US PTO Gives Microsoft Credit For Lotus's Homework

theodp writes "On Tuesday, the USPTO granted Microsoft a patent for 'Email Emotiflags' despite ample evidence of a circa-1996 Lotus Notes precedent called Mood Stamps — sender-chosen emoticons that appear next to inbox messages. Among those seemingly aware of the existence of Mood Stamps is Microsoft Chief Software Architect Ray Ozzie, who appears to have fielded questions about the feature while at Lotus. While simply Googling for 'Email Emotiflags' would have turned up evidence of this prior art (including a Slashdot discussion), the USPTO came up empty after instead going with the more-upscale Google Scholar and patent databases for its search effort. Think we can count on Ozzie to do the right thing and give the USPTO a heads-up?"

Comments

Clearly Slashdot is better than Google

[BadAnalogyGuy]

The USPTO should really rely on Slashdot more often to flush out these illegal patents.

Counting on Ray Ozzie to come to Lotus' defense is a fool's errand, though. Like all the once-luminary personalities that got bought by Microsoft, he belongs to them and will serve their interests instead of our own. :-)

Re:Clearly Slashdot is better than Google

[fuzzyfuzzyfungus]

Legally speaking, there is a duty to disclose any known prior art when filing a patent. In theory, we shouldn't have to depend on him doing the right thing, merely the legal one(typically a lower standard).

Re:Clearly Slashdot is better than Google

[BadAnalogyGuy]

Is the company required to consult him for every patent proposed?

Re:Clearly Slashdot is better than Google

[pushing-robot]

The USPTO has already stated that they won't be doing real prior art checks themselves. And why would they? They're self-funded, and each patent they grant is more money for them.

The way I see it, the USPTO got their money, Microsoft got an extra patent to impress their shareholders, and anybody else who wants to use similar technology would have a rock-solid legal defense. It's not the way it should work, but it works.

Re:Clearly Slashdot is better than Google

[delt0r]

..and anybody else who wants to use similar technology would have a rock-solid legal defense.

But can you afford it? These sort of thing can get ties up in legal proceedings for years.

But the lawyers will do nicely.

Re:Clearly Slashdot is better than Google

[MightyMartian]

Yes, it's a self-serving, unethical system. And that's the problem.

In my world, if you knowingly filed a patent with prior art, you would be fined 10% of your gross worth, you would be forbidden for filing any patent for a period of not less than 10 years, and any officer on your company would be forbidden to file any patents for 10 years, and any other company that they sat on would be forbidden for filing patents for 10 years, and any attempt to use another company (shell or partner) would be a criminal offense that would see your company stripped of all assets, you to spend no less than 10 years in federal prison and forbidden to ever have any direct or indirect dealings with the patent system ever again.

Re:Clearly Slashdot is better than Google

[Chris Burke]

The USPTO has already stated that they won't be doing real prior art checks themselves. And why would they? They're self-funded, and each patent they grant is more money for them.

Yeah, and up until recently (though I think it is still largely this way) we had the awesome situation where the USPTO defaulted to assuming patents were valid under the reasoning that the courts would correct any mistakes, and the courts defaulted to assuming patents were valid under the reasoning that the USPTO had done their jobs.

We need a way to give the patent office a financial incentive to do their job, and not just rubber stamp everything that comes their way. I don't know, something like... penalties for patents found to be invalid? Maybe an extra surcharge on the next application from the same party, or some longer-term hysteresis that increases the cost of filing based on how many times you've been rejected in the past. Yeah that idea has lots of problems. It's not easy. But the PTO is never going to work right when it is in their financial interest to not work at all.

Re:Clearly Slashdot is better than Google

[Freetardo Jones]

Counting on Ray Ozzie to come to Lotus' defense is a fool's errand, though. Like all the once-luminary personalities that got bought by Microsoft, he belongs to them and will serve their interests instead of our own. :-)

Because Ray Ozzie never served his own interests until he got to Microsoft? Yeah right.

Re:Clearly Slashdot is better than Google

[fuzzyfuzzyfungus]

I don't know what the standard for "known" prior art is. I'd assume that if something is known to the lawyer doing the filing, failure to disclose would be obviously out of bounds; but I don't know what their obligation is to find out. I'd find it pretty difficult to believe that whoever filed doesn't know about a feature of one of their major competitor's(who your chief software architect used to work for) products; but I have no idea whether they meet the legal standard for knowing or not.

Re:Clearly Slashdot is better than Google

[Tanktalus]

You really shouldn't post off-the-cuff like that. Put some more thought into it, and see if you can't come up with something really nasty.

Re:Clearly Slashdot is better than Google

[Will.Woodhull]

What sanctions can be brought against Ozzie if it can be shown that he withheld knowledge of prior art? Can he personally see jail time for this?

Since this would be a Federal crime, how would Slashdot request an FBI investigation of Ozzie's allegedly criminal behavior? Should we put it to a vote or will someone just step forward and do whatever is necessary to inform the FBI?

Re:Clearly Slashdot is better than Google

[Bobb9000]

Where exactly has the USPTO said this? They've been pushing for a requirement that applicants submit a thorough prior art search along with their applications, but that's a very different thing from giving up searching altogether. The USPTO rejects things all the time - in fact if you listen to many practitioners, they reject things on flimsy bases more often than they should, because making people jump through more hoops fills examiners' quotas and brings in more fees.

Personally, I think that they should be rejecting more often than they are, but prior art is not the area that needs work. Prior art is always bound to fall through the cracks occasionally, and horror stories will result, but that's a result of a stupid examiner and/or a dishonest applicant, not a larger systemic issue.

Re:Clearly Slashdot is better than Google

[Dachannien]

The USPTO has already stated that they won't be doing real prior art checks themselves.

Care to cite a reference?

Re:Clearly Slashdot is better than Google

[GameMaster]

I'm pretty sure that you end up paying the application fees no matter if they end up awarding the patent or not. In fact, last time I checked the costs of applying for a patent, I was under the impression that you keep having to pay out more for each time the patent gets kicked back to you for modification by the patent clerks. (I could be misunderstanding the process though).

Re:Clearly Slashdot is better than Google

[JasterBobaMereel]

"...anybody else who wants to use similar technology would have a rock-solid legal defense"

Since anyone challenging the patent could show prior art, the legal defence is on very shaky ground ....

Re:Clearly Slashdot is better than Google

[Bobb9000]

The duty to disclose prior art extends to everyone substantively involved in the prosecution of the patent, including those associated with the inventor or assignee. Seems to me that unless Ozzie was actively involved with the patent prosecution, he doesn't fall into this category. You're right that somebody who was should have known, though.

Re:Clearly Slashdot is better than Google

[Bobb9000]

What sanctions can be brought against Ozzie if it can be shown that he withheld knowledge of prior art?

Most likely none, since it's not actually a crime. The patent would be invalidated by virtue of the inequitable conduct, though, if Ozzie was sufficiently involved to qualify for the duty of disclosure.

Re:Clearly Slashdot is better than Google

[HeronBlademaster]

So if MS knowingly files a patent with prior art, then under your system no "partner company" could file a patent for ten years? I don't think you realize how many companies that is. (No, I don't have a number handy.)

My point is, no system should let one nefarious patent-filer screw everyone else over simply by letting the law's punishment take effect.

Re:Clearly Slashdot is better than Google

[HeronBlademaster]

That was your parent poster's point :P The people challenging the patent would have a rock-solid legal defense.

Re:Clearly Slashdot is better than Google

[C10H14N2]

Just take a cue from the Chinese

http://www.reuters.com/article/worldNews/idUSPEK2206820070710

Re:Clearly Slashdot is better than Google

[afidel]

From what I've seen the vast majority of patents held by large companies are used for one of two things, either as a defensive shield against patent claims from another large or medium sized company (MAD) or as a bargaining chip in cross licensing deals (AMD and Intel).

Re:Clearly Slashdot is better than Google

[kbrannen]

The USPTO has already stated that they won't be doing real prior art checks themselves. And why would they? They're self-funded, and each patent they grant is more money for them.

