08.02.16
Posted in America, Europe, Patents at 8:31 am by Dr. Roy Schestowitz
A “licence to kill”? What is this, a James Bond movie?
Summary: The patent microcosm has reached the verge of the pathetic with its attacks on the Patent Trial and Appeal Board (PTAB), which is invalidating software patents and other abstract patents at a high pace (correcting the mistakes of the grant-happy Patent Office)
PTAB, an integral part of AIA, is incredibly popular among practicing professionals, unlike beaurocrats like lawyers who make money out of feuds (not production).
A self-described “IP lawyer”, writing about Cuozzo [1, 2, 3, 4] for the EPO‘s mouthpiece, demonises PTAB using the typical characterisation (“attacks”, “kills”, “death squad”) in the piece “PTAB ‘licence to kill’ renewed” (what next? Will they call the Boards of Appeals too “death squads” and help Battistelli demolish these obstructions to rubber-stamping or “productivity” as Battistelli refers to rubber-stamping?) and a patent attorney who is afraid of PTAB (and uses similar characterisations on a daily basis) says that “CAFC’s EPG decision contrary to Diamond v Diehr-alarm activated is invalid under 101 (EPG) vs mold door opened.is valid (Diamond)” (invalid under § 101, as is usually the case these days).
“Reports of software patents dying at CAFC or PTAB can be found every week (if not every day) because software patents are a dying breed in the US, thanks primarily to Alice.”Speaking of CAFC, Patently-O writes about it this week in relation to definiteness standard. It says that “[t]he Patent Act requires that claims be written in a way that “particularly point[s] out and distinctly claim[s] the subject matter which the inventor . . . regards as the invention.” 35 U.S.C. 112(a). In Nautilus, the Supreme Court held that a patent claim survives this test only if it provides “reasonable certainty” as to the scope and bounds of the invention.”
Sloppy patent applications are bound to incur the Supreme Court’s (SCOTUS) wrath and one has to wonder how many shoddy patents that USPTO examiners let through the sieve are basically a worthless piece of paper.
It is apparent that many software patents are no longer valid, whether they’re actually being challenged or not. Their value is close to zilch. CAFC‘s changing tune after SCOTUS ruled on Alice is noteworthy. We wrote about Diamond v Diehr many times over the years, e.g. [1, 2, 3, 4].
Reports of software patents dying at CAFC or PTAB can be found every week (if not every day) because software patents are a dying breed in the US, thanks primarily to Alice. █
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Posted in Europe, Patents at 7:45 am by Dr. Roy Schestowitz
In the face of Brexit, despite the obvious barriers it creates, Team UPC (a conspiracy of patent lawyers looking to gain from the UPC and standing to profit at Europe’s expense) stubbornly lobbies the UK’s government
Reference: Waterboarding; “Photo from a protest against waterboarding, on the occasion of Condoleezza Rice’s visit to Iceland, by Campaign Against Military Bases. Condoleezza Rice was invited to the protest and to try waterboarding for herself but as she didn’t show some volunteers tried it out for themselves.” (Credit: Karl Gunnarsson)
Summary: The European public, and even those beyond or outside the EU, are subjected to deep-throating tactics by the patent microcosm (military–industrial complex equivalent), which is force-feeding everyone a system which serves nobody other than large (usually foreign) corporations, patent trolls, and of course their lawyers
THE EPO has not mentioned the UPC for weeks. The European media has not mentioned it for quite a while, either. Why? Because it’s dying. They know it; they almost gave up.
Patent lawyers and their convenient little 'cartel', on the other hand, pressure the British government and hope to shame it into ratifying the UPC without discussion, without public consent and without even assessing the post-Brexit situation. This morning MIP published a UPC “progress [sic] report” and said in its summary: “Protocol on Privileges and Immunities of the UPC signed; IP community puts pressure on the UK government; Preparatory Committee and Select Committee to continue with final preparations” (preparation for nothing, just pretense and self-fulfilling prophecy attempts).
“There are sadly not enough (little or none) sites that explain to the public what the UPC would mean to producing actors (like European SMEs), except few conglomerates that lobby for the UPC and sneakily hijack the voices of Europeans.”These people’s disdain for democracy is utterly contemptible. From start to finish the UPC has been an attempt to steal democracy and ram down people’s throats an undesirable system. There’s even ‘roadkill’ inside the EPO (like those resisting Battistelli’s EPO plot) and we are surprised that not more people speak out against the UPC (perhaps because they don’t understand it well enough, if at all). MIP says: “The Protocol on Privileges and Immunities of the UPC is an important legal instrument which safeguards the function of the UPC in the participating member states. The Protocol has now been signed by 13 member states excluding the UK, whose acceptance is required before it can enter into force.”
