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09.21.17

In an Effort to Push the Unitary Patent (UPC), EPO and the Liar in Chief Spread the Famous Lie About SMEs

Posted in Deception, Europe, Patents at 6:23 pm by Dr. Roy Schestowitz

Rule of thumb: everything that the EPO says nowadays is a deliberate lie.

Ear

Summary: The EPO wants people to hear just a bunch of lies rather than the simple truth, courtesy of the people whom the EPO proclaims it represents

THE EPO offers nepotism and fast lanes to large corporations. It panics when the public finds out about it and constantly lies about the matter, stating that it protects SMEs, small inventors and so on. The European Digital SME Alliance has already refuted some of these lies, but that wasn’t enough to make the lies stop.

As a matter of priority, even though it’s past midnight right now, we’ve decided to compose a quick rebuttal/response to today’s EPO lies (disguised as ‘study’, as usual). What a nerve these people have. They are lying so much to the European public, with Battistelli taking the lead, as usual.

“hat a nerve these people have. They are lying so much to the European public, with Battistelli taking the lead, as usual.”The latest lie was promoted in Twitter in the late afternoon. I responded by stating that the “first EPO announcement in more than a month spreads a lie, the famous “SME”-themed lie [in which the EPO] makes up more “SME”-themed lies in order to sell the [other] lie that UPC is good for SMEs. See last paragraph.”

Yes, I used the word “lie” quite a lot. It’s as simple as this. They lied deliberately.

The official ‘news’ item (epo.org link), which quotes the ‘king’, as usual (self glorification), ends like this:

They also highlight the benefits that SMEs can expect from the planned Unitary Patent. These include savings in time and money, as well as increased legal certainty across the EU market.

That’s a lie. Even insiders know that it’s a lie and yet later in the day (earlier tonight) the Liar in Chief, Battistelli, promoted (epo.org link) the same Big Lie that SMEs want the UPC (it would kill them). From his closing paragraph:

As we look to the future of SMEs and patents, the case studies underline the significant role that the Unitary Patent and Unified Patent Court are set to play in IP strategies. Many of the SMEs featured talk about how the cost-effectiveness of the Unitary Patent and the jurisdiction of the Court will help them expand into other European markets, previously unconsidered by those same companies. Potential savings of up to 70%, a simplified application process with the EPO acting as a one-stop-shop and greater legal certainty will all prove attractive features of the UP and UPC. So, whether they use the Unitary Patent or the classical European patent, or a combination of both, the future holds a wealth of opportunities for SMEs to make the most of patents. It is our hope that these case studies will help increase understanding of how IP can play a fundamental role in the success of SMEs.

That’s a lie again. It’s a lie that the EPO promoted in another tweet that said: “This publication gives you full access to twelve case studies on the benefits of IP for #SMEs http://bit.ly/SMEstudies2017 #IPforSMEs”

They even came up with a hastag for it: #IPforSMEs

It links to this page (epo.org link), which gives the veneer of a ‘study’ to something that’s a lie to the very core.

“So don’t expect the UPC any time soon (or ever). As for SMEs, they are unambiguously against it (see the above position paper from the European Digital SME Alliance).”First of all, the UPC isn’t happening. The UPC Preparatory Committee has in fact just officially admitted that their plan is derailed (no schedule) due to the situation in Germany. Team UPC wrote about it some hours ago. The best spin they could come up with was this: “The Preparatory Committee of the Unified Patent Court (UPC) has today published a short update, in which it notes that the pending case in the German Federal Constitutional Court will cause delay to Germany’s ratification of the UPC Agreement (UPCA) and the Protocol on Provisional Application (PPA) and concludes that it is currently difficult to predict any timeline for the start of the new system.”

So don’t expect the UPC any time soon (or ever). As for SMEs, they are unambiguously against it (see the above position paper from the European Digital SME Alliance). Even observers in the field know damn well that the UPC would be an SME killer. There were several comments to that effect in IP Kat on Thursday (today). Well, after the site stopped covering the scandals we rely on comments there; the authors/Kats (who now include CIPA) certainly won’t say anything negative about the UPC.

“What will happen if the UPC and the TBA come to totally different views with respect of the validity of a UP?” (Unitary Patent)

That’s what the first comment (relating to the earlier ones) said:

Thanks to Proof of the pudding for his interesting contribution on the law applicable for infringement.

I have a further question with respect to validity, which is also to be decided by the UPC.

What will happen if the UPC and the TBA come to totally different views with respect of the validity of a UP? In other words, in case of conflict between decisions of the UPC and the TBA.

At the latest conference on the UPC in Munich, Sir Jacob made it clear that for him the UPC will be the leading court in Europe. In other words, the UPC decisions should prevail. By doing so he forgets that there are also other non-EU member states at the EPO. And they also deserve some respect.

One example: it is abundantly clear that the boards of appeal of the EPO have taken a strict stance in respect of added subject-matter. What if the UPC waters down the requirements? This thought is not abstruse when one looks at certain national decisions in this respect.

The UP being a patent to be granted by the EPO, the examining and opposition divisions are bound to follow the case law of the boards of appeal, and especially that of the enlarged board. The strict stance will be maintained be it only for this reason.

If the UPC is more lenient in the matter, which is to be expected, the only way to have a patent scrutinised strictly on this point is to file an opposition at the EPO. Otherwise it might become difficult to have a strict view on the matter. That proprietors prefer a more lenient way is obvious, but the opponents will want exactly the opposite.

At the recent INGRES Conference reported in another blog on IPKat, Mr Hoying made an interesting comment. According to his view, “Art. 54(3) EPC [is] a big problem which leads to multiple patents for the same invention (and – via divisionals – unacceptable uncertainty of third parties). Why can EPO and Dutch courts not read “the content of European patent application” broader? The skilled person should always read (when reading for Art. 54(3) EPC purposes) with the common general knowledge and consider each combination with the common general knowledge as disclosed”.

This is to me a clear attempt to water down the requirement for novelty which is goes like an Ariadne thread through all decisions of the enlarged board, novelty, added subject-matter, priority, divisional applications and disclaimers.

If the UPC follows this line, then we can say good bye to certainty in this matter. Is this really want is good for the users of the system? For US companies yes, as they have never understood the problem, for European companies, and especially EU and SMEs among them, certainly not.

In any case, the uncertainty will remain. And to me, this is not good for business, unless it has deep pockets.

By the way, at the latest conference on the UPC in Munich, Sir Jacob made it also very clear what he thought of opposition divisions and the boards of appeal: an opposition is playing waiting for Godot! This is not very kind, to say the least.

To me, the problems with the UPC are not only when it comes to infringement as exemplified by Proof of the pudding, but also when it comes to validity.

Then, in reply to it, someone recalled Battistelli’s attack on TBA and said: “I would say that the EPO Boards of Appeal are history at least as a judicial or quasi-judicial instance.”

To quote the whole comment:

I would say that the EPO Boards of Appeal are history at least as a judicial or quasi-judicial instance. They may potter on for a while in Haar but their glory days are over.

The independence has been so far eroded despite or perhaps as a result of the fig-lesf reform in 2016 so that they can no longer be seriously considered as an independent judicial instance. The “President” of the Boards of Appeal cannot even appoint his deputy without the approval of the President of the EPO (nota bene: the EPO President and not the Admin Council has the final say here). The President of the EPO also has the final say over the promotion of Board members.

The plan of the EU manadarins seems to be to replace the EPO Boards of Appeal by the UPC. That much is clear from Jacob’s comments.

The next one said this:

The Boards of Appeal are likely not to survive the upcoming decisions of the German constitutional court, be it only because the Enlarged Board itself in a recent and disastrous disciplinary case stated it was under the influence of the President of the office.

This entirely changes the situation which prevailed for decades, when earlier decisions rightly concluded that the members of the Boards were judges in all but name.

As the next and final comment put it, “revocation actions at the UPC are likely to be an order of magnitude more expensive.”

It explained how the UPC would crush SMEs — something we have said repeatedly for years.

Here is the full comment:

Hmmmn. If that is true, then we could be looking at a very dark future indeed.

Oppositions at the EPO could hardly be described as a “low-cost” exercise. However, on any realistic assessment, revocation actions at the UPC are likely to be an order of magnitude more expensive.

It is therefore all too easy to envisage disastrous consequences for SMEs (and the public) across Europe if the UPC becomes the only forum for revoking European patents. That is, if the cost of knocking out a “bad” patent that has been asserted against you becomes prohibitively expensive, and the market for litigation insurance has (predictably) failed to materialise, how do you stop the “trolls”?

There is another factor could make this a “perfect storm” that could devastate important areas of industry across Europe, especially those that are largely populated by SMEs. That is, we need to consider that the management of the EPO has, in recent years, engaged upon a drive to grant as many patents as possible. It is clear to anyone who has been paying attention that this drive has involved a “light touch” approach to examination… thus greatly increasing the likelihood that patents will have been granted with overly-broad claims, or perhaps even no valid claims at all.

So, we could end upon with more “bad” patents and the prospect of hugely increased costs for knocking out such patents. Who would that benefit, I wonder?

Whilst I am very reluctant to believe in conspiracies, even I have to admit that the actions of the current EPO management (grant rate forced ever upwards, Boards of Appeal hobbled, chances of the opposition procedure surviving the constitutional complaints in Germany correspondingly decreased…) all seem to be tailor-made to benefit only a certain section of the patent ecosystem. We shall just have to wait and see whether this is the result of accident or design.

The last paragraph (above) is key. It spares us the need to once again explain why UPC would be an SME killer, contrary to what the EPO claimed 5 times today (new page, news item, blog post and 2 tweets).

It will actually be news when the EPO stops spreading lies.

Links 21/9/2017: Red Hat’s Open Source Patent Promise; Qt 5.6.3, Kali Linux 2017.2 Release

Posted in News Roundup at 5:21 pm by Dr. Roy Schestowitz

GNOME bluefish

Contents

GNU/Linux

  • Server

    • The ISS just got its own Linux supercomputer

      A year-long project to determine how high-performance computers can perform in space has just cleared a major hurdle — successfully booting up on the International Space Station (ISS).

      This experiment conducted by Hewlett Packard Enterprise (HPE) and NASA aims to run a commercial off-the-shelf high-performance computer in the harsh conditions of space for one year — roughly the amount of time it will take to travel to Mars.

    • Kubernetes Snaps: The Quick Version

      When we built the Canonical Distribution of Kubernetes (CDK), one of our goals was to provide snap packages for the various Kubernetes clients and services: kubectl, kube-apiserver, kubelet, etc.

      While we mainly built the snaps for use in CDK, they are freely available to use for other purposes as well. Let’s have a quick look at how to install and configure the Kubernetes snaps directly.

    • Kubernetes is Transforming Operations in the Enterprise

      At many organizations, managing containerized applications at scale is the order of the day (or soon will be). And few open source projects are having the impact in this arena that Kubernetes is.

      Above all, Kubernetes is ushering in “operations transformation” and helping organizations make the transition to cloud-native computing, says Craig McLuckie co-founder and CEO of Heptio and a co-founder of Kubernetes at Google, in a recent free webinar, ‘Getting to Know Kubernetes.’ Kubernetes was created at Google, which donated the open source project to the Cloud Native Computing Foundation.

    • Kubernetes gains momentum as big-name vendors flock to Cloud Native Computing Foundation

      Like a train gaining speed as it leaves the station, the Cloud Native Computing Foundation is quickly gathering momentum, attracting some of the biggest names in tech. In the last month and a half alone AWS, Oracle, Microsoft, VMware and Pivotal have all joined.

      It’s not every day you see this group of companies agree on anything, but as Kubernetes has developed into an essential industry tool, each of these companies sees it as a necessity to join the CNCF and support its mission. This is partly driven by customer demand and partly by the desire to simply have a say in how Kubernetes and other related cloud-native technologies are developed.

    • The Cloud-Native Architecture: One Stack, Many Options

      As the chief technology officer of a company specialized in cloud native storage, I have a first hand view of the massive transformation happening right now in enterprise IT. In short, two things are happening in parallel right now that make it radically simpler to build, deploy and run sophisticated applications.

      The first is the move to the cloud. This topic has been discussed so much that I won’t try to add anything new. We all know it’s happening, and we all know that its impact is huge.

    • Sysadmin 101: Leveling Up

      I hope this description of levels in systems administration has been helpful as you plan your own career. When it comes to gaining experience, nothing quite beats making your own mistakes and having to recover from them yourself. At the same time, it sure is a lot easier to invite battle-hardened senior sysadmins to beers and learn from their war stories. I hope this series in Sysadmin 101 fundamentals has been helpful for those of you new to the sysadmin trenches, and also I hope it helps save you from having to learn from your own mistakes as you move forward in your career.

  • Desktop

    • TUXEDO InfinityBook Pro 13 Review: a Powerful Ultrabook Running TUXEDO Xubuntu

      There is no doubt that the TUXEDO InfinityBook Pro 13 is not a powerful ultrabook, providing good value for the money. And having it shipped with a Linux OS pre-installed makes your Linux journey a breeze if you’re just getting started with exploring the wonderful world of Open Source software and GNU/Linux technologies.

