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02.19.17

The EPO is Becoming an Embarrassment to Europe and a Growing Threat to the European Union

Posted in Europe, Patents at 5:32 am by Dr. Roy Schestowitz

Who needs parties like UKIP and National Front (France) when people like Battistelli do so much more to discredit the Union?

Juncker
By Factio popularis Europaea, CC BY 2.0

Summary: The increasingly pathetic moves by Battistelli and the ever-declining image/status of the EPO (only 0% of polled stakeholders approve Battistelli's management) is causing damage to the reputation of the European Union, even if the EPO is not a European Union organ but an international one

SO FAR in 2017 the EPO has attempted to keep a relatively low profile. The main PR attempt was this nonsense about Cambodia — a country with zero European patents. The Singapore-based (read: patent trolls’ new heaven) Mirandah Asia repeats the PR, essentially regurgitating EPO talking points. Gladys Mirandah and Ang Chuan Heng try to make it appear like some sort of EPO ‘victory’, perhaps not quite grasping how pathetic it looks. Even EPO insiders have begun making fun of it, for it immortalises what has become of the EPO under Battistelli. Today’s EPO is widely regarded as a laughing stock, so dysfunctional and abusive in fact that it has become a textbook example of international bodies gone rogue. Union officials have already been informed, but there is not much that they can do as they lack authority over the EPO, which also enjoys immunity.

“Today’s EPO is widely regarded as a laughing stock, so dysfunctional and abusive in fact that it has become a textbook example of international bodies gone rogue.”The other day SUEPO took note of the good reporting by McCarthy from The Register. He wrote about some of the latest debacles:

The president of the European Patent Office, Benoit Battistelli, is ignoring yet another formal rebuke of his policies by disregarding two decisions by the International Labour Organization.

In letters going back and forth between EPO management and the organization’s main staff union, SUEPO, representatives are refusing to take part in a “voluntary” drawing of lots to decide on new members for the EPO’s appeals committee.

[...]

In response, the regional Bavarian government – which oversees Munich, where the EPO is headquartered – is due to consider a lengthy sanction of Battistelli that argues he had been behind a “whole range of major intrusions into essential fundamental rights of the employee” and calls on the state government to “take action accordingly.”

It is unclear what action the German government can take against Battistelli. Even though several governments have formally broken with protocol to publicly condemn the EPO president and his actions, due to the unusual make-up of the EPO, only the full Administrative Council of over 30 European countries can actually fire him before his term is up.

“All I can say is that he must have some real dirt on someone, somewhere to have kept his job this long,” one person wrote.

Another person said: “The host country may not be able to do anything directly, but as with anyone under diplomatic immunity they could say that he is no longer welcome, and ask him to leave. But unlikely to happen.”

The Administrative Council’s complicity was brought up as follows: “Here’s the list of members of the administrative council. Perhaps they need to explain why they’re not doing their job ?”

Some people believe that Battistelli controls people by blackmail, but the explanation might actually be simpler.

One person said: “It’s not surprising and not uncommon, someone running ‘something’ and elected or not, thinking himself more important than the importance of what they are running, like the security guard at the gate who acts like he owns the place, typical/despicable human nature.”

That perfectly describes what happened at the EPO, which the following comment describes as a “European organization” even though non-European nations are part of it:

It’s not the first time that some European organization has got into this sort of mess, with a power-hungry type who’s hard to be sacked creating a little empire. The need for every government to agree to sack him seems typical of these groups, no-one trusts the others to do the right thing so they insist on full agreement of all 30-odd people before any major decision gets taken. Inevitable result: no major decisions ever get taken (well, except for salary increases & expenses payments, of course). Meanwhile, of course, we (the taxpayers) continue to finance this fiasco.

Come the revolution that wall is going to be very crowded…

It’s common to see the EPO exploited by anti-EU elements, so then came an old reminder to readers (happens in almost every comments thread):

Just to clarify – it’s not actually a European organisation. Its an international organisation based in Munich, the Hague and (a little bit) Berlin. It is not funded by the EU at all, but instead by fees levied for patent searches and examination.

And you, the tax payer, should educate yourself a little more about what you actually vote to reject.

But the above wasn’t intended to be EU bashing, as the reply made apparent:

I very carefully didn’t mention the EU at all, because I am well aware that it isn’t an EU organisation. It is, however, a European one (the clue is in the name: European Patent Organisation) and while it may be funded by the patent applications, the Administrative Council that oversees it, and about which I was commenting, is made up of “representatives of the contracting states” who are most assuredly financed by their respective taxpayers.

And it’s not about Brexit at all, as the latter part states:

And you, the Anonymous Coward, should perhaps remove the Brexit chip from your shoulder long enough to actually read the post you reply to.

Paradoxically, Brexit was very damaging to the EPO’s UPC ambitions and the EPO’s own behaviour contributed to the perception — at least in the UK — that the EU was out of order. In a sense, bad EPO behaviour led to the demise of the very initiative it was trying to bring across the Channel.

A View From Australia

Speaking of the EU, Madeleine Kelly (FB Rice), an Australian hoping that the “European Union” [sic] (EPO is not an EU thing) clarifies patent scope, wrote: “Common sense has prevailed, much to the relief of patentees and practitioners alike, and this new and much more liberal test for partial priority should mean the end for poisonous priority and poisonous divisionals, at least in Europe. Whether or not the Australian courts will follow suit remains to be seen.”

The above is a contribution from the Boards, not Battistelli’s Office. Patent scope in Europe has gone all wrong and even software patents are habitually being granted now.

