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Qualcomm-Apple Dispute Escalates Further (Lawsuits Come to Europe) With the Cost of Linux-Powered Devices Also at Stake


The latest twist is, Qualcomm ended up suing Apple — using rather dubious patents — in Munich and in Mannheim

Mannheim, Germany
Mannheim, Germany

Summary: Another catchup with a high-profile case (complaints and lawsuits ad infinitum) that will help determine one’s ability to leverage patents in bulk — including software patents — against phone-making OEMs

THE summertime has been full of news about Qualcomm, a company we wrote quite a lot about in relation to its abusive patent litigation campaign and the growing number of complaints against that. The subject is important to those who are interested in patents on phones, including software patents. Aren’t they far too expensive already?

“The subject is important to those who are interested in patents on phones, including software patents.”Last month, for example, Qualcomm’s actions culminated in attempts to block iPhone imports. It affects Linux too, by extension. Here is Simon Phipps writing about this one patent aggressor going after another, Apple (which attacks Android/Linux). It was also covered by Florian Müller, Android sites, hardware sites, financial sites, press releases, and technical press. CNET focused on how it might affect iPhone users.

As usual, any story that involves “Apple” tends to attract more coverage than something about an Android OEM. We hypothesised about the reasons for that in the distant past.

“As usual, any story that involves “Apple” tends to attract more coverage than something about an Android OEM.”Qualcomm’s actions were a reaction to Apple’s complaint. Citing Lexmark (SCOTUS), for example, Müller recently wrote about the FTC complaint. He said this: “I believe Qualcomm is trying to nuance its corporate structure here because it will try to somehow argue (which is going to be a tall order and I doubt it will persuade Judge Koh) that the Supreme Court’s recent Lexmark ruling on patent exhaustion wouldn’t apply to Qualcomm’s situation.

“Most of Qualcomm’s nine defenses (stated at the end of the document) are legal theories that are identical or related to what didn’t persuade Judge Koh in connection with the motion to dismiss, plus theories according to which whatever may appear anticompetitive is actually good for consumers (or, conversely, whatever remedy might appear procompetitive would ultimately harm consumers). Considering how much I, as a consumer, believe to have indirectly paid to Qualcomm over the years (vs. what other patent holders presumably collected), I disagree. In particular, the consumer-friendliest remedy would be to enforce Qualcomm’s “to all comers” FRAND licensing obligation so that Intel, Samsung and others could sell baseband chips to device makers that come with a license to Qualcomm’s standard-essential patents.”

“Qualcomm has preyed on Android OEMs, so an Apple win would be beneficial to Linux in this case.”Writing in late June he said there were “many billions at stake” and the mainstream press covered that too. Qualcomm had attempted to produce a so-called ‘study’, but Apple kept refuting it. Even CCIA, in the form of Patent Progress, wrote about that at the time. Wall Street media chose the headline “Apple Alleges ‘Mounting Evidence’ Against Qualcomm”, noting that:

Apple found “continuing — and mounting — evidence of Qualcomm’s perpetuation of an illegal business model that burdens innovation,” according to the filing. It claims some of the patents that Qualcomm wants to get paid for are invalid and that Qualcomm hasn’t fulfilled its obligation to charge fair and reasonable rates on patents related to industry standards.

As a reminder, we actually support Apple in this dispute. Qualcomm has preyed on Android OEMs, so an Apple win would be beneficial to Linux in this case. It would also harm Microsoft’s ability to shake down Android OEMs (Qualcomm’s recent threats to Microsoft and Intel notwithstanding). Precedence matters here.

Back in June the media recalled Qualcomm concessions/defeat, noting that “Qualcomm’s Refund to BlackBerry Swells to $940 Million”…

“BlackBerry is no ally here, but its ability to extract money (back) from Qualcomm is actually a good thing.”That was a deep and profound loss for patent maximalists – yet again!

BlackBerry’s devices now run Android, but BlackBerry may be getting out of that business and become a classic patent troll. The Canadian firm has already resorted to using software patents in the Eastern District of Texas against the competition. Bloomberg said a month ago that “BlackBerry Falls Most in Two Years as Software Sales Falter”. Well, the Bloomberg article has spread since [1, 2] and this was covered elsewhere.

BlackBerry is no ally here, but its ability to extract money (back) from Qualcomm is actually a good thing.

“…now it’s Qualcomm that’s coming under critical review from the European Commission.”“The final check that San Diego’s Qualcomm must write to smartphone maker BlackBerry for overpayment of patent royalties is $940 million,” said this article and Müller spoke of another pain for Qualcomm, namely the barrier to its NXP deal. “More than five years ago,” he recalled, “Google’s acquisition of Motorola Mobility was delayed significantly by merger reviews on both sides of the Atlantic and U.S. regulatory approval was subject to certain promises related to patent enforcement. At the time, Motorola Mobility (the acquisition target) was aggressively asserting FRAND-pledged standard-essential patents against Apple and Microsoft. Against that background of blatant FRAND abuse, competition enforcers weren’t prepared to grant fast-track approval.”

Well, now it’s Qualcomm that’s coming under critical review from the European Commission.

In patent extremists’ view, Qualcomm is doing nothing wrong. They don’t care about innovation and competition, only about maximal patent tax. IAM selectively covered this, choosing to defend standard essential patents (SEP) as follows:

While patent owners in the US in recent years have become accustomed to change in the legal environment courtesy of the Supreme Court and Congress, some have also had to contend with the much broader application of competition laws by local antitrust authorities. The Federal Trade Commission (FTC) has taken a lead role in actively policing the licensing activities of standard essential patent (SEP) holders, starting with Rambus in the mid-2000s and most recently with its investigation into Qualcomm’s licensing practices.