      There are a few issues that caught our attention during our testing, and you should be aware of them before buying this laptop. For example, the LCD screen leaks light, which is most visible on a dark background and when watching movies. Also, the display is only be tilted back to about 120 degrees, which might be inconvenient for the owner.

      The laptop doesn’t heat up that much, and we find the backlit keyboard with the Tux logo on the Super key a plus when buying a TUXEDO InfinityBook Pro 13. Of course, if you don’t need all this power, you can always buy any other laptop out there and install your favorite Linux OS on it, but it’s not guaranteed that everything will work out of the box like on TUXEDO InfinityBook Pro 13.

    • Chromebook Owners Will Soon Be Able to Monitor CPU and RAM Usage in Real-Time

      Chromium evangelist François Beaufort announced today that Google’s Chrome OS engineers have managed to implement a new feature that will let Chromebook owners monitor the CPU usage, RAM, and zRam statistics in real-time.

      The feature was implemented in the Chrome Canary experimental channel and can be easily enabled by opening the Google Chrome web browser and accessing the chrome://flags/#sys-internals flag. There you’ll be able to monitor your Chromebook’s hardware and see what’s eating your memory or CPU during heavy workloads, all in real-time.

      “Chrome OS users can monitor in real-time their CPU usage, memory and zRam statistics thanks to the new internal page chrome://sys-internals in the latest Canary,” said François Beaufort in a Google+ post. “For that, enable the experimental chrome://flags/#sys-internals flag, restart Chrome, and enjoy watching real-time resource consumption.”

    • Free Software Install Fests on October 2

      The Kerala Infrastructure and Technology for Education (KITE) will conduct ‘Free Software Install Fests’ on October 2 as part of Software Freedom Day celebrations.

      The latest version of IT@School GNU/Linux will be installed free of cost in computers at the festival.

  • Intel

    • Intel Preps Their First Batch Of Graphics Changes For Linux 4.15

      The first batch of drm-intel-next changes are ready to be queued in DRM-Next as feature work for eventually merging to mainline come the Linux 4.15 merge window.

    • Announcing Intel® Clear Containers 3.0!

      The Clear Containers team has been working on the next generation of Clear Containers and today that work culminates in the release of Clear Containers 3.0!

      Today’s release presents a generational and architectural shift to utilize virtcontainers, a modular and hypervisor agnostic library for hardware virtualized containers. Clear Containers 3.0 is written in Go language and boasts an OCI* compatible runtime implementation (cc-runtime ) that works both on top of virtcontainers, and as a platform for deployment.

    • Intel Unleashes Clear Containers 3.0, Written In Go

      Clear Containers 3.0 as Intel’s latest Linux container tech is now written in the Go programming language rather than C. They are also now making use of virtcontainers as a modular and hypervisor agnostic library for hardware-virtualized containers. Clear Containers 3.0 also adds support for a virtio-blk storage back-end and other improvements for security and performance.

  • Kernel Space

    • Graphics Stack

      • Valve Is Collaborating On GPUVis For Tuning Radeon Linux VR Performance

        One of the many interesting talks at yesterday’s XDC2017 conference was Valve’s Pierre-Loup Griffais talking about GPUVis.

      • GPUVis, an open source Linux GPU profiler similar to GPUView

        It seems Valve have been busy. GPUVis is a Linux GPU profiler similar to GPUView on Windows. It’s supposed to help track down Linux gpu and application performance issues.

      • NVIDIA 384.90 Linux Driver Brings Fixes, Quadro P5200 Support

        One day after releasing updated GeForce Linux legacy drivers, NVIDIA is now out with an update to their long-lived 384 branch.

        The NVIDIA 384 Linux series is the current latest series for their proprietary driver. Coming out today is the 384.90 update that is primarily comprised of bug fixes but also includes Quadro P5200 support.

      • NVIDIA Continues Prepping The Linux Desktop Stack For HDR Display Support

        Besides working on the new Unix device memory allocator project, they have also been engaged with upstream open-source Linux developers over preparing the Linux desktop for HDR display support.

        Alex Goins of the NVIDIA Linux team presented on their HDR ambitions for the Linux desktop and the work they are still doing for prepping the X.Org stack for dealing with these next-generation computer displays. This is a project they have also been looking at for more than one year: NVIDIA Is Working Towards HDR Display Support For Linux, But The Desktop Isn’t Ready.

      • The State Of The VC4 Driver Stack, Early Work On VC5

        ric Anholt of Broadcom just finished presenting at XDC2017 Mountain View on the state of the VC4 driver stack most notably used by the Raspberry Pi devices. Additionally, he also shared about his early work on the VC5 driver for next-generation Broadcom graphics.

      • Intel’s Linux Driver & Mesa Have Hit Amazing Milestones This Year

        Kaveh Nasri, the manager of Intel’s Mesa driver team within the Open-Source Technology Center since 2011, spoke this morning at XDC2017 about the accomplishments of his team and more broadly the Mesa community. Particularly over the past year there has been amazing milestones accomplished for this open-source driver stack.

  • Applications

  • Desktop Environments/WMs

    • K Desktop Environment/KDE SC/Qt

      • Qt 5.6.3 Released

        I am pleased to inform that Qt 5.6.3 has been released today. As always with a patch release Qt 5.6.3 does not bring any new features, just error corrections. For details of the bug fixes in Qt 5.6.3, please check the change logs for each module.

    • GNOME Desktop/GTK

      • PlayStation 4 controller support for Fedora Linux

        GNOME developer Bastien Nocera has implemented enhancements to the Bluetooth stack of the Fedora Linux operating system, reported Softpedia.

        The improvements are set to enhance the use of PlayStation 3 DualShock controllers in the GNOME desktop environment.

        The controller is now easier to connect to a PC, but still requires an initial connection via USB.

      • Nifty GNOME Global Menu Extension Is ‘Discontinued For the Moment’

        The developer behind the popular Global App Menu GNOME extension has announced it is “discontinued for the moment”.

        Explaining the reasons for his decision on Github, Lester Carballo cites the shift to Wayland (the extension doesn’t work in Wayland for a whole spaghetti heap of technical and ideological reasons) as being the primate motivator to move on.

        Canonical also has no plans to support the unity-gtk-module under Wayland (a crucial component that this extension, and similar app menu implementations, rely on).

  • Distributions

    • New Releases

      • Kali Linux 2017.2 Release

        We are happy to announce the release of Kali Linux 2017.2, available now for your downloading pleasure. This release is a roll-up of all updates and fixes since our 2017.1 release in April. In tangible terms, if you were to install Kali from your 2017.1 ISO, after logging in to the desktop and running ‘apt update && apt full-upgrade’, you would be faced with something similiar to this daunting message:

      • Kali Linux 2017.2 Released With New Hacking Tools — Download ISO And Torrent Files Here
      • Kali Linux 2017.2 Security OS Released With New Hacking Tools – Download Now!!!
      • Kali Linux 2017.2 Ethical Hacking & Pentesting OS Introduces New Security Tools

        Offensive Security announced the release and general availability of the Kali Linux 2017.2 installation images for their advanced penetration testing and ethical hacking GNU/Linux distribution.

        Kali Linux is the successor of the well-known Debian/Ubuntu-based BackTrack ethical hacking and penetration testing distro, and it follows a rolling release model where the user installs once and receives updates forever, or at least until he decides to reinstall.

        If that’s the case, the Kali Linux 2017.2 installation mediums are now available for download, and they include a bunch of general performance improvements and bugfixes, along with new security tools. The new images include all the updates pushed through the official channels since April’s release of Kali Linux 2017.1.

    • Red Hat Family

      • Red Hat expands its pioneering patent promise to the open source community

        Open source software business Red Hat this morning announced a big expansion of its patent promise, its commitment to not assert its patents against free and open source software which it launched in 2002. The expansion of the promise means that it now extends to all of Red Hat’s patents and so offers further defensive cover to the open source community.

        Red Hat claims that the new promise is significantly broader than the original agreement with the new version covering more than 99% of open source software compared with 35% for the original. The new promise also specifically covers permissive licences which, in recent years, have over taken copyleft licences as the most popular type of open source agreement.

      • Red Hat’s Patent Promise covers permissively-licensed code, offering broad protection for open innovation

        Red Hat announced on Thursday a significant revision of its Patent Promise, helping to protect open innovation. That promise, originating in 2002, was based on Red Hat’s intention not to enforce its patents against free and open source software.

        The expanded Patent Promise, while consistent with Red Hat’s prior positions, breaks new ground in expanding the amount of software covered and otherwise clarifying the scope of the promise. Red Hat believes its updated Patent Promise represents the broadest commitment to protecting the open source software community to date.

      • Red Hat Announces Broad Expansion to Open Source Patent Promise [Ed: Red Hat should toss out all the software patents, in case of takeover]

        Red Hat, Inc. (NYSE: RHT), the world’s leading provider of open source solutions, today announced a significant revision of its Patent Promise. That promise, originating in 2002, was based on Red Hat’s intention not to enforce its patents against free and open source software. The new version significantly expands and extends Red Hat’s promise, helping to protect open innovation.

        In its original Patent Promise, Red Hat explained that its patent portfolio was intended to discourage patent aggression against free and open source software. The expanded version published today reaffirms this intention and extends the zone of non-enforcement. It applies to all of Red Hat’s patents, and all software licensed under well-recognized open source licenses.

        The expanded Patent Promise, while consistent with Red Hat’s prior positions, breaks new ground in expanding the amount of software covered and otherwise clarifying the scope of the promise. Red Hat believes its updated Patent Promise represents the broadest commitment to protecting the open source software community to date.

      • How 10,000 people helped us rediscover our purpose [Ed: Red Hat openwashing again]
      • Ansible, or Not Ansible?: Interview with Director of Ansible Community
      • Finance

      • Fedora

        • PipeWire aims to do for video what PulseAudio did for sound

          An ambitious new project from GNOME is aiming to do for video what PulseAudio did for sound.

          It’s called PipeWire and it aims to improve the handling of audio and video on Linux to such an extent that it become a ‘core building block for the future of Linux application development’.

          PipeWire has been designed form the ground up to modernize the way video and audio processing is handled on Linux, with particular focus on supporting Wayland and Flatpak.

    • Debian Family

      • Derivatives

        • Canonical/Ubuntu

          • Ubuntu 17.10 (Artful Aardvark) Is Now Powered by Linux Kernel 4.13, GCC 7.2

            As of today, the upcoming Ubuntu 17.10 (Artful Aardvark) operating system is powered by the latest Linux 4.13 kernel, which arrived in the stable repositories along with GCC (GNU Compiler Collection) 7.2.

            So there you have it, Canonical kept on its promise to rebase the Ubuntu 17.10 release on the Linux 4.13 kernel series, and with today’s repo sync, the previous Linux 4.12 kernel, which is now EOL (End-of-Life) upstream, were replaced by a 4.13.0-11 kernel that’s apparently based on Linux kernel 4.13.1. Ubuntu 17.10 is also using the latest GCC 7.2 compiler and Mesa 17.2.1 graphics stack by default.

  • Devices/Embedded

Free Software/Open Source

  • Open source-based business lessons from a seasoned CEO

    The default now is to build from open and in the open. So that’s a positive. The downside is that by open source being the default, we may be getting a little lazy. If you remember back 5-10 years, open sourcing was a big deal, and it forced a level of rigor that may have led, in some cases, to founders and early investors taking better approaches to building their company—for example, shifting towards SaaS wherever possible, in part because of the ability to demonstrate clear value versus their own open source.

  • Open source strategies bring benefits, but don’t rush in

    When organizations adopt open source strategies, they rarely intend to dive into the source code. That would require hiring internal miracle workers — an expensive proposition. Instead, they contract for support, usually with a vendor that’s a primary contributor to the open source project.

    Often, but not always, this is the company that has many of the original open source project contributors on staff, and continues to make the most commits back to the code base. Sometimes, like with big data analytics, this gets competitive, resulting in several downstream distributions — each from a different vendor.

  • The Symphony Software Foundation: Bringing Open Source To Wall Street

    Whenever banks merge, they typically bring along their overlapping, proprietary software platforms as luggage.

    “In most cases, they don’t merge … because it’s a massive business and technological endeavor,” Gabriele Columbro, 35, the executive director of the Symphony Software Foundation, told Benzinga.

    “Rather than undertaking massive consolidation projects, open source gives you a way to leapfrog it.”

    It’s one area in the financial services universe in which the nonprofit arm of the messaging platform Symphony Communications is working to bring wider adoption of open source software.

  • Unix to GitHub: 10 Key Events in Free and Open Source Software History
  • Engineer Spotlight: Brian Gerkey of Open Robotics Talks ROS and Robotics

    This year marks the 10th anniversary of the inception of the Robotic Operating System (ROS) — an open source robotics platform being used around the world in research, industrial, and recreational settings. The premise of ROS is simple: to simplify and standardize robotic programming, enabling faster development of robotic systems through the spirit of open source collaboration.

    On September 21st and 22nd, the Open Robotics (formerly the Open Source Robotics Foundation) will convene for the fifth time for ROSCon 2017. Delegates ranging from students, researchers, industry representatives, and hobbyists/enthusiasts will meet, discuss, and present on a range of topics related to the development of ROS. Even though ROSCon is still a relatively young event, every year it has continued to grow in both number of attendees and sponsors.