... We need a way to give the patent office a financial incentive to do their job, and not just rubber stamp everything that comes their way. I don't know, something like... penalties for patents found to be invalid? Maybe an extra surcharge on the next application from the same party, or some longer-term hysteresis that increases the cost of filing based on how many times you've been rejected in the past. Yeah that idea has lots of problems. It's not easy. But the PTO is never going to work right when it is in their financial interest to not work at all.

Why not hand out small fines ($5000 to companies of > 10 people and $1000 to small companies/individuals?) to the patient applicants for not doing their research well enough, and give half of the fine to the PTO worker who found the prior art as a bonus. Now the applicant and the PTO worker both have an incentive to do the research.

Re:Clearly Slashdot is better than Google

[Anonymous Coward]

It's called due diligence.

Re:Clearly Slashdot is better than Google

[Dachannien]

Okay, here's what happens (generally speaking):

1. You file your application. You have to pay a filing fee, an examination fee, and a search fee. If you file more than 3 independent and/or 20 total claims, you pay an additional fee.
2. At 18 months after filing, the application is published in accordance with our international treaty obligations (unless you request that it not be published and you file a statement indicating that you won't file the same application overseas). At this point, you have to pay a publication fee.
3. The PTO eventually examines the application and sends you an Office action. Usually, this will be a rejection, and the first rejection is always non-final.
4. You respond to the Office action, either presenting arguments as to why the examiner is wrong, or amending the claims. You have a three-month time limit to file a response, but you can buy up to three more months if you need to.
5. The PTO considers your response and examines any amended claims. If the examiner maintains the original rejections, or if all new rejections were necessitated by the amendment to the claims, then the next Office action is final. If the examiner went too far with the rejection or if the amended claims are allowable, the next action will probably either be another non-final rejection (go back to step 4 at that point) or a notice of allowance.
6. You can file another response after a final action, but unless your response places the application in condition for allowance, you will receive an advisory action indicating that the clock is still ticking for you. Alternatively, you can file a notice of appeal (with a fee), followed by an appeal brief (with a fee), and have your appeal heard by the Board of Patent Appeals and Interferences (an internal group at the USPTO which handles the first level of appeals of examiner decisions).
7. If you choose not to appeal, and you want to keep your application in the running, you would then need to file a Request for Continued Examination (with a fee). An RCE is generally filed with amended claims (and at this point, you would go back to step 3 to have the amended claims examined).

At some point, either you abandon your application, usually by not responding within the time limit, or you get a Notice of Allowance. Upon allowance, you must pay an issue fee in order to actually get a patent.

There are very few cases where any fees are refundable. Certainly, the filing fee is nonrefundable, and the search fee is nonrefundable once an examiner has conducted a search. There are a few cases where a fee that was paid improperly can be applied to future expenses in the same application.

This page lists various fees involved in patent prosecution at the USPTO.

Re:Clearly Slashdot is better than Google

[HeronBlademaster]

Due diligence doesn't protect partner companies from one partner deliberately screwing over all the other partner companies.

Company A is partnered with company B. Employee X, working for A, deliberately files a patent claim and ignores prior art.

Under my parent post's system, there is nothing company B can do to prevent getting hosed. It would automatically be punished because of one nefarious patent filer at company A.

That would be a very broken system.

Re:Clearly Slashdot is better than Google

[Synchis]

Indeed.

We have a similar system for punishing corrupt high ranking gov't officials here in Canada too...

Except instead of executing them, We scour at them menacingly, give them a cushy gov't pension and send them home to write their memoirs and have them published.

Oh, and we make them say sorry.

Re:Clearly Slashdot is better than Google

[Anonymous Coward]

Yeah, what you said. They'd pay the money for the patent, then get it invalidated. I guess they can afford to throw away money.

Re:Clearly Slashdot is better than Google

[TaoPhoenix]

scour?

You mean you can sentence them to clean the USPTO lavatories?

Re:Clearly Slashdot is better than Google

[pushing-robot]

I was referring to this. Reading it again, the USPTO doesn't explicitly state that they won't be doing their own diligent prior art searches anymore, but shifting the prior art responsibility to the applicant as part of a new "accelerated review" process is tantamount to it.

Re:Clearly Slashdot is better than Google

[T Murphy]

Add five more 10's in there and it should be perfect.

Re:Clearly Slashdot is better than Google

[multimed]

The USPTO has already stated that they won't be doing real prior art checks themselves. And why would they? They're self-funded, and each patent they grant is more money for them.

Why not just charge the fee for application only? Whether the patent is granted or rejected, the USPTO gets the same money. Or hell, tack on a rejection fee on top of it. Hell, let's just give the patent inspector a bonus for rejecting a patent when he/she can find clear prior art.

Re:Clearly Slashdot is better than Google

[Anonymous Coward]

Then why do they pay patent examiners at all? Why not lower the cost and time to patent to near zero and let everyone have a go at it?

Then patent conflicts could be settled in court as they are now, and research for prior art can be done/not done by whatever companies just as it's done now.

Haven't people already said they don't do prior art research because willful infringement costs more than not knowing?

If companies aren't doing the research, and the Patent office isn't doing the research, it seems like it doesn't matter to anyone but the patent lawyers anyway.

I'd file a patent on this idea, but they cost a bunch of money and provide no benefit.

Re:Clearly Slashdot is better than Google

[Dragonslicer]

"...anybody else who wants to use similar technology would have a rock-solid legal defense"

Since anyone challenging the patent could show prior art, the legal defence is on very shaky ground ....

You misread that. The defense side would be whoever is using the technology. The "rock-solid legal defense" would be in a case where the patent holder is suing the user of the technology, not where the user is suing or challenging to have the patent invalidated.

Re:Clearly Slashdot is better than Google

[Bobb9000]

I'm not so sure it is. The press release also noted, after talking about the presumption of patentability (which is stupid, IMO) that "Thus, to reject an application the USPTO is responsible for ensuring that any evidence indicating that the invention is not new or is obvious (known as 'prior art') is identified and explaining why the invention is not patentable in view of the evidence." (Emphasis added)

Will some examiners be lazy and not search as thoroughly when they have a nice package of prior art in front of them? Probably. But that doesn't change the fact that any patent issued this way will still be vulnerable to reexamination and invalidation. While it's possible that you're right, and the USPTO is just sucking down more fees regardless of the cost in patent quality, the backlog is too big right now to afford to encourage more apps, and with the hiring freeze in place, it's not looking to get any smaller. Anyway, corporations don't want invalid patents. They want overly broad patents, sure, but they want them to be defensible enough that the cost of opposing them is enough of a barrier to make the patent worth something. If there's prior art that's really on point, somebody's eventually going to find it (i.e., this article), and all it would take would be a reexam request to get the patent sunk.

Re:Clearly Slashdot is better than Google

[Will.Woodhull]

Most likely none, since it's not actually a crime.

That doesn't seem to fit with the rest of USA law. Is it not a crime to defraud an agency of the Federal Government? Or is there a different standard of law that applies to corporations and corporation officers than to mere citizens?

Re:Clearly Slashdot is better than Google

[dgatwood]

I think that by focusing on prior art, you are all missing the real point of this story. This shows why software patents are sometimes good. This patent ensures beyond a reasonable doubt that grotesque user interface abuses like this one never make it into any generally accepted standard....

Re:Clearly Slashdot is better than Google

[Bobb9000]

Unfitting though it may be, it's the case. It's not so much a corporate/individual thing as it is a patent office thing.

Re:Clearly Slashdot is better than Google

[Blakey Rat]

Is there some way we can try him for the crime of inflicting Lotus Notes on an unsuspecting world?

Re:Clearly Slashdot is better than Google

[Runaway1956]

You're modded funny. I guess you're being sarcastic. Hope so anyway. Just in case - - -
The first patent should never have been awarded, is should be held invalid as a patent, because it properly falls under copyright law. Once that first patent is done away with, for the proper reason, any similar patent requests will fall flat on their face.

Sorry if I'm being dense, just felt I should point that out. ;-)

Re:Clearly Slashdot is better than Google

[pushing-robot]

Then why do they pay patent examiners at all? Why not lower the cost and time to patent to near zero and let everyone have a go at it?

Actually, they're trying just that.

