EFF Bad Patent-Busting Project Scores Another Re-Exam

from the unfortunate-that-this-needs-to-be-done dept

Two years ago, the EFF set up a patent-busting project. They picked out ten questionable patents that they believed were being misused to stifle, rather than encourage, innovation -- and set out to get those patents invalidated. While it may be slow going, it appears they're having some impact. They've now convinced the patent office to re-exam one of the patents for online test taking. We wrote about this particular patent a couple years ago when the company started going after universities for daring to offer tests online. Of course, there's still the long re-exam back-and-forth process to go through. The real issue, though, is why this is even necessary? Why isn't there a better way to stop such questionable patents from being approved in the first place? Why doesn't the USPTO look at "obviousness" outside of prior art? Contesting issued patents is a long, difficult and expensive process -- but the fact that so many questionable patents seem to be getting the stamp of approval is a huge problem, and one that seems to be getting worse with the "when in doubt, approve" attitude in the USPTO these days.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Atticbat, May 19th, 2006 @ 12:28pm

    Heh

    Ignorance is bliss? A total lack of understanding the purpose and/or concept of the patent process? The lack of a 'quality' process or any real process.

    In fact, it would be cool to see the training materials for the Patent Office employees... seriously cool.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    DisInterest, May 19th, 2006 @ 12:54pm

    Here's a thougt...

    Mike my friend you have a high opinion of your typical government office. The amount of common sense and daring you advocate is virtually unknown in any large instution much less the Feds. You, sir, are an idealist!

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Joe Smith, May 19th, 2006 @ 1:20pm

    Re: Here's a thougt...

    You, sir, are an idealist!

    Which brings to mind the story about the Texas politician who devasted his opponent by disclosing that the opponent's sister was a thesbian.

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    anonymous coward, May 19th, 2006 @ 1:21pm

    it's simple. unless the patent application is so obvious with massive prior art, the path of least resistance at the USPTO is to approve.

    If you want to change the system, create an incentive. Pay bonuses based on the number of patents overturned and you'll see the number of quality of patents approved skyrocket with junk patents gather dust.

    that's not politics. that's not government. that's not stupidity. that's not laziness. that's human nature.

    if it doesn't make any difference, i'm going to take the easiest route. if i approve this patent, i get it off my desk. who cares if somebody challenges it three years later?

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Ben, May 19th, 2006 @ 1:27pm

    Re: Re: Here's a thougt...

    Might there be alittle to much inbreading?

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Don Gray, May 19th, 2006 @ 2:22pm

    Re:

    I have a problem with this comment.

    I have heard this line of thinking before. The person basically said "You get the quality of work that you pay for."

    Which irritated me greatly.

    Basically what that person (and you) are saying is "Yes, I understand that you have defined Job X, and that definition includes a salary for the position, and the expected work for the position, and I'll do Job X based on your definition, but I'll do it poorly. Now, if you're willing to pay me more, I'll do a better job."

    I just can't accept that. Either you agree to the terms of the job and do your best or you don't. I don't have a problem with someone saying "I don't agree to your terms." Fine. No problem. I don't have a problem with the concept that some people are more capable than others.

    But to agree to the terms, and then come back after the fact and use the pay as an excuse as to why it was done poorly is bullshit.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Dennis, May 20th, 2006 @ 1:02am

    Let USPTO pay for the fees

    Easy. Let USPTO pay the cost of attorney and court fees in all cases where a patent is overtuned. That will give them an incentive to reject obvious patents early on.

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Anonymous Coward, May 20th, 2006 @ 10:49am

    Re: Let USPTO pay for the fees

    Great idea! The USPTO is making a lot of money with vaporware patents. And they cause us a lot of trouble. Add charges for lost business opportunities, waste of time and all other consequences of phony patents and make the USPTO pay.

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous of Course, May 21st, 2006 @ 8:48am

    Re: Re: Let USPTO pay for the fees

    The USPTO has no money. Why should I as a
    tax payer support another welfare plan for lawyers?

