07.10.20
Posted in Deception, Europe, Patents, RAND at 10:12 am by Dr. Roy Schestowitz
Programmers are badly hurt by these loopholes by which illegal patents are imposed in bulk without scrutiny/challenge
Summary: Even people who have long promoted the practice of mandatory “licensing” (in effect patent tax one is unable to work around) are apparently changing their minds and their tune
THIS site has had its ‘ups’ and ‘downs’ when it comes to Florian Müller, who at times took money to lobby and mislead. He even set up an event for FRAND some months back, albeit he warned me well in advance that he did not agree with some of the invited speakers (firms that front for Microsoft and the UPC). Müller became well known because of some early books of his, as well as campaigning in the area of patent law. He certainly understands that some companies — Microsoft being a noteworthy example — are sneaking European software patents into a package or bundle or “pool” of patents (what Fraunhofer is still doing). He certainly knows what Microsoft did with Nokia‘s patents. Some of them Nokia was instructed by Microsoft to pass to patent trolls, which would later attack Android with those patents.
“The EPO doesn’t care about scientists and science anymore.”The links below were originally intended for the next batch of Daily Links, but we thought it’s worth a mention aside from the editorial comment that says “patent trolls-funded publisher supports the patent troll Sisvel and the likes of it” [1,2] (that’s Managing IP, which in recent days became a megaphone for other patent trolls as well, even InterDigital; “In-house counsel from Sisvel, Nokia” cannot be considered journalists).
The good news is, regarding Müller, he now says that “the S in “SEP” stands for “scam” rather than “standard.”” [3] (or so he wonders). Sometimes the “scammers” combine 4 euphemisms (FRaND) to make “SEP” sound 1) fair 2) reasonable and 3) not so bad 4) nor discriminatory. Pure marketing. They used to call it “RaND” (or “RAND”) before adding an additional euphemism. Then there’s “Z-RAND” and other nonsense (always with many lies stuffed in, like “IP”/”IPR” and “AI”, deliberately loaded with misnomers).
If looked at closely enough, one quickly realises the underlying injustices, even if one is a proponent of monopolies. It’s worth noting that both António Campinos and Benoît Battistelli, in their capacity as European Patent Office (EPO) presidents, habitually meet “licensing societies” — which are basically patent collection cartels that are fronting for a bunch of unproductive parasites. Examiners are likely aware of the fact that they’re not governed by scientists and their so-called ‘leaders’ almost never meet actual scientists. The EPO doesn’t care about scientists and science anymore. █
Related/contextual items from the news:
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In-house counsel from Sisvel, Nokia and a German carmaker explain how the Federal Court of Justice’s decision changes the rules of the FRAND negotiation game
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Sometimes I wonder whether the S in “SEP” stands for “scam” rather than “standard.”
Everyone who deals with patents professionally knows that, at least with respect to information and communications technologies, the system is broken beyond repair. Patent offices issue far too many patents and treat mass filers as “key accounts” whose “demand” for weapons of extortion they seek to satisfy. Unlike its U.S. counterpart, the European Patent Office isn’t run by a trolls’ lawyer, but it’s also part of the problem.
But standard-essential patents take the issues facing the patent system to an even higher level. Companies overdeclare (though some have higher “hit rates” than others). No scrutiny is performed. And besides countless patents that aren’t essential from an infringement point of view, the vast majority of those who may claim a standard-essential technique are simply invalid as granted.
Nokia failed to deliver a great smartphone user experience, then increasingly resorted to patent monetization. But it concluded license deals without a lot of patents actually coming to judgment. They monetize a portfolio that contains a huge amount of hot or even not-so-hot air. Where’s the substance?
For a while, everything appeared to be working out according to plan for Nokia with respect to the Daimler dispute. They knew they were facing a 19th-century company that they hoped would cave at some point. Daimler certainly failed to put the necessary pressure behind its EU antitrust complaint, while Nokia found political opportunists of the worst kind in Brussels who were–and potentially still are–perfectly prepared to do lasting damage to the European Commission’s reputation as a competition watchdog. After so many years of having been accused of protectionism, the Commission couldn’t vindicate its critics more effectively and convincingly than by condoning Nokia’s conduct.
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07.08.20
Posted in Europe, Patents, RAND, Standard at 5:31 am by Dr. Roy Schestowitz
Summary: The roller-coaster of software patents on multimedia isn’t stopping; we know the culprits who can be named for perpetuating this injustice
THE links below [1,2], which were included or will be included in Daily Links, show that little has changed for the better. Old multimedia formats are being phased out in favour of ones that have newer (not yet expired) software patents on them. This is a big problem for Free software. In the past, for instance, Mozilla paid millions of dollars to “license” some patents for Firefox. Even patents that 35 U.S.C. § 101 likely rendered obsolete and invalid (but the USPTO grants such patents anyway). They’re of course leveraged in bulk, in order for legal challenge of them all to be impractical. It’s an extortion racket; it is not only facilitated by the US but also the ‘European’ Patent Office (EPO), where a large majority of the patents aren’t even European. António Campinos and Benoît Battistelli defend those rackets and even occasionally meet the people behind those rackets.
Regarding Fraunhofer, there’s a lot worth condemning, e.g.:
Days ago Fraunhofer, a Microsoft ally, also published an anti-Linux ‘study’ which the media was quick to exploit for FUD.
