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Great News: While IBM et al Try to Undermine Patent Reform the Supreme Court Deepens the Reform in TC Heartland Case


The giant corporations that like to bully competitors with their software patents are losing control of the patent system, thanks in part to the Supreme Court (SCOTUS)

TC Heartland LLC v Kraft Foods Group Brands LLC
Reference: Outcome of TC Heartland LLC v Kraft Foods Group Brands LLC

Summary: In a unanimous decision, with the court ruling 8-0 against TC Heartland, the monkey business in East Texas (beneficial to patent trolls and large businesses that leverage software patents) may have just come to an end

TECHRIGHTS was eagerly awaiting the decision on TC Heartland, not knowing when exactly this decision will be delivered. This decision won’t have a profound effect on the USPTO but rather on the courts. Say goodbye to the Eastern District of Texas as a capital of patent trolls and patent aggression. There’s no room for appeals anymore.

Is this the beginning of the end of patent trolls in the US? Well, it most certainly is a massive leap. Without access to my workstation (11,000KM away) it’s hard to know just how many patent-centric sites already cover it (probably spinning it), but here is coverage from TechDirt, whose views are similar to the EFF’s (which did a lot of campaigning regarding this case). To quote:

Another Supreme Court case on patents, and another complete smackdown of the Court of Appeals for the Federal Circuit (CAFC), the court that is supposed to be the “expert” on patent cases. This morning the ruling on the TC Heartland case came out, and it could help put an end to jurisdiction shopping for patent cases. As you’ve probably heard, for years now patent trolls and other aggressive patent litigants have been filing their cases in East Texas, as it’s become a jurisdiction that is ridiculous friendly to patent holders. The towns of Marshall and Tyler, Texas have practically built up industries around the fact that they are “patent friendly” jurisdictions. In the past few years, a second favored jurisdiction has popped up: Delaware, after a few academic studies showed that the courts there may have been even more friendly than East Texas. The TC Heartland case was about a case filed in Delaware, and raised the issue of whether or not this kind of patent forum shopping was okay. CAFC, in its usual CAFC manner, said “sure, that’s great, we love jurisdiction shopping and have since our 1990 ruling in VE Holding v. Johnson Gas. This was kind of ironic, as one of the key justifications given for setting up CAFC in the first place was to put an end to jurisdiction shopping in patent cases.

Either way, CAFC once again blessed the ability of patent holders to sue in plaintiff friendly locations, and the Supreme Court — which has spent the past decade reteaching patent law to CAFC every chance it gets — has done so again. Once again, the decision was unanimous, with the court voting 8 – 0 that trolls can’t just file over and over again in East Texas (Gorsuch, having just joined the court after the case was heard, did not take part). The opinion, written by Justice Thomas, goes through the history of jurisdiction issues related to where one can bring lawsuits, noting that historically, where a company was incorpor

It is worth reminding ourselves that these courts down in Texas were known not just for affinity towards trolls but also software patents. So this is massive! As the above notes, this case does not yet reveal anything about Gorsuch’s stance on patents.

Meanwhile, in the pro-trolls and pro-software patents spheres, there is a push to overturn another SCOTUS case (Alice), led by the likes of IBM and promoted by IAM, Watchtroll and few others.

The other day IAM did a sort of think tank on the matter, writing about what it called: “Superb panel on [Section] 101 looking at some of differences between software community and other IP owning sectors…”

As one can expect, it’s one of those stacked panels that IAM is so renowned (or notorious) for. That’s how IAM pays the bills; follow the money, they sell influence…

Here it is stating that “HP Enterprise’s Marcia Chang – we’ve had a course correction cleaning up some of mess in software patents & that’s a good thing…”

Here’s Google’s stance: “Puneet Sarna of Google – current situation on 101 is where SCOTUS wanted to go with Alice…”

“Sarna – Now patentees and accused infringers have better idea about how 101 should be applied,” IAM added.

Then came Cisco, another giant corporation: “Cisco’s Dan Lang – if you look at recent Fed Circuit decisions i believe theres a strong convergence between Europe and US…”

Where are the small businesses or actual developers? Well, IAM doesn’t really want a real debate. It’s a think tank after all…

Then came this UPC lobbying from IAM and Cisco: “cautious but hopeful that UPC will lead to a balanced system…”

Who said it would happen at all? The tense in “will” suggests inevitability.

IAM later wrote this post about “big software players” (that’s what the headline says). IAM’s loudest software patents proponent wrote it and left no room for objectivity. Here is the part about Google, which is probably the lesser culprit (Michelle Lee came from there):

“It’s a false narrative, it’s not that Silicon Valley hates the patent system,” insisted John La Barre, head of patent transactions at Google. “In my experience at Google we value strong patents, we just have an opinionated sense of what that means. It’s a question of what does a strong patent system look like, not do we think we need a strong patent system.” La Barre added that meant the search giant supported improvements in patent quality and attempts to reduce litigation.

We can expect the latest SCOTUS decisions to be spun, attacked, nitpicked etc. by the patent microcosm in the coming days. IAM will probably fight this decision for years to come (like it does Alice… even 3 years down the line). We’ll take stock of some of the spin some time next month (when I return home).



Source link: http://techrights.org/2017/05/22/tc-heartland-case-decided/

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Media and Staff Association Elections at EPO and WIPO Are Compromised


Knocking down two essential pillars of a modern democracy

Separation of powers
“Freedom of the Press,
if it means anything at all,
means the freedom
to criticize and oppose”

–George Orwell

Summary: A campaign of abuse (legal bullying) and gifting to the media, combined with a wide-ranging assault on critics who represent the interests of staff, have led WIPO and EPO down the route to totality

WIPO is a tool of mega-corporations which is neither international nor fair. Its attacks on media recently got the attention of some media that had hitherto more or less ignored WIPO scandals — in the same way that a lot of media still ignores many EPO scandals. It often seems that the media starts caring — at least a little — only when it too comes under attack (basically for doing its job).

