Patents On Common Beans Rejected 10 Years Too Late

from the nice-one,-USPTO dept

This one's a bit old, but Boing Boing just pointed us to the incredible story of a guy named Larry Proctor who was able to get the USPTO to patent some yellow beans he picked up in Mexico. Yes. Really. You can read the patent (5,894,079) here. Thankfully, it was (finally) invalidated last year, but was around for about nine years -- during which time the patent holder basically was able to put a tax on imports of such beans to the US from Mexico:

Yet Proctor actively enforced his patent. At one point, the patent-holder's US$0.6-claim on every pound of yellow beans sold in the United States caused a steep decline in exports of such beans from Mexico to the USA, according to Mexican government sources.

The Boing Boing link points to the story of the USPTO rejecting the patent, but there actually is an update. Just a few weeks ago CAFC also ruled the patent as invalid, noting that Larry Proctor didn't actually do anything special, other than plant some beans he'd picked up. But, none of that stopped 10 years of being able to tax or ban every shipment of these beans into the US. Even beyond the question of why it took 10 years to dump this patent, you have to wonder how a patent on a bean got approved in the first place. Another proud moment by the USPTO.

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Are The Last Eight Years Of Patent Board Appeals About To Be Tossed Out?

from the that-would-be-a-big-one dept

A little known lawsuit that has received very little attention could have a massive impact on our patent system. It turns out that, thanks to a procedural change in the law in March of 2000, nearly 2/3 of the appointments to the patent appeals board may have been unconstitutional. This could, potentially, invalidate any ruling involving one of those "unconstitutional" judges over the past eight years. Since the rulings involve panels of 3 such judges, an awful lot of the appeals will have involved one of the now questionably appointed judges. The details are very much inside baseball, but the quick summary is that the law was changed allowing the director of the Patent Office to appoint these judges, rather than the Secretary of Commerce. Yet, the Appointments Clause of the Constitution says that such appointments may only be made by the President, the courts or the heads of a department. The director of the USPTO is not considered a head of a department, as it's a part of the Commerce department (so appointments would need to come from the Secretary of Commerce to be Constitutional).

While the issue was first raised by a well-regarded scholar last year, the argument is now being put to the test in court by a company that felt the Board ruled incorrectly on one of its patents, and raised that issue as a part of an appeal. The Patent Office and the Justice Department are claiming that the company can't raise this issue now because it had not been used earlier (an appeal is supposed to be on the same issues raised earlier). Even if that's the case, then you can bet some other company will eventually raise this issue as well -- so the courts are going to need to deal with it sooner or later. Given the ramifications of a ruling saying that such appointments were unconstitutional (potentially invalidating an awfully large number of rulings), it would be surprising if the courts actually went that way. While it is reasonable to question why the head of the USPTO should be allowed to appoint these judges (there's a potential conflict of interest), pulling eight years of rulings into question would present a legal nightmare over what, honestly, seems like a minor procedural issue. There are plenty of problems with the patent system, but I'd rather they not be dealt with using minor procedural "gotchas."

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Patent Boss Admits That The Patent Office Keeps Getting Flooded By More And More Bad Patents

from the gee...-I-wonder-why... dept

The head of the US Patent Office, Jon Dudas, the same guy who was just hyping up a educational curriculum for children falsely claiming that any inventor "needs" to get a patent, is now complaining that the Patent Office is being overwhelmed with really crappy patent applications. You think? Lerner and Jaffe pointed this out years ago and it's not difficult to see why. With the USPTO approving tons of bad patents, and the courts all too often siding with the patent holder and expanding what's patentable, combined with people who have done nothing getting hundreds of millions just for holding a piece of paper, is it really any surprise that the incentive structure would push people to file for as many bogus patents as possible, in hopes of getting them through the obviously questionable process?