Re:Clearly Slashdot is better than Google

[rgarbacz]

Issuing a "faulty" patent should be treated (by the law) like building a faulty bridge.
Additionally (maybe) no license for issuing patents in case of a willful wrongdoing.

Re:Clearly Slashdot is better than Google

[sofar]

why not? this is how many armies train soldiers - punish the entire team for the misconduct of one person in it. It works great: the entire team will beat up everyone who crosses the line for doing this. And it's a lot better and cheaper in the long run.

Re:Clearly Slashdot is better than Google

[HeronBlademaster]

If the punishment were one year for partner companies, then maybe I could understand the system (though I would still not agree with it). But ten years unable to file a patent just because one guy decided to be a moron? That's just ridiculous.

Besides, what can these companies do to their unscrupulous (ex-)partner? Sue them for the lost revenues of the patents they can no longer file? Congratulations, you've burdened our legal system with more useless baggage.

Re:Clearly Slashdot is better than Google

[MightyMartian]

It will be clogged with a carnivorous feeding frenzy. Instead of using patents to beat on other folks, they'll be so busily trying to beat on each other, it ought to keep everyone else safe.

Oh, and did I mention that any lawyer involved in the process be permanently banned from practicing law? That would be good too.

Re:Clearly Slashdot is better than Google

[dgatwood]

Yes, I was definitely being sarcastic.

Re:Clearly Slashdot is better than Google

[MichaelSmith]

The only people I know who use them set every single message they send to "most important". As if that is going to make them pay attention to them...

Re:Clearly Slashdot is better than Google

[squiggleslash]

and anybody else who wants to use similar technology would have a rock-solid legal defense.

No, they will not. Prior Art is evidence to the USPTO when appealing the validity of a patent, not evidence to a court when defending yourself against a charge of patent infringement.

We've been down this path many, many, times before folks. The courts are only interested in whether it's a valid patent, not in whether it should be a valid patent. You want to use the technologies covered by the patent without licensing it, you, in practice, have to get the USPTO to overturn it. It sucks, but there you have it.

Re:Clearly Slashdot is better than Google

[Will.Woodhull]

Thanks for the link to Forbes story; reading it was sadly enlightening. It got me to do some quick research in the Code of Federal Regulations.

The PTO runs under its own agency regulations, and while these do recognize the crime of fraud, the regulations specify that when this is discovered, the redress will be disallowing the patent. Nothing more. There is no provision for holding any of the individuals involved accountable for their fraudulent acts.

So unless there is some general provision in the CFR that could be brought to bear, persons filing for patents do in fact become members of an elite group who are held to a different standard under Federal law than is the case for persons claiming similar ownership of property rights in any of the fifty states (such as filing for title to a vehicle or boat, etc). I believe that misrepresenting yourself as the owner of the $75,000 Rolls Royce you are selling is a felony in any state. But claiming ownership of I.P. of greater value that you know belongs to somebody else is okay under PTO regulations if you can get away with it. And it is really okay under PTO regulations if you DON'T get away with it-- you simply don't get away with it, that time.

I don't think that encouraging that kind of dishonesty is a good thing for the business community, or for society.

Re:Clearly Slashdot is better than Google

[zQuo]

Mod the parent up! The parent post is totally spot on about the courts and the PTO deferring to each other. I wish any of the solutions would be implemented.

The more senior PTO examiners I know in Alexandria, VA are very qualified, most with doctorates, and one or two have passed the patent bar... they are well versed in the field. However, they mention that they have to "turn off their common sense" in order to function as an examiner. Here are some things I've heard that seem relevant here:

1. The appeals boards and the upper management at the PTO almost always side with the applicants in granting patents, overturning the examiner's ruling almost all the time.
2. An examiner has a docket of cases, and has about a few hours on average to review an application depending upon their seniority (less time the higher up you are). Examiners are promoted based upon throughput, and approving applications is the best way to improve throughput. Rejecting cases is faster, but the case will come back again and again for a much greater total time.
3. The courts keep on extending the range of what is patentable. The results court rulings on marginal patents seems to change the internal PTO's idea of what is patentable.

Re:Clearly Slashdot is better than Google

[Dachannien]

1. The BPAI affirms rejections more often than not. See this study on the topic.

2. In the long run, continuing to reject a case, and getting counts for RCEs, will provide slightly more advantage to an examiner than an allowance. Allowances are also, generally speaking, harder to come by for junior examiners, since a primary examiner or supervisory examiner has to sign their cases, and a rejection is "trusted" more than an allowance since rejections can always be fixed in the next action.

3. KSR and Bilski have both had a tremendous impact in decreasing the rate of allowance, combined with recent quality policies in the USPTO which put allowances under more scrutiny and the training of many new examiners in a training academy where allowances are very uncommon.

On a side note, I would point out that the presumption of validity of issued patents is mandated by statute. In the courts, this has the effect of requiring a defendant to prove invalidity at the threshold of "clear and convincing evidence" (compare this to rejections in the USPTO on patent applications, which require only "prima facie evidence").

Re:Clearly Slashdot is better than Google

[zQuo]

Yes, your post is very informative and I am glad that someone who knows the PTO internals is posting. I mention anecdotally some examiners' own perspectives (from about six examiners from a single art unit) as typical post-work socializing.

Although only from a single work group, the examiners perspectives don't necessarily match reality. Many of them felt a lack of support from the appeals board and upper management in disputes with attorneys, ( such as restricting the scope? of patents). Most feel that giving an allowance will save time in the long run, although a rejection is faster in getting a count in the short term. They also feel as if there is pressure from above to give more allowances.

Everything else you said, including the difficulty of giving an allowances, especially for junior examiners, seems in line with what they said. Gripes are undoubtedly exaggerated over drinks, so take it with a grain of salt.

I keep hearing it's a new Microsoft

[just_another_sean]

Think we can count on Ozzie to do the right thing and give the USPTO a heads-up?"

I keep hearing it's a new Microsoft so maybe.

Ah crap who am I kidding... I'm betting no.

The patent system is broken by design

[Anonymous Coward]

It is a system where I can invent something, only to be told that I have to pay someone else if I want to use my own invention, because someone else thought of something just like it too. If being the first to develop something doesn't give you the edge in the market, then no patent will change that.

Re:The patent system is broken by design

[rxan]

If being the first to develop something doesn't give you the edge in the market, then no patent will change that.

Often being the first to develop something won't give you an edge though. This is exactly why patents exist. If I am the little guy and spend time and money developing an idea and product, I don't want some huge company to come along, steal the idea and all the work I put into it, and steamroll over me because they have a larger budget. This is exactly what would happen if patents didn't exist, and even though they do, it still does happen.

Re:The patent system is broken by design

[shentino]

Problem is you still get steamrolled by a larger LEGAL budget.

You are never safe in a country where a big bad-ass company can lawyer you to oblivion.

Re:The patent system is broken by design

[Freetardo Jones]

Sure in an ideal world that is the purpose that patents would serve, but in the real world patents are used by bigger corporations to bully around any smaller competitors.

Re:The patent system is broken by design

[Anonymous Coward]

Practically your patent discloses the invention and then the big company puts a couple of engineers onto the job and patents an incremental improvement or a necessary manufacturing technique. Then your only option is to wait it out, depriving yourself and everybody else of the benefit of your invention, or to cross-license, which allows the big company to use your invention and you still can't manufacture, because you're still the little guy.

Re:The patent system is broken by design

[Freetardo Jones]

Exactly, as the bigger corporation would just file a counter-suit to invalidate your patent.

Re:The patent system is broken by design

[JasterBobaMereel]

Patents won't do this .... the large company will copy your product anyway, and when you try an sue them even if they lose it can cost you so much they can drive you out of business and tie you up in the legal case for years ...and most likely they will simply counter sue you for infringement of patents they hold, so you will not make anything from it, and they will still be using your idea for nothing...

Criminal charges

[Norsefire]

There needs to be tougher (and by tougher I mean "some") penalties to stop patent nonsense like this. If a patent is applied for and prior art exists there should be criminal convictions (huge, EU-like fines) as a result. Then companies would have to do their homework before they file for a patent, instead of the current situation where they use an idea that was used 10+ years ago and either the patent is rejected or the USPTO misses it and they get the patent.