“It’s already embraced by DRM giants like Google and Netflix (the same ones that pushed for DRM on the Web and EME in Web standards).”OIN, a proponent of software patents, had the audacity to publicly defend Fraunhofer. That said a lot about OIN and what it really stands for. So here we are in 2020 and the cartel goes on, even without the media studying the subject and blasting MPEG-LA the way it did a decade ago. Puff pieces like the ones below (pure fluff) are a symptom of the death of journalism. They make it sound like Fraunhofer has just given us a gift when in fact we already know that Fraunhofer did intentionally counter-productive things (making codecs less efficient, performance- and storage/compression-wise) just so that they can stockpile more patents. This cartel ought to be rejected, not embraced. It’s already embraced by DRM giants like Google and Netflix [2] (the same ones that pushed for DRM on the Web and EME in Web standards). It reinforces monopolies. █
Related/contextual items from the news:
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The codec’s full name is H.266/Versatile Video Coding, as Fraunhofer says it’s designed to be a successor to the industry-standard H.264/Advanced Video Coding (AVC) and H.265/High Efficiency Video Coding (HEVC) formats that combined make up about 90 percent of global digital video transmission and compression on the market today. While HEVC was first released in 2013, the codec has proved controversial due to aggressive patent disputes from its various stakeholders. That’s why AVC, the predecessor to HEVC, still remains the more dominant standard, despite first releasing back in 2003.
But Fraunhofer says VVC could be a path forward for the industry, as almost every major hardware and software company is currently tied up in a messy patent royalty system that dictates how much various stakeholders must pay to use different compression and transmission standards for devices, websites, and apps. With VVC, Fraunhofer says you can get something far better than AVC and HEVC without any of the licensing headaches.
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There’s a lot of hype around AV1 royalty-free video codec since it has backing from large companies, better characteristics than H.265 or VP9, and is already used by YouTube and Netflix.
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11.15.19
Posted in Free/Libre Software, Microsoft, RAND at 6:23 am by Dr. Roy Schestowitz
Summary: Do not be misled by the term Free/Open Source software (FOSS) in the name FOSSPatents and whatever relates to it (e.g. FOSSPatents Conference); it’s not about FOSS but against FOSS, or pro-FRAND
THE previous post ended with a tweet. As Benjamin Henrion put it the other day: “UPC rules of procedure also mention proportionality. Like bifurcation, rules of procedure should be made by legislators under art6 ECHR”
Henrion posted this while attending an event organised by another software professional, a longtime opponent of software patents and the UPC (those two things are closely related). I’ve long criticised this event (even before it took place), seeing what front groups were attending and speaking alongside Bristows. The event promotes the false concepts of “FRAND” and “FOSS patents” (no such thing). It welcomes litigation fanatics. “No idea why he chose to do this,” I said, “but I can guess…”
He has repeatedly replied to me; the organiser and I have agreed and disagreed on a lot of things over the years. Here’s Henrion stating: “Yesterday’s Fosspatents conference was pretty much “trolls trolls trolls” with many more companies being attacked. Software patent warming is happening…”
That’s an old term.
“FLOSS still absent from the conference of today,” he said, “who is “all” if the developer doing the hard work of writing code is not even mentioned…”
“Yes,” I responded, as “the program itself showed that Fosspatents was all about patents and not at all about FOSS (let alone anything tech)…”
“FRAND” is 4 (or 5) lies in a row, compacted into an acronym that sounds like “FRIEND”. As one person put it: “Of course. Commons law. …but FRAND used to mean Free Rand = RAND-0. Then they said FRAND = Fair RAND. No one could explain the difference between FRAND and RAND. It is not fair and unreasonable discriminates open source implementations. What a waste…”
RAND or FRAND or fancy ‘lego puzzle’ with these lies as letters (“reasonable”, “nondiscriminatory”, “fair”…) won’t change the fact that they’re designed to put gloss on monopoly. They reinforce the concept of patent tax on everything. It is almost depressing and going back to the UPC, high-profile ‘FRAND’ cases already target British courts, looking to tax the whole public through satellite patent trolls. If they got the UPC, the outcome of such court cases would impact hundreds of millions of people, not just tens of millions. So we know who stands to gain from the UPC.
We’ve found some particular tweets (with photographs) from Henrion informative. He focused on the detrimental effect, e.g. in
- Tweet: “Trolls don’t go after big chip manufacturers, they even go to telco operators, time lost for everybody #trolls #wifi”
- Tweet: “Trolls wants royalties backwards in time, which would kill many companies”
- Tweet: “STRONGER patent act trying to abolish eBay jurisprudence, pro-patent trolls”
- Tweet: “Nokia and Ericsson using proxy trolls to enforce their patents”
- Tweet: “Conversant Wireless, a Patent Troll based in Luxembourg” (armed by Microsoft to attack Linux as Microsoft instructed to pass patents to this troll when it was known as MOSAID)
- Tweet/Tweet: “NokiaPlanP is happening, they turned into a patent troll. I should have kept the http://nokiaplanp.com domain” (lots of writings about this topic regardless)
- Tweet: “Germany as a magnet for patent trolls”
- Tweet: “Taskin (AirTies): there was originally no patents on WiFi, but it changed with patent trolls”
- Tweet: “Taskin: P&L (patents & litigation) is pure waste of time and energy”
- Tweet: “At the end consumer pays #patents”
Of particular interest to our longtime readers is this couple/pair of tweets [1, 2]: “Antitrust law has abolished competition by installing barriers such as patents, for example in the 2007 Microsoft case http://blog.ffii.org/microsoft-will-trump-eu-competition-ruling-with-patents/”
To this date, Microsoft continues to leverage FRAND to impose software patents everywhere and blackmail everyone. Some other tweets speak of the origins of this term, “RAND”, which we’ve used here since 2007 if not 2006. It was always (all along) a deliberate attack on FOSS/FLOSS. Microsoft knew all along that it wasn’t compatible; hence it used front groups such as BSA to lobby for it.
