assignment” to confirm that an assignment that took place on a date prior to the effective date of these new guidelines.

Given the low quality of patents at the EPO (granted in recent years, not the older ones which have not yet expired), putting more barriers and limitations is the last thing that should be on the agenda. Sooner or later, suggest internal figures, the backlog or pile will have dried up, making the Office underworked and rendering thousands of EPO examiners redundant.

Based on the latest decisions from ILO (or ILO-AT), the Office will also have to spend a lot of time and resources on new ‘trials’. This would involve even more people who otherwise should be carrying out their duties as examiners. Look what a sordid mess Battistelli has created. He should resign, but that alone would not solve all the issues.

“Lacking any sense of shame, Battistelli proposes that the Administrative Council, which was supposed to kick him out years ago, should amend the internal law of the EPO relating to not only the Appeals Committee but also lots of other bodies (including the Disciplinary Committees).”Looking at Battistelli’s appalling reaction to these decisions (leaked here yesterday), the lies are beyond amazing. The guy must be crazy and he’s unable to take responsibility. Instead he’s trying to hold unions whom he’s busting accountable. To him, the fact that there was gross injustice for years is the fault of the Central Staff Committee, which was not nominating representatives for the Appeals Committee. Battistelli has publicly (in the Intranet) accused them of “failure to comply with statutory obligations,” in the same way that he defamed various other people or groups in the Intranet as recently as one month ago (we leaked the example about Mr. Prunier).

Lacking any sense of shame, Battistelli proposes that the Administrative Council, which was supposed to kick him out years ago, should amend the internal law of the EPO relating to not only the Appeals Committee but also lots of other bodies (including the Disciplinary Committees). To quote Battistelli, “if the Central Staff Committee, despite an invitation to do so, fails to make appointments to these bodies, the President shall take appropriate steps to ensure and make the necessary appointments, such as calling for volunteers or drawing lots from among eligible staff members.”

“WIPO looks like very small potatoes in comparison to this.”So basically, Battistelli now tries to ‘legalise’ his own abuses after he committed these abuses. How does that not make Eponia a Banana Republic or rogue state way ahead of even Turkey in 2016? The ‘King’ basically places himself above the law, allegedly buys votes, and refuses to accept a simple judgment even from a UN agency (it’s the only tripartite UN agency). WIPO looks like very small potatoes in comparison to this.

To quote (verbatim) what Judgment 3785 actually said on page 6: “While it is true that the fundamental functions of that body must not be paralysed, it is also true that the body itself cannot be changed through a changed composition. The balance sought to be achieved by the composition of this body, which includes members appointed by the Administration and the staff representation, is a fundamental guarantee of its impartiality. That balanced composition is an essential feature underpinning its existence. Without it, it is not the Appeals Committee.” █

Summary: Microsoft’s continued fascination with and participation in the effort to undermine Alice so as to make software patents, which the company uses to blackmail GNU/Linux vendors, widely acceptable and applicable again

OUR longest article yesterday focused on poor advice — either deliberately bad advice or simply influenced by the echo chamber — regarding software patents. The patent microcosm is in growing denial over US courts invalidating software patents granted by the USPTO using Alice, or even patents invalided by PTAB (in much larger numbers).

Some days ago we saw this report from the 2016 International Women’s Leadership Forum, courtesy of patent maximalists.

As can be expected, it was somewhat of an echo chamber not in the gender sense but in the agenda sense. Microsoft was there too and here is the relevant part:

The first practical step, said Julie Kane Akhter of Microsoft, is to learn from cases where the patent has been upheld, such as Enfish, Bascom and Planet Blue.

“In the Enfish patent, for example, they were actually improving the operation of the computer itself,” she stressed. Lessons from the Enfish decision included: the specification was really important; consider identifying the technical problem in the specification; and avoid being too high level in the claims.

She said Enfish provides several practical strategies for applicants: utilise the interview; talk about the technical improvement; and cite Enfish! Lessons from Bascom are: consider discussing prior solutions and their drawbacks; highlight lack of preemption; and keep drafting software applications! And tips from Planet Blue are: argue the examiner has determined the idea in the claims at too high a level; argue the claim is specific enough and improves the technology; and draft claims with realistic scope and technical effect.

For those who forgot or have not been paying attention, Enfish ended up as a pro-software patents caselaw and Microsoft pays David Kappos, former Director of the USPTO, to lobby along those lines. He keeps trying to eliminate Alice (a Supreme Court case) as caselaw. Various patent law firms too still lick their lips over software patents and try to undermine Alice, hoping to ‘rewrite’ it with lower-level cases such as Enfish or Bascom.

On November 30^th Dennis Crouch wrote about Microsoft v Enfish (not the other way around), nothing that it “Turns Out the Claims Are Obvious”. This is a PTAB case:

After instituting review, the Patent Trial and Appeal Board found some of the patent claims invalid as anticipated/obvious. On appeal, PTAB factual findings are generally given deference but legal conclusions are reviewed without deference. After reviewing the claim construction and rejections, the Federal Circuit affirmed in a non-precedential decision.

It’s no secret that Microsoft’s software patents are rubbish; their low quality was the subject of many old articles here. Moreover, the company’s selective and hypocritical views on software patents were noted here way back in the i4i days. In another new article by Dennis Crouch he says that “PTAB judges are so well trained in the complexity of technology and patent law,” which is probably something that most patent courts lack.

“It’s no secret that Microsoft’s software patents are rubbish; their low quality was the subject of many old articles here.”Microsoft is still promoting software patents and in the words of MIP: “Great first panel at #ipwomen Forum discussing practical steps for software patents post-Alice & overcoming S101 objections @MicrosoftIP pic.twitter.com/cGWe9qrGPh” (Microsoft hates Linux too, except when it taxes it with patents, in which case it’s more tolerable to “MicrosoftIP”, the troll entity of the corporation). The people who covertly extort and blackmail Linux on behalf of Microsoft — all this while shaping patent law for the company’s bottom line — are also mentioned here. To quote: “It’s the @MicrosoftIP networking break at the #ipwomen Forum. Time to make some new contacts! pic.twitter.com/YwajQuWadV”

To be fair, Microsoft is part of a broader movement here. But it’s role is notable. Microsoft is a key player in this.

The following crossposted article [1, 2], for instance, tries to leave Alice behind. Another crossposted article [1, 2], this one titled “No Abstract Idea Where Invention Cannot be “Practiced in the Abstract”,” is also composed by the patent microcosm and the aim is similar. All the above entities generally wish to restore the patentability of software in the US. Also see the new article titled “The Current State of Computer Software Patentability” (behind paywall). What they all have in common is dissatisfaction with the new status quo — one wherein software is barely patent-eligible, or at least barely defensible in the patent sense in the courts. Patent lawyers pretend to care for inventors, but they just want to undermine Alice to patent software without barriers. See this article of one law firm; what they mean by “weather” does not take into account the risk of one getting sued but the chance of one to obtain a patent. Very one-sided a take, as usual. Software developers should stop patenting software as it’s a waste of time/money, even if such patents can sometimes be granted (only to be lost after a long and expensive legal battles). New PTAB cases on patents, such as this one [1, 2] (on reasonable diligence), remind us that sometimes patents will be invalidated even before they reach the court, i.e. even without the patent holders choosing to assert these offensively. Is is worth the risk? Patent lawyers can brag about “privilege” all they want (see new examples [1, 2]), but all they are after is a universal tax on software, extracted from patents nobody needs or wants. In the case of Free software such as Linux, this tax prevents redistribution, so it is inherently incompatible and antithetical.

“Has CCIA flipped sides again, as it previously did after Microsoft had paid it millions of dollars?”Much to our surprise, Matt Levy (CCIA) has decided to give articles to pro-software patents sites — a departure from his usual tune. He gives false hope to software patents hopefuls like Watchtroll readers and also IAM readers. Has CCIA flipped sides again, as it previously did after Microsoft had paid it millions of dollars? █

Summary: Further analysis of the latest rulings from the ILO — decisions that were long expected

THE EPO does not quite respect the principles of the Rule of Law and justice. It’s a mirage or an illusion. We covered it on Thursday, based on the latest ILO decisions.

The “ILO sends European Patent Office Director Battistelli flying,” EPSU which has been involved recently writes about this judgment (in Twitter earlier this evening), as it “Validates complaints [of] staff…”

This links to an article that a handful of EPO insiders told us about. One person said ““every single internal appeal” handled by the Appeals Committee in its current composition from Oct 14 to today legally flawed…”

William New from IP Watch wrote:

The judgments are “remarkable” for several reasons, said the source who wished to remain anonymous.

First, they show that the ILO is trying to clarify formal errors that upset procedures and cause major problems, said the source. In addition, both express criticism of the current EPO president, the source said.

Judgment No 3796 clarifies that “every single internal appeal” handled by the Appeals Committee in its current composition – from October 2014 to today – is legally flawed, the source said. That means that many cases will have to be dealt with again, after a new internal appeals system is created, the source said. To fix the flaw, the president will have to ask the CSC to nominate members for the committee, but because two members of the Appeals Committee have been demoted after disciplinary procedures were launched against them by the administration, the CSC has refused to act. “The ILO judgment puts pressure on” Battistelli to make concessions to the CSC, the source added.

In addition, under Judgment No. 3785, complaints by several hundred staff members against the new career system will have to be revisited, and those judgments will be delayed. Both decisions will likely figure into the 14-15 December AC meeting “since they show that employees’ justice is currently denied at the Office,” the source noted.

All of this is “bad for the reputation and credibility” of the European patent system, said the source. It’s also bad for the image of responsible governments such as France, the Netherlands and Germany, so “there will be a lot of pressure on the delegations to finally fix some issues.”

The latest fictional diary from the EPO is based on the above. Many people are likely to speak about this for quite some time to come. █

Summary: The EPO has quickly descended into a police state, but the supervisors of Battistelli (national delegates) have thwarted or at least postponed his incredible pursuit of imposition by the highest-ranking governor (himself) on everyone, effectively removing all power from the previous executive, legislative, and judicial branches of the EPO (Organisation), under the pretense that this is necessary for the Office to function effectively (e.g., to maintain order and security, or to provide core services)

SOMEONE recently leaked to us an opinion on the Investigation and Disciplinary Guidelines [PDF, 17MB] (or disciplinary and investigation guidelines) proposed for Battistelli’s chinchillas (the Administrative Council, or AC for short) to pass to him on a silver platter, probably for continued persecution of perceived ‘enemies’ and union-busting activities. We saw some portions of discussions about it, in particular after this failed to pass (the chinchillas found some backbone for a change). “A Game Changer” is what one person called it (alluding to the UK delegation which expressed its feeling that this could be a “game changer”), but it wasn’t long before Battistelli resumed union-busting activities, in defiance of the chinchillas’ opposition (he doesn’t care what they say, he just does whatever he wants anyway). “It seems that as the result of a coordinated effort by the AC delegates, both the Investigation and Disciplinary guidelines proposed by the EPO have been removed from the AC agenda,” said one person. There’s some background to all this, namely “the somewhat unfruitful discussion in the Board 28,” which is definitely aware of the crisis at the EPO^*.

“Curiously, based on what we learned, Battistelli grossly violated/ignored what was decided on because “in clear terms delegates insisted that no decision should be taken on presently running disciplinary procedures until the new procedure is put in place!””As a result of this rejection (Battistelli not getting what he demanded), the opinion will be taken into account and the proposals revised for next month’s meeting. There seems to be growing interest in improving protections for staff representatives and union leaders. Has the coin finally dropped? Is the AC realising that Battistelli is totally out of control?

Curiously, based on what we learned, Battistelli grossly violated/ignored what was decided on because “in clear terms delegates insisted that no decision should be taken on presently running disciplinary procedures until the new procedure is put in place!”

Well, Battistelli fired a staff representative regardless. What a mockery to the AC. The tyrant is so insecure that he doesn’t care what the rules say. Delegates from Switzerland, France, Britain and the Netherlands in particular got snubbed by Battistelli. Isn’t it time for them to fire him already?

“Delegates from Switzerland, France, Britain and the Netherlands in particular got snubbed by Battistelli.”As staff representatives explicitly put it, “there is no specific safeguard for Staff representatives or Union officials in disciplinary procedures, especially when the complaints are filed directly by the President or a high official [like Bergot] acting under his authority.”

In relation to the person whom Battistelli brutally fired this month, representatives wrote at the time that he had been “downgraded in Jan 2016 (against the recommendation of the Disciplinary Committee). In fact, the Office has launched investigation and disciplinary procedures against several other Staff representatives as well, affecting negatively their health.”

EPO workers are also citizens of European nations. Their human rights cannot simply be disregarded when they visit Eponia^**. █
_________
^* The summary results of the 75^th Board 28 meeting said that “The new proposals were welcomed, but nevertheless no common understanding could be reached on the right to remain silent and on other issues. The President had strong reservations on this issue, insisting on the necessity to ensure an efficient procedure to fight fraud and harassment, and reserved the possibility to withdraw the package from the agenda.”

