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USPTO To Reexamine Eolas, SBC Patents
theodp writes "The USPTO Director has ordered reexaminations of the infamous Eolas Distributed Hypermedia Method (discussed earlier(1) on Slashdot) and SBC Structured Document Browser (discussed earlier(2) on Slashdot) patents. Maybe this will inspire Tim O'Reilly to get that killer piece of 1-Click prior art off his bookshelf!"
I can't find any mention of the EOLAS patent on this list: Director Ordered Reexamination Check your sources!
You dont have to be a billionare to force the USPTO to reexamine a patent. Its called inter partes re-examination, ANYONE can file for it, and all you need to do is submit prior art (or even just an argument) that says the patent was granted in error. Its not cheap though, it can cost a few thousand dollars depending on the scope of the reexamination, but it is an affordable option for a company faced with litigation by an over-broad patent.
Yeah, there is nothing in those duties about ensuring that the patent is "first art" ... EXCEPT THE DEFINITION OF A PATENT. "Whoever invents or discovers any new and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." 35 U.S.C. 101. That is the statutory authority for the USPTO to grant patents.
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" Not to be entirely cynical but what are the odds that Microsoft had a little bit to do with the review by the USPTO. It would seem the best way to avoid paying the billion dollar+ damages claim would be to get the USPTO to invalidate the claim. In this case, I am not sure though that MS would be entirely in the bad as the plug-in patent seems a bit too broad in the first place."
Actually it was the World Wide Web Consortium W3C and Internet community but hey it's not like you have to read the article.
Director ordered re-exams are rare, a few hundred a year. They tend to only take place when the USPTO is absolutely forced to.
In this case the director is responding to a public request made by Tim Berners-Lee, the inventor of the World Wide Web on behalf of the 600 odd companies in his consortium. This is the type of request that the director of the USPTO can hardly afford to ignore.
There are other ways to obtain a re-examination. Anyone can file at any time by paying a fee. The problem is that the re-exam process tends to be as prefunctory as the exam process and if you lose at re-exam the courts are likely to reject challenges based on the material presented in the re-exam.
I suspect that we will see the Eolas patent quickly evaporate. Director ordered re-exams in the middle of littigation are highly unusual. The trigger for obtaining a director ordered re-exam is considerably higher than the threshold for invalidating a patent.
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Think of reversing a patent as invalidating evidence, which will probably be submitted to an appeals court at a later time. Once you've found evidence is invalid or is misrepresented, then all arguments based on that evidence need to be reargued.
This reversing of a patent will probably be submitted to the appeals court (if there isn't already a more convienent avenue), which will overturn the prior decisions.
"Communism is like having one [local] phone company " - Lenny Bruce
Wouldn't shorter durations for technology patents increase revenue from fees? Or do they collect many times during the term of the patent? I would think that shorter durations / more fees would make their flow of revenue a little more even.
As I am studying for the patent bar right now I can answer that....
Maintenance fees (for utility patents) are due at 3.5, 7.5, and 11.5 years.
I hope I got that right!
The patent office needs to *do something* but it certainly doesn't need something to do.
I'm a law student who spent the summer at a patent law firm working on software patent prosecution. You would not believe how understaffed the USPTO is for the volume of CS related patents. One of the ways this is most obvious is that a lot of objections the examiners sent back to us were completely, obviously, on their very face ridiculous. It was apparent that the patent examiner had read the material (either our claims or part of the defense of our application throughout the process), done a keyword search and found other patents using the same vocabulary but didn't do even a tiny little bit of investigation to find out if the work was even in the same area as our patent. Thus, we could overcome USPTO objections trivially most of the time because they were stupid objections.
Perhaps part of it was lack of experience on the part of the examiners, but I doubt it. They have way too many applications on their hands to do more than a cursory job with each one right now and the incentive structure just exacerbates the problem.
I also went to visit the USPTO over the summer and during our tour the guide (an examiner herself) mentioned that there were plans to hire some enormous quantity of new examiners in the next year. Although that won't fix the broken incentive structure, hopefully it'll help in some small way.
All of this is to say it's not as if the USPTO w/ its current staffing is sitting around twiddling its thumbs. Something needs to be done but they're not idly waiting for something to do.