When you set up a system that rewards people for not actually innovating in the market (but just speculating on paper), then of course, you're going to get more of that activity. When you set up a system that rewards those people to massive levels, well out of proportion with their contribution to any product, then of course you're going to get more of that activity. When you set up a system that gives people a full monopoly right that can be used to set up a toll booth on the natural path of innovation, then of course you're going to get more of that activity. When the cost of getting a patent is so much smaller than the potential payoff of suing others with it, then of course you're going to get more of that activity. The fact that Dudas is just noticing this now, while still pushing for changes that will make the problem worse is a real problem. Patents were only supposed to be used in special cases. The fact that they've become the norm, rather than the exception is a problem, and it doesn't seem like anyone is seriously looking into fixing that.

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Shouldn't The USPTO's Education Curriculum Be Accurate?

from the one-would-think-that's-the-point dept

I started my still-ongoing series of posts on intellectual property as a counter to the incredibly one-sided brain-washing educational campaigns put together by companies that only seemed to talk about how wonderful intellectual property was, never once mentioning the downsides or abuses. You can kind of understand this from companies who make their living off of intellectual property -- but it still seems quite questionable that any educational institution would accept and use such a biased "lesson plan." So, if the USPTO came out with its own lesson plan, you'd expect it to be a bit more balanced, right? Not so. The USPTO has created its own curriculum to try to teach kids "respect" for intellectual property law and it seems to be just as bad as the corporate backed lessons. Perhaps that's no surprise, as the USPTO gets its funds from patent application fees, so it has incentive to keep more applications coming in.

Even the way that USPTO boss Jon Dudas explains the program is problematic: "If you own something that is valuable, you want to protect it." That is not, and has never been, the purpose of the patent system. It's not about ownership and it's not about "protecting." It's about encouraging innovation. Simply by setting up this program as teaching kids about "protecting" something valuable they "own" is inaccurate. That's rather surprising, given that you would think the head of the USPTO would know what the patent system's purpose is. The website that hosts the curriculum has a short trailer video that has a clear false statement at the beginning, claiming "an invention needs to be protected by a patent." That would be quite a shock to Benjamin Franklin, who famously said of inventions: "That, as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously," before questioning the value of patents. Somehow, I get the feeling that statement didn't make it into the USPTO's lesson plan.

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Patent Office Rejects Blackboard E-Learning Patent One Month After It Wins Lawsuit

from the interesting-timing dept

One of the more annoying things in patent lawsuits is watching the USPTO reject patents soon after a lawsuit concludes -- and having the judges in those lawsuits refuse to wait for the USPTO to weigh in. This is especially troublesome considering that so many patent re-exams result in rejected claims. It would only make sense for judges to wait until the Patent Office has had a chance to review the patent. As if to highlight that, late last week, the USPTO rejected all claims on a rather infamous "e-learning" patent held by Blackboard Inc. This comes just slightly over a month after Blackboard won a lawsuit using that very patent. It was known during the trial that the Patent Office had agreed to review it, but apparently, the judge didn't want to wait.

Of course, Blackboard quickly came out with a statement saying this doesn't matter, it's already won the case, and it still expects an injunction to be issued preventing Desire2Learn from offering e-learning software. Blackboard is correct that this is just an initial rejection (meaning there are still responses and additional rounds to go), but it still seems rather weak to put out a statement saying that everyone should just ignore the rather significant questions the USPTO has just raised about the patent in question.

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Amazon's One-Click Patent Fix Rejected Again... for Now

from the back-and-forth dept

The back and forth over Amazon's infamous one-click patent has gone "back" again. Back in October we noted that, after many years and a few false starts, the USPTO had rejected a bunch of the patent's claims. However, as we noted at the time, the process was far from over. Patent reviews are a ridiculously complex process that take a hell of a lot longer than they should, and involve a lot of back-and-forth, often with many "non-final" rulings that go back and forth before anything is finally established. In fact, Amazon word-smithed the patent and tried to get the patent office to reinstate the claims. Luckily, however, the USPTO isn't buying it and is rejecting the rewritten claims... though, it's still not final. And people wonder why the patent office is overworked and why many people are pushing for a more efficient process to review patents.