Australian software patents were covered here before. They are still the subject of active debate and the Productivity Commission advises strongly against them. Australian patent attorney Bradley Postma was a featured item a few days ago and another Australian patent attorney, Mark Summerfield, bemoans the difficulty patenting business methods these days (he last wrote about it some days ago, having ranted about it for a while). It looks like sooner or later even IP Australia will look better than the EPO, which now overcharges for low-quality work.

Patent Misconceptions Promoted by the Patent Meta-Industry

Posted in Deception, Patents at 4:53 am by Dr. Roy Schestowitz

To a carpenter, for example, every problem looks a nail

Law of the instrument
Reference: Law of the instrument

Summary: Cherry-picking one’s way into the perception of patent eligibility for software and the misguided belief that without patents there will be no innovation

CHERRY-PICKING is somewhat of an art form in legal blogs. They so often altogether ignore cases/decisions that don’t bolster the narrative which they promote and simply act as a megaphone when the exceptions occur.

Such was the case with this CAFC decision — one of those truly unusual cases (happened about 20% of the time last year) where PTAB is sort of ‘vetoed’ (overruled) by CAFC. This was reported on by Patently-O the other day and now there’s more, including from MIP:

A Patent Trial and Appeal Board finding of unpatentability for obviousness based on two prior-art references in Personal Web Technologies v Apple has been remanded because “the Board did not adequately support its findings”

This is about software patents and we wrote about that some days ago, around the same time we highlighted Mintz Levin's bad/misleading advice. People from this firm are still spreading their misinformation, e.g. in another domain or with slight variations in the same domain. They want to make is appear as though software patents are alive and well because of a few, cherry-picked decisions. They just want more business from poorly informed clients whose patents would turn out to be worse than worthless (costly if litigation is even attempted).

Another site, Banana IP (more like banana republic), offers tips for workarounds where software patents are simply disallowed (as a matter of law).

Patents: Understanding Software Inventions in India and US

[...]

The Indian patent law does not provide a proper definition of the term ‘software’ or ‘computer program’. But, under the section 2 of the Copyright Act, 1957 a computer program is defined as “a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result”. Section 3 of the Indian Patent Act, 1970 summarizes about the inventions that are not patentable. In particular, Section 3(k) of the Patents Act excludes mathematical methods, business methods, computer program per se and algorithms from the patentable subject matter. According to the Computer Related Inventions (CRI) guidelines issued by the Office of the Controller General of Patents, Designs and Trademarks on 19th February, 2016, the computer program in itself is never patentable. The Examiners are advised to deny the claims if the contribution lies only in mathematical method, business method or algorithm. However, software can be patented in India if the software is in conjunction with a new hardware. In other words, the software must be in relation to a specific hardware (a device or apparatus) and the claims will include the device or apparatus used in conjunction with the software. Inventions that are combined with hardware and software features that are inventive, novel and hold industrial applicability are patentable.

Misconceptions around potency of software patents would do a disservice to everyone, including their proponents. What it all boils down to is a lie by omission, much like the lie just published in this article, disseminated under numerous headlines including “America’s always had black inventors – even when the patent system explicitly excluded them”.

This is a decent article (not much like the propaganda one finds in lawyers’ sites who market their services) as it clarifies that inventorship does not require patents. In software we count lines and quality of code rather than assess something silly such as patents. People can invent with or without expensive papers to ‘prove’ merit. From the article:

One group of prolific innovators, however, has been largely ignored by history: black inventors born or forced into American slavery. Though U.S. patent law was created with color-blind language to foster innovation, the patent system consistently excluded these inventors from recognition.

As a law professor and a licensed patent attorney, I understand both the importance of protecting inventions and the negative impact of being unable to use the law to do so. But despite patents being largely out of reach to them throughout early U.S. history, both slaves and free African-Americans did invent and innovate.

We are often being told by the patent microcosm that patents are necessary for innovation or are a measure (or surrogate) of innovation. Basing one’s worldview on such a belief leads to claims that rich nations like Switzerland innovate the most rather than rich nations being able to patent (expensive) the most — a subject which we tackled here last year.

02.18.17

As the United States Shuts Its Door on Low-Quality Patents the Patent Trolls Move to Asia

Posted in America, Asia, Patents at 6:42 pm by Dr. Roy Schestowitz

SIPO, China (Sina), Singapore and the failure to learn the West’s tough lessons

IAM on Intellectual Ventures

Summary: Disintegration of Intellectual Ventures (further shrinkage after losing software patents at CAFC), China’s massive patent bubble, and Singapore’s implicit invitation/facilitation of patent trolls (bubble economy)

IAM ‘magazine’, the unofficial voice of patent trolls, seems happy with the migration (or outsourcing) of troll activity to east Asia. That’s why IAM writes so much about Asia these days (as does MIP), except when it grooms the world's biggest troll and Microsoft’s vast patent troll, Intellectual Ventures, which now continues its slow death based on IAM’s latest blog (filled with promotional language). After patents were ‘imported’ from Kodak they apparently move back to east Asia:

Intellectual Ventures has sold a portfolio of around 4,000 former Kodak patents to Dominion Harbor in another sign that the IP giant is actively slimming down its vast portfolio.

This is the fourth deal that IV has done with Dominion, including one in November last year which saw around 50 assets change hands. The firm also sold patents to Equitable IP, the monetisation business led by former ICAP Patent Brokerage CEO Dean Becker, as it has upped its rate of disposals. This blog also reported last year on the disposal of assets to a company called China Star Optoelectronics Technology (CSOT) by what appeared to be an IV vehicle. But none of those deals approach the size of the Kodak transaction with Dominion.

