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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!"
Great now if we can just get the USPTO to review the entire pattent process we should be all set.
Tea and kung-fu. Life is good. Rising Phoenix
... has this happened in the US ?
...
If this can be duplicated for other patents, could this a possible route to pointing out how futile software patenting is ? I'd guess that if the USPTO had to constantly re-examine s/w patents they might be more leery of granting them
Simon
Physicists get Hadrons!
If you lisence Amazon's 1-Click patent, do they give you an SDK to help understand this advanced and innovative technology?
Ñ'
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.
I assume he has also ordered 're-evaluations' of the jobs of the 2 clerks that granted these patents as well.
The Patent Office is a government agency. Like all government agencies, it lwill do whatever it takes to sustain itself and grow. Their growth strategy has been to collect fees and issue patents, often without much regard for prior art and common sense.
Trying to stop the growth of USPTO is like trying to stop the sun from rising. Perhaps there is a way for them to collect additional (even higher) fees for re-examining questionable patents. Considering all the garbage that is out there, they is quite a bit of work to be done and a captive market to pay for it. I think the Patent Office needs something to do. Pulling the plug on misguided patents would be a worthwhile effort. All we need for patent reform is a way to align the inevitable collection of fees with the policy goal of protecting only those truly innovative ideas that cost big money for R&D.
I make you wonder what would have happened if it had not been MS. If MS had the patent and Eolas was being sued, the bet the patent office would have let the court decide if the patent should stand or not, which is the normal way they behave.
James
I doubt everything will be reviewed, but if there is a single review of a software patent then there is precedent for more reviews, and hopefully a message to all that patents aren't to be handed out like candy. Unfortunately the General Powers and Duties of the USPTO according to law are 1) to follow the policy of the secretary of commerce, 2) to issue patents, and 3) to disseminate patent information to the public. There is nothing in the general duties about ensuring the patent is "first art".
All I Want For Christmas Is My Constitutional Rights
From the SBC link, another patent under review:
"6,520,942 Reexam. C.N. 90/006,758, Ordered Date: Sept.
24, 2003, Cl. 604/290, Title: METHOD TO IMPROVE PERI-ANAL HYGIENE AFTER
A BOWEL MOVEMENT, Inventor: Edward L. Putman, Owner of Record:
Edward L. Putman, Vernon, CT, Attorney or Agent: Owner is
representing self, Ex. Gp.: 3761"
Well...
U.S. Cl. 604--290 6 Claims
1. A method to improve peri-anal hygiene comprising:
providing a gel of viscosity thick enough to rest for several seconds on a piece of toilet paper without causing noticeable disintegration of the piece of toilet paper;
dispensing a quantity of the gel onto the sheet of toilet paper;
applying the gel to an anal area using the sheet of toilet paper as an applicator; and
wiping the anal area with a dry sheet of toilet paper to dry the anal area of moisture left by said applying the gel.
Am I the only one who found this slightly amusing?
sig
IAALS.
I can't find any mention of the EOLAS patent on this list: Director Ordered Reexamination Check your sources!
U.S. Under Secretary of Commerce for Intellectual Property James E. Rogan
Man, I love him on Fear Factor.
Especially when he makes them eat worms and stuff.
Maybe we should help them out and point them to the goatse guy?
My other OS is the MCP!
That's SO unfair...
"Murphy was an optimist" - O'Toole's commentary on Murphy's Law
Was MS granted a patent on cookies today, or am I reading this wrong?
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
From what I understand, it isn't the patent clerks' job to scan the Internet and look for prior art, rather thier search for prior art is limited to thier own patent database.
I wouldn't be surprised if these 2 clerks were forced by USPTO policy to grant these patents, regardless of thier opinions. I suspect this policy has been influenced by the Commerce Dept. and many federal judges over many years of litigation..
Hell, they may ever reassign the same 2 clerks to re-evaluate the patents with a little pressure from the top to invalidate them in light of new evidence.