  • Ericsson CTO: Open source is good but fragmentation, not so much

    Open source, just like standards, can be a good thing as long as there aren’t too many of them, because that can result in fragmentation and too many resources being spread across too many groups, according to Ericsson Group CTO Erik Ekudden.

    “We can’t spread ourselves too thin, so we are focusing of course on open source as it’s relevant to network platforms”—and that includes everything from the cloud side to management and control, he told FierceWirelessTech on the sidelines of Mobile World Congress Americas (MWCA).

  • Events

  • Web Browsers

  • IBM

  • Databases

    • Keeping up with advances in open source database administration

      The world of open source databases is rapidly evolving. It seems like every day brings a new release of an open source technology that might make a database administrator’s life easier, if only he or she knew about it.

      Fortunately, there are many ways to stay on top of what’s going on with open source database technology. One such way is the Percona Live Open Source Database Conference, taking place next week in Dublin, Ireland. We’ve covered Percona Live before, and invite you to take a look back at some of our previous stories. From IoT to big data to working with the cloud, there’s plenty to keep up with. Here are a look at a couple of the sessions you might enjoy, as described by the speakers.

    • PostgreSQL 10 RC1 Released

      The PostgreSQL Global Development Group announces today that the first release candidate of version 10 is available for download. As a release candidate, 10 RC 1 should be identical to the final release of the new version. It contains fixes for all known issues found during testing, so users should test and report any issues that they find.

    • PostgreSQL 10 Release Candidate 1 Arrives

      PostgreSQL 10 has been queuing up improvements to declarative partitioning, logical replication support, an improved parallel query system, SCRAM authentication, performance speed-ups, hash indexes are now WAL, extended statistics, new integrity checking tools, smart connection handling, and many other promising improvements. Our earlier performance tests of Postgre 10 during its beta phase showed some speed-ups over PostgreSQL 9.

    • Pivotal Greenplum Analytic Database Adds Multicloud Support

      Pivotal’s latest release of its Greenplum analytic database includes multicloud support and, for the first time, is based entirely on open source code.

      In 2015, the company open sourced the core of Pivotal Greenplum as the Greenplum Database project. “This is the first commercially available release that we are shipping with the open source project truly at its core,” said Elisabeth Hendrickson, VP of data research and development at Pivotal.

  • Pseudo-Open Source (Openwashing)

  • Public Services/Government

    • City of Rennes to tackle IT vendor lock-in

      Rennes, France’s eleventh largest city, aims to get rid of IT vendor lock-in. To begin with, the city will switch to Zimbra, an open source-based collaboration and email solution. Next year, it will commence a feasibility study into other free and open source software applications, including office productivity tools.

    • Thin Edge Of The Wedge
  • Licensing/Legal

    • Open source licensing: What every technologist should know

      If you’re a software developer today, you know how to use open source software, but do you know how and why open source licensing started? A little background will help you understand how and why the licenses work the way they do.

    • A New Era for Free Software Non-Profits

      The US Internal Revenue Service has ushered in a new and much more favorable treatment for free software projects seeking to have 501c3 tax exempt non-profit organizations of their own. After years of suffering from a specially prejudicial environment at IRS, free software projects—particularly new projects starting out and seeking organizational identity and the ability to solicit and receive tax-deductible contributions for the first time—can now do so much more easily, and with confident expectation of fast, favorable review. For lawyers and others counseling free software projects, this is without question “game-changing.”

      At SFLC, we have ridden all the ups and downs of the US tax law’s interaction with free software non-profits. When I formed SFLC—which in addition to being a 501c3 tax-deductible organization under US federal tax law is also a non-profit educational corporation under NY State law—in 2005, we acquired our federal 501c3 determination in less than 70 days. Over our first several years of operation, we shepherded several of our clients through the so-called “1023 process,” named after the form on which one applies for 501c3 determination, as well as creating several 501c3-determined “condominium” or “conservancy” arrangements, to allow multiple free software projects to share one tax-deductible legal identity.

      But by the middle of the Obama Administration’s first term, our ability to get new 501c3 determinations from the IRS largely ceased. The Service’s Exempt Organizations Division began scrutinizing certain classes of 1023’s particularly closely, forming task forces to centralize review of—and, seemingly, to prevent success of—these classes of application. In our practice on behalf of free software projects seeking legal organization and tax exemption, we began to deal with unremitting Service pushback against our clients’ applications. Sometimes, the determination to refuse our clients’ applications seemed to indicate a fixed political prejudice against their work; more than once we were asked by IRS examiners “What if your software is used by terrorists?”

    • The Faces of Open Source: Harald Welte

      Harald is the original GPL enforcer. He reached out to companies and brought the GPL to court for the first time, way back in the early 2000s. His activities, initially seen as controversial, ultimately led to much greater and improved dialogue between companies and the community-at-large, not least because it cast the GPL as a solid, simple legal document, with terms that a court could rule on.

      One of Harald’s most noticeable characteristics is his calm, measured, and carefully considered approach to matters. His passion for free software is genuine, but he is not driven by passion alone. He has clear, thoughtful arguments for issues that he engages with, and he often provides insight in an accessible manner. While he is far too modest to use the term, Harald is a thought-leader in open source, and this is one of the interviews I was most excited to shoot.

  • Openness/Sharing/Collaboration

  • Programming/Development

    • The Four Layers of Programming Skills

      When learning how to code for the first time, there’s a common misconception that learning how to code is primarily about learning the syntax of a programming language. That is, learning how the special symbols, keywords, and characters must be written in the right order for the language to run without errors.

      However, focusing only on knowledge of syntax is a bit like practicing to write a novel by only studying grammar and spelling. Grammar and spelling are needed to write a novel, but there are many other layers of skills that are needed in order to write an original, creative novel.

      [...]

      This is the layer that is most often focused on in the early learning phase. Syntax skills essentially means how to read and write a programming language using the rules for how different characters must be used for the code to actually work.

    • Beignet OpenCL Now Supports LLVM 5.0

      For those making use of Beignet for Intel graphics OpenCL acceleration on Linux, it finally has added support for LLVM 5.0.

      Beignet doesn’t tend to support new LLVM versions early but rather a bit notorious for their tardiness in supporting new LLVM releases. LLVM 5.0 has been out for two weeks, so Beignet Git has moved on to adding support for LLVM 5.

      There were Beignet changes to libocl and GBE for enabling the LLVM 5.0 support.

Leftovers

  • Health/Nutrition

    • On Heels of Progressive Wave, Rhode Island Expands Sick Leave to 100,000 Workers

      Rhode Island’s General Assembly voted 59 to 11 to pass a bill on Tuesday guaranteeing sick days to over 100,000 workers, joining the state Senate, which passed the legislation along a 25 to seven vote. The bill now goes to Gov. Gina Raimondo, who is expected to sign it.

      The new law will guarantee workers at large firms five earned sick days by 2020; workers at businesses with 17 or fewer employees will be allowed to have three unpaid sick days a year. Overall, around 90 percent of the state’s workforce will have access to paid sick days.

      The passage of the law is the culmination of a yearlong effort by the Rhode Island Earned Sick Days Campaign, made up of more than a dozen groups, including the Service Employees International Union, Planned Parenthood of Southern New England, and the Working Families Party, an organization founded in New York that has since spread its issue activism and electoral work to many other states.

      Over the last year of elections, WFP helped lay the groundwork for the passage of paid sick days by backing candidates supporting the issue in 10 legislative races. In seven of those races, its candidates won.

      Part of WFP’s challenge is how it chooses to engage in electoral politics. In New York, there is a fusion party system, in which groups other than the main parties can develop their own ballot line based on endorsements, which is the system WFP has used to create an independent voice in New York politics. Under that scenario, the same candidate can run on both the Democratic line and the WFP line, meaning people can vote for the WFP candidate without the fear of contributing to the victory of the opposing Republican.

    • Trump’s Failure to Tackle Opioid Crisis Is Costing Lives, House Democrats Say

      It’s been nearly six months since President Donald Trump issued an executive order forming a commission to combat the nation’s opioid crisis — which he described on August 10 as “a national emergency” — and almost two months since the White House panel issued interim recommendations for dealing with the epidemic. But Trump has made a habit of failing to follow-up on his executive orders, and his administration has yet to officially declare the crisis a national emergency. In fact, there’s no evidence that his administration has moved on nearly any of the of the commission’s recommendations.

      Now, members of Congress are saying the inaction is costing lives.

      In a letter to the president, 51 House Democrats led by Rep. Elijah Cummings, D-Md., urged the administration to declare a national emergency and act on one critical recommendation: ensuring that naloxone, a drug used to reverse the effects of an opioid overdose, gets into the hands of every law enforcement officer in the United States.

    • Maine Won’t Let Nurse Practitioners Perform Early Abortions, and It’s Harming Our Patients — So I’m Suing

      I’m a nurse practitioner who has sent away patients in desperate situations even though I can provide abortion care safely.

      From the time I was in college, I knew two things: I wanted to be a nurse practitioner, and I wanted to be an abortion provider. As the stepdaughter of a Maine abortion provider, and then a patient advocate at a Maine abortion clinic, I’d seen firsthand the importance of high-quality, comprehensive reproductive health care. I saw the challenges and protestors, too, but that didn’t deter me—I couldn’t imagine a more fulfilling career.

      Today, I’m proud to say that I am a practicing nurse practitioner and that I had the gratifying experience of providing safe, compassionate abortion care while living in California. And now that I’m back in Maine, I provide my patients at Maine Family Planning with a range of reproductive health services, including inserting intrauterine contraceptive devices (IUDs) and performing colposcopies, which involve very similar skills as first-trimester abortion care.

    • Outlets That Scolded Sanders Over Deficits Uniformly Silent on $700B Pentagon Handout

      Where did all the concern over deficits go? After two years of the media lamenting, worrying and feigning outrage over the cost of Bernie Sanders’ two big-budget items—free college and single-payer healthcare—the same outlets are uniformly silent, days after the largest military budget increase in history.

      Monday, the Senate voted to increase military spending by a whopping $81 billion, from $619 billion to $700 billion–an increase of over 13 percent. (The House passed its own $696 billion Pentagon budget in July—Politico, 7/14/17.) The reaction thus far to this unprecedented handout to military contractors and weapons makers has been one big yawn.

      No write-ups worrying about the cost increase in the Washington Post or Vox or NPR. No op-eds expressing concern for “deficits” in the New York Times, Boston Globe or US News. No news segments on Fox News or CNN on the “unaffordable” increase in government spending. All the outlets that spent considerable column inches and airtime stressing over Sanders’ social programs are suddenly indifferent to “how we will afford” this latest military giveaway. The US government votes 89–9 to add $81 billion extra to the balance sheet—the equivalent of the government creating three new Justice Departments, four more NASAs, seven Treasury Departments, ten EPAs or 546 National Endowments for the the Arts—and there’s zero discussion as to “how we will pay for it.”

    • Head of Health Insurance Giant Aetna Slams Bernie Sanders’s Single-Payer Plan As “Lousy”

      The head of Aetna, the health insurance giant, not only slammed the gains being made in the push for universal Medicare, but also mocked its proponents as misguided. But in the process, Mark Bertolini got basic facts wrong about single-payer health care.

      Bertolini, the CEO of Aetna, the third-largest health insurance company in the U.S., rejected the Medicare for All proposal released last week by Sen. Bernie Sanders, I-Vt., and a group of 16 Senate Democrats. He at times used disparaging comments and outright falsehoods about neighboring countries’ national health systems to criticize the plan.

      Bertolini, speaking at the Strategic Investor Initiative conference in New York on Tuesday in response to a question from The Intercept, said that the Sanders single-payer bill does “nothing to fix the underlying cost structure” of the health care system. “So if we refinance a lousy product, what do we get? A lousy result,” Bertolini said.

    • Why Lisa Murkowski Is So Unlikely To Flip Her Vote On Repealing Obamacare

      The last-ditch Senate Republican effort to repeal and replace the Affordable Care Act has zeroed in on a single target: Alaska Republican Sen. Lisa Murkowski, who cast one of three decisive no votes in July.

      Her colleagues Sens. Rand Paul of Kentucky and Susan Collins of Maine have been written off as no votes by the bill’s backers. If Murkowski joins them and votes no again, the bill, which cuts federal health-care spending and devolves power to the states, falls short of the 50 votes it needs.

      Murkowski has given no indication that she has re-thought her opposition, and on Tuesday, Alaska’s governor, Bill Walker, announced he was against the new bill. Later that day, while speaking with reporters, Murkowski quoted Walker’s statement, adding that she is not yet announcing her own position.

      If all that isn’t enough to give an indication of how she’ll vote this time around, take a look at a conversation she had with a class of high school interns just last month. Murkowski, who tends to hold her cards close to her vest, didn’t announce her decision last time before the vote, either. But that doesn’t mean she hadn’t made up her mind.

      In the Q&A with her outgoing interns, she allowed each to ask her a question. The back and forth was recorded and posted to YouTube. As of this writing, it has been viewed 523 times, and was referenced in a profile of Murkowski written in August by Jennifer Bendery of HuffPost.

      [...]