In contrast to this, Müller cited Judge Lucy Koh. Here is the relevant portion:

Qualcomm tried hard, but unsuccessfully, to get the FTC’s antitrust lawsuit in the Northern District of California dismissed. Maybe Qualcomm hoped, more realistically, the FTC would have to amend the complaint in some important ways, possibly complicating the case to the point where the U.S. competition agency would find it hard(er) to justify using the resources required for pressing on. The reason I suspected the latter is because, based on hearsay from about seven years ago, the European Commission’s investigation of Qualcomm’s practices with a focus on Nokia (now more of a Qualcomm friend than foe), essentially got derailed by scare of conducting a resource-intensive, complex and somewhat subjective (thus more likely to be overruled) rate-setting exercise. In the FTC case here, the presently-Acting Chair of the FTC, Maureen Ohlhausen, opposed the decision authorizing the complaint, and might have been the first decision-maker to argue that the case should be dropped or settled (the latter without any useful remedies) due to litigation economics. Industry concern over such a decision by the FTC was and remains real, as an open letter to President Trump showed in April.

This was also covered in [1, 2, 3]. The FTC lawsuit isn’t going to stop any time soon.

“…many of the patents at hand are on software and likely not patent-eligible/valid under Alice.”Not too long afterwards Apple was joined by its hardware partners and Müller framed it as follows: “In April, Qualcomm (in its counterclaims to Apple’s Southern California complaint) already alleged that Apple had interfered with Qualcomm’s contractual relationships with the contract manufacturers, which is why the related royalty payments ground to a halt a few months ago. Therefore, it really never made sense to me in the first place that Qualcomm brought a separate action against the contract manufacturers (in which it has meanwhile requested a preliminary injunction): the thing to do, in my view, would have been for Qualcomm to add the contract manufacturers to the case as third-party counterclaim defendants.”

“Apple and its contract manufacturers present united, ever stronger front against Qualcomm,” Müller added later. That’s pretty recent news:

On Monday, four of its contract manufacturers (the ones Qualcomm is suing in the Southern District of California) impleaded Apple into Qualcomm’s breach-of-contract suit. Before midnight on Tuesday, Apple and its contract manufacturers (the most well-known of which is Foxconn) made various filings in San Diego. It will definitely take me some time to digest, but as I follow the various Qualcomm matters closely, I can share some observations here already.

This one report about it speaks of “patent actions made against indefensible software patents” because, as we noted here before, many of the patents at hand are on software and likely not patent-eligible/valid under Alice.

Qualcomm then resorted to throwing more lawsuits Apple’s way, this time in Germany [1, 2].

Just before the weekend Josh Landau (CCIA) argued that “If Qualcomm Wins At The ITC, We All Lose,” for it’s not only Apple’s business that’s at stake. To quote:

This afternoon, CCIA filed comments on the public interest in the Qualcomm v. Apple case pending at the International Trade Commission (ITC). Qualcomm sued Apple in the ITC as part of the large dispute between the two companies. (The dispute continues to grow, having recently added a case in Germany and suits and counter-suits between Qualcomm and the contract manufacturers Apple uses.)

As part of ITC investigations, the ITC seeks comments on how the requested relief would affect the public. As I’ve written before, Qualcomm’s practices are anti-competitive and harmful to consumers. And by seeking to exclude Apple from selling any iPhones that lack Qualcomm processors, Qualcomm is trying to use the ITC as a tool to maintain their anti-competitive practices in the face of lawsuits from Apple and the FTC.

We generally haven’t kept a very close eye on this case because it involves two (or three, if we count BlackBerry too) companies that we don’t support and would rather see destroying one another. At the end of the day, however, the outcome will have serious ramification for any company that sells devices with GNU/Linux, be it Tizen or Sailfish OS or Android in its various flavours. Müller seems to be the only person who’s really keeping up and abreast of every development.



Source link: http://techrights.org/2017/07/24/qualcomm-apple-dispute/

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STRASBOURG: Representative of Lufthansa Accused of Corruption


[DE] STRASBOURG: Vertreter der Lufthansa wegen Korruption angeklagt

A. Matijevic and Topic by Lufthansa
Topić and Matijević

Summary: According to some international sources, it was on account of the corrupt and criminal tendencies with which he has been endowed by nature and which he used to assist international corporations in protecting dubious patents in the Republic of Croatia that Željko Topić was rewarded with a position at the EPO in Munich, although his skills and mindset indicate that he does not belong there. This is also indicated by the fact that this complex-ridden individual recently changed his place of residence in Zagreb.

On 20 July 2017 an action was submitted to the European Court in Strasbourg against the representative of the international airline, or more precisely against its legal representative in the Republic of Croatia, the lawyer Andrej Matijević. The complaint was dispatched by post, from a small town on the island of Korcula from where Ruža Tomašić, a Croatian MEP in Brussels, comes.

The complaint relates to a series of corrupt actions allegedly committed by the lawyer Andrej Matijević, together with the responsible official of the State Intellectual Property Office (DZIV), the former Director Željko Topić who is now a Vice-President of the EPO in Munich. Because of the lack of legal certainty and due to the ineffectiveness and corruption of the Croatian legal system, especially on the part of the Public Prosecutor (DORH) and the Office for the Suppression of Organized Crime and Corruption (USKOK), after more than 9 years of obstruction of the investigation the plaintiff in the proceedings has now decided to seek legal protection on an international level at the European Court in Strasbourg.

The most bizarre fact in the whole investigation procedure which has been going on for many years in Croatia is that apparently neither the representative of Lufthansa nor the former Director of the DZIV, Željko Topić, were ever summoned to an interview with the police or with the Croatian Public Prosecutor. Perhaps not without reason Croatia has been reported as one of the most corrupt states, according to the latest research from Transparency International.

Sources from the European Court of Human Rights Strasbourg indicate that at least four proceedings relating to corruption and discrimination are pending against the EPO Vice-President Željko Topić. The extent of the high level corruption alleged against the Vice-President of EPO is indicated by the claim that he was able to bribe a well-known Croatian investigative journalist. When this journalist was exposed, he terminated his membership in HND (the Croatian Journalists’ Association) of his own motion because he was afraid of Croatian and international journalists’ associations. For the moment, one small detail remains unknown, that is whether or not the accused journalist received the “black” money personally from Željko Topić or whether he received it from the “caisse noire” of the EPO. The sum is estimated to be of the order of several thousand Euros.

