Whose Prior Art Filing Triggered Eolas Reexam?

theodp writes "The Eolas patent case history shows another prior art filing was quietly made ten days before the widely-publicized W3C filing and two weeks before Tim Berner-Lee's reexam request. Now Ray Ozzie speculates the earlier filing was one being floated at the time that was jointly signed by a number of other parties who supported W3C member Dave Raggett's prior art, which Microsoft unsuccessfully tried to use in the $521 million Eolas lawsuit. Ozzie also notes that those involved argued for all to stand solidly behind the Raggett prior art and not cite anything else. So who are these other parties, and was it their filing and lobbying that triggered the Eolas reexam?"

Comments

I find the patent

[Srividya]

This is the Eolas text. Who thinks such a thing novel?

Re:I find the patent

[fatwreckfan]

If you'd cared to look at the post you'd see that it was never modded down. The poster has super low karma, so he posts at -1.

What this is all about

[milgr]

The poster could have indicated what all these patents were about - instead of referencing them by somewhat obscure names.

These patents deal with browser plugins - and relate to a lawsuit that Microsoft lost.

Re:Answer here

[SlashdotLemming]

From the greatest site ever: $2000 without a lawyer.

Re:Serious Question for L's and IANAL's

[Anonymous Coward]

Filing papers isn't too hard, but you'll want to be sure you are using the right form: (PTO/SB/42)

http://www.uspto.gov/web/forms/sb0042.pdf

There are several ways to file prior art depending on the status of the application, but this is likely what you are looking for. This filing, known as a "501", is free. It is unlikely that the PTO will decide to reexamine a patent on their own volition(known as sua sponte). Usually you have to file a request for a reexamination. The fee is about $9,000, plus the cost of counsel.

If you'd like to do some light reading on this kind of filing, it was created under Title 37 of the Code of Federal Regulations, rule 1.501 (cited as 37 C.F.R. 1.501). You can find a reference in the United States Code at 35 U.S.C. 301 (the law) and in the Manual of Patent Examining Procedure (MPEP), the book the patent examiners use, at MPEP 2202. All of these resources are on the web, but check that you are looking at the latest revision (Feb 2003, 8th edition, first revision). These are all available at the USPTO website.

This isn't intended to be legal advice, and this doesn't mean that I am accepting you as a client. If you are planning to try and take down a major patent (or do much of anything with the USPTO) you really ought to seek qualified representation. I'm not a lawyer, but I am a member of the patent bar (basically I have a license to file for patents).

case lost?

[wine]

Dan Gillmor link to the Patent Application Information Retrieval for this patent. All actions with regard to this patent are being logged there in the The File Contents History.

A interesting entree from 02-23-2001 says: Case Reported Lost! Unfortunately it was found again. :(

Here's the patent number

[Zenmonkeycat]

6,618,754 -- System for transmission of embedded applications over a network Filed October 23, 1995 Issued September 9, 2003 Info from the USPTO, so you don't need to open a new browser window to get the numbers and dates. You can cross-check anything you may have coded with that first date; if you wrote something in 1994 you win..... A NEW CAR! While you're there, check out this: Patent No. 1,087,186. Socrates Scholfield's "Illustrative Educational Device." What does it do? Hell if I know, but it's /supposed/ to demonstrate the existance of God. As I said, hell if I know, man.

In other words, a patent law DOS attack

[John Murdoch]

Hi!

I can understand why filing a patent costs a lot of money. But if a bad patent is granted it should be easy to have it revoked, not $9000+. After all, we're essentially doing the job that the reviewer should have done in the first place.

Or, we're abusing the patent process to jerk around a competitor. Or we're abusing the process to defeat the nefarious schemes of companies we despise. Or maybe we're senior citizens that have adopted filing patent claims as a hobby....

Once upon a time patents cost very little--and the actual costs of the USPTO (like lots of parts of the U.S. government) were borne by the average taxpayer. In the 1970s and following the government moved toward "user fees"--charging the recipients of a federal program for its costs. Thus visitors to most national parks pay a fee, cruise ship operators pay a fee for Coast Guard inspections, and children pay an annual fee to participate in 4-H. This is the same thing: the people who do business with the USPTO help fund its operation. And the cost structure deters people (hopefully) from clogging it unnecessarily.

Re:Another Harpy dives on Al Gore's corpse

[Zenjive]

The Washington press corps took Gore's statement, "During my service in the United States Congress, I took the initiative in creating the Internet," and changed "initiative" to "invent" which makes it mean something else entirely. In fact it becomes an absurd statement, one the RNC was glad to jump on like flies on shit and paint Gore as a liar.

Go here and scroll down to "Where does spin come from? Inventing the Internet".

Announcing tkWWW Version 0.5 Alpha

[N8F8]

http://www.webhistory.org/www.lists/www-talk.1993q 1/0145.html

Author: Joseph C. Wang (joe@athena.mit.edu)

tkWWW is a Tk interface to (WWW), which lets you send embedded buttons,
scrollbars, etc in hypertext written for WWW.

