Easily digestible tech news... http://www.techdirt.com/ en-us http://www.techdirt.com/images/td-88x31.gifhttp://www.techdirt.com/ Mon, 20 Aug 2012 03:07:21 PDT Mike Masnick http://www.techdirt.com/articles/20120816/01045920068/why-do-we-assume-patents-are-valid-when-patent-offices-own-numbers-show-they-get-things-wrong-all-time.shtml http://www.techdirt.com/articles/20120816/01045920068/why-do-we-assume-patents-are-valid-when-patent-offices-own-numbers-show-they-get-things-wrong-all-time.shtml presumed valid. Conceptually, this makes very little sense. Patents grant a pretty broad monopoly on "inventions" for an extended period of time... based entirely on approximately 18 hours that a patent examiner has to spend looking over the thing. Do we really think that a patent examiner gets things right most of the time? It seems that even the US Patent Office's own data shows that's simply not true. A friend pointed me to the USPTO's recently released data concerning re-exams (pdf and embedded below), which demonstrates in great detail why patents shouldn't be presumed valid. Basically, the data suggests that an awful lot of patents were handled poorly.

The document notes that 92% of re-exam requests are granted -- meaning that nearly all re-examination requests lead to a re-examination by the Patent Office. So, if most patents were well constructed in the first place, you would imagine that most of them would come through the re-examination process unscathed with no changes, right? Only if patent examiners were really bad at their jobs would a large percentage of patents need to be changed or rejected completely on re-exam. Given the "presumption of validity" that grants a monopoly, and the massive dollar amounts that patents sell for and are able to extract in settlements, you'd think that re-examined patents must normally confirm the original diagnosis. Hell, given that information, I'd hope that at least around 95% of patents, having passed the approval process, would be solid enough to survive the re-exam process untouched.

If the number was below 90%, I'd think the system was in trouble and needed some fixing. If it was below 70%, I'd think that we should be declaring the system a failure. If it was below 50%, I'd be questioning the entire basis of the patent system. So what is it?

Would you believe that only 22% of re-examined patents have all claims confirmed? 22%! That means that 78% of all patents that are granted a re-exam had serious problems with their original claims -- and remember, 92% of re-exam requests are granted. All these patents were initially approved and enjoyed the presumption of validity, which would may have cost companies millions (or more). This isn't just a failing grade. This is an epic disaster. It's true that 67% of the re-examined patents still are allowed with "claim changes", and only 11% are completely rejected, but those numbers are little comfort when we're told that we need to presume all of the claims in all patents are perfectly valid.

Now, some might claim that this number is perfectly fine, because only bad patents get re-exam requests. In fact, you could argue that perhaps these numbers show the system is working in that bad patents get re-exam requests and good patents remain valid. But there's little to no evidence to support that. Already, those who dislike patent re-exams are claiming that patent re-exams are abused with too many good patents getting re-examined. So it certainly appears that all sorts of patents get re-examined... and a very large percentage of them appear to turn out to have been mistakenly granted.

This highlights, in pretty stark contrast, just how broken and completely arbitrary the system is. For a system like this to be valid, it should be formalized and repeatable. It needs to be based on objective information, not the random subjective opinions of a particular examiner. Yet the data suggests that's exactly what's happening, meaning that we're handing out hundreds of thousands of monopolies based on the mere whims of patent examiners, who haven't been shown to be even remotely consistent, and who have very little time to actually examine what it is they're granting monopolies over.

How does anyone consider that to be a reasonable system?

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]]> simple-questions http://www.techdirt.com/comment_rss.php?sid=20120816/01045920068 Fri, 3 Jun 2011 01:05:01 PDT Mike Masnick http://www.techdirt.com/articles/20110601/02413214504/people-concerned-about-paul-allens-ridiculous-patent-claims-gets-uspto-to-begin-re-exams-his-patents.shtml http://www.techdirt.com/articles/20110601/02413214504/people-concerned-about-paul-allens-ridiculous-patent-claims-gets-uspto-to-begin-re-exams-his-patents.shtml ridiculous patent lawsuit against a ton of tech companies. He claimed that all of these companies violated four incredibly broad patents he held:

• 6,263,507: "Browser for use in navigating a body of information, with particular application to browsing information represented by audio data."
• 6,034,652 & 6,788,314 (really the same patent, involving continuations): "Attention manager for occupying the peripheral attention of a person in the vicinity of a display device"
• 6,757,682: "Alerting users to items of current interest"

The details looked really silly, and the broad daylight continues to make them look silly. A bunch of folks who were concerned about this lawsuit (including various other developers and individuals) have chipped in -- and some of these completely volunteer efforts have prompted the USPTO to begin investigating the validity of these patents in the first place.

Of course, if the USPTO were doing its job properly, it wouldn't be approving so many bogus patents that just come back to haunt actual innovators.