"Communism is like having one [local] phone company " - Lenny Bruce
The PTO is a beaurocracy. In every beaurocracy, the boss is the group that signs the paychecks, i.e. the U.S. Congress, for the PTO. The first rule in every beaurocracy is "Never Embarasss The Boss". Different organizational cultures have different meanings for "Embarass The Boss", but for U.S. Federal Agencies, that means being invisible outside the organization, and never doing anything that generates complaints about performance, well made or not. Right now, big corporations rule. They complain to Congress about the cost and difficulty of the Patent process (imagine that!), and the cost and difficulty goes down (because more junk gets through). To raise the price for the individual, raise the number of complaints about incompetently approved patents. It has to be after-the-fact, because Patent proceedings are confidential prior to issue. So create a web site that posts individual patents, the name of the patent examiner that approved the patent (very important), and the prior art and comments from experienced developers commenting that the content of the patent is obvious to ones skilled in the art. This is now a source of reliable information to be used by voters when they notify their congressman that X in the PTO does a damn poor job when it comes to prior art and obviousness. First, the PTO will find ways to do better checks on prior art, Second, the PTO will discover that many more submissions are obvious (and right now, many are), Third, Congress will give more money to the PTO for investigators to turn up prior art and reject unqualified patents, so that Congress will not be embarassed in front of their boss, the voters. There was supposed to be a .sig here
From the bottom of the uspto page (no pun intended):
METHOD TO IMPROVE PERI-ANAL HYGIENE AFTER A BOWEL MOVEMENT
Wiping your ass with moist toilet paper was actually patentable. Non-techies might be more interested to hear that absurd patents are not just limited to the technology realm.
The patent office is going to admit that they might have made a mistake? This has me extremely worried.
Is this prophesied in the Book of Revelations, or Nostradamus or something? Will this throw the Earth out of orbit? Somebody get Satan on the phone, and ask if it's snowing.
~Knautilus
No one seems to understand that throwing out this patent will have no effect whatsoever on reforming the patent system. This is just another case of microsoft proving that they are above the law by changing the rules to fit their current business model.
Yes, the patent system is wrong, and yes it should be reformed. But if MS wants to get out of this mess, they should have to change the rules for all, not just themselves.
Selectively applying the laws will only continue the problems we face now.
First off, Microsoft was denied the ability to argue prior-art in the original trial.
Secondly, it's the W3C that's requested the Patent Re-examination.
Thirdly, it's a patent re-examination, it's rare, but it's a normal part of the process. No one is changing any rules at all here.
But of course, it's benefits Microsoft, so clearly, there must be some shenanigans going on, Microsoft getting(buying) special treatment that no one else would get, right?
I think this case had two things going for it, neither to be underestimated:
1. Microsoft's power to litigate and make news.
2. The impact this patent would have on just about every web user.
Factor #2 has been demonstrated to have some leverage in the realm of very obvious patents (BT's hyperlink patent).
While Eolas' patent may seem obvious to your average software engineer, it isn't to your average Joe. Had it not been Microsoft, I think the impact of the installed base would have been a significant factor.
Had it been MS vs. the World, I think it would sink thier reputation to where even loyal Microsoft users would want to stop buying thier products.
"Communism is like having one [local] phone company " - Lenny Bruce
if you want to sue someone over a patent, sure.
/.-ers.
you had lawyers to file the claim - doesn't seem like a stretch to me.
if there is infringement, you'll reclaim your expenses 100% on top of any settlement.
hell a fee for the USPTO pre-litigation exam wouldn't even be necessary. most company's would shirk away at unnecessary litigation at the mere thought of giving the USPTO another look at their carefully overly-broad patent.
surprisingly though, it's -not- the lawyers who are propagating this type of stuff. at least, not the IP lawyers i've met (dealing with 2 firms of them and their foreign associates, i'd say i've met quite a few).
thing is, they're paid to file the suits their clients want filed. if they don't file ridiculous suits, they'll lose their client.
for instance -there is a certain cereal manufacturer that loves to sue people for supposed infringements on their 'trademark' - even in situations where it's -clearly- not a competing product, industry, or company. most times the -only- similarity is in regards to the -type- of animal they have for their trademark.
their business people come up with these desires to sue. each time they are warned that the odds of winning are astronomically against them, but the client insists - so what do you expect them to do? play moral judge and lose a client? c'mon. they're a for-rofit business. no firm would stand for one lawyer acting up like that - they'd be out of a job before the client could sneer. they advise against ridiculous suits - but they don't refuse them.
not all lawyers are ambulance chasers. most ip lawyers come from technical backgrounds - and think surprisingly similar to most
Out patent office is biased towards approving patents, not towards denying them. This is probably somewhat due to the understaffing (and lack of appropriate training) because it takes more energy and thought to come up with an effective argument to deny a patent then it does to just let it slide through. If we made a law which forced the patent office to raise the bar on which patents got through (it should probably be knocking down 90% of the applications it receives), then that would probably help quite a bit.
However, this is yet another good government idea that is probably politically impossible because such a solution will create too much outcry from players who are comfortable with the status quo (Another example: Try taking away the agriculture handouts from our large agribusiness corporations).
It's because of these corporate welfare handouts to agrobusiness that the Doha Rounds of the WTO negotiations in Cancun, Mexico fell apart. The US and Western Europe, who gives agrobusinesses billions in subsidies wants other countries like Brazil to open up their markets to imports while stopping those countries from giving their own farmers subsidies, driving them out of business, making those countries dependent of heavily subsidied imported food.
Should there be a Law?