Last month we wrote about the role played by Battistelli’s ally Lucy Neville-Rolfe and it would be a shameful disgrace if she was allowed to interfere in the process (it is not unthinkable). In a new edition of IAM’s ‘magazine’ there is this article titled “Brexit leaves the UPC in limbo – and that’s no bad thing” (behind paywall). The editor has already stated, repeatedly, that it can take years (it not forever) for UPC to happen. He said this after he had spent years pushing for the UPC. Another article about this alluded to the piece behind the paywall, in which it’s summarised as follows: “The United Kingdom’s recent vote to leave the European Union is likely to have a significant impact on IP management strategies in Europe – some of which are explored in the Insight section – but what it won’t do is curb the growing enthusiasm that European patent owners are showing for the monetisation of their rights. Anders Arvidsson, Keith Woomer and Lucia Alvarado take a look at the current state of play in various European industries and predict how things may develop over the coming years. For anyone seeking to understand the dynamics of what is a highly complex market, this is essential reading.”
As one might expect, coming from a highly biased site that is funded in part by patent trolls and in this case composed by professional patent boosters, the analysis is more optimistic than elsewhere. There are sadly not enough (little or none) sites that explain to the public what the UPC would mean to producing actors (like European SMEs), except few conglomerates that lobby for the UPC and sneakily hijack the voices of Europeans. █
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08.01.16
Posted in Europe, Patents at 6:09 am by Dr. Roy Schestowitz
Summary: A reminder of the tough reality of patent scope in Europe, especially now that Battistelli embraces Chinese standards for patent quality (or lack thereof), in the name of perceived or faked “growth”
Team Battistelli has ruined the EPO and unless Battistelli and his cronies are ousted very soon, the damage may be irreversible. Already, as we noted over the weekend, the Office ignores the European Patent Convention (EPC) and disregards patent quality, so every day patents are being granted in error and there is no effective appeals process (understaffed and lacking capacity, afraid of Battistelli’s next collective punishment).
Yesterday, Benjamin Henrion and another person [1, 2] spoke about the effect of just one single patent troll on Flickr (part of Yahoo!) in Germany. It’s a software patent, so one might gasp and wonder how the heck it has any effect. In reality, Germany is the most software patents-friendly country in Europe, as we noted here in passing about 8 years ago and earlier this year.
“In reality, Germany is the most software patents-friendly country in Europe, as we noted here in passing about 8 years ago and earlier this year.”“With Unitary Software Patents and German judges,” Henrion added, “Europeans won’t be able to upload their pictures to Flickr…” (because the effect of the lawsuits would be widely applicable, more than just EU-wide).
“Facepalm,” wrote another person. “A patent troll is preventing German Flickr users to upload pictures from mobile apps. https://help.yahoo.com/kb/SLN26970.html”
They’re a little late in realising this. It’s rather old news (this was mentioned here before, two months ago), but it’s always good for reminding people that software patents are still a problem in Europe.
This has no remedy in sight and Battistelli already crushes the appeals process, so the same case can happen at the EPO and there is no effective oversight to overrule it.
Very soon “attending oral proceedings before the boards will come with an extra average 3 hours journey,” according to this new comment that says:
The site envisaged for the Boards of Appeal – Richard-Reitzner-Allee 8, 85540 Haar – is located at a 35 minutes ride from the airport, in theory. In reality, the trip uses one of the most crowded highway portions in Germany, including the A9 north of Munich and the peripheral highway A99 with its frequent traffic jams.
Alternately and more ecologically, there is a connection via the regional trains S8 and S4 with a change at the Leuchtenbergring station. Considering that it lasts 1 hour and 15 minutes one way, with one connection every 20 minutes only, attending oral proceedings before the boards will come with an extra average 3 hours journey in the Munich commuter trains.
A couple of rooms for oral proceedings mignt be enough, in the circumstances.
The threat of software patents in Europe is growing, whereas the USPTO goes in the opposite direction after the Supreme Court corrected decades of injustice. It’s not as if Battistelli has any notion of justice; his understanding of the term is the same as Recep Tayyip Erdoğan’s. █
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07.31.16
Posted in America, Australia, Deception, Europe, Patents at 9:47 am by Dr. Roy Schestowitz
This kind of rebranding strategy is nothing new
Summary: How the term CII, or computer-implemented invention, is used to bypass/avoid a meaningful debate about patents on abstract ideas and algorithms (software patents) even in 2016
TECHRIGHTS was created with software patents in mind. The activism was all along focused on the subject. But some pundits are still dodging the term “software patents” and instead saying “computer-implemented” (like CII). The EPO used to do this a lot. It misleads, sometimes intentionally. This happens a lot in the United States, where the USPTO now receives instructions which are increasingly hostile towards software patents because they are abstract..
“Just ascribing a “machine” (sometimes “device”) to some piece of code or combining code with a general-purpose computer oughtn’t make the algorithms suddenly patentable.”In Australia, in the mean time, efforts continue to achieve the unthinkable and make all software patentable. Mark Summerfield says that the “Australian Patent Office has recently issued two decisions resulting from applicants requesting to be heard following examination objections that their respective inventions did not constitute patent-eligible subject matter, i.e. a ‘manner of manufacture’ under the Australian patent law. Both decisions relate to electronic gaming machines (commonly known as ‘poker machines’ or ‘slot machines’), and both involve the question of whether particular computer-implemented features of such machines are patentable. They differ, however, in the outcome.”
The above says the word “software” not even once (and it’s a long article). It says “implemented” or “implementation” 15 times however.
