09.18.16
Posted in America, Australia, Courtroom, Microsoft, Patents at 3:32 pm by Dr. Roy Schestowitz
Writing their nonsense only when it helps them attract ‘sales’ (where desired ‘products’ are typically lawsuits)
Summary: Increasingly desperate to convince people to pursue software patents and/or use their software patents to initiate growingly risky lawsuits (high risk of losing), the patent microcosm hugs McRO v Namco while distorting the complete record of the Court of Appeals for the Federal Circuit (CAFC) on this subject
WITH patent quality still a huge problem at the USPTO, as we last noted in our previous post, it’s only expected that many invalid software patents remain inside the system, probably hundreds of thousands of them (some have expired by now and will thus never be invalidated).
After Alice (2014 decision by the Supremes) a lot of software patents essentially became invalid, but only upon reassessment/assertion/challenge/appeal. The Court of Appeals for the Federal Circuit (CAFC), quite notably, finds them invalid about 80%-90% of the time. CAFC is where software patents typically come to die (the question has not returned to the Supreme Court since 2014). There’s rarely a chance for appeal after that, maybe just a referral or some other extraordinary circumstances.
“They’re most upset at (and growingly vicious against) PTAB because it reverses decisions to grant (post-grant) at a very high rate and at a low cost (to the petitioner/appellant).”Patent lawyers are rightly upset (from their point of view that is hinged on profits from legal fees) at the Supremes for ‘interfering’ with the patenting of software. They are also upset at CAFC for invaliding so many software patents. They’re most upset at (and growingly vicious against) PTAB because it reverses decisions to grant (post-grant) at a very high rate and at a low cost (to the petitioner/appellant).
How do patent law firms respond to the current situation? Simple! They lie. They cherry-pick, they spread half-truths, they insult judges, they shame or block other people (yours truly included), and they generally show their true selfish selves. I have spent years writing about this and I saw how bad this can get. These people are not friends of investors and inventors. They’re leeches. They just try to come across as professional, objective, and law-abiding.
Last week we wrote several articles about McRO v Namco noting (quite correctly as it turned out) that patent law firms would start another Enfish-like extravaganza in the press. They latch onto this decision in an effort to market themselves and mislead the public (potential clients). Here, in one of their blogs, the predators are trying to take down the Supreme Court’s decision on Alice. Section 101 is named as though it’s a nuisance that needs to be removed. Here is one of the predators saying that he is “not sure CAFC using “preemption” in same way envisioned by SCOTUS in Alice-MCRO seems more like “passes step 2″ case” (refers to steps in the law).
“They just try to come across as professional, objective, and law-abiding.”An ‘article’ or ‘analysis’ (really marketing/self promotion) by Joel Bock, David Metzger, andEric Sophir of Dentons says “McRo decision gives software/computer-based patents a big boost,” but that’s pure sensationalism. This headline is wishful thinking nonsense as it ignores ~90% of CAFC’s decisions on the subject. How convenient…
Where were sites like these each time CAFC ruled AGAINST software patents? Don’t believe patent lawyers who say software patents in the US are suddenly fine. For those who think it’s just an isolated article or few articles, see also [1, 2, 3, 4, 5, 6, 6, 7, 8, 9, 10, 11, 12]. We don’t have time to rebut each of these individually, but what we have here is rigged “media” of lawyers. Over 20 articles have been produced about a CAFC decision in favour of software patents and usually there are zero or very few about decisions against software patents. “Liars” might not be the right word to describe the authors by; they’re just opportunistic and they are selectively covering things so as to promote software patents under the guise of ‘analysis’. We saw this many times before and provided evidence of it.
“Don’t believe patent lawyers who say software patents in the US are suddenly fine.”Noteworthy is the fact that the legal firm which fought for software patents here is the same firm that works for Microsoft (on patents) and the EPO hired to bully me (Mishcon de Reya). Here is their press release about it. They are clearly hostile towards people like me, for at least 3 reasons (EPO pays them to send me threatening legal letters, Microsoft pays them to fight on the patent front, and they are working to defend software patents). Speaking of Microsoft, the company still says it “loves Linux” but it also loves software patents which are inherently not compatible with Linux. Here is yet another ‘article’ (from a Microsoft advocacy site) showing that Microsoft celebrates the above decision. We gave another example of this several days ago. The intersection of interests here is uncanny.
What did Watchtroll say about all this? We mentioned some of his responses before (widely-cited by others in the patent microcosm on the face of it), but now there’s more on other subjects [1, 2], still advancing a patent maximalism agenda (as if limiting patent scope is a sin).
Proponents of software patents, including those who track the impact of Alice closely, latch onto this one single decision in favour of a software patent while mostly ignoring the rest.
IAM’s writers, longtime propagandists of software patents and PTAB bashers, carry on passing off agenda as 'news', this time with the headline “After the CAFC’s Planet Blue decision early Alice motions may now fade away” (citing only the patent microcosm, e.g. a partner in New York-based firm Kroub Silbersher & Kolmykov).
“Proponents of software patents, including those who track the impact of Alice closely, latch onto this one single decision in favour of a software patent while mostly ignoring the rest.”We are still waiting for IAM to give a platform not just to patent lawyers who profit from software patents but actual programmers. Not that it ever happens…
“In the following piece,” IAM wrote, “Silbersher argues that the true significance of the case is not what it says about software patentability, but in the way it may affect how and when courts handle motions to dismiss based on the Supreme Court’s Alice decision. Read with the earlier CAFC judgments in Enfish and Bascom, Silbersher states, Alice motions at the front end of a litigation are set to become significantly less attractive. For patent owners, that is very good news.”
That’s just another example of lawyers name-dropping Enfish and Bascom, hoping that readers will pay attention to none of the other decisions (all against software patents as of late). This isn’t reporting, it’s lobbying.
Speaking of lobbying, David Kappos rears his ugly head again. He was hired by large corporations including IBM (his former employer) to help demolish Section 101 and “IBM’s Chief Patent Counsel Manny Schecter welcomed the McRO decision,” according to the above. Indeed, based on his tweet, IBM is still against the Supreme Court and for software patents. Benjamin Henrion told him that “freedom of programming is a one liner.”
“How far will the patent lawyers go in their attempt to save software patents?”The software patents proponents of IBM, a huge patent bully, are at it again. They just don’t seem to care what the Supremes say. Here comes IAM trying to shoot down Section 101 at a legislative level. To quote: “Of course, the likes of former Chief Judge Michel would argue that the fundamental test that the court is trying to apply to determine whether something is patent eligible remains inherently flawed. But as the case law on 101 as it applies to software begins to mount from the Federal Circuit, members of the tech community can at least rest a little easier that question marks no longer hang over large parts of their patent portfolios. If nothing else, that is to be welcomed.”
IAM says that “members of the tech community can at least rest a little easier” with software patents, but that’s a lie because technical people dislike these. Reading IAM about patents is like watching Fox ‘news’ coverage of all things Obama. It’s just agenda disguised/dressed up as news. It’s agenda presented in the form of ‘news’, and truly a great service to Battistelli when he needs to support some lies of his.
Watch the patent microcosm trying to resurrect software patents by trashing the Supreme Court [1, 2] in light of the above. It’s like that pack of hyenas we wrote about a week ago. How far will the patent lawyers go in their attempt to save software patents?