The failure of ILO and the EPO (further to our previous post) is part of a broader problem which I first became familiar with half a decade ago. There is no access to justice. People at the UN told me so and shared documents to support these assertions. It has gotten so bad that they now bully the press with impunity (ILO could, in theory, attempt to bully bloggers) and citing all sorts of articles such as this, SUEPO took note of WIPO’s abuses (also UN), citing a several pages long PDF about the latest at WIPO. See the article “WIPO Boss Seeks to Silence Press Critics and Whistleblowers” — a report which starts with some background:

On January 25, 2017 the Staff Association of the World Intellectual Property Organization (WIPO), a specialized agency of the United Nations (UN) headquartered in Geneva, demonstrated to protest the recent actions of Francis Gurry, the agency’s Director General. Unhappy with the duly-elected Staff Association Council, Gurry organized his own elections and simply replaced the legitimate Staff Council with his preferred slate of officers.

Besides the obvious problem of management selecting candidates for Staff Association elections, there were apparently numerous irregularities manifest in this process, and the duly-elected Council of the Staff Association is pursuing legal remedies. These take time, however, and in the meantime, Gurry’s preferred slate has taken over the offices and functions of the legitimate officials.

The “problem of management selecting candidates for Staff Association elections,” as the above puts it, is already a reality at the EPO. There is veto power for management when it comes to staff representation and even the disciplinary committees are controlled and composed indirectly by Team Battistelli, assuring that justice will be just a mirage. At the EPO, the Central Staff Committee is going to change pretty soon and “most people are too frightened” to stand for election, an insider recently told us.

When the media loses its voice and staff too loses its voice we are left to deal with autocratic entities. When these are disconnected from national laws, i.e. enjoying immunity, what we have is a “toxic mix” or “dangerous cocktail”. That’s what Gurry and Battistelli both pursued separately and actually got at the end. Who will end this? Can ECHR put an end to that?



Source link: http://techrights.org/2017/05/21/epo-and-wipo-vs-separation-of-powers/

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EPO: Can the Staff Union of the European Patent Office (SUEPO) Still Save It?


As with most headlines that have question marks in them, the answer might be “no” (with caveats)

Summary: Genuine concerns about the slow process at the European Court of Human Rights (ECHR) and the lack of progress at ILO, which coincide with weakening of the unions and threat to jobs of patent examiners (leaving ordinary Europeans more vulnerable to meritless patent lawsuits)

WE are still on holiday (11,000KM from home), but we continue to receive new EPO leaks. Sooner or later we expect a lot of the ugliness to come out and be made public. But is this enough to save the EPO? Well, that depends on what “saving” means. Battistelli’s policies are going to make a lot of staff redundant and also cause great pain to European businesses (especially the smaller ones, i.e. the vast majority).

“The motion to fire Battistelli,” Petra Kramer wrote some days ago, “has been rejected, the motion evaluate the limits of immunity has been adopted.”

If Battistelli lost his immunity, that might serve to bring some justice, but is it not too late? Time is running out.

As SUEPO noted, workers’ bodies speak out about the European Court of Human Rights, but they never had any concrete/real leverage over Battistelli. He just ignores everyone who does not agree with him and if/when he can, he punishes too (firings, demotions, mental torture etc.). EPO has become like a consulate of Turkey in Bavaria, complete with its own sultan. Nominations for the Central Staff Committee closed about 5 days ago and only the brave ‘dared’ apply. No wonder…

“Two staff unions at the European Patent Agency,” said one statement, “filed a complaint against the Netherlands with the European Court of Human Rights (ECtHR) for violation of article 6 ECHR in combination with articles 10, 11 and 13 of the Convention.”

Another said: “The long-running conflict at the European Patent Office (EPO) over abuses of worker and trade union rights is now heading to the European Court of Human Rights (ECHR). SUEPO, the trade union at the EPO has filed a complaint against the Netherlands for failing to protect workers. The courts there ruled that Dutch law has no jurisdiction leaving the workers in a legal limbo. The workers have been supported by the FNV trade union and the matter has been taken up in the Dutch parliament.”

There is also this new PDF in SUEPO’s Web site, published several days ago to say:

Amsterdam 8 May 2017 – Today, two staff unions at the European Patent Agency, VEOB and SUEPO, filed a complaint against the Netherlands with the European Court of Human Rights (ECtHR) for violation of article 6 ECHR in combination with articles 10, 11 and 13 of the Convention.

The European Patent Organisation (EPO), which is located i.a. on Dutch territory, is infringing on the right of the unions to take collective action and to enter into collective negotiations. These are internationally recognized rights that are also guaranteed by article 10 (right to freedom of expression) and article 11 (right of freedom of assembly and association) of the ECHR. For years now, there has been a culture of intimidation by EPO-management that has severely affected the work environment. The EPO is making it impossible for the unions to effectively serve the interests of their members. Though an organization like the EPO ordinarily enjoys immunity from jurisdiction, this does not apply if the unions do not have an effective legal remedy through which to (internally) address the problems. According to standard ECtHR-case law, a national court can them assume jurisdiction.

In its judgment of 15 February 2015, the Appeals Court in The Hague held that the unions in and of themselves did not have an effective legal remedy within the EPO. The Appeals Court assumed jurisdiction and then ruled largely in favour of the unions. The EPO filed a cassation appeal, primarily in light of the dismissal of its immunity claim. The State of the Netherlands joined the cassation procedure as a party on the side of the EPO. In its judgment of 20 January 2017, the Supreme Court ruled that EPO enjoys immunity from jurisdiction after all. The consequence of this verdict for the unions is that they do not have a true legal remedy by which to address the violations of their ECHR-rights.