Just ascribing a “machine” (sometimes “device”) to some piece of code or combining code with a general-purpose computer oughtn’t make the algorithms suddenly patentable. This is the kind of loophole embraced by the EPO and IPONZ, arguably in India as well.
Watch out for these dirty tricks. █
“[The EPO] can’t distinguish between hardware and software so the patents get issued anyway” —Marshall Phelps, Microsoft
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07.30.16
Posted in Courtroom, Europe, Patents at 11:58 pm by Dr. Roy Schestowitz
Summary: An unresolved complaint that says “both directors and examiners were negatively affected by the instruction to intervene in the decision-taking process of the Examining Division” and the Appeals Committee was stacked
TECHRIGHTS will soon present more and more evidence of dysfunction at Battistelli’s Office, which is turning from hero to zero in just a few years because of Battistelli’s misguided policies that severely damage patent quality and basically attack resistors at the cost of their human (and labour) rights.
We are still working on ‘examination’ of individual ILO cases, in order to help highlight what Battistelli has done to the EPO since staging a coup, leaving casualties wrestling for a place in ILO’s long queue. Over 80% of determinations end up against Battistelli, based on the latest round of decisions. We previously wrote about one’s assignment to a bogus role after elimination of auditory roles — a Željko Topić classic!
“For those wanting to see the ILO decisions,” wrote one person “go to http://www.ilo.org/dyn/triblex/triblexmain.showList?p_lang=en&p_session_id=122
“3694 and 3699 are worth looking at. ”
“Over 80% of determinations end up against Battistelli, based on the latest round of decisions.”“Judgements 3694 and 3699 actually show the problem with ILO,” wrote a person in response to this. “We have one administrator who was harassed and sacked for displeasing Battistelli… he got less than a month salary in damages. We have a problem with the internal appeal committee which composition is lacking, the office can redo the work. Consequence? Personal must wait another 4-6 years for a decision. The judgements are victories… but Pyrrhic ones. ”
We decided to reproduce the text below and add some highlights to it. We don’t know who T. C. (the complainant) is, as there’s nobody with the initial T. C. among the signatories here, so either the person is not in SUEPO/Central Staff Committee or is no longer at the EPO (after the infamous purges).
Organisation internationale du Travail
Tribunal administratif
International Labour Organization
Administrative Tribunal
C. (No. 3)
v.
EPO
122nd Session
Judgment No. 3694
THE ADMINISTRATIVE TRIBUNAL ,
Considering the third complaint filed by Mr T. C. against the European Patent Organisation (EPO) on 18 May 2015 and corrected on 27 October 2015, the EPO’s reply of 11 January 2016, the complainant’s rejoinder dated 25 April, corrected on 9 May, and the EPO’s surrejoinder of 13 May 2016;
Considering Articles II, paragraph 5, and VII of the Statute of the Tribunal;
Having examined the written submissions;
Considering that the facts of the case may be summed up as follows:
On 21 June 2012 the staff of the European Patent Office – the secretariat of the EPO – were informed of the entry into force as from 20 June 2012 of new Internal Instructions concerning the patent granting procedure. On 19 September 2012 the complainant, in his capacity as staff representative, together with other staff members, wrote to the President of the Office appealing the Internal Instructions on the ground that both directors and examiners were negatively affected by the instruction to intervene in the decision-taking process of the Examining Division. He contested in particular Article 2.4 of Section IC-VIII of the Instructions concerning the role of directors.
The Chairman of the Appeals Committee decided that his appeal would be dealt with in a summary procedure, pursuant to Article 9 of the Implementing Rules for Articles 106 to 113 of the Service Regulations for permanent employees of the Office. In its opinion of 16 December 2014 the Appeals Committee, composed of the Chairman and the two members appointed by the President of the Office (the two members who should normally be appointed by the Staff Committee had not been appointed), recommended rejecting the appeal as manifestly irreceivable as the complainant was challenging a general decision which did not directly and immediately affect him or the staff whose rights he sought to protect.
By a letter of 18 February 2015 the complainant was informed that the Vice-President of Directorate-General 4, acting with delegation of power from the President, had decided to endorse the Appeals Committee’s recommendation. That is the decision the complainant impugns before the Tribunal.
The complainant asks the Tribunal to declare both the opinion of the Appeals Committee and the impugned decision null and void. He asks the Tribunal to refer the appeal back to the Appeals Committee and to order it to “treat the appeal newly ab initio and in a new [...] composition”, without any of the members having taken part so far in the procedure. He also claims 50,000 euros in moral damages, plus costs. As “auxiliary requests”, he asks the Tribunal to order the EPO to declare that “interventions in the tasks vested to the Examining Divisions and Opposition Divisions by the [European Patent Convention], in particular any tasks of examination, are illegal”, and to require directors to withhold from actions that are ultra vires. He also asks the Tribunal to order the EPO to withdraw Article 2.4 of Section IC-VIII of the contested Internal Instructions, or subsidiarily that the EPO makes “available said Section to the public for example by publishing it in the official journal of the EPO”. He further claims moral damages in the amount of 100 euros for each director and examiner to whom the Internal Instructions apply.