“Is the Technology for Self-Driving Cars Patent-Eligible?”
“Had the USPTO never granted these software patents, all these efforts, time and money (going into the pockets of patent law firms) would be spared.”That’s the headline of this new ‘analysis’ from the patent microcosm, writing about software patents that are disguised as 'device' (cars), prior art being the driver. The answer is probably no; no for the courts but yes for the USPTO, which continues to grant almost everything that comes in, irrespective of quality, scope, prior art, etc. The examiners cheat on their timesheets (defrauding taxpayers), so shoddy work seems to be the norm. Here we have an article about Goldman Sachs filing for software patents on electronic payments — the one area where the invalidation rate of software patents is extremely high (around 90% of patents invalidated). Blockstream says it is pursuing patents in this area/domain, but it has not got any. Patent examiners oughtn’t grant any, either (citing the CLS Bank case).
Elsewhere in the news we find this short docker report about a case in the court of choice of patent trolls, one of several in the Eastern District of Texas. It upholds software patents, as usual, probably because it’s a farce of a court and it likes to brag about being friendly to the plaintiffs, especially trolls. Upon appeal, and if it reaches CAFC (expensive), the patent would probably be invalidated. This can be a rather traumatic experience to people who thought they had earned valid patents from the USPTO. Take the case of Keith Raniere; he used several software patents for frivolous litigation and got penalised very badly for it, as we noted earlier this month. Another new report about it says: “The plaintiff, Keith Raniere, filed the suit in February 2015 against AT&T and Microsoft, alleging the companies were using a number of his patents for intelligent switching systems for voice and data. In his lawsuit, Raniere claimed that AT&T used the software patents in its AT&T Connect service and Microsoft used the patents in its Lync 2010 products. [...] Following dismissal, both AT&T and Microsoft filed a motion to have their attorney fees covered by Raniere. AT&T requested that $935,300 be paid by the plaintiff and Microsoft presented $202,000 in costs and fees to be covered. Lynn requested both parties present proof of the costs and fees incurred from the case and denied Raniere any chance to correct or modify his lawsuit.”
Had the USPTO never granted these software patents, all these efforts, time and money (going into the pockets of patent law firms) would be spared. But therein lies the key point. The greater the mess, the more profit the patent microcosm makes. This isn’t only a US problem but a European one too (see all the UPC lobbying).
“The greater the mess, the more profit the patent microcosm makes.”We previously wrote about software patents in Australia (they sort of exist). This new post from the patent microcosm says: “The expansive approach of NRDC was subsequently relied upon by the Federal Court in 1991 to establish that computer programs were not excluded from patent eligibility under Australian law, a decision that effectively opened the gates for software patents in Australia.”
As we wrote about this before, we can safely say that Australian software developers are upset by that. They never wanted such patents; it’s the patent microcosm that did (while trying to convince developers that they too need software patents). █
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Posted in America, Patents at 1:56 pm by Dr. Roy Schestowitz
Summary: The USPTO must up its game on patent quality (not relying on PTAB and the courts correcting its errors after the grants) or face growing backlash that tarnishes its public image
When rogue entities like patent trolls and greedy lawyers virtually take over the patent system (for self enrichment, not for innovation) it leads to blowback like this. That’s just what happens when your patent office approves nearly every crappy application:
Unpatent Launches Combination Crowdfunding/Crowdsourcing Platform To Invalidate Stupid Patent
I’m always super interested in new ideas for hacking the patent system to get around just how broken it is — and the fact that Congress still seems to have no real desire to fix things — mainly because some of the largest patent system exploiters are standing in the way of necessary reform. So it’s always cool to hear of new ideas to try to fix things without having to bother with changing the law.
The latest interesting idea: Unpatent — a combination crowdfunding/crowdsourcing platform with the goal of invalidating stupid patents. Each stupid patent gets its own crowdfunding campaign, in which Unpatent looks to raise at least $20,000. This money does two things: it is used to pay for a legal challenge (a so-called “ex parte” challenge) of the patent at the Patent Office and to pay out rewards to those who find the compelling prior art to invalidate the patent. As you’ve likely figured out by now, that’s where the crowdsourcing comes in. Individuals can submit their own prior art examples, and if their examples are used in invalidating the patent, they can share in some of the money raised.
They’re kicking it off by challenging a patent on customizing stuff on the internet. It’s US Patent 8,738,435 on a “method and apparatus for presenting personalized content relating to offered products and services.” If that sounds familiar, it’s because it was EFF’s “Stupid Patent of the Month” back in February. The company holding this patent, Phoenix Licensing, has filed a bunch of troll lawsuits in (of course) the Eastern District of Texas.
This sounds similar to initiatives we covered before. People clearly understand that the USPTO (and growingly the EPO too) grants many patents in error. Being granted a patent these days does not mean you invented something novel, at least not until some court looks properly into it (profound analysis).
“Despite Ongoing Efforts,” says this new headline from IP Watch (perhaps referring to PTAB, which is under a constant attack), “USPTO Still Faces Patent Quality Issues” and to quote the outline: “The US Patent and Trademark Office continues to face claims of low patent quality despite a major initiative to address the situation. The agency has been the subject of several critical reports by oversight agencies and recently defended its patent quality improvements before Congress. Patent practitioners say that while patent quality may not actually have worsened over the past few years, the USPTO’s ongoing lack of financial and other resources, and inconsistent judicial decisions, are among the factors causing problems.”
One might think that the USTPO should heed the warning and stop issuing software patents. The courts sure don’t like them. But no, the USPTO’s examiners grant new software patents even though courts continue to invalidate them (new example). Is this quality control?
Here is a new brag that says “CyberArk, the cybersecurity company, announced on Wednesday (Sept. 14) it was awarded another patent by the U.S. Patent and Trademark Office for security risk detection technology.”
Again, that’s a software patent. There are many more like it and they serve to show that examiners at the USPTO are still doing a poor job. If there were to apply Section 101 (Alice), then these applications would not get far.
Efforts such as Unpatent serves to damage the legitimacy of the USPTO (affecting also its reputation when it comes to trademarks, not just patents), so it’s in the interest of the Office to correct this, in lieu with the recent reports of GAO. █
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Posted in America, Law, Patents at 1:26 pm by Dr. Roy Schestowitz
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. █
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Posted in Europe, Patents at 12:38 pm by Dr. Roy Schestowitz
Newspeak and half-truths would actually be an improvement for them
Deceiver at the Internet Movie Database
Summary: A rather bulky rebuttal to some of the latest misleading statements from EPO management and law firms that wish to expand/advance their own careers at the expense of the integrity of the European patent system
THE SITUATION at the EPO is pretty grim right now, but what’s even worse is the UPC, which threatened to bring some of the worst elements of the USPTO into Europe and beyond.
