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Paul Allen's Lawsuit Patents To Be Reexamined

Posted by timothy on from the well-lookie-here dept.

eldavojohn writes "Last year Microsoft co-founder Paul Allen filed suit against eleven tech companies citing patent infringement on four of his patents. Groklaw has followed up with some interesting documents that reveal three out of the four have already been granted a reexamination by the USPTO with the fourth still pending."

40 of 57 comments (clear)

  1. Re:Grawklaw? Aren't they DEAD? by Samantha+Wright · · Score: 4, Informative

    You missed a story. All is well and accounted for.

    --
    Bio questions? Ask me to start a Q&A journal. Computer analogies available for most topics!
  2. Anon Patent examiner here by Anonymous Coward · · Score: 5, Informative

    I wouldn't get too excited yet. Of the three that have had re-exam ordered only one has had the next step, a non-final rejection. After the non-final rejection the patent owner then gets to respond with arguments, evidence showing non-obviousness (inventor affidavits), or amending claims. The reexam examiner can then if unconvinced Finally reject the claims. Even this is pretty meaningless because the examiners decision will be appealed to The Board of patent Appeals.

    Of the 190 appeals revived from re-exam about 20%of Final rejections are overturned in full and another 20% are overturned in part.

    http://www.uspto.gov/ip/boards/bpai/stats/receipts/fy2011_apr_e.jsp

    If the patent is still rejected after this the patantee can appeal to the CAFC. Then to CAFC en banc and then finally to the Supreme Court (en banc and Supreme Court are obviously (no patent pun intended) not guaranteed).

    So basically a Non-final action meas Jack and shit and Jack quit the patent office last week.

    1. Re:Anon Patent examiner here by VortexCortex · · Score: 1

      Well, if it's so damn easy and cheap (comparatively) to get an obvious idea patented because it's not in your limited database, and your all just pawns in a fundamentally broken bureaucracy ( it's "first to file" now, what's the point of secrecy of the submissions? A select few examiners must explore a world of prior art in a limited time? ), then why is it so damn hard to get obvious patents invalidated?

      Here's a hint -- "Geniuses" aren't special, and you are not professionals skilled in the art. Seriously, give the problem to any skilled individual and look at the solution they come up with, then tell me it wasn't obvious (no, don't say to a consultant: "is there a known solution" -- Pay a professional a small fee to come up with a proposed solution, or maybe, let the public do it for free by posting the end result requirements/results desired online and asking for solution suggestions from the public you serve -- The ugly truth is YOU DON'T ACTUALLY TEST FOR OBVIOUSNESS!!!

      The real problem is that patent examiners start off with the assumption that having more patents in existance are better. If you would like to reply (and be held credible) please also explain why the swinging on a swing patent was granted, and why we had to waste our tax dollars getting it invalidated. (Answer: It was easier to get the dumb idea through the system, than to get it invalidated.)

    2. Re:Anon Patent examiner here by thunderdanp · · Score: 2

      The real problem is that patent examiners start off with the assumption that having more patents in existance are better. If you would like to reply (and be held credible) please also explain why the swinging on a swing patent was granted, and why we had to waste our tax dollars getting it invalidated. (Answer: It was easier to get the dumb idea through the system, than to get it invalidated.)

      In my experience prosecuting patents, I have found examiners are quite willing to bend over backwards to make an obviousness rejection, combining references in such a way that sometimes I have to sit back at a loss for words.

      As to the issuance of any one patent that is objectively ridiculous and should never have been otherwise issued, like the swinging on a swing, humans are imperfect and that seems to be a case of an examiner being limited by the bounds of its search. Of course, the challenge for you is to find a reference that invalidates the patent :)

    3. Re:Anon Patent examiner here by thunderdanp · · Score: 2

      Aren't your statistics saying 60% of final rejections are affirmed in full and 80% are affirmed at least in part? Seems like more than jack to me.