    I think it is a lousy idea. We need less incentive
    for lawyer to be involved. We need reason and
    justice, not rationalization and the law. Not
    just at the USPTO but in government everywhere.

    Obviousness is difficult to define. I've seen many
    obvious (to me) inventions patented. Peer review
    by those versed in the field of the invention is
    the only solution that I see.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Napolean Dynomite, May 21st, 2006 @ 3:25pm

    For the idiots

    There is no boogeyman at the patent office. The patent law states that "a patent shall issue unless: [it is obvious or lacks novelty or doesn't meet the subject matter requirements]"

    Mike talks about "outside prior art" - like an idiot. What better way to disqualify an application than by rejecting it on published prior art.

    Mike is not satisfied that there is a rule for third party submissions of prior art. You can't whine when you consider these facts.

    Mike tries to personalize everything like a moron. When your tantrum is over Mike let's talk about what's really going on...

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Rocket Scientist, May 21st, 2006 @ 3:39pm

    Now I'm no rocket scientist

    wait I AM a rocket scientist. And I still don't understand what Mike is whining about. Just what is a "bad patent" or a "junk patent" or whatever anyway?

    I think EFF is doing a great thing based on a procedure that the Patent Office instituted to provide great service (in spite of Mike's constant whining) - the Third Party Re-exam (TPR). The problem with Mike, is he doesn't recognize the TPR as the PTO functioning in an effective manner. He's sees everything as an indication of some vast problem.

    One way Mike is remotely on track (if by accident) is through the intervention of interested third parties into the process. Mike is totally wrong however regarding his wacky idea about allowing some outsiders to opine on obviousness. What EFF is doing is exactly what the whiners and complainers should be doing if they are so convinced that patents are "bad."

    1) if the offending matter is a published application then submit third party prior art.

    2) if the offending matter is an issued patent, file a third party re-exam.

    Otherwise, shut up and let interested parties work it out.

    If a patent is bad or junk, then someone will find out sooner rather than later unless they're are a complete idiot. And don't go whining about how it costs a bunch of money. If someone is out there trying to "troll" a "bad patent," any business person or patent attorney worth thier salt can cost effectively investigate the legitimacy of the claim through reasonable diligence and act accordingly before spending any big money or giving any money to trolls or patent attorneys.

    If the diligence reveals a "bad patent" tell the troll to piss off. If the diligence reveals a solid patent, then pay the royalty or stop the infringement. If you think the patent is "weak," and you're not sure, then take your chances fighting it or decide on a reasonable settlement.

    And then get shut up and back to work.

    Its the American way.

     

    reply to this | link to this | view in thread ]

  12.  
    icon
    Mike (profile), May 21st, 2006 @ 4:34pm

    Re: Now I'm no rocket scientist

    I think EFF is doing a great thing based on a procedure that the Patent Office instituted to provide great service (in spite of Mike's constant whining) - the Third Party Re-exam (TPR). The problem with Mike, is he doesn't recognize the TPR as the PTO functioning in an effective manner. He's sees everything as an indication of some vast problem.

    "Functioning in an effective manner" is ridiculous once you realize just how many companies were forced to pay up for questionable patents, or forced to stop work on new innovations due to questionable patents.

    Dealing with third party re-exams after the face is incredibly expensive and inefficient, and the hours and dollars wasted on fighting bogus attempts to stop innovation is evidence enough of that.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Dennis, May 22nd, 2006 @ 1:19am

    Re: Re: Re: Let USPTO pay for the fees

    Reply to Anonymous of Course. Why must we assume that USPTO have to be funded by taxpayer's money? We can change the system by requiring that the USPTO be run like a corporation. It gets funded only from the application and registration fees it collects. And there can be competitive registries like the present domain names system.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    david g, May 22nd, 2006 @ 8:10am

    amen brother - thanks for baning this drum

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    uhhhh, Feb 7th, 2008 @ 12:30am

    sorry guys you are wrong

    I work at the PTO and in training we are taught to reject. In fact..this is my second year and I have accepted 3 patents.

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Anonymous Coward, Apr 23rd, 2008 @ 6:21pm

    bitch

     

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This