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PUBPAT Makes Progress Against JPEG Patent
The Data Compression News Blog writes "The US Patent Office has granted the Public Patent Foundation's request for a reexamination of the patent
which Forgent Networks is reportedly using to harass anyone that implements the
widely used JPEG format. They have already been challenged by many, but PUBPAT
had the first concrete case with 'prior art'.
In its Order granting PUBPAT's request, the Patent Office found that PUBPAT
raised 'a substantial new question of patentability' regarding every claim of
the the '672 Patent."
Question: If a corporation like this recieves licence fees for an invalid patent, What is preventing the licensees suing them for the money that they have extorted?
Prediction for end of Universe #42: Fencepost error in Quantum_bogosort.cpp
Oh wait, it already does. What's the difference between MP3s and JPEGs, such that we'll violate patents for JPEGs but not for MP3s?
The answer is to get experts in the field involved in examining patents before they are "rubber stamped".
If people that knew what they were talking about technically (and preferablly leaglly too) were involved in deciding if a patent was valid or not, we wouldnt see so many crappy patents. Enough people would be required to look at it such that people wouldnt be able to say "no, its not valid" because they have a vested interest in being able to use that stuff and not pay for it (also, a simple "no" wouldnt suffice, actual links to prior art or whatever else would need to be presented)
Also, introduce a clause in the rules that says that if a patent is found invalid (either in the initial investigation or later on by a court), the patent holder has to pay up to the PTO.
The idea of "you have to demonstrate your patent somehow" (e.g. for a patent on something like an encryption algorithim, you have to demonstrate working code for it) would also help.
As near as I can tell, the reason this patent (Tescher 4,541,012) is important is that it has EXPIRED (as of September, 2005... nice timing that). By invalidating the later patent, it basically drops the JPEG format into open domain.
However, let me make this perfectly clear: IANAL (Especially not a patent lawyer).
--Jimmy
I'm not sure that the problem is even the "smartness" of the people doing the reviews. The problem is that they have about four hours to find a reason to deny a patent.
/. and say "This patent sucks." It's much harder to encapsulate said suckage into a reason to deny a patent.
It's easy enough to sit around
In the modern world, I think that it is impractical to expect anyone, no matter how smart, to be able to find the weak spot in a patent in a mere four hours.
IMO, we would be better off going the other way. Make the initial patent application just a listing. Instead of writing Patent Pending, write Patent Requested. Then, when they try to use the patent, the challenge comes from the recipient. Also, patent infringement notices should all be sent *through* the patent office (for another fee). I.e. the workflow would be
File patent application.
Notify others that you feel that they are infringing.
The defendant (who is presumably in the field; otherwise how are they infringing) researches prior art and challenges the patent.
Both sides present their evidence to each other.
If neither has admitted the other is correct, they can then go to a review at the patent office. The loser of the review pays the review fees.
The fundamental problem with the current system is that it is not possible for a single person to perform such a review at the proper level of importance. Some of these patents are requesting multi-million dollar fees. Some would be happy with $10,000. How do you support both uses with a one size fits all fee?
If you are really committed to the idea of an up front application review, perhaps we should reconsider how patents can be used. E.g. what if a patent application also had to include the licensing fees? I.e. I might file a patent and say that users could pay either $10,000 for an unlimited license or $1 per use (with a cap of $10,000; i.e. the 10,001st use would be free). The applicant needs to set
1. The max fee per user ($10,000 in this example).
2. The fee per use ($1).
3. The max to be collected.
Every purchaser of the unlimited license would become a part owner of the remainder of the patent. Once the original patenter gets the max amount to be collected, all the licensers (to that point) now own the patent and may license it to others *up to* the amount that they themselves paid. Once they all have licensed the amount they have paid (or 14 years, whichever comes first), the patent expires.
Now, here's the kicker: base the patent application fee on the max to be collected amount. E.g. 5%. That will determine how much effort the patent office puts into researching the patent. As a result, people who can realistically expect their patent to be the next big thing will pay huge fees up front, will get lots of patent review, and will presumably make back the money in licensing. People who put in $5000 worth of work and are hoping for $10,000 in fees will pay much smaller application fees, get little patent review, but will not cost that much.
I would still prefer the delayed review. I think that it is fairer to all concerned and puts much less burden on the patent office. This is an example of an alternative.