      Collins, for her part, is deeply disturbed that the Congressional Budget Office won’t be fully analyzing the bill. When The Intercept told her the CBO wouldn’t be studying its effect on the number of uninsured or the cost of premiums, she laughed. “Really? It will be interesting to see what they do have if they don’t have those two, because that’s pretty major,” she said. “That’s problematic. It’s part of the problem with short-circuiting the process.”

    • Latest GOP Plan ‘Is Even Worse for Women’s Health Than Previous Repeal Bills’

      The bill, coauthored by Sens. Lindsey Graham (R-S.C.) and Bill Cassidy (R-La.), would eliminate Affordable Care Act (ACA) mandates requiring all Americans to have health insurance or pay a tax penalty, and all large employers to offer insurance plans. It would also end cost-sharing subsidies for insurers and tax credits that help Americans afford coverage.

      Further, the plan would halt Medicaid expansion, and restructure the distribution of federal funding so that states receive block grants, or lump sums to allocate as they see fit. As Anna North at Vox notes, “its program of block grants would create new ways for the federal government to restrict abortion coverage.”

    • Senate Republicans Scramble to Secure Votes for Last-Ditch Effort to Repeal Affordable Care Act

      Vice President Mike Pence and other Trump administration officials spent Tuesday on Capitol Hill lobbying Republican senators to support the latest healthcare plan, known as the Graham-Cassidy bill, named after its main architects, Bill Cassidy of Louisiana and Lindsey Graham of South Carolina. The last-ditch effort by Senate Republicans to repeal and replace the Affordable Care Act has to be done by September 30, when a deadline allowing the Senate to pass the legislation by a simple majority expires. The Center on Budget and Policy Priorities says the bill would cause many millions of people to lose coverage, gut Medicaid, eliminate or weaken protections for people with pre-existing conditions and increase out-of-pocket healthcare costs to individuals, all while showering tax cuts on the wealthiest Americans. The New York Times editorial board wrote on Tuesday, “It is hard to overstate the cruelty of the Graham-Cassidy bill.” We speak with Alice Ollstein, a politics reporter at Talking Points Memo focusing on healthcare. Her recent piece is titled “Where Things Stand with the Senate’s Last-Ditch Obamacare Repeal Push.”

    • Panel Brings Out Key Public Interest Issues In Gene Editing Technology

      The still-emerging breakthrough CRISPR gene editing tool has the potential to transform the field and do enormous good for humankind. But let’s make sure we understand it better and ensure the public interest before launching into using it too widely. Meanwhile, companies and researchers are actively licensing the technology. That was a message of a set of panellists working close to CRISPR’s development, speaking at a recent event in Washington, DC.

  • Security

  • Defence/Aggression

    • Witnesses yell ‘he can’t hear you’ as cop shoots deaf man

      Oklahoma City police officers who opened fire on a man in front of his home as he approached them holding a metal pipe didn’t hear witnesses yelling that he was deaf, a department official said Wednesday.

      Magdiel Sanchez, 35, wasn’t obeying the officers’ commands before one shot him with a gun and the other with a Taser on Tuesday night, police Capt. Bo Mathews said at a news conference. He said witnesses were yelling “he can’t hear you” before the officers fired, but they didn’t hear them.

    • PBS’ ‘Vietnam War’ Tells Some Truths

      When PBS announced that it was broadcasting a 10-part, 18-hour series, entitled “The Vietnam War,” I wasn’t sure what to expect. As a network news correspondent who covered the war for five years through many of its bloodiest chapters, I have had mixed feelings about some of the other attempts to recount and explain the war.

      Many of the previous efforts were colored by the political pressures of the moment, especially from policymakers and journalists who had career stakes in how assessments of the failed war would make them look. So, with some trepidation, I watched the entire 10-part series and read the companion book by writer Geoffrey C. Ward over the past week. To my pleasant surprise, I found many reasons to applaud the effort and my criticisms were relatively minor.

      In my view, the PBS series, directed by Ken Burns and Lynne Novick, represents the most honest and thorough account available to the general public. Over those 18 hours, the series reveals so much duplicity and mendacity that this real history makes even the most cynical movies about the war, such as “Apocalypse Now,” and “The Deer Hunter,” look tame by comparison.

    • America’s NSA Spied On And Knew About India’s Secret Sagarika Ballistic Missile Back In 2005!

      In the world of covert intelligence gathering, no one is no one’s friend. What else explains America’s NSA spying on India’s nuclear and missile program in 2005, when the relations between the two countries were warming up?

    • US spies had info on India’s nuclear missiles years before launch – NSA leaks

      The NSA may have known about India’s nuclear-capable Sagarika and Dhanush missiles as early as 2005, newly released documents from the trove obtained by whistleblower Edward Snowden reveal.

      US spies also likely possessed “significant intelligence” about the bombs in service in India during that period.

      Those revelations come from the batch of 294 articles published by The Intercept last week, and traced back to the from National Security Agency’s Signal Intelligence Directorate internal newsletter, SIDtoday.

    • NYT Lets Think Tank Funded by Gov’t and Arms Industry Claim Huge US Military Budget Isn’t Huge Enough

      The New York Times (9/18/17) gave an enormous platform to a hawkish think tank that is funded by the US government and by top weapons corporations, letting it absurdly claim, without any pushback, that the gargantuan US military—by far the largest in the world—has been “underfunded.”

      On September 18, the Senate voted overwhelmingly (89 to eight) to pass an enormous, record-breaking $700 billion Pentagon bill, giving far-right President Donald Trump even more money for war than he had requested.

      Times reporter Sheryl Gay Stolberg effectively helped to sell the bill in an extremely sympathetic article, headlined “Senate Passes $700 Billion Pentagon Bill, More Money Than Trump Sought.”

      Stolberg’s story also doubled as a kind of puff piece for hyper-hawkish Sen. John McCain, whom it lionized as an intrepid hero boldly taking the lead on the Pentagon legislation.

      The Times report all but openly applauded the bill, describing it as “a rare act of bipartisanship” that “sets forth a muscular vision of America as a global power.”

    • Trump, a Boorish Interventionist

      My political positions have very frequently been countercurrent. When American liberals were calling for Donald Trump’s head at the outset of his presidency, when Sen. Chuck Schumer and Rep. Nancy Pelosi were preaching all-out obstructionism to thwart his policies, I was urging progressives to lay down their pitchforks and try to deal constructively with the new administration for the good of the nation.

    • Bernie Sanders: Saudi Arabia Is “Not an Ally” and the U.S. Should “Rethink” Its Approach to Iran

      Saudi Arabia is “not an ally of the United States,” according to Bernie Sanders, the independent senator and former Democratic presidential hopeful.

      Sanders broke with the bipartisan consensus on Capitol Hill in an exclusive interview with The Intercept. The United States has long considered Saudi Arabia to be a loyal friend, supporter, and partner in the so-called war on terror.

      Sanders issued a scathing denunciation of the Gulf kingdom, which has recently embarked on a new round of domestic repression.

      “I consider [Saudi Arabia] to be an undemocratic country that has supported terrorism around the world, it has funded terrorism. … They are not an ally of the United States.”

      The Vermont senator accused the “incredibly anti-democratic” Saudis of “continuing to fund madrasas” and spreading “an extremely radical Wahhabi doctrine in many countries around the world.”

      “They are fomenting a lot of hatred,” he added. In June, Sanders joined 46 other senators in voting to try and block the sale of precision-guided munitions to Saudi Arabia. A Saudi-led coalition backed by the U.S. has been bombing Iranian-backed Houthi fighters in Yemen since 2015 and is accused of killing thousands of Yemeni civilians.

    • Who Will Pay for Huge Pentagon Budget Increase?

      This week, the United States Senate overwhelmingly voted in favor of increasing military spending by $700 billion, pouring even more money into by far the most expensive military in the world and exceeding military funding from any time during the Iraq and Afghanistan Wars. The U.S. Military budget is larger than the next nine most expensive countries combined, and this new budget now makes it ten countries.

      Though both political parties are abrasive toward spending on social programs, from expanding the social safety net through policies like single payer healthcare, to boosting welfare, medicare, and social security, military spending receives little resistance, even in the wake of a massive accounting error at the Pentagon in which trillions of dollars are still unaccounted for. The spending increases continue a trend of enormous military spending set under the Obama Administration, in which the United States’ military budget was the highest its been since World War II.

  • Transparency/Investigative Reporting

    • Chelsea Manning: Harvard Told Me “Sean Spicer Has Something to Contribute to American Policy”

      Shortly after Harvard publicly rescinded whistleblower Chelsea Manning’s visiting fellowship, the dean of her would-be school called her personally to break the news.

      According to Manning, Douglas Elmendorf, the dean of the Harvard Kennedy School, began by reading what she later learned was a statement the school had already posted online. But as Manning pressed for more of an explanation, and noted some of the other controversial fellows at the school, he told her simply that “Sean Spicer has something to contribute to American policy,” and “you can’t really bring that to the table.”

      Manning relayed her story during an interview with the Nantucket Project on Sunday, two days after Harvard took away her fellowship.

  • Environment/Energy/Wildlife/Nature

    • The Paris Agreement Dispute Is a Distraction. The Real Battle Is Playing Out in the EPA.

      For anyone who’s been following the fate of the United States’ involvement in the Paris agreement, the main question surrounding it recently has been pretty clear: Will he or won’t he?

      Conflicting reports over the weekend — sparked by a vague Wall Street Journal story on Saturday — alleged that the Trump administration was reconsidering its June decision to withdraw from the landmark climate deal. National Security Adviser H.R. McMaster denied it, only to be upstaged Sunday morning by Secretary of State and former Exxon Mobil CEO Rex Tillerson, whose department would theoretically oversee either a renegotiation or a withdrawal. On this week’s Face the Nation, Tillerson said that President Donald Trump was “open to finding those conditions where we can remain engaged with others on what we all agree is still a challenging issue.”

      In what’s being taken as a for-now final word on the matter, chief economic adviser Gary Cohn emphasized Monday that the U.S. will leave the agreement “unless we can re-enter on terms that are more favorable to our country,” doubling down on the line the administration has held since its initial withdrawal announcement.

    • An Electric Bus Just Broke the World Record for Distance Traveled on a Single Charge

      When California-based automaker Proterra took one of their all-electric Catalyst E2 Max busses to the Navistar Proving Grounds in Indiana, the vehicle managed to cover 1,772.2 kilometers (1,101.2 miles) before its battery pack ran out of power, breaking the record for the longest distance travelled by an electric vehicle on a single charge.

      The 40-foot bus was outfitted with a 660 kWh battery pack for the trial — the equivalent of 11 Chevy Bolts — and according to the company, it could be back at full capacity in just an hour using Proterra’s high-speed charging system.

    • Hurricane Maria leaves Puerto Rico in total blackout as storm batters island

      Puerto Rico is without electricity, officials have said, after Hurricane Maria’s strong winds and flooding knocked out the US territory’s power service.

      Island residents endured a day of punishing winds and life-threatening flooding on Wednesday from the category 4 storm, which was the third hurricane to pummel the Caribbean in as many weeks.

  • Finance

    • Brexit means…progressive alliances, or ‘corporate absolutism’?

      The snap election in June tested to the limit the resolve by a progressive alliance of centre left parties to work together to defeat the Conservatives. The damage done to the Green Party’s electoral prospects resulted from a simplistic mistranslation of the progressive alliance as a tactical voting exercise; one that played to the benefit of Labour without reciprocal gains for the Greens.

      As a Labour supporter, I pushed hard for a local progressive alliance in Cornwall, and I share the dismay felt by many local Greens. In Cornwall, they stood down in three constituencies in the hope that local Labour would follow their example. They did not. What we got was the official line that ‘it is not Labour policy to pursue a progressive alliance’.

      Yet I remain hopeful. The political bargaining over marginal constituencies to remove the Tories may bear fruit next time round. Meanwhile there are other possibilities that progressives can explore, which side-step tribal politics; specifically, to turn instead to a ‘45-degree politics’ that involve centre-left parties looking outwards not upwards. To develop strong lateral networks with campaign and community groups as a counterbalance to the vertical structures of party control. But to what end?

      Currently in Cornwall and elsewhere, the focus has been on electoral reform and this is starting to gather a head of steam. While we did not break the Tory stranglehold in Cornwall, we have raised a much stronger awareness about our broken and outdated election system and the need to replace it with Proportional Representation.

    • Damaged by Hurricanes and “Vulture” Capitalism, Caribbean Islands Plead for Debt Relief

      Last week, just days after Hurricane Irma thrashed through the Caribbean with record-high winds, the Catholic bishop of the island nation of Dominica sent a letter to the managing director of the International Monetary Fund (IMF). Bishop Gabriel Malzaire pleaded with the IMF to temporarily delay debt payments from Antigua and Barbuda and other islands left in ruins by the storm.

      “The few dozen small Island States across the world, for example, have neither the size nor developmental history to have been major contributors to current climate change,” Malzaire wrote on behalf of the Antilles Episcopal Conference, the Caribbean conference of Catholic Bishops. “Yet these small Island States are the most easily devastated by rising seas and harsher storms.”

    • More Republicans Now Support Free College Than Oppose It, Poll Finds

      Bernie Sanders’s plan to make tuition free at all public colleges and universities is becoming a mainstream position in the Democratic Party.

      But the plan has appeal far beyond the Democratic faithful.