^** Incidentally, later today Julian Assange will have his rights revisited and his lawyers currently (overnight) spread around this image (copied below).

Summary: News about Microsoft’s love of [patents against] Linux, the persistent issue of patent maximalists guiding US patent law, and an update regarding the Patent Trial and Appeal Board (PTAB) that cleans up the mess left by these aforementioned actors

SOFTWARE PATENTS have always been our primary focus, since the site began exactly 10 years ago.

“I’m not talking about software patents, whose disappearance I would welcome,” said the author of this new article titled “The End of Intellectual Property?”

Patent practitioners must understand that in order for their profession to maintain legitimacy (positive public perception) they need to ensure that patents are granted only on things where patenting can be justified, economically in particular. Not every thing in existence should be patented. That’s just common sense, as authors who studied the effects of monopolies explained in scholarly work for decades if not centuries. Patent law — like copyright law — must examine/study the broader effects, including the externalities.

Today’s article is a mix of news found and collected over the past week. We present the news in no special order.

Microsoft Still Evil and Dangerous

Microsoft is lobbying against Alice (and for software patents, as usual). How do we know? This report from last week reminds us that Microsoft is a nasty, malicious company that intends to continue to sue rivals using software patents. To quote: “As Microsoft’s Micky Minhas sees it, Alice may be dissuading IP owners from other countries from patenting their products here, placing the US at a disadvantage. As China considers accepting patents for business methods, the US is heading “in the opposite direction,” he said.”

Does that mean that China’s patent system is getting better? No, it’s getting worse and patent trolling has gotten a foothold there, as we so often/habitually noted this year. Looking at what Microsoft actually continues to do, consider this new and timely article titled “No, Microsoft does not love open source” (published by the corporate media about a week ago). To quote the key part:

I used to follow Microsoft’s intellectual property Twitter account in order to see exactly how much Microsoft loved open source as it bragged about all the people it had coerced into signing patent agreements. I guess someone realized that crowing about that was not a great idea, because today the feed tweets puff pieces about how great software patents are and how they drive innovation (through litigation).

The truth is that Microsoft’s principal open source strategy hasn’t changed and probably never will. The point of open source to Microsoft (or any other company) is to give you an on-ramp to its platform. For Microsoft, that platform is morphing from Windows to Azure, so of course Microsoft has dialed back its rhetoric toward Linux. If you read Microsoft hates Linux, then you probably won’t host your VMs on Azure — same deal if you have a choice between two virtual private clouds. Duh, Microsoft loves Linux … on Azure. Why wouldn’t it?

Microsoft may even be willing to accept open source that’s tied to its technologies, but not directly to its platform. Generally these will be “children’s edition” versions like .Net Core. I’m not saying Visual Studio for Linux isn’t progress, but is anyone really itching to run .Net on Linux? I mean, after the outrageous commercial success of Mono (/sarcasm), are any of you going, “Woo-hoo, I want to write .Net code and run it on Linux”? Bueller? Bueller? Anyone?

Now, about those lawsuits — Microsoft likes it both ways: Embrace on one hand, and get tidy patent settlements on the other. People who work at Microsoft say it’s a big company, and as with all big companies, the left hand doesn’t know what the right hand is doing. Actually, that would be dismal management — if “we love open source” was really part of Microsoft’s strategy.

As evidence that Microsoft loves open source and Linux, last year Microsoft noted some long-running lawsuits that it wasn’t really winning and dropped them. Repositioning “we cut our losses” to “because we love you” is good PR. Respect! But let’s talk about real change.

For those who think that Microsoft has changed, be sure to check if media coverage changed rather than Microsoft itself. We wrote quite a few articles this year about new instances of Microsoft blackmail using patents, targeting companies which distribute Linux devices.

Patents That Harm Society

There is a new paper (more than a fortnight old by now, which in academic terms/by academic standards is very little) that focuses on patent litigation. Litigation is rarely indicative of success; rather, litigation is invoked when there is a failure and when parties fail to agree about patents. Who benefits from all this the most? Patent lawyers of course, at both sides (offensive and defensive). Here we have a new report about a patent lawsuit against solar panel company . Earth Solar Power, a Chinese solar panel company, got sued. Does the environment benefit from it? Certainly not. What does public interest say about all this? Also see this report about Octane. “Ninth Circuit’s en banc ruling says a case in which fee-shifting is appropriate is “simply one that stands out from others with respect to the substantive strength of a party’s litigating position”,” to quote MIP. Where does the public stand on this? Whose fees are “shifting” and who pays the price for all these lawsuits? Here is another new MIP article, this one speaking about a lawsuit with a decision composed by Justice Ginsberg. It’s not a new case, but here’s what MIP says:

In 2014, the US Supreme Court heard Petrella v Metro-Goldwyn-Mayer, which asked the same question of copyright law. In a majority opinion written by Justice Ginsberg, the Court decided that laches should not be an available defense in copyright infringement cases. The Court has recently shown a tendency to want to maintain consistency across the branches of IP law. In this case the Justices will have to interpret whether the statute creates a statute of limitation for damages in patent infringement cases, or if this is not established, whether laches are needed to effect this limitation upon suit delays.

Baby products are not improving because of lawsuits like this (see context in this article) and certainly society loses a lot. Maybe the problem is that too many patents are being granted in too many domains.

Tastelessly enough (in our view), Professor Crouch now uses his student Zachary Kasnetz to criticise a decision he doesn’t seem to approve of. Crouch is part of that crowd (or the insulated choir) that wants us that believe that more patents mean more success, more innovation, or whatever. His blog is usually quite informative (with detailed graphs and everything), but he is clearly subjective and he has become a symptom of a patent system led and steered by maximalists, not moderates. Some of them have become so greedy that they burn down the system and alienate the public. No wonder the connotation with patents among many members of the public isn’t quite so positive. Many now find “patents” synonymous with “trolls” rather than light bulbs, innovation, etc.

Here is a new article where Crouch shows the proportion of abandoned patent applications in the US going down over time. Is this indicative of a patent quality problem? Remember that the real number is FAR higher than what's shown by Crouch, around 92% if one considers revisions and re-applications. Here is another Crouch article about “USPTO Allowance Rate” and further commentary about it (“What is the Steady-State Patent Allowance Rate?”). In recent years, based on these figures, the USPTO got ever more terrible at rejecting bogus patents. David Kappos as Director (now lobbyist) made things ever more dire.

Courts Meet Avalanche of Bogus Patents

The USPTO has created a mess. It certainty did, but it profited from it. It’s obvious at whose expense and to whose gain. The incompetence (top-down, management instructing examiners) now overloads the PTAB staff and leads to a sort of ‘scatterback’ that falls back on courts. Only lawyers and trolls win here.

How did it all happen and what does the USPTO plan to do about it now? Well, based on Patently-O (Crouch’s blog), the “USPTO Proposed to Revise Rule 56″. David says in this article, while linking to a PDF, that the “announcement is here. I will be submitting comments before the 12/27 deadline, and so if you have any ideas or thoughts, please post away.”

So basically policy is being shaped by those who profit from it. We don’t expect public interest groups to have anything to say. Here is the nasty Watchtroll pushing his own agenda with this article about a “new memorandum on software eligibility”. Want to guess what Watchtroll will tell them?

Here is Watchtroll bemoaning the CAFC for smashing about 90% of software patent cases that it deals with. These people just can’t help themselves. Whenever the system tries to correct itself they panic and try to keep it ruined, as from ruin comes more business to them (consulting, applications, litigation etc.) and it’s frustrating to think that the public pays the price for all this unproductive chaos. The public pays, these people pocket it all.

The mess created by the USPTO, which granted patents on software for a number of decades (because it got greedy), scatters back on CAFC now. We see a growing number of reports about it. Kyle Bass, a person whom patent maximalists like to hate, goes on a PTAB winning streak ahead of the winter break. By invalidating crappy patents (granted by USPTO in error) he actually makes money. While opportunistic and selfish, at least it helps keep applicants honest (out of fear). Here is how MIP put it the other day. “The Coalition for Affordable Drugs has notched a flurry of PTAB wins in the past two weeks. The next decisions will not come until the new year,” Michael Loney wrote.

Drugs being more affordable is a good thing, right?

Here is another new update about PTAB, courtesy of Mr. Loney:

The past four months have been stable for Patent Trial and Appeal Board filings, while October saw the Federal Circuit giving another ruling on reviewability of IPR institution in Medtronic, the PTAB issue Kyle Bass and printed publication decisions, and the USPTO propose fee increases and changes to patent agent privilege

The monthly numbers of Patent Trial and Appeal Board (PTAB) petitions filed for the past four months have been within a 14-petition range, after displaying volatility at the start of the year.

There is no sign of stopping at PTAB and we are gratified to know that those who attack PTAB (Watchtroll for example) are not succeeding. In another report from MIP it’s stated that the “Federal Circuit [is] falling behind as PTAB appeals stack up,” confirming what we saw other sources claim. IAM ‘magazine’, in the mean time, has a new “Report” (usually paid) which shows that CAFC further limits patent scope (not just impacting software but also logic circuit designs) and it leaves us very hopeful. Is this combination of CAFC and PTAB, inheriting the ‘genes’ of the SCOTUS, going to make software patents a thing of the past everywhere? It’s definitely an attainable future. We’re partly there already.

What got a lot of this reform rolling was the America Invents Act (AIA), which brought PTAB just a few years before Alice. According to Patently-O,”AIA Patents [are] Approaching 50% of newly issued patents” and here is what they mean by AIA Patents:

By the end of the calendar year, most newly issued US utility patents will be considered “AIA Patents.” AIA-patents are examined under the first-to-file rules of the America Invents Act of 2011 and are also subject to potential post-grant-review proceedings. The chart below shows results from a random sample of 7,300 recently issued patents.

Soon enough there might not be many software patents left (not already expired) and Alice/Section 101 accomplished more than just software patents abolition, based on this report about industrial machines. It seems too good to be true, but it’s true. This is why patent law firms are hopping mad.

The US patent system is still messy, but we are optimistic and we believe it’s getting better; most developments these days are positive ones. █

Summary: The obnoxious company that is promoting Microsoft and software patents in a country that needs neither makes the headlines again (Financial Express)

THE SUBJECT of software patents in India has not been explored here in a while. It seems safe to say that the latest massive effort/push/lobbying by Microsoft, IBM et al failed and India will continue to reject/decline/refuse to patent software.

“Tata has spent years pushing for software patents and promoting Microsoft’s interests/lock-in.”The Microsoft partners from Tata (or TCS), however, are still lobbying for software patents in India, in essence painting themselves a foe of the country’s interests. Based on this new article (published earlier today): “In yet another instance of saying no to exclusivity for innovations in software development, the country’s patent office has rejected a patent application by Tata Consultancy Services (TCS) seeking protection to its claimed invention relating to organisation and development of technical documents, with few defects, minimal effort and less cost.”

Good. Tata has spent years pushing for software patents (see e.g. [1, 2]) and promoting Microsoft's interests/lock-in. We hope that our readers in India (a large proportion of our readers is from there) will push back against the likes of Tata. The country is better off without such corporations. Tata is often peripheral/adjunct/extension of foreign multinationals and it’s not alone. This harms Indian startups. █

Summary: The lack of respect for the law, for democracy and for patent scope (quality control) at the European Patent Office has become incredibly difficult to ignore

SOFTWARE patents promotion at the EPO has gotten so bad that it was done twice in one single day. Their official and verified account said “This e-course teaches you all about the patentability of computer-implemented inventions at the EPO” and also said “We will be discussing practice & jurisprudence in software-related patents in Europe & India at this event” (as a reminder, software patents are verboten both in India and in Europe).

“The EPC and the European Parliament are against this, but evidently, under Battistelli in particular, patent scope is out of control and this kind of overt lobbying has become routine.”This was done again for the third time within 24 hours. The EPO openly promotes loopholes for patenting software. The nerve…

It’s a repeat of the above: “This e-course teaches you all about the patentability of computer-implemented inventions at the EPO…” (link to the EPO’s Web site).

Why does this matter? The EPC and the European Parliament are against this, but evidently, under Battistelli in particular, patent scope is out of control and this kind of overt lobbying has become routine. It’s almost becoming a banality. We wrote about this several times last month. The “EPO’s knowledge & expertise” is leaving in droves nowadays (we have reported massive, unprecedented brain drain over the years), yet here again the EPO brags about its “knowledge & expertise”. Who are they trying to kid? Preaching to the converted?

One main problem is, if UPC schemers got their way, a lot of the above would have become easier. Software patenting will be brought to Europe by the UPC, but only if Battistelli gets his way… it would not just be a disaster to software developers but to every single user of software. The consequences would be horrific and devastating. The US, where software patents are ubiquitously used by patents trolls, is a cautionary tale.