    4. Re:Anon Patent examiner here by Dachannien · · Score: 1

      Seriously, give the problem to any skilled individual and look at the solution they come up with, then tell me it wasn't obvious

      The threshold for obviousness involves one having ordinary skill in the art. Not one who's an expert in the field, not generally one with years of experience. Ordinary skill. This varies depending on the field, but a lot of times, you're talking about the skill of someone fresh out of college, or maybe with enough experience to get past the OTJ portion of their job.

      and why we had to waste our tax dollars getting it invalidated

      The USPTO is funded entirely by the fees it collects from patentees and applicants. In fact, a portion of those fees end up diverted to other government projects. Not a single penny of tax revenue goes into patent examination.

    5. Re:Anon Patent examiner here by Splab · · Score: 1

      The problem is, most solutions are simple as soon as someone thought them up - reading about a solution is vastly easier than being the first to come up with it.

      I'm in the process of developing a new idea (both hardware and software) - as soon as the product is out on the shelves a lot of competing companies are going to ask "why didn't we come up with this?". It's an obvious solution to a difficult problem, but as far as I know; no one has yet thought of it.

    6. Re:Anon Patent examiner here by just_another_sean · · Score: 1

      The USPTO is funded entirely by the fees it collects from patentees and applicants.

      And therein lies the problem.

      --
      Creationist Textbook Stickers Declared Unconstitutional by CowboyNeal
    7. Re:Anon Patent examiner here by Dachannien · · Score: 1

      You're going to have to explain why that's a problem, then.

    8. Re:Anon Patent examiner here by Raenex · · Score: 1

      Given the abundance of utterly crap software patents, and just how simple it is to invent software, I find your complaint rather shallow and self-serving.

      Of course, the challenge for you is to find a reference that invalidates the patent :)

      Yeah, exactly. Most people when writing software don't publish every little novelty they come up with during the course of business. The whole thing is a farce and a blight on humanity. I can only hope one day your parasitical job is legislated out of existence so that productive people can actually be productive.

    9. Re:Anon Patent examiner here by Theaetetus · · Score: 1

      ( it's "first to file" now, what's the point of secrecy of the submissions?

      Just because a few senators have discussed changing the law doesn't mean it's actually been changed yet.

      Seriously, give the problem to any skilled individual and look at the solution they come up with, then tell me it wasn't obvious (no, don't say to a consultant: "is there a known solution" -- Pay a professional a small fee to come up with a proposed solution, or maybe, let the public do it for free by posting the end result requirements/results desired online and asking for solution suggestions from the public you serve -- The ugly truth is YOU DON'T ACTUALLY TEST FOR OBVIOUSNESS!!!

      The ugly truth is that you don't actually understand what obvious means in this context. It doesn't mean "no professional could come up with a proposed solution". If it were, there wouldn't be any point for a "first to file" system because only one person could possibly have come up with the idea: the very fact that two inventors file means that it must have been obvious, right?

      But no, that's not how it works. Multiple people can simultaneously and independently invent something, and any sufficiently skilled professional may well eventually come up the same thing, after an undue amount of experimentation. The point is that experimentation. If the professional can only do it after a month of hard work in the lab, then it's still nonobvious. If the professional can do it in 5 minutes on the back of a napkin, then it is obvious. And yes, that is actually tested for.

      The real problem is that patent examiners start off with the assumption that having more patents in existance are better. If you would like to reply (and be held credible) please also explain why the swinging on a swing patent was granted, and why we had to waste our tax dollars getting it invalidated. (Answer: It was easier to get the dumb idea through the system, than to get it invalidated.)

      Real answer: the swinging on a swing patent explicitly said that it granted a nonexclusive license to anyone who wants one, so it was effectively public domain as soon as it issued. No one could ever possibly be sued over it, so why not grant it and collect the fees?
      Additionally, we didn't have to waste our tax dollars getting it invalidated. The patent expired without the first maintenance fee having been paid. There was no reexamination, no court decision, nothing: NO cost, WHATSOEVER. The inventor never paid the maintenance fee, and the patent expired in 2006.