As state party to the Convention, the Netherlands is obliged to ensure that the ECHR is safeguarded on its territory. As this is impossible in the light of the Supreme Court judgment, the Netherlands is violating article 6 ECHR in combination with articles 10, 11 and 13 of the Convention.

The unions are represented by lawyer Liesbeth Zegveld.

There is some additional press coverage from what is typically a SUEPO-hostile site:

The Staff Union of the European Patent Office (SUEPO) has brought the Netherlands to the European Court of Human Rights amid rising tensions and alleged abuse at the EPO.

In a blog post on 9 May, SUEPO said that it previously sought protection from the Dutch courts in the form of an injunction to prevent the violation of EPO workers’ rights.

But the Supreme Court of the Netherlands upheld the EPO’s immunity, failing to “discharge their duty of care, thereby allowing a breach of fundamental rights on their soil and de facto condoning, if not endorsing, the EPO’s abuses”.

We have some new leaks coming and these ought to demonstrate not only why ECHR should take on the case but also why immunity must be removed and ILO be subjected to greater scrutiny. The deeper we look at this whole situation, the easier it becomes to see that ILO’s Administrative Tribunal is part of the problem. It gives the illusion of access to justice — something that it never delivers. ILO might as well tell the truth to Dutch authorities and ECHR; it has absolutely no control over labour rights at the EPO and at this stage, as a mater of urgency, immunity must be removed and Team Battistelli held accountable for very serious abuses, either as professionals or as civilians.

ECHR cases can take years to deal with (up to 3 years, their Web site states); that’s longer than it will take for Battistelli to totally destroy the EPO, culminating in mass layoffs. We don’t ever know what will be left of SUEPO and VEOB by that stage.



Source link: http://techrights.org/2017/05/20/saving-epo/

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Cloudflare’s Enemy is Software Patents, Not Just One Software Patent or One Patent Troll


Dark clouds over Cloudflare, but it’s not alone in this

Cloudflare dark logo

Summary: With a bounty of $50,000, which is likely less than the cost of legal defense, Cloudflare looks for help with its own case rather than the underlying issues that need tackling worldwide

THE EPO and the USPTO both grant software patents irrespective of the rules that come from the Parliament/EPC and the Supreme Court, respectively. This means that, unless these patents are challenged in the courts system (at very high cost to the defendant), software patents holders can get away with it, extracting ‘protection’ money using bogus patents.

Citing articles such as “Cloudflare trolls patent troll, offers $50k bounty for prior-art invalidation,” iophk quoted the following passage: “Cloudflare has announced that it will award that amount to anyone to support a search for prior art that can be used to invalidate Blackbird’s patents.”

“Invalidating individual patents does not scale,” iophk told us. “The real problem to attack is software patents themselves…”

We have told the EFF the same thing for over a decade now.

We wrote about this Cloudflare case earlier in the week and so did this trolls expert, whom I spoke to on the phone earlier this year. The article focuses on the stance and the views from Cloudflare (notably from Cloudflare’s CEO Matthew Prince). To quote:

Cloudflare, the Internet security company and content delivery network, was founded more than seven years ago but miraculously hadn’t ever been hit with a patent infringement lawsuit from a non-practicing entity (commonly referred to as a “patent troll”) until this March.

Rather than pay a nuisance settlement, Cloudflare is going all-out to fight Blackbird Technologies LLC, a company founded by two former big-firm lawyers that has amassed dozens of patents and filed more than 100 lawsuits. Cloudflare CEO Matthew Prince says Blackbird is a classic “patent troll,” albeit one with a new, and potentially dangerous, twist on its business model.

Cloudflare offers $50,000 to save its own behind and tackle just one single patent. Why not spend this money investing in patent reform which would collectively help all sorts of companies? Right now the giant corporations which advocate software patents are greasing up politicians in a coordinated effort to spread the breath and reach of software patents (more on that later). The problem at hand is much bigger than this one patent and this one lawsuit.



Source link: http://techrights.org/2017/05/19/cloudflare-enemy-is-swpats/

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Patent Laws — and Especially Eligibility of Software Patents — Are Being Hijacked by Large Corporations and Their Front Groups


Almost literally buying the laws and/or buying politicians

Assocham

Summary: Intervention by large multinational corporations and their lawyers, front groups, etc. (like the classic lobbying model) gives room for concern in multiple continents where most software development is done

The patent microcosm, led by IBM again, wants to bring back software patents to the USPTO and as we noted here some days ago, they play a dirty political game, now aided by AIPLA, Microsoft, IBM and a panel stacked with patent parasites. It’s obvious what they want to accomplish and who for. It’s obvious at whose expense. As we predicted, it didn’t take Microsoft too long to push for software patents along with IBM. They want to blackmail smaller, vulnerable software businesses. They want to make money out of nothing.

At the same time in India Assocham (friend of Microsoft) lobbies for software patents in spite of the ban. This was posted some days ago:

Associated Chambers of Commerce & Industry of India (ASSOCHAM India) in a recent letter has urged Prime Minister Modi to amend the 2016 Guidelines on Computer Related Inventions (CRI Guidelines) to allow for software patents to be granted in India. The letter raises concerns that the present CRI Guidelines which do not permit patentability of software adversely affect innovation by start-ups and also hit investments in the ICT sector. It further argues that software patents are granted in countries abroad, and by not permitting software patents, the CRI Guidelines are not aligned to the Digital India initiative. At present, the Indian Patents Act and the CRI Guidelines prohibit patents on software. However, software patents have in fact been granted recently by Indian Patent Offices to companies like Google, Apple and Facebook. This leads one to question whether patents on software are indeed denied in India (as argued by ASSOCHAM) or are patent offices in India inclined to grant software patents in spirit.

The point of the matter is, patent bullies are very eager to overturn the trend and spread software patents all around the world. The same is happening at the EPO. Earlier this week we learned that: “A trade agreement that says anything about the patent-eligibility of “computer-implemented inventions” (= software) would go beyond EU law.”