This kind of shift or passage of patents to China was frequently seen in previous years when large Chinese companies bought patents by the thousands. These were bought from the West, where post-AIA patent values diminished. We gave numerous examples of that and last year, naming — amongst others — Singapore, which reportedly doubles down on patent trolling (after Creative had made it (in)famous in 2016, by trolling very major companies in Singapore [1, 2]). This is what IAM wrote with highly sanitised language (e.g. trolling described as “IP value creation” by “patent monetisation entities”):

A new Singapore government report recommends “bringing in” or creating patent monetisation entities, as well as other kinds of other intermediary, to boost the country’s IP commercialisation capabilities.

Published earlier this week, the report comes from the Committee on the Future Economy (CFE), which was established in January 2016 to review Singapore’s longer term economic strategy. Among seven broad strategy recommendations made one to “strengthen enterprise capabilities to innovate and scale up”, with IP value creation a central pillar.

East Asian patent systems not only lowered their patent bar (China’s in particular) but also fostered a lot of litigation — a grave mistake which brings rise to trolls. The trend is noteworthy because some of these Chinese lawsuits are nowadays being filed by Chinese companies in the US and the EU. These chickens will come home and abroad to roost.

02.17.17

Links 17/2/2017: Wine 2.2, New Ubuntu LTS

Posted in News Roundup at 6:37 pm by Dr. Roy Schestowitz

GNOME bluefish

Contents

GNU/Linux

Free Software/Open Source

Leftovers

  • Science

    • US scientists fear America under Donald Trump will become like a totalitarian regime

      Scientists fear the United States under Donald Trump could become like the Soviet Union, in which the prevailing political ideology was so powerful that science was unable to contradict it with hard evidence.

      Speaking at the beginning of the American Association for the Advancement of Science’s annual meeting in Boston, its president, Professor Barbara Schaal, and chief executive, Dr Rush Holt, both expressed concern about the use of the phrase “alternative facts” by Trump administration officials.

      Professor Schaal also criticised the proposed hardline immigration ban on seven majority-Muslim countries, saying it would damage vital collaboration between scientists.

      She said people should protest if Mr Trump, who has described global warming as a hoax and appointed a string of sceptics to key positions in his cabinet, cut government climate science projects.

  • Security

    • OpenSSL project releases patch to fix critical bug
    • Microsoft’s monthlong patch delay could pose risks [Ed: Microsoft is in no hurry because there are back doors it knows about but keeps secret anyway]

      Microsoft has decided to bundle its February patches together with those scheduled for March, a move that at least some security experts disagree with.

      “I was surprised to learn that Microsoft wants to postpone by a full month,” said Carsten Eiram, the chief research officer at vulnerability intelligence firm Risk Based Security, via email. “Even without knowing all the details, I find such a decision very hard to justify. They are aware of vulnerabilities in their products and have developed fixes; those should always be made available to customers in a timely fashion.”

      Microsoft took everyone by surprise on Tuesday when it announced that this month’s patches had to be delayed because of a “last minute issue” that could have had an impact on customers. The company did not initially specify for how long the patches will be postponed, which likely threw a wre

    • Zero-day flaw around, but Microsoft updates delayed by a month
    • Microsoft misses regular security fix date

      Microsoft has delayed the release of a security update that would have fixed a vulnerability cyber thieves are known to be exploiting.

      The fix was to be released as part of Microsoft’s regular monthly security update for its Windows software.

    • How Google reinvented security and eliminated the need for firewalls

      In some ways, Google is like every other large enterprise. It had the typical defensive security posture based on the concept that the enterprise is your castle and security involves building moats and walls to protect the perimeter.

      Over time, however, that perimeter developed holes as Google’s increasingly mobile workforce, scattered around the world, demanded access to the network. And employees complained about having to go through a sometimes slow, unreliable VPN. On top of that, Google, like everyone else, was moving to the cloud, which was also outside of the castle.

    • No Firewalls, No Problem for Google

      On Tuesday at RSA Conference, Google shared the seven-year journey of its internal BeyondCorp rollout where it affirms trust based on what it knows about its users and devices connecting to its networks. And all of this is done at the expense—or lack thereof—of firewalls and traditional network security gear.

    • Android Phone Hacks Could Unlock Millions of Cars
  • Transparency/Investigative Reporting

    • United States asked Canada to help spy on candidates during 2012 French election: WikiLeaks

      Central Intelligence Agency documents released by WikiLeaks Thursday list Canada as one of several countries asked to assist the United States while they spied on the 2012 French presidential election.

      The three CIA tasking orders request that current French president Francois Hollande, then president Nicolas Sarkozy and current first round presidential front runner Marine Le Pen all be closely monitored.

      CIA officers were asked to uncover the secret strategies of the candidates, as well as information on internal power dynamics within the parties. Canada is listed as one of five countries working on human intelligence parts of the operation however there are no specifics on which parts of the operation, if any, Canada was involved in.

  • Environment/Energy/Wildlife/Nature

    • Trump signs bill undoing Obama coal mining rule

      President Trump on Thursday signed legislation ending a key Obama administration coal mining rule.

      The bill quashes the Office of Surface Mining’s Stream Protection Rule, a regulation to protect waterways from coal mining waste that officials finalized in December.

      The legislation is the second Trump has signed into law ending an Obama-era environmental regulation. On Tuesday, he signed a Congressional Review Act (CRA) resolution undoing a financial disclosure requirement for energy companies.