“There are even very expensive events that are intended for shameless self-promotion by Battistelli.”EPO workers must have noticed that after the summer the EPO has barely said or announced anything. The managers seem to be trying to keep a low profile (as allegedly advised by their PR 'experts') and the only time they speak out is at staged events where there’s no opportunity for dissent (if there is dissent, the EPO will delete it from articles even after publication). There are even very expensive events that are intended for shameless self-promotion by Battistelli. The EPO plans a similar event for next year and is publicly asking all those whom it can message to play along. It even gets pushy and sends unsolicited promotion. Check out some of the latest EPO 'spam' to European universities (latest examples are in [1, 2, 3]). It’s pathetic if not painful to watch. As we noted here before, the EPO under Battistelli wastes a fortune essentially buying off the media for positive puff pieces in several countries [1, 2]. This is not sustainable. There are also staged pro-UPC events, supported by the EPO and funded by its PR 'experts'.
“There are also staged pro-UPC events, supported by the EPO and funded by its PR ‘experts’.”Not much is being said these days about the social climate at the EPO, but there’s propaganda in the making and we are prepared to respond to it (the Social Conference is scheduled for next month). Instead, right now the topic on everyone’s lips is the slip in patent quality and sometimes the slip of the UPC.
“The EPO likes to give the impression that it’s possible to achieve certainty for the applicant,” one person wrote a few days ago. Well, certainty that one can get a patent is not certainty that the patent is a valid one and that the courts will respect that patent. Watch how many patents granted by the USPTO are now dropping like flies at the courts (potentially destroying the applicant). The full comment said: “The EPO likes to give the impression that it’s possible to achieve certainty for the applicant and for the public by carrying out a high quality examination. This is bottucks. EPO search and examination is trivial compared with the effort expended when there is an imminent risk of winning/losing a lot of money. It’s a useful first approximation – nothing more.” In response to this one person wrote:
It is true that a high productivity or production does not necessarily lead to a lower quality. If people know what to do and how to do it, it is possible. However the prerequisite is that people have been correctly trained.
I have strong doubts that this is the case at the EPO in view of the tremendous production pressure put on newcomers. How can it be that after three years a newcomer is fully proficient in search and in examination? In the past, when search and examination were separate, the three year goal was for each function, now only for the mixed one.
Anyone believing that the EPO searches all dependent claims is believing in father Christmas, not to say more, and Mr Spigarelli should know better.
If an examiner finds an X document, if he finds one, then he stops the search. If he wants to have a good production and achieve a quick grant, he will find nothing but a pseudo X or a lot of A documents. Examiners are not all to be blamed, they do what they are told, and anyone resisting this will be mowed down.
Look at case law of the boards of appeal. It happens that the Board has to quote new prior art when deciding on appeal following refusal of an application. If the search is so wonderful, why would the boards be led to bring in new prior art? Whether it is correct to do so is an other point, but this is what is happening.
It is certain that if the claims are correctly drafted a search is easier to carry out. Simply trying to push the blame towards applicants is a bit too easy. The responsibility is shared in the present situation.
Simply churning out searches and grants is not necessarily a sign of quality. The objectives according to the plan are achieved, if not overthrown. Remember what happened to “planned” economies. But the top management of the EPO can feel happy. They are managers…. but certainly not leaders. But this is another story.
Several days ago we wrote about Battistelli's patent quality brag (comparing the EPO to arguably the worst patent office in the West when it comes to patent quality). Since then — as we are watching this closely — the brag has reached some Australian Web sites with a modified headline [1, 2]. This headline is a lie unless EPO and Battistelli are the same thing (we explained why it’s not, noting that staff — quite broadly — loathes Battistelli and disagrees with him). These news sites are rewriting the headline from Andrew Chung (or his editor at Reuters) like some other people did before them, so “Europe patent boss” is becoming just “EPO”. Not good…
One can be left with the illusion that the only takeaway is that EPO quality is absolutely fine and great when real figures/facts are somewhat alarming.
“One can be left with the illusion that the only takeaway is that EPO quality is absolutely fine and great when real figures/facts are somewhat alarming.”Responding to this latest nonsense from Battistelli, Benjamin Henrion (FFII) wrote: “Maybe he could comment on the progress bar patent?”
“Battistelli says EPO issues better patents than USPTO,” he added, but “always remember patent examiners can’t read binaries” (he added some informative image about the progress bar patent).
As we noted here a long time ago, Battistelli is pretty clueless about patents. It’s not his area at all and he’s not a scientist, either. He surrounds himself only by people who tell him what he wants to hear and reprimands the rest. EPO is quite a Pariah when it comes to patent quality, it ignores European law regarding patent scope, and it definitely breaks many laws in order to punish staff that speaks about it. Right now, says Henrion, the “EPO explains you with sounds on how they grant software patents https://e-courses.epo.org/wbts/cii/index.html”
That’s how bad it has become. The EPO is making enemies by promoting software patents and FFII might return to activism or take more actions if this carries on. Henrion told them (directly), “you really want a fight isn’t it?”
They are basically pushing for software patents while at the same time advocating/promoting the UPC, which in itself would be supportive of software patents.
“They are basically pushing for software patents while at the same time advocating/promoting the UPC, which in itself would be supportive of software patents.”Regarding Battisteli's UPC lobbying and the latest lies from the EPO, backlash is apparent online (there are several opponents of the UPC there). The only exception to this backlash is Team UPC, i.e. the patent law firms that stand to benefit from the UPC. Here it is pushing for ratification in the UK because democracy, to these people at least, does not matter. The lawyers want more money. This post says that “while the UK continues not to ratify the UPC Agreement, the system, at least in its current form, cannot come into force. If the EU and the participating member states fail to reach an agreement enabling (or at least attempting to enable) continued UK involvement, there will be no upheaval in the UK patent litigation system upon Brexit, and no UPC operating elsewhere in Europe. This would appear to strengthen the UK’s negotiating position in Article 50 negotiations, compared with the scenario in which it had already ratified the UPC Agreement.”
“The opinion is worth a read, if you can stomach the legalese,” one person told us, but it seems to be so heavily biased in favour of the UPC, as one can expect from legal firms. They’re not independent or objective observers.
Here is EIP becoming so delusional that it wants us to assume the UPC can happen in the first place (without the UK), in order for the UK to join it later. Watch their optimism in Twitter: “UK #IP organisations obtain legal opinion on #UK participation in #UPC post #brexit, UK can still take part”
“We never saw any criticism of the UPC from these folks.”Team UPC’s echo chamber (basically a bunch of Battistelli-controlled mouthpieces and UPC proponents patting each other on the back/shoulder) can also be seen at Managing IP, which set up events in which to promote the UPC last week (or almost a fortnight ago) [1, 2, 3, 4].
One thing that we mentioned the other day was Italy’s step towards something that can never happen in the first place. Now we have Team UPC, the antidemocratic group of lawyers (and Bristows in this case), pushing for a dead (Trojan) horse to enter the gates of Italy. Have they no sense of shame? Have they now given up yet?
“UPC would put Italian SMEs at a disadvantage because of the choice of official language,” Henrion told them and the facts are on his side. The UPC would also put Italian SMEs at risk of more lawsuits and SMEs rightly complain about this. Henrion said that “maybe FFII should commission a legal opinion on whether UPC can bring us software patents and trolls.”