If the later is true (and it seems to be, quite a lot of the time) and they try to sue and prior art is turned up during the trial, there should be penalties strong enough deter cases like that, eg. If the defendant is not guilty because the patent is invalid the CEO goes to jail.

And then you may as well hang an "out of business" sign on the doors of East Texas court houses.

Re:Criminal charges

[RingDev]

There needs to be tougher (and by tougher I mean "some") penalties to stop patent nonsense like this. If a patent is applied for and prior art exists there should be criminal convictions (huge, EU-like fines) as a result.

So you're saying that as an independent inventor, I should assume a huge criminal liability by filing for a patent that may or may not have prior art that I was unable to find?

Yeah... that's a great idea. I'm sure it won't stifle innovation or the open dissemination of knowledge at all.

-Rick

Re:Criminal charges

[idontgno]

So, you're saying that patents should be allowed to exist, but hung with enough booby traps and high explosive that anyone attempting to defend a patent will be asploded for their arrogance.

An invalid patent, innocently applied for in accidental ignorance (after due diligence) of prior art, shouldn't be a life-ending event. Especially since not all patents are held by teh huge EVIL corporations.

Or do you make a distinction between innocent and ill-intentioned patent applications? It sounds like you assume that (A) failure to detect prior art on the part of the patent applicant in the course of a patent application is always willful, and that (B) only big corps will do this. The small basement inventor seems to either not exist in your world, or will always be capable of finding prior art and avoiding this kind of fiasco.

Re:Criminal charges

[nedlohs]

Yes.

Of course if you really were unable to find the prior art and did the required level of due diligence in looking for it then they won't be able to prove you knew about it, so you won't get convicted and hence won't get fined.

There should be consequences for prior art turning up that you didn't find, not fines, but stricter processing of all future patents (maybe for the next 5 years instead of all). Since you are clearly not good at looking yourself.

Re:Criminal charges

[MBCook]

It's simple. When a patent is overturned, the patent office must refund the price of the patent, plus interest, to the person/company who proved it shouldn't have been granted.

That way the patent office has a financial incentive not only to not grant bad patents, but also to fix their problems fast, not 20 years later.

After some fixed point (say 10 years) this obligation would end, so people couldn't go around striking down 40 year old patents people don't use just to make money.

Re:Criminal charges

[CannonballHead]

Of course if you really were unable to find the prior art and did the required level of due diligence

Since you are clearly not good at looking yourself.

Yeah... that's not a subjective ruling. "Gentlemen of the jury: it is clearly very easy to find this prior art. He just used the wrong search engine and didn't bother to try all 25!" Hmm.

Re:Criminal charges

[Sique]

After 40 years, patents are expired anyway, so no one except someone with an interest in historically correct attribution of an invention will ever try to overturn a 40 year old patent.

Re:Criminal charges

[Anonymous Coward]

... should be criminal convictions (huge, EU-like fines) as a result.

Should I quit my job where I am tasked to come up with new patentable ideas because I may be exposing myself to criminal penalties for the work of the bozo patent attorneys who take over the submission after I submit it to their inbox?

In a large corporate environment, patent applications are a lot like academic publications, lots of inventors (authors) who have varying degrees of input to the application. I am paid to be named inventor, to help put the application together, but in the end I have very little control over what is submitted. It would be political suicide to kill an application once it gets rolling and there are 100s of company man-hours invested in it.

Re:Criminal charges

[Freetardo Jones]

Of course if you really were unable to find the prior art and did the required level of due diligence in looking for it then they won't be able to prove you knew about it, so you won't get convicted and hence won't get fined.

You mean like how if you are innocent of a crime that you are never wrongfully accused and convicted? Yeah, that never happens.

Re:Criminal charges

[RingDev]

Of course if you really were unable to find the prior art and did the required level of due diligence in looking for it then they won't be able to prove you knew about it, so you won't get convicted and hence won't get fined.

Again, as an independent developer with little to no knowledge of patent law, patent searching resources, or what exactly meets the requirements of "due diligence", I'm see this as a horrible idea.

Just the phrase "due diligence" screams "SUE ME!" as we let lawyers hash out exactly what due diligence is as I the independent inventor foot the bill.

And how exactly is someone going to prove that they DON'T know something? You are talking about criminal charges for a thought crime.

And if I am criminally liable for my submissions, what the hell do we have the USPTO clerks for? If I'm going to be assuming 100% of the liability, I sure as hell don't want to be paying taxes for them to repeat what I've just done.

The system as it is now, is flawed. But the idea of applying criminal charges to people who file erroneous patents would be horrendous if applied resulting in the exclusion of the independent inventors and allowing only large organizations with substantial coffers and legal representations on hand to apply for patents. Which is the exact same problem we're dealing with now with the patent trolls.

-Rick

Re:Criminal charges

[JustinOpinion]

The scheme I've been thinking about* for fixing the patent system involves the patent being reviewed by two examiners: one who is trying to get the patent denied, and a standard examiner. It's like a mini court case: the applicants are arguing for their case, the "con" examiner is arguing against their case, and a (more senior) patent examiner judges between the two.

1.Patent application is submitted to patent office, with a non-trivial (but not enormous) fee. This fee keeps the useless applications to a minimum.
2. The "con" examiner looks over the application, and lists all the reasons he can think of why it should be denied. E.g. if it's too obvious. He does some searches for prior art both in the patent database and elsewhere (the Internet, journals, etc.). He puts his "this should be denied" case together and submits it.
3. The applicants see the "this should be denied" reasons. They have the option to withdraw their application, if they agree with the "con" examiner. Thus if they are made aware of prior art they had not otherwise known about, they can withdraw. Maybe they get half their application fee back. The other half goes to the "con" examiner as a bonus (this encourages them to do proper searches for prior art, etc.).
4. If the applicants disagree with the "con" examiner, they can push their application into the next round. In this round a more senior patent examiner looks over the patent, and compares what they are claiming with the evidence the "con" examiner managed to put together. He can then either grant or reject the application, without any refund of the application fee.

The point here is that the patent office makes the same amount of money whether they accept or reject the final application. And the "con" examiner has a financial incentive to put together a strong case against the patent. Moreover, this system prevents any applicant from claiming "I didn't know about that prior art!" either during the application process or in later patent court cases: because they were provided with a detailed summary of possible prior art. Of course if the "con" examiner can't find any reasonable rejection reasons, that's great: this can strengthen the patent holder's case for the application and any subsequent court cases.

By forcing the applicants to read and sign-off on a document detailing possible problems with their patent, they can't claim ignorance; there is a paper trail showing that they were made aware. This could be very nicely be combined with stiffer legal penalties for frivolous patents, at least in cases where they chose to willfully ignore the recommendations of the "con" examiner.

[*Like any scheme, there are plenty of problems (some of which have solutions that I didn't have time to get in to). Feel free to point them out. And yes, I'm well-aware that the primary problem is "reform is nearly impossible, this idea will never be implemented by the powers-that-be."]

Re:Criminal charges

[Anonymous Coward]

I would agree that criminal convictions would be way overboard in most cases. However, in this case, Microsoft filed the patent knowing full well that there was prior art. It can be demonstrated and proven that their Chief Software Architect knew about it. So, in cases where in can be proven that a company has *willfully* filed a patent on prior art, I think the penalty should be the same as willful infringement of a patent, because that is the type of damage they are causing to the public, who effectively owns prior art concepts.

Re:Criminal charges

[Anonymous Coward]

No, no, no, no! The Patent Office has been charged with doing this! If people in the Patent Office are incompetent, then it is time to treat them like any incompetent employee: fire them and hire someone competent!

Re:Criminal charges

[PitaBred]

Main problem I see is bribing the senior patent official. We need a little more base reform, such as denying patenting any kind of information such as genes, computer code, or algorithms. Process patents are way abused in many fields.

Re:Criminal charges

[SCHecklerX]

I have a better solution. No more business method or software patents.

Re:Criminal charges

[Dragonslicer]

There needs to be tougher (and by tougher I mean "some") penalties to stop patent nonsense like this. If a patent is applied for and prior art exists there should be criminal convictions (huge, EU-like fines) as a result. Then companies would have to do their homework before they file for a patent, instead of the current situation where they use an idea that was used 10+ years ago and either the patent is rejected or the USPTO misses it and they get the patent.