“Software patenting will be brought to Europe by the UPC, but only if Battistelli gets his way…”We hope that EPO staff understands why we have opposed the UPC (and its predecessors) all these years. Not much has changed except the name (now it’s “unitary” and “unified” rather than “EU” or “community”). Rebranding never changed the substance and politicians including Battistelli lied about it all along.

Here is a new article from a lawyers’ site. It’s titled “What Does Brexit Mean for the Planned Unitary Patent System in Europe?”

Here is what it says (behind a paywall unfortunately, so only the patent microcosm — those paying for subscription — would be able to read and/or scrutinise it):

The Unitary Patent System and Unified Patent Court had been predicted to come into force in 2017, and it promised to be the biggest change in European patent practice in almost 40 years. Has Brexit killed the whole thing?

In a nutshell, yes! UPC is going nowhere. Does that mean that British members of Team UPC will give up? Of course not. The Corbyn-led Labour party would have no interest in the UPC (see its position on TPP) and should bury the UPC, but watch how Bristows LLP spins that. Another example of selective quoting and misinterpretation or misrepresentations, quoting other members of Team UPC as ‘proof’ of widespread support for upcoming changes? Also see this new one from Bristows LLP (aka Bristows UPC, for marketing purposes). This firm has just published not one but two UPC propaganda pieces. Shame on Bristows for attacking both British and EU democracy. What does that say about Bristows?

Another LLP, this time Pillsbury Winthrop Shaw Pittman LLP, joined in this non-stop UPC propaganda (obviously from patent law firms that stand to gain from the UPC).

“The UPC would be bad for SMEs all across Europe, not just in Britain. Every European citizen should be out in the streets protesting against it, for the same reasons CETA/TPP/TTIP/TISA etc. are widely protested against.”They know a deadline is coming up and the UPC would likely die soon, if not officially in the UK then in the whole of Europe (unless it’s renamed again and repackaged with replacement/s for London). The UPC would be bad for SMEs all across Europe, not just in Britain. Every European citizen should be out in the streets protesting against it, for the same reasons CETA/TPP/TTIP/TISA etc. are widely protested against.

Milan has been mentioned as a likely replacement for London and watch this new tweet from the EPO: “Patent professionals in Italy are welcome at this event,” it says. Notice the interesting choice of venue. █

Summary: An overview of some of the latest press coverage regarding software patents now that they are difficult to acquire and especially difficult to assert in a court (the higher up, the harder)

SOFTWARE patents are a scourge and a plague. They harm developers all around the world, even those not residing in the US. These patents often boil down to nonsense that’s neither innovative nor novel.

“Like most software patents, here we have a non-inventive step; there’s nothing new about a rating system but because it’s done “on a computer” and “over the Internet” or regarding a vehicle we’re supposed to think it’s innovative and deserving a patent monopoly.”The other day Benjamin Henrion joked, “what an invention!”

He was referring to this blurb that says “Uber files patent application on rating your “ride” https://t.co/HcaLtCUGtJ details seem trite; inventor Ben Kolin https://t.co/gXPvZSAy44″ (direct link).

Like most software patents, here we have a non-inventive step; there’s nothing new about a rating system but because it’s done “on a computer” and “over the Internet” or regarding a vehicle we’re supposed to think it’s innovative and deserving a patent monopoly. What a hard argument to sell…

Another new example of this Uber ‘innovation’ says that: “In big cities, you’d be hard pressed to find someone who never used #Uber. Take a look at their #patent history” (this links to an article by Audrey Ogurchak at Watchtroll’s site).

Putting aside how unethical Uber is (Richard Stallman has a dedicated page about the subject), these software patents from Uber remind us that they are a real problem and several recent tweets or articles spoke about the threat Alice (and invalidations of patents on software) pose to Uber’s market value. As if Uber’s monopolistic practices are something that needs to be guarded…

“It’s sad to see that IBM continues to align with the dark side when it comes to patents whilst actively suing companies using software patents.”With this cautionary tale out of the way, let’s look at some of the encouraging coverage we saw in these past few days (half a week) following the famous ruling against software patents — a ruling that we wrote four articles about (so far). Here is a new article titled “Patents a “terrible fit” for software”. It says: “Copyright is a sufficient system for protecting software and the patent system is a “terrible fit”, a US Federal Circuit judge has said. The comments followed a ruling in the Intellectual Ventures v Symantec patent infringement case”

A lawyers’ Web site too admitted the undeniable; “Software Patents on Shaky Ground With Federal Circuit in Case After Case” said the headline, but the article is behind a paywall. Scott Graham, of Law.com, wrote: “The U.S. Court of Appeals for the Federal Circuit put on what could have been a clinic last week on software patent eligibility.”

Above the Law, another Web site which targets lawyers, published this:

Prominent Pro-Patent Judge Issues Opinion Declaring All Software Patents Bad

Well here’s an unexpected surprise. A lawsuit brought by the world’s largest patent troll, Intellectual Ventures, and handled on appeal (as are all patent cases), by the notoriously awful Court of Appeals for the Federal Circuit (CAFC) may have actually killed off software patents. Really. Notably, the Supreme Court deserves a big assist here, for a series of rulings on patent-eligible subject matter, culminating in the Alice ruling. At the time, we noted that you could read the ruling to kill off software patents, even as the Supreme Court insisted that it did not. In short, the Supreme Court said that any patent that “does no more than require a generic computer to perform generic computer functions” is not patent eligible. But then it insisted that there was plenty of software that this wouldn’t apply to. But it’s actually pretty difficult to think of any examples — which is why we were pretty sure at the time that Alice should represent the end for software patents, but bemoaned the Supreme Court not directly saying so, noting it would lead to lots of litigation. Still, the impact has been pretty widespread, with the Alice ruling being used both by the courts and the US Patent Office to reject lots and lots of software and business method patent claims.

More invalidations of software patents are being reported (coming out from CAFC), but don’t expect lawyers-led or lawyers-fed media to speak about these. One patent attorney wrote: “Fed Circuit Affirms 101 Ineligibility of a Patent Claiming Detection of Unauthorized Access to Medical Information: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1985.Opinion.10-6-2016.1.PDF …”

This decision is only days old and we have not seen it mentioned much.

IBM’s software patents lobbyist in chief, Manny Schecter, is obviously upset. He wrote “No US statute renders software ineligible for patenting,” to which Henrion responded with “Free speech is enough to liberate IBM’s programmers.”

It’s sad to see that IBM continues to align with the dark side when it comes to patents whilst actively suing companies using software patents.

“If one is still in denial about the need for patent reform, then one is delusional or too obsessed with one’s legal invoicing/fees (profits).”LWN, a Linux news site, recognises that we’re moving towards the end of software patents, but a lot in the side of the lawyers (the very vocal minority) are still in denial or in “attack mode”. They are attacking the messenger or the credibility of the judgment in an elaborate attempt to defend software patents. Here we have proponents of software patents at Bilski Blog (cross-posted here) espousing political views to discredit the reform attempts. This was liked by proponents of software patents, as one might expect. To quote the concluding bits: “One of the most common concerns about our government—voiced from all parts of the political spectrum—is that Congress gets too little done. Thus, the worry that a Congressional “fix” to our patent system is not likely anytime soon is understandable. However, problems caused by any real or perceived Congressional dysfunction may be dwarfed by allowing courts to re-write the Patent Act. If there is ever an area where the balancing of interests calls for the legislative process to be involved, it is in our intellectual property system. One person’s view—or even one Court’s view—of a good solution, however well-intentioned, is not the right approach.”

If one is still in denial about the need for patent reform, then one is delusional or too obsessed with one’s legal invoicing/fees (profits). It’s not hard to see what motivates the above.

One can tell that things have become pretty bed for this camp when Martin Goetz is again writing in support of software patents, and moreover chooses Watchtroll as his platform, again. Some background of both Watchtroll and Goetz would help one understand the significance of this. As we are going to show in our next post, some other familiar faces are coming out of the woodwork right now, trying hard to stop patent reform if not a comprehensive overhaul. █

Summary: The European Patent Office (EPO) actively undermines democracy in Europe, it undermines the freedom of the press (by paying it for puff pieces), and it undermines the rule of law by giving one single tyrant total power in Eponia and immunity from outside Eponia (even when he breaks his own rules)

THE situation at the EPO has gotten so bad that the EPO is now buying the media for some Milan spin (among other spin) to help sell the UPC to the gullible public officials. This culmination in lobbying demonstrates the moral depravity to which Battistelli and his goons are willing to sink.

The UPC is an assault on EU democracy (and in the UK what we are seeing in that regard is total disregard for the referendum), which is effectively being stolen by lobbyists and patent lawyers of large corporations. The “UPC [is] on the Council agenda of this Friday,” Benjamin Henrion wrote, “I told you so. Italian minister seems to lobby for Milan without even a discussion in Parliament.”

We first wrote about it last night. Italians should protest that day, along with their media (already covered UPC).

Was the public consulted on this? Why does the media, which was paid by the EPO, support this with some puff pieces that involve Team UPC? How corrupt can things get and when will European politician start to genuinely care? And not just because they perceive it as an opportunity to promote their political party, e.g. in France…

The Battistelli regime has gotten so oppressive recently that SUEPO is silent (not a single word for three weeks) and the attack on the appeal boards intensifies behind closed doors (the secretive Board 28). “This Office has really become a banana republic,” one comment says today. “Looks like a last, desperate attempt of Battistelli and his henchmen to avoid that at the next AC the disciplinary case is closed,” this person notes, in relation to the news about Battistelli trying to prevent the scapegoat from getting his job back (or basically return to work before the end of his term). Here is another new comment about it:

If the matter were not so serious for the accused (or should that be former accused and/or victim?), this Wile E Coyote-esque persistence would draw a chuckle.
As one person has pointed out, late filed submissions are required to be prima facie relevant and OK, maybe, if you can give us another reasoning because the one you have come with isn’t good enough, isn’t normally the procedure to follow.
I note that, in the Social Study (?), PWC have found that the office’s actions have met the requirement of the EPO’s legal framework. The mind boggles about what wouldn’t.

We wrote about the PWC 'study' just after its release on Friday. It’s hogwash. It’s just ammunition for lobbying in next month’s Administrative Council’s meeting (there are also court rulings from the Netherlands coming up very soon).

One person added that “there is no “Res Judicata” at the EPO, nor does ILO-AT require this of its member organisations (and the EPO is not a member of ILO-AT).”

Another person remarked on “the issue of res judicata” as follows:

They would not go for the same accusations.

Actually, rumors were circulating around the last meeting of the AC that the president had a completely new strategy to deal with the suspended member of the AC, since the first one did not work.

A new accusation would have been made according to which the suspended member had discussed with an external IP lawyer a case in front of the BoA, thus contravening the requirement of confidentiality for anyone working at the office.

That would have been considered as “misconduct” – the punishment for which we all know is dismissal.

I have no further details – such as “when did this discussion take place”, “was at an informal meeting”, “which proof did they have”, “did the office require the Lawyer to testify” or anything else.

I understand the defense of the suspended member was aware of these rumors.

We shall be keeping a close eye on this. If anyone out there has access to internal affairs of Board 28, please consider getting in touch with us. Information lapses and secrecy currently achieve nothing but harm staff. This also harms the EPO as a whole by making redemption improbable. █

Summary: The vultures that are patent law firms keep circling around PTAB and hoping to destroy it, if not from the outside then from the inside, potentially regressing and ruining great progress for US patent quality since Mayo and Alice

THE Patent Trial and Appeal Board (PTAB) has been invaliding software patents in large numbers. It’s hardly surprising that proponents of such patents hate PTAB with a passion. They would destroy it if they could. They’re still trying.

Watch blowhard Watchtroll attacking his government for actually adding/embedding some quality control in the patent system, even insulting people in the process (his latest ‘masterpiece’ is titled “Happy Birthday AIA: Celebrating an Unmitigated Disaster and the Destruction of American Innovation”). The same site also attacks AIA right now. It’s America Invents Act (AIA) which brought PTAB into existence. Here is what the USPTO wrote about AIA the other day, under the title “Five Years of Patent Pro Bono Success”. The Director of the PTO praises or at least marks a milestone which gave birth to PTAB (a good thing), but not everyone agrees, especially greedy lawyers. Watch this new article titled “AIA at 5 Years: PTAB’s Tectonic Change in Patent Litigation”. Published in Wall Street media, the article quotes lawyers but not the people affected (programmers or scientists for instance). What a wonderful way to generate a one-sided sob story for law firms.