Jake Hamby, who worked for Danger (then Microsoft) and later Google (Android), told me regarding the shock of awful patent quality: “Well, I wouldn’t, considering the sketchy Microsoft patents I tried to help Google’s lawyers defend against with Android. They milked those mobile OS patents for an entire decade. I’d love to know which companies are still paying them and how much per device.”
Microsoft is still suing over it, e.g. Foxconn earlier this years. The underlying patents may all be bogus, more so after Alice — a subject that the EFF has just brought up again [1]. We hope that Mr. “FOSSPatents” isn’t taking Microsoft money again (as he did before) to promote FRAND. █
Related/contextual items from the news:
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Leaders of the Senate IP Subcommittee have been working, for nearly a year now, on producing some kind of legislation to weaken Section 101 of the Patent Act. Their proposal would throw out all the case law based on Section 101, including the Alice decision, which has been especially critical for keeping bogus software patents out of the system.
They held three days of hearings on the Senate floor in June, but still haven’t presented a bill detailing the changes they want to make. As we’ve explained before, weakening Section 101’s protections would be a disaster for innovation, and encourage patent trolls to squeeze money from small businesses.
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04.27.19
Posted in America, Europe, Law, Microsoft, Patents, RAND at 8:28 am by Dr. Roy Schestowitz
Technically Boards of Appeal are still controlled by the EPO’s President (whose positions they’re supposed to scrutinise and sometimes oppose)
Summary: Europe continues to be threatened by the lawless EPO, which is promoting software patents, FRAND patent trolls, UPC and even more toxic things; judges and the rule of law do not seem to matter anymore (they’re being intentionally discarded because they stand in the way of law firms’ profits and EPO revenue)
Lawlessness is alive and well — even thriving — at the European Patent Office (EPO). How can one expect António Campinos to respect and obey the law when he cannot even discipline/educate/convince his own son that laws are to be obeyed? He himself is showing blatant exhibition of gross nepotism within just months at the Office and likely violations of EU law since his EUIPO days where appointments appear to be sold. It’s all rigged. Laws don’t seem to matter to these people. Campinos ignores the law with more tact (or more smiles). He’s a storyteller. All he can do is lean on his father's name — a person who was apparently not likable except by those at the top. It’s a good decoy. Effective marketing.
“Campinos ignores the law with more tact (or more smiles).”This latest comment at IP Kat discusses how the EPO is still breaking the law or violating the EPC by punishing all judges with an exile to Haar (which is technically not Munich at all):
Yes, I understand that “Landkreis München” does not itself include the city of Munich. Perhaps my question was unclear. What I mean is: why can the meaning of the word “Munich” in the EPC not simply be interpreted to mean “a location which is EITHER in the city of Munich OR in Landkreis München”? i.e. that “Munich”, for the purposes of the EPC, means the combination of the city Munich *and* the Landkreis which shares its name? This way, it is possible to interpret “Munich” for the purposes of the EPC as being broader than the city itself, while still having a well-defined geographical scope.
To draw a comparison (which is, admittedly, imperfect): imagine that the EPC instead said “London”. A narrow interpretation might be that this should mean “the City of London”. A broader interpretation might be that this should mean “anywhere within the 32 London Boroughs” – but (like Landkreis München vis-a-vis the city of Munich) the London Boroughs do not include the City of London. The holistic view would, perhaps, instead be to take the view that “London” means “the City of London or any of the 32 London Boroughs”.
Curiously enough, on the same day Samuel Adams wrote about the EPO illegally attacking the independence of all judges by sending them to exile. To quote Kluwer Patent Blog, a site of patent maximalists:
Not too long ago we learned of a referral question from Technical Board of Appeal 3.5.03 regarding the legal basis for holding oral proceedings before the Boards of Appeal in Haar rather than in Munich.
While it does not directly relate to the legal question in the referral, a relevant consideration was recently published in CA/5/19, which relates to an additional lease for further staff, conference rooms and common areas for the EPO in Haar. The document notes that the building in Haar has been leased for a period of 15 years. In CA/82/16, the total budgetary impact of the lease in Haar, including building adaptation costs, was provided as EUR 40.7 million. The further costs laid out in CA/5/19 for an additional lease contract are EUR 4.8 million, for a total of EUR 45.5 million.
The above was filed under “Traveling Circus” (no kidding!), so we suppose that at this point even Kluwer Patent Blog perceives the EPO to be somewhat of a circus. What a tragedy.