There's a pretty easy way to implement such a suggestion. As part of the patent application, add a paragraph about "to the best of my knowledge, I've done everything I'm supposed to do, and everything I've said is accurate" and get the applicant's signature below it. If you then discover that the applicant left out prior art that they knew about, you nail them with perjury charges. Lying to government agencies (the police, the IRS, and the courts come to mind pretty quickly) is usually not appreciated, and there's no reason to leave the patent office out of the group of agencies that you shouldn't lie to.

Re:Criminal charges

[sorak]

I would amend one caveat. There should be a due diligence criteria. If the prior art was something they should have known about (which in this case it was), then they should be prosecuted for fraud.

Re:Criminal charges

[MrMr]

What's the problem? You'll be paying 100K just to maintain your worldwide patent for it's entire life, but trying 25 search engines on one rainy afternoon is too much effort?

Re:Criminal charges

[nedlohs]

Nice join of two sentences from pretty unrelated paragraphs there.

There wouldn't be a jury in that second case for the subjective ruling. Since that was a procedure change .

If someone/some corporation submits a patent for which there prior art then turns up why is it so awful to examine their future application more carefully, seems like a rational allocation of resources to me.

Re:Criminal charges

[nedlohs]

So we should remove all the laws against murder because sometimes innocent people get convicted.

And we should never make/have made anything illegal because someone might be falsely accused and convicted at some point?

Re:Criminal charges

[nedlohs]

There already are criminal charges that apply to people filing erroneous patents.

A patent application has the normal "under penalty of perjury" language in it and requires to to affirm that you have disclosed all pertinent information. So intentionally leave something out that you do know about already triggers that.

And if they do find prior art that you did not there is an existing penalty - they likely lose out on a bunch of equivalence doctrine protections.

All I proposed was defining a set of guidelines that must be followed to do a prior art search and require the applicant to state they followed them. It'd even be good for the economy, since a industry will pop up that does prior art searches at the minimum possible level that qualifies.

Re:Criminal charges

[Anonymous Coward]

I'm confused by your suggestion: I can't see how this differs from what we have, except that you suggest a prior art search in additional sources. That is, indeed, a good idea.

There is a "con" examiner- the examiner. And there is a more senior examiner who decides whether the examiner's final rejection or allowance is appropriate- the supervising examiner. The applicants already see the "this should be denied" reasons- it's called an office action. No self-respecting patent attorney is going to suggest withdrawing an application merely on the basis of the prior art search you suggest unless it's absolutely identical, because then there's still inventive step and claim scope arguments to hash through.

If you're honestly arguing that the presumption against patentability is not enough to overcome some systemic incentive to allow crappy patents, I think you have little experience in this area and give no credit to examiners.

The issue with your suggestion is not non-implementation, it's pointlessness.

Re:Criminal charges

[Lost Engineer]

Due diligence is a standard in all kinds of cases, mostly civil though. In general all you need to do is record the sources you checked for, in this case, prior art. If anyone challenges your diligence later you can produce the list of places it wasn't.

Re:Criminal charges

[nns6561]

I agree with the parent. The grandparent's suggestion completely matches the system in place today. The one difference I have with the parent is that the more senior examiner is really more equivalent to the BPAI (Board of Patent Appeals and Interferences) than the supervising examiner.

Think we can count on Ozzie to do the right thing?

[Shadow of Eternity]

No.

Failed plaintiff case should compensate defenders

[cryfreedomlove]

I've been involved in a few patent litigations. They almost always settle out of court or the plaintiff loses outright in court. The problem is that even when the defense 'wins' the case, they still spend millions in that defense. Why not force the plaintiff to compensate the defense for causing them to waste so much money?

There Is a Possibility You Overlook

[eldavojohn]

Among those seemingly aware of the existence of Mood Stamps is Microsoft Chief Software Architect Ray Ozzie ...

Isn't it possible that (since he worked on the Lotus Notes project) Ray Ozzie is the originator of this idea and Lotus Notes did not have the foresight to patent this technology when he worked for them? Isn't it possible that he thought this idea patentable and in a better late than never fashion he patented it?

I don't think this is a novel idea and I think it should not be patentable ... I just find this summary to be very short sighted and subjective:

Think we can count on Ozzie to do the right thing and give the USPTO a heads-up?

What is "the right thing?" He works for a company with the priority to rake in cash. It's "right" in his boss' eyes, I'm sure.

Re:There Is a Possibility You Overlook

[Imagix]

Among those seemingly aware of the existence of Mood Stamps is Microsoft Chief Software Architect Ray Ozzie ...

Isn't it possible that (since he worked on the Lotus Notes project) Ray Ozzie is the originator of this idea and Lotus Notes did not have the foresight to patent this technology when he worked for them? Isn't it possible that he thought this idea patentable and in a better late than never fashion he patented it?

However his employment contact with Lotus likely had clauses about how Lotus owns the ideas since he came up with them in the context of being employed by Lotus.

Re:There Is a Possibility You Overlook

[Anonymous Coward]

In this case, it doesn't matter if Lotus Notes didn't have the foresight to patent this.

There's a window after creating the invention in which you have to patent it, and that has long since closed...

Re:There Is a Possibility You Overlook

[HolyChao]

The window is one year, but it begins when you first offer the invention for sale, not when you invent it.

IANAL, though.

Re:There Is a Possibility You Overlook

[delt0r]

In the US you only get one year to patent after publication assuming it was you. In the rest of the world *any* prior publication is prior art, even if you are the publisher...

Re:There Is a Possibility You Overlook

[Dzimas]

It doesn't matter if Roy Ozzie had something to do with the idea in Lotus Notes. All that matters is that there was prior art, developed by another company.

Re:There Is a Possibility You Overlook

[Anonymous Coward]

Plus once something is in the market place for a period of time, it cannot be patented even by the company and/or inventor that originated the idea. So in this case, Lotus couldn't patent it due to its own prior art.

Re:There Is a Possibility You Overlook

[Anonymous Coward]

Isn't it possible that he thought this idea patentable and in a better late than never fashion he patented it?

Nope. The rules are that if you don't apply within one year after public disclosure, the idea becomes unpatentable. Your own work can be used as prior art against you, if it's been publicly disclosed for at least a year.

Re:There Is a Possibility You Overlook

[Art3x]

What is "the right thing?" He works for a company with the priority to rake in cash. It's "right" in his boss' eyes, I'm sure.

"To rake in cash" is "the priority" for thieves. A thief steals because money has a higher priority than justice.

It is not right for money to be the number-one priority, even for a company, even a public one.

Re:There Is a Possibility You Overlook

[omkhar]

I can assure you that IBM (and Lotus as a result) do have a provision surrounding this.

lulz...

[Em Emalb]

"Think we can count on Ozzie to do the right thing and give the USPTO a heads-up?" /shakes Magic 8-ball

"My sources say no."

Damnit.

:) Re: MS patent

[T Murphy]

Should I be retaining a lawyer about now?

Count on Ozzie?

[Anonymous Coward]

That bathead-biting Satanic drug-addled reality-TV participant? You've got to be joking.

Re:Count on Ozzie?

[just_another_sean]

No, the other Ozzie, the guy who invented Lotus Notes. Which just might make him even more of a lunatic then the Ozzie you're referring to!

ROFL

[Anonymous Coward]

The disease is bad. Your cure is worse.

I hope you have thought your other opinions through a little further.

Actually its a great cure

[FreeUser]

The disease is bad. Your cure is worse.

Actually, I quite like the cure. It would be an end to patents once and for all, which given their chilling effect on innovation across just about every field (don't believe me? Look up what happened to aviation in the United States before and after the US government nationalized the Wright Brothers' patents on flight) would be a very good thing.

Re:Actually its a great cure

[rxan]

It wouldn't be an end to patents. Only large companies would be able to get patents because of the huge research costs to see if it has been patented or not. They would also be the only ones able to withstand the fines in the case that an idea was already patented. Everyone else would be driven six feet under.