“They are trying to convince the already-convinced (who are paid for it) that the UPC is great and then pressure British politicians while conveniently misleading, tricking and misrepresenting their views.”Speaking of Bristows, their employees are still pushing for the UPC (which is effectively dead) in public events. One of them has just spoken of Milan and said she “feels incredibly at home in Italy, which is apropos given her heritage. So when she finally landed in Milan this morning for this year’s AIPPI Congress her cares melted away. That is until she saw her agenda….This year’s AIPPI Congress is jammed packed with incredible events, from panel sessions dealing with everything from contributory patent infringement to IP and food, to lunch time sessions focusing on expert evidence and study questions on copyright and linking, IP securities and added matter. The final day will be devoted to a very political topic – the fate of the UPC post-Brexit followed by a biosimilars preliminary injunction mock trial in the UPC. The AmeriKat [from Bristows] and a team of incredible friends and contributors, including her colleague Vanessa Rieu (Bristows), will be reporting from the events on the IPKat over the coming days.”
By “reporting” she probably means advocating, as usual. We never saw any criticism of the UPC from these folks.
In response, says one patent attorney: “Interesting UK counsel opinion here. No legal bar to UK participation in UPC – only political issues.”
Not true. He links to a PDF from EIF’s Web site [PDF], but again, this is a case of an Team UPC echo chamber, nothing else. They are trying to convince the already-convinced (who are paid for it) that the UPC is great and then pressure British politicians while conveniently misleading, tricking and misrepresenting their views. █
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09.15.16
Posted in Deception, Europe, Patents at 6:57 pm by Dr. Roy Schestowitz
Patent quality? That’s the old EPO. Now it’s all about quantity!
The Leader of the Luddites, engraving of 1812
Summary: Battistelli, who tries to automate and streamline everything so as to maximise patent grants rather than examine applications properly, is making incredible claims that will almost certainly backfire on him
AMID EPO crisis, which undoubtedly continues to deepen, more and more people start to compare it to the USPTO, where patent quality has been rather notorious for quite some time (they almost just rubberstamp applications, with a 92% acceptance rate).
For weeks now (if not a whole month and a half!) the EPO has been 'spamming' universities in Europe on a daily basis, in order to help Battistelli's lobbying campaign (today was no exception [1, 2]). Both time and money may be running out. Talented workers are already leaving, causing brain drain that’s unprecedented in the EPO’s history. What will perhaps be left is just the job skill of using a rubber stamp, causing a copious lump of patents to come through with no quality assessment/control. That’s a nightmare scenario for the EPO’s reputation, on which has been based for decades. For the third time in one week the EPO does the unthinkable by inviting software patents. “At the EPO,” it wrote today, computer-implemented inventions must fulfil special patentability criteria. Learn more here!”
This is the third time in just a few days that the EPO tacitly promotes software patents in Europe. Remember that these are not legal in Europe (political decisions were made on patent scope more than a decade ago), but then again, under Battistelli the EPO is above the law anyway. Or so it claims. It just ignores court decisions against it, flaunting immunity. Is there any credibility left to lose? Is the EPO’s Twitter account signaling that the EPO will likely rubberstamp just about anything, including software patents (provided they’re written in some misleading fashion, as per the EPO’s advice)? This could become a threat to the very existence of the EPO. People won’t pay to receive (or renew) patents. The demand may go down. Prices (fees) likewise. What might be the impact on salaries?
“You should see the new issue of the Gazette,” one person told us, “a piece of Pravda-type propaganda…. interview with Battistelli, Lisbon with Battistelli… what is also interesting is that they have employed two more “investigators”…” (a subject we shall expand on another day).
So the EPO is apparently the embodiment of just one person, Battistelli, examiners that are treated like machine operators in an assembly line, and daily propaganda to keep those operators chugging along. No wonder a lot of smart people have decided to leave or retire early. They see the writings on the wall. Battistelli is just a liquidator, not a leader.
A new article by Andrew Chung, who wrote a highly misleading headline (unless his editor types the headlines, as is quite common) that we noted last night using a screenshot, is repeating Battistelli’s latest propaganda in a new puff piece (published 24 hours ago). It’s again misleading and we can’t help but wonder what Chung has been drinking (maybe more of that aforementioned Kool-Aid). Basically, Battistelli is riding the coattails of older patents. He ruins EP (European Patent) quality while hiding it using the accomplishment of his predecessors. This guy is so clueless about patents (his workers know far more than he will ever know), but Chung acts like some kind of Battistelli stenographer (reposted in other news sites) and the editor went with the headline “Europe issues better patents than U.S. – Europe patent boss” (as if the US is a good yardstick these days).
As realised by EPO insiders, Battistelli is demolishing the EPO as they once know it and he now lies to everyone, much to the pleasure of those who lie for him (here he is propped up by CIPA and other interest groups or publishers that are in bed with the EPO [1, 2, 3, 4]).
The article itself will probably help Battistelli’s lobbying (he likes to cite his paid “media partners” for support of his claims) and here is what it says:
Amid growing concerns by some U.S. lawmakers that federal officials may be granting patents that fuel abusive litigation, the head of the European Patent Office says his agency is producing better-quality patents than its American counterpart.
EPO President Benoît Battistelli said his office scrutinizes patent applications more closely than the U.S. Patent and Trademark Office, which he said results in patents that are more legally sound going out the door.
[...]
Battistelli, a French national who has led the EPO since 2010, said his agency has developed databases and search engines that allow it to perform the most comprehensive research on prior inventions that could lead to a rejection of a patent.
Unlike in the United States, he added, all patent applications are scrutinized by three officials, known as patent examiners, rather than just one.
This leads to a lower rate of granted patents, he said, but they are legally solid.
On the other hand, it costs roughly twice as much to obtain a patent in Europe, around 5,000 euros ($5,625), than in the United States.
Fact-checking Battistelli’s claims? Not needed. Just write down what a chronic liar says and call yourself a “Reuters journalist”.
This article was sent to us by several EPO insiders although we actually noticed it an hour after it had been published (we have an alerting system for all things EPO). Here is what a patent attorney wrote in response to a related discussion today:
On how to trade off quality and productivity, the USPTO and the EPO cannot meaningfully be compared. That’s because the EPO is master of its own house and the USPTO is not. Who makes the law of patent validity in Europe? The EPO’s Enlarged Board of Appeal. Who in the USA? The Supreme Court of the USA and it makes law that i) frustrates any USPTO drive towards productivity and quality and ii) encourages Applicants and their lawyers to obfuscate and work diligently away from clarity in the claims.
So of course Mr Spigarelli sees it all as very simple. Pure self-interest drives Applicants at the EPO to draft clearly. EPO separation of search and examination, and strict enforcement of EPC Rules by DG1, makes it imperative that i) from the outset, Applicant presents an exhaustive set of dependent claims and ii) DG1 searches them all, at the outset, exhaustively. That way lies both quality and productivity. Simples. But not yet at the USPTO.
Now that the USA is on a First to File system however, Applicant self-interest in that country will kick in, gradually to improve drafting in the USA and, in its wake, will come better quality and productivity. How so? Because the US will now find it has to ratchet up its “written description” requirement to somewhere near the EPO’s exacting Gold Standard for disclosure, in order fairly to judge issues of novelty, priority and added matter.