Crossing over to IP Kat, which is still heavily occupied by Team UPC (sometimes more so than Kluwer Patent Blog), over the past few days we saw a lot of coverage there about Fordham IP (at least 7 parts so far). Bristows did many posts about it for IP Kat (Annsley Merelle Ward as the author); it’s an event that is typically funded by Microsoft (more so than anyone else) and Bristows flatters this sponsor, as we noted in past years.
Included in this event, as usual, is the software patents lobby (in which Microsoft plays a considerable role), soon to be promoted or amplified by patent extremists like Bristows or Managing IP, which wrote: “Former Federal Circuit chief judge Paul Michel “bet on both horses”, referring to possible fixes for Section 101 in court and in Congress, during a discussion yesterday at the Fordham IP Conference in New York…”
This is also mentioned in [1, 2] and it’s the typical choir of patent maximalists, the ‘usual suspects’ such as Iancu, Michel and sometimes a USPTO Director turned lobbyist, Mr. Kappos.
In her later parts Annsley Merelle Ward published FRAND advocacy by Richard Vary (Bird & Bird). Bristows has long lobbied for FRAND, usually in IP Kat, as Bristows profits from this agenda. As recently as yesterday, in an article by Amy Sandys of JUVE, we learn of “global licensing company” TQ Delta (euphemism for patent troll or PAE) seeking patent embargoes in the UK. Using patents granted by EPO and the FRAND agenda they try to block companies that actually make something (unlike TQ Delta) from doing business.
Speaking of Bird & Bird and Briwstows, the latest part in this series concerns software patents (covering algorithms) framed as “AI”. Here’s where the EPO stands on on this issue in spite of European law:
Katherine Stephens (Bird & Bird) then talked about the “patentability of artificial intelligence and machine learning”, specifically focusing on the recently updated EPO Guidelines for Examination. According to Katherine, the EPO’s new Guidelines are not a green light for patenting AI, but they are a first step in setting out the rules for a proper balancing exercise. An interesting issue raised in her presentation was whether inventive step and sufficiency thresholds can be expected to change with the rise of AI, assuming that the skilled person should be presumed to have access to AI systems. “Will inventive step be raised so high that nothing will be considered inventive in the eyes of the law, even if it was inventive or surprising to human?”
These are all bogus patents on algorithms, but nowadays the EPO just fakes ‘gains’ by granting patents courts would reject (if they were assessed there, i.e. if there was a lawsuit and a lengthy, expensive challenge to it). Team UPC (Bird & Bird, Bristows etc.) was hoping to effectively abolish or bypass such courts using the UPC, but it didn’t work. As FFII’s Benjamin Henrion put it yesterday in a press release: [via]
Today is World Intellectual Parasites Day, the day where patent trolls rejoice over sucking more blood out of software companies. Patent parasites rejoice over the creation of the european Unitary Patent Court (UPC), which will create an undemocratic monster fully captured by the parasite industry. Patent parasites are also pushing for a rewrite of the laws in the United States, in order to restore software patents, and continue to suck more blood out the software industry.
That’s a satirical slant on World Intellectual Property [sic] Day — a subject we’d rather not covered as we did so in prior years. The EPO kept promoting this propaganda many times yesterday, even retweeting the EUIPO in the process. █
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03.19.19
Posted in Europe, Patents, RAND at 1:05 pm by Dr. Roy Schestowitz
The European Patent Office is all about money, not science, and it undermines the basis of its very existence
Summary: Abandoning the whole rationale behind patents, the Office now led for almost a year by António Campinos prioritises neither science nor technology; it’s all about granting as many patents (European monopolies) as possible for legal activity (applications, litigation and so on)
THE António Campinos-led European Patent Office (EPO) is promoting software patents in Europe (it just tells applicants to call these “AI” and other nonsensical, grossly-overused terms). It amasses such applications and then grants bogus patents that courts will almost certainly reject (or would; if the defendant could afford a day in court). Quality of patents isn’t at all mentioned in those ‘results’ that we rebutted or put in context last week. The media, including some of the Battistelli-paid media, keeps relaying that PR. We decided not to link to it this year (like we did in prior years) because it’s a familiar script or spiel. Facts don’t matter; writing these puff pieces is a simple “copypasta” from the EPO.
We have meanwhile noticed that the EPO is again promoting FRAND/SEP agenda. Truly nasty agenda, no doubt, but not surprising as they support patent trolls rather than scientists/scientific progress. It is very much consistent with what Battistelli did and judging by who Campinos chooses to meet (lawyers’ societies, not scientists) we know nothing will change. The EPO said (warning: epo.org link, via) it is looking to “enhance the support they provide to industry and stakeholders in Europe and beyond in the field of standard-essential patents.”
“It is worrying but not surprising that the EPO continues to do this; does anyone still believe that Campinos intends to turn anything around?”EPO ends with the ICT nonsense (ICT means “algorithms” a lot of the time, at least at the EPO): “In view of the growing use of ICT-related technologies in the more traditional technical fields, the ICT standards – as well as the patents considered essential for their implementation – are becoming increasingly important in this context.”