Re:Actually its a great cure

[Freetardo Jones]

No, it would only end patents for small inventors because they wouldn't have the money to do the exhaustive searches to find any and all prior art or to pay the fines. On the other hand, huge behemoths like IBM or Microsoft would have little issues as they have huge groups of devoted staff to be used for this purpose. And if they did happen to misfile a patent, the fine would be peanuts to them.

Re:Actually its a great cure

[Tony Hoyle]

Patents for small inventions are already long dead. Sure you can get a patent, but it microsoft want to come along and use it anyway.. maybe file another patent.. unless you have *very* deep pockets there's absolutely nothing you can do about it.

Re:Actually its a great cure

[BarryJacobsen]

No, it would only end patents for small inventors because they wouldn't have the money to do the exhaustive searches to find any and all prior art or to pay the fines. On the other hand, huge behemoths like IBM or Microsoft would have little issues as they have huge groups of devoted staff to be used for this purpose. And if they did happen to misfile a patent, the fine would be peanuts to them.

There's a simple fix to that, have everything done by the patent office and the fee is a percentage of the gross revenue of the filing company and it's parent corporations (to prevent having small off shoot business just filing for the patent) or $X, which ever is more.

I think they will do the right thing

[Ralph Spoilsport]

Because it is a "new" micro$oft - the old microsoft was a ronery place to be. The "new" microsoft will be a "clean and happy" place full of "Good Will and happy customers."

Happy Happy Joy Joy.

Because we all know Microsoft is innovative ;)

[Anonymous Coward]

oh wait shit, did I just use an emoticon? Don't these comments go out via email? Oh shit, now I'm bankrupt! Better post ac!

This is insane.

[CopaceticOpus]

I wish someone could figure out a way to legislate common sense. We're talking about a patent and potential legal battle over putting little smileys and pictures next to a message? I'm sure we can find examples of six year old girls doing this hundreds of years ago, only it was on paper instead of on a computer.

And even if this was a completely new idea, all we are talking about is tiny pictures with an associated feeling. Is it such a breakthrough? Could we never hope for such an advance for mankind unless the patent system would encourage companies to spend millions on smiley face research? The only reasonable response to this patent request is to laugh and tell them to get over themselves.

Re:This is insane.

[Anonymous Coward]

I have never read a post more deserving of an "Insightful" mod. I wish I had wrote what I just read. Nicely done.

Re:This is insane.

[Anonymous Coward]

Mostly agree with you, however I wish the OP had made a more direct statement in regards to the silliness of patenting visual image art which should be at best copyrighted, but in this case the involved images were likely in the public domain before the neanderthals died out. Perhaps the OP thought the valid topic of patenting software being an absurd notion was an old and abused topic on Slashdot.

Re:This is insane.

[SpectreBlofeld]

We shouldn't *have* to legislate common sense - that's what judges are for, to express it in their rulings/judgements.

Patents can be declared invalid if it is ruled that they are 'obvious'. For instance, a patent for a door would be thrown out, but a new type of lock wouldn't.

The trick is, of course, finding judges with common sense...

Re:This is insane.

[DarKnyht]

But how else will we get out of that recession that we are in unless we have multi-billion dollar corporations throwing money on frivolous ideas.

I say more research! It isn't a completed idea until I can have Clippy offer to add smileys to the end of all my messages!

Re:This is insane.

[Art3x]

Ha ha! You fool! You fell victim to one of the classic blunders! The most famous is never get involved in a land war in Asia, but only slightly less well-known is this: never go expect common sense when money is on the line! Ha ha ha ha ha ha ha! Ha ha ha ha ha ha ha! Ha ha ha...

Re:This is insane.

[db32]

legislate common sense.

Do you even begin to understand what is wrong with that statement? Talk about circular. You do understand that the only reason legislation really exists is due to the lack of common sense right?

no it isn't patentable ..

[viralMeme]

"Isn't it possible that .. Ray Ozzie is the originator of this idea and Lotus Notes did not have the foresight to patent this technology when he worked for them? Isn't it possible that he thought this idea patentable and in a better late than never fashion he patented it?"

They why isn't his name anywhere on the patent, and why didn't Microsoft mention this prior art in the patent application?

Inventors: Gwozdz; Daniel (Redmond, WA)
Assignee: Microsoft Corporation (Redmond, WA)
Appl. No.: 11/152,524
Filed: June 14, 2005

'What is "the right thing?" He works for a company with the priority to rake in cash. It's "right" in his boss' eyes, I'm sure'

Breaking: Ubersoft patents use of vowels in electronic news tickertape

But it doesn't matter

[LWATCDR]

"Isn't it possible that (since he worked on the Lotus Notes project) Ray Ozzie is the originator of this idea and Lotus Notes did not have the foresight to patent this technology when he worked for them? Isn't it possible that he thought this idea patentable and in a better late than never fashion he patented it?"
Please look up prior art.
It was out and published for more than a year so too bad it is now not patentable.

verifable citations please ?

[viralMeme]

"However his employment contact with Lotus likely had clauses about how Lotus owns the ideas since he came up with them in the context of being employed by Lotus"

Excuse me but could you please produce some verifable citations for the above or are you just making it up as your go along. I mean how do we know the Space Invadors didn't invent them first :o

all your Intellectual Property belong us

Re:verifable citations please ?

[HeronBlademaster]

Most software companies have clauses like this in their employment contracts. The contract I signed with my current employer has a clause like it, for example.

Re:Failed plaintiff case should compensate defende

[shentino]

That's known as "loser pays" and will have such a chilling effect on frivolous litigation that the legal lobbies will not let it happen without a huge fight.

Merely suggesting it is political suicide.

USPTO Dullards

[TW Burger]

I guess I should call up the USPTO and apply to patent the alphabet. I would probably get it since it seems to be obvious that no one working there can read.

sounds like Livejournal

[Jailbrekr]

mood: puzzled.

Re:sounds like Livejournal

[Macgrrl]

Personally I prefer

mood: bemused

Please tell me who is saying that.

[Anonymous Coward]

WHO is saying it's a new Microsoft? ??? Is that like "the new Nixon"?

Offtopic: Bing may be an acronym for Business Is Not Good. Or maybe not.

Offtopic: I think Microsoft should hire Tina Palin, err... Sarah Fey, no... Mukluk Barbie. Failin' Palin, that's it.

Re:Please tell me who is saying that.

[ArhcAngel]

Offtopic: Bing may be an acronym for Business Is Not Good. Or maybe not.

Close

http://bingisnotgoogle.com/

that's not why the US patent system is broken

[viralMeme]

"It is a system where I can invent something, only to be told that I have to pay someone else if I want to use my own invention, because someone else thought of something just like it too. If being the first to develop something doesn't give you the edge in the market, then no patent will change that"

Filling in a bunch of forms isn't exactly inventing anything. That's not why it's broken. The reason the US patent system is broken is it allows anyone to patent nonsense such as the above, then wait until someone develops something tangible and then sue their asses off in court. It's known as the submarine patent ..

Re:that's not why the US patent system is broken

[Anonymous Coward]

Yes, that is a problem with the patent system. I still think though that the concept of monopolizing an idea is fundamentally flawed and that it is this fundamental flaw which is the root of all problems with the patent system.

Re:that's not why the US patent system is broken

[Freetardo Jones]

So you'd rather have companies never disclose this information at all by hiding them indefinitely as trade secrets? There are many things wrong with the patent system, but to block them entirely would lead to less propagation of information into the public domain.

Re:that's not why the US patent system is broken

[HeronBlademaster]

That's why I think all patents should be automatically invalidated after two or three years if the original patent filer has not produced anything tangible that uses said patent.

Re:that's not why the US patent system is broken

[Anonymous Coward]

Umm, Yes! Emphatically, yes. I'd rather have them never disclose the information, and leave me free to discover it myself.

Re:that's not why the US patent system is broken

[Anonymous Coward]

When was the last time you trawled a patent database for technical information? The patent system is a knowledge sink, not a source. Engineers are advised not to look at patents, for legal reasons and to avoid polluting their minds with "forbidden" ideas. The state of the art is furthered by reverse engineering, not by reading through heaps of documents which have been written to be as vague as possible.

Re:that's not why the US patent system is broken

[Anonymous Coward]

Thought experiment: do you think that an underfunded inventor should not have any right to the invention? It may not be op to him to go to market or not, but he's the only one who suffers when you invalidate the patent early.