      A Morning Consult poll conducted in mid-September finds that a plurality of self-identified Republicans now agree with a “proposal to make four-year public colleges and universities tuition-free,” as the question is worded.

      Forty-seven percent of Republican respondents say they strongly or somewhat support the proposal, while 45 percent say they strongly or somewhat oppose it. Seven percent say they don’t know or have no opinion.

  • AstroTurf/Lobbying/Politics

    • How Merkel’s Win May Hide Rising Discontent

      The citizens of Germany will head to the polls this Sunday, in the last of a series of elections in major European countries this year. Before the voting began, there were fears that populist, anti-system parties could actually win in some cases, in the wake of the victory of last year’s Brexit vote and the election of Donald Trump as President of the United States. That hasn’t happened, as Marine Le Pen of the National Front was defeated in a run-off in France, and Geert Wilders’ Freedom Party failed to break through in Holland.

    • Prosecutors Want Anthony Weiner to Serve About 2 Years in Prison
    • At Least Three Wealthy Trump Officials Used Private Jets For Government Work

      Three of President Trump’s agency heads have been using private jets for government travel, BuzzFeed News has confirmed, following days of news reports and ethical questions about the administration’s private jet use.

      A spokesperson for Linda McMahon, the head of the Small Business Administration, told BuzzFeed News Thursday that the former wrestling CEO has used private jets since she’s been in her post.

      “What I can pass along is that Administrator McMahon utilizes both commercial and private air services in accordance with all federal regulations and guidelines relating to travel for government officials,” Carol Wilkerson, spokesperson for McMahon, said in a statement.

    • What The World Thinks Of Trump
    • The scale of repression over Catalonia is exposing the crisis of the Spanish state

      On Wednesday Mariano Rajoy lost control of the narrative on the Catalan question. Appearing before the press after a series of raids and arrests designed to halt a unilateral referendum on independence planned for 1 October, the Spanish Prime Minister trotted out the government’s well-worn arguments in defence of the constitution and the “rights of all Spaniards”.

      However, Rajoy’s professed defence of the rule of law is increasingly at odds with reality on the ground. Over recent weeks, judges in Spain have used startlingly loose interpretations of the Supreme Court’s ruling on the referendum’s illegality to issue orders that violate many of the rights they’re charged with upholding. Local police across Catalonia have seized posters and banners related to the 1 October vote, and the Spanish Civil Guard has searched a number of newspaper offices for incriminating materials. These aren’t signs of a state that’s confident in its authority.

    • Spain’s attempt to block Catalonia’s referendum is a violation of our basic rights
    • Catalonia’s de facto independence

      It is hard to be an internationalist in the age of nationalism. It is hard to believe in individual rights in times when group rights are supposed to prevail. It is hard to believe in citizenship when all that seems to count is nationality. It is hard, in short, to be cosmopolitan in an age of parochialism and identity politics.

      And it is also hard, on the eve of a referendum/mobilisation due to take place on October 1 in Catalonia, to stay calm and moderate when facing a confrontation of two narratives that carry with them at least in part, some of the cleavages separating the two logics mentioned above.

    • China cannot ‘choke off’ Hong Kong’s democratic aspirations, says former governor Chris Patten
    • Seeking to Ban Mosques and Deport All Migrants, Right-Wing Party Is Set to Enter German Parliament

      In Germany’s upcoming federal elections on September 24, the extremist Alternative für Deutschland (AfD) political party is expected to become the first openly far-right party to enter the German national parliament since the end of World War II.

      The AfD party is polling in third place at 11 percent of the prospective national vote behind the center-left Social Democratic Party of Germany (SPD) with 23 percent and Chancellor Angela Merkel’s ruling conservative Christian Democratic Union of Germany (CDU) with 36 percent. In Germany, a political party must attain at least 5 percent of the national vote to seat its members in the Bundestag, the lower chamber of the German parliament. Since its founding in 2013, the AfD has entered 13 out of 16 German state parliaments, known as Landtage, and it collectively holds 9 percent of the seats.

    • Facebook to share Russia-linked ads with U.S. Congress

      Facebook Inc (FB.O) said on Thursday it plans to share with U.S. congressional investigators some 3,000 political ads that it says Russia-based operatives ran on Facebook in the months before and after last year’s U.S. presidential election.

      Chief Executive Mark Zuckerberg, who has been under pressure to do more to prevent the use of Facebook for election manipulation, said in a live broadcast on Facebook that he supported the investigation by the U.S. Congress.

  • Censorship/Free Speech

    • Meet Shadowsocks, the underground tool that China’s coders use to blast through the Great Firewall

      But the Great Firewall has since grown more powerful. Nowadays, even if you have a proxy server in Australia, the Great Firewall can identify and block traffic it doesn’t like from that server. It still knows you are requesting packets from Google—you’re just using a bit of an odd route for it. That’s where Shadowsocks comes in. It creates an encrypted connection between the Shadowsocks client on your local computer and the one running on your proxy server, using an open-source internet protocol called SOCKS5.

    • Alt-Right Twitter App Developers Sue Google After Gab.Ai App Is Kicked Out Of The Play Store

      Google’s decision to boot a controversial social media app from its Play store has resulted in a lawsuit. And it’s a very strange lawsuit — one that attempts to turn inconsistent moderation efforts into anti-trust allegations against Google.

      Some background information is necessary. Some of this can be gleaned from the complaint [PDF], which was put together by Marc Randazza (of First Amendment fame), Ron Coleman (key to the Slants’ Supreme Court trademark win), and Jordan Rushie (who has participated in/fought against copyright trolling efforts). Given the litigation credentials behind the filing, it’s surprising there’s not more to the complaint.

      But first, the background:

    • Saudi Arabia lifts ban on messaging apps like Skype and Snapchat
    • Lesotho govt accused of media censorship

      The Government of Lesotho has been under heavy criticism for shutting down a private radio station that is seen to be anti-government.

      But the government has defended its decision citing the current security volatility as the sole purpose of its drastic action on Moafrika FM.

      Pictures of the chief editor of Moafrika FM, Candy Ramainoane, being wrestled to the ground began circulating on social media recently.

    • ‘Snowflakes fall everywhere’: when ‘censorship‘ comes from the right

      Last week, the University of California, Berkeley, spent $600,000 (£443,000) on security to ensure that Ben Shapiro, a conservative writer, could speak on the campus without being disrupted. Also this month, Charles Murray, whose research is blasted by many as racist, appeared at Harvard University. Security was tight there, and some protested outside, but Mr Murray spoke without incident.

      In both cases, the universities rejected requests by some that the appearances be called off. In both cases, the speakers praised the universities for the way that they handled the events.

      The appearances don’t quite fit the narrative – widely in play after Mr Murray was shouted down at Middlebury College in the spring – that it’s impossible for controversial conservative speakers to appear on campuses these days, and that colleges won’t protect the right to free speech. Indeed, since the Murray incident at Middlebury, he has given speeches at several institutions – such as Columbia and Indiana Universities – with protests outside and heavy security but no disruptions. And when some students tried to disrupt his talk at Villanova University, campus police intervened, removed those disrupting, and the talk went on.

    • Berkeley launches website explaining free speech, denouncing ‘de facto censorship’

      Chancellor Christ is saying exactly the right things and Berkeley’s free speech site is too. Of course, it would be great if none of this was necessary because students already understood and valued free speech, but that’s clearly not where we are. In addition, the fact that Ben Shapiro’s speech was not canceled or shouted down suggests the school seems to be moving in a good direction. Of course, the real test is yet to come.

    • Academic journals defy Chinese censorship in case for integrity

      In recent years, China has been notorious for censoring the internet from the public and removing anything that doesn’t laud the Communist Party of China.

      Cambridge University Press, the oldest publishing house in the world, had initially complied with Chinese authorities by removing academic articles that the government didn’t want accessed by its public. On Aug. 18, CUP confirmed that the publisher was contacted by a Chinese import agency to block certain articles from The China Quarterly, an academic journal published by CUP.

    • New uni standards needed to counter Chinese censorship bids
    • Turkish Authorities Top For Twitter Censorship [Infographic]
    • Censorship: Facebook bans Rohingya group’s posts
    • Facebook bans Rohingya group’s posts as minority faces ‘ethnic cleansing’
    • M-103 talk turns to prosecution, censorship
    • .cat Domain a Casualty in Catalonian Independence Crackdown

      On October 1, a referendum will be held on whether Catalonia, an autonomous region of the northeast of Spain, should declare itself to be an independent country. The Spanish government has ruled the referendum illegal, and is taking action on a number of fronts to shut it down and to censor communications promoting it. One of its latest moves in this campaign was a Tuesday police raid of the offices of puntCAT, the domain registry that operates the .cat top-level domain, resulting in the seizure of computers, the arrest of its head of IT for sedition, and the deletion of domains promoting the October 1 referendum, such as refoct1.cat (that website is now available at an alternate URL).

      The .cat top-level domain was one of the earliest new top-level domains approved by ICANN in 2004, and is operated by a non-governmental, non-profit organization for the promotion of Catalan language and culture. Despite the seizure of computers at the puntCAT offices, because the operations of the domain registry are handled by an external provider, .cat domains not connected with the October 1 referendum (including eff.cat, EFF’s little-known Catalan language website) have not been affected.

    • Insanity: Theresa May Says Internet Companies Need To Remove ‘Extremist’ Content Within 2 Hours

      It’s fairly stunning just how much people believe that it’s easy for companies to moderate content online. Take, for example, this random dude who assumes its perfectly reasonable for Facebook, Google and Twitter to “manually review all content” on their platforms (and since Google is a search engine, I imagine this means basically all public web content that can be found via its search engine). This is, unfortunately, a complete failure of basic comprehension about the scale of these platforms and how much content flows through them.

  • Privacy/Surveillance

    • Taser Wants to Build an Army of Smartphone Informants
    • Lidar tells distance, radar tells velocity, this new sensor aims to do both

      Silicon Valley is crawling with startups looking for a piece of the emerging self-driving car business. One of those startups, Aeva, just came out of stealth mode with a big write-up in The New York Times. Its breakthrough: building a single sensor that can determine both the position and velocity of surrounding objects.

      Most experts say that the best self-driving cars need a trifecta of sensors: cameras, lidar, and radar. They need all three sensor types because each performs a different function. Cameras can tell you what objects look like but not how far away they are or how fast they’re moving. Lidar measures distance, while radar provides a precise estimate of velocity.

    • Released Snowden Doc Shows NSA Thwarting Electronic Dead Drops By Using Email Metadata

      The latest batch of Snowden docs published at The Intercept cover a lot of ground. The internal informational sheets from the Signals Intelligence Directorate include info on a host of surveillance programs that haven’t been revealed by previous document dumps. Nor do they discuss the programs in full. As such, some of the information is limited.

      One of those published last week mentions the NSA’s targeting of internet cafes in Iraq and other Middle Eastern countries using a program called MASTERSHAKE. Using MASTERSHAKE, analysts were apparently able to drill down location info to which target was sitting in which chair at the cafes under surveillance.

      Further down the page [PDF], past this brief mention of a program discussed more fully elsewhere, there’s another interesting tidbit. Apparently, the NSA can suss out electronic dead drops using harvested metadata. (h/t Electrospaces)

    • Are you being watched? FinFisher government spy tool found hiding as WhatsApp and Skype
    • Distrustful US allies force spy agency to back down in encryption row

      An international group of cryptography experts has forced the U.S. National Security Agency to back down over two data encryption techniques it wanted set as global industry standards, reflecting deep mistrust among close U.S. allies.

      In interviews and emails seen by Reuters, academic and industry experts from countries including Germany, Japan and Israel worried that the U.S. electronic spy agency was pushing the new techniques not because they were good encryption tools, but because it knew how to break them.

      The NSA has now agreed to drop all but the most powerful versions of the techniques – those least likely to be vulnerable to hacks – to address the concerns.

    • NSA Employees Routinely Undermined ‘Non-Attributable’ Web Access With Personal Web Use

      Another large batch of Snowden docs have been released by The Intercept. The new documents are part of the site’s “SID (Signals Intelligence Directorate) Today” collection, a sort of interoffice newsletter featuring discussions of intelligence-gathering efforts the agency has engaged in, as well as more mundane office business.

      The one discussed in this Intercept post details some careless opsec by Intelligence Community (IC) employees. Like anyone in any office anywhere, IC employees use their office computers to send personal email, shop online, and fritter away the downtime with some web surfing.

      That’s where they’re running into problems. This SID Today document [PDF] deals with the IC’s personal use of company computers — namely, the “attribution” problem that develops when outside websites are accessed using IP addresses that can be traced back to the NSA and other IC components.

    • Another Chinese Developer Arrested For Selling VPN Access

      Reports coming out of China indicate that another citizen has been caught up in the country’s VPN dragnet. The software developer reportedly set up a VPN for his own use but sensing demand, sold access to the service to third parties. Despite making just $164 from his business, he was arrested and detained for three days.

  • Civil Rights/Policing

    • Insidious management speak has infected the land, from our boardrooms to our school halls

      And as I became more attuned to this ridiculous, insidious corporate cant, I realised it wasn’t confined to large businesses. Politicians loved it to. I noticed Priti Patel, the International Development Secretary, was particularly fond of empty language like “outcome-focused models” and “bringing fresh ideas to the table”. I discovered government department brimming with business balderdash – like The Department for Exiting the European Union, which describes itself as aiming to “organise ourselves flexibly to deliver our objectives efficiently and effectively”.