After the legal representative of Lufthansa in Croatia did not succeed in lawfully purchasing the internationally protected Air Plus brand, which had been used in an illegal manner for many years by the Lufthansa subsidiary AirPlus Servicekarten GmbH, a ruthless operation of unlawful expropriation of the trademark proprietor from Zagreb (in plain language: theft) was started by the allegedly corrupt Željko Topić who, as Director of the DZIV, responded to the accused lawyer Matijević and by administrative means attempted to illegally delete the protected trademark from the official database the of Croatian DZIV.

Although this pair of criminal “Siamese twins” were exposed, they were never subjected to any sanctions. In fact, according to some international sources, it was on account of the corrupt and criminal tendencies with which he is endowed by nature and which he used to assist international corporations to protect dubious patents in the Republic of Croatia that Željko Topić was rewarded with a position at the EPO in Munich, although his skills and mindset indicate that he does not belong there.

This is also supported by the fact that this complex-ridden individual recently changed his place of residence in Zagreb. He has moved from the slums of the Croatian metropolis to No. 23 Zamenhofova Street and has now become a member of the recently formed and phony “nouveau riche” class.

The true identity of Mr. Željko Topić is perhaps revealed in the two texts below, which were published in the Croatian media [1, 2]. The reports are titled “Sjedi li u EPO krivi čovjek?” [Translation: Is the “wrong man” sitting at the EPO] and “Hrvatski patent za autorska prava” [Translation: The Croatian patent on copyright].

In any case the company AirPlus Servicekarten GmbH (www.airplus.com), headquartered in Neu-Isenburg, Germany, had an impressive turnover of EUR 14 billion in 2016, while at the same time serving a customer base of 49000 exclusively business class passengers, that is to say, passengers with very high purchasing power.

Therefore, it would hardly be surprising if Lufthansa had decided to take such corrupt step assisted by a dubious lawyer and corrupt banana republic officials such as Željko Topić, and attempted to illegally acquire the protected trade mark instead of purchasing it via civilised business practices according to which it should pay at least 2% of the annual turnover of its subsidiary which had been making unlawful use of a foreign trade mark for almost 20 years. In the end it is a question of large sums of money. According to unofficial information of the German lawyer representing the plaintiff in the proceedings, Mr. Constantin Mascher, it involves a claim for damages of at least 30 million Euros. Furthermore, in order to make things even more interesting, reports have appeared in the Croatia media according to which Lufthansa is rumoured to be a hidden owner of Croatia Airlines.


Constantin Mascher photo
Constantin Mascher


Luft Ponuda I 2008


Matijevic dopis 2007



Source link: http://techrights.org/2017/07/23/lufthansa-corruption-sipo-epo/

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Patent Troll MPEG-LA Expands From Software Patents to Patents on Life While USPTO is Virtually Headless


Joseph Matal, who played a role in AIA, is in charge for the time being, but it’s probably just temporary

Joseph Matal

Summary: The travesty of software patents, such as patents on multimedia compression and playback, may soon be made worse as patents on genome are being aggregated by a notorious patent aggressor

DOZENS of articles have been written here about MPEG-LA, its owner, and its tactics. The entity is, simply put, more like a troll than a pool.

Now that the EPO chooses to become the world’s laughing stock for granting patents on CRISPR (even the USPTO would not do that) MPEG-LA prepares to impose predatory patent taxes on life itself. To quote IAM:

The end of June was the deadline to submit patents for inclusion in a potential new pool, organised by MPEG LA, that will focus on the CRISPR/Cas9 gene editing technology. MPEG LA is the administrator behind the wildly successful MPEG-2 video compression pool that launched 20 years ago.

Among those to submit their IP for possible inclusion in the pool was the Broad Institute, the research organisation that has been one of the CRISPR/Cas9 pioneers. Broad co-owns 22 relevant US and European assets along with MIT, Harvard and The Rockefeller University, and its decision to get involved is something of a coup for MPEG LA.

Why is MPEG-LA still around? As we noted here before, there were serious questions raised about its legitimacy. It’s one heck of a racket! Having preyed on companies in jurisdictions where software patents aren’t even valid, now they are hoping to do the same with genome. Incredible!

We have recently seen reports which suggest CRISPR patents make their way into the US, only after Battistelli’s EPO fell for that controversial trap/slippery slope (and the appeal boards are probably too severely weakened to stop this). This is a turning point and a critical crossroad. It serves to remind everyone of the dangers of the EPO under Battistelli.

Where will such patents go next? China? Japan? The JPO seems to be focused on gender rather than actual patent policies (like scope) and now that the USPTO is without a Director (only an interim one, Joseph Matal) it’s important to keep an eye on what’s happening there. The rest of the weekend will be dedicated purely to the USPTO. We have a lot to publish.

Yesterday, Managing IP looked into the mind of Matal, the person who now heads (in the interim at least) the USPTO. From the portion that’s not behind paywall:

In an open and wide-ranging speech at the Patents for Financial Services Summit in New York, interim USPTO director Joseph Matal predicted “we are going to win” the Oil States case, TC Heartland “is not going to put the venue issue to bed” and “there will be further patent reform legislation in the coming Congress”

What kind of reform does he refer to? The regressive steps proposed by the patent microcosm? We shall write about that in the coming days.



Source link: http://techrights.org/2017/07/22/mpeg-la-aims-at-genome/

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UPC Puff Piece in the Scottish Media is Just an Advertisement by Marks & Clerk


When moneyed interests dominate the media

Marks & Clerk

Summary: Advertising in the form of an ‘article’ (complete with self-serving bias and falsehoods) in The Scotsman today, courtesy of Team UPC

Marks & Clerk is a large firm, apparently large enough to also occupy the media. Over the years we have shown how the EPO corrupted the media (paying it money) and noted that patent law firms totally dominated coverage about patents, either directly (as authors) or indirectly (quoted extensively by authors, usually to the exclusion of those actually impacted). It’s the same problem in the US media, where the patent office gradually improves.