As we have noted here for a number of years, PTAB is crushing software patents and this is a good thing. Michael Loney has had some decent coverage about it and “Pondering four years of PTAB proceedings” is one of his latest articles about it. He notes that there will be a “bar association solely dedicated to the Patent Trial and Appeal Board,” but quite unfortunately it “has been formed by more than 45 law firms” (i.e. the wolves guarding sheep). Is that really necessary? Here is the press release about it and another article titled “New bar association focuses on US Patent Office’s PTAB” (from a rather decent news source, for a change).

Anyone who fails to see the sheer bias of patent law firms against the PTAB must not have paid attention. Here is a new example, this one from Michael Dever of Buchanan Ingersoll & Rooney PC, where patent law firms basically call “trolls” people who crush invalid patents that should never have been granted in the first place. They reject the term trolls when it comes to abusive entities that are bullying small companies but happily use the term to refer to invalidation of invalid patents. They also, by connotation, blame this on PTAB (IPRs).

Well, after a lot of PTAB coverage Michael Loney managed to speak to the recently-appointed chief judge of PTAB. This judge, according to Loney, “believes his biggest challenge is taking the Board into a new introspective phase. He talks to Michael Loney about rule changes, PGRs’ potential, Cuozzo, motions to amend and ditching the death squad reputation” (a reputation created by nasty law firms in the first place, as we noted here many times before).

Does this judge, David Ruschke, care to see that patent law firms are his enemies? They’re trying to destroy AIA, PTAB, and even his own job. They compare people who assess patents and ensure quality to “death squads” (and those who petition for review “trolls”).

Now, watch this latest article from Loney. It sounds as though he tries to slow PTAB down. Managing IP just won’t let them bury those software patents without FUD, will it? “Much of the talk since the Patent Trial and Appeal Board (PTAB) became active concerned how the Federal Circuit would deal with appeals of Board proceedings,” Managing IP says. That’s hardly a problem because in case of a backlog they can hire more staff or just proceed to more IPRs (in the interim). “The first question,” Managing IP says, “was would the appeals board be able to cope, given the unexpected popularity of PTAB filing. This is still an open question, with some strain beginning to show.”

That’s total nonsense. If they have growing demand for reviews (IPRs), then they should hire more people. It’s as simple as that. It’s a non-issue.

Holders of worthless software patents can run away to CAFC (which created software patents in the US) after PTAB does its work; that gives them no guarantees and that is absolutely fine. They don’t have this privilege carved in stone.

Here is Patently-O having a go at CAFC on PTAB initiation decision. It says that the “court also sided with the Board on Wi-Fi’s substantive argument – affirming the Board decision that the prior art anticipates.”

In other words, as one might expect, CAFC too decided that PTAB does the right thing.

One more article from Managing IP now speaks about the effect of PTAB on biotechnology/pharmaceutical patents — apparently a growth area of appeals. To quote:

Biotechnology/pharmaceutical companies were slow to use the Patent Trial and Appeal Board. This is now changing, though this patent type has lower institution and invalidation rates

The birth of the infamous “patent death squad,” (the PTAB, for those less inclined to dramatic flair), has had powerful effects on patent holders. But while the technology sector dove headfirst into the uncharted waters, biotech and pharmaceutical companies hung back for some time.

The PTAB was, at first, a mystery, and then was filled mostly with challenges against what some practitioners refer to as “junk patents”, so those seeking to invalidate valuable pharmaceutical patents were reluctant to try their luck before the Board. AIA petitions can also be high risk-high reward.

Putting aside the sob stories and the repeated use of the smear (“patent death squad,” as even Managing IP calls it), what we have here are unjust patents that were erroneously granted facing the axe, potentially saving many people’s lives (once invalided, opening the door to generics for instance). See this crude new rant from IAM, which is protesting the UN’s request that life should be put before patents. Also see this blog post about Teva’s recently-invalided patents (covered here last week). To quote: “In the last two weeks, the PTAB has invalidated three patents covering Copaxone®, a multiple sclerosis drug marketed by Teva with annual sales of over $3 billion. Challenged by generic manufacturers Mylan and Amneal, the patents specifically covered a long-acting form of Copaxone®, known as “3-times-a-week COPAXONE® 40 mg/ml,” which Teva developed when the original version of Copaxone® was coming off patent protection.”

So one rich company might enjoy fewer monopolies and poor people might enjoy better access to drugs they need to survive. How is that a bad thing given that these patents should never have been granted in the first place?

PTAB serves an important function and that’s why a patent reform (AIA) introduced it in the first place. If patent law firms get their way, they will ultimately destroy, diminish or reduce the capacity of PTAB. They’re no friends, they’re vultures. █

Summary: Some privacy takeaways from the analysis of Bretton Woods Law (commissioned by EPO staff) and more examples of serious privacy violations inside the European Patent Office

PRIVACY is significantly eroded by authoritarian regimes for the purpose of crushing dissent and the European Patent Office (EPO) is no exception. Eponia is highly authoritarian and it even hired autocrats like Željko Topić for top positions. A lot of the illegal surveillance inside the EPO began or culminated around the time people were chatting about criminal charges against him (for sure a story worth telling one day).

A letter was sent to Heiko Maas, Federal Minister of Justice and Consumer Protection in Germany, just over a couple of months ago. “A SUEPO lawyer addressed Heiko Maas and informed him of the latest reforms and developments at the EPO,” explained an insider. Suffice to say, Maas has done virtually nothing (he has a reputation for this in Germany), but let’s assess the privacy violations based on another legal office. A few days ago we saw the following new comment in IP Kat:

The EU data protection Regulation does not apply everywhere in Europe. For example, the European Patent Organisation (EPO) has its own data protection Regulation.

The document “BREACHES OF BASIC AND FUNDAMENTAL RIGHTS AT THE EPO” by Bretton Woods Law (Specialists in Public International Law) explains (from page 17 to 23) why the EPO data protection regulation fails to meet the standards of both EU data protection law and the national data protection laws of the Contracting States.

https://www.suepo.org/documents/43577/55400.pdf

Summary of deficiencies in the current EPO data protection framework:

- Fundamental rights: The reference to the respect of fundamental rights had been removed from the EPO data protection regulation (page 18).

- Lack of independent oversight: At the EPO there is no independent supervisory authority. The EPO president supervises himself the data processing he has implemented. (page 21)

- Change of purpose: The EPO data protection regulation allows the EPO President unilaterally to decide that data may be processed for purposes other than those for which they have been collected.(page 21)

- Transmission to recipients outside the European Patent Organisation: The EPO President may authorise a transfer or a set of transfers of personal data to a third country or international organisation which does not ensure an adequate level of protection.(page 21)

- Lack of any effective means of redress in circumstances where the rights of data subjects are infringed (see pages 22 and 23 – the intervention by the German data protection authorities).

Conclusion:
A wide range of personal data from both patent applicants and EPO staff are processed at the EPO. The situation at the EPO falls far below the standards expected and the rights enjoyed by citizens in the rest of Europe.

The above reminded us of what the EPO does with Europatis — a scandal which we covered here last year in the following articles:

1. Jacques Michel (Former EPO VP1), Benoît Battistelli’s EPO, and the Leak of Internal Staff Data to Michel’s Private Venture
2. Europatis: “Turnover of €211,800 and Zero Employees”
3. Loose Data ‘Protection’ and Likely Privacy Infringements at the EPO: Here’s Who Gets Employees’ Internal Data
4. Summary of the EPO-Europatis Series
5. Revolving Doors of High-Level EPO Management: Jacques Michel and the Questel Deal With the EPO

Privacy violations are so serious inside the EPO that detailed accounts of mock trials or investigations are being ‘leaked’ by EPO management to the media, in order to essentially defame the accused (a judge in one case). One of the reasons for strong data protection around one’s medical record is the potential for blackmail and discrimination. In light of this we’re reminded of a document we saw several months ago (it’s a letter to Mr. Topić actually). It spoke about the unacceptable state of medical data protection at the EPO (it would be totally unthinkable at the USPTO). Here is the complete text

European Patent Office | 80298 MUNICH | GERMANY

Mr Željko Topic
Vice President DG4

R. 707

European Patent Office
80298 Munich
Germany
Central Staff Committee
Comité central du personnel
Zentraler Personalausschuss
Tel. +49 -89- 2399 – 4355
+43 -1-52126 – 305
+49 -30-25901 – 800
+31 -70-340 – 2028
centralSTCOM@epo.org
Reference: sc16075cl –0.3.1/4.3
Date: 14.04.2016

Nomination of Ms R. de Greiff as Director Health and Safety

Dear Mr Topic,

On 24 March 2016 you announced on the Intranet the appointment of Ms Raffaella de Greiff as new Director Health and Safety with effect from 1 April 2016, this after serving as ad interim Director of one of the two EPO medical departments since Dr Koopman retired almost two years ago.

Ms de Greiff has a degree in “industrial relations” but no medical qualification. A non-medical person can manage a medical unit, but normally only subject to certain strict requirements:

● medical confidentiality is respected;
● non-medically qualified managers do not have access to any medical information;
● medical files and H&S staff when handling such files remain under the direct supervision of medical doctors;
● medical doctors remain free to carry out their medical duties without interference from managers in medical issues.

So far, the Office has not introduced any such formal guarantees and safeguards.

We refer in particular to the Gazette of January 2016, page 20, which includes a diagram showing that the units that administer such medical files (“Medical advisory and general administration” and “Occupational health and safety”) are under the direct authority of the Health & Safety Director and not of the medical doctors (medical advisor or OH physician), who instead appear to enjoy a consultancy role. The whole Health & Safety department led by Ms de Greiff is in turn under the authority of Ms Bergot (PD Human Resources). This new structure is problematic in several respects.

---

Firstly, Ms de Greiff is neither bound to nor protected by the Hippocratic Oath. If Ms Bergot, as her superior, demanded access to information from the medical file of a staff member (be it a MAU or an OH file), then Ms de Greiff would not have the authority to refuse such an order; neither would she be able to intervene if PD43 were to obtain medical information by other means.

In other words, the strict confidentiality of staff medical files kept in the EPO can no longer be guaranteed.

Secondly, medical doctors are responsible for ensuring the confidentiality of any and all medical data in their possession. If it cannot be guaranteed that non-medical personnel will not have access to medical information, then medical ethics oblige the doctors not to enter or amend any staff data, collected either by themselves or by external doctors working for the EPO, in the EPO medical databases. If they did nonetheless, they would risk losing their medical license.

Under such circumstances, it is unclear how the EPO medical department is supposed to function properly.

Thirdly, we have already raised a number of questions concerning the MAU which to date have never been answered. With the new structure, similar concerns now also apply to the former Occupational Health Department.

We respectfully request you to acknowledge receipt of the above
observations and take a position on them.

Yours sincerely,
The Central Staff Committee
cc.:
Mr B. Battistelli; President of the EPO
Ms Dr Bosch and Mr Dr Schüder
Ms R. de Greiff
Ms E. Bergot

This medical data protection letter, contained in the original PDF, has the signatures of many staff representatives, not just SUEPO representatives. This is an important letter regarding a serious problem which is widely known about (word of mouth and more). When will the EPO realise that this is totally unacceptable in the 21^st century? In this particular case the abuse of privacy of staff cannot even be excused/justified using a war on unions/dissent/whistleblowers. It’s just an authoritarian regime’s dream. █

Summary: Software patent lawyers and software patent trolls are still active in the United States, even if the climate is unfriendly to them after the Supreme Court’s decision on Alice and § 101

WITH § 101 and Alice (2014), it’s now abundantly apparent that things have changed. It’s rather common for software patents to simply die, either at the courts or at PTAB. As patent trolls rely so heavily on software patents, they too are suffering and now there’s a plan for an “IPO Webinars on Section 101″. To quote a patent maximalism site: “The Intellectual Property Owners Association (IPO) will offer two one-hour webinars entitled “Section 101 – The Way Ahead”. The first webinar, concerning the impact of § 101 on the software industry, is being offered on August 10, 2016 from 2:00 to 3:00 pm (ET). Stephen Durant of Schwegman, Lundberg & Woessner, P.A.; Michelle Macartney of Intellectual Ventures, LLC…”

Well, Steven Lundberg's firm, which we last mentioned in April, is one of the worst offenders and one of the most vocal proponents of software patents. They even have a dedicated blog and lobbying on the matter. The world’s largest patent troll (and Microsoft’s troll) Intellectual Ventures taking part in pro-software patents event is also noteworthy. It really shows what the Intellectual Property Owners Association has been reduced to; it’s like a think tank for lobbyists, parasites and trolls.

“It’s rather common for software patents to simply die, either at the courts or at PTAB.”In writing about Technicolor, the trolls-funded 'news' site IAM did not bother mentioning that MPEG-LA is a parasitic patent troll. The editor, who wrote this article, denies that trolls exist (like people who deny climate change). MPEG-LA and related patent pools (mentioned therein and covered here in the past) pass a massive tax to the public, in the name of software patents even when these patents do not exist (and are not legitimate). Companies that latch onto MPEG-LA to extract revenue from the public are nothing but leeches. They don’t innovate, they just look for a patent troll like MPEG-LA to act as a proxy and bully any company which streams video (or helps stream video) without paying millions of dollars in unjust tax. Even Mozilla became a victim of this. What a waste of money for a FOSS company and a project like Firefox.