      Both the mining and financial disclosure bills are the tip of a GOP push to undo a slate of regulations instituted in the closing days of the Obama administration. The House has passed several CRA resolutions, and the Senate has so far sent three of them to President Trump for his signature.

  • Finance

    • Nearly 80,000 working-age men have disappeared from the labour force

      The EVA study says that there are over 50,000 men who should be in their best working years (25–54) who do not have jobs and who are not actively seeking jobs. This does not include men who are studying or who are on disability pensions.

      The authors of the labour market analysis refer to this group as “the lost workmen”. In statistics, they fall under the category of “others not in the workforce”.

      In addition, there are over 28,000 unemployed men in the same age group who are looking for jobs, but are unlikely to ever return to the workforce.

      Even while unemployment levels decline, the numbers of lost workmen have grown steadily over the past few years.

  • AstroTurf/Lobbying/Politics

    • Greenwald: Empowering the “Deep State” to Undermine Trump is Prescription for Destroying Democracy

      Some supporters of Trump, including Breitbart News, have accused the intelligence agencies of attempting to wage a deep state coup against the president. Meanwhile, some critics of Trump are openly embracing such activity. Bill Kristol, the prominent Republican analyst who founded The Weekly Standard, wrote on Twitter, “Obviously strongly prefer normal democratic and constitutional politics. But if it comes to it, prefer the deep state to the Trump state.” We talk about the deep state with Pulitzer Prize-winning journalist Glenn Greenwald, co-founder of The Intercept.

    • Britain starting to reassess US as an ally, Scottish Tory leader says

      Britain is beginning to reassess how reliable an ally the US is, the Scottish Conservative party leader, Ruth Davidson, has said, in comments that contrast starkly with the official policy of the UK government.

      During an interview at the Women in the World summit in Washington, Davidson said: “At the moment, from the UK, we have always seen America as being a very strong, a reliable ally, and now, even after only 26 days or however long [Donald Trump’s] tenure has been so far in Pennsylvania Avenue, we are beginning to reassess how reliable an ally the United States is.

    • Deutsche Bank examined Donald Trump’s account for Russia links

      The scandal-hit bank that loaned hundreds of millions of dollars to Donald Trump has conducted a close internal examination of the US president’s personal account to gauge whether there are any suspicious connections to Russia, the Guardian has learned.

      Deutsche Bank, which is under investigation by the US Department of Justice and is facing intense regulatory scrutiny, was looking for evidence of whether recent loans to Trump, which were struck in highly unusual circumstances, may have been underpinned by financial guarantees from Moscow.

    • More mainstream media mess-ups: The Muslim Olympian ‘detained because of President Trump’s travel ban’ was detained under Obama

      Reporters have done it again.

      The latest media misfire on the Trump administration involves Ibtihaj Muhammad, a New Jersey native who made headlines last year when she became the first female Muslim-American to win an Olympic medal for the United States.

      Muhammad, a lifelong American citizen, claimed in an interview last week that she was detained “just a few weeks ago” by U.S. Customs and Border Protection agents. She said she was held for two hours without explanation.

      Her remarks on Feb. 7 earned her an entire news cycle, as several journalists ran with reports suggesting, and alleging outright, that the American Olympian had been ensnared in the president’s executive order temporarily barring immigration from seven Middle Eastern countries.

    • (Jakarta vote) Civil servant insists non-Muslims must not lead Muslims

      Hadiyul Umam, 40, a civil servant, said voting for incumbent Jakarta governor Basuki “Ahok” Tjahaja Purnama, a minority Christian and ethnic Chinese, would go against everything he believes in.
      “As a Muslim, I believe that non-Muslims are not allowed to lead Muslims in this country, and personally, I do not like the way Ahok leads, which is not pro-poor people and his words were disrespectful and rude,” he said.
      Ahok’s blasphemy trial and the ease with which hard-liners attracted several hundred thousand to protest against him in Jakarta have undermined Indonesia’s reputation for practicing a moderate form of Islam and shaken the centrist government of President Joko “Jokowi” Widodo.

    • Muslim convert carried axe to meeting with father over “religious differences”

      A Muslim convert was found carrying an axe through the streets to confront his Christian father over “religious differences”, a court heard.

      Newcastle Crown Court heard Clayton McKenna was taking the weapon – which he got from his mother’s shed – through Boldon Colliery in the early hours of the morning, to his father’s
      home in South Tyneside on July 18.

      The 22-year-old gave a series of “confused and contradictory” explanations when he was stopped by the police, including saying he was on his way to his father’s “to ask him to bow down to me” – a statement he now rejects.

    • 8 Iranian Girls Dressed Up As Men To Attend A Football Game, Got Caught And Were Thrown Out

      Eight Iranian girls who disguised themselves as boys to attend a football match despite an official ban were prevented from entering the stadium, an official was quoted as saying today.

      Iran argues that its ban on women attending football matches in the same stadiums as men is necessary to protect them from lewd language that might emanate from the terraces.

      “Eight girls dressed up as men to try to enter the Azadi stadium” in southwest Tehran on Sunday, the Tasnim news agency said.

    • Stoke Central’s Muslim voters warned they will go to hell if they do not vote Labour in anti-Ukip text
    • Ilford father Faisal Bashir who claims he was forced to move house after renouncing Islam is calling for more action on hate crime

      A MAN who claims he was forced to move house after renouncing his faith wants authorities to crack down on hate crime

      Fasial Bashir, of Mayville Road, Ilford decided to stop practicing Islam in the summer of 2014 over claims the religion was too “hateful” and “sending out the wrong message”.