Your solution means that someone can be stonewalled by the industrial players capable of producing an invention, because they don't want to kick back the licensing fees. They can sit out your new, shorter deadline and then go ahead and produce without any compensation to the patent holder. So it becomes a gamble of whether the earlier entry to the market is worth the license fees for the whole (now validated) patent period, or whether it is better to delay market entry and hope the patent is invalidated due to others stonewalling the inventor as well.

Keeping the term the same length means that the producers cannot game the system. They are either excluded from the market for the patent period, or they agree to licensing terms for that period. This seems more in keeping with the intended purpose of patents. The fundamental problem of patents is not term length, but the sickness of the legal system which has been explained many times in this story discussion now. The lawyers have removed impartial judgment and patent prosecution/defense/invalidation and turned it into a battle of who has the larger pile of lawyer-hours to tip the scale almost independent of the technical merit of said patents.

Re:that's not why the US patent system is broken

[sFurbo]

Just to strengthen your argument, excactly that have happened, in a slightly different way. When you have patented an invention, you have some time (a year, I think) to apply for patents in other countries. An inventor had invented a syringe where the needle is sucked into the syringe after use, so you avoid the risk of infecting others. None of the syringe producers were interested, the inventor couldn't afford a worldwide patent (and apparantly, there weren't a market, nobody wanted to produce it). Then, when the time limit for international patents expired, all of the manufacturers started making it, without paying the inventor a dime.

Heads up?

[PPH]

...give the USPTO a heads-up?

IMO, they already have their heads quite far up something.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Once AGAIN, the summary leaves out key patent bits

[Janthkin]

First, the linked article doesn't render properly in Opera. Grrr. Second, here's the actual claim:

1. A system comprising:
a processor;
a memory;
an email application maintained in the memory and executed on the processor to perform a method, the method comprising:
receiving an email message having an associated emotiflag specified by the composer of the email message to indicate an emotion the composer intends to be associated with the email message as a whole wherein:
the email message comprises: a message body;
and header data, the header data comprising an email subject;
the emotiflag is separate from the message body and the email subject;
and the emotiflag comprises: a graphical icon;
and a text tag;
and a display device for rendering a representation of the received email message such that the emotiflag is rendered as part of the representation, wherein rendering the emotiflag comprises rendering the graphical icon and the text tag.

Looking at the (brief) summary of "Mood Stamps" linked by TFA, I don't see the emotiflag comprises: a graphical icon; and a text tag;, and I don't see wherein rendering the emotiflag comprises rendering the graphical icon and the text tag.

New article summary: "Microsoft receives a very narrow patent on an incremental improvement over Mood Stamps."

dear anonymous troll

[rs232]

"how the fuck can slashtards look at the complete and utter failure of the patent office and want the same morons running your healthcare???"

How the fuck do you equate critics of the US patent office with supporters of a federally funded health care system?

More Prior Art for this

[Gavin Scott]

General Magic's (doomed) Magic Cap OS had this feature in 1994. The system had a filing cabinet full of "stamps" that you could apply to an email message, some of which were mood depictions.

G.

Re:bwahahah

[HeronBlademaster]

Because the people running the patent office have little or nothing to do with the people running the rest of the government ;)

Pior art bounties

[cockpitcomp]

There should be a way to pay a finder's fee for prior art during the approval process. I seems like it takes the slashdot crowd about 5 minutes.

The applicant's competitors should be able to make a case as well.

The applicant would, of course, have an opportunity for rebuttal.

Re:Pior art bounties

[Bobb9000]

You can already do this. it's called a "Protest"

And while there's no finder's fee, it's one of the few things you can do at the USPTO without incurring a fee. So that's something.

Re:Pior art bounties

[cockpitcomp]

Your protest "must be submitted prior to the date the application was published".

This would be an unknown unknown. I suspect they don't get many protests.

Re:Pior art bounties

[Bobb9000]

Good point - that wasn't mentioned when I learned about protests. Sneaky. They do receive them, but you're right it's not frequent.

Re:Failed plaintiff case should compensate defende

[Desolation Row]

The US has a very strict "loser pays" structure, where "loser" is defined as taxpayers without their own personal lawyer and lobbyist militia.

Ray Ozzie Created Notes At Lotus!

[azav]

This is amazing, because in 1991/1992, I had the opportunity to move over to the Lotus Notes team in Cambridge, Mass. Of course Ozzie knows about this since he created Notes. Argh.

Law in many countries

[Anonymous Coward]

In fact many countries have such laws. In Finland for instance, if you work even for a minute on an employer's time on a project, it belongs by law entirely to the employer.

This is not bad, good employers either sign papers that the employees can have the thing for the beginning, or the employees will use absolutely their own free time. This makes things very clear in the end.

Same feature was in MagicCap

[DdJ]

Essentially the same feature was built into the mail client of the MagicCap operating system, if I'm understanding what's being claimed.

I have a Sony PIC-1000, a Sony PIC-2000A, and a General Magic DataRover 840, and they all have this feature. Basically, when you're composing email (or in fact any other message -- email is not all that's supported), you can open a "stamp drawer" and drop "stamps" on the message to indicate any number of things. This could be done for purely cosmetic reasons, but it was also how you added metadata to the message. Particular stamps had code attached to them and could actually do things. And I think this goes all the way back to 1994.

Technologists and humor. LOL.

[Futurepower(R)]

LOL.

On topic: The USPTO was corrupted by the George W. Bush administration, partly by taking money away from it, because that is what the big corporations wanted. A corrupt USPTO makes it more difficult for small companies to enter markets. (Sorry, had to get on topic for a moment.)

But what about: BING -- But... It's Not Google!!!

And Bailin' Palin. She needs a job. Will Steve Ballmer hire her? She's been a governor! Think of the support Microsoft would get from the bible states.

Re:Clearly Slashdot is better than Google NO!

[davidsyes]

Ozzie is NOT untouchable. Surely, before mshaft hired him or even before they offered him the job they must have vetted him and others. They HAD to have run a background check on him. He HAD to have filled out an inventions/copyright declaration form. SURELY mshaft has more than 20 or 30 people who used to belong to or did work with Lotus Development Corporation before or after LDC moved from Castro Street in Mountain View, CA around the mid 1990s. We're talking about the RUTHLESS, CONNIVING msoft here. They don't destroy opponents they don't know anything about. They surely thoroughly know EVERY public and numerous private things about the companies they admire, fear or loathe.

No, Ozzie is NOT off the hook. He pretty much never can be. Look at his position of importance in the company. Even if anyone asked, "Hey, Oz, can you recall things you with Notes had but didn't, so we can add those unfulfilled but possibly relevant features to our some of our products?" He might respond with waffling and hawing, but once he knows there is a potential for his company to infringe, he should exercise due diligence in setting up or ordering or influencing the setting up of an "electric fence" to keep the herd from straying into bad legal areas.

I don't think he'll be saved from reproach. The USPTO examiner in this matter should be seriously reprimanded. Any FOOL using Google knows that using to vague or too specific/precise but combined terms can skew a search. Any devious person trying to f*ck with the system can craft a few wily searches for the sake of going through the motions to on paper feign doing due diligence. Probably (i bet) someone in msoft PROVIDED him with that skewing search string just to drastically reduce the number of finds so he could cite those that conveniently dodge the issue of infringement.

Re:Failed plaintiff case should compensate defende

[anyGould]

It also rewards rich people who can afford to raise the stakes. You might be 90% sure that you'll win, but the more money I spend hassling you, the more risk you have to accept. I can simply spend you out of the courtroom.

Emotiflags? Seriously?

[darpo]

No wonder Lotus software is such a steaming pile. They're spending time working on emotiflags!? Gimme a break.

Re:Failed plaintiff case should compensate defende

[flibuste]

Absolutely, and the absence of a `loser pays` system in the US is the reason why every other country sees the US as the home of lawsuits. It`s so bad it`s becoming a running joke.

"Hey folks, I'm going to USA this summer" "Woot! Did you remember to pack a lawyer with you?"

Re:Clearly Slashdot is better than Google NO!