“It’s hard not to get bitter when stuff like this is done so routinely, basically routing around the public.”Not much can be done about this except openly complain about it. This morning (or last night), filed under “opinion”, the Scottish media published pure spam, not journalism, attempting to sell services rather than inform the public. It’s marketing packaged up as “news” and the promotional final words of this ‘article’ say: “If the UK was to end up outside of the Unitary Patent regime, Marks & Clerk LLP would still be able to apply for Unitary Patents for its clients via its offices in Europe.”

Is this what major news [sic] papers have sunk to? Even national press, not just local media? Suffice to say, being an ‘article’ (informecial) from Marks & Clerk, it paints UPC as desirable in spite of opposition from British software firms. It’s hard not to get bitter when stuff like this is done so routinely, basically routing around the public.

‘David Moreland is a Chartered (UK) and European Patent Attorney for Marks & Clerk,” it says. They are proponents of software patents, which isn’t at all surprising (all of Team UPC is promoting these too and the UPC is a Trojan horse for this agenda).

Here are some excepts:

Will our relationship with the EPO change when we’re no longer part of the EU? Contrary to misconceptions, the EPO is not an EU institution. It has EU members amongst its signatory countries, but there are non-members too – Switzerland, for example.

Companies which have patents granted by the EPO then need to have those patents validated in each country in which they want protection.

[…]

But now there is a new spanner in the works. An anonymous party has recently filed a case with the German Constitutional Court which essentially suggests ratifying the agreement would be against the German constitution. The German Constitutional Court has determined that on the face of it, the challenge is not entirely without merit, and asked the German President to delay signing the implementing legislation for the Unified Patent Court and Unitary Patent court. This ensures that ratification does not take place before a full determination of the constitutionality of the legislation has been made. Whether the complaint is upheld remains to be seen; however any attempt to block the legislation will, at the very least, delay it.

They keep using the word “delay” as if, without even knowing the nature of the complaint and where it came from, they are already certain about the outcome. That’s what Team UPC just keeps doing to bias the outcome.

When will we finally see some real journalism about the UPC? We last wrote about utter lack of it in British media only about 24 hours ago.



Source link: http://techrights.org/2017/07/17/team-upc-in-scottish-media/

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Amazon is Stockpiling Terrible Patents and Using These for Competitive Advantage


An Amazonian floodgate of bad patents

Amazon

Summary: Demonstrating the real purpose of patent hoards, Amazon too ‘pulls a Microsoft’ and shields its dominance by an atmosphere of sheer fear

MANY older articles of ours spoke about Microsoft’s Azure threat to AWS, namely a patent threat [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13]. We last alluded to it in our previous article. Microsoft can barely compete with the likes of AWS, so it tries gaining leverage by threats (usually patent threats and innuendo, maybe even threats over licensing of Windows/Office). Such is the nature of a company full of liars, crooks, and managers who bribe. They still operate like a cult.

Amazon too, however, is somewhat of a patent parasite, albeit less aggressive than Microsoft (for example, it rarely initiates lawsuits). It habitually promotes software patents not just in the US — something for which it’s hard to forgive Amazon.

In the month of June Amazon received a lot of negative press over patents. Caleb Chen wrote succinctly the following:

Jeff Bezos’s Amazon has been granted a patent for a tool called “Physical Store Online Shopping Control,” which helps brick and mortar locations control users’ online shopping experience when they are at the store and on the store’s WiFi network. If a customer searches for a product or competitor, Amazon would be able to “control” that online experience by redirecting, blocking, or otherwise tampering with your internet traffic.

It’s all about this US patent, which some readers told us about. It certainly looks as though the US patent office granted a software patent that would certainly be invalidated by either PTAB or courts (if tested). A widely-cited report about it said that “Amazon’s long been a go-to for people to online price compare while shopping at brick-and-mortars. Now, a new patent granted to the company could prevent people from doing just that inside Amazon’s own stores.” [via]

This made quite a lot of headlines at the time, e.g. [1, 2], but we didn’t consider it urgent enough to cover until yesterday’s report alleging that Amazon exploits its almost fully dominant position/near-monopoly in the domain of AWS in order to protect itself from patent lawsuits. See this article from Amazon-friendly media:

Amazon Web Services drops controversial patent clause from standard user agreement

Amazon Web Services has quietly dropped a controversial provision from its user agreement that essentially forced customers to agree that they could never file a patent infringement lawsuit against the public cloud vendor.

We are guessing that Amazon did not like this coverage, whereupon it was changed.

This article was later retitled “Amazon Web Services adds IP protection while dropping controversial patent clause from user agreement” (with the URL changing also).

The new title suggests that they made a defensive move, perhaps in response to what Microsoft had done earlier this year. It still leaves customers of small hosting companies (without a big pile of patents) rather vulnerable. That’s not a desirable status quo, is it?



Source link: http://techrights.org/2017/07/15/amazonian-swpats/

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The Death Knell is Tolling for Shipping & Transit LLC


Second court recommends awarding legal fees to defendant hit with patent troll’s lawsuit

A court in the Southern District of Florida has recommended (PDF) that prolific patent troll Shipping & Transit LLC pay a defendant’s legal costs. This is the second court in less than a week to find Shipping & Transit’s patent litigation suit “exceptional” for purposes of awarding legal fees to a defendant.

The latest finding comes out of Shipping & Transit LLC v. Lensdiscounters.com, a case originally filed by Shipping & Transit just over a year ago, but not lasting nearly that long. When at an early hearing it came out there were serious defects in Shipping & Transit’s case, Shipping & Transit immediately sought to end the lawsuit.  Lensdiscounters opposed letting Shipping & Transit run away without consequences. Lensdiscounters told the court its belief that Shipping & Transit had failed to investigate infringement before filing its lawsuit and that Shipping & Transit’s patents were invalid. It argued it should be awarded the cost it incurred in defending against Shipping & Transit’s infringement claim.