“These corporations are totally out of control. They inflict great pain and do damage to software developers.”So they try to overcome the law itself. These corporations are totally out of control. They inflict great pain and do damage to software developers.

Exposure to the sad reality of patent trolls and hearing the stories of their tormented casualties can really motivate one to not only pour all energy into reactionary activism but even lose sleep over it. I have, over the years, seen lives almost literally ruined or destroyed by EPO management and sometimes the same is true for victims of patent trolls — people to whom mere concepts have become a paralyzing experience which drains all energy and also any hope. There is a lot of under-appreciated suffering underlying or surrounding this system of protectionism — suffering that no words can easily express. People lose their minds over it and occasionally suffer mental breakdowns. The burden of justification herein is on those who unconsciously ignore the consequences of their actions. Patent maximalism has a profound human toll.



Source link: http://techrights.org/2017/05/18/intervention-patent-law/

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IBM and Its Revolving Doors Lobby Are Plotting to Undermine Supreme Court Rulings to Restore Patentability of Software


Truly malicious company that seeks to thwart democracy

IBM and the Holocaust
Yes, it’s a real book based on a true story

Summary: IBM has become so evil that it is now trying to steal democracy, label programmers “thieves”, and basically attack the rule of law by extra-judicially overturning a Supreme Court decision

THE previous post reinforced the trend of software patents dying in the US, irrespective of what the USPTO does (because the courts have the final word and the highest court said “no” to software patents in Alice).

“It is widely known that when large corporations want to accomplish something in politics they can just bribe (or “hire”) some politicians, e.g. to change the law.”A few days ago we became aware of a new push to pressure politicians into undoing Alice. It is widely known that when large corporations want to accomplish something in politics they can just bribe (or “hire”) some politicians, e.g. to change the law. As usual, IBM, Microsoft etc. (acting via their front groups) are trying to rob us all and undermine patent progress. There were some tweets about it, which triggered a flurry of communications with us about 4 days ago. It quickly started to become clear what was happening around that time.

“Apparently,” wrote a patent reformer (whom we respect), “it is already being heavily lobbied even though there is no bill yet. A successful bill would have to focus on bio, not software…”

This is “not a good sign,” Benjamin Henrion responded. “The big guys have already written the bill.”

Yes, this is how they operate. They did this in other countries too, e.g. in New Zealand. We wrote about that at the time.

“They did this in other countries too, e.g. in New Zealand.”So basically, a bunch of patent parasites and patent trolls want to maximise their damage to the industry and in order to achieve this they are trying hard to change the law. Looking for some earlier context we found this: “Congressional staffers at Stanford PAE conference: patentable subject matter reform will be the first patent bill introduced this Congress…”

Amazing? Yes. Surprising? No. We saw that coming.

Henrion responded, “the great return of a software patent bill written by the patent industry?”

Not if we raise awareness of this and fight back.

“Amazing? Yes. Surprising? No. We saw that coming.”Then came the “Swamp” friends of Watchtroll and his ilk, with tweets like this: “@USinventors proposal on subject matter eligibility is also shaping the Congressional discussion. Depends on TC Heartland & non judiciary” (TC Heartland is due soon).

Someone asked: “Any discussion about proposed legislation (i.e., what might be the definition of patent eligible matter)?”

“If IBM uses radical sites like Watchtroll (which mocks judges) to lobby for software patents while paying former officials to ‘buy’ the law, then IBM certainly turned us into its enemy (we used to be a friend).”Well, it didn’t take long for Watchtroll to advertise this, with IBM taking the lead, as usual. In fact, for IBM to associate with such people says a lot about IBM. If IBM uses radical sites like Watchtroll (which mocks judges) to lobby for software patents while paying former officials to ‘buy’ the law, then IBM certainly turned us into its enemy (we used to be a friend).

Don’t forget the role played by David Kappos, the former Director of the USPTO. David Kappos is now selling influence/access, thus disgracing the USPTO which he came from (he had come from IBM before that).

“David Kappos is now selling influence/access, thus disgracing the USPTO which he came from (he had come from IBM before that).”It’s not too expensive buying policy in the US. Corporations such as IBM, together with an IPO “task force” (that’s what they call it) do this right now. David Kappos — now bankrolled by IBM, Microsoft etc. — tries to make software patents legally enforceable again, using old euphemisms such as “clarity” (to make it seem like they don’t steal democracy and stomp on the Justices).

It didn’t take long for this to be promoted by IBM

As Henrion told the IBM manager, “it would show that Congress members are lackeys of large corporations, but that’s not new.”

“IBM is very, very evil now.”IBM is now aided by a lobbyist (revolving doors in USPTO, also paid by IBM before and after his time at the USPTO). It is purchasing (or at least trying to purchase) new laws so as to override the highest court.

What does that tell us about IBM? Has it ever gotten more benign than it was back in the days of extreme patent aggression, notorious help to the Nazi regime, and so much more? IBM is very, very evil now. IBM links to this puff piece from Patently-O, which said this: “According to at least one hearsay report, members of Congress are working toward a new patent reform bill on subject matter eligibility – likely partially following the models prepared by the IPO and pushed by Dave Kappos (among others). There is some chance that it will be introduced this month.”

Yes, “Dave Kappos”… he refers to him as though it’s a close friend. Dave…

“To IBM, it stops nowhere. They’re bullies. They have become huge parasites again.”IBM continues advocating software patents, saying just a short while ago: “If one can #patent a process implemented in circuits, the same should be true for a process implemented in #software”

No ambiguity here. IBM is an enemy of Free/Open Source software.

Henrion responded with, “then if it is implemented in software, mental acts should also be patentable. Where does it stop?”

To IBM, it stops nowhere. They’re bullies. They have become huge parasites again.