      The real problem is that people who know very little about the patent process start off with the assumption that they know more about it than Examiners or attorneys who practice in it. And then they condescendingly rant about things like obviousness and tax expenses, based on their incorrect presumptions.

    10. Re:Anon Patent examiner here by sjames · · Score: 1

      Ordinary skill would seem to call for a middle of the road level of experience. Not the most senior and not fresh out of school. That is where most professionals are in their career, after all.

      Yes, the USPTO itself is funded by application fees. However, the courts and armies of lawyers that must get involved in invalidating the latest USPTO mistake cost many millions and are NOT funded by patent applications. The lawyers are paid by draining the economy directly and the courts are paid through involuntary taxation draining the economy.

    11. Re:Anon Patent examiner here by sjames · · Score: 1

      The USPTO is paid by satisfied customers, which means the more patents they approve, the more fees they get. Meanwhile, they suffer no costs when they allow an invalid patent.

    12. Re:Anon Patent examiner here by sjames · · Score: 1

      The bigger problem is the number of solutions that become obvious once the problem is identified.

      Most of the crazy patent lawsuits out there aren't cases where the solution looked obvious in retrospect so someone decided to infringe. They are cases where the same problem inspired the same obvious solution and someone with a few 10s of K to waste beat a path to the patent office with it. The people being sued never saw the patent they're being sued over and never looked at the patented solution first, they just solved the same problem in the same way because the solution really was obvious.

      It's also quite common for an idea to come up and be put aside several times before someone grabs a patent on it simply because it was close but not quite adequate. I personally worked out in about an hour, a one-click idea that would violate Amazon's patent (even though I did it before there even was an Amazon). I was at a small company that couldn't afford the inevitable chargebacks that would result and since no physical goods were involved, there was too little evidence either way, so we tabled that idea and required login every time. Had I happened to be working for a larger operation shipping physical goods, the 1 click order might have ended up in production.

      In any event, it wasn't and still isn't patent worthy. It's just a natural extension to the small shop having customer's info on file and filling an order by phone based on recognizing the customer's voice..

    13. Re:Anon Patent examiner here by thunderdanp · · Score: 1

      Gotta love slashdot. It's much easier to be derisive and speak in generalities instead of citing any relevant evidence and constructing a cogent argument. Being published isn't necessary for software to qualify as prior art; its use need merely be public. Moreover, if you truly did come up with the patented idea first, feel free to claim your rights, that's a benefit of being in America. It really seems like a substantial number of slashdot posters suffer from extreme hindsight bias.

    14. Re:Anon Patent examiner here by Raenex · · Score: 1

      Gotta love slashdot. It's much easier to be derisive and speak in generalities instead of citing any relevant evidence and constructing a cogent argument.

      I cited no less evidence than you.

      Being published isn't necessary for software to qualify as prior art; its use need merely be public.

      What the fuck do you think it means to publish something?

      http://www.onelook.com/?w=publish

      verb: prepare and issue for public distribution or sale

      When you're writing software, especially before open source became so popular, the average developer doesn't go out of their way to publicize their methods.

      Moreover, if you truly did come up with the patented idea first, feel free to claim your rights, that's a benefit of being in America.

      Maybe some people actually want to get work done and not act like a parasite for patenting every stupid little invention they come up with.

      It really seems like a substantial number of slashdot posters suffer from extreme hindsight bias.

      No, the problem is that far too many patents about being handed out like candy, and most of them are for obvious implementations of combinations of technology. Tell a smart developer the problem to be solved, and chances are they could come up with the solution that resembles the patent. When you go look at the patent, it's full of a bunch of mumbo jumbo to describe obvious ideas.

    15. Re:Anon Patent examiner here by thunderdanp · · Score: 1

      I cited no less evidence than you.

      Fair enough. For public use, see 35 U.S.C. 102(b). You will see the publication bar is separate and distinct from the public use bar.