In a report signed on July 10, a magistrate judge agreed (PDF). The court found Shipping & Transit’s explanation for why it believed it had a case of infringement worth pursuing to be “flawed.” Instead, it appeared to the court that “likely, [] from the inception, [Shipping & Transit] never intended to litigate its patent infringement rights” and “it appears that [Shipping & Transit] brought this case merely to elicit a quick settlement from Defendant on questionable patents.” With respect to Shipping & Transit’s “questionable patents,” the court noted that despite Shipping & Transit filing over 300 cases in Florida alone, the court “could not find one case [] where the substantive issue of patent validity was reached.” Instead, Shipping & Transit “routinely and promptly” dismissed cases “to end any inquiry” any time the validity of its patents was challenged.  These facts lead the judge to recommend that the court order Shipping & Transit to pay Lensdiscounters’ legal fees.

Because this report is from a magistrate judge, it still needs to be confirmed by the District Court judge. However, it represents yet another finding by a court that Shipping & Transit’s patent infringement lawsuits are exceptional and should lead to an award of fees to defendants targeted by Shipping & Transit. This latest decision from Florida, along with the similar order (PDF) from California, have Shipping & Transit’s death knell bell tolling across the country.



Source link: https://www.eff.org/deeplinks/2017/07/death-knell-tolling-shipping-transit-llc

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Subtle Shaming of EPO Staff by EPO Management Earlier Today


EPO strike shaming

Summary: How a popular strike against the management of the EPO got spun as improvement in the social climate

THE EPO was on strike a week ago, after nearly 90% of staff had voted for a strike (among the ~40% of staff which was brave enough and informed enough to go vote on it).

After human rights violations by Battistelli, including persistent attacks on staff representatives, abolishment of the rights of staff/strikers etc. we see them do this obligatory but unprecedented strike-shaming (warning: epo.org link). “A low rate of participation by staff was registered,” it says.

Someone told us in the comments that about 20% were on strike, but the EPO, as usual, found its “alternative facts”.

It’s worth noting that the EPO’s managers and communications people hadn’t even mentioned anything about the strikes anywhere (barely even internally) until they found a strike-shaming angle/spin. Disgusting and insulting, not just to those who participated.

As can be seen above, the subliminal message is, workers are now happy and it’s business as usual. The subtext is gross as it’s another spit in the face of EPO staff.

Looking at some new anonymous comments, people are certainly not happy. “Given that the administrative council appears to be solidly backing Battistelli, it does seem that he [Battistelli] is not the only problem,” one person wrote.

Another person said: “Given that the national representatives are clearly listed on EPO site, and I’m sure there are commentards from each European nation represented in EPO – it’s not really that difficult to send an email to your national EPO rep and ask what the hell is going on!”

The next comment said: “If they can’t even fire a dictator in a European-run company, how the heck are we supposed to deal with dictators of countries??”

That’s a typical argument that’s often heard from/used by Eurosceptics.

“I know he’s claiming that as it’s an international organisation,” said the next comment, “they’re immune from local laws, but that’s bollocks right? Surely any organisation has to adhere to the labour laws of the country they’re employing people in? I suppose they can just refuse to pay up even if an employment tribunal finds them guilty of (eg) withholding pay.”

Well, they already withhold pay in some cases and even threaten to take away people’s pensions. They use these threats to blackmail people.

“I doubt things will improve with a new president,” the next comment said. Here it is in full:

The EPO is a bit of a weird one in that all countries participating agreed that it would remain outside the jurisdiction of one specific country, lest it give the country the EPO settled in some form of legislative control over the organisation, possibly forcing it to rule in it’s favour. This means the EPO staff does not fall under Dutch labour laws. This has already been tested in court.

Given the support Batistelli seems to have in the higher levels of management (these latest approved “reforms” are again a blatant power grab and method to silence critics) I doubt things will improve with a new president. The only way they are ever going to fix this is for the new president to immediately throw out all this bullshit Batistelli put in place and put some proper independent oversight comittees in place. Otherwise they’ll just be swapping “Great Leader” for “Dear Leader”.

More on the immunity:

It would be nice to think so, but the European Institutions have effective and legal immunity from such mundane things as local laws.

In Luxembourg, there are many EU Institutions and many, many eurocrats working in them. I will not go into listing the various advantages these people have (special tax-free supermarkets, no income tax, . . .), but a few years ago there was a review of hiring policy and now EU Institutions in Luxembourg are offering new entry-level positions at less than than the Luxembourg Minimum Wage index.

Nothing can be done against that by the Luxembourg government.

Anon for obvious reasons.

Oddly enough, IPO was then brought up:

I’m not going to defend the European Institutions laws / staff rules – I will remark though that all of these Institutions mandates are created and approved by each of the Member States Governments – its therefore also a national responsibility to correct things if they are not fit for purpose! In the case of ridding the IPO, which is not an EU Institution, of its leader it seems the same is true. With the exception of a few honorable exceptions the responsible administrations are not living up what I would expect their electorates to demand from them.

Also its incorrect to say that EU bureaucrats don’t pay tax – they don’t pay tax in the Member State they work in but they do pay an EU income tax – http://ec.europa.eu/civil_service/job/official/index_en.htm. However, in the case of the IPO which is not an EU entity, it may be that no income tax is paid.

“It’s like FIFA,” said the next comment, where people got “bribed and threatened into compliance with the President’s agenda.”

Remember what Battistelli did. Here is the comment in full:

It’s like FIFA. There are a large number of member states which can be (and were) bribed and threatened into compliance with the President’s agenda. Yes, a few member states may have objected but they are vastly outnumbered by the others. FIFA wrongdoing was eventually exposed because football is interesting to the press. International civil servants are not, and are often caricatured as “privileged”. Yes, they are well paid, but many politicians, academics, consultant physicians, business people, lawyers, etc etc are paid even better (even after tax), can live in their home countries and enjoy the protection of their laws and of human rights treaties to which their country is a signatory. No-one would suggest that at a certain level of pay they have been bought out of the protection of the law, would they? But this is implicit in many comments about the plight of employees of the EPO and other IOs.