[Bobb9000]

I'm not sure exactly what you're saying, but I never denied that he had the knowledge; the only relevant issue is whether he was directly involved with the prosecution of this particular patent. He may or may not have been - I don't know, but I suspect not. If that's the case, then what he knows doesn't matter. It's what the people who were directly involved knew that matters, and we don't have that information, though it does seem unlikely that no one had heard of that particular feature of Lotus Notes before.

I also seriously doubt that the examiner was fed a crafted search string by MS. It's my understanding that many examiners don't really use the general internet for their prior art searches. They've been trained to use past patents, academic papers, and industry publications, and many don't step far beyond that.

:)~ Sue Me Microsoft!

[Anonymous Coward]

..and blow me while ur at it. :O

Jury Duty for IT professionals

[sorak]

Lately, the phrase "Jury Duty" has been rattling around in my head. I have been thinking about how our legal system is based on the idea that regular citizens have a responsibility to help it run smoothly, even if we have to occasionally send out letters and make them.
.
Because the patent office cannot have an expert for every field, I am wondering if we cannot implement a system in which patent requests are sent out to randomly chosen experts in whatever fields that patent may qualify for, and if the experts' (possibly defined as anyone with a M.S. or higher from an accredited institution), input can be taken into account by the USPTO. Of course the USPTO people would still have to verify that any criticism is really valid, but at least they would not be doing 100% of the legwork, and the people evaluating the patents would be more well-informed than the typical patent clerk.
.
The hard part would be incentives. Because a patent application costs around $10 grand, it wouldn't be difficult to increase the fee and pay out rewards for citations of prior art. And phrasing it as "your contribution to the arts and sciences" may provide some incentives for the idealistic. I'm wondering, assuming that we want to reward the inventors of new technologies, how would others fix the current system?

Re:Jury Duty for IT professionals

[Anonymous Coward]

...sorta like research papers are reviewed?

Re:Jury Duty for IT professionals

[nns6561]

The problem with your suggestion is that it forces the inventor to disclose his idea to other potential competitors in the field without any guarantee of obtaining a patent. While many patent applications are published today, a significant fraction are not.

Most "patent clerks" are engineers with at least BS degrees in the field. They also have typically been spending the past few years looking at patent applications that are very similar to the one under examination. They are probably more familiar with the art than a randomly chosen "expert" who has a MS degree in the field.

While it may cost $10 grand to prepare and file a patent application, the USPTO only receives $1090 for an application. The rest goes to the patent attorney who writes it. Increasing the fee would probably allow for better examinations though.

NOT prior art

[Theaetetus]

Sorry, summary fails. Not that this is a stunning new improvement, but Lotus Notes describes:

Notes shows the stamp next to the message in the recipient's view and at the top of the rich-text area in the message itself.

The patent, on the other hand, says that:

1. A system comprising: a processor; a memory; an email application maintained in the memory and executed on the processor to perform a method, the method comprising: receiving an email message having an associated emotiflag specified by the composer of the email message to indicate an emotion the composer intends to be associated with the email message as a whole wherein: the email message comprises: a message body; and header data, the header data comprising an email subject; the emotiflag is separate from the message body and the email subject; and the emotiflag comprises: a graphical icon; and a text tag; and a display device for rendering a representation of the received email message such that the emotiflag is rendered as part of the representation, wherein rendering the emotiflag comprises rendering the graphical icon and the text tag.

Microsoft is hiding their emotiflags somewhere else, while Lotus puts them in the message body. Specifically, Microsoft uses an X-emotiflag tag in the header. At least one benefit is that people with non-Microsoft email programs won't see them at all, while people with non-Lotus programs would still see something - a broken image tag, maybe.

Not that this is a great patent, and some obviousness arguments could probably be made, but you can't rely on just Lotus Notes itself.

Yet more evidence to revoke the patent laws

[HiThere]

This is merely yet more evidence that the patent laws should be revoked, the patent office disbanded, and all extant patents declared null and void.

I'm sure that there are legitimate patents. They seem, however, to be in such a distinct minority that the damage to their holders is significantly less than the damage that the majority of patents are doing to the country.

I'm also sure that there are patents which are "nearly reasonable". Same argument. Even if you add the two together it seems to be a tiny fraction of all patents.

It may well be possible to craft a decent and useful patent law. We don't have one now, and the one we have is so bad that we'd do better to start fresh with a clean slate. I'd suggest, for a start, that a monopoly is not a legitimate approach. Monopolies are too dangerous. A negotiable percentage of the profit is much more reasonable, but the percentage needs to have an absolute cap of, say, 25%. That's pretty outrageous, but it's better than a monopoly. (And, yes, I realize that this allows things like the MS exploitation of Spyglass. So it's not a good approach either. Better isn't good. I may consider it possible that a decent patent law could be crafted, but this doesn't mean I think I could do so.)

Re:Yet more evidence to revoke the patent laws

[saxmanb]

How are narrowly drafted patents virtually worthless to anyone an indictment on the patent system?

  If Microsoft wants to patent this silly idea, so what? All you have to do to get around the patent is put the emotiflag in the message body. Geez. The sky is not falling.

Re:Yet more evidence to revoke the patent laws

[HiThere]

Only a certain class of attorneys are allowed to speak about what patent law means. Thus to defend oneself against even frivolous charges can quickly get very expensive.

Did you even KNOW about this patent before today? If not, you may have been violating it. That carries heavy fines, though not as heavy as if you had heard, and refused to believe that something so silly could be patentable.

Narrowly drafted? This one may be narrowly drafted, but the bloody well aren't ALL that way. You only get a term like "narrowly drafted" by comparison to others that are much more broadly drafted.

The patenting of obvious ideas is a drastic indictment of the patent system, because it allows expensive threats to be made against people who are not actually infringing any patent that should be valid. The same is true for patents which are vague about just what is patented. It's true that a narrow patent is not nearly as much of an indictment, but a thousand narrow patents can catch as many fish as one overly broad patent. And each one needs to be proven invalid individually.

I could continue, but I believe I've made my position and reasoning clear.

The same goes for the trademarks

[Anonymous Coward]

Consider Shareaza which was first released in 2002. Now a company claims the trademark of Shareaza and the USPTO is about to grant it. It would be enough to Google for it, but even several protest letters failed to change their mind.

PS: (Previous story on /. covering Shareaza: P2P Scammers Lawyers Attack Open Source Team).

Re:The same goes for the trademarks

[Bobb9000]

Trademark law and patent law are very different things. There's no such thing as "prior art" in trademark, because trademark isn't about rewarding innovation: it's about ensuring that consumers know what they're getting when they buy something marked with a particular brand name. A whole complicated set of rules exist for who gets to use a name that more than one party wants. I don't know whether those rules are being properly applied in this case, but whether they are or not, it's not similar to this story.

Patent this

[presidenteloco]

.n.
.||.
n||nn 

USPTO

[omb]

The __EVER_BROKEN_US_LEGAL_SYSTEM__ should allow "costs in cause" in all litigation, what you have just encourages abuse, since you can sue people with little risk.

The USPTO needs to be sanctioned and regulated, right now it is stupid disaster.

Well, no

[zogger]

He said "the whole team would beat them up"

Much mo' satisfying ;)

Re:Failed plaintiff case should compensate defende

[Lost Engineer]

Well since you made the gambling analogy... there needs to be such thing as a pot limit. Not every case needs to be able to be dragged out indefinitely, and it's a judge's job to say when enough is enough. Presumably legal costs should be proportional to the sum of money in contention.

Prior Art Declaration

[Nom du Keyboard]

Don't patents require disclosure of any prior art as part of the application? Certainly millions of Lotus e-mail users saw and used these once upon a time. Did this appear on the application?

Re:Failed plaintiff case should compensate defende

[anyGould]

"Proportional to contention" doesn't help when Big Bad Corporation steals your billion-dollar idea: they already have a billion dollars to fight you in court, you don't.

IBM...

[bwcbwc]

Should have a few words to say on this issue. After all, they bought up Lotus.

Think we can count on Ozzie to do the right thing?

[Anonymous Coward]

> Think we can count on Ozzie to do the right thing
> and give the USPTO a heads-up?

I truly doubt it.

He, after all, works for Microsoft. His loyalty, therefore, is only to Microsoft.