      But when the 43-year-old stopped going to mosques in Ilford he claims he started getting harassment on a weekly basis.

    • Martial arts academy posts how-to video for defending against Trump handshake

      “Now I’m not suggesting you do this to the president,” he added, then demonstrating the “goose neck” wrist lock he says will defend against the hand shake.

      “As he grabs really hard and pulls you in, I go with it. I step in with the outside foot, I wrap around the elbow. As I do that, I’m going to block his arm from here, I bend the wrist in, the other hand wraps over the top of the knuckles and boom — now you have what we call a goose neck.”

    • United States asked Canada to help spy on candidates during 2012 French election: WikiLeaks

      Central Intelligence Agency documents released by WikiLeaks Thursday list Canada as one of several countries asked to assist the United States while they spied on the 2012 French presidential election.

      The three CIA tasking orders request that current French president Francois Hollande, then president Nicolas Sarkozy and current first round presidential front runner Marine Le Pen all be closely monitored.

      CIA officers were asked to uncover the secret strategies of the candidates, as well as information on internal power dynamics within the parties. Canada is listed as one of five countries working on human intelligence parts of the operation however there are no specifics on which parts of the operation, if any, Canada was involved in.

    • A Brief History of Hope (and How Trump Won)

      I haven’t run across anyone who voted for Trump who said “Well, that’s that, time to sit back and watch things get fixed.” A lot of these people voted for Obama, at least in 2008, and not because he was going to be America’s First Black President but because they really believed in his promise of Hope. The Bush years had worn out. We stayed scared enough, but then no post-9/11 attack came, the wars dragged on, and most of the stuff that was supposed to make us feel safe just ended up somewhere between inconvenient and bullying.

      People have no sense of being in control of their lives. They know they have a lot less money than they used to, they don’t see their kids doing better, but they see on TV that some few seem to have most of everything. They can figure if they have less and someone else has more where that more came from.

  • Censorship/Free Speech

  • Privacy/Surveillance

    • NSA Split From Cyberwar Command Inevitable, Says Former Official
    • Security Lessons From Snowden
    • U.S. Spies vs. our Constitutional government
    • Obama admin expanded NSA’s wiretap power just before leaving office, and it’s raising a lot of eyebrows
    • China’s “citizen scores” used to blacklist 6.7m people from using high-speed rail or flying

      China’s nightmarish “citizen scores” system uses your online activity, purchases, messages, and social graph to rate your creditworthiness and entitlement to services. One way your score can be plunged into negative territory is for a judge to declare you to be a bad person (mostly this happens to people said to have refused to pay their debts, but it’s also used to punish people who lie to courts, hide their assets, and commit other offenses).

      More than 6.7 million people in China have been placed on a blacklist created in this manner. Once you’re on the blacklist, you are not allowed to buy high-speed rail tickets or plane tickets — and other people can see your ratings, and face social pressure to exclude you (their own scores are based in part on whether they associate with low-scoring individuals).

    • Italy Proposes Astonishingly Sensible Rules To Regulate Government Hacking Using Trojans

      As Techdirt has just reported, even though encryption is becoming more widespread, it’s not still not much of a problem for law enforcement agencies, despite some claims to the contrary. However, governments around the world are certainly not sitting back waiting for it to become an issue before acting. Many have already put in place legal frameworks that allow them to obtain information even when encryption is used, predominantly by hacking into a suspect’s computer or mobile phone. In the US, this has been achieved with controversial changes to Rule 41; in the UK, the Snooper’s Charter gives the government there almost unlimited powers to conduct what it coyly calls “equipment interference.”

      [...]

      It’s a remarkable list of technical and operational requirements that are surely unique in their attempt to minimize the key dangers of implanting clandestine surveillance software. Of course, it would be better if the use of government malware were avoided completely, and other methods were adopted. But realistically, the police and intelligence agencies around the world will be pushing hard for legislation to allow them to infect people’s computers and mobiles in this way, not least if encryption does become more of a problem.

    • Court: Unsupported Assertions And Broad Language Aren’t Enough To Support Cell Phone Searches

      Another court has stepped up to inform law enforcement that just because criminals are known to use cell phones doesn’t mean any cell phone possessed by a suspect is fair game — warrant or no warrant.

      This time it’s the Superior Court of Delaware making the point. In its suppression of evidence found on a seized cell phone, the Superior Court makes it clear that cell phones are used by everyone — not just criminals. Not only that, but if an officer is going to seek a warrant that effectively allows them access to the owner’s entire life, the warrant needs to contain more specifics and limitations than this one did.

      During a consensual search of an apartment where a homicide suspect (Qualeel Westcott) was staying, police came across heroin and three mobile phones. All three of the phones were seized. A warrant was obtained to search the content of the phones. But a warrant alone isn’t good enough. While a warrant is better than nothing at all, the warrant here — according to the court — barely exceeded “nothing at all.”

    • Check your privacy filters: Facebook could be the new LinkedIn
    • Did Facebook steal the design for its data center in Sweden?

      The suit was brought by British engineering firm BladeRoom Group (BRG), which in 2015 alleged “BRG spent years developing and refining the prefabricated, modular design and the transportation and construction techniques that Facebook blithely passed off to the world in 2014,” the company said in its federal lawsuit. The company said that Facebook “simply stole the BRG Methodology and passed it off as its own.” BladeRoom notes that Facebook shared some of the ideas for the Swedish data center on the Open Compute Project blog and did not “make any attempt to attribute or credit BRG for any of the elements of the innovative new approach” that Facebook “claimed” it had developed.