In our assessment, the EPO has become not only crooked but also corrupt. Those who dare protest against it have their action spun as some kind of “social democracy” (the right to strike) and are used as ‘proof’ that dissent comes from a “vocal minority” (see the EPO’s misleading statement at the top).



Source link: http://techrights.org/2017/07/10/epo-strike-shaming/

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Lobbying Against the US Supreme Court’s Landmark Decision (Alice) by Bristows, IBM, David Kappos, IPO, ABA, AIPLA, Adam Mossoff and Kevin Madigan


They want software patents back and they work hard to mislead politicians on it, sometimes under the guise/pretense of “academia”

A stacked panel
Echo chamber-like panels (“stacked” by their own admission) designed to talk about how wonderful software patents are

Summary: Using paid-for lobbyists and influence that’s up for sale, companies such as IBM set up events and initiatives to compel politicians to change Section 101, gut patent progress, and basically give patent aggressors a free rein

THE one article we were extremely eager to publish (for over a month now) pertains to the efforts to overturn Alice or at least compel the US patent office to ignore it.

A lot has happened since we intended to publish this (pending some more fact-checking and research), including the pushing forth of a bill. Watchtroll, for example, has moved on to other matters and it’s almost as though the lobbying effort completely lost steam by now. Nevertheless, we want to keep documented what happened around the month of May (and to a lesser degree June). There are malicious forces at play and they desperately try to undo all the patent progress, having already chased away the Director of the USPTO. Will they be back at it? We certainly think so.

“There are malicious forces at play and they desperately try to undo all the patent progress, having already chased away the Director of the USPTO.”IP Kat used to be a good blog, but we hardly cite it anymore. It has become terrible. It’s used for marketing and agenda-pushing. It plays a role in some of the most regressive activities. A longtime proponent of software patents (not that she ever wrote any software), Annsley Merelle Ward from Bristows, attacked the US patent system over Section 101 — essentially the means for invalidating software patents these days. She piggybacked a bunch of people who lobby against Section 101 (or lobby to water it down). “His heightened sense of alarm stems from a concern that America’s patent system has been going in the wrong direction while other patent systems have been improving,” she wrote. Pure nonsense. If anything, the US patent system is improving! Quality is up, lawsuits are down.

IP Kat, now effectively run by Bristows’ liars as far as patent coverage is concerned, goes further by calling AIPLA (pressure group of the patent microcosm) something that it’s not, in order to give its ‘views’ (financial agenda) legitimacy. There were many examples of this back in June, e.g. [1, 2, 3]. Is this what IP Kat boils down to now? A mouthpiece for AIPPI/AIPLA? Thrice in June alone (so far, based on a quick ‘literature’ survey) Bristows exploited the blog for marketing or lobbying by patent maximalists. This may sound benign, but considering what AIPLA has been up to recently, it’s anything but benign. The US Supreme Court is under attacks from these think tanks and pressure groups (like AIPLA), primarily for stopping software patents with Alice (2014). See this article titled “AIPLA releases Section 101 legislative proposal” (one among several such reports). AIPLA, a pressure group, along with IBM and some other patent vultures, try to undermine the law itself. As United for Patent Reform put it at the time, “Steven Anderson of @culvers tells @HouseJudiciary that to lose #Alice “would be extremely disappointing and costly” to #smallbiz” (obviously).

IP Kat, now effectively run by Bristows’ liars as far as patent coverage is concerned, goes further by calling AIPLA (pressure group of the patent microcosm) something that it’s not, in order to give its ‘views’ (financial agenda) legitimacy.”People start to worry that the lobbying might actually work and Section 101 (in its current form) will be thwarted. Under Trump it will probably be easier to bribe politicians to ‘buy’ USPTO policies in defiance of SCOTUS. As The National Law Journal put it at the time (in its headline), “After SCOTUS Shake-Up, Lawmakers Plot Next Steps on Patent Reform” (we now know the resultant bill, which seeks to gut PTAB as well).

As is usual from IP Kat these days, comments are a lot better than the ‘articles’ (lobbying/advertising). Someone pointed out that Annsley Merelle Ward “lacks a grasp of what the subject matter in each STILL means.” Well, exactly the opposite of what she said (AIPPI/AIPLA propaganda) is true. To quote the comment:

I must take issue with the statement of:

“The incredible developments in technology – how information is created, by what technological process, how information is accessed and where it is used – means the subject matter once the purvey of the patent world has crossed into the copyright realm.”

It is not only incorrect, but troubling so, to think that that a person charted with writing on the subject does not understand that the subject matter of what patents protect and what copyright protects has “crossed into.”

The subject matter remains clearly different between the different areas of Intellectual Property protection.

What perhaps has “crossed into” (and certainly, this crossing has been going on now for many decades) is that a particular manufacture of the hand of man (as those terms are understood in the various Intellectual Property legal terrains), has multiple aspects, each of which may earn protections in the different IP areas.

This is most definitely NOT a matter of “subject matter” crossing from one IP terrain into another.

Patents still protect that which patents protect.
Copyrights still protects that which copyrights protect.

It is decidedly unhelpful to contribute to the view that somehow “subject matter” is “crossing into” one IP arena from another IP arena – and shows that the author lacks a grasp of what the subject matter in each STILL means.

Watch how Annsley Merelle Ward gets completely skewered in the comments in another one of her posts (again for distorting facts):

Terrible proposal. Assessing patent eligibilty without regard to sections 102, 103, and 112 is absurd. This allows completely ineligible subject-matter to become patentable simply by including a conventional and known piece of apparatus e.g. a computer doing something that can be performed solely in the human mind. It should be the new and non-obvious subject-matter that is assessed for patent eligibility.

And here is another:

Your post contains so many legal (and factual) errors that I scarcely know where to begin.

First, subject matter eligibility and patentability are separate concepts.

Second, the US law – as established by the Act of 1952 broke apart 101 and the other sections of law (102/103/112) for a reason. That reason is exactly the same reason that the current legislative suggestions are coming forth.