      No, the problem is that far too many patents about being handed out like candy, and most of them are for obvious implementations of combinations of technology. Tell a smart developer the problem to be solved, and chances are they could come up with the solution that resembles the patent. When you go look at the patent, it's full of a bunch of mumbo jumbo to describe obvious ideas.

      I wasn't aware software patents were being "handed out like candy." After making a very brief search, it seems allowances are granted less frequently for software applications than many other applications. http://glennfosterpllc.blogspot.com/

      Indeed, allowance rates generally have been on the decline. http://www.patentlyo.com/patent/2007/02/uspto_allowance.html?cid=60483264

    16. Re:Anon Patent examiner here by Raenex · · Score: 1

      Fair enough. For public use, see 35 U.S.C. 102(b). You will see the publication bar is separate and distinct from the public use bar.

      Lots of software is never made public at all, and it's not easy to find somebody who was using a technique unless they went out of their way to publish it. It does no good that somebody, somewhere was using the technique if you can't find it, as you so glibly pointed out in your post: "Of course, the challenge for you is to find a reference that invalidates the patent :)"

      I wasn't aware software patents were being "handed out like candy."

      I just don't know where you've been then since the 90s and on.

      Indeed, allowance rates generally have been on the decline.

      Yes, there's been pushback in recent years as the abuses piled up.

  3. Re:Grawklaw? Aren't they DEAD? by ashvagan · · Score: 1

    I'm glad it's sorted. It nearly gave me a heart attack!

  4. A real shame by Man+On+Pink+Corner · · Score: 4, Insightful

    Paul Allen has done a lot of great stuff (and some not so great stuff) for the Seattle area, but on the whole he's definitely made a positive contribution. Now, at a time in his life when he might have looked to the Gates Foundation or other global interests to occupy his time, he decided instead to buy up a bunch of bullshit software patents and go trolling.

    So fuck off, Paul. You could've made a difference, but you decided to enrich a gang of lawyers instead.

    1. Re:A real shame by topham · · Score: 1

      He's doing it to affect his investments. It's about manipulating stock values, he doesn't give a crap if the patents survive a challenge.

    2. Re:A real shame by Man+On+Pink+Corner · · Score: 3, Informative

      The Cinerama restoration and KEXP's migration beyond college radio come to mind. Other people would cite EMP, although I'm not a fan of that one. He has also funded some interesting (if abortive) scientific projects like the Allen Telescope Array.

      I don't live there so I don't know anything about his various South Lake Union ventures and schemes, but I will say that my impression of Allen was generally positive prior to what he's doing now. Not that he gives much of a hoot what some random people on Slashdot think about him.

    3. Re:A real shame by Anonymous Coward · · Score: 1

      You mean the Paul Allen that's giving the bulk of his 13 billion dollars to charities? Well and, you know, funding the first real crack at space travel for the rest of us? And all the museums and millions (maybe billions now?) of dollars in charitable contributions he's already made? That's the guy you want to go "fuck off" for "enrich[ing] a gang of lawyers"?

      You need a real bad guy to vent about man. It'll do you good.

    4. Re:A real shame by Nyder · · Score: 1

      Paul Allen has done a lot of great stuff (and some not so great stuff) for the Seattle area, but on the whole he's definitely made a positive contribution. Now, at a time in his life when he might have looked to the Gates Foundation or other global interests to occupy his time, he decided instead to buy up a bunch of bullshit software patents and go trolling.

      So fuck off, Paul. You could've made a difference, but you decided to enrich a gang of lawyers instead.

      I live in Seattle, and honestly dude hasn't done shit but try to make more money in his pocket.

      --
      Be seeing you...
    5. Re:A real shame by Man+On+Pink+Corner · · Score: 3, Insightful

      So what's his angle? Why is someone with that kind of reputation stooping to patent trolling? Do you think that's what Allen wants to be remembered for?