“They once again hijack the word “fix” to mean break. They want to undo the fix.”Watchtroll, who has been working alongside IBM for a while, says: “Read (and sign) the U.S. Inventor petition to Congress to fix the U.S. patent system. http://www.usinventor.org/petition/”

So they already have a site up and Henrion says that “patent madness it means.”

They once again hijack the word “fix” to mean break. They want to undo the fix. We have noted this deceptive pattern for over a year. How misleading a hijack of words.

“Software patent bill [are] being written by IBM coming to Congress,” Henrion keeps warning this weekend. “Every programmer engaging in some form of logic for a living,” he writes, “needs to think about buying patent insurance…”

“It probably won’t take long for Microsoft to publicly join IBM in pushing for this “fix” [sic], which means making Patent Trolls Great Again.”Henrion has already been the victim. He is a programmer like myself.

We are deeply and utterly disgusted to see a sort of alliance between Watchtroll, IBM, and Patently-O too, promoting the attack on software developers. The other day Patently-O once again promoted old myths about patents, which are neither a right nor property. Using their misleading words, they keep calling those whom they rob “thieves”, alleging that people who write their own code are “stealing” (as opposed to trolls who shake them down for ‘protection’ money).

It probably won’t take long for Microsoft to publicly join IBM in pushing for this “fix” [sic], which means making Patent Trolls Great Again. Keep an eye on “MicrosoftIP” in Twitter (in the coming days, maybe even as early as tomorrow).



Source link: http://techrights.org/2017/05/14/ibm-led-task-force-against-alice/

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3 Years After the Alice Case at the Supreme Court the Plague of Software Patents is Easier to Cope With


YOU DON'T PURSUE SOFTWARE PATENTS WHEN THE COURTS KEEP REJECTING THEM

Summary: Litigation figures are down, rejection rates of software patents remain high, and only spin (e.g. cherry-picking) or constant lobbying can save those who used to profit from software patents

THE USPTO had granted a lot of software patents before Alice (it happened almost exactly 3 years ago) and it also continues to grant some. But courts are not tolerating these and this impacts the confidence level of companies that pondered suing with such patents. Later tonight we will focus on anti-Alice motions, but first, in the interests of chronology, let’s look at some recent developments related to software patents.

“Patents on MP3 Format Due to Expire” said a headline today. Actually, that mischaracterises somewhat what has just happened (we wrote about it several times this month). Still, it could be worse! We’ve just seen literally dozens of articles like these [1, 2, 3, 4] (on a Sunday!), claiming very wrongly that MP3 is “dead”… simply because patents expired. Fact-checking not needed anymore? It’s obvious that only the patents are dead (expired); that does not mean the format is dead. If anything, it’s now legally safer to use and it might spread more broadly as a result. We can’t help but wonder if dozens of headlines today (we saw a similar one about a week ago) claiming that MP3 now “dead” are part of a plan (or PR strategy) to move us all to newer, PATENTED formats (evergreening). “Vinyl has outlived the MP3″ says one headline, but who said MP3 is dead? It’s not. To quote the better among these otherwise-terrible articles:

MP3 took off in the late 90s as the digital music format. It then proceeded to slaughter the CD, and launch the file sharing revolution as well. It’s a proud format that has roots stretching all the way back to the early 1980s, when the possibility of sending music over ISDN lines was first considered. Now the patents on it are beginning to expire and its licencing program has been terminated.

[…]

However, now that more of the relevant patents are expiring, you can now expect MP3 support to be baked into more software. It may be more than a little late, with more advanced audio formats beginning to take over, but it’s great to know that Fedora, for one, is starting to include MP3 support with their releases.

Yes, so if anything, MP3 might now spread even further and faster. It’s not dead. What’s dead are the horrible software patent which harmed the adoption of MP3. One has to wonder if at least some of these patents could be invalidated using Alice. We’ll never know now, will we?

Pressing on, watch IAM using the “IoT” hype as an excuse for creating new patent thickets with software patents in them (same tricks are used elsewhere, by patenting software as “AI”, “cloud” etc.) and here are the participants:

Qualcomm is also in second place on quantity – though its 2,880 assets lag far behind the Samsung total. LG, Huawei and Intel round out the top five in a top 20 list that also features some of the world’s other largest patent owners, such as ZTE, Ericsson, Philips, IBM and Microsoft.

So here we have yet another thicket of patents, most of which are likely not eligible under Alice (or Section 101). But good luck asking PTAB to review thousands of patents in one fell swoop!

We are disappointed but not surprised to see the patent microcosm virtually ignoring RecogniCorp LLC v Nintendoa precedential CAFC decision that can invalidate a lot of software patents. Ten days later Watchtroll finally mentioned it by stating:

RecogniCorp, LLC v. Nintendo Co., (Fed. Cir. Apr. 28, 2017) (Before Lourie, Reyna, and Stoll, J.) (Opinion for the court, Reyna, J.) The Federal Circuit affirmed the district court’s decision that RecogniCorp’s patent claims are directed to an abstract idea, and do not contain an inventive concept sufficient to make them patent-eligible under 35 U.S.C. § 101.

Why has so much of the patent microcosm ignored it or brushed it under the rug? Obviously they just hope that this precedential decision will simply go away.

It is looking very grim for software patents, as even vocal proponents of software patents admit. See this new article which states:

Functional language often cannot be avoided in software patent claims. But there is functional claiming and then there is simply claiming functionality. This claim was written well before the 2010 Bilski decision –who knew then that claiming purely functionality was likely to be a problem, as long as the claimed functionality was novel and non-obvious? Well, today we have a reminder that, as much as possible draft your claims to recite not just the “what” of the invention, but the “how.”

No matter how they formulate their patents, even trying to bypass Alice, their software patents remain pretty worthless.

In the past few days alone the loudest proponents of software patents took note of newer cases where software patents dropped like flies.

