Patent Office Realizes Broad Patent On E-Learning Might Need A Second Look

from the gee,-you-think? dept

Last year, there was a lot of talk when Blackboard Inc. started threatening other organizations involved in e-learning excessively broad and extremely obvious patent on the concept of e-learning. In November, a group put forth a formal challenge to the patent, and it appears that the Patent Office has finally realized that it deserves a second look. They've agreed to review the patent in question. Of course, as with other such reviews, it will likely take quite some time, as it involves a very lengthy process including appeals. In the meantime, however, the patent itself (from a legal standpoint) is considered valid, and any lawsuits Blackboard is involved in continue on the basis that the patent is completely valid. While it's nice that the Patent Office has actually agreed to review the patent, it highlights one of the problems with the current system, where the Patent Office uses a "when in doubt, approve" standard. Whoever holds that patent can then cause all sorts of problems until the USPTO finally gets around to reviewing it. It slows down all sorts of innovation in that time, assuming the patent is eventually found invalid. This is the exactly opposite to how the patent system is supposed to work. It's supposed to be encouraging innovation, not slowing it down through its own mistakes.


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  1.  
    identicon
    AJ, Jan 26th, 2007 @ 7:36pm

    Patent commentary

    You guys are great at obtaining information to post, and I generally enjoy your site. However, your commentary on patent law, the USPTO, "obviousness" and innovation are rubbish.

     

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  2.  
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    William Wasserman, Jan 26th, 2007 @ 7:47pm

    Re: Patent commentary

    What is the point you are trying to make? Please provide some references and/or more elaboration regarding your statements. Without further information, your comments will only be seen as an opinion rather than a fact.

     

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  3.  
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    Bumbling old fool, Jan 26th, 2007 @ 8:33pm

    Re: Patent commentary

    Huh? Please elaborate. (and in doing so, prove you actually have a clue)

     

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  4.  
    identicon
    AJ, Jan 26th, 2007 @ 11:48pm

    I don't really have a clue. Just trying to yank your guys' chains.

     

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  5.  
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    The big picture, Jan 27th, 2007 @ 9:10am

    China has the whole patent thing sorted, When will the rest of the world catch up.

     

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  6.  
    identicon
    AJ, Jan 27th, 2007 @ 11:53am

    Patent commentary

    I am an attorney, and inventor (2 issued, more pending (www.getmomobile.com). "Obviousness" has a legal meaning, see 35 USC 103(a), different than what one might ordinarily think. So when you use a term "extremely obvious", it shows you have no knowledge in this area (which is not a put down, as most people don't and wouldn't have a reason to know what it means. Further, even attorney's who practice in this field can disagree on whether or not something is "obvious" in its legal sense).
    As far as your invention versus innovation, etc., I agree with you on some points -but you seem to be a bit dismissive of the effort and financial risk (i.e. pharma) taken by the inventor in seeking a patent in the first place (especially if the inventor is an individual backing the process with his/her own money).
    The persons and companies who "innovate", which I take to mean commercialize the IP, also have work to do, take on risk, and require a different skill set. But without the inventor, and the patent system to provide a financial incentive -there would not be as many things to "innovate" with.
    One of the key points an innovative company must consider strategically is a "barrier to entry", this is where a patent becomes very important.
    Like I said - I enjoy your site.
    Thanks -

     

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  7.  
    identicon
    AJ, Jan 27th, 2007 @ 11:53am

    Patent commentary

    I am an attorney, and inventor (2 issued, more pending (www.getmomobile.com). "Obviousness" has a legal meaning, see 35 USC 103(a), different than what one might ordinarily think. So when you use a term "extremely obvious", it shows you have no knowledge in this area (which is not a put down, as most people don't and wouldn't have a reason to know what it means. Further, even attorney's who practice in this field can disagree on whether or not something is "obvious" in its legal sense).
    As far as your invention versus innovation, etc., I agree with you on some points -but you seem to be a bit dismissive of the effort and financial risk (i.e. pharma) taken by the inventor in seeking a patent in the first place (especially if the inventor is an individual backing the process with his/her own money).
    The persons and companies who "innovate", which I take to mean commercialize the IP, also have work to do, take on risk, and require a different skill set. But without the inventor, and the patent system to provide a financial incentive -there would not be as many things to "innovate" with.
    One of the key points an innovative company must consider strategically is a "barrier to entry", this is where a patent becomes very important.
    Like I said - I enjoy your site.
    Thanks -

     

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

  8.  
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    Mike (profile), Jan 27th, 2007 @ 3:24pm

    Re: Patent commentary

    AJ,

    Thanks for expressing your opinion, though I find calling our views "rubbish" or saying that we have "no knowledge in this area" isn't how you normally debate a topic seriously. It's how you start out by insulting someone. I'm willing to discuss these points, but I think when you start out on the assumption that I "know nothing" about a subject (especially one that I actually do know a fair bit about) it's tough to figure out a way to discuss the issue seriously.