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IBM Trying To Get Patent On Patent Extortion?

from the recursive-patent-abuse dept

Have fun with this one. As seen on Slashdot and sent in by a few different readers, it appears that IBM is trying to patent the process of using a large patent portfolio for patent extortion. Technically, the patent is for "A system and method for extracting value from a portfolio of assets." Of course, if any company can claim credit for such a thing, it's IBM. After all, there's the famous story of IBM demanding patent licensing dollars from Sun. They accused Sun of patent infringement, but when Sun engineers and lawyers pointed out how they didn't infringe on the patents in question, IBM's lawyers responded: "OK, maybe you don't infringe these seven patents. But we have 10,000 U.S. patents. Do you really want us to go back to Armonk [IBM headquarters in New York] and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?" Nice to see they're now patenting that process. One could hope that IBM is hoping to get this patent either to prevent others from doing the same thing or (maybe?) to show just how ridiculous the patent system has become. Either way, it's still only an application, so perhaps a patent examiner will realize that there's a bit of prior art around this particular concept.

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Patent Office Issues New Guidelines On Obviousness

from the how-obvious-of-them dept

Following the Supreme Court's April Teleflex v. KSR decision lowering the bar for what's considered "obvious" in granting a patent, the US Patent Office has finally gotten around to issuing new guidelines for how patent examiners are to determine whether or not the concept in the patent should be considered "obvious." As per the Supreme Court's ruling, patent examiners can now go beyond prior art "teaching, suggestion, or motivation" (TSM). Now, examiners can look at the prior art in the space and then the ordinary skill in the area and whether or not those of ordinary skill in the art would find the new offering obvious. This is definitely a step in the right direction (or, actually, a step back to where patents originally were supposed to be). Now let's see how well it's actually put into practice.

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Reminder: Patent Examiners Still Don't Scale

from the nor-will-they dept

It's a pretty common refrain from folks who are against patent reform that all the problems of the patent system could be easily solved by hiring some more patent examiners. Even some people who do support patent reform think that hiring more examiners would help deal with the problems of the systems. Last week, the GAO, who we often agree with in its analysis, came out with a report also suggesting that hiring more patent examiners, and now existing patent examiners are agreeing with the analysis. The problem, though, is that this hides the real issue. The patent office isn't inundated with such a huge backlog of patents because it doesn't have enough patent examiners -- but because the system is fundamentally broken. As the courts have continually expanded the reach (and value) of patents, it's simply encouraged more and more applications to be filed, no matter how ridiculous. Hiring more patent examiners doesn't solve that. The real trick to solving the problems the patent office is facing is in realizing that patent examiners don't scale. You don't just hire more as more patents are being filed -- you figure out why more patents are being filed and if there's a better way to do things. That means looking at the fundamental nature of the patent system and realizing how far the current patent system has drifted from those ideals -- and then solving those problems. If they did that, they'd realize that they probably don't need more patent examiners -- they just need a better patent system.

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USPTO Panel Says Amazon's One-Click Patent Isn't Obvious

from the two-clicks-away-from-sanity dept

Due to the diligent work of a few determined individuals, the US Patent Office (once again) began to look into Amazon's infamous "one-click" patent. New prior art was demonstrated, and in an initial re-examination, the examiner rejected some of the claims in the patents, noting that they appeared to be obvious. Of course, patent appeals processes are long and involved, and after Amazon presented their side to a 3-judge panel, that panel has now ruled that the examiner did not do enough to show why the patent claims were obvious, suggesting that what many of us (including those who are skilled practitioners in the space) think of as obvious, won't be considered obvious. It sort of makes you wonder what it takes for the Patent Office to consider something obvious. Obviously, "obvious" has a different meaning to the US Patent Office than to most of us.

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