In his rejoinder he modifies some of his claims and asks the Tribunal not to refer his case to the Appeals Committee, but to treat the case “newly from the beginning” and grant him an oral hearing. He also
asks to be given “another possibility for a rejoinder for providing evidence which could not have been submitted in the appeals procedure before the [Appeals Committee], as it did not treat the case substantially”.
The EPO was instructed by the President of the Tribunal to confine its submissions to the issue of the composition of the Appeals Committee. The EPO argues that the decision of the Appeals Committee to pursue its activity in a reduced composition was legal and legitimate.
CONSIDERATIONS
1. The complainant filed an appeal with the President of the Office on 19 September 2012 against the Internal Instructions on the patent granting procedure, contesting in particular Article 2.4 of Section IC-VIII of the Instructions concerning the role of directors. He was informed on 15 October 2014 that his appeal would be dealt with in a summary procedure, without hearing the parties, pursuant to Article 9 of the Implementing Rules for Articles 106 to 113 of the Service Regulations. The Appeals Committee was composed of the Chairman and the two members appointed by the President, as at that time the Staff Committee had not appointed the two members and two alternates as provided for in Article 111 of the Service Regulations and Article 5 of the Implementing Rules for Articles 106 to 113 of the Service Regulations. In the present complaint the complainant impugns the decision of the Vice-President of Directorate-General 4, acting with delegation of power from the President, to endorse the Appeals Committee’s recommendation to reject his appeal as manifestly irreceivable. The EPO was requested by the Tribunal to limit its reply to the issue of the composition of the Appeals Committee.
2. The complainant asks the Tribunal to set aside the impugned decision endorsing the Appeals Committee’s opinion, refer the appeal back to the Appeals Committee with a new composition and award the complainant moral damages and costs. The complainant also makes an auxiliary request that the EPO be ordered to withdraw Article 2.4 of Section IC-VIII of the Internal Instructions. He presented new claims
in his rejoinder, asking the Tribunal not to refer his case to the Appeals Committee but to examine it on the merits. However, the EPO was instructed to confine its submissions to the issue of the composition of the Appeals Committee. Consequently, these claims will not be considered.
As to the complainant’s request for oral proceedings, the Tribunal notes that the parties have presented their case extensively and comprehensively in their written submissions, which are sufficient to enable the Tribunal to reach a reasoned and informed decision on the only issue that must be determined at this stage. The request for oral proceedings is therefore rejected.
3. The grounds for complaint are that the Appeals Committee was improperly composed, as it did not include two members appointed by the Staff Committee, and that the Appeals Committee unlawfully applied the summary procedure retroactively, infringing the complainant’s right to be heard. In his rejoinder the complainant contested the merits of the Internal Instructions.
4. In its opinion dated 16 December 2014, the Appeals Committee recommended rejecting the appeal as irreceivable and held that the complainant could not appeal instructions which did not directly and immediately affect him or the staff whose rights he wished to protect as a member of the staff representation. The Appeals Committee attached to its opinion a “Decision on the composition of the Appeals Committee” in which it noted inter alia that the Chairman and the two members appointed by the President had decided to sit in a reduced composition because the Central Staff Committee, elected in June 2014, had not fulfilled its obligation under Article 36(2) of the Service Regulations and Article 5(4) of the Implementing Rules to Articles 106 to 113 of the Service Regulations to appoint its members to the Appeals Committee, which the Staff Committee was supposed to do by 1 October 2014 at the latest according to Article 17(1) of Administrative Council’s decision CA/D 2/14. Despite numerous written requests, this was not done. It further stated that “[w]ith a view to the non-appointment of members by the Central Staff Committee, the Appeals Committee in its aforementioned composition decided to nonetheless continue dealing with appeals.
Considering its ongoing responsibility to provide a means of legal redress, the Appeals Committee [felt] obliged, in the interest of the entire staff of the EPO, to continue hearing and deliberating appeals brought before it. The Appeals Committee [did] its utmost to shorten the length of proceedings and therefore [found] it legally unacceptable to suspend its work for an unknown duration.” The Appeals Committee cited Judgments 1838, under 16 and 17, 1767, under 12 and 13, and 1565, under 8, noting that the Tribunal had held that the refusal of staff representatives to participate in the work of a consultative committee neither disqualified that committee nor invalidated its recommendations, and that the refusal of the staff representatives to participate may not result in a veto right. The Appeals Committee, in its reduced composition, thus decided to continue to sit in order to hear appeals until a better solution could be found.
5. The Central Staff Committee, in a letter dated 3 October 2014, informed the President that appointing nominees to the Appeals Committee was “for the moment, [...] neither appropriate nor desirable”. It went on inter alia to “challenge the legality of changing the rules mid-term, with the specific purpose of causing replacement of the members nominated by the Staff Representation before their mandate expire[d]”; “challenge the legality of asymmetric appointments”; and to note “severe dysfunction in the way the [Appeals Committee’s] work is managed and the cases handled”. It also mentioned other issues of contention and requested a meeting with the President to discuss those issues.