      I don't disagree with you about his many positive contributions (and I believe I made that very clear), but this is like Bill Gates waking up one morning and deciding to go club seals with a video crew tagging along. Is it profitable? Not likely. Is it a good PR move? Of course not. Is it a masterstroke of respectable villainy, worthy of history's all-time great evil overlords? No. It just doesn't make any sense.

      For one thing, if I were that wealthy and didn't care about my legacy or public image, I'd get more serious about my evil-doing. I wouldn't fart around with a bunch of chickenshit patent suits. I'd build a vast island fortress in the desert and staff it with robotic underage hookers or something.

      Anything but engage in this sort of penny-ante legal lameness, which does nothing but tarnish my reputation among informed, technologically-literate people.

    6. Re:A real shame by Anonymous Coward · · Score: 1

      Not ALL patents by successful people are trolled patents - some of them (most outside of .com's) actually invent stuff that helps the world in some way significant enough to have earned the money they make. These are pretty big companies he's going after for stealing his work - mostly ones that DON'T actually do anything for society (Yahoo! for example).

    7. Re:A real shame by cthulhu11 · · Score: 1

      Well, let's see -- we had a stadium with a new roof that wasn't even paid off, but there was a vote re tearing it down and building not one but two replacements. We said no, but it was done anyway, resulting in higher sales taxes, and more income channels for PA. The LSU development -- more cookie-cutter mixed use buildings that again are income channels for PA. The SLUT -- a vanity trolley because PA wanted one. Slow, limited capacity, just one line. Benefit to Seattle is limited to an increase in bicyclist injuries.

    8. Re:A real shame by StripedCow · · Score: 1

      Or maybe his intentions are to collect a lot of money from these patents and do something useful with it, like, say, medical research.

      --
      If Pandora's box is destined to be opened, *I* want to be the one to open it.
    9. Re:A real shame by a-yz · · Score: 1

      Or maybe he needs a new oar for his little boat: http://en.wikipedia.org/wiki/Octopus_(yacht)

  5. Definition of non-patentable by Mike_K · · Score: 2

    Isn't one rule of "novelty" for a patent that just about any expert in the field wouldn't be able to come up with the same solution to the problem? Because IIRC, his company basically gets experts to sit together with lawyers and speculate about the future. And that would pretty much mean to me that any expert in the field can come up with the same solution to the problems these patents describe. Which would make these solutions, well, non-patentable and the patents invalid.

    m

    1. Re:Definition of non-patentable by the+eric+conspiracy · · Score: 1

      No. You are completely wrong in every detail.

      Novelty means no prior art.

      What you are thinking about is obviousness, and the hurdle for that is much lower. The definition is that it is not obvious to someone with ordinary skill. Not experts.

  6. USPTO reexam means game over for these IV patents by gavron · · Score: 1, Interesting

    Sometimes I take pride in the /. community. The people who post here show clear and decisive understanding of the issues.

    Sometimes I see this thread, which as of 201105290137z shows two sets of comments:
    1. A lack of understanding of USPTO patent re-examination process
    2. Trolls about groklaw being done

    With all due respect, and whether or not groklaw is done (it's not), the USPTO re-examination is the beginning of the end for ex-MS-troll Paul Allen's world domination. Whether you agree with software patents or not (I don't), the patents on the face of it will not survive due mostly to prior art. After prior art there are issues of non-patentable material, and methods, but I doubt it will get that far.

    Consider this one man saying "BOO" to those of you who instead of addressing the issue from a seat of knowledge are either taking potshots at groklaw or have no understanding of the USPTO process. If you're from another country... I'm sorry the US system is different than yours.

    E
    Tucson AZ US

  7. Re:USPTO reexam means game over for these IV paten by cthulhu11 · · Score: 2

    The people who post here show clear and decisive understanding of the issues We demand rigidly-defined areas of doubt and uncertainty!

  8. Re:Grawklaw? Aren't they DEAD? by Angeret · · Score: 1

    I too thought Groklaw was on a wind-down and also missed further news of a handover. Lack of this simple information isn't usually the case for such an uneducated and denigrating outburst.