In response to this, one person wrote:
Improving patent quality flows both ways, with the quality of the drafted claims submitted for examination being an equally important aspect in the equation. The article mentioned situations where the examiners don’t understand the invention – that’s a clear indictment of the patent attorney who drafted the claims, isn’t it? A strategy of drafting overly broad claims and seeing what sticks is not helpful for anyone (other than the attorney charging fees to his client).
The examiners in the USPTO need more time, better IT support and investment to help improve the quality of their work. They are working hard in less than perfect circumstances and we should all support them. Sharing lessons learned with the EPO is a good start, but attorneys need to do their part too, IMHO.
Also in response to the above:
“The U.S. speakers mostly assumed a trade-off between the two goals of productivity and quality…snip…Alfred Spigarelli, European Patent Office (EPO), disagreed with the trade-off premise, and stated that at the EPO, a focus on quality results in productivity. He argued the ultimate goal is always quality, from which productivity flows.”
At the EPO, “Early Certainty” equals quality with timeliness. And timeliness increases productivity, since examiners are given targets on that. The trade-off is merely hidden and fully loaded onto the individual examiners’ shoulders.
“Professors Melissa Wasserman and Michael D. Frakes discussed their study which indicates that promoted USPTO examiners may generally grant more patents because of less examination time as they are promoted.”
At the the EPO, promoted and non-promoted examiners have the same examination time, but promoted examiners likely grant more.
Same here, same there, same everywhere …
Looking at another thread, this one new comment on “Early Certainty” reveals how insiders feel about the patent quality and overcapacity:
- Overrecruitment is discussed in internal FAQ’s on Early Certainty, but not in the external one, of course.
- Production demands for newcomers have always been inflating, as they doe for all other examiners on a yearly basis.
- Contracts for examiners: the numbers are in the Social Report published by the EPO.
We shall expand on that another day, possibly this weekend, due to lack of time. The above comments (the first three) were posted in response to coverage from an event that was mentioned here a few days ago. David Kappos, as we expected, used it to lobby for software patents again (he’d paid for that lobbying). Being like a corrupt official-turned-lobbyist, here is what he did: “Finally, David Kappos, former head of USPTO and current partner at Cravath, Swain and Moore, reviewed how the USPTO has historically worked on patent quality. He pointed out that the USPTO has been applying the changing standards and rules set by the courts. He stated that the U.S. Supreme Court’s Alice test is not a helpful flexible rule, but arbitrary and vague. He believes that the courts and USPTO are placed in a position of having to apply an impossible standard and should not be blamed for their application of said standard.”
This utter nonsense from Kappos, calling for decline in patent quality (like it was under his reign), comes at an interesting/strategic time when software patents are pretty much dead. There are few exceptions to that, as we mentioned here before, but in the vast majority of cases software patents drop like flies, even in bulk. Last night we mentioned articles like this one (cherry-picking of cases by the patent microcosm) and here we have a Microsoft advocacy site, citing Microsoft’s lobbying site, showing that Microsoft props up illusions of software patents resurgence, pretending they’re fine (they’re not). Remember that Microsoft is among the companies that pay Kappos to lobby along those lines. Here is what Microsoft has to say: “The U.S. Court of Appeals for the Federal Circuit yesterday issued an important decision strengthening the law related to software patent eligibility under Section 101 of the Patent Act. This ruling gives us useful guidance for determining which software innovations qualify for protection and helping provide greater stability to the U.S. patent system, a foundation for our digital economy. Erich Andersen, vice president and deputy general counsel of Microsoft’s IP (Intellectual Property) Group wrote a blog post expressing his views on this ruling.”
Well, as expected right from the start, patent law firms yank out their misleading jubilations because of McRO (one single patent!) [1, 2] and Gene Quinn generalises at Watchtroll, having ignored pretty much all the recent decisions which invalidated software patents (the cherry-picking or selective coverage tactic).
“What we see in the US is a dodgy system wherein the patent office is inclined to just grant everything, courts reject a lot of patents, and if Battistelli gets his way the EPO will be the same, inviting a lot of patent trolls, software patents that hamper innovation, and a lot more money for the patent microcosm.”In other news regarding patent scope in the US, “patented software” became the subject of an antitrust lawsuit, a drug patent of Teva got invalidated by PTAB [1, 2, 3], and USPTO examiners awarded another software patent (which courts would likely invalidate if ever scrutinised properly).
What we see in the US is a dodgy system wherein the patent office is inclined to just grant everything, courts reject a lot of patents, and if Battistelli gets his way the EPO will be the same, inviting a lot of patent trolls, software patents that hamper innovation, and a lot more money for the patent microcosm. So, are EPO patents better than US patents? Well, the old ones probably are, but Battistelli is going to change that. As a Conservative Neo-liberal he’s likely to just abuse science, just like his 'master' Sarkozy, who is now publicly denying climate science. █
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Posted in Deception, Europe, Patents at 5:52 pm by Dr. Roy Schestowitz
Summary: The crazy theory or baseless belief that somehow, somewhere, by some truly miraculous means, UPC will suddenly become a reality, damaging the whole of Europe for the sake of patent law firms
IT IS TRULY SAD to see that Team UPC and the EPO‘s President are still living in a delusional world, surrounding themselves only with equally delusional people (echo chamber/choir). They want us too to live in a fantasy, and maybe even believe that the UPC still has a chance. We refuted/debunked this fairy tale many times in July (after Brexit) and to quote a comment we’ve received this week, “Germany will not ratify the UPC treaty. Thus the project is dead.” It seems rather obvious, but when one has an agenda, reality has a distortion field. Unlike Team UPC, yours truly has no financial stake when it comes to the UPC. It’s just that the UPC is unjust, it is undemocratic, and it would render many patent examiners (i.e. scientists) redundant. The UPC is very harmful to Europe, even though it will never happen anyway. It’s just a lot of effort and resources down the drain.
Madman in chief Battistelli is still lobbying for the UPC. He never gets tired of this, having done so since before he was even a President at the EPO. “European Patent Chief Wants Post-Brexit UK In Unified Court” is the headline of a new article from Law 360 and some people are distorting this headline to suit their agenda (“EPO wants UK to ratify Unified Patent Court agreement despite Brexit” is not what the original said), equating the “EPO” with Battistelli as if it’s a one-person organisation (Battistelli has 0% approval rating at the EPO, so clearly his own workers strongly disagree with him). To quote Law 360: “The European Patent Office is urging the U.K. to ratify an agreement to create a Unified Patent Court system for the European Union, even though voters in the country passed a referendum to leave the bloc, EPO President Benoît Battistelli said Tuesday.”
Team UPC is desperately trying to float this dead project (Germany won’t ratify it) and Italian elements of this team speak up amid new reports like this one (“Changing places: why Milan should host a UPC central division court”). We have heard it before (about Milan as a theoretical substitute for London), but it’s not so suitable a substitute and it requires a massive overhaul of the UPC and what it stands for (not even renaming Milan “London” would shift all the skilled people to Milan). Found via Twitter was this firm of “Intellectual Property Consultants” (their own description) trying to convince us that the UPC is somehow coming because, in their own words:
Italian Parliament’s lower house passes ratification of Unified Patent Court Agreement
The lower house of the Italian Parliament has approved a bill on ratification of the Unified Patent Court Agreement, a passage through the upper house is necessary for final approval.