    • I’m an immigration and human rights lawyer – and my chambers just won a case that could land Amber Rudd in prison

      On Sunday night, Samim Bigzad walked through the arrivals hall at London Heathrow, dropped his bag and ran into the arms of his friends. This was no ordinary end to a long flight. Rather, it was just one leg of a journey that saw Samim thrust into the centre of British politics and the debate about how the government should protect asylum seekers.

      It also placed Samim at the centre of a growing constitutional crisis that could land the Home Secretary, Amber Rudd, in court for contempt – and ultimately, in prison.

      Samim’s case is remarkable. The Home Secretary authorised his removal to Afghanistan, sending him on a journey of over 4,000 miles to Kabul, via Istanbul. This journey occurred in breach of three High Court orders made by three different judges.

      Every mile of Samim’s journey was unlawful. It was only after four hours of legal argument in the Court of Appeal on Saturday afternoon that confirmation was received that Samim would be returned to the UK. Another 4,000 miles later and Samim arrived safely at Heathrow on Sunday evening.

    • Stingray surveillance ends with cop shooter getting 33 years in prison

      Last month, a federal judge in Oakland, California, ruled that police must generally have a warrant before they use a cell-site simulator to locate a criminal suspect. However, the same judge also ruled that, in this particular case, a warrant was not needed, and so the evidence obtained from it could stand.

      That ruling in United States v. Ellis effectively ended the case of the three remaining men charged with racketeering and the attempted murder of an Oakland police officer in 2013. A fourth defendant, Damien McDaniel, who had previously pleaded guilty in April 2017, was sentenced to 33 years in prison on Wednesday.

      According to prosecutors, McDaniel and two other co-defendants, Deante Kincaid (aka “Tay Tay”) and Joseph Pennymon (aka “Junkie”) also took similar plea deals last month. That leaves Purvis Ellis as the sole defendant left in the case—he is expected to plead guilty at a Thursday hearing.

    • Why Do Border Deaths Persist When the Number of Border Crossings Is Falling?

      In July, a sweltering tractor trailer ride in Texas became the latest harrowing example of the perils of crossing the U.S. border illegally. From the hospital, one survivor told authorities that he had paid smugglers to get him across the Rio Grande and then cram him on a northbound truck with what he guessed were nearly 100 people. The survivor managed to keep breathing in the pitch black trailer without food or water. But when the doors were opened in a San Antonio Walmart parking lot, eight migrants were dead, their bodies “lying on the floor like meat,” the truck’s driver subsequently said. Another two expired later.

      Those 10 deaths are among the 255 known migrant fatalities recorded by the International Organization for Migration in the first eight months of 2017. That’s up from 240 in the same period last year. Experts aren’t certain what’s causing the recent increase; verifying numbers is inherently difficult when it comes to an endeavor whose very mission is to avoid detection by the authorities.

    • After Charlottesville, The American Far Right Is Tearing Itself Apart

      When white nationalist Richard Spencer coined the term “alt-right” nearly a decade ago, his movement was marginal, impotent, and striving for respectability. The phrase was a useful euphemism for his genocidal ideology, a palatable alternative to “the Ku Klux Klan” or “the American Nazi Party” to go with his suit, tie, and military undercut.

      In the years to follow, as trolling culture grew online and began to adopt the symbols and lexicon of white supremacy — first ironically, then less so — “alt-right” proved a conveniently ambiguous label for the sanitized neo-Nazi movement’s new prankster fellow travelers. The online trolls who flocked to the “alt-right” liked to play footsie with racist extremism, then laugh at anyone who took it seriously. Like their cryptic “Kek” flags and Pepe the Frog memes, the “alt-right” label signaled an allegiance to white nationalism without fully committing to it. It was so malleable, in fact, that during the 2016 election, it expanded to include just about anyone on the right who considered themselves “anti-establishment,” including many of Donald Trump’s rank-and-file supporters.

    • The Fight to Kill Texas’ Anti-Immigrant Law SB4 Is Not Over, But We Have the Constitution on Our Side

      Texas continues to push the false narrative that SB4 is about public safety despite police opposition to the law.

      The fight to kill SB4, Texas’ unconstitutional anti-immigrant law, is not over yet.

      Following a defeat in federal court where key provisions of SB4 were declared unconstitutional just two days before it was to go into effect, Texas Gov. Greg Abbott filed an emergency motion at the Fifth Circuit Court of Appeals asking that SB4 be allowed to go into effect, claiming that the decision to block it “makes Texas communities less safe.”

      Let’s be clear: Enforcing SB4 is not about safety.

    • St. Louis Police’s Chants of ‘Whose Streets? Our Streets!’ Once Again Reveal the Warped Mindset Infecting Too Many Departments

      The streets do not belong to the police. They belong to the community. The time for police reform is now.

      The antagonistic “us versus them” culture that plagues many police departments with regard to their interactions with communities of color was on full, disturbing display this week in St. Louis. In response to protests by community members over the acquittal of police officer Jason Stockley in the killing of Anthony Lamar Smith, a group of St. Louis police officers provocatively chanted, “Whose streets? Our streets!”

      That’s right — in one of the nation’s most racially segregated cities, where zip codes separated by only a few miles can mean an 18-year difference in life expectancy — a police department entrusted to serve the community aggressively claimed ownership over public streets while mocking protestors expressing the community’s pain and frustration. They did so by co-opting a chant that emanated from the very communities of color long marginalized and victimized by this country’s criminal, economic, and political systems. And adding insult to injury, they did so less than a 10-minute drive from where Michael Brown was killed in Ferguson.

  • Internet Policy/Net Neutrality

    • FCC Sued For Ignoring FOIA Request Investigating Fraudulent Net Neutrality Comments

      or months now we’ve noted how somebody is intentionally filling the FCC’s net neutrality comment proceeding with bot-generated bogus comments supporting the agency’s plan to kill net neutrality protections. Despite these fake comments being easily identifiable, the FCC has made it abundantly clear it intends to do absolutely nothing about it. Similarly, the FCC has told me it refuses to do anything about the fact that someone is using my name to file comments like this one falsely claiming I support killing net neutrality rules (you may have noticed I don’t).

      While nobody has identified who is polluting the FCC comment system with fake support, it should be fairly obvious who this effort benefits. By undermining the legitimacy of the public FCC comment proceeding (the one opportunity for transparent, public dialogue on this subject), it’s easier for ISPs and the FCC to downplay the massive public opposition to killing popular net neutrality rules. After all, most analysis has shown that once you remove form, bot and other automated comments from the proceeding, the vast, vast majority of consumers oppose what the FCC and Trump administration are up to.

    • Ajit Pai’s plan to lower broadband standards is “crazy,” FCC Democrat says

      The Federal Communications Commission chairman’s proposal that could lower the country’s broadband standard is “crazy” and does nothing to solve the United States’ broadband accessibility problems, a Democratic FCC commissioner said yesterday.

      The FCC is “proposing to lower US broadband standard from 25 to 10Mbps,” FCC Commissioner Jessica Rosenworcel tweeted. “This is crazy. Lowering standards doesn’t solve our broadband problems.”

  • Intellectual Monopolies

    • 3D Printing Patent Landscape

      he field of 3D printing has been growing rapidly for years. It has applications in many areas of life and the economy, such as healthcare, aerospace, and parts replacement. 3D printing also reshapes supply chains and democratizes manufacturing. Fueled by this growth, 3D printing-related patent filings are trending upward.

      The graph and table below show the growth of issued 3D printing-related patents since 1995 (in blue) and of published patent applications since 2001 (in magenta). Patent applications are not made public at the time of filing—they are usually published 18 months after filing—so the graph shows only published applications. Also, counting 3D printing-related patents is not an exact science. Depending on the patent title, a patent covering 3D printing technology may not be picked up in a keyword search, and searches can also include false positives, for example, products made by additive processes that are not typically viewed as 3D printing technologies. The U.S. Patent Office recently developed a new standard classification system for identifying patents related to 3D printing, which should help to identify new patents going forward.

    • Trademarks

      • “Comic-Con” trademark may have to activate superpowers to survive attack

        The future survival of the trademarked term “Comic-Con” is at stake.

        The trademark is facing its potential doom because of the legal fallout from the producers of the San Diego Comic-Con flexing their IP muscles. They sued a competing “Comic-Con” convention for using the unhyphenated form of their trademarked term “Comic-Con” without paying licensing fees. But their suit has raised questions about the legitimacy of the trademark—in particular whether the trademark has become too generic and, hence, a victim to its own pop-culture popularity.

    • Copyrights

      • EU Buried Its Own $400,000 Study Showing Unauthorized Downloads Have Almost No Effect On Sales

        One of the problems in the debate about the impact of unauthorized downloads on the copyright industry is the paucity of large-scale, rigorous data. That makes it easy for the industry to demand government policies that are not supported by any evidence they are needed or will work.

      • With Court Ruling, Fan Subtitles Officially Copyright Infringement In Sweden

        Several years ago, in an unfortunate display of police bending the knee to the copyright industries, Swedish law enforcement raided the offices of Undertexter, a site chiefly dedicated to fan translations for subtitles of films. While these fan translations have been handcuffed to film piracy — mostly through the messaging efforts of film and television content producers — the raid registered as an extreme escalation in the battle on subtitles. Most folks have a hard time understanding why such action was taken, with most fan translations only being useful due to the content makers underserving parts of the earth that speak a variety of languages. These fan translations mostly open up those markets for makers of movies and television who have otherwise chosen not to translate their work into the relevant languages.

      • Furie-ous creator of Pepe the Frog determined to use copyright to get his green creation back

        Can the author of a comic character oppose what he believes to be a distortion of the character’s meaning?

        Katfriend Nedim Malovic (Sandart & Partners) reports on the heated debate surrounding Matt Furie’s Pepe the Frog.

        [...]

        The Pepe the Frog case is one to watch: it raises issues of character protection, but also prompts a discussion around the thin moral rights regime in US copyright law. Finally, it calls for consideration – once again – of the interplay between copyright protection, fair use, and freedom of expression.”

      • Windstream Gives Up Preemptive Fight Over ISP’s Piracy Liability

        U.S. Internet provider Windstream has given up on its preemptive “piracy liability” case against BMG and Rightscorp. The ISP hoped to get legal clarity after it was accused of direct and contributory copyright infringement, but after an initial setback and subsequent appeal, it has now dropped the case.

East Asia’s Patent Peril and the Curse of Patent Trolls

Posted in Apple, Asia, Microsoft, Samsung at 3:42 am by Dr. Roy Schestowitz

From manufacturing to merely taxing manufacturers?

A factory

Summary: The high cost of China’s new obsession with patents and the never-ending saga of Samsung (Korea), which gets dragged into courts not only in the US but also in China

THE unit once owned by Google (now Lenovo) — namely Motorola‘s mobile business — is in the news again. IAM says that the judge who oversaw Microsoft’s patent war on Linux (Android/Motorola) is upset that Britain now enables patent trolls to operate in London (we wrote a lot about this decision at the time). Huawei, a Chinese giant and leading Android OEM, was attacked by Ericsson’s patent troll. As IAM puts it:

US district court judge James Robart has taken aim at the decision handed down by Justice Colin Birss in the high profile London High Court SEP/FRAND case of Unwired Planet v Huawei, decided earlier this year. Speaking at the annual IPO meeting in San Francisco yesterday, Robart – who handed down the famous Microsoft v Motorola decision in 2013 and sits in the Western District of Washington – said that Birss was wrong to offer specific royalty rates for the technology in question, rather than offering a range, and stated that he did not expect the judgment to be particularly influential in US courthouses.

[...]

Robart’s claim that the Unwired decision wouldn’t have much influence over US courts has previously been made by former Chief Judge for the Federal Circuit Paul Michel who told this blog after the London ruling was handed down that the US legal system was traditionally inward looking and so rarely paid much heed to overseas cases. Of course, judges around the world often disagree on key areas of patent law – the Supreme Court’s rulings in several patent eligibility cases has meant that the US is out-of-step with many jurisdictions in sectors like medical diagnostics – but Robart’s comments highlight the degree to which the law in FRAND licensing remains unsettled.

This decision ought to have been a wake-up call for Huawei, Lenovo (now holding Motorola’s ‘assets’), and China in general. Patent maximalism harms them everywhere. IAM also wrote about this collapse of a Chinese company that wrongly relies on patents rather than production. To quote:

Sanan Optoelectronics failed to take over Osram after having its bold $8.2 billion bid rebuffed late last year. But the Chinese LED maker has turned to the patent market to shore up its IP position, most recently buying a pair of portfolios from Sony. As increased scrutiny from regulators in both Europe and the United States threatens to scuttle Chinese firms’ more audacious M&A endeavours, there is still significant scope for them to acquire IP in smaller-scale deals.

[...]