6. The Tribunal notes that none of the cases cited by the Appeals Committee dealt with the composition of an internal appeal body. It also observes that considering the quasi-judicial functions of the Appeals Committee, its composition is fundamental and changing it changes the body itself. 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. The case will therefore be sent back to the EPO so that the Appeals Committee, composed in accordance with the applicable rules, may examine the appeal. In the specific circumstances of this case, no award of moral damages will be made. The question of costs shall be reserved.
DECISION
For the above reasons,
1. The case is sent back to the EPO so that the Appeals Committee, composed in accordance with the applicable rules, may examine the appeal.
2. The claim for moral damages is dismissed.
3. The question of costs is reserved.
In witness of this judgment, adopted on 19 June 2016, Mr Giuseppe Barbagallo, Vice-President of the Tribunal, Mr Michael F. Moore, Judge, and Sir Hugh A. Rawlins, Judge, sign below, as do I, Andrew Butler, Deputy Registrar.
Delivered in public in Geneva on 6 July 2016.
GIUSEPPE B ARBAGALLO
MICHAEL F. MOORE
HUGH A. RAWLINS
ANDREW BUTLER
There are dozens more like the above complaint (and far more pending outcome, which can take years), but we are going to produce a summary/overview and deal with them in turn based on relevance, urgency, priority etc. █
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Posted in America, Asia, Europe, Patents at 11:03 pm by Dr. Roy Schestowitz
Asia’s growing economy has turned the patent system against its creators
Summary: The giveaway of patents to the East, combined with the opportunistic (for patent lawyers) opening to patent litigation from the East, contradicts the very notion of patents as guardians of science and technology in the Western world
LIKE the EPO, here in the UK we have UK-IPO (or just IPO for short), whose record on software patenting we wrote a lot about 8 years ago, particularly in relation to a case of Nokia (or Symbian at the time). It often feels like the policy at the IPO is steered not by British interests but by a bunch of greedy patent lawyers, who are conveniently besieging the British industry for money derived from legal fees, not innovation, development and so on.
“It often feels like the policy at the IPO is steered not by British interests but by a bunch of greedy patent lawyers, who are conveniently besieging the British industry for money derived from legal fees, not innovation, development and so on.”Based on a sponsored ‘report’ from IAM the IPO gave a Patent Prosecution Highway to China, where patent quality is notoriously poor (probably worse than even at the USPTO). But don’t worry; when Chinese companies start going after British companies (as they increasingly do in the US and especially in Texas) the patent lawyers will be the ones pocketing lots of money.
Much of what we saw Battistelli doing with SIPO (China’s, not Croatia’s) is going to cost Europe a lot in the long run. As is apparent from Battistelli’s policies in a variety of areas, short-term thinking and temporary gains are a priority right now (must be ENA ‘logic’) as he won’t be around to pick up the pieces as everything start to rattle and break.
Looking at IAM this past week, patent armament is becoming somewhat of a thing and Asian countries (other than China) are now buying the West’s patents as a matter of strategy/policy. As IAM put it: “It is hard to think of a better example of the ‘transition state’ described by Komiya than Softbank’s recently announced $23 billion takeover bid for UK-based chip designer ARM. Here is a massive investment by a company which started as a traditional telecom into a foreign business that is built entirely on developing and licensing intellectual property. It has also been framed by Softbank chief Masayoshi Son as a major push into the Internet of Things, an area highlighted by Komiya in his address as an “urgent challenge” for Japanese companies to adapt to if they want to remain competitive in the high-tech space. [...] Whether in the form of IP-focused acquisitions like the ARM deal or licensing campaigns like that pursued by IP Bridge, the gradual shift in the Japanese IP environment looks set to continue.”
“Huawei (China) is already using its patents to go after companies in the US, not just in Korea.”ARM makes a lot of its money from licensing, not production. So we can expect money to flow to Asia, not only for production but also for patents. Where does this leave the bubble or the illusion that using patents we can still maintain economic might (while outsourcing all production to the East)? According to Neil Wilkof, patent litigation is becoming somewhat a branding tool. Citing the Huawei v Samsung case (Wilkof’s colleague, Darren Smyth, wrote about Hospira v Genentech, which is less relevant to us), he writes: “Provided that the U.S. law suit does not go the way of the Apple-Samsung dispute, and Huawei is viewed as overplaying its IP hand, or otherwise is seen in a negative light, there is the potential for substantial upside in brand recognition of its smartphones in the vast U.S. market. Indeed, such a benefit may ultimately be much more significant for the company than matters of injunctions and monetary damages. Indeed, patent litigators might consider taking a program or two at their local school of management to learn more about the dynamics of brand-building, and how patent litigation can contribute to this process.”
Huawei (China) is already using its patents to go after companies in the US, not just in Korea. Apple’s patent feuds with Samsung have just made headlines in Western media, saying that “Apple Inc (AAPL.O) on Friday asked the U.S. Supreme Court to clear the way for the iPhone maker to secure hundreds of millions in damages from Samsung Electronics Co Ltd (005930.KS) in a case over smartphone design patents.
“The world’s top smartphone rivals have been feuding over patents since 2011, when Apple sued Samsung in a northern California court alleging infringement of the iPhone’s patents, designs and trademarked appearance.”