Third, eligibility remains something determined for a claim as a whole, so the notion that ineligible subject-matter now “becomes eligible” has nothing to do with the legislative changes – your “concern” already IS the law in the US. The easiest example of this is the Diehr case, where everything in that case was old, except for the use of a computerized math equation. The important aspect was that the math equation was there in the sense of applied math. Your over-stated concern of “a computer doing something” is exactly the type of thing that patent law was meant to protect. It was, is, and will remain a question (for eligiblity) as to WHAT the “doing” is, and whether that “doing” falls into the realm of patent protection of the Useful Arts.

Fourth, your position denigrates the factual situation that the known and conventional piece of apparatus is in fact improved. US patent law allows for improvement patents. In fact, a very large percentage of patents are of the improvement patent type. Your view exhibits the fallacy known in the US as the House/Morse fallacy. A television show called House has a protagonist that believed that only the first computer should have been patentable and that all improvements (via software) belonged to that first inventor. This though is the opposite of the US case of Morse which held that all future improvements were NOT captured by a first (grand) invention.

Fifth, your view ignores the actual factual state of what software is. Software is a manufacture (in the legal sense, as it is a fabrication by the hand of man intended to be a machine component). That is the nature of what software is, and always has been. It is a “ware” that is soft, or easily modified, changed, reconfigured, and the like. In the patent sense, this “ware” is every bit a patent-equivalent to other “wares” i.e., hard and firm “wares.” There is nothing that can be claimed as a software invention that also could not be set completely in hardware.

Sixth, you conflate 102/103 with 101, and this conflation evidences an attempt to apply 101 on some per element basis. This gets each and every section of US law wrong.

I could continue, but I hope that you see the error in your views by now.

This would probably be excusable as gullibility if the author hadn’t spent years gleefully promoting software patents. The matter of fact is, all the above is pure lobbying and it’s happening right here in the UK.

Over in the US, things are just as bad because the patent microcosm (Jeff Lindsay‏ in this case) resorts to alarmist tone: “Many patents being allowed in Europe &China are rejected as ineligible in US, a sign of trouble in USPTO & SCOTUS.…”

So?

That’s a good thing, no?

“This would probably be excusable as gullibility if the author hadn’t spent years gleefully promoting software patents.”Well, not for a “patent agent” like Mr. Lindsay‏. High patent quality is not “trouble” and Watchtroll promoting a right wing corporate think tank is hardly shocking (that’s what Mr. Lindsay links to). The latest among all those think tanks involves Adam Mossoff, a pro-trolls academic who spoke of “Dave Kappos @ IIPCC conf on patents & innovation: the 101 situation is not improving, it has at best only stabilized in a terrible space” (yes, he calls David Kappos “Dave” as if this lobbyist is a buddy of his).

As can be expected, the company that hires these lobbyists, IBM, was there too. Mossoff wrote that “@MannySchecter @ IIPCC conf on patents & innovation: legal uncertainty is enemy of R&D & #innovation, & massive legal uncertainty today” (Schecter is IBM’s patent chief). Nice lobbying platform you got there. IAM helped with this article:

US businesses deal with devastating effects of SCOTUS decisions; support grows for subject matter reform bill

[…]

In March, a paper by Adam Mossoff and Kevin Madigan from George Mason law school analysed a dataset of 1,400 patent applications, finding marked differences between patent eligibility in the US compared with Europe and China.

By their own admission, this is a “stacked” panel (lacking anyone from the other side of the argument). To quote, “@JackBarufka of @pillsburylaw moderating the stacked Section 101 panel #GWIP pic.twitter.com/kt1hAO65IM”

“Watchtroll and IP Kat are symptoms of a problem. They are figureheads in the fight against Section 101.”As a reminder, the Intellectual Property Owners Association (IPO), the American Bar Association’s (ABA) IP section and the American Intellectual Property Law Association (AIPLA) play a big role in this, aided by Adam Mossoff and Kevin Madigan in “scholar” clothing. IPO and IBM even created a “task force” for this. They actively support sites like Watchtroll.

Watchtroll and IP Kat are symptoms of a problem. They are figureheads in the fight against Section 101. They are not only smearing SCOTUS (Watchtroll and his sidekicks) but are also insulting their own country. “America’s patent system favors low tech, not groundbreaking innovation,” said one recent headline from Watchtroll. So says a man who doesn’t invent anything and just attacks anyone (even judges) who applies patent law and issues a judgment based on the rules. Here is another example of Watchtroll posts. It says that “patent analytics software can be utilized to assess the corporate patent portfolio on an asset-by-asset basis, by technology or product focus, and within the context of a broader IP landscape.” Seriously? Letting some machine do an in-depth analysis of the underlying concepts? Pure science fiction. Like that stuff Battistelli tends to fall for…

“It’s not clear if all that lobbying will lead them anywhere, but unless their actions are properly scrutinised and the culprits get named and shamed, they might actually make headway for their own selfish interests (disguised as “innovation” or whatever).”Here is Watchtroll using terms like “piracy” and “patent owner” to further perturb the debate.

It’s not clear if all that lobbying will lead them anywhere, but unless their actions are properly scrutinised and the culprits get named and shamed, they might actually make headway for their own selfish interests (disguised as “innovation” or whatever).



Source link: http://techrights.org/2017/07/10/swpats-lobby-guise-of-academia/

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In India, the Elephant in the Room is the Term “Per Se” — a New Loophole for Software Patenting


A self-harming shot in the foot per se

An Indian elephant

Summary: Further analysis of the changes just made to rules in the Indian patent office after intensive lobbying by companies that are not even Indian and are notorious for patent bullying worldwide

THE EPO has been warming up to and openly promoting software patents in clear defiance of the rules. The USPTO, by contrast, gradually moves away from this software patents bubble. What about India, probably the world’s biggest software producer? Well, we had covered the subject for about 9 years and revisited the subject twice in the past few days due to changes to rules. We lack the ‘legalese’ training/background to interpret the changes with sufficient authority, so we typically rely on legal professionals who break down the changes and analyse these.