    Aah... Posting AC. One understands now. Someone seems to have missed their Ritalin today and fancied stirring the hive a little? Never mind, I'm just nipping out to shoot some people - more fun than screaming abuse at them :)

    At least we still have Groklaw...

  9. Re:If you're unfamiliar with Paul Allen... by Tamran · · Score: 1

    ...Paul Allen has mistaken me for this dickhead Marcus Halberstram. It seems logical because Marcus also works at P&P and in fact does the same exact thing I do and he also has a penchant for Valentino suits and Oliver Peoples glasses. Marcus and I even go to the same barber, although I have a slightly better haircut.

    Is that a play on the scene from American Psycho?

  10. Re:Grawklaw? Aren't they DEAD? by gtall · · Score: 1

    You're an idiot, that's what's going on.

  11. Re:USPTO reexam means game over for these IV paten by Theaetetus · · Score: 1

    Sometimes I take pride in the /. community. The people who post here show clear and decisive understanding of the issues.

    Sometimes I see this thread, which as of 201105290137z shows two sets of comments: 1. A lack of understanding of USPTO patent re-examination process 2. Trolls about groklaw being done

    With all due respect, and whether or not groklaw is done (it's not), the USPTO re-examination is the beginning of the end for ex-MS-troll Paul Allen's world domination. Whether you agree with software patents or not (I don't), the patents on the face of it will not survive due mostly to prior art. After prior art there are issues of non-patentable material, and methods, but I doubt it will get that far.

    Consider this one man saying "BOO" to those of you who instead of addressing the issue from a seat of knowledge are either taking potshots at groklaw or have no understanding of the USPTO process. If you're from another country... I'm sorry the US system is different than yours.

    So, you qualify under comment type 1, huh?

    First, from a proces perspective, the USPTO would not even begin to address prior art if there were serious issues of non-patentable material and methods. The Office looks first for patent-eligible subject matter - why bother exhaustively searching the prior art to determine that your mathematical equation is, in fact, new and non-obvious when the equation isn't patentable in the first place? So, "after prior art there are issues of non-patentable material" and not getting that far is simply incorrect.

    Second, the majority of patents survive re-examination. The USPTO helpfully provides data here. Only 11% of patents lose with all claims canceled. 23% get reissued with no changes, and 66% get some narrowing amendments, but still get reissued. So, it's unlikely that the USPTO reexam means "game over".

    Consider this one patent practitioner saying "BOO" to you for shouting "BOO" at people who have no understanding of the USPTO process.

  12. Re:USPTO reexam means game over for these IV paten by Theaetetus · · Score: 1

    Could PA actually be doing some 'real' good by invalidating an entire group of software patents by invalidating his own, albeit at his own expense (I think he can afford it) and thus opening the door to some innovation based on these now 'available' concepts?

    No, if he wanted to do that, he could just withdraw them from issue, not pay maintenance fees so that they expire, or even publicly announce that he gives everyone in the world a permanent, irrevocable non-exclusive license for the lifetime of the patents. And all of those methods are free.

  13. Re:Not true. by sjames · · Score: 1

    The swing patent and others suggest a bias towards approving patents. One examiner makes one (incredibly bad) judgement call and wham! there's a patent. Contrast how many appeals there are and how many concurring opinions are required to get rid of that obvious mistake.

    It's the common problem, bureaucracies are composed of fallible people but as a collective are constitutionally incapable of admitting to a mistake or even that they can make one in theory. That's why a momentary lapse in judgement by a bureaucrat tends to cost vast sums of time and money to get corrected later if it can be corrected at all.

    It's not limited to the US PTO, apparently the whole idea is subject to failure. Someone in Australia got a patent on the wheel.

  14. Microsoft products by happinessme · · Score: 1

    Its main products are Windows operating system ,Internet Explore Web browser and Microsoft Office office suite. 1999 launched the MSN Messenger instant messaging client network, Xbox game console launched in 2001, the game terminal market competition.