“We need to reassess the motivation/s of patent maximalism and rethink the laws; the same goes for copyright in the Internet era, but for different reasons.”Apple’s market share in phones has just fallen more than 20% (see our daily links). Apple distracts from that by stating it sold a billion ‘i’ phones, but numbers suggest that Android OEMs like Huawei and Samsung is where most of the action (even growth) is. Whether Western companies can at all remain competitive — even with lots patents at hand — remains questionable. Asia is now turning the West-leaning patent system against the West, so patent maximalism in its own right won’t be sufficient for maintaining Western dominance. Only patent law firms would gain. I am not personally prejudiced against east Asia (my wife in fact is east Asian), but repeating the old talking points about the essence of patents for “countering Asia” is doing a disservice to truth itself. We need to reassess the motivation/s of patent maximalism and rethink the laws; the same goes for copyright in the Internet era, but for different reasons.
As is noted in more and more sites, China is now exploiting the same loopholes previously enjoyed mostly by patent trolls. This will only get worse in years to come. █
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Posted in Europe, Patents at 11:24 am by Dr. Roy Schestowitz
This “represents a complete and utter corruption of the patent system in Europe”
Summary: Team Battistelli has made a complete mockery of the EPO and also serves to devalue EPO patents, which in the long term can doom the whole system
STAFF of the EPO is rightly afraid of retribution, having seen what happened to vocal colleagues. A lot of the staff still comments in IP Kat, which has become a de facto forum following the end of SUEPO’s forums (we might say more about that one day in the future).
Looking at IP Kat these past few days, we find one commenter who “can also [fore]see a lot of users looking for ways to recoup wasted costs from the EPO.” We are aware of several such users and will write about them in the future. To quote the comment in full:
I now realise that I had made a potentially unjustified assumption that the building in Haar would be used for oral proceedings. However, it now appears that my assumption was correct. In fact, if your prediction regarding “overbooking” is also correct, it may even be a lot worse than I feared.
Is it really envisaged that participants in OPs will be “sent home” on the day scheduled for the proceedings? If so, I can envisage a lot of users (quite understandably) getting pretty incandescent with rage if and when that starts to happen. I can also see a lot of users looking for ways to recoup wasted costs from the EPO.
Not that I disbelieve you, but do you have any figures upon the number of rooms available (both in the current and new buildings) for oral proceedings? If there is any kind of planned decrease, then that would hardly be consistent with the stated aim of “improving efficiency”!
As one person put it a couple of days ago, “for Battistelli “independent” means “you rubber-stamp whatever the investigation unit has written”.” The following comment also speaks about ILO, where many cases are dismissed without even opening the case for judgment. “2 years ago,” says the comment, “Battistelli visited ILO in Geneva to improve relationships.” One might call this lobbying. Here is the comment in full:
With the decision of the elarged board of appeal that is the subject of this article, Battistelli has made his policy clear. He will not change the text of the law, he will simply change the signification of the individual words. It took everybody a long time to understand, because we are not used to words having new meanings completely opposite to what they used to have. It’s newspeak.
Just read the decision of the enlarged board: for Battistelli “independent” means “you rubber-stamp whatever the investigation unit has written”. Can you interpret “no independent fact finding” in another way?
With that in mind, reread all what the Office has published in the past 3 years. With that in mind, consider what “independent board of appeal” means. To help you, I’ll give you an example of an independent tribunal: 2 years ago, Battistelli visited ILO in Geneva to improve relationships. Since that day, the ILO tribunal decided for the Office in 100% of the cases but one or two of little consequences. The majority of the cases are summarily dismissed without a decision on the merits. Check it if you don’t believe me: the judgements are public. THAT is what “independent tribunal” means in newspeak. That is what is coming for DG3 (and probably DG1 as well).
Now tell me how I could still work for DG3 and look at myself in a mirror.
The comment in its entirety is worth reading carefully, as is the comment about soaring costs at the appeal stage (so as to discourage appeals):
It should also be borne in mind that, as the appeal fees approach the stratosphere, and as quality is gradually streamlined out of existence in examination and opposition, the numbers of appeals will quickly fall away. Quod erat expurgandum.
PTAB analogies are brought up (correctly) as follows:
Rather than send parties away from the Haar building, it is more likely that the BoAs will be forced to introduce a concept for oral proceedings along the lines of the PTAB/CAFC with strictly controlled time allowances for pleadings (possibly not quite their ridiculous 15 min. limit though).
About the foreseen process:
I have no numbers myself, but I know from DG3 members who are discussing the matter with facility management that, at present, not enough rooms have been planned. Overbooking was seriously proposed as a solution, given that many ex parte oral proceedings take place in the absence of the appellant, so there should usually be enough rooms available. It is however still thinkable that we manage to get more rooms, or that some oral proceedings take place in the Isar building (which would make the move to Haar look even more ridiculous).
And in response to this one person wrote:
Thanks for the clarification.
So if I understand correctly, the building settled upon by the EPO management is not only in a location that will be very inconvenient for the users (compared to current facilities) but is also too small to accommodate the expected workload.