  • “FDC loses §101 at PTAB bc all electronic financial transaction innovations r just “fundamental economic practices”” (link to decision here)
  • “IBM takes hit-another random “new grounds” 101 rejection at PTAB: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017002605-05-09-2017-1 … bc humans can mentally compute confidence vals” (link to decision here)
  • “typical PTAB nonsense: IBM overcomes Examiner error on prior art, but told § 101 bars eligibility https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2015003358-05-08-2017-1 …” (link to decision here)

Sensing anger and frustration? It’s not “random” (the above), it is very much consistent with the ruling of the Supreme Court. Funny how they refuse to acknowledge this…

“101 is the first filter,” Benjamin Henrion reponded to the above. “No need to go further.”

Watch this new IAM headline: “Alice blow means Asian university’s pioneering US patent enforcement drive may be over just months after it began”

No, Alice is not a “blow” but a blessing. But IAM’s bias (servitude to patent trolls) is showing again. Here is the relevant part:

A Northern California district court has granted a motion to dismiss a patent infringement case brought by an affiliate of Seoul-based Sungkyunkwan University after finding one of the asserted claims invalid. The court’s decision represents a significant setback for Sungkyunkwan’s maiden assertion campaign – one of two launched in the US by Korean universities in recent months.

Sungkyunkwan University, Research & Business Foundation filed suits against Canadian 3D imaging product developer LMI Technologies and German optics company Carl Zeiss in early December last year, alleging infringement of its US patent 7,957,639 (‘Method and system for determining optimal exposure of structured light based 3D camera’). It followed up with further lawsuits using the same patent later in the month, targeting US-based Hexagon Metrology, Quebec City-based Creaform 3D, Luxembourg’s Artec Group, and China’s Hangzhou Shining 3D and its distributor MakerTree 3D.

However, the assertions appear to have been dealt what may well be a mortal blow, just months since Sungkyunkwan set off on its groundbreaking campaign. According to court documents viewed by IAM using Lex Machina, in late March counsel for LMI filed for a motion to dismiss the university’s case on the basis that the first claim of the patent-in-suit – the only claim being asserted – “fails to recite eligible subject matter” and therefore should be considered invalid.

So they put a lot of their eggs in the software patents basket and gambled their future on a pile of rubbish. It happens…

Here is another new ‘gem’ from IAM, regarding patent hoarders which produce nothing but lawsuits:

The recent announcement of a massive new IP investment fund launched by the IP Office of Singapore confirms that there is still significant interest in the business model, and ID Ventures can claim to be one of the first to implement it in this region. With ID’s core patent business sailing into potentially controversial waters, it is a nice auxiliary to have.

Maybe they should focus on creating things, not just writing patents.

The other day we saw this new request for participation in a survey about patents on business methods, almost siblings of sofwtare patents. Asking the patent microcosm (the site’s audience), however, will give them highly warped results. To quote: “The Covered Business Method Review program is a transitional program that sunsets in 2020. These AIA trails have been extremely effective at knocking-out patents that qualify for review. The question of the day is whether Congress should extend and possibly expand the program beyond the 2020 deadline and beyond the non-technological financial services limitations.”

Whatever comes out of this survey will be somewhat of a joke because almost every person who takes part in the survey is a dyed-in-the-wool patent maximalist. What is the purpose of this survey? The usual lobbying? Disguised as an ‘academic’ ‘study’ from Professor Crouch and his ilk?

Either way, the good news is that no matter the spin, the numbers (from the USPTO and the courts) tend to speak for themselves. Lex Machina, which is run by pro-reform academics, keeps track of such numbers. These numbers show that the patent maximalists are losing their grip on the system. As MIP put it the other day, “ANDA patent litigation fell 32.5% in 2016″. To quote what’s not behind a paywall:

A report from Lex Machina reveals Hatch-Waxman/ANDA case filing dropped last year. It also revealed the busiest pharmaceutical companies and law firms for ANDA litigation

No joke would be complete, however, without something from IAM, a site where up is down, down is up, extortion is “agreement”, and Alice is a “blow” (see above). Watch how IAM, the think tank of patent trolls, tries to spin the above decline (in lawsuits collateral) as an increase. This is the hilarious part:

Damages in patent infringement lawsuits fell in 2016 compared with the year before according to the 2017 edition of PwC’s annual Patent Litigation Study. This may indicate that if conditions are improving for patent owners in the US, court awards are yet to reflect this.

But they are demonstrably not improving. Why is IAM in such deep denial about this? Someone, please, call the nut house warden…



Source link: http://techrights.org/2017/05/14/swpats-rejection-in-the-us/

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Our Assessment: Unitary Patent (UPC) Will Crumble Along With Battistelli’s Regime at the EPO


Better days will come, but it might be too late to save the jobs of examiners (and hence the EPO as we knew it, with some of the brightest minds of Europe)

Nice sunset
Keep hope…

Summary: A reflection and an opinion on where the EPO stands and what it means for the UPC, which doesn’t seem to be going anywhere (it’s all talk and lobbying)

READERS often ask what can be done to repair and redeem the EPO amid endless scandals and abuses committed by the management. Readers are almost always more pessimistic than us; we’re not overly optimistic but we are certainly seeing progress in the right direction (e.g. most member states voting in favour of ousting Battistelli, Kongstad being allegedly pushes out by the Danish government and more). It’s a long, tiring process that requires patience; I wrote many thousands of articles about Novell, for example, and eventually, after 4 years of activism, the company virtually died. Some prominent developers attributed the company’s demise to Techrights. I have already experienced this kind of process, which typically requires a lot of patience and eventually triggers departures (resignations, early retirements etc.) at the very top. It’s already happening at the EPO (Ciaran McGinley, Minnoye, Kongstad and so on) and Team Battistelli signals a run for the money, which is another symptom of collapse (people trying to secure their post-career savings, pensions and so on).