    • Man Who Used Facebook Live To Stream Birth Of Child Loses Bid To Sue All The News For Copyright Infringement

      The saga of Facebook Live marches on, I suppose. The social media giant’s bid to get everyone to live-stream content that mostly appears to be wholly uninteresting has nevertheless produced some interesting legal stories as a result. The latest of these is the conclusion of a string of lawsuits filed by a man who used Facebook Live to stream the birth of his child over copyright infringement against many, many news organizations that thought his act was newsworthy.

      It was in May of 2016 that Kali Kanongataa accidentally publcly streamed his wife birthing the couple’s son. He had intended for the stream to only be viewable to friends and family, but had instead made the stream viewable by pretty much everyone. Even after realizing he’d done so, Kanongataa kept the stream public, leading over 100,000 people to view the video — including some folks in several news organizations, who used snippets of the stream in news stories about the couple’s decision to stream this most intimate of moments.

    • Dad who live-streamed his son’s birth on Facebook loses in court

      A father who live-streamed his son’s birth on Facebook and proceeded to sue for copyright infringement several media outlets that used the clips has lost his case.

      US District Judge Lewis Kaplan ruled yesterday that the lawsuit filed by Kali Kanongataa must be thrown out, after the American Broadcasting Company and other defendants filed motions arguing that their use of the clips was covered by “fair use.”

  • Civil Rights/Policing

    • Nation’s Police Chiefs Disagree With Trump’s New Tough On Crime Executive Orders

      President Trump’s three new law-and-order Executive Orders are designed to combat a largely-nonexistent crime wave and increase protections for one of the most-heavily protected groups in America: law enforcement officers. The orders also mixed crime prevention and national security into a single bowl, making criminal activity inseparable from threats to the nation — especially if foreigners are involved. In addition to his travel ban and his Two Minutes Hate reporting system, Trump also singled out illegal immigrants in these “law and order” orders, implying that they were to blame for much of the perceived crime problem.

    • Freshman Representative Serves Up Immigration Bill That Would Make The DHS Do Things It Already Does

      While CBP and DHS have been asking incoming foreigners for social media info for a while now, the process has been voluntary — or at least as voluntary as any process can be when one side holds all the power. New DHS Secretary John Kelly suggested this would expand further in the near future, moving from requests for social media handles to demands for account passwords.

  • Internet Policy/Net Neutrality

    • Net Neutrality Is in Danger. Tell the FCC Why We Need It

      Net neutrality is in grave danger. Back in 2015, advocates for the open Internet won a hard-fought battle to preserve net neutrality, the principle that all Internet traffic is treated equally and that providers cannot charge content providers for “fast lanes” for those who can afford it. Net neutrality is key to the work of activists and independent media outlets (like The Nation!), allowing them to reach people across the country without being drowned out by corporate media companies with big pockets.

    • T-Mobile Not So Subtly Hints That It Wants To Disrupt The Cable TV Industry

      While T-Mobile isn’t without its faults (like its opposition to net neutrality, or the time its CEO mocked the EFF), there’s little doubt that T-Mobile has been a good thing for the wireless industry. The company has managed to drag the industry kicking and screaming in an overall positive direction, including the elimination of the carrier-subsidized handset model, the elimination of annoying hidden fees, and the recent return to more popular unlimited data options. And its brash CEO John Legere, while sometimes teetering into absurd caricature, has at least managed to bring a sense of industry to a traditionally droll telecom sector.

  • Intellectual Monopolies

    • Trademarks

      • Pro-Marijuana Student Organization Wins Court Case Over Using School Logos

        We’ve seen stories in the past in which higher educational institutions attempt to slap down students’ use of school iconography when it comes to advocating for marijuana legalization. Trademark law is the preferred bludgeoning tool in many of these cases, regardless of whether or not the uses in question actually pass the muster on the tests for Fair Use. Still, at least in most of these cases the schools are at least quick to act and staunch in their attempts to silence a completely valid political position by the student body.

        That’s not so in the recent dust up between a pro-marijuana student group and Iowa State University. In this particular case, the student group got approval from ISU to use school trademarks, only to have that approval rescinded once a bunch of politicians got involved. The organization created by students is called the National Organization for the Reform of Marijuana Laws, or NORML.

    • Copyrights

      • Argentinian Copyright Office Proposes To Add Exceptions And Limitations To Copyright Act

        On 12 December, the Argentinian Copyright Office and the Ministry of Culture invited a group of stakeholders, among which was this author, to discuss the final draft of the Exceptions and Limitations Bill (Proyecto de Ley de Excepciones) to modify current Copyright Act no.11.723 of 1933. One wonders whether it would be better to draft from scratch a modern Copyright Act instead of patching up the old 1933 Act. Nevertheless, the bill is welcomed. Argentina, as this author has already expressed, has one of the most restrictive copyright laws in the world (see Propuestas para ampliar el acceso a los bienes públicos en Argentina – Estableciendo el necesario balance entre derechos de propiedad intelectual y dominio público, Maximiliano Marzetti, Buenos Aires, 2013).

      • US Federal Court Bars Online Publication Of Copyrighted Standards Incorporated Into Laws

        In a case pitting standards development organisations against internet content aggregators, a United States federal court ruled that Public.Resource.Org breached copyright by posting unauthorised copies of standards incorporated into government education regulations. Public Resource has appealed.

      • MPAA: Dealing With Kodi is the $64,000 Question

        While torrent sites have been a thorn in the side of the MPAA for more than a decade, there’s a new kid on the block. Speaking at the Berlin Film Festival, MPAA chief Chris Dodd cited the growing use of the Kodi platform for piracy, describing the problem as the “$64,000 question.”