A USPTO database search turned up just one previous example of Sony transferring patents to a Chinese entity. In 2015, it assigned six imaging-related assets to Hikvision, a video surveillance company whose controlling shareholder is a state-owned enterprise. So it appears to be a relatively rare occurance. Throughout this year and going back to 2015, Sony has steadily transferred LED-related assets to JOLED, an entity which was formed to combine the OLED functions of Sony, Panasonic and Japan Display in 2014. The Sanan sale perhaps shows that Sony has identified assets in the technology area which are not needed by its spun-out business but can find willing buyers on the open market.

As we said here many times before, this strategy of China’s patent gold rush (with government support/backing/financing) is going to be self-destructive. China is, indeed, becoming a patent trolls hub (self harm). IAM wrote about it the other day in relation to Samsung coming under fire. Shortly beforehand, Florian Müller wrote about the Apple v Samsung design patent case — a case which was discussed some days ago:

About a month and a half ago, Judge Lucy Koh of the United States District Court for the Northern District of California held that Samsung had not waived its “article of manufacture” argument in the first Apple v. Samsung case. That was another step forward for Samsung in its quest to get the damages award reduced. But prior to ordering a new trial on design patent damages, Judge Koh ordered briefing on various questions to be resolved first.

Last week, the parties filed their answers to the court’s questions (Apple, Samsung). Samsung argues that Apple has the burden of proof and that the only way the damages question could be resolved without a new trial would be for the court to find an evidentiary failure on Apple’s part. Apple refers the court to the Solicitor General’s Supreme Court brief. According to Apple, after a prima facie showing regarding the article of manufacture that infringes a design patent, the burden of proof is on the defendant to show that a component of that product is the appropriate basis for a disgorgement of infringer’s profits. While I tend to consider Samsung’s proposition better policy, I have no idea to what extent Judge Koh may be influenced by the DoJ’s Supreme Court brief.

Design patents were certainly on the line after the case had been escalated to the Supreme Court and then sent back down to lower courts. As one publication put it the other day:

The U.S. Supreme Court furthered a legal dispute last year as it sent a patent law case involving the two biggest smartphone makers, Apple and Samsung, back to lower courts. Intellectual property experts are now looking to those courts to better define an “article of manufacture” and determine how to place value on individual features in a complex device.

This case seems like it has lasted forever (so far). The only party happy about it is the patent ‘industry’, which is wasting time bickering over patents instead of creating something.

USPTO Starts Discriminating Against Poor People, and Does So Even When They Rightly Point Out Errors

Posted in America, Patents at 2:59 am by Dr. Roy Schestowitz

Forget these photo-ops, he doesn’t work “for the children” (patent indoctrination starts early)

USPTO's Leadership
Source: USPTO’s Leadership blog

Summary: Even though the burden of proof ought to be on one who grants a monopoly, the legal costs are being offloaded onto those who challenge an erroneously-granted monopoly (even if the court sides with the challenger)

YESTERDAY we wrote about a bogus Google patent making its way through the system. The Polish challenger could not afford legal advice and therefore it seems likely that Google will get its way. Such is the nature of the system today and it seems to have just gotten worse. As one firm put it a few days ago (emphasis below is ours):

The US Patent and Trademark Office (USPTO) recently began making applicants who challenge agency rulings on trademarks and patents in district court pay the attorney fees and expenses of the agency, regardless of the case’s outcome. This was supported by the Fourth Circuit Court of Appeals for trademarks in 2015, and more recently by a panel of the Court of Appeals for the Federal Circuit for patents in Nantkwest, Inc v Matal (June 23 2017). However, the Federal Circuit appears to be having second thoughts, as in August 2017 it vacated the Nantkwest panel decision of its own accord and ordered a rehearing by the full court.

This is really bad. So it’s going to get a lot harder for anyone other than large corporations to point out errors in examination. In addition to this, there’s now a big lobby (led by trolls and parasites) against PTAB, which has made challenges more affordable.

Whose system is this and what is it for? It was supposed to correctly issue patents and revoke/reject applications where triviality/prior art, for instance, could be demonstrated/shown.

The USPTO grants patents which certainly look like parody sometimes. Consider this example of a patent, spotted by Dennis Crouch the other day. Notice the length:

Thought pioneer Dan Abelow fits within an interesting designation. So far in 2017, his U.S. Patent Application No. 2012/0069131 – mysteriously titled “Reality Alternate” – is the Most-Oft examiner cited U.S. prior art reference. The document – now patented as U.S. Patent No. 9,183,560 – covers a method of providing “a portal for a user … to be present simultaneously in two or more different non-fictional alternate realities that are distinct from a non-fictional physical reality of the user.” [Here, I’m looking at Examiner citations rather than those submitted by Applicants]

[...]

In addition to being written in a way that draws diverse connections (helpful for obviousness conclusions), the reference is also 750 pages long! (The patentee paid an extra $4,000+ in filing costs for the extra page length). One of the best patent attorneys in the country – David Feigenbaum – filed this case and helped push it through to issuance.

What has become of this system? If it openly discriminates against those who are without deep pockets, then certainly it will promote the perception of protectionism (for the rich) rather than innovation.

Ambrose Chan Enters Document Security Systems (DSS), a Partly Patent Troll Entity

Posted in Asia, Patents at 2:26 am by Dr. Roy Schestowitz

De-storying the destructive strategy of destroying one’s competitors (by litigation).

Summary: The Board of Directors of DSS enlists a man from Singapore, whose lack of technical background suggests that the company is still more of a bully than an innovator

Serial litigator DSS is at it again, hiring non-technical people as its real business collapses. For background, read this 2012 article about DSS (comparing it to Vringo, a patent troll).

According to this press release and form (8-K), DSS turns to Singapore, which harbours some patent trolls (not just tax evaders, having become one of the top 5 places for people to pursue tax havens in), and hires this man:

While Chan does not appear to have much of a background in technology or intellectual property, his comments when appointed as a board member suggest that his focus is on the operating part of DSS’s business….

[...]

Today’s incarnation of DSS is the product of the first known merger between an NPE (Lexington Technology Group) and an operating business. Ronaldi, who led the previous standalone patent licensing business, took over as chief of the merged entity in 2013.

It’s true that DSS may still have some products, but those are gradually going away as the company turns to serial litigation (“NPE” is a euphemism for patent troll). Earlier this year it filed lawsuits in the Eastern District of Texas.

Meanwhile, over at IP Kat there’s this new puff piece about IPOS, Singapore’s patent office.

UPC Threatens to Weaponise Software Patents in Countries That Forbade These

Posted in Europe, Patents at 1:38 am by Dr. Roy Schestowitz

Cannon

Summary: The reality of software patents in Europe and what a Unified Patent Court (UPC) would mean for these if it ever became a reality

“Having to inspect the patent database before writing a single line of code, that’s not what I call Happy Programmer’s Day,” Benjamin Henrion wrote the other day, adding that “it does not change much to the fact that the EPO and al [sic] still forces you to read their invention garbage.”

The EU rejects software patents, but the EPO flagrantly disobeys the rules, instructions, common sense etc.

Henrion took note of this new article from an EPO-friendly site, relaying the words of “Francisco Mingorance [who is] executive secretary of IP Europe, a lobby group representing European technology companies and research institutes.”

“Open standards and Francisco Mingorance do not go well in the same sentence,” Henrion wrote. “We now await a communication from the European Commission on FRAND licensing this autumn,” he added. FRAND is a euphemism for patent traps inside standards.

To say the least, Mingorance is an enemy of programming. He used to work for the Business Software Alliance (BSA), a pro-FRAND, anti-FOSS, pro-software patents lobby (and the whole bundle of Microsoft lobbying).

At the moment, the main concern we have is that Unitary Patent lobbying threatens to bring software patents to more countries, even countries which explicitly disallow software patents. We wrote many articles about that before.

There’s one particular comment in IP Kat which reinforces our views about the UPC. The comment is very long so its author was prevented from posting it (or rather having it published) — to the point of stating: “It would be nice to see comments appearing a little sooner on this thread. There is still a lot to discuss (including the points made in comments that I posted over 9 hours ago!).”

Here is the comment in full, posted in fragments as follows (with emphasis added):

OK, so my later comment from yesterday eventually appears, but not the earlier, more substantive one. I shall try again (in two parts).

Part 1:
Wow, not even a deliberate, glaring error in my first comment from yesterday can provoke a response! Either no one cares or no one is watching who has a thorough understanding of EU law.

As decided by the CJEU in C-274/11, “it must be concluded that the competences conferred by Article 118 TFEU fall within an area of shared competences for the purpose of Article 4(2) TFEU and are, in consequence, non-exclusive for the purpose of the first paragraph of Article 20(1) TEU”.

Thus, the hypothetical arguments based upon Article 118 TFEU and “traditional” EPs don’t work… meaning that more subtle arguments need to be deployed if incompatibilities between the UPCA and EU law are going to stand up.

OK, so my shorter comment makes it through quickly but my longer, more substantive comment still does not appear. I shall assume that the problem is length and not content and will therefore have another go, breaking down my comments even further.

[...]

For me, the major issue with the Unitary Patent Package has still got to be the (impermissible) retroactive application of new / different law to pre-existing cases. The fact that the UPC would (in theory) be free to apply the infringement law of the UPCA to “traditional” EPs in fact makes the effects of retroactivity a lot worse.

To illustrate, consider a pending EP that has the same claims for enough EU Member States to qualify (in theory) for unitary effect. Which law of infringement would you say will be applied (e.g. in the UK) to the claims of that EP, once granted? To me, it seems that there are, in fact, multiple choices.

(1) In this scenario, a request for unitary effect is filed after the patent is granted.

The law of infringement applied by the UPC (the only litigation forum for the “unitary” patent) will then be dictated by Articles 5 and 7 of the UP Regulation. For the sake of simplicity, we shall assume that the patent proprietor has no residence or place of business in the Participating Member States, meaning that the UPC will apply German national law for the purposes of determining infringement.

(2) In this scenario: unitary effect is not requested; no opt-out is filed; and the “traditional” EP patent (the UK validation, plus a handful of other validations) is litigated at the UPC.

Which law of infringement will the UPC apply to the “traditional” EP? Whilst this is a tricky question to answer, we can apply some common sense to work out the most likely result.

Firstly, the UPC will not be bound to apply the same national law as under scenario 1. This is because the UP regulation does not apply to “traditional” EPs.

Secondly, in all likelihood, the UPC will apply a single law… as otherwise there would be no benefit to using a supposedly “unified” court!

Thirdly, Article 24 UPCA provides a hierarchy of laws. With no overarching EU law to consider (as the UP Regulation is irrelevant to “traditional” EPs), the next stop for the UPC will be the UPCA itself (Article 24(1)(b) UPCA).

Thus, in all likelihood, the UPC will apply the infringement law of the UPCA (Articles 24 to 30 UPCA) to all validations of “traditional” EPs that are litigated in that forum.

(3) In this scenario: unitary effect is not requested; no opt-out is filed; and the UK validation of the “traditional” EP patent is litigated at the UK High Court.

Here the answer is simple. The UK High Court will apply UK national law for the purposes of determining infringement. There is simply no basis under UK law for the court to do anything else… not least because the provisions of the UPCA have not been incorporated into UK law (instead, a few “tweaks” have been made that only partially align UK law with the UPCA provisions on infringement).

(4) In this scenario: unitary effect is not requested; an opt-out is filed; and the UK validation of the “traditional” EP patent is litigated at the UK High Court.

Here, the same answer applies as under option 3, namely UK national law will be applied for the purposes of determining infringement.

So, for a single, pending EP, there are actually three possible choices of law of infringement (namely German national law, UPCA law or UK national law) that will be applied in respect of a single territory (the UK). More worryingly, the choice of law will be dictated by post-filing actions of the proprietor, ie whether or not unitary effect is requested, whether or not an opt-out is filed (and, if so, whether or not it is later withdrawn) and/or which litigation venue is selected (from the UPC or national courts).

Remember, national laws of infringement have not been fully harmonised with one another across the Participating Member States, nor have they been fully harmonised with the infringement provisions of the UPCA. Thus, it will make a difference to the outcome which law of infringement is selected.

So, the UPCA coming into force will bring the advent of what I like to call “Schrödinger’s patents”, which are pending EPs whose precise effect upon third parties cannot be fully pinned down until they are actually granted and litigated (at a specific forum). As will be evident from the above, until the proprietor has made final, irreversible choices with regard to all three of unitary effect, opt-out and litigation forum, uncertainties will remain as to the law of infringement that will be applied.

Bringing such “Schrödinger’s patents” to life seems to me to be irreconcilable with the principle of legal certainty, and no doubt countless other provisions and principles of EU law (especially fundamental principles relating to the rule of law). But why has this issue attracted so little attention?

It is about time that this changed, I would say. It would be horrible to “sleepwalk” into a nightmare scenario that might become impossible to wake up from.

We certainly hope that patent examiners understand why British software companies, for instance, dread the UPC and oppose it.

Some more EPO articles are on the way. The big series about Battistelli will start quite soon, culminating some time ahead of the quarterly meeting of the Administrative Council.

The Latest Lies About the Unitary Patent (UPC) and CIPO’s Participation in Those

Posted in Deception, Europe, Patents at 12:54 am by Dr. Roy Schestowitz

They got CETA, but they won’t get UPC

UPC truth

Summary: Team UPC continues to overplay its chances, conveniently ignoring simple facts as well as the Rule of Law

THE EPO is quiet. So is SUEPO, the staff union of the EPO, whose Web site has not been updated for a while. On the UPC front, however, spin continues. Left unchallenged, some people out there might even believe it. Team UPC extravagantly lies, exaggerates, and places too much emphasis on perceived positives. Everything else is discarded, ignored, or ridiculed.