“It’s a long, tiring process that requires patience; I wrote many thousands of articles about Novell, for example, and eventually, after 4 years of activism, the company virtually died.”A translation of a Telegraaf report about the EPO was published today or yesterday by SUEPO. It’s the Dutch newspaper that accused Battistelli of “terror” half a year ago and here is a translation of this latest article, citing again those memorable accusations of “terror”:

Complaint against the State concerning problems at Patent Office

RIJSWIJK – The European Patent Office (EPO) in Rijswijk is the subject of discussion once again due to problems on the workfloor. Two trade unions at the international organisation, where a striking number of employees committed suicide in 2014, have submitted a complaint against the Netherlands. The reason: violation of the right to access to the courts.

At the EPO, which employs a few thousand people, there has been talk of a culture of intimidation by the management for years, resulting in serious damage to the working atmosphere within the organisation. “The management is also making it impossible for the trade unions to effectively represent the interests of their members,” says lawyer Liesbeth Zegveld. “Although an organisation like the Patent Office enjoys immunity from jurisdiction under normal circumstances, this does not apply if the trade unions have no effective legal remedy to raise the problems. In accordance with established case law at the European Court, a national court can adopt jurisdiction in this case.”

SEE ALSO: Concerns about ’terror’ at Patent Office

On Tuesday, Zegveld submitted a complaint to the European Court of Human Rights. “As a signatory state, the Netherlands is obliged to ensure that the European Treaty is guaranteed on its territory. Instead of this, violations of human rights are being covered up.”

The issue at the Patent Office is in fact being debated in the Dutch House of Representatives today.

The organisation has now been led with a firm hand for years by the French despot Benoît Battistelli. State Secretary Van Dam (Economic Affairs) stated at the end of last year that he would be keeping a finger on the pulse at the Patent Office.

We predict or project that Battistelli will only end his term if the delegates are ‘generous’ enough to believe it’s somehow acceptable to let him carry on because he’s already near the end of his second term. Having said that, he will never see the UPC come to fruition, meaning that 8 years at the helm will have ended up as a miserable failure.

“We predict or project that Battistelli will only end his term if the delegates are ‘generous’ enough to believe it’s somehow acceptable to let him carry on because he’s already near the end of his second term.”Based on comments received earlier today, EPO insiders have been exposed to more Kool-Aid than most. Who knows, maybe Battistelli ‘pulls a Flint’ and lets that Kool-Aid slip into the water supply of the Isar or even the Isar building. Either way, we are gratified to see more people (even former Kats) openly recognising that one side of the argument over UPC has been muzzled, left out, suppressed etc. Quite a few of these former Kats are not optimistic about the UPC compared to the Kats who virtually took over that blog. Some of them are too shy to speak about it publicly, but there is broad realisation that the UPC is sort of stuck. Found today [via Benjamin Henrion] was this podcast about “Insight Into Litigation Before the UPC”, a new UPC puff piece promoted by a law firm, and various responses to it (from Francisco Moreno too), e.g. explaining that we “could revert all those 10 reasons to support the UPC” (rewriting the lobbying-type headline from Withers & Rogers — a firm whose actions would harm British businesses).

“For UK businesses,” it claims, “there is a clear advantage to being able to litigate in one’s mother tongue. This will be possible at all UPC hearings…”

“The truth of the matter is, the UPC is built very loosely on a pile of lies.”First of all, the UK isn’t in the UPC (Brexit makes that pretty much impossible) but perhaps more importantly, not many British companies would pursue litigation abroad (where they don’t operate) and they would be very much exposed to more litigation from other countries (if not other continents). Funny how they don’t mention that…

The truth of the matter is, the UPC is built very loosely on a pile of lies. Some of the lies are truly incredible and are complete reversals of the truth! Here is Francisco Moreno highlighting the next UPC think tank, which claims “[d]iversity of views and opinion” (an utter lie. Battistelli and Team UPC clearly misportray their lobbying event).

As Henrion pointed out, “they never invite the critics. Yet another echo chamber with the usual suspects.”

“If anyone knows who is likely to replace Kongstad, please do get in touch with us as close scrutiny of the candidates would help guide the choice made by delegates (most of whom already want Battistelli kicked out).”See the screenshot. Yes, that’s Battistelli right there and the “Unitary Patent and Unified Patent Court conference” in Munich will cost ‘only’ €600 for one single day! Talk about barrier to outside participation. With Battistelli in there, we are reminded of the fact that he is the person to blame for chaos inside and outside the EPO. He wanted to become the ‘face’ of UPC and instead he will be immortalised as a horrible dictator who crashed the EPO.

Will Battistelli manage to rewrite the rules to make himself eligible for another term (he was ineligibly even for the current term, due to his age and political activity)? Will he use the failure of the UPC as an excuse for buying more time? One sure thing is, the EPO’s management is crumbling right now. Minnoye is leaving soon (we’ll have a departure ‘gift’ for him), Battistelli’s popularity is at an all-time low (probably in the history of the EPO as a whole), and the Council is prospectively headless. If anyone knows who is likely to replace Kongstad, please do get in touch with us as close scrutiny of the candidates would help guide the choice made by delegates (most of whom already want Battistelli kicked out).



Source link: http://techrights.org/2017/05/12/where-the-epo-and-upc-stand/

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‘European Media Intervention Award’ (EIA), EPO Censorship, Self-Censorship, and Paid ‘Media Partners’


Yesterday: Death of ‘IP’ Media: Front Groups of Microsoft Described as “Representing SME Developers” by Bristows

Concentration of media ownership
Reference: Concentration of media ownership (also a problem in Germany, where the largest media keeps deliberately silent about the EPO scandals)

Summary: How the multi-million Eurovision-esque lobbying event of Battistelli corrupts European media and when it does not legitimise frauds it contributes to an atmosphere of distrust in media

YESTERDAY, the EPO still tweeted plenty of links about ‘European Inventor Award’, as part of the latest expensive PR charade. This isn’t something that ordinary patent offices do; they don’t elevate one patent above another (violation of ‘patent neutrality’), they don’t waste millions of Euros of budget per year on silly, Eurovision-like ceremonies.