Speaking of trolls, IBM increasingly acts like one and it relies on software patents for this. Using the words “PTAB Attack” (another negative-sounding term like “killer” or “death squad”) a patent attorney wrote that “IBM’s Online Reservation Patent Survives PTAB Attack: https://dlbjbjzgnk95t.cloudfront.net/0822000/822630/ipr2016-00604_institution_decision_12.pdf”

“Companies that latch onto MPEG-LA to extract revenue from the public are nothing but leeches.”The cited PDF is 25 pages long and in it it’s “ORDERED that, pursuant to 35 U.S.C. § 314(a), an inter partes review is not instituted for claims 1–8, 11, 12, 14–21, 24, 25, 27–34, 37, 38, 40–45, 47–49, 51–57, and 60–66 of U.S. Patent No. 5,961,601.” The Petitioners are Richard Zembek and Gilbert Greene. The patent owner (or firm representing him/her/them) is Andrew Heinz and/or Kevin McNish.

What we have here is a reminder that PTAB is not always the ultimate remedy. Having said that, there are also the courts to fall back on, so if IBM resorts to lawsuits rather than just saber-rattling, the patent can still die (at very high cost to the defendant though, possibly lasting several years after a number of appeals).

The latest in a high-profile case against Apple suggests that VirnetX‘s patent lawsuit which it won against Apple isn’t the end of it because “TX Ct [Texas court] Vacated VirnetX $625M Award Against Apple; Ordered Two New Trials: https://dlbjbjzgnk95t.cloudfront.net/0823000/823395/https-ecf-txed-uscourts-gov-doc1-17518671566.pdf”

Texas again. It figures.

“What we have here is a reminder that PTAB is not always the ultimate remedy.”In other news, Patently-O wrote last night about Illumina’s battle against Ariosa Diagnostics. It’s one of those controversial patents on genetics (i.e. on life) and Professor Crouch wrote: “The essence of the conflict is whether Illumina’s U.S. Patent No. 7,955,794 is covered by the “Core IP Rights” licensed as part of a 2012 supply agreement. Illumina argues that ‘794 patent was not licensed and, when Ariosa refused to pay a license fee, sued Ariosa for patent infringement. Ariosa’s counterclaim of breach of contract and other covenants stem directly from the infringement allegations.”

Sadly, as seen above, there is a persistent (if not also growing) element of confrontation around software patents and other dubious patents because the USPTO lost touch with patent scope and granted nearly anything that came in — the same mistake that Battistelli now makes at the EPO. █

Today’s news

February 2016

Summary: Hearings in The Hague begin (or resume) tomorrow, but whatever the outcome may be, Team Battistelli arrogantly reminded us that it would refuse to respect rulings from the highest court at The Hague, much like China’s government

THE links in yesterday’s daily summary (we posted two summaries yesterday) contain a couple dozen stories about China refusing to honour a ruling from The Hague. Maybe it’ll be a convenient subject for discussion on Battistelli’s next SIPO journey as the EPO too ignores The Hague, except when it comes to setting up branches near The Hague. EPO management is about to go on trial again (Supreme Court) and according to this report it will begin tomorrow. SUEPO is understandably quiet as preparations are required.

Lawlessness at the EPO has become the standard. Laws and rules are habitually broken (even by the President himself), external trials are snubbed, independent judges are crushed, and internal ‘justice’ uses bogus or fabricated evidence in order to implement anything the President asks for. Writing about the immunity of Battistelli, one person shared the following:

Indeed, no. He even enjoys more immunity than “us employees”, as he gets full diplomatic immunity according to the Vienna agreement… Even from his sending state, as all member states must accord it to him….

The president alone proposes the agenda, but the moment the AC meeting has started, the AC can amend and change the agenda. They can remove topics, add topics, change the order. But only with majority vote. (The AC approves the agenda.)
The topics as preliminary published and set by the president is therefore a mere proposal and non-binding to anyone.

“The president alone proposes the agenda, but the moment the AC meeting has started, the AC can amend and change the agenda,” says the above. But they quite evidently did not. Battistelli has managed to totally distract everyone from the abuses for which he and his goons come under fire from courts at The Hague. Who needs immunity when one controls the agenda of a meeting that only takes place 4 times a year? The game is rigged. Writing about the “outmanoeuvred” hypothesis (Battistelli manipulating the Administrative Council), one person asks: “Really? With only one vote against (NL) and two abstentions (HU, IT)? C’mon…”

This serves to show just how rigged it all was. They didn’t even discuss the pressing issues like Battistelli’s abuses and demands from Battistelli. Later on a debate developed around whether Battistelli got what he wanted or not. It went like this:

…the latest amended document isn’t perfect, but it is a million miles from what Battistelli wanted.

He’s presented three or four proposals over the last 18 months. Each time the AC has told him to go back and think again. That’s why it has taken so long.

Remember that originally BB had planned to ask the AC for a final decision way back at the March 2015 AC meeting. But then the controversy over the house ban of a BoA member blew up, so he realised that he wasn’t going to get all his own way. So instead of a final decision, he merely asked the AC for an opinion on CIPA’s suggestion that he should delegate powers to a new President of the Boards of Appeal. (Do you really think that BB liked the idea of delegating power to someone else?)

Further proposals followed, but weren’t good enough. Eventually, in February/March this year there was a huge bust-up, where the AC told BB that his proposal was still not acceptable, so Board 28 would tell him what it should say. Even then, during the June AC meeting they further amended what he had produced.

Of course, on each occasion BB’s PR machine has issued a communique on the AC’s behalf, saying that the AC was extremely happy with his proposals. But do you seriously believe everything you read in official communiques?

One person asked, “could it be that BB [Battistelli] is creating side-shows about issues that really do not matter that much to him” or distracts from abuses against his staff? Here is the full comment:

I fear that your comments rather reveal what I was most afraid of, namely a perception amongst some representatives to the AC that it is enough that BB has been battered back from his (apparently) preferred position on certain issues.

Let me be clear: avoiding an even more ridiculous alternative can hardly be counted as a “victory” if the outcome is still ridiculous. Also, has the AC not considered that, if BB were being particularly cunning, he might well make all of his initial positions so ridiculous that what ends up being passed by the AC nevertheless still gives him (at least) what he had secretly hoped for?

There is also the possibility of “sacrificial pawn” tactics. That is, could it be that BB is creating side-shows about issues that really do not matter that much to him, simply in order to ensure that he keeps a free hand on the issues that are truly important? Having to make some small concessions on minor issues is not such a high price to pay for ensuring you achieve your ultimate objectives.

I now understand more about how events have come to pass, but that additional knowledge has done nothing other than give me less cause for optimism. This is because my worst fears have been confirmed: the President really does control the agenda and is making fools of the representatives to the AC who oppose him. Also, with seemingly total immunity, it seems that the President really has nothing to fear… not even committing acts that, if judged under national laws, might land him in jail.

I really hope that there is someone out there who can figure out a way of fixing this, because I fear that there is worse to come for the European patent system if BB is neither jettisoned nor brought to heel.

The following comment said that the “latest outcome” is what Battistelli “wanted all along” as the appeal boards lost their independence (the EPO lied about it).

sorry but I can’t agree that the latest outcome is what BB wanted all along. I fear you have been taken in by his constant propaganda that the AC thinks he is wonderful and accepts everything he says.

All you can really say is that the AC could have done more on some of the issues. But viewed objectively, while the outcome is not perfect, neither is it favourable for BB.

The debate missed the point that Battistelli controls people by appointment now. The latest comment said this:

Can you really claim to know what BB wanted all along? I am not saying that I can either, but the point that I was making is that his tactics may be a lot more manipulative than is currently perceived. Perhaps, unlike me, you have not had your eyes opened to the fact that there are some individuals out there who will make a huge fuss (and fight tooth and nail) about an issue that really is of little consequence to them, simply in order to improve their negotiating position on other points.

From my perspective, the conclusion that “neither is it favourable to BB” just does not cut the mustard. I would instead have preferred a sane and sensible reform of (the rules of conflict of interest for) the Boards of Appeal – whereas the reform that we got does not meet either of those criteria.

Compromise is of course a very “European” way of doing things, and is no doubt essential in fora such as the AC. All I am saying is that just realise when you are being played – and when it is time to stand up to bullying behaviour and draw a line in the sand that shall not be crossed. Breaching provisions of the EPC and making threats to the EBoA really ought to have been such a line.

“Breaching provisions of the EPC and making threats to the EBoA,” as the above put it, are just two among dozens of Battistelli abuses. In tomorrow’s hearing only few among these will be considered by the court. If Battistelli was found guilty for only one of those dozens of abuses, he would not obey the ruling. That would only further embarrass the Office. █

Summary: A mishmash of news about patents, mostly regarding the United States, and what can be deduced from that at the moment

THIS coming week promises to be rather big and historic, at the very least in Europe. It’s not just because of Brexit and its impact on the UPC but also because of the Administrative Council’s meeting. Big news is definitely afoot. In order to get some less important news out of the way in preparation for tomorrow (I’m getting back home after 3 days’ holiday), below are bits and pieces of relevance. It’s all from outside Europe.

“With patent ‘quality’ like this, why even pretend that the USPTO does legitimate quality (or novelty) assessment?”

USPTO’s Neglect of Patent Quality a Bursting Bubble

IAM, which is preaching under the guise of 'journalism', actually bemoans not the quality of USPTO patents being terrible and truly worth of cleanup by PTAB. Instead, it keeps moaning about the ‘worth’ of patents, as if not quality control is the problem but lenience of courts etc. “Judge Newman alone again as she warns of devastating loss of public confidence in US patent system” is the latest headline. IAM being IAM, it’s amusing to see how shallow the agenda is to see.

“It sure looks like pride is harder to derive these days from USPTO employment.”For details about the low quality of today’s USPTO patents, see the new article titled “General Mills Granted A Design Patent On A Tortilla Bowl Because Why Even Pretend Anymore?”

To quote the opening part alone: “While we’ve talked in the past about how absurd design patents can get, it’s worth pointing out that, hey, shit’s not getting any less absurd, people. Design patents, as opposed to utility patents, function more like trademarks. The idea is that the “invention” in the case of design patents are supposed to be unique outputs of what might otherwise not be unique inventions that are then said to act as some sort of single-source invented thing. Honestly, the whole concept smells of a workaround on the actual purpose of patent law and it tends to function that way as well. How else do you explain the design patent granted on a toothpick with some lines carved into it, for instance? Or Apple’s design patent on the animation of turning a page within an ebook? Rewarding exclusivity to these types of “inventions” that barely work up the sweat of an “inventor” should seem absurd to you, as should the frequency with which the public is left wondering where exactly the “invention” is in any of this.”

“Patent lawyers everywhere have been trying to spread software patents to just about everywhere on the planet, irrespective of what software developers are saying.”With patent ‘quality’ like this, why even pretend that the USPTO does legitimate quality (or novelty) assessment? We were recently contracted in relation to someone who works for the USPTO and does not wish to be described as such. It sure looks like pride is harder to derive these days from USPTO employment. Today’s USPTO is not what it used to be; rubber-stamping millions of patent applications for large corporations whose managers become USPTO Directors isn’t so scientific anymore.

Trying to Push Software Patents Into India

Patent lawyers everywhere have been trying to spread software patents to just about everywhere on the planet, irrespective of what software developers are saying. Last week, for example, Germany’s Bastian Best asked: “Targeted advertising is patentable in India if a piece of hardware is claimed?” Software patents are not legal in India, but Kenneth Saldanha, one of those hoping to change that, wrote:

A Software Patent in India is a tricky issue. First of all, let us understand what a Patent is. A patent is essentially a set of rights granted to a person in respect of something new (an invention) created by him. This ‘something new’, under the Indian law i.e. the Patents Act, 1970 is called an ‘invention’ and includes a software as well.

No, not really. India’s Patents Act excludes that and those hoping to change that are the same people who say software patents are possible and legal in Europe (or Germany, which is consistently more lenient on the matter). Even Battistelli’s EPO cannot change that, not without the UPC or some other new loophole.

Microsoft Bought a Patents Dud and Engages in Trolling (Through “Microsoft Tech Licensing”)

“Put another way, Microsoft acts like a patent troll (Microsoft Tech Licensing is technically a patent troll).”“At a glance,” IP Watch wrote some days ago, “Microsoft’s portfolio of US patents currently stands at approximately 50,000, compared to LinkedIn’s US patent portfolio of 1,085. Microsoft is well known for asserting its patent rights and has even created a licensing entity Microsoft Tech Licensing Ltd.”