Yesterday the Italian Parliament’s lower house, the Chamber of Deputies, approved the draft law on ratification of the Unified Patent Court Agreement (UPC Agreement), with 302 votes in favour, 108 against and 25 abstentions.
The Unified Patent Court is the supranational tribunal that will eventually have exclusive jurisdiction on both European and unitary patents.
[...]
The Committee for EU Policy asked the government to consider the opportunity, within the United Kingdom’s Brexit process, of requesting that Italy forward its candidacy for the seat of the Unified Patent Court’s central division originally assigned London.
The bill must pass through the Italian Senate before final approval.
Several other Italian patents-centric firms want the UPC and spoke about it today. Why? Because it would pass Europe’s wealth into their pockets while retarding science, technology, medicine, etc. The Unified Patent Court is not about Europe but about some European lawyers. Not even all of them…
For reasons we laid out before, the UPC is almost certainly dead and unlike some others who deny it here’s one firm which at least acknowledges the role of Brexit in burying the UPC, probably in the whole of Europe if not just in the UK. “Netherlands ratifies #UPC agreement with press release noting uncertainty over Brexit,” says this tweet, linking to a Dutch article. Watch what Bristows (probably the most vocal among Team UPC) wrote about it a short while ago. Certainly, especially in the UK, the UPC is a dead (Trojan) horse and Bristows speaks of a “Great programme from BBC radio4 on Brexit’s impact on the #law including the #upc”
All this UPC lobbying is intended for Team UPC “to get what they want – the UPC in operation asap,” said a new comment today. This rightly speaks of “delusions of grandeur”:
I fear that delusions of grandeur abound. Much of the analysis (but not all) is based on how to get what they want – the UPC in operation asap. That seems to require the UK to sign up quickly, while the UK government is dealing with a Brexit scenario! There seems to be a lot of yes, yes but we are more important so the UK will act against its citizens’ mandate as that’s in our best interest. They may be surprised to hear that the UK government, irrespective of its personal opinion, is facing a new reality and may have reasons not to help them on this matter.
It astounds me that there is such a lack of appreciation for the changed framework. All those pushing for change and acceptance of change appear to be the least able to accept change when it involves them.
No matter what self-serving patent law firms are saying, the UPC (or the unitary patent) is basically dead in the water. They try to mislead the public and confuse politicians. They tried this on David Davis here in the UK (Bristows). It’s rude if not just pathetic. “UPC will not replace EPO patent opposition procedure,” one person wrote, “further view from pharma industry” in the Managing IP UPC advocacy events in France and Germany last week [1, 2, 3, 4]. These lobbying events with the EPO inside were filled to the rim with Team UPC. To quote one person: “Thanks @ManagingIP for an excellent #patent forum http://bit.ly/2bUxYpI including key updates from @EPOorg on #UPC + industry perspective” (lawyers are not an industry but a meta-industry).
These patent law firms are trying to perturb patent law to increase their profits (more damages, more lawsuits) and one such firm published Unitary Patent, Unified Patent Court, and “Brexit”, having noted (from the lobbying events) that “British EP patent attorneys probably in better position to represent at #upc than English solicitors!”
We expect the conspirators behind the UPC to rename and restructure it, maybe start from scratch or try to patch the whole thing in vain. They won’t know the impact/outcome of Brexit for years to come, so this is tremedously premature and they don’t even know whether to include the UK or not. It’s almost a non-starter.
Remember. Mark our words. The UPC will never happen, not under this name and not in this current form. It’s just reality distortion. █
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09.14.16
Posted in Europe, Patents at 6:42 pm by Dr. Roy Schestowitz
Wim Van der Eijk (below), Chairman of the Enlarged Board of Appeal (EBoA) and EPO Vice-President of DG3, is said to be on his way out (giving Battistelli even more control/leverage)
Photo from EPO.org
Summary: The EPO appears to be preparing for a post-examination (or very poor examination quality) era, heralded in part by the mistreatment of the Boards of Appeal, who are highly specialised workers akin to the Patent Trial and Appeal Board in the United States
THE EPO is an office like no other office, but WIPO is a close match because it too is unaccountable and it routinely abuses staff, which then has no legal/judicial recourse (we have posted several links to stories about it in our daily links this month and earlier today). Even independent judges are being mistreated by the EPO and are then subjected to mock ‘trials’.
Today, for a change, the EPO invited people to sign up to the blog (lies) of Battistelli, who is a chronic liar that is a textbook definition of “newspeak” (see the recent announcement about the exile of appeal boards). When the EPO isn’t busy 'spamming' universities for a lobbying campaign of the Battistellites at the expense of the EPO (this continued today [1, 2] with two more universities) it is busy pushing or retweeting glamousing dross about “European Patent Office @EPOorg President #Benoit Battistelli” (this is what people are seeing if they follow the EPO, it’s just a cult of a single monomaniacal person).
Battistelli’s own lobbying event is the only thing that these people can talk about (other than repeated mentions of some pages in the EPO’s Web site) and right now the UK-IPO helps the EPO further marginalise the boards (barrier to Battistelli’s God-like powers), citing a vacancy which we mentioned earlier this week.
“Registration for the “Boards of appeal and key decisions 2016″ conference closes tomorrow,” the EPO says, but how long will it be before the boards too get closed/shut down by Battistelli? Judging by articles we read (not just in English), there are no long-term guarantees in Haar and the isolation of staff there is bound to discourage job applications, never mind poor retention of existing staff. We foresee the EPO trying to replace the boards with the UPC — a subject we have been writing about for a number of years now.
“EU software patents [are] pushed with the establishment of a pan-European patent court,” Benjamin Henrion (FFII) wrote today, noting/highlighting again the correlation between the UPC and patent scope. We recently highlighted UPC lobbying by the EPO’s Margot Fröhlinger (as recently as last night) and we have been told by EPO insiders that their internal Gazette is lying about the UPC and other topics (more on that tomorrow; for now, see footnote 9 below). Here is what one person wrote today in a comment about Fröhlinger:
I am becoming increasingly concerned regarding the positions publicly espoused by Margot Fröhlinger.
I can agree with her position that “There are no guarantees in life so no one is sure if the CJEU will agree on the legality of UK’s participation if challenged”. However, what are we to make of the fears that she has voiced about the UPCA unravelling due to the CJEU being “politically insensitive”? That is, how else can those fears be interpreted other than as concerns that the judiciary will not provide a ruling that is politically convenient (for the executive)?
Further, indicating a belief that the CJEU will give “its blessing” to a revised UPC Agreement in which a non-EU Member State (i.e. the UK) participates can only be interpreted either as wishful thinking or an indication that undue pressure will be put on the CJEU to reach the “right” decision.
The fact is, the CJEU should be left to its own devices to decide whether any new UPC Agreement is consistent with EU law. I have my doubts about whether this will be possible. This is not least because I struggle to see how the CJEU could, in relation to a system established under EU law, give its blessing to the participation of a country that is not obliged to follow rulings of the CJEU. However, I do not rule out the possibility that a system could be devised that might genuinely be consistent with EU law. That is, unlike Ms Fröhlinger, I have no intention of pre-judging the outcome.
It seems that the EPO management in general (and not just the president) is in need of education regarding the different roles of the executive and the judiciary, as well as the importance of ensuring that one does not interfere with the other.