“More companies can now pretend that their patents on algorithms somehow pertain to hardware like a “device”…”Our initial interpretation of the changes, based on patent maximalists (IAM) and Indian patent minimalists (The Centre for Internet and Society), is that these changes were bad*. They were detrimental to software developers as new loopholes were being opened, making more developers susceptible to infringement claims. As we wrote 2 articles about it recently we were anxious to see if someone can contradict this and a short while ago a patent law firm, RNA IP Attorneys, referred to these changes as “one step forward, one step backward”. Here are the details:

The Indian Patent Office predicament over software patents continues. The patent office has issued another version of modified guidelines for the patentability of Computer Related Inventions (CRIs) on June 30th 2017. This is the third time the guidelines related to patentability of CRIs have been modified. The first version of the guidelines was issued on 21 August 2015 (2015 Guidelines) which were later replaced by the guidelines issued on 19 February 2016 (2016 Guidelines).

[…]

The Patent office has now issued fresh guidelines to address concerns of stakeholders. One of the essential features of 2017 guidelines is deletion of the recommended test/Indicators to determine patentability of CRIs as detailed above. The guidelines were currently strictly applied by the examiner and in case the hardware and software did not pass the novelty test they were refused at the threshold. The deletion of these “test parameters” gives discretion to the examiners to focus on the underlying substance of the invention, not the particular form in which it is claimed. This is amplified by the clarification provided in the guidelines that when the issue relates to hardware/software relation, the expression of the functionality as a “method” is to be judged on its substance.

Finally, it may be noted that the Patents Act clearly excludes computer programmes per se. Thus guidelines have to be read with the provisions in the Patent Act. We believe the examiners would have discretion while determining the patentability of CRIs however may not allow blanket exclusion of hardware novelty requirement in a patent application by merely camouflaging the substance of the claim by its wording.

That last paragraph, regarding the “camouflaging” of “substance”, is what we alluded to the last time. More companies can now pretend that their patents on algorithms somehow pertain to hardware like a “device” and as the above puts it, the exclusion is on “computer programmes per se.” (similar to “as such” in Europe)
______
* When we say “bad” we mean pro-software patents. By contract, when IAM says “good news for patent owners,” as it did yesterday, IAM means good news for patent trolls and lawyers, not for society or businesses.



Source link: http://techrights.org/2017/07/08/india-swpats-per-se/

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Court Orders Prolific Patent Troll Shipping & Transit LLC To Pay Defendant’s Legal Bill


Shipping & Transit LLC, formerly known as Arrivalstar, is one of the most prolific patent trolls ever. It has filed more than 500 lawsuits alleging patent infringement. Despite having filed so many cases, it has never had a court rule on the validity of its patents. In recent years, Shipping & Transit’s usual practice is to dismiss its claims as soon as a defendant spends resources to fight back. A district court in California issued an order (PDF) this week ordering Shipping & Transit to pay a defendant’s attorney’s fees. The court found that Shipping & Transit has engaged in a pattern of “exploitative litigation.”

Shipping & Transit owns a number of patents that relate to vehicle tracking. We’ve written about its patent trolling on numerous occasions. In many cases, Shipping & Transit asserted its patents against businesses that simply sent email to customers with a tracking number. In other cases, it has sued municipal transport agencies and logistics companies.

The recent fee award is from a case called Shipping & Transit LLC v. Hall Enterprises, Inc. After getting sued, Hall told Shipping & Transit that it should dismiss its claims because its patents are invalid under Alice v. CLS Bank. Shipping & Transit refused. Hall then went to the expense of preparing and filing a motion for judgment on the pleadings (PDF) arguing that Shipping & Transit’s patents are invalid. In response, Shipping & Transit voluntarily dismissed its claims. Hall then filed a motion for attorney’s fees (PDF).

In considering the motion for fees, the court first considered the merits of Hall’s judgment on the pleadings. The court found that the asserted patent claims were directed to the abstract idea of “monitoring and reporting the location of a vehicle” and that they do not contain an inventive concept sufficient to transfer the abstract idea into a patent-eligible invention. The court also concluded Shipping & Transit’s legal arguments in defense of its patents were “objectively unreasonable in light of the Supreme Court’s Alice decision and the cases that applied that decision to invalidate comparable claims.”

The court also considered Shipping & Transit’s litigation history. It wrote:

Although the Court agrees that filing a large number of cases does not necessarily mean Plaintiff litigated in an unreasonable manner, it nevertheless finds troubling that Plaintiff has repeatedly dismissed its own lawsuits to evade a ruling on the merits and yet persists in filing new lawsuits advancing the same claims. …

Plaintiff’s business model involves filing hundreds of patent infringement lawsuits, mostly against small companies, and leveraging the high cost of litigation to extract settlements for amounts less than $50,000. These tactics present a compelling need for deterrence and to discourage exploitative litigation by patentees who have no intention of testing the merits of their claims.

In the court’s view, the combination of Shipping & Transit’s unreasonable legal arguments and its history of exploitative litigation justified an award of fees.

Shipping & Transit could appeal this decision but we believe the appeal would be unlikely to succeed. Any appeal would be decided under an “abuse of discretion” standard that makes reversal less likely. Also, the Federal Circuit has recently shown increased willingness to impose fees on abusive patent litigants.  

Because Shipping & Transit dismissed its complaint, the court did not have jurisdiction to formally invalidate the patent claims. Nevertheless, the court clearly would have ruled in Hall’s favor on the motion for judgment on the pleadings had it decided that motion. Shipping & Transit is therefore on notice that these patent claims are invalid and, in our view, any subsequent litigation asserting these claims would warrant sanctions.

We hope this ruling will finally put an end to Shipping & Transit’s massive patent trolling campaign. The fact that Shipping & Transit was able to file more than 500 cases with almost-surely invalid patents shows that further reform is needed to slow down patent litigation abuse.



Source link: https://www.eff.org/deeplinks/2017/07/court-orders-prolific-patent-troll-shipping-transit-llc-pay-defendants-legal-bill