    "Obviousness" has a legal meaning, see 35 USC 103(a), different than what one might ordinarily think.

    I'm quite familiar with the legal definition of obvious, as well as the fact that it's not as set in stone as you imply. The fact that the Supreme Court is currently debating the topic suggests, perhaps, that no matter what the legal definition, it is still up for debate.

    My point is to go back to the original intentions of the patent system, and it does seem that the test for obviousness currently in use is a *bad* one that actually goes against the purpose of the patent system.

    The patent system wasn't designed for attorneys, so to fall back on "in the legal sense" is a bogus argument, and takes away from the much bigger point, which is: what SHOULD the patent system be designed to do, and what was it INTENDED to do.

    As far as your invention versus innovation, etc., I agree with you on some points -but you seem to be a bit dismissive of the effort and financial risk (i.e. pharma) taken by the inventor in seeking a patent in the first place (especially if the inventor is an individual backing the process with his/her own money).

    I am not at all dismissive. I actually take offense to the suggestion that I'm dismissive of risk -- especially considering the level of financial risk (and innovation). I've put into my own company. I recognize the risks inherent in such advancements. However, I also believe that it is the market that should decide how the product does -- not an artificial gov't monopoly.

    The persons and companies who "innovate", which I take to mean commercialize the IP, also have work to do, take on risk, and require a different skill set. But without the inventor, and the patent system to provide a financial incentive -there would not be as many things to "innovate" with.

    This is a myth that falls apart when you examine it. I'd suggest you look at some of David Levine's research on the topic.

    One of the key points an innovative company must consider strategically is a "barrier to entry", this is where a patent becomes very important.

    Indeed, barriers to entry are important, but they should be natural barriers to entry, not artificial ones. Artificial barriers to entry distort the market, rather than enhance it. Patents are an artificial barrier to entry.

    I am willing to discuss the finer details of these points with you, but please realize that, contrary to what you stated, I do know a fair amount about what I'm talking about here. I didn't just pull these theories out of a hat, and telling me I'm ignorant (without backing it up) doesn't convince me that I'm wrong.

    I recognize that you come at this from the legal side of things (and, as a patent holder, as an inventor). I am coming at it from both a business point of view and an economics point of view. One thing I have noticed is that all too often, those with legal degrees seem to think the only way to approach this subject is from a legal standpoint -- and I find that problematic. Lawyers (not necessarily you) tend to understand the law, but not the actual economic impact of the policies they support.

     

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  9.  
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    boomhauer (profile), Jan 28th, 2007 @ 12:29am

    Also as an inventor...

    From my personal experience as an inventor and holder of several patents, I have to say Mike is correct on this topic. Some of the patents I have were simply filed just because "every one else is doing it" and really should never have been granted. In the niche industry Im in, there are a couple large companies who stockpile IP and actively shut down smaller businesses or force extremely burdensome licensing terms for IP they "own" that is so ridiculously obvious and simple, its almost the equiv of claiming to own oxygen.. and which whould never hold up under a real legal challenge. But they do this because they can.. and they have the legal funds to put any challengers out of business.

    So, not speaking hypothetically but out of personal experience, I can say the patent system is being used for exactly the opposite of its original intent. Instead of offering the small inventor a chance at turning an invention into a successful venture, the innefficiencies of the system have turned it into a tool for the larger organizations to use for killing off smaller inventors/companies.

    I would gladly trade in my patent collection, including the ones I caondier valueable, for a revised patent system that would reject the garbage that is allowed to issue today. I am nearly (but not quite) ready to say we'd be better off without a patent system at all.

     

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  10.  
    identicon
    Jon, Jan 28th, 2007 @ 8:23pm

    Legal faults

    This same fault in the patent system exists in every other area of IP as well as much of the rest of law. Copyright is a good example. Sony hypothetically owns the copyright on a DVD movie I own. The copyright license states that I can not make a backup of the DVD. However, fair use says that I legally can. Acting under good faith in the law, I make a backup of the DVD, but Sony still files suit. At this point, I either go through a lengthy legal process only to have my side of the law upheld, or a get criminally and civilly penalized even though I was following the law as I best understood it.

    Same goes for these crazy patents. When a company encounters an obviously invalid patent, the company can either violate the patent hoping to win in court later, or wait through a lengthy patent challenge process.

    It's sad when people are afraid to do something completely legal because they might be drug through courts and may possibly lose on a technicality. People should be able to abide by law with a reasonable understanding of the law without such fear.

     

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  11.  
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    Russell Williams, Jan 28th, 2007 @ 8:25pm

    Did any of you even READ the patent?

    Or are you ALL dope? Christ Almighty!

     

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


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