As we noted earlier this week, there’s UPC propaganda coming to Canada pretty soon. We can’t help but wonder, why would anyone actually pay to be lied to by Team Battistelli about the UPC in Montreal (Canada)? Maybe to make contacts/connections? A few days ago CIPO wrote: “Only 2 days left to register to the #Montreal roadshow with @EPOorg on Unitary #Patent & Unified Patent Court!”

That’s just basically Battistelli’s right-hand liar. She’ll be spreading the usual lies there. They will have the audience believe that the UPC is coming very soon. Bristows is doing the same thing this week, with staff pretty much repeating themselves regarding Scotland (never mind the reality of Brexit).

IAM’s chief editor also did his thing earlier this week. The UK-based IAM is perfectly happy that the EPO’s declining patent quality (which IAM helps Battistelli deny) brings its beloved patent trolls to Europe. Joff Wild speaks of the UPC again, joined by the term “BigTech” with the usual whipping boy being “Google”. Here are some portions:

And that brings me to patents. As everyone in the IP market knows, over recent year Europe has emerged as a much more important part of the equation for patent owners seeking to assert their rights. For multiple reasons – including the perceived quality of EPO-granted assets, speed to get a decision, the relatively low cost of litigating, the expertise of courts and, crucially, the availability of injunctions – the worsening environment for rights holders in the US is driving more companies to try courts in Germany, the UK and other European jurisdictions. Should the Unified Patent Court ever become a reality that process is likely to accelerate.

[...]

Where that leaves lobbying efforts that seek to water down or eliminate the UPC injunction regime, for example, remains to be seen. My guess is that as long as BigTech identifiably campaigns as BigTech it is unlikely to get much traction. Instead, what it needs are examples of small European companies falling foul of abusive patent litigants – the kinds of stories that it has always been possible to dig out in the US. The problem is that in Europe these are tough to find – precisely because the system is not troll-friendly. Getting around that may be a challenge that even the expertise of Silicon Valley’s best paid public relations advisers and lobbyists will struggle to meet.

Again, notice the term “BigTech”. The patent trolls’ sites (or patent maximalists) are openly demonising technology companies, e.g. those that protect PTAB. It makes it abundantly clear that they, the patent radicals, are against technology. We shall revisit the subject later this week.

The matter of fact is, UPC is a failed project. Even some insiders are willing to admit it now. The Boards of Appeal (BoA) need to stay and regulate patent quality, just like PTAB does at the USPTO. After Battistelli sent BoA judges to exile (as punishment, or simply to warn them) the EPO has the nerve to talk as if everything is fine and dandy. Earlier this week it wrote: “Oral proceedings at the new Boards of Appeal site are planned to start on 9 October” (but without independence for judges).

With Jesper Kongstad leaving in just over a week (end of this month), it remains to be seen if BoA has a future. If the UPC fails, which seems increasingly likely, many hirings will be needed for BoA (not UPC). Can the new (actually old) building in Haar facilitate growth? The only new building is in Rijswijk and Dutch media wrote about it some days ago. If there is something interesting in this Dutch article, it would be worth knowing. We try to keep abreast of the facts ahead of the ‘grand’ opening.

For those who are wondering where the UPC stands, not much has changed since we last wrote about it. Yesterday IP Kat summarised it as follows: “It has been confirmed that the complainant who filed the constitutional complaint against the ratification of the UPC Agreement in Germany was the attorney Ingve Stjerna. Stjerna has long been a vocal critic of the Unified Patent Court, and the complaint reflects some of his earlier criticisms.”

Looking at some of the latest comments at IP Kat, people now debate whether the UPC is “an EU institution” (it most certainly is) and therefore the UPC (which explicitly requires “UK” amid Brexit) is dead by definition.

Here is a comment about that, relaying the question to the CJEU:

If it is not an EU institution, then I do not understand why in the the preamble of the UPCA the following is said:

RECALLING the primacy of Union law, which includes the TEU, the TFEU, the Charter of Fundamental Rights of the European Union, the general principles of Union law as
developed by the Court of Justice of the European Union, and in particular the right to an effective remedy before a tribunal and a fair and public hearing within a
reasonable time by an independent and impartial tribunal, the case law of the Court of Justice of the European Union and secondary Union law;

Furthermore Art 1 of the UPCA states: The Unified Patent Court shall be a court common to the Contracting Member States and thus subject to the same obligations under Union law as any national court of the Contracting Member States.

If I understand well, the TEU and TFEU should thus be clearly applicable. Or did I miss something?

Divisions of the UPC can bring forward prejudicial questions to the CJEU, but the the text governing the UPCA cannot be submitted to the CJEU. I fail to understand the logic behind such a position.

Could somebody explain.

They then went off on a CJEU tangent.

One person said about the UPC, “how can the provisions of that Agreement be used to “harmonise” patent law” (they can’t).

Here’s the comment in full:

It’s not that hard to understand, given the limits of the jurisdiction of the CJEU.

In essence, the CJEU can only review the legality of EU Treaties and the (legislative) acts of EU bodies. The UPCA is not an EU Treaty or legislative act, as it is instead an international agreement (that just so happens to be exclusively between EU Member States).

However, this is not to say that the CJEU will have no teeth when it comes to the effects of the UPCA. That is, pursuant to Article 258 or 259 TFEU, the CJEU will be able to assess whether the Member States that are party to the UPCA are fulfilling their obligations under the EU Treaties. Unfortunately for the public, however, such actions can only be commenced either by the Commission or another Member State.

This effectively means that a challenge by Spain (under Article 259 TFEU) might be the only hope of sorting out whether the actions of the UPC (or the Participating Member States) are compliant with EU law.

It remains to be seen which grounds could be raised by Spain under Article 259 TFEU. However, Article 118 (attributing the European Union with exclusivity regarding the creation of uniform IP rights) is an interesting possibility.

In C-146/13, the CJEU held that:
Notwithstanding the fact that the contested regulation contains no list of the acts against which an EPUE provides protection, that protection remains uniform in so far as, regardless of the precise extent of the substantive protection conferred by an EPUE by virtue of the national law which is applicable, under Article 7 of the contested regulation, that protection will apply, for that EPUE, in the territory of all the participating Member States in which that patent has unitary effect”.

In other words, the CJEU held that Art. 118 TFEU was not contravened because EU law (the UP Regulation) has been used to achieve (partial) harmonisation, through the designation of a single, national law.

However, this would appear to mean that failure of the UPC to apply a single, national law (as determined under Art. 7 of the UP Regulation) would therefore not only contravene the Member States’ obligations under the UP Regulation but also their obligations under Art. 118 TFEU.

This puts an interesting “spin” on the law of infringement to be used under the UPP, doesn’t it?

For a start, it would appear that the UPC would only be able to refer to the infringement provisions in the UPCA to the extent that those provisions are fully incorporated into the national law selected under Arts. 5(3) and 7 of the UP Regulation. This means that the UPC, as well as all patent attorneys, will need to become experts on the extent to which this is true in each of the relevant Member States… and also what the significance might be of seemingly contradictory / non-identical provisions in national laws.

On the other hand, it would also seem to force the UPC to issue judgements for “traditional” (not opted out) EPs on a country-by-country basis. This is because the UP Regulation does not contain any provisions on the law to be applied to “traditional” EPs… meaning that there is no basis under EU law for the law of infringement for those EPs to be “harmonised”. Also, attempts by the Member States to “go it alone” with harmonisation of the law with respect to such EPs may well contravene the provisions of Art. 118 TFEU.

To put it another way, as the UPCA is not part of EU law, how can the provisions of that Agreement be used to “harmonise” patent law (for UPs or not opted out EPs) within the EU without infringing Art. 118 TFEU?

Spain was then brought up too. “Spain could think about a further challenge the legality of Regulation 1257/2012,” said the following comment.

Alternatively, Spain could think about a further challenge the legality of Regulation 1257/2012.

As previously mentioned, the impermissible, retroactive effect of Article 5(3) might be one ground for such a challenge. This is because that Article applies new / different laws (of infringement) to pre-existing patents and patent applications, as well as to acts committed prior to entry into force of the UPP. That hardly seems compliant with the principle of legitimate expectations!

Another, very interesting possibility might be alleged contravention of Article 18 TFEU (“any discrimination on grounds of nationality shall be prohibited”) by Article 5(3) of the UP Regulation.

Understanding this ground requires a little thought.

Firstly, Art. 5(3) states that the applicable law of infringement is determined by Art. 7. Secondly, the primary factor to be considered under Art. 7(1)(a) is residence / place of business. For many individual and corporate applicants, their residence / place of business will be the same as (ie equivalent to, or a surrogate for) their nationality.

Thus, the UP Regulation requires the selection of a single, national law based upon a criterion that, for many applicants, will be a surrogate for their nationality.

The final step is to realise that the national laws of infringement are not harmonised. Thus, inventors / applicants that have identical claims, but that have different nationalities, would have different laws of infringement applied to those claims (and hence potentially different results from litigation).

It really is hard to understand how this could possibly be compliant with Article 18 TFEU!

The next comment said:

If it is an EU institution why would it need its own dedicated Protocol on Privileges and Immunities ?
Surely it would be covered by the EU PPI ?

Regarding the situation in Germany and the CJEU, one person said that “here we are back to the other complaints before the German Constitutional Court.”

We are ahead of interesting times, and it might be possible that the CJEU considers the UPCA not in accordance with EU law. In view of the sometimes political nature of the CJEU’s decisions, I doubt that it would blow up the whole system, but it could severely harm it.

In the same vein, there is a further question which could be tricky as well. If an opposition is launched against a UP, can the opposition division be composed of nationals of non EU member states?

This becomes particularly critical if the EP has only been validated as a UP.

One could consider that since the EPO regains competence by virtue of an opposition, then the composition of the OD is irrelevant.

On the other hand, one could also consider that having become, at least in some member states of the EPC which are also members of the UPC, an asset according to EU law, its fate can only be decided by nationals of member states of the EU.

If the patent is revoked, then there is no revision possible. And here we are back to the other complaints before the German Constitutional Court.

This question was raised at the latest conference on the UPC in July in Munich, and has up to now not received a reply.

More on CJEU:

“the sometimes political nature of the CJEU decisions”? Are you suggesting that the CJEU might not demonstrate complete independence from the executives of the Member States and/or the executive arms of the EU?

If there is a (perception of) lack of independence, then perhaps it is high time that someone took a close look at the conditions of appointment of the judges of the CJEU, in order to see how well the CJEU fares regarding internationally recognised “best practice” for achieving judicial independence. ;-)

Speaking of “political decisions,” the next comment talked about Spain again:

I do not want to claim that all decisions of the CJEU are more of political than strictly judicial nature. It is a minority of decisions, but the manner in which the CJEU has dismissed the second complaint of Spain against the UPC is an example to me of more political decisions.

Any reason not to consider Spain’s complaint were good to dismiss the claims. Some of the questions were however quite specific.

In decisions on the correct application of directives it is certainly not politic. Plenty of those have been published and commented on this blog.

The bottom line is, for those lacking the time or background to read all the above, there are multiple aspects and levels that act as barriers to UPC, ranging from central to pertinent (e.g. Spain, UK, Germany and even Poland). Don’t be misled by EPO staff whose job is to lie about the UPC. No doubt the Canadian press (and maybe European press as well) will soon publish some lies about the UPC. The EPO has a sick habit of paying the media for puff pieces, including patently untrue statements.

09.20.17

The Patents Policy of Facebook is Causing an Exodus

Posted in Free/Libre Software, Patents at 11:40 pm by Dr. Roy Schestowitz

“They “trust me”. Dumb fucks”

Mark Zuckerberg, President and Founder of Facebook (source)

Summary: Yet another major player walks away from Facebook’s code because of software patents

THE history of Facebook when it comes to patents is anything but relieving.

Facebook’s dirty patent games have in fact just driven away another company. We didn’t write much about this controversy until recently (relegated to our daily links), but now that the cautionary tale grows wings we decided it’s worth a mention. Last night there was another new example of this, with Gitlab being the latest to walk away. As The Register put it:

Using GraphQL, an increasingly popular query language for grabbing data, may someday infringe upon pending Facebook patents, making the technology inherently problematic for corporate usage.

In an analysis posted to Medium and in a related discussion in the GraphQL repo on GitHub, attorney and developer Dennis Walsh observed that Facebook’s GraphQL specification doesn’t include a patent license. In other words: using GraphQL in your software may lead to your code infringing a Facebook-held patent on the technology in future.

“The patents (as of a few weeks ago) were granted but not issued,” said Walsh in an email to The Register today. ”Damages can start before issuance but litigation cannot. But post-issuance, the threat is very real. My reading of two GraphQL granted applications and the GraphQL spec is that any properly implemented GraphQL server infringes.”

What’s pleasing to see here is that fairly large companies, not just individual developers, are willing to throw away code because of patent clauses. Spectators should take that for a sign that software patents have no room in software development. There’s a price to be paid for clinging onto them.

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