Whenever the EPO actively pushes for (if not lobbies for, inappropriately and unprofessionally) the UPC it shows rather clearly that it doesn’t envision a future with patent appeals. For what it’s worth, some insiders believe that examination (and thus appeals) is on its way out at the EPO.
“A different view on the relocation of the Boards of Appeal in Haar,” a short paper about the exile of the boards by Battistelli and his tyranny, was recently disseminated internally. In the interests of transparency we have decided to share it below:
Where have the Boards of Appeal gone?
The reform
With CA/D 6/16, the Administrative Council (AC) decided to create a new organisational entity, the “Boards of Appeal Unit”1 (BoAU). Comprised of the Boards of Appeal and the Enlarged Board of Appeal, including their registries and support services, the new unit shall be directed by a “President of the Boards of Appeal” (PBoA) to be appointed by the Administrative Council in accordance with new Rule 12a(1) EPC. Therefore, with effect from the 1st July 2016, DG3 has been disbanded and replaced by the BoAU.
The PBoA is to manage the Boards of Appeal Unit using functions and powers transferred to him by the President of the Office (PEPO) in an Act of Delegation2. In particular, the PBoA is expected to prepare resource requests to cover the needs of the Unit: the PEPO is then expected to provide the necessary resources (see new Rule 12a(2, 3) EPC).
The building
Although most stakeholders did not see any problem retaining the Unit in the Isar building, the PEPO insisted that relocation had to be included as part of the whole reform package in order to “improve the perception of independence”. In Part C of CA/43/16 Rev.1, the AC approved the principle of the removal of the BoA from the Isar building, but keeping them in the Munich area “in a location with good traffic links and appropriate accommodation standards”.
Although the first PBoA has not yet been appointed by the AC, nevertheless the Administration has been very active during the summer in defining the needs of the BoAU and identifying a “suitable” building in the location. Early in July, a few buildings in Munich were inspected for consideration together with representatives of the BoAU, but the Administration found none of them suitable. Shortly afterwards, Principal Director General Administration (PD44) publically announced that a suitable building had now been found and that the BoAU relocation was already scheduled to take place on 1st July 2017 to Richard-Reitzner-Allee 8 in Haar, a city of about 20 000 residents in the Munich hinterland. The chosen “8inOne” building was renovated by its owner to a “very high standard” in 2014, essentially following the concept of open-space offices. It has remained empty since then.
Not all details have been made public yet. However, it is a safe assumption that the rent should be much lower than in more desirable locations in Munich, although the building will have to be refurbished to accommodate individual offices, rooms for oral proceeding and other facilities and adapted to accommodate EPO IT systems. In order to amortise the costs of refurbishment, the contract would commit the Office to remain in the location for 15 years. This long commitment contrasts starkly with the hurried process of finalising the plans and then submitting a complete, formal proposal for approval in the October meeting of the Budget and Finance Committee (BFC).
The needs of the BoAU
This “rush to complete” is all the more problematic as the proposal doesn’t properly take into account the actual needs of the BoAU. The Boards themselves have expressed not only general concerns3 about the present situation; they also have concrete reservations on the suitability of the building for a proper functioning of the unit. To summarise, the Presidium concluded that the building will not offer enough space4 (or all the facilities) necessary for a proper functioning of the Boards and has informed the PEPO accordingly. For more details, [x] suggest that you read the publication5 by the Presidium. In a first response to addressing these problems, the President has decided to plan an additional two meeting rooms and to rent more space for a library in the basement.
The new reform of the BoA entails aspects of both perceived independence and performance improvement. It is obvious to us that the resources presently planned for the BoAU are woefully insufficient to produce the necessary improvements that will realise these goals since the working conditions are neither adequate nor appropriate for such judicial activities.
The needs of staff
From a staff perspective, the relocation would obviously be detrimental for the majority. Although the building is located outside Munich, perceived independence should not be confused with physical isolation. Besides, the offices are too small, the meeting rooms are too few, and the building has no other facilities or “social” rooms. It means that services normally offered to EPO staff in Munich (fitness room, Amicale room, medical and administrative facilities) won’t be available for EPO staff in Haar. Staff will be heavily impeded in availing themselves of these services if it means that they have to travel to the Isar building or to the Pschorrhöfe for them. The Administration already admits that the current canteen is too small to accommodate both EPO staff and staff from other tenants, not to mention visiting patent attorneys and the general public. As a workaround, they propose making use of local external outlets, but these appear to be insufficient and inadequate, thereby rendering the proposal impractical.
The Office praises itself for being a model employer offering numerous amenities to its employees. However, [x] can only conclude that staff at the Haar site would be disadvantaged when compared with their colleagues at Munich sites.
When this is combined with the conditions of employment resulting from the reform of the BoA (for example the limitations in the security of tenure6 , the capping of the career progression7 and increased constraints in post-service activities8), all these factors may prompt more active BoAU staff to retire earlier. With further reforms (pensions, etc.) expected to further worsen conditions of employment, all these changes will reduce the attractiveness of the BoAU as an employer and complicate (long-overdue) recruitment.
Consultation
Staff in the BoAU perceives the reform process as both intransparent and non bona fide. To date, the statutorily required consultation with staff representation has not taken place. According to PD44, the floor plan (“Raumbelegungsplan”) had to be finalised in August. In our view, this renders the probability of statutory consultation leading to any improvement in the reform as unpromising.
A vision
There appears to be no clear, long-term AC vision for the Boards of Appeal.
In the AC meeting of June 2016, delegations kept advocating a quick ratification of the UPC Agreement thereby creating a Unified Patent Court, although its setting-up now seems subject to increasing uncertainty due to Brexit. They appear to align with the PEPO in this respect9. Anyway, legal study concluded that the number of cases migrating from the BoA to the UPC would be a very modest one.
The number of unfilled posts in the BoA has significantly increased10 from 2014 on and this worrisome trend continues unabated. At the same time, the upward production trend in DG1 does not suggest that we should expect any decrease in the number of appeals in the future, assuming [x] maintain a constant quality in the decisions of the first-instance Examining and Opposition Divisions.
[x] wonder whether the AC delegations should realistically expect such an efficiency boost in the BoAU, with new procedures so streamlined11 that the BoAU can both master the caseload and reduce the pendency with reduced resources. [x] suggest they should reconsider their options before embarking on a relocation project which already does not seem future-proof.
Conclusion
By hastily preparing a proposal to relocate the BoAU from the Isar building into the Munich hinterland, the PEPO pre-empts an action that should be assigned to the PBoA, in accordance with new Rule 12a(3) EPC, for the sake of improved (perceived) independence. Furthermore, the building does not meet the needs of the BoAU and its users (patent attorneys and public) and therefore cannot be said to meet the goal set by the AC of “appropriate accommodation standards”. It further deteriorates the working conditions of staff in the Unit whilst at the same time committing the PBoA and the Office to a long-terms contract.
It remains to be seen whether the BFC (and the AC) will actually condone what could be seen as an original sin.