FRAND for code/interoperability shims means software patents. FRAND is a misnomer (each word in the acronym is a lie) and we’ve been writing about it for over a decade, even back when it was called “RAND” (one euphemism/lie fewer). There’s a new press release about it below (just sent to us by a reader):
The question if Open Source Software can be combined with a FRAND (fair, reasonable, and non-discriminatory) regime is often at the centre of the debate. Possibly, this question though is not the deciding one, as such a legal compatibility would require that Open Source developers would collaborate under such a regime.
OpenForum Europe is very excited to publish the Opinion Paper by OFA Fellow and President of the Open Source Initiative, Simon Phipps. In this paper Simon posits that the core issue of Open Source Software and FRAND is not a legal one, but that Open Source developers will not collaborate under a FRAND regime.
So yes, it’s about software. It’s about something that can be infinitely replicated free of charge.
“EPO publishes blockchain conference report,” the EPO wrote yesterday, linking to that “blockchain” nonsense which we mentioned some days ago. “This study provides a comprehensive picture of current trends and emerging leaders in self-driving vehicle technologies,” the EPO wrote separately (also yesterday); it’s another newer buzz-phrase/acronym (buzzwords), "SDV" (often means algorithms for vehicle navigation). They like using the physicality of a car to give the impression that the invention is concrete. Similarly, as per Monday’s press release from Israel, here is the EPO granting a patent on “robotics” when in reality this likely deals with computer programs responsible for handling the robot (in addition to imaging modalities whose physical properties have little to nothing pertaining to navigation). From the press release:
XACT Robotics Ltd. today announced that the European Patent Office (EPO) will grant a patent expanding the Company’s patent portfolio to include the use of its robotic system in ultrasound-guided interventional procedures.
That’s basically patenting a computer program. But “with unparalleled accuracy and consistency…”
Whatever. Marketing buzzwords. Or promotional language…
It is worrying but not surprising that the EPO continues to do this; does anyone still believe that Campinos intends to turn anything around?
Yesterday the EPO wrote another bit of nonsense. They call it “EPO Academy” (a big word), but scholars don’t want to work there anymore and academia is ignored in favour of law firms. All that seems to matter to the EPO is money; not scientists’ financial welfare but rather the Office’s and law firms’. What would the public have to say about such an institution? Does it serve Europe? █
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11.17.18
Posted in Europe, Law, Patents, RAND at 12:08 pm by Dr. Roy Schestowitz
European authorities play along with a “Study on the interaction between Open Source Software and FRAND” (these are not compatible)
They now proudly grant patents on computer vision (my field), which is basically mathematics
Summary: The permissive attitude towards software patents in Europe is harmful to software developers in Europe; the officials, who never wrote a computer program in their entire life, pretend this is not the case by adopting marketing techniques and surrogate terms
THE GRANTING of software patents in Europe appears to have accelerated under António Campinos as President of the European Patent Office (EPO), or at least advocacy thereof.
This is very troubling in light of the fact that the US goes in the opposite direction, with 35 U.S.C. § 101 used to routinely squash such patents, citing Alice (SCOTUS) — a subject we’ll focus on tomorrow.
“This is very troubling in light of the fact that the US goes in the opposite direction, with 35 U.S.C. § 101 used to routinely squash such patents…”As shown in [1] below (several readers have independently alerted us about it), the European politicians now actively participate in this toxic agenda and OIN seems very happy with this (it calls FRAND proponents “charities” now), being a proponent of software patents itself. We’ve seen some troubling statements in relation to [1] and various tweets on the subject have been abound (FFII, OIN, Red Hat etc.). Is violation of the EPC considered acceptable now? Not only at the EPO but also the EU/EC?
Just before the weekend we saw the EPO promoting “AIpatents” (as it does every day; it has done this for months, more so under Campinos). Here’s one example: “Key discussions and insights from our conference on patenting #AI are available here. Take a look if you are interested in #artificialintelligence: http://bit.ly/AIpatents”
Here’s another new “AIpatents” tweet: “Experts from industry, academia and the IP world discussed possible future considerations for patent laws in view of #artificialintelligence at this recent conference: http://bit.ly/AIpatents”
“Just before the weekend we saw the EPO promoting “AIpatents” (as it does every day; it has done this for months, more so under Campinos).”Then came “IoT”: “Interested in the #InternetOfThings & standard-essential patents? At this conference, you can discuss this trending topic with experts from all around the world: http://bit.ly/indoeur pic.twitter.com/XAON4cTF8F”
Many so-called ‘IoT’ patents (basically software on devices) are just software patents. Pure and simple. How about “blockchains”? It’s not just a buzzword (unlike “AI” and “IoT”), but it’s a hype wave. The EPO wrote: “What is the examination practice at the European Patent Office of #blockchain technology? Find out at this conference in the Hague: https://bit.ly/2PGRp79″
Now there’s also "SDV", the latest of many three-letter acronyms that the EPO paid to manufacture or at least spread through the media (we’ve seen about a dozen ‘reports’ about this, not just in English, and they all boil down to EPO PR, naming António Campinos personally). The EPO has just tweeted: “Europe and the US are the global leaders in self-driving vehicle innovation. See which European countries filed the most applications for this technology here: http://bit.ly/SDVstudy #SelfDriving #FutureOfCars pic.twitter.com/Jnk1Qlep3P”
“Many so-called ‘IoT’ patents (basically software on devices) are just software patents.”Then there’s “4IR”. Yesterday the EPO tweeted: “Join the discussion on patenting some of today’s most dynamic areas of innovation at this conference in Munich, co-hosted with @GoI_MeitY: http://bit.ly/indoeur pic.twitter.com/xjDm3QcWyh”
This links to a page about “emerging technologies” (warning: epo.org link) that starts as follows: “The 4th Industrial Revolution continues to gather momentum, and the digital transformation is affecting all aspects of life, as shown by the EPO’s report on “Patents and the Fourth Industrial Revolution”. Information and Communication Technologies (ICT) are converging with all traditional areas of technology.