Is that correct? If so, then I reiterate my comments from 25 July. I would also add that, as well as making no sense from any objective viewpoint, BB’s decision now looks to be totally incompetent. This is because any accountant can see that squeezing the Boards into a building that is too small for them whilst paying to keep a larger (and considerably more expensive) building under-utilised is just utter nonsense. It will be interesting to see how the AC’s Budget and Finance Committee squares that particular circle!
New BoA facilities would be “too small to accommodate the expected workload.” Well, that’s just how to kill them softly. “Increasing the profitability of the EPO (whilst forgetting why the EPO exists)” is the way this person put it. In full: “It is correct (unless the plans are changed). Financially, it does make sense, if parts of IT and administration are moved from the Pschorrhöfe to the Isar building, and the planned overcapacity in examiner staff that will be recruited is then located in the newly created space in the Pschorrhöfe. At some point, of course, the EPO will need somehow(!) to get rid of the excess examiners and will sell the space that again becomes available. This will then bring a nice profit since it is office space in the city centre. Increasing the profitability of the EPO (whilst forgetting why the EPO exists) seems in any case to be one BB’s main goals.”
One person asked: “Weren’t the last IT people driven out of Isar at the time of the great asbestos abatement?
“Anyway, I think the room freed up could be used to house more BB cronies in the PR department.”
Another person referred to the ILO decisions we alluded to the other day and said: “I was not aware of the results of the last session of ILO yesterday. Apparently, the tribunal can be more independent than I thought. Good news, but I wonder how Battistelli will react. As to building rent: the Office evacuated the rented buildings in the west of Munich last years, and concentrated examiners in smaller rooms. Rent was not considered to be an option at the time.”
Published on July 28th was the following analysis by Finnegan, Henderson, Farabow, Garrett & Dunner LLP. It’s about Battistelli rushing the whole process (uncertainty and certainty as euphemisms) and it said: “The European Patent Office (EPO) recently announced a new, streamlined procedure for oppositions under its ‘Early Certainty for Oppositions’ initiative. In particular, from 1 July 2016, straightforward opposition cases should now be decided at first instance within 15 months from the end of the nine-month opposition-filing window. This not only represents a shortening of the opposition procedure by around a year compared with current average timescales, but also benefits third parties by helping to provide legal certainty in a more timely manner. It, however, places additional pressure on patent proprietors who may need to prepare their defenses more quickly.”
This, suffice to say, is total hogwash. What Battistelli wants is a rushed process which favours large corporations and has no effective mechanism for quality control (examiners overruled). Here is someone quoting SUEPO about it:
I did not need to wait a long time to know what newspeak means for DG1. There is a new article from SUEPO. I will just cite the beginning:
Getting there faster, a case of unclarity?
An Efficiency Presentation has been given in a number of administrative directorates in Berlin during the recent weeks. It was based on a power point presentation titled “Getting there faster” and was further complemented by individual remarks by administrative as well as examining staff.
It has come to the Berlin staff committee’s attention that some parts of this presentation appear to have been misunderstood by many technically qualified examiners in Berlin who felt that those parts of the presentations in their respective directorate lead to undue interferences, be it from interested circles outside or inside the Office, with the responsibilities directly vested by the Contracting States in Examining Divisions (Articles 15 and 18 EPC) to which these examiners are administratively assigned. The title as well as some remark was understood as a prompt to ignore some of the Examining Divisions’ responsibilities in order to more quickly grant patents on European patent applications. Apparently, the following messages were perceived:
(a) the requirements under Article 84 EPC, especially clarity, were often less essential for the quality of the granted patent
(b) the description and figures should be employed, together with the claims, to determine the subject-matter for which protection is sought with the procedure up to grant
(c) clarity of the claims was no ground for opposition, and lack of clarity as such should thus not be the basis to refuse a European patent application
(d) the procedure up to grant should be a co-operative and an interactive process involving essentially the entrusted examiner and the applicants’ representatives as partners, preferably via telephone conversations instead of oral proceedings
(e) a benefit of the doubt on the part of the entrusted examiner should lead to a proposal to grant
(f) the other members of the divisions should follow the entrusted examiners’ proposals to grant
(g) the proposal to grant should promptly be signed by the other members when their own merely administrative checks have been done, i.e. without their own assessments of the requirements e.g. for patentability.
(citation end)
Expect management to deny everything. Newspeak only works as long as it is not translated.
…and the new DG1 policy is the final nail in DG3 coffin. If DG1 never refuses any patent there won’t be any appeals.
What Battistelli has done “represents a complete and utter corruption of the patent system in Europe,” said this commenter:
If what you report is accurate, then this represents a complete and utter corruption of the patent system in Europe.
The provisions of the EPC are not there merely for decoration, they serve a very important purpose (namely, ensuring an appropriate balance between the interests of patentees and the interests of the general public in Europe). The requirements for patentability, including support / clarity, cannot be ignored. Indeed, the fact that Article 84 is not a ground of opposition makes it more (not less) important that examination on that ground is taken seriously.
Further, encouraging a “rubber-stamping” approach means nothing less than the elimination of an important quality control checkpoint.