________
1Unit: “a single thing, person, or group that is a constituent of a whole; a part of a military establishment that has a prescribed organization as of personnel and materiel” (Merriam-Webster’s Learner’s Dictionary)
2 See Part II of Annex 3 of CA/43/16 Rev.1
3 See the “AMBA Statement on the Current Situation” on the AMBA site
4 It is unclear whether the rented net surface amounts to 10740 m2, as mentioned by PD44, or to 9089 m2, as calculated by the Boards. Presently, the Boards have roughly 13000m2 in the Isar building.
5 Unfortunately, access to this publication is presently restricted to the BoAU
6 see new Rule 12d(3) EPC
7 see new Article 11 ServRegs as amended in CA/D 8/16
8 see CA/D 5/16
9 See Gazette August 2016, page 11: “I don’t see any reason why the UK couldn’t still ratify the UPC.”
10 See page 4/72 of the social report CA/55/16 Corr. 1
11 Pursuant to new Rule 12c(1) EPC, the BOAC as an emanation of the AC adopts the Rules of Procedure of the BoA, instead of the Presidium in the older days.
More information can be found in this article (in German, accurate translations are desirable).
Regarding the President of the Boards of Appeal, it seems certain that Battistelli is going to replace and maybe even eject Mr. Van der Eijk. According to a source, “he’s to be replaced” after being flagged as “ill” for a conspicuously long time (we wrote about it last year). “I don´t know his whereabouts,” this source told us. We may post an update about this pretty soon. Some people speculated that he had been punished for disloyalty to Battistelli (which is very much warranted), but we could never ascertain/verify this claim. █
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Posted in America, Patents at 5:41 pm by Dr. Roy Schestowitz
Summary: How media which is dominated or steered by patent law firms covered the McRO v Bandai Namco case, and why it’s bound to mislead a lot of people into thinking that software patents are OK
YESTERDAY we wrote about how patent law firms had turned rather nasty against anyone who enforces Alice and trashes software patents in lieu with the law. These firm are losing the battle, so now they play dirty. As far as we are aware, the McRO v Bandai Namco decision was first reported on by IAM and quickly thereafter mentioned by pro-software patents people (along with the misleading headline). In a nutshell, the Court of Appeals for the Federal Circuit (CAFC) defended a few software patents (or just one single patent!) in one rare case (less than 10% of the time do we see such an outcome at CAFC), so patent maximalists make a lot of noise and try to amplify the message (whilst ignoring the decisions they dislike because it’s not supportive of their agenda and ‘sales’). We expect to see a lot more articles about McRO v Bandai Namco because it is good marketing of their ‘services’ (or ‘products’). They are hoping — inter alia — to help their large clients’ agenda.
“These firm are losing the battle, so now they play dirty.”“Don’t Assume an Abstract Idea” was the headline at Patently-O today. It said: “In an important Eligibility case, the Federal Circuit has ruled that MRCO’s software patent claims are eligible — rejecting District Court Judge Wu’s judgement on the pleadings that the non-business-method claims are invalid as effectively claiming an abstract idea. In my 2014 post in the case I wrote that the case may serve as an opportunity fo the Federal Circuit “to draw a new line in the sand.””
“Federal Circuit rules software patents valid in McRO v Bandai Namco” was the headline in MIP. The truth of the matter is, the Federal Circuit did not rule software patents valid but only very particular patents (or patent), in one single case (it almost always finds software patents invalid). As long as the US Supreme Court does not rule again on software patents (and as we noted here before, no such case is pending at all right now), Alice still stands, it is very much applicable, and software patents are effectively or generally dead. CAFC must follow the lead of the Supremes (Justices). That’s just how the law works.
“We expect to see a lot more articles about McRO v Bandai Namco because it is good marketing of their ‘services’ (or ‘products’).”The following headline (shown at the top) from Reuters is basically a lie. Software makers (developers) don’t want software patents; few oligarchs that own large software monopolies may want them (e.g. IBM and Microsoft), but not actual software makers, people like yours truly. “Animation patent saved, software makers exhale,” says the headline of this report, but every software maker (coder) out there is probably mortified by the idea that patent trolls with their software patents can use this decision to bolster their campaign of intimidation (patent shakedown). This is the same spin as found in the seminal headline from IAM — spin which strives to convince us that software makers actually want software patents. It’s a lie.
Speaking of software patents, watch the details of an upcoming event where software patents lobbyist David Kappos (and former USPTO Director) will share the stage with the current Director who reportedly denies fraud at the USPTO. “Michelle Lee has testified before a House of Representatives committee amid accusations of USPTO examiners claiming unsupported hours,” MIP wrote. In addition, the chief judge of the Patent Trial and Appeal Board will be there. To quote IAM: “Joining keynote speaker USPTO Director Michelle Lee will be the chief judge of the Patent Trial and Appeal Board, David Ruschke, ex-USPTO Director David Kappos and former Federal Circuit Chief Judge Paul Michel. Alongside them will be senior representatives from companies that are closely involved in the ongoing patent reform debate, including Google, Johnson & Johnson, Qualcomm, Bristol-Myers Squibb and IBM. Also in the faculty, we have lead counsel in two of the pivotal Supreme Court patent cases of the last decade – KSR v Teleflex and Cuozzo v Lee – as well as several high-profile patent investors.”
“This is the same spin as found in the seminal headline from IAM — spin which strives to convince us that software makers actually want software patents. It’s a lie.”This seems like a corporate lobbying event, much like that EPO-supported pro-UPC event that IAM set up in the US earlier this year. We don’t know what will be discussed in this event, but certainly it’s so expensive to attend that it will essentially shut out dissenting views, just like Managing IP recently did (a pro-UPC lobbying event, as we noted last night). The
EPO tends to pay published to sell out these days. Sometimes it works.
Taking note of the arrogance and the audacity of the patent microcosm, see this new article by Robert Sachs, a proponent of software patents. Yesterday he wrote: “Of course, one can say that the Federal Circuit is bound by precedent and has no choice but to follow the Supreme Court. This is true but fails to grasp the problem: The Federal Circuit does not even recognize that the Supreme Court’s definition is wrong. There have been no dissents by the Federal Circuit raising this issue. Instead, they apparently believe that the Supreme Court is correct, and thus only raise other concerns about the application of the Mayo test.”
This is part one of a newly-published series (maybe paper) and when Sachs says that the “Federal Circuit does not even recognize that the Supreme Court’s definition is wrong” he basically flings another nonsensical attack on Alice/Mayo, much like Kappos and other interresants. Over at Patently-O, Professor Crouch goes with the headline “Patent Venue at the Supreme Court: Correcting a 26 Year Old Legal Error” and it’s basically a rant which relates to the VENUE Act — a subject which we covered here before.
“East Texas has been somewhat of a cesspool of patent trolls with their ludicrous software patents and they enjoy favourable treatment from the courts there.”Crouch does not say “patent trolls” but instead speaks of East Texas. He wrote: “Patent litigation continues to be concentrated in a small number of venues. This case is potentially a big deal because it could eliminate this concentration — especially patent cases in the E.D.Texas. Both the PTO and Congress appear in favor of venue reforms, but statutory reforms will likely wait until the Supreme Court decides TC Heartland.”
Well, any such reforms are sorely needed and the sooner, the better. East Texas has been somewhat of a cesspool of patent trolls with their ludicrous software patents and they enjoy favourable treatment from the courts there. It’s time to stop this. █
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