“Notice that buzzwords ‘salad’; most if not all refer to algorithms.”“This provides opportunities for emerging technologies such as Artificial Intelligence, capable of “Machine Learning” and optimising systems too complex for manually programmed algorithms; and Blockchain, for digital-speed processing of secure transactions.”
Notice that buzzwords ‘salad’; most if not all refer to algorithms. It’s a pretty shallow deceptive layer.
Additionally, widely promoted by patent maximalists is this Watchtroll article from Andrea Perronace (epi); here’s how he’s described by his own bio: “European Patent Attorney and has been working in the IP field for 17 years. [...] Andrea is a full member of the ICT Thematic Group of the European Patent Practice Committee (epi) and participates in EPI’s Guidelines’ and ICT subcommittees e whose aim is to submit to the EPO proposals for improvement of the Guidelines for Examination. As an epi delegate, he was a speaker at the “Patenting Artificial Intelligence” Conference at the European Patent Office in Munich, May 30, 2018.”
To quote: [via]
The new Guidelines entered into force on November 1, 2018. Like the previous edition, this year’s Guidelines include substantial and valuable improvements with regard to guidance on the eligibility of computer-implemented inventions (CII). These sections of the Guidelines have been discussed with the European Patent Institute (epi), in particular with the ICT Thematic Group of the European Patent Practice Committee within the epi. The EPO website includes a useful html index for the Guidelines, including those sections relating to computer-implemented inventions.
He even uses the term “CII” and the headline says “Computer-implemented inventions”; much of the rest is a lot of buzzwords, which surely EPO examiners have become familiar with.
“After the attack on judges from the Boards of Appeal we very much doubt any of the Boards of Appeal can confront the EPO over this gross abuse of power to grant patents, even in defiance of courts, Parliament, and the founding document of the Office/Organisation, the EPC.”We’re not sure if this disturbing trend can be stopped, but we at least hope to highlight it. Mitscherlich PartmbB’s Christian Rupp has just published this article about a decision of the Boards of Appeal (T0642/14), but it has nothing to do with the above. After the attack on judges from the Boards of Appeal we very much doubt any of the Boards of Appeal can confront the EPO over this gross abuse of power to grant patents, even in defiance of courts, Parliament, and the founding document of the Office/Organisation, the EPC. █
Related/contextual items from the news:
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In the context of the on-going Study on the interaction between Open Source Software and FRAND (Fair, Reasonable And Non-discriminatory) licensing in Standardisation we carry out a survey with interested stakeholder groups.
[...]
Deadline: 30 November 2018.
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09.30.18
Posted in Deception, Patents, RAND at 8:01 am by Dr. Roy Schestowitz
…As if ideas are “owned”, life and nature are “discoveries” and patent taxes are “fair”, “reasonable” and “nondiscriminatory”
Summary: A look at potential ethical problems, based on the fact that Colin Birss attends and speaks at CIPA events; there are also similar issues in the United States
THE idea that life is a science and nature is an invention is a rather odd idea. We wrote about this many times over the past year. It’s the sort of delusion that EPO and USPTO officials get carried away by, forgetting that patents should exist for inventions, not mere explorations, explanations and interpretations. We recently wrote several articles bemoaning the term “life science/s” — a rather new concept if not buzzword [1, 2].
The Life Sciences Forum is an event of patent extremism, so things that harm patent quality are celebrated there, whereas much-needed fixes against patent trolling are condemned. As one patent maximalists’ site put it: “ANDA lawsuit filing spiked last year, TC Heartland is troublesome, and the USPTO’s Vanda memo is promising – these are some conclusions from a session at our Life Sciences Forum…”
How is TC Heartland “troublesome”? As we shall show in our next post, it has been troublesome mostly to patent trolls.
It has meanwhile turned out that, based on another article from these patent maximalists, Colin Birss is attending an event of patent maximalists. He’s a judge, so that doesn’t seem so appropriate. It’s just hard to see why a judge would wish to associate with CIPA Congress. CIPA is a bunch of lying bullies that send threats to people. It is also rather odd a thing to see him described by a patent troll (of Ericsson) that he happened to rule on. The patent maximalists refer to him in the headline not by his name but as “Unwired Planet judge” and then say this:
Speaking at this year’s CIPA Congress, Mr Justice Birss said that FRAND disputes will be fought in one place in the future and that the UK’s new doctrine of equivalence may not last in its current form
He probably oughtn’t hang out with these people, otherwise he may risk a Rader-type scandal. He is being emboldened by rather radical elements.
Over at Patently-O, days ago a post by Dennis Crouch spoke of patent law firms breaking the rules, as law isn’t the goal but just getting richer and richer if the goal. Here are the details:
In a new order captioned In re Violation of Rule 50, Docket No. 2018-9001 (Fed. Cir. Sept 27, 2018), the Federal Circuit has rebuked an unnamed former law clerk and her law firm for violation of the rule.