Bad Advice From Mintz Levin and Bejin Bieneman PLC Would Have People Believe That Software Patents Are Still Worth Pursuing

Posted in America, Deception, Patents at 7:20 am by Dr. Roy Schestowitz

The patent microcosm belongs in the same wastebasket that software patents go into

Waste disposal

Summary: The latest examples of misleading articles which, in spite of the avalanche of software patents in the United States, continue to promote these

SEVERAL months ago we wrote that software patents had become pretty toothless everywhere except the Eastern District of Texas, where judges continue to exploit their own governance to welcome patent trolls. Nowadays, just because the USPTO occasionally grants software patents does not necessarily mean that courts (more so the higher ones) will respect them. Recent experiences and even a census (2016 statistics) serve to show that lawsuits with software patents have become a very risky game to play (the plaintiff typically loses not only the case but also a lot of money, which law firms pocket in the process).

“Recent experiences and even a census (2016 statistics) serve to show that lawsuits with software patents have become a very risky game to play (the plaintiff typically loses not only the case but also a lot of money, which law firms pocket in the process).”Law firms that used to make a lot of money from software patents are concerned. They need their clients to become dumb or poorly informed. Yesterday we saw a new article, which was unsurprisingly (given the authorship) entitled “Software Is Still Patent Eligible”, published by Sandra Badin, Matthew Karambelas, Nick Mouton, Michael Renaud, and Michael D. Van Loy (Mintz Levin). This is poor advice from a self-serving firm which is just trying to sell its services around software patents. These patents may seem eligible at the US patent office, but how about in District Courts? Or even worse: CAFC? SCOTUS was very clear about it.

Not even District Courts like the Eastern District of Texas’ can provide much of a reprieve, at least not for much longer because SCOTUS has Texas in its crosshairs. Writing about TC Heartland — the case that can effectively kill patent trolls later this year (their modus operandi would be shattered) — Professors Megan M. La Belle & Paul R. Gugliuzza wrote yesterday that “[p]atent litigation is, as we all know, [has been] highly concentrated in a small number of districts. Most notably—some might say, notoriously—the rural Eastern District of Texas hears about forty percent of all patent cases nationwide. Many lawyers and scholars consider this case concentration to be a critical flaw in the patent system.”

“The environment for patent bullies is rapidly changing and those who assisted such bullies (law firms that pursue patents by the millions) will need to find another business tactic.”Putting aside Alice and the Bilski case, the few courts that actually disregard precedential rulings may soon be out of business (not literally, but they will have to shrink significantly) and what will proponents of software patents have left to say?

The environment for patent bullies is rapidly changing and those who assisted such bullies (law firms that pursue patents by the millions) will need to find another business tactic. Fitbit is already withdrawing from its own patent case (which it initiated) and laying off a lot of its staff; they deserve it for resorting to patent aggression rather than innovation. Don’t expect law firms to accept this new reality, as long as they can continue to mislead prospective clients.

In spite of Fitbit deciding to abandon its own case — a fact that Bejin Bieneman PLC’s site (a software patents proponents’ site) conveniently omits — here is a new anti-Alice post [via], published only yesterday, to paint just ponies and rainbows. To quote:

Fitbit sued Jawbone, its rival, alleging infringement of three patents directed to preparing wearable activity trackers with client and/or server computers, whereupon Jawbone unsuccessfully brought a Rule 12 motion to dismiss alleging patent-ineligible subject matter. Fitbit, Inc. v. AliphCom, No. 15-cv-04073-EJD (N.D. Cal. Feb 9, 2017.) The asserted patents were U.S. Patent Nos. 9,026,053, 9,106,307, and 9,048,923; “[a]ll of the asserted claims recite a method or system for pairing that involves three discrete entities: a portable monitoring device, a ‘client,’ and a ‘server.’” Skirting the question of whether claims were directed to a patent-ineligible abstract idea, the court found that the claims recite an inventive combination of elements.

As is widely known by now, Fitbit effectively lost the case by dropping it. Not that law firms would want the public to know this…

Objective information about patents has become scarce because the few who have an incentive to write about the subject are those who profit from it.

Patents Are Not Property, They Are a Monopoly, and They Are Not Owned But Temporarily Granted

Posted in Patents at 6:37 am by Dr. Roy Schestowitz

Privatisation of mere actions or thoughts — not just devices — a symptom of patent scope gone awry

History of patent law
Reference: History of patent law

Summary: Patent maximalism and distortion of concepts associated with patents tackled again, for terminology is being hijacked by those who turned patents into their “milking cows”

IN his writings about USPTO-granted patents, Professor Crouch recently looked at pertinent laws and went somewhat philosophical. Yesterday he deconstructed a patent where one of the supposed merits or inventions is that the operator of a vehicle needs to be present. To quote: “The claims require that the operator platform “support an entire body of an operator” during operation use of the vehicle.”

“We certainly hope that the Patent Office sticks to the principle that human operation (a la business methods) as opposed to mechanics should not become patentable.”We have no issues with patents on mechanics, however to name a human being as some sort of ingredient is approaching the territory of the laughable. Lawn mowers have existed for a very long time (nearly 200 years according to Wikipedia) and having an operator present on top isn’t entirely novel, either. We certainly hope that the Patent Office sticks to the principle that human operation (a la business methods) as opposed to mechanics should not become patentable.

“The “public rights” issue is complicated,” Crouch explains. “but the basic outcome is simple – if patents rights are not public rights (but instead private rights) then an administrative agency cannot lawfully revoke a patent once issued (without the permission of the patentee).”