Put another way, Microsoft acts like a patent troll (Microsoft Tech Licensing is technically a patent troll). We wrote over a thousand posts on this subject alone.

Even Microsoft-connected sites have already explained why “Microsoft’s LinkedIn Acquisition Is a Bad Move”. Compare that to other failing companies (LinkedIn had gotten into serious issues before Microsoft placed a bid) that actually have a lot of patents. As IAM put it the other day: “In terms of IP value creation Blackberry is one operating company worth keeping a close eye on. The Canadian tech giant has a huge portfolio of assets – around 38,000 – and has a brand with global cachet; but it is slowly withering in its legacy handset market and is transitioning away from manufacturing devices.”

“Will software patents ever make a comeback in the US? We sure hope not.”We previously wrote explanatory posts on how BlackBerry (or RIM) was becoming a patent troll. Thankfully, many of their patents would no longer be valid or possible to uphold in a court of law. Not in the US and not even in Canada (home country). See the paper “Patents and the Wealth of Nations” by Stephen Haber from Stanford University, published almost 2 months ago.

The Fight Against Patent Trolls Continues

“There are even uglier aspects inside law firms which focus on/pertain to patents and their clients.”Writing about the pro-patent trolls Halo decision, a comment from someone called Mike at IP Kat says that “influential Senator Orrin Hatch has filed an amendment to a funding bill criticizing the Supreme Court’s decision in Halo. Basically, it states that Congress considered the Seagate test and did not act to change it, thus Congress’ intent is for the Seagate test to govern.”

Destruction of Software Patents Continues

Remember some old news about CAFC ruling against software patents, in this case a “patent infringement claim filed by software company Rosebud.” There have been so many such cases since, including a lot from the court that initially authorised software patents in the US. Will software patents ever make a comeback in the US? We sure hope not.

The Ugly Side of Patent Practice

A few days ago Patently-O wrote about “Sexism in Patent Practice”, taking note of what’s characterised as “stories of appalling sexism. Each had been taken as the assistant for the actual lawyer. Each had been called things like “missy” and the like. And each had experienced this at high levels of practice, in recent years, not at some point long ago.”

“That’s where particular patents (or patent holders) do not just have ethical issues but also criminal/forensic issues.”There are even uglier aspects inside law firms which focus on/pertain to patents and their clients. “Commission finally targets Patent Boxes as tools of fiscal evasion,” Benjamin Henrion wrote, “not sure they cover EU2EU transfers” (reference in europa.eu). Prior to it, Francisco Moreno wrote about this as well, but in Spanish (“Exit taxation en paquete anti-evasión de la Comisión:si sacas patentes fuera de la UE pagarás en función de su valor”), his native language.

This serious subject was covered here before [1, 2, 3, 4, 5, 6]. That’s where particular patents (or patent holders) do not just have ethical issues but also criminal/forensic issues. █

Reference: Selective perception

Summary: By misinterpreting the current situation with respect to software patents and misusing terms like “innovation” patent lawyers and others in the patent microcosm hope to convince the public (or potential clients) that nothing in effect has changed and software patents are all fine and dandy

THE USPTO gradually moves away from software patents, whereas the EPO moves closer to them. That’s quite a twist and an unexpected development, but that’s where we are today.

Two days ago we wrote about the Cuozzo decision. We are very pleased as it is another major blow to software patents. Patent lawyers’ sites are still talking about it, but not so much (interest has been lost exponentially). Patently-O, for example, says about another case that “Chief Judge Prost likely held the decision release to await the Cuozzo affirmance that implicitly supports the court’s ruling here.”

“In a nutshell, PTAB survives and all those cranky patent lawyers who compared it to a “death squad” will have to find another lobbying strategy.”Cuozzo coverage from MIP’s Natalie Rahhal said that the “Supreme Court’s decision in Cuozzo v Lee maintains the different standards for claim construction used in the Patent Trial and Appeal Board (PTAB) and the district courts. The ruling indicates that the Court believes the USPTO is performing its inter partes reviews (IPR) in accordance with the America Invents Act (AIA).”

In a nutshell, PTAB survives and all those cranky patent lawyers who compared it to a “death squad” will have to find another lobbying strategy. TechDirt wrote about the decision as follows:

Supreme Court Says, Yes, The Patent Office Can Review Crappy Patents Using Broad Standards

Last week, the Supreme Court made life a little easier for patent trolls, and this week it made life a little harder. At issue was just how the Patent Office could review patents after they were granted. The last round of patent reform, the America Invents Act in 2010, included something called Inter Partes Review (IPR) that allows anyone to basically challenge a bad patent, presenting specific evidence that it shouldn’t have been granted due to prior art. A special board at the Patent Office, the Patent Trial and Appeal Board (PTAB), can then decide to review the patent if it decides that there’s a “reasonable likelihood” that it will invalidate some of the patent claims due to the submitted evidence.

In the case that went to the Supreme Court, Cuozzo Speed Technologies was upset that the PTAB knocked out some patent claims on a patent it held after Garmin filed an IPR effort with the Patent Office, claiming that one of the claims in a Cuozzo patent was invalid thanks to prior art. The PTAB knocked out three claims from the patent, saying that two other claims were equally impacted from the prior art. Cuozzo appealed to the Federal Circuit (CAFC) on two points: first it was upset that the PTAB reviewed three claims when Garmin really focused on just one. And, second, it was upset that the PTAB used “the broadest reasonable construction” of the claims rather than the “ordinary meaning as understood by a person of skill in the art.” CAFC sided with the PTAB, saying that the law says that you can’t appeal what PTAB chooses to review, and that the standard it used was perfectly reasonable.

There is not much coverage of this from pro-software patents people, as one might expect. It’s that propaganda by omission as we noted here before. More than a month after Enfish Arent Fox LLP publishes “Enfish Database Case Brings New Twist in Software Patentability Saga” (no, not really). Growing desperate there for good news, don’t they? Enfish is old news and it was quickly contradicted by the very same court only a few days later.

“There is not much coverage of this from pro-software patents people, as one might expect. It’s that propaganda by omission as we noted here before.”Here is IP Kat‘s very latest on SCOTUS. It mentions the Halo case (pro-patent trolls) and says: “Is the U.S. Supreme Court pro-patent or anti-patent? One of my favorite books on patent reform is by economists Adam B. Jaffe and Josh Lerner titled, “Innovation and its Discontents: How Our Broken Patent System is Endangering Innovation and Progress and What to do About It,” published in 2004 by Princeton University Press. One of the insights from the book is the recognition of how patent legal protection moves like a pendulum throughout history. Notably, we tend to swing either too far in favor of protection or too far away from protection. We have trouble finding the middle way. On June 13, 2016, the U.S. Supreme Court in Halo Electronics v. Pulse Electronics and Stryker Corp. v. Zimmer (Halo) made it easier to obtain enhanced damages for willful infringement in patent infringement cases.”

It’s not a bad post actually and a comment on the above says: There is a clear common theme among most of the patent cases decided by the US Supreme Court in the last couple of years: the CAFC should stop laying down hard-and-fast rules for judging inventive step, patent-eligibility, damages, attorney fees, injunctions, etc. etc. etc. If there is a connection with fear for patent trolls, it is probably that inflexible rules create too many opportunities for abuse.”

“Funny how they mostly evade cases that are not — shall we say — so “convenient” to patent lawyers…”In this particular case not patent scope but the scope of damages was at stake. Those quite likely to benefit from this decision are patent trolls, which most often use patents on software (hence the relevance to patent scope too). IP Kat has also just published this
analysis from Taly Dvorkis (Allen & Overy LLP). It’s about the Halo case as well. Funny how they mostly evade cases that are not — shall we say — so “convenient” to patent lawyers… this particular analysis was posted by a Bristows employee and longtime proponent of software patents, the UPC, etc.

To be frank, my feelings towards IP Kat soured recently, especially in light of the censorship. It’s not about my particular comment but about input I receive about other people whose comments too are being censored, presumably for not concurring with the ‘party line’ (I have repeatedly asked IP Kat on what basis my comment was deleted and I am still waiting for a response, probably in vain). The worst situation is one where people like Merpel hardly write anymore and people from patent law firms write the lion’s share of the blog’s articles. “I’m fully aware of this,” told us someone from the EPO about IP Kat. “Unfortunately I have to agree with you and since Jeremy left the Kat their EPO reports leave a lot to be desired. Also the frequency of reporting (as you already mentioned in Techrights before) dropped remarkably. I suspect pressure from the Dark side…” (EPO management, which earlier this month banned IP Kat). █

The golden rule: the law of rule, not the rule of law

Summary: The European Patent Office (EPO) gets chastised for its gross abuse of the law and receives flak for even breaking its own rules, in another desperate effort to give Battistelli whatever he wants, even when he cannot lawfully have it

THE EPO‘s North Korean standards of 'justice' are putting everyone off, both inside and outside the Office. Even the media has begun speaking about it, in spite of the risk of bans (EPO management — like North Korea's regime — resorts to site-wide censorship of news sites that don't repeat its party line). No wonder top examiners are leaving. Even some top managers are leaving. It’s quite an avalanche which Battistelli has kick-started and does not know how to stop. Battistelli “is doing all the wrong moves,” one insider/reader told us, “shooting himself in the foot. [...] he’s so full of himself that he doesn’t care about the outside world, but he still has two years left, which is a lot of time” (enough time to destroy what’s left of the EPO ‘brand’).

A lot of online discussion has appeared in recent days, much of it in the form of comments about the so-called ‘trial’ against a judge, as previously covered in [1, 2, 3, 4, 5]. This article strives to summarise some of the better comments and shed light on how people — even people from inside the Office — view Battistelli’s gross subversion of justice. It is mostly self-explanatory although there are refutation attempts (e.g. that Battistelli did not issue a threat) which we need to rebut.

Let us begin with the following informal summary of what happened last Tuesday:

DG3 disciplinary case: decision from the Enlarged board of appeals EBoA

- The Enlarged board of Appeal has a public Oral Proceeding in the DG3 disciplinary case. From some prior information, it became obvious that the President had found it necessary to send a long threatening letter to the EBoA.

- Despite the pressure, the hearing was public. During the public part, Mr. Kongstad, the Chairman of the Administrative Council, was asked whether the Council distanced itself from the allegedly “threatening letter” (sic!). Since the answer received was not considered satisfactory, the Enlarged Board announced (according to IP Kat) the EBoA could not in the circumstances pursue the procedure, which accordingly was terminated without the EBA proposing removal from office of the respondent.

- Clearly this courageous decision will have consequences and will feed the debate on the independence of Board of Appeals, topic in discussion in the Reform proposal (CA/43/16), and which has been abundantly been criticised by AMBA, the Association of the Members of the BoA. Clearly a lot more is at stake than the personal case: how could the European public believe and trust the BoAs absolute judiciary independence when, according to the “court’s” own perception, that independence is not unambiguously ensured?

- As far as the Disciplinary case is concerned, it means that unless the case is referred for the FOURTH time to the EBoA, the suspension and sanctions against [the] DG3 [judge] should be removed at the next session of the AC. But… [...] at the EPO, so the weirdest things are possible.

When asked whether the ‘trial’ was definitely over one person with inside knowledge told us: “I don’t know but from the letter I assume that it’s postponed and not definitely closed. Battistelli may try another time and the longer this drags on the worse it is for him but reemploying the judge doesn’t seem to be an option.”

This seems like a case of forever uncertainty (not knowing what will happen), until the judge’s term in the Board reaches the end. In fact, “probably this will be the tactic but I would imagine Battistelli still trying” (to fire him).

“The Administrative Council is complicit,” told us this person, “because they voted to prolong the suspensions in general to 2 years, which is scandalous [...] it’s shameful but nobody want to deal with an institution above the law [...] difficult legal situation” (the EPO's management has already gloated about ignoring the highest court at The Hague).

One person asked a few days ago: “Does anybody know what regulations apply at the EPO?”

Well, the EPO’s management insists that it’s above the law and Battistelli breaks his own rules, so does that matter? Here is the comment in full. It’s about surveillance:

Under EU data protection law (Regulation (EC) No. 45/2001) covert surveillance measures have to be approved by a “prior checking procedure”:
“In cases where the risks to your fundamental rights are high, the institution concerned is obliged to assess the implications of that surveillance on privacy and data protection (also known as an impact assessment). This impact assessment must then be submitted to the EDPS for prior checking i.e. before the surveillance becomes operational.”

https://secure.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/EDPS/Publications/Factsheets/Factsheet_4_EN.pdf

Does anybody know what regulations apply at the EPO ?
Is such retroactive rubber-stamping permitted ?