The basic setup: When the clerk left the Federal Circuit, she handed over a list of no-no cases to her new law firm. (“No-no cases” are those that were pending during the clerk’s time at the Federal Circuit.) Several years later, the firm stepped-in as new counsel to one of the no-no cases and the former clerk appeared as a lawyer in the lawsuit (though not lead counsel). Some unidentified time later, the clerk realized the violation and immediately withdrew from the case. The clerk and firm then notified the Federal Circuit of the breach — noting that the clerk never saw any briefs, discussed the case, or heard any discussion of the case during her time at the Federal Circuit.
In its decision here, the court noted that R. 50 “must be strictly followed” and that the facts as explained are “proof of the firm’s negligence.” Still, the court decided not to impose discipline since this was a first offence for the clerk and firm and no harm was shown. I expect that it would be personally difficult for the court to actually impose discipline on its former clerks absent egregious factors.
David Hricik, who typically writes about ethics in Patently-O (he himself is a former worker at the court), writes about McKool Smith, which represents a lot of patent trolls. It’s not too shocking to see them violating laws etc. It is only to be expected. They’re thugs and bullies (even if they wear suits) and Hricik put it:
Almost exactly one year ago (here), I explained that McKool Smith had been accused of violating a prosecution bar based upon a disagreement, or misunderstanding, about when the bar-dated ended.
We have been writing about McKool Smith for many years and almost every time they’re mentioned it’s in relation to some sort of blackmail rather than patent justice. It would be nice and perhaps well overdue to see them disbarred. █
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09.22.18
Posted in Apple, Europe, Patents, RAND at 12:07 pm by Dr. Roy Schestowitz
EP2460270 by Marco Cassia (warning: epo.org link)
Summary: How shallow patents — or patent applications that no patent office should be accepting — turn out to be at the core of multi-billion-dollar cases/lawsuits, with potentially a billion people impacted (their products made worse to work around such questionable patents)
IN OUR previous post we mentioned how the EPO had begun feeding patent trolls in the same way the USPTO did for a number of decades. Qualcomm is a poorly-managed aging company in a state of decadence, so it nowadays resorts to patents more than anything, even dubious European Patents (EPs), granted by the EPO.
Florian Müller has been keeping a close eye on legal filings from Qualcomm, especially earlier this year. He more or less understands the underlying issues, having spoken to some of the people involved and also glanced at the underlying patents. “Very long (by local standards) Qualcomm v. Apple patent trial just finished,” he wrote some days ago. “Stuff for more than one blog post: infringement, validity, antitrust, licenses to contract manufacturers… By far their most interesting court fight to date.”
The CCIA‘s (Computer & Communications Industry Association) Joshua Landau weighed in by saying: “The FRAND obligation means you negotiate a license with *anyone* who asks, not “anyone but your competitors.” This shouldn’t be controversial-even Qualcomm has argued that when they were in the position of wanting a license.”
“Qualcomm [is] presently asserting 13 patents against Apple in Germany,” Müller noted. “Until today‘s trial, „only“ 10 were known, including the one the court in Munich told me about yesterday.”
Müller, Landau said, “beat me to it (and beat our press release as well), but yeah, FRAND means FRAND – you have to be willing to license anyone who asks for a license. Qualcomm even agrees with this principle—when they’re the ones who want a license.”
Müller already wrote a number of posts about it — ones that we took stock of last week. He separately took note of another FRAND case: “Huawei v. Samsung: no deal. Minute Entry for proceedings held before Magistrate Judge Kandis A. Westmore: Case did not settle. Settlement Conference held on 9/17/2018. Total Time in Court: 4 hours 17 minutes…”
But focusing on the main case in question (one which impacts Android/Linux as well), Müller said that “[i]ndustry bodies @actonline and @ccianet support @FTC’s motion to require #Qualcomm to license SEPs to rival chipset makers,” basically citing a disgraced Microsoft front group which pretends to represent small businesses. He wrote a blog post about it and assured me that “I never said they represented me. I just agree selectively…”
Here’s what’s happening in a nutshell:
It’s a busy September on the FRAND front…
As I reported on the first of the month, the Federal Trade Commission brought a motion for partial summary judgment that may open up the wireless chipset market–by reminding Qualcomm of its self-imposed obligation to license rival chipset makers–even prior to the big antitrust trial in the Northern District of California.
It’s odd that a mere reminder would be a potential game-changer, but that’s the way it is because of Qualcomm’s refusal to live up to the FRAND promise.
Disturbing it was to then see CCIA liaising with a Microsoft AstroTurfing group:
Yesterday, CCIA and ACT filed an amicus brief in the FTC’s case against Qualcomm in the Northern District of California. As explained in the brief, the FRAND obligation which patent owners voluntarily agree to when they participate in the development of a standard requires the owners of standard-essential patents to license their patents on “fair, reasonable, and non-discriminatory terms.” And the “non-discriminatory” portion of that obligation means precisely what it states—that the patent owner may not discriminate amongst willing licensees, but has to license anyone who wants a license.
Why would CCIA wish to associate with ACT? We could expect this perhaps 7 years ago when CCIA did all sorts of questionable things, but why now? Why again?
