Slashdot Mirror
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?"
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 just find this summary to be very short sighted and subjective:
I don't think this is a novel idea and I think it should not be patentable
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.
My work here is dung.
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.
How can I believe you when you tell me what I don't want to hear?
..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.
If information wants to be free, why does my internet connection cost so much?
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.
The world's burning. Moped Jesus spotted on I50. Details at 11.
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?
Will
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."]
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.
Bobb9000 - raised by the wolves,
Oxford education as phrased by the wolves.
Just take a cue from the Chinese
http://www.reuters.com/article/worldNews/idUSPEK2206820070710
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.
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.
How can I believe you when you tell me what I don't want to hear?
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.
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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.
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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?