The Tk browser has the following advantages.

1. Since the entire user interface is written in an interpreted
language, it should be very easy to make modifications and extensions
to the system.

2. tkWWW can be configured with the "htext" widget which makes it is
possible to imbed Tk code into hypertext or with the "text" widget
which makes it possible to display multi-fonts. In the next few
months, there will be a new revision of tK which will allow imbeded
tK code with the "text" widget and support for the tkWWW "htext" widget
will be discontinued.

A quick Google returns some more info:

http://www.mit.edu/afs/athena/course/other/cdsde v/ CVS/WWW/TkWWW/

http://public.planetmirror.com/pub/hpfreeware/Tc l/ tkWWW-0.11/

http://www.funet.fi/pub/languages/tcl/harbor/ext en sions/

Re:Serious Question for L's and IANAL's

[Dashing Leech]

Yes. I didn't say I liked the expense of filing a patent, I can just understand it. The amount of work that should go into reviewing a patent application is quite large. The reviewer has to understand the invention and claims, understand the "obviousness" of work in that field, and perform a detailed review of previous related work to ensure no prior art. If done with a lawyer, those costs are obvious (lawyers almost always make something expensive).

True, this isn't what happens now apparently because they are swamped (something like a max of 8 hours allowed per patent review). So, in theory, they shouldn't be so expensive because not as much work is put into each one.

Reexamination -- Here's the Deal

[werdna]

The Patent Act provides several means by which a patent may be voided after issue. One, litigation to determine validity, is very expensive and very difficult, because of the standards of review that are applied. Another, reexamination, is substantially less expensive and the standard of review applied is substantally less onerous, although there are many reasons that an accused defendant would not use the process.

Litigation is difficult because the Patent Act provides that an issued patent is presumed to be valid. This means that the Court views all evidence through the "clear and convincing" standard of evidence (the civil law equivalent of "beyond a reasonable doubt"), and under very strict evidentiary rules (where testimonial evidence of prior uses is irrelevant unless corroborated by evidence that existed before the critical date of the patent. Moreover, exceptional (probably undue) deference is given to validity decisions made by the USPTO regarding art actually considered.

Reexamination can be done two different ways, inter partes (2 party) or ex partes (1 party). Ex partes reexam means that a petition is filed with the USPTO, citing the art and explaining why it raises a "substantial new question of patentability." (SNQP). If the PTO finds SNQP, they issue a reexam order, and the patent is examined in view of the new art forthwith and at expedited speed. No claims are presumed valid, and all art found by the examiner is fair game -- in short, it is treated by the USPTO as it was before the patent had issued. It's a "do-over," if you will, this time armed with SNQP art.

Upside of ex parte is that you are finished after you submitted the art. The downside is that you are finished after you submit the art -- you can't quibble again as the patentee argues for patentability, introduces new claims and such. You are out of the game from there on in -- it is just like initial prosecution all over again.

That's what inter partes is for. You get to "play along" with the applicant, sniping at him and arguing why both his arguments and new claims are invalid. You get to make a case, settled by the examiner, for invalidity. If you win, you can kill the patent.

The downside is that if you don't kill it, a patent that rises from reexamination, phoenix-like, may be weakened with possibly narrower claims, but is much, Much, MUCH stronger, because none of the art evaluated is going to be usable against subsequent claims. If the new claims are not so narrowed as to avoid infringement, you are pretty much left defenseless on validity grounds after the, now very angry, patentee sues your ass for infringement.

Now there is much more than I have indicated, the foregoing is super-simplified and, for that reason, not correct. if you are interested in submitting a petition for reexamination, by all means speak to an attorney before doing so.

On the other hand, this is an excellent low-cost way to kill patents in appropriate circumstances.

Re:Another Harpy dives on Al Gore's corpse

[mefus]

Thanks for an honest reponse, and for the link. I saw many very telling quotations from news services at that website, that demonstrated very clearly that Al Gore probably did play an important role in arranging legislation that would bring the Internet into the public sphere, an I-way into everyone's home. And that being so, I can see also that he did fulfill an important role in the 'creation of the Internet' as an entity existing outside of Universities and DARPA. It's like Newt Gingrich himself said:

In all fairness, it's something Gore had worked on a long time. Gore is not the Father of the Internet, but in all fairness, Gore is the person who, in the Congress, most systematically worked to make sure that we got to an Internet, and the truth is--and I worked with him starting in 1978 when I got [to Congress], we were both part of a "futures group"--the fact is, in the Clinton administration, the world we had talked about in the '80s began to actually happen.

Your post was very informative, but I see someone has already indicated that.

Re:Serious Question for L's and IANAL's

[LordLucless]

A member of the patent bar posted above.

No, it costs nothing to file prior art. But they're not going to re-examine the patent just because you tell them of prior art. You have to pay them $9,000 for a re-examination.