“This isn’t something that ordinary patent offices do; they don’t elevate one patent above another (violation of ‘patent neutrality’), they don’t waste millions of Euros of budget per year on silly, Eurovision-like ceremonies.”One thing we noticed yesterday is that Les Échos, Battistelli’s “media partner” in France, did this puff piece (and the EPO then linked to that). We already caught it censoring articles about the EPO and producing all sorts of puff pieces over the years (Battistelli later cites and quotes these puff pieces in letters that he sends). Well, such is the nature of today’s EPO. The media has been corrupted; a lot of the media that Battistelli and/or the EPO are greasing up is covering the UPC, for example, with misleading puff pieces. It has become almost as bad as IP Kat under Bristows, which exploits what’s left of this blog for marketing purposes.

Shouldn’t there be disclosures from Les Échos?

“The EPO now seeds over a million Euros in an endeavour to ‘plant’ favourable coverage.”Thankfully, we never accepted any corporate money (ever). We never will. Money corrupts coverage, even subconsciously. The other day we wrote about Brunel University London peddling snake oil that won’t work for patents and days ago we saw another puff piece about it*. This puff piece/PR is the type of corporate journalism we often condemn for being little more than marketing. It’s paid for, directly or indirectly. The EPO now seeds over a million Euros in an endeavour to ‘plant’ favourable coverage. To think otherwise is to pretend that the media has no owners and is never sponsored.
______
* In fact, the people behind it tried to contact me regarding my article (persuasion attempts), but I ignored them. I stand by my original assertions. At times, albeit not often, even EPO management sends me messages asking me to censor my articles, but these messages too I disregard as they ask for censorship and lack of accountability for what they do for Battistelli at the upper echelons (or higher floors) of EPO. The EPO is an enemy of the free press.



Source link: http://techrights.org/2017/05/09/eia17-and-media/

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The European Convention on Human Rights (ECHR) Against the European Patent Office (EPO), Lower House to Debate the Issue Today


The House of Representatives in the Netherlands, along with top European courts, to imminently tackle the chronic abuse?

House of Representatives (Netherlands)

Summary: Things are getting hot and heavy at Eponia, as the truly urgent matters escalate upwards and threaten to shake up the entire European Patent Organisation, whose head has just announced that he is stepping down [1, 2]

SOMETHING rather big is happening at the EPO. It’s truly a turning point. A few days ago we saw Battistelli’s ‘boss’ walking away and hours ago someone told us that big legal action is coming, apparently involving the Dutch government (not long after all Members of the European Parliament got notified). Maybe not a bad time for people who protected Battistelli to walk away (to avoid deposition and so on)? For background, here is what happened some months ago:

  1. Battistelli is an Autocrat Above the Law and It’s OK, Holland’s High Council Says
  2. EPO Abuses Now Make the Netherlands Look Like a Facilitator of Human/Labour Rights Abuses
  3. Media Blasts EPO Over Immunity Amid Suicides, Battistelli’s Behaviour Compared to Dominique Strauss-Kahn’s
  4. Leaked: Team Battistelli, Exploiting a Controversial Decision From the Netherlands, is Trying to Squash SUEPO
  5. The EPO’s Freedom to Disregard the Law and Abuse Employees is “Being Taken up by the Council of Europe”
  6. The Netherlands With Its Bizarre Decision to Let the EPO Violate Dutch Law, Now in English
  7. “Team Battistelli Continues With Intimidation Tactics”
  8. The European Patent Office Officially Dishonours Justice, So It’s Time for SUEPO to Become Clandestine
  9. Culture of Terror at The European Patent Office Escalates Thanks to Dutch Government’s Complicity

The latest development is very major and was covered by Dutch media earlier on. It certainly seems like timing is critical here, as based on a purely automated translation (unedited):

The Lower House talks about the situation at the patent office on Tuesday.

Petra Kramer,a Dutch speaker who is supportive of the cause, kindly produced the following translation of the entire article:

RIJSWIJK (ANP) Are employees of the European Patent Office allowed to resist the repression of their right by taking the case to the Dutch court? (Please note that previous verdicts said their rights were not imposed upon because they could always go to court in Geneva. PK.) The High Council recently ruled that they don’t because EPO is granted immunity. But two unions do not agree and are now taking the case to the European Court of Human Rights in Strasbourg.

The complaint is directed against the Dutch state because it has actively strengthened to maintain the immunity of the EPO, Liesbeth Zegveld, the lawyer of the unions, says. According to her, the government has a diplomatic interest because they want international organizations to settle in the Netherlands.

EPO staff suffers under the leadership of topman Benoît Battistelli, who is accused of terrorizing the office. The government is concerned about it and urged previously to improve the conditions at the organization in Rijswijk, where about 2700 people work.

Lower House

International organizations are granted immunity, but there must be an internal court to solve disputes according to Zegsveld, and that is not the case. (This again contradicts the High Council that basically said go to the court in Geneva. PK.) As a result, the trade unions and employees can not use their right to strike, their right to negotiate or their freedom of expression.

According to the Supreme Court, the Netherlands, according to Zegveld, now violates the right of access to justice, as enshrined in the European Convention on Human Rights (ECHR).

The Lower House will debate the situation at the patent office on Tuesday.

Wow. We didn’t know they would really take it this far. Zegveld did mention this as a possibility, but it wasn’t clear whether she and her clients would actually pursue this (SUEPO receives outside help here). But they do! This could soon become a very serious issue and a topic in the mainstream media, not just in the Netherlands. It’s truly a shame that sites like IP Kat cover none of these developments.



Source link: http://techrights.org/2017/05/08/echr-vs-epo/