And don’t get me started on the policy of “if in doubt, grant”. Why should the general public have to go to the trouble of revoking a patent to subject matter that has never been proven (to the reasonable satisfaction of an examiner) to be patentable in the first place?
Is there any verifiable evidence that the presentation in question took place? If not, then I guess that (in view of EPOnia not being part of Europe) making freedom of information requests regarding internal policies would not elicit that evidence either. Which highlights yet another possibility for corruption that the founding fathers of the EPC did not foresee, namely the possibility for “internal policy” to be crafted that is completely at odds with the black letter law of the Convention. What a mess!
A response to this (today) said:
I don’t know any more than what I have written. This is the text directly from the suepo Berlin site, I just cut the rest, where suepo explains all this is against the EPC, but readers of ipkat already know that. And I don’t expect that anything will ever be published officially. This is typical for our new management: tell the staff about the new policy in a meeting. If people ask for written instructions or object that the policy is inconsistent with written regulations, management will consider that they belong to the people “against”. Which is a recipe for early retirement ( McGinley) or even dismissal, as exemplified recently by 4 staff representatives, one board member, one press spokesman and probably more we don’t know. Expect directors and examiners to quickly apply that new policy. People don’t resist for long after a meeting with their superior in recent times.
The same kind of methods were applied by other ENA graduates at France Telecom. It’s in the French press, some managers were found guilty. But of course Battistelli has immunity. Nevertheless, he is not going to put anything in writing.
I don’t see how the new policy can be avoided. Consider the EPO to be a registration system within a year.
Commenting on patent quality, one person noted: “Well, there would still be appeals for opposition cases, where there one side must do less well than the other.
“At least as long as this “business” isn’t carved away from the EPO to make the UPC a “success”…”
The UPC won’t happen (at least any time soon, especially not in the UK), so it’s irrelevant to Battistelli’s argument. Battistelli is killing not only the boards of appeal. The entire European patent system is in imminent and inevitable state of collapse because of him; those who dare say it out loud (without anonymity) are punished and then defamed (to discredit or distract from their message). █
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Posted in America, Asia, Europe, Patents at 11:02 am by Dr. Roy Schestowitz
Those who haven’t chips in the game against those whose entire game is contingent upon them
Summary: In light of the Alice case, large monopolies and their messengers moan about patent quality control, whereas here in Manchester people have an open debate about the potential harms of over-patenting
THE world is becoming a safer place for software developers because business method/software patents are dying in their country of origin. According to one of the most pro-software patents sites out there (IAM), patent “application numbers [for Visa] are down post-Alice” and “[t]his may well reflect the much tougher environment that patent owners now face in the US thanks to the popularity of post-issuance reviews and the general uncertainty around patent eligible subject matter since the Supreme Court’s Alice decision was handed down.”
Later in the weekend we intend to report on other trends which suggest the same thing, in spite of endless FUD from patent lawyers who profit from software patents. “Patentism is a religion and should be treated as such,” Benjamin Henrion wrote the other day. “Only believers.” Henrion — like myself — is a software developer fed up with patent maximalism which expanded patent scope to just about anything in software, irrespective of any evidence that suggests it would speed up development. He responded to this new article about an event right here in Manchester and told them: “It is a religion and should be treated as such.”
The article or event was titled “The Great IP Debate: Do patents do more harm than good?” To quote:
Patents have been with us since the 17th century. In exchange for disclosing one’s invention, the state grants a limited, legal monopoly over exploitation. In theory, the system encourages more innovation, for the good of society. But recently, voices of dissent have been rising. Legal costs are high. Specialists game the system to their advantage. Life-saving innovations get priced beyond the means of the poor.
On July 26 in Manchester, UK, at Euroscience Open Forum, Europe’s biggest biennial science conference, Science|Business Editor-in-Chief Richard L. Hudson organised a formal pro- and anti-patent debate among four experts, moderated by Dame Nancy Rothwell, President and Vice-Chancellor of the University of Manchester. Herewith, his paraphrase of the arguments, so you can judge for yourself.
I know some of the people in there and I very much doubt they can make compelling arguments about the problems with patent maximalist. The University (which is where I did my studies and also worked) is quite keen not only on patent maximalism but copyright maximalism as well.
Sadly, there’s a strong lobby for software patents out there and it comes through all sorts of media, including the above (IAM). Speaking of IAM, watch this pro-software patents site promoting not innovation but patent trades, composed by one who was “recognized as one of the world’s most foremost IP strategists by Intellectual Property Magazine (IAM),” i.e. sponsored nonsense.
The latest shameless self-promotion by patent lawyers comes even from India (“Patenting For Success” is the title and it is not objective at all; recall the situation in India) and MSF, in the mean time, expresses “patent opposition in March in India to prevent Pfizer from patenting a pneumonia drug” (to deny poor people access to essential generic drugs).
Techrights is NOT against patents but against patent maximalism or — put another way — in favour of patent quality. The patent industry (or microcosm) doesn’t care about quality; to them it’s just an obstruction to business (theirs) and, accordingly, we need to counter their selfish desires. █
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