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USPTO To Reexamine Eolas, SBC Patents

Posted by timothy on from the they-did-it-for-sideways-swinging dept.

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!"

28 of 96 comments (clear)

  1. Pattent System by spooje · · Score: 2, Insightful

    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
    1. Re:Pattent System by *weasel · · Score: 5, Interesting

      there's something to be said for limited application resubmissions.

      the current malicious patent application process is to submit as broad and vague a patent as possible (particularly in software) and resubmit over and over, narrowing it down only as much as the particular examiner requires.
      (not all patent applying company's do this - but the ones who do, -always- do).

      at some point there should be a mechanism to prevent such obvious and disingenuous 'gaming' of the system.

      the patent idea is supposed to be cooperative: a limited monopoly for an inventor in return for public disclosure of the invention (provided it meets the qualifications for being patentable), with the intent of enriching the public domain.

      the business practice of filing patents for litigation purposes (sue your competitors out of business because they can't even afford to -defend- themselves) - is equal parts sickening and maddening.

      Patent litigation should have to go through a review process at the USPTO to determine fitness of the claim (paid for by the sue-er, reimbursed by the infringer in the event of guilt).

      instead we wind up having vague patents that are pushed across a reviewer's desk as fast as possible, being enforced in a court of law that does not and should not have the technical expertise to determine veracity of the claim.

      If there was an internal USPTO review process prior to litigation - then they'd have the authority to revoke, suspend, or demand more specific clarification of overly broad patents that slipped through.

      but for some reason there's never a call to restructure the procedures for established government bureaus. even when disaster strikes, and the problems hit the forefront, the solution always seems to be simply to create yet-another-layer of bureaucracy.

      --
      // "Can't clowns and pirates just -try- to get along?"
  2. How many times... by Space+cowboy · · Score: 4, Insightful

    ... 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!
    1. Re:How many times... by Zeinfeld · · Score: 4, Informative
      ... has this happened in the US ?

      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.

      --
      Looking for an Information Security student project suggestion?
      Try http://dotcrimeManifesto.com/
    2. Re:How many times... by joab_son_of_zeruiah · · Score: 2, Insightful

      This has nothing to do with the concept of software patents, or there merit.

      The reason for this is because there are patent lawyers that would be out of work if were not for software patents.

      There will be about as much progress here as there has been in tort law reform.

  3. I've always wondered by levik · · Score: 5, Funny

    If you lisence Amazon's 1-Click patent, do they give you an SDK to help understand this advanced and innovative technology?

    --
    Ñ'
  4. Hmmmm, other motivations.... by RedStapler · · Score: 2, Insightful

    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.

    1. Re:Hmmmm, other motivations.... by goldspider · · Score: 5, Insightful
      "Not to be entirely cynical but what are the odds that Microsoft had a little bit to do with the review by the USPTO."

      And what if they did? It's a patent that, in all likelihood, never should have been awarded, so it really doesn't matter much to me who got the USPTO to examine it as long as it and bad patents like it are thrown out.

      Seriously people, you have to stop cutting off your nose to spite your face. This is a good thing!

      --
      "Ask not what your country can do for you." --John F. Kennedy
    2. Re:Hmmmm, other motivations.... by kansas1051 · · Score: 4, Informative

      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.

    3. Re:Hmmmm, other motivations.... by RedStapler · · Score: 2, Insightful
      Hmm, wondered why it was so dark, oh wait, maybe my head wasn't up my ass.

      Sheesh people, the comment was merely meant to postulate on why the USPTO suddenly decided to review several of the patents. It doesn't make a bit of difference whether it was Microsoft, IBM, Sun, Oracle, *insert big tech company here* but more so what actually triggered it. It just seems especially odd that suddenly the review is triggered when there have been several significant efforts to get some of the more questionable patents looked in the first place for quite some time.

      I think it is a sad commentary when the only way to get changes done is through back door channels rather than overt/open channels (i.e. review process, etc.). The "in the bad" comment which seems get everyone's feathers all in a tizzy is really addressing this fact, can Joe Citizen go out and drive these changes or is it limited to those with sufficient $ to participate in the process.

  5. Putting a leash on the patent monster by dcavanaugh · · Score: 4, Insightful

    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.

    1. Re:Putting a leash on the patent monster by jkabbe · · Score: 3, Informative

      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!

    2. Re:Putting a leash on the patent monster by nudicle · · Score: 3, Informative
      I think the Patent Office needs something to do. Pulling the plug on misguided patents would be a worthwhile effort.

      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.

  6. What if it wasn't MS by oolon · · Score: 4, Insightful

    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

  7. Precedent by SparklesMalone · · Score: 4, Insightful

    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".

    1. Re:Precedent by ajakk · · Score: 2, Informative

      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.

      --
      Come play Heroes of Might and Magic Mini online.
  8. Anal Gel patent also being reviewed by arrogance · · Score: 2, Funny
    Did no one notice this one from the link in the article?
    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
    What a lovely patent. Anal gel.
    1. Re:Anal Gel patent also being reviewed by robslimo · · Score: 4, Funny

      From the patent:

      BRIEF DESCRIPTION OF THE DRAWINGS

      There are no drawings provided.

      Thank goodness, no drawings provided!

  9. So wait by Lane.exe · · Score: 3, Interesting
    If they review these patents, and find them to be void, every past legal proceeding involving these patents gets reversed? The decisions no longer hold, etc.? That actually seems unlikely. New laws 9 times out of 10 don't grandfather or reverse old decisions. It makes little sense that overturned patents should also.

    --
    IAALS.
  10. EOLAS isn't on the list by perrye · · Score: 2, Informative

    I can't find any mention of the EOLAS patent on this list: Director Ordered Reexamination Check your sources!

    1. Re:EOLAS isn't on the list by Xentax · · Score: 2, Informative

      Yes, but one of the other links in the blurb is a News.com story which says that the Eolas patent was also ordered to be re-examined.

      The same article also says Eolas is a 'one man software company', which is news to me though not very surprising. "Software Company" is a misspelling of "litigation engine" I guess...

      Xentax

      --
      You shouldn't verb words.
  11. No FEAR! by Anonymous Coward · · Score: 2, Funny

    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.

  12. Grandfathering is a different idea by JohnDenver · · Score: 2, Informative

    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
  13. Another patent that was re-examined... by gmajor · · Score: 3, Interesting

    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.

  14. What I have not seen mentioned by Anonymous Coward · · Score: 2, Insightful

    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.

  15. They're not "Changing the Rules." by AzrealAO · · Score: 2, Insightful

    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?

  16. I think you're right, with one exception... by JohnDenver · · Score: 2, Insightful

    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
  17. Higher bar for patents by samwhite_y · · Score: 2, Insightful
    If you look at the number of patents that are created per year (in the 10s of thousands I think), you would think a lot of creative and useful activity was being done. But if you look at the visible effect on our actual world and environment, it is not hard to see that most of these patents are not that original or do not have much new creative insight.

    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).