One response to this was as follows:

In addition to that Bulgarian judges appear to be well versed in the ramifications of covert surveillance operations:

http://sofiaglobe.com/2016/01/15/bulgaria-former-court-chief-gets-suspended-sentence-in-eavesdropping-trial/

The Bulgarian Judges Association seems to understand a thing or two about the “separation of powers” doctrine:
“Judges Association Urges Politicians Not to Jeopardize Law-Based State”

http://www.bta.bg/en/c/DF/id/1015331?PageSpeed=noscript

The names of those involved, Kathrin Klett and Anna Dimitrova, were disclosed as follows:

One should keep in mind that the EBoA in this case comprised two external legal members (Kathrin Klett (CH) and Anna Dimitrova (BG))
(see http://www.epo.org/law-practice/legal-texts/official-journal/2016/etc/se1/p2.html and https://en.wikipedia.org/wiki/Art_23_1/15_and_Art_23_2/15).
They are national judges of their respective countries and it can be assumed that they are well prepared to discern if the letter of the president represented a threat to the board or not.

Here is one person pointing out that three members of the Investigative Unit (it’s not much bigger than that) were summoned, presumably because their ‘evidence’ was illegally collected and/or made up:

Interesting to read that the EBA had invited three (!) members of the Investigation Unit as witnesses to its hearing. Both the chairman of the AC and the president of the EPO must have immediately understood this meant that the EBA would not simply endorse the alleged pieces of evidence put forward against the accused judge, but make an issue also of the way these have been obtained.
Although an invitation to hear witnesses must have been issued largely in advance of the hearing, and put to the president´s attention by his legal staff – who happens to also represent the AC in the procedure (!!) – the president waited for the very last day to send his explosive letter.
This is pretty like launching a bomb on a moving train.
But why did the procedure so direly need to be derailed? And why did the chairman of the AC deliberately not defuse the bomb?

“If the President thinks,” added one person somewhat sarcastically, “that the behavior of the Enlarged Board of Appeal is unlawful, then he should perhaps go to the German courts to get help in this matter.”

Battistelli would never go to a national court like the German courts because that would expose him to all sorts of scrutiny and Hell. Battistelli prefers to keep everything inside the bubble of Eponia, where he is king, judge, jury, accuser, executioner and so on.

“Kongstad was behind the leaked Board 28 communication expressing extreme frustration at Battistelli,” one person pointed out in relation to this leak which we published 4 months ago. Here is the comment in full:

I’m not normally one to see a conspiracy where a cock-up adequately explains events, but:

The AC has now tried three times to instigate proceedings to remove the Board member. Each time they have screwed up such that the proceedings could not continue. They are surely by now well aware of the standards of evidence and argument which will be required to persuade the EBOA to make a recommendation of dismissal, and yet each time they have failed to even get their case off the ground far enough to discuss substantive matters. To misquote Wilde: to screw up one attempt may be regarded as a misfortune. To screw up two may be regarded as careless. To screw up three…?

At first this level of incompetence seems hardly to be believable. Having failed twice now, surely they should have gone in with a watertight approach on the third attempt if they were serious?

Well – what if they’re not seriously trying to remove the Board of Appeal member? Recall that Mr Kongstad was behind the leaked Board 28 communication expressing extreme frustration at Battistelli. Maybe the larger AC players, having lost patience with BB but unable to remove him due to his grip on the smaller members, have decided deliberately to undermine the credibility of their own case to remove Battistelli by other means.

So here we have the EBOA asking Kongstad to distance himself from BB’s threats. Kongstad fails to do so – preserving whatever impression of loyalty to BB may remain. But in doing so, he torpedoes the proceedings against the Board of Appeal member, in a manner which drags BB’s already-soiled reputation further into the mire. Sure, it also makes Kongstad look bad at first glance – but the major damage is to Battistelli. Hey presto, an opportunity for Kongstad to persuade the rest of the AC that “regardless of the merits of the case”, they must reluctantly come to a decision to expel BB for the sake of the reputation of the Office…

Even if the smaller members vote in sufficient numbers to save Battistelli, the loss of support of the bigger members should surely be inevitable (if they have any sense of decency). Devoid of the support of DE, CH, FR, NL, maybe GB, surely his authority is drained and maybe the big players are then banking on the idea that he can either be brought to heel, removed with a final push at a later date once he fails to comply with them again, or persuaded to fall on his sword.

In other words, Kongstad avoids any public statement either against Battistelli, or in favour of the suspended Board member. He appears to remain loyal or neutral to the last, while at the same time ensuring that the proceedings fail in a manner designed to cause maximum embarrassment to BB.

It would be no crazier than anything else we’ve seen from the EPO lately.

Well, to be frank, nobody should assume that the EPO’s management will behave in accordance or adherence to its own rules, let alone national or international laws. Eponia is basically a rogue monarchy.

Here is another bunch of comments regarding whether this constitutes a threat or not (violation of Battistelli’s own Code of Conduct), without actually seeing the letter that was received from Battistelli and then passed to Mr. Kongstad:

Not a threat to declare an action by EPO employees unlawful? That is a very serious threat, because the EBA members, being EPO employees, would then disobey the statutes and could be accused of not acting in the interest of the office. You know what that means: investigation unit and sanctions, perhaps even dismissal. I do call that a threat.

Do not forget that under Article 10(2)(h) EPC the President may propose disciplinary action to the Administrative Council with regard to employees referred to in Article 11(3) (the members of the Boards of Appeal).
Is the potential “threat” becoming clearer ?

Here is the part which raises the possibility that Battistelli made his threat in an effort to hide his goons’ illegal activity, in the same way the FBI and USDOJ often do this in the United States (when Parallel Construction cannot be used to mask the illegal surveillance):

The picture that is emerging here is that one of the aims of the President was to prevent public discussion about the covert surveillance measures.

Does anybody know what regulations cover the use of these measures at the EPO ?
Obviously the EPO is outside the scope of the EU data protection law such as Regulation (EC) No. 45/2001.

Does it have any regulation to cover this matter or is the use of covert surveillance at the EPO completely unregulated ?

Can anybody help on this ?

Justice at the EPO and even outside of it (in independent branches of the Organisation) has become a farce:

I think you illustrate what I was saying. Article 10(2)(h) EPC existed for 30+ years without the Boards feeling unduly threatened by it.

However, the current relations between the Boards and the President are so fragile that they do now feel threatened, even when no explicit threat is made.

Here is a response to the above comment:

How can you claim that no explicit threat was made if you haven’t seen the contents of the letter ?

As far as is known the President expressed the view that it would be “unlawful” to hold a public hearing.

Thus if the Board held a public hearing it would – according to the President’s view – have committed an unlawful act. Or to use the favorite Eponian terminology these days – the members would have been guilty of “misconduct”. And everybody inside the EPO knows what that means. Since December 2015 Board members can be suspended for a minimum of 24 months on a proposal from the President.

Under these circumstances who could blame the Board for requesting clarification from THEIR appointing authority (the Council) to which the President is also subordinate (or supposed to be)?

It is OBVIOUS that the onus was on the Admin Council to clarify the matter and to state UNAMBIGUOUSLY whether or not it shared the President’s view about the “unlawful” nature of a public hearing.

If the Council did share the President’s view then it would be likely to follow any proposal that he made under Article 10(2)(h) EPC.
If it did not share the President’s view then the Board had no reason to feel threatened.

The Council Chair should have given a clear and unambiguous answer to this question and it was his failure to do so that resulted in the termination of the proceedings.

PS: The safeguard of Article 34(2) of the Service Regulations has also existed for Staff Reps. and their nominees for 30+ years: “The fact of of performing such duties shall in no way be prejudicial to the person concerned.”
It was respected (more or less) by all previous Presidents who kept their staff rep bashing activities within the bounds of reason.
That was until the current Pres decided to ride roughshod over it and “prosecute” staff reps and their nominees on trumped-up charges of “misconduct”.

So the nervousness of the Enlarged Board members is very understandable.
After all they are dealing with a person who once told them to their faces “In my opinion you are not judges !”

Now it seems that someone has finally had the courage to tell him “On s’en fout de votre opinion, Monsieur Battistelli”.

Well, based on information we got, it is indeed fair to call it a threatening letter, especially given Battistelli’s history of witch-hunting people (even by making up serious allegations and ‘dirt’).

As the following commenter put it, the “fear is of course fuelled by what the President has done in the past, and by other, real threats that he has made to the Boards.” Here is the comment in full:

All we know (from the accused BoA member’s lawyer) is that the President’s letter used the word “unlawful”. You seem to acknowledge that.

But we have not been told of any actual explicit threat. As far as we know, he didn’t actually say “If you hold these proceedings in public, I will do XXX”. Everything else that you describe is just fear of what the President might do.

That fear is of course fuelled by what the President has done in the past, and by other, real threats that he has made to the Boards. That is the reason for the fragile relations to which I referred. It is the reason why the Boards are nervous. It is the reason why the independence of the Boards is a big issue.

I said all of this in my previous post. You are not saying anything which contradicts it.

The debate over whether there was a threat or not carried on:

I think there is a slight misunderstanding among commenters about what is meant by “threat” in this case. Yes, individual members of the EBoA who are EPO insiders (some were external persons) could indeed consider the President’s letter personally threatening. But I think they meant that the President’s interference was a threat to the integrity of the proceedings, by attempting to forbid the public hearing and by refusing to allow the EPO employees called as witnesses to testify. No fair hearing could be possible in such circumstances.

I guess the issue was not merely whether the members of the EBA themselves felt directly threatened in their job by the intervention of the president. Also the respondent (accused member of the boards) and the public at large had to be absolutely confident that the judges in charge would conduct the procedure and decide freely and in full independence, rather than acting as BB´s puppets. The AC actually is the sole authority which could have given this guarantee in the circumstances, but it failed to do so despite having been offered several chances, apparently.

As a somewhat sarcastic response to the above consider this:

You mean, like the Disciplinary Committee which examined the cases of the three Staff Representatives? Certainly, if they felt threatened and under pressure from Battistelli, they could turn to their appointing authority which is … oh, is Battistelli.

Freely and in full Independece! Urrah!

And in response to the sarcasm:

I like that.

Actually, I shall add it at the end of my grants to dispel the impression in the public that I’m granting only to reach Battistelli’s targets.

I shall remove the “Urrah”, though – it doesn’t fit the code of conduct.

“Barbi” (a frequent poster) made the following good point:

If there were no threats in that letter, BB will not pass up on the opportunity to penalise the EBA for groundlesly failing in ist duty to deliver the requested dismissal for the judge. So that, if he does not request a penalty for the EBA at the next AC, it will mean that the EBA can prove that threats were there in the letter.

The “consequences of doing something that Battistelli alleges is “unlawful” are very clear to every EPO employee,” pointed out the following person:

There’s a huge difference between writing in a letter that the procedure is “unlawful” and actually providing legal arguments in support of that statement – arguments that the EBoA would have certainly discussed and admitted or rejected, depending on their merit – and merely alleging that the procedure is “unlawful”.

As someone noticed above, the consequences of doing something that Battistelli alleges is “unlawful” are very clear to every EPO employee – weapons and nazi memorabilia will be found in your office.

It sure seems like Battistelli has accomplished the unthinkable. He managed to make everyone (even managers) distrust him. He keeps some of them complicit by dangling Euros, but at the end of the day everyone knows that he controls people by fear (or terror). How ironic it is that he keeps exploiting terrorist events to paint himself as a sympathetic victim.

Battistelli has basically helped ‘prove’ that today’s EPO offers no notion of justice (this is essential/fundamental in a system which revolves around a patent justice system), just horrible libel against those who try to uphold justice. As one person put it the other day: “Thank you Mr. Battistelli: you probably have dispelled in the public at large the last doubts that the dismissal and degradation of the three Staff Representatives has been conducted in a fair and independent way.”

There are quite a few comments about this over at The Register as well, in response to an article about Battistelli’s attacks on the boards.

“Surely someone has the power to fire him,” one person wrote. “A good article would explain what is necessary to dismiss him or if it isn’t possible report why not. I’ve read umpteen ElReg article about Battistelli but can’t recall any mention. It reminds of Katrina Percy, chief executive of Southern Health NHS Foundation Trust who refuses to resign despite a number of damming reports. The fact that both of them are refusing to go confirms they need to go.”

“I’d say surely someone has that power,” responded another person. “He’s just very very good at sucking those particular balls/ballettes so that he won’t get fired. With that kind of behaviour he should be fired, that’s what is certain. And those of you familiar with Futurama know with what he should be fired and to where.”

“In theory he can be fired by the Administrative Council which appointed him,” another person pointed out. “But since he comes from their ranks, they will protect him as one of their own just as they have done so far. Especially the Chair of the AC Kongstad who negotiated Battistelli’s secret contract.

“Yes that’s right a contract so secret that not even the ordinary members of the appointing body know what is in it. Only the Chairman has seen it.

“And don’t imagine that voting for BREXIT will help you. The EPO Is not an EU institution. Even after a BREXIT, the UK will remain a member of the EPO.”