“Well, a patent is a government-granted monopoly and not a “property” or an “asset” per se.”Crouch later posted some more thoughts, noting that “[i]n the “land patent” system, ownership is originally vested in the sovereign and then transferred to the recipient, but it seems to me that the patents on inventions probably work differently. In the end, I expect that this may have some impact on the public-rights cases.”

Well, a patent is a government-granted monopoly and not a “property” or an “asset” per se. Artistic wordings that attribute physical properties to ideas are worse than dishonest; that’s how the recording industry paints copying (or sharing) as “piracy” and “theft”. Saying things like “ownership” (or similar, e.g. someone “bought” a patent or “stole” a patent) makes as much sense as “eating” an idea.

Patents are not rights but exceptional privileges with burden of justification on the recipient. If the “administrative agency cannot lawfully revoke a patent,” to quote the above, even when a patent was obviously granted in error or is doing a disservice to public interests (not so-called ‘public rights’), then maybe it’s time to return to the drawing board. The history of patent systems is checkered and complex and if anything is to be learned from this history, it is that no patent system should be taken for granted and blindly accepted. We need to evolve in lieu with dissemination of concepts over the Internet, the programmability of computers without having to reconfigure hardware (mechanics), and many other advancements.

SoftBank Group, New Owner of ARM, Could Potentially Become (in Part) a Patent Troll or an Aggressor Like Qualcomm

Posted in Asia, Patents at 6:08 am by Dr. Roy Schestowitz

SoftBank GroupSummary: SoftBank grabbed headlines (in the West at least) when it bought ARM, but will it soon grab headlines for going after practicing companies using a bunch of patents that it got from Inventergy, ARM, and beyond?

The SoftBank Group is a very large group (nearly 70,000 employees) and has a big stake in China, which is a growing market for patent trolls — a subject which we wrote about several times last year.

“We certainly hope that what IAM is showing does not suggest that ARM’s patents too — some time down the line perhaps — can become a weapon of coercion just like Qualcomm’s.”Is Softbank, the new owner of ARM, becoming a patent troll (at least in part)? Based on IAM, “Fortress moved into IP finance four years back when Eran Zur, Joseph Kessler and other former senior RPX employees joined the firm.” RPX's latest woes (more background in our Wiki) seem to suggest that it’s in the process of collapse (a privatisation was attempted, leading to an ouster). IAM notes “that Fortress is no longer publicly traded [and it] could be helpful in any monetisation effort it undertakes with the Inventergy patents or others. But that is assuming Softbank wants to be an NPE owner.”

NPE is just a polite term for “patent troll” — a term which IAM does not like to use because several of IAM’s sources of income are patent trolls and it organises events to launder the reputation of trolls. Yesterday it wrote about “arguments over “patent trolls” and “efficient infringers” and often broad disagreements over patent values,” which basically frames “patent trolls” as a made up concept and says “efficient infringers” — a propaganda term of patent maximalists (which IAM nowadays uses even without scare quotes).

We certainly hope that what IAM is showing does not suggest that ARM’s patents too — some time down the line perhaps — can become a weapon of coercion just like Qualcomm's.

Technicolor, Having Turned Into a Patent Troll, Attacks Android/Tizen/Linux With Patents in Europe

Posted in Europe, Patents, Samsung at 5:29 am by Dr. Roy Schestowitz

Technicolor logo

Summary: Technicolor, which a lot of the media portrayed as a patent troll in previous years (especially after it had sued Apple, HTC and Samsung), is now taking action against Samsung in Europe (Paris, Dusseldorf and Mannheim)

THE USPTO has long been a provider of patents that are used against Free software, but in Europe too this has increasingly been the case. Some European companies like Nokia are nowadays attacking Free software (Android, GNU/Linux etc.) while the EPO keeps granting software patents (recall Microsoft v TomTom).

“Some European companies like Nokia are nowadays attacking Free software (Android, GNU/Linux etc.) while the EPO keeps granting software patents (recall Microsoft v TomTom).”Technicolor has become a patent troll and weeks ago its shares were collapsing (it had already shown signs of rot not too long ago), so it now attacks [GNU/]Linux-powered products of Samsung, which may be the first among several more to come. According to this from IP Wire, “Technicolor announced today that it has initiated several patent infringement suits in Germany and France against Samsung Electronics, across a range of Samsung products, including mobile phones and digital televisions.”

These mobile phones and digital televisions run Tizen and Android, which are both Linux-based operating systems.

“These mobile phones and digital televisions run Tizen and Android, which are both Linux-based operating systems.”This is definitely noteworthy and merits a post of its own. In other news, regarding PersonalWeb Tech v Apple, there is this update which suggests that PTAB, characteristically, “found the challenged claims of PersonalWeb’s Patent No. 7,802,310 obvious based upon a combination of two prior art references. On appeal, however, the Federal Circuit has vacated the judgment – holding that the Board’s factual findings were not supported by substantial evidence. In particular, the Federal Circuit could not find substantial evidence for the conclusions (1) that the prior art taught each element of the challenged claims or (2) that PHOSITA would have been motivated to combine the references to form the invention as claimed.”

The Court of Appeals for the Federal Circuit (CAFC) rarely interferes and even less frequently disagrees with PTAB (only about 20% of the time in 2016). We hope that in the case of Samsung Electronics, a case which is centered around central Europe (France and Germany, or Paris, Dusseldorf and Mannheim in the absence of a UPC disaster), pertinent patents will be challenged. If not, then we can expect Technicolor to become more of a serial litigator.

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