“Trolling with junk patents works best in Germany,” Müller wrote later. “With respect to injunctions, worse than the Eastern District of Texas.”
Something like the UPC would put that ‘on steroids’ if it was ever to materialise, further broadening scope of injunctions. The patent maximalists deny that a problem even exists in that regard.
As it turns out, the European Patent in question may in fact be bunk: [via]
Yesterday’s Qualcomm v. Apple trial took twice as long as the average Mannheim patent trial. In fact, the ventilation system was switched off in the late afternoon, so for the last hour, two doors had to be kept open. The courtrooms at the Mannheim Regional Court, Europe’s leading venue for wireless patents, are famously windowless.
Presiding Judge Dr. Holger Kircher forthcomingly stated at the outset that this case was, in my words, too close to call (unlike the one that Qualcomm agreed to stay in June), thus the court had to elaborate on all our of Apple’s defenses: non-infringement, invalidity (which German district courts don’t determine, but they can and often do stay cases pending a parallel nullity or revocation proceeding in another forum), abusive conduct (antitrust), and licensing (through one or more contract manufacturers). I’ll address the first two–the traditional defenses to patent infringement–in this post, and the affirmative defenses (the remaining two) in a subsequent post since there’s an abundance of interesting things to report and comment on.
The patent-in-suit, EP2460270 on a “switch with improved biasing” (“biasing” in this context basically meaning that one voltage gets to control another), is not standard-essential. Essentiality hasn’t been alleged by any party to the German Qualcomm v. Apple cases that have been heard so far. Nor is it related to wireless baseband processors: it’s a general circuity patent covering a type of switch. It was mentioned during yesterday’s trial that the chip allegedly infringing on the patent is supplied to Apple by Avago/Broadcom. But all of the accused devices come with an Intel baseband chip, a fact that will be relevant to the antitrust part of the next post.
Another sore eye for patent quality at the EPO? As Landau put it: “An Expert Opinion from the Swedish Patent Office says that Qualcomm’s Patent used to Sue Apple Should be Invalidated…”
It cites an Apple proponents’ site, which in turn cites Müller and says: “Yesterday’s Qualcomm v. Apple trial took place in the Mannheim Regional Court, Europe’s leading venue for wireless patents. The trial took twice as long as the average Mannheim patent trial, reports Florian Mueller. Mueller described the Apple v. Qualcomm case the commercially biggest patent-related dispute ever and could be truly seen as the World Series of IP cases. Apple is trying to invalidate Qualcomm’s patent titled “Switch with Improved Biasing” in this Mannheim case based on an expert opinion from Sweden.”
Apple too has been granted bogus European Patents, based on reliable sources of ours. It’s somewhat of a crisis. Another new post from Müller says: [via]
This is my second post on the Qualcomm v. Apple patent infringement trial held by the Mannheim Regional Court yesterday. In the previous post I reported on the alleged (non-)infringement and (in)validity of the patent-in-suit, EP2460270 on a “switch with improved biasing”. While the case is too close to call, this patent assertion may fail on the merits just like the first one that went to trial in Mannheim. But the court might also, contrary to what the non-asserted independent claim 16 implies for claim construction purposes and despite a finding by the Swedish patent office that the patent lacks a sufficient inventive step over prior art presented by Apple, hold Apple liable for infringement and decline to stay the case pending a parallel nullity action. In that case, Apple’s affirmative defenses–antitrust and licensing–will be outcome-determinative at least with respect to the availability of injunctive relief.
For a long time, it was hard to fend off even standard-essential patent injunctions in Germany on antitrust grounds (with or without a FRAND commitment, which German courts wouldn’t deem enforceable by third-party beneficiaries anyway). It was arguably hardest in Presiding Judge Dr. Kircher’s court. The situation improved after the Court of Justice of the EU ruling in Huawei v. ZTE; in a way, it already got a little bit better after the European Commission took action against Samsung and Motorola. But very regrettably, the thinking of German patent judges is still, by and large, that antitrust defenses are just part of a throw-in-the-kitchen-sink tactic of infringers.
The patents Qualcomm is asserting in Germany–at least the ones that have been discussed in hearings or trials–aren’t standard-essential, which ups the ante for Apple’s antitrust defense. However, the fact that Qualcomm’s conduct has been deemed anticompetitive by competition enforcers in multiple jurisdictions (“Antitrust Grand Slam”).
Last but not least is this post about Apple’s workaround (around the patents):
Yesterday the Munich I Regional Court held a six-hour (including breaks, though) trial on Qualcomm’s eight lawsuits asserting four different search user interface patents against Apple’s Spotlight search, with two lawsuits per patents targeting a total of three different Apple entities. A first hearing had been held in early May.
That part of the wide-ranging, earth-spanning, multifaceted Apple-Qualcomm dispute is, however, strategically so unimportant that it’s not worth multiple posts or anything. That set of eight cases is a total waste of court and party resources–sort of a tempest in a teacup–as these Munich Spotlight cases have been defanged in three important ways…
This is no doubt useful for patent law firms, especially German or Germany-based ones, but who else does that serve? All these ruinous lawsuits already contribute to deliberate exacerbations in product development. And based on what? Bogus patents that should never have been granted in the first place? █
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