Here is another (longer) comment from there:

A comment over on IPKat may shed some light on this point:

=== When the computers in the public – public – area of the Office were put under control, there was no request to the Data Protection Officer. The request was made only after the guy was caught doing whatever he was doing.

=== From the article Welcome to EPOnia, the strange land of European patents that is outside the law:

A strange letter from the head of the EPO’s Investigative Unit to the organisation’s internal data protection officer asked whether the spying described above “would have been authorised”—implying the request was being made after the fact. Also curious is the handwritten authorisation on the document, which is dated December 3, 2014—exactly when the Board of Appeals member was suspended for “alleged dissemination of material which was, as was also alleged, defamatory.”

=== Which means that the data collected from the public computers were obtained illegally.

They cannot be used. Had the witnesses of the IU confirmed this, in a public proceedings, the case would have crumbled. So, the President barred them because their deposition could have helped the defendant.

Here is a less serious comment about Battistelli:

Mr. Battistelli sounds like a candidate for an award we used to have in the US, whereby worthy individuals were recognized for their unique contributions, arrayed in ceremonial finery and dispatched on a Victory Tour.

The colloquialism was “Tarred and feathered and ridden out of town on a rail”.

One recipient was heard to remark, “If it wasn’t for the honor of the thing, I think I’d rather walk.”

But surely your tumbrels aren’t all gone?

As another person put it: “If he was appointed then surely there is a way to get rid of him? An extreme method would be to tell him he’s fired and send security guards in to escort him off the premises. Why can’t this be done?”

A cynic might think that Battistelli hired 6 bodybuards (grossly overpriced) to protect him from firing (as well as protect his bulldog and Bergot) inside Eponia where police is not allowed without his prior approval. His bulldog is not even attending court sessions he's summoned for, perhaps thinking that Zagreb is like Eponia and the law is not obligatory.

One person notes: “in the most recent articles about this nut-case, is who he is answerable to – surely *someone* is able to fire him, he’s not a head of state.”

“Apparently he is,” it’s noted, “effectively.”

Lastly, writes one person, “[a]s far as I can see, that ship has long sailed,” quoting the original author as saying: “It is not known why Battistelli is so insistent on the appeals board hearings being held in private, or whether the appeals board is pushing for them to be held in public, but many suspect that what comes out in the course of the proceedings could be damaging to the president’s standing.”

One of our readers who’s familiar with the whole situation is “quite skeptical” that Battistelli is on his way out. “There was a moment at the beginning of last year when I thought Battistelli could be deposed,” said this reader, “but now I can’t see a majority in the Administrative Council.

“Battistelli can buy a lot of the representatives and the ones of the big countries are not that decided to get rid of him.”

We wrote about this before. It is outrageous and it serves to show that the notion of justice is outlandish and foreign to the EPO, whereas cronyism if not bribes is the ‘norm’. █

“Ask the partner to give you heads up on customer situations – bribe them!”

–Steve Winfield, Microsoft

Summary: A roundup of news about software patents in the United States and why the media’s narrative (dominated by patent lawyers) clouds a rather grim reality for software patents, even after the Enfish v Microsoft case

THE USPTO continues to grant software patents, but relying on Alice at the US Supreme Court (SCOTUS), reassessments by courts or panels typically invalidate these.

SCOTUS and Halo v Pulse

“The USPTO continues to grant software patents, but relying on Alice at the US Supreme Court (SCOTUS), reassessments by courts or panels typically invalidate these.”Based on this new tweet, SCOTUS now recognises the patent trolls issue and even names it as such. This commentary on trolls ought to take into account the strong correlation between patent trolling and software patents (which trolls typically use). Here is what Patently-O wrote about SCOTUS just now: “The Supreme Court today issued an important unanimous decision in Halo v. Pulse – vacating the Federal Circuit’s rigid limits to enhanced damages in patent cases. The decision rejects the dual objective/subjective test of Seagate as “inconsistent” with the statutory language of 35 U.S.C. §284.”

The problem is, irrespective of damage limitations, patent trolls (which may be the spilling of a company’s patent portfolio acting as satellites) can just attack many thousands of firms or people, taxing each in turn. So loopholes remain in tact and overall it’s pretty ugly.

Court of Appeals for the Federal Circuit (CAFC)

It is worth noting that there’s an ever-growing gap between the judgment of USPTO examination — as per the management’s guidelines — and what US courts actually say, even corrupt courts like the Court of Appeals for the Federal Circuit (CAFC). Remember that it was CAFC which started software patenting in the first place and recently ruled in favour of Enfish, getting software patents proponents/maximalists (such as patent lawyers) all giddy and jubilant as though software patents are back with vengeance (they’re not).

Free Software

“It is worth noting that there’s an ever-growing gap between the judgment of USPTO examination — as per the management’s guidelines — and what US courts actually say, even corrupt courts like the Court of Appeals for the Federal Circuit (CAFC).”Software patents are problematic to software developers, no matter if they develop Free software or proprietary software. It’s probably a bit more of a problem for Free software developers because in order to freely distribute copies of their software they must not be coerced into making patent payments to anyone. “Patents and the open-source community” is a new article from LWN which deals with the topic. It is a very long article about a panel in which Professor “Moglen advised separating the past from the future when discussing tactics. For the future, he said, “we should prevent people from getting patents.” But, in the past, the problem is old patents “rising up and smiting” projects, harming innovation. The work that Choudhary does trying to abolish patents, he said, covered how to protect people in the future—and he fully expects SFLC to continue that work, arguing in front of the Supreme Court about the “design patent” case between Apple and Samsung. Furthermore, he said, “open-source software is an immense repository of prior art. Free software can help by educating people on all that we’ve invented and that you therefore cannot reinvent and patent.””

Samsung and Apple

Speaking of this (above-mentioned) “design patent” case between Apple and Samsung — a case which we last wrote about in the weekend — Florian Müller who dislikes Moglen (he once again told off the SFLC a few days ago) has “all the documents and the key points”. To quote his blog: “There never was any doubt that the question of whether the infringement of a single design patent by a complex, multifunctional product warrants an unapportioned disgorgement of profits would be an extraordinarily important one. Previous rounds of amicus curiae briefs already demonstrated broadbased support. But the level of support the petition has just received at this decisive stage exceeds my expectations.”

Days ago we explained why this is relevant and important to Free software. Previously we also explained why design patents are often similar if not indistinguishable from software patents (UI+callback function/s).

Patent Lawyers Upset

“There never was any doubt that the question of whether the infringement of a single design patent by a complex, multifunctional product warrants an unapportioned disgorgement of profits would be an extraordinarily important one.”
      –Florian MüllerSuffice to say, patent lawyers almost always support claimants (never mind justice or innovation). They want a lot of money to swap hands because it’s their source of revenue, other than/aside from obscenely high hourly charges. “How the United States Patent Office Became the Place Where Patents Go To Die” is an example of a new article which bemoans quality control and it is promoted by the usual suspects. It's not exactly surprising that the bubble is now imploding. Patent quality became a joke and over-evaluation of patents ensued. Opponents of the Alice decision continue to cheer for software patents (“Uber files patent on hyperlocal internet search” in this case), but sadly for them, the boat is leaving and software patents are now weaker (in the US) than they have ever been since their introduction by CAFC. “Recall that Enfish comes from a single CAFC panel,” IBM’s Manny Schecter wrote the other day, “when the CAFC ruled en banc in Alice it was splintered” (as a reminder, Schecter is a proponent of software patents not only in the US).

Reality Check From Software Patents Proponents

“I am thus concerned that Enfish will not be as useful as hoped in overcoming §101 Alice rejections.”
      –IP WatchdogWe were rather amused to find the most pro-software patents site out there publishing “Is Enfish Much Ado About Nothing?” The gist of it is that the Enfish decision hardly changed anything at all. To quote the key part: “I am thus concerned that Enfish will not be as useful as hoped in overcoming §101 Alice rejections. The patents at stake in Enfish appear to have been written with a confident view of the prior art and of the invention. So, if a specification does not confidently emphasize the “invention,” its “benefits over” conventional prior art, and “disparage” the prior art, will examiners and judges continue Step 1 characterizations at “such a high level of abstraction”? Is Enfish merely much ado about nothing?”

Yes, it is. Patent lawyers tried to over-emphasise it in order to change public opinion and influence policy-making people. The patent salespeople, on the other hand (in the same site), hope that this one single case will save software patents, not just at the USPTO but also at the courts. They are not paying attention to any case other than the Enfish v Microsoft case. How convenient…

Software Patents Proponents in Denial

Almost a month later (after the decision) Baker Botts LLP is still cherry-picking cases in an effort — however shallow — to shore up software patents. Banana IP (Banana Republic?) does the same kind of lobbying. We have already covered dozens of examples like these. These helped show how the media, especially lawyers’ media, continues to simply ignore every single case that’s ruled against software patents and lean on the rare exceptions instead. Edward Bray (of Marks & Clerk) is now cross-posting his ‘analysis’ in favour of software patents — an ‘article’ (lobbying/marketing) which we mentioned the other day. It just never stops, does it? Even a month later.

“Is Enfish merely much ado about nothing?”
      –IP WatchdogThe USPTO is doing the same thing, as we noted last month on a couple of occasions. Here is an explanation of how it goes: “Abstract idea – #USPTO memo on how the #CAFC Enfish patentability decision obstructed Alice http://www.uspto.gov/sites/default/files/documents/ieg-may-2016_enfish_memo.pdf … #swpat”

The patent office too is latching onto a single case when it serves to ‘sell’ more patents for more revenue. No separation between examination and policy?

Evidence serves to suggest that no matter what USPTO greed does, the courts continue to crush software patents, even after the Enfish decision. “Patents Directed to Electronic Delivery of Messages Found Ineligible in AZ in GoDaddy v. RPost,” Patent Buddy wrote the other day, linking to http://assets.law360news.com/0805000/805041/2016-06-07%20(doc%20344)%20order%20granting%20godaddy_s%20motion%20summary%20judgment%20and%20vacating%20trial%20dmwest_14483743(1).pdf (Alice is mentioned dozens of times in this decision’s PDF).

Many software patents have just died not only in the courts but also at PTAB, so how can patent lawyers argue with a straight face that a lot has changed? “Fatal Flaws of Subjective Alice/Mayo 101 Test [Are] Now Becoming Evident in Contradictory Findings Across Dist. Courts,” Patent Buddy wrote, but why is that test “subjective”? Because patent attorneys and lawyers don’t like it? Because it threatens their profit/income?

The matter of fact is that some courts get it right (they can see that algorithms are abstract), whereas some are still rather clueless (or bad lawyers for the defendant) if not corruptible, as was the case at CAFC before. Microsoft had a lot to gain from losing that case, as we explained last month.

“LinkedIn will soon be owned by Microsoft, which is itself a leading proponent of software patents.”Here is a case of software patents being used against Facebook, which has been stockpiling patents on software. To quote Patently-O: “Indacon’s U.S. Patent No. 6,834,276 covers an improved database system that adds “custom links” so that instances of a “link term” would point to a particular file in the database. Thus, applying this in LinkedIn, you might find that references to “Dennis Crouch” point to my LinkedIn profile. Of course, the way that Facebook & LinkedIn operate does not create the pointer-link for all occurrences of the term.”

LinkedIn will soon be owned by Microsoft, which is itself a leading proponent of software patents. What will this mean? Remember that the Enfish decision too involved Microsoft and people from Microsoft were pleased with the outcome. Speaking of Microsoft, the company is now hoarding software patents on quantum computing, based on this new listing. “Note that the USPTO also has a search engine for patent applications that are not yet granted,” wrote the author. “I am not listing those here. You can use that search engine yourself if you also want to see “Previews of the Coming Attractions”…”

Microsoft is by far the biggest threat to Free software when it comes to patent aggression.

Patents on Genome

“Indacon’s U.S. Patent No. 6,834,276 covers an improved database system that adds “custom links” so that instances of a “link term” would point to a particular file in the database.”
      –Patently-OThe Alice/Mayo test applies to more than just software. Bristows lawyers (i.e. patent profiteers who promote software patents) show no concerns about patent scope expansions. Based on this article from MIP, they aren’t going to say that patents on human genome are insane. Instead there’s promotion of that. As per the summary: “Genomic technology has rapidly created a multi-billion dollar growth industry. With life sciences companies scrambling in US and European courts for a share of the lucrative market, in-house IP counsel should start preparing for the next wave of IP litigation, explain Dominic Adair and Annsley Merelle Ward” (from Bristows).

Unless the USPTO gets a grip and stops granting patents on everything in nature, the valuation of patents and the confidence in the patent office will further erode, leaving patent lawyers reliant on illusions, lying to their potential customers, and overselling the prospects of patent litigation. How long can this madness last? It’s a bubble. █