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]]> about-time http://www.techdirt.com/comment_rss.php?sid=20110601/02413214504 Thu, 22 Jan 2009 00:59:04 PST Mike Masnick http://www.techdirt.com/articles/20090121/1956353483.shtml http://www.techdirt.com/articles/20090121/1956353483.shtml patent on virtual subdomains. As part of its Patent Busting project, the EFF submitted a ton of prior art to the Patent Office, who has now done an initial rejection of all of the patent's claims. The patent holder (and, it's worth pointing out that it's changed hands since this started) can now respond or just give up on the patent. Either way though, it highlights the silliness of considering any granted patent as automatically "valid." Considering how many patents that are reviews end up having claims (sometimes all of them) rejected, it seems pretty clear that the initial patent review is simply not even close to effective as a judge of patent-worthiness.

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]]> so-why-was-it-approved-in-the-first-place? http://www.techdirt.com/comment_rss.php?sid=20090121/1956353483 Tue, 19 Aug 2008 09:24:00 PDT Mike Masnick http://www.techdirt.com/articles/20080815/0325521991.shtml http://www.techdirt.com/articles/20080815/0325521991.shtml pay NTP $612.5 million for patent infringement, even though the USPTO had been rejecting NTP's patents on re-exam. The patents were highly questionable: extremely broad patents covering pretty basic concepts about making email "wireless." Beyond combining two existing ideas in a rather obvious way, there was a fair amount of prior art as well. Yet, under pressure from both the judge and its own shareholders, RIM decided it was worth paying out over half a billion dollars rather than dealing with the potential uncertainty of an injunction forcing it to shut down its service.

You would think that this would have kept NTP happy. After all, NTP was basically built out of the ashes of a company that had failed in the marketplace. It was unable to come up with a product that anyone wanted. RIM, on the other hand, had done the real innovation of figuring out what customers actually wanted, and packaging it in an appealing manner. All that was left at NTP was a bunch of lawyers, who now had $612.5 million for failing in the marketplace.

But NTP won't stop. It's kept suing a bunch of other companies. However, the courts have put its latest lawsuits on hold while the USPTO continues to review the legitimacy of NTP's patents (why RIM wasn't allowed the same consideration has never been explained).

So now NTP is taking another strategy: claiming that RIM unfairly influenced the Patent Office's re-exam of its patents. Yes, the company already won the lawsuit and $612.5 million, but is still claiming that the other side cheated. Of course, there's not much "there" there in the accusations. Basically, RIM had representatives who tried to find out what was happening at the USPTO and what the process was for the re-exam. As various patent attorneys outline towards the end of the article, it doesn't appear that RIM did anything wrong here, but NTP is doing whatever it can to try to bloody RIM, even given the fact that it won the lawsuit. What we're seeing here is a case of extreme rent-seeking, where NTP will do pretty much anything to try to keep milking its highly questionable patents, diverting hundreds of millions away from innovation and into the pockets of folks who failed in the marketplace.

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]]> the-money-wasn't-enough? http://www.techdirt.com/comment_rss.php?sid=20080815/0325521991 Fri, 1 Aug 2008 15:10:20 PDT Mike Masnick http://www.techdirt.com/articles/20080731/0337491852.shtml http://www.techdirt.com/articles/20080731/0337491852.shtml wide range of opponents, including a patent system critic. The end result was a drawn out review process where all of the original claims were rejected, but a single new claim was added to the patent, which Niro insisted covered JPEGs on a website.

Earlier this year, the Patent Office agreed to re-examine that claim. On top of that, a judge overseeing one of the lawsuits involving the patent decided to put the suit on hold pending the outcome of the re-exam. Of course, the re-exam will take some time, but the initial re-exam came out recently and it does not look good for this patent: The one remaining claim was rejected on 19 different grounds, and then the examiner went on for over 40 pages, explaining in great detail, why the claim (and, thus, the entire patent) were not valid. Kinda makes you wonder why it was approved in the first place, but that's a different discussion for a different day. This is, of course, just the initial re-exam. Niro gets to respond, but given the amount of detail that goes into rejecting a single claim, he's got quite an uphill battle.

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]]> a-good-first-step http://www.techdirt.com/comment_rss.php?sid=20080731/0337491852 Wed, 9 Jul 2008 17:07:42 PDT Mike Masnick http://www.techdirt.com/articles/20080708/0049511620.shtml http://www.techdirt.com/articles/20080708/0049511620.shtml sue all sorts of critics or companies he doesn't appear to like. The history of the patent in question is incredibly questionable. It went through a seven year re-exam once before, where all the claims were rejected. However, a single new claim was allowed instead, which is the basis of all of these lawsuits. Back in March, however, the Patent Office agreed to re-examine that one claim, noting that the earlier re-exam didn't count, because this claim was new and was merely "examined" rather than "re-examined."

With that re-exam going on, a judge put the cases involving that patent on hold until the re-exam was complete. So what did the patent holder do? It tried to convince the Patent Office to allow it to completely jump the line, passing a bunch of other patents that were being re-examined. Luckily, the USPTO turned down the request, noting that the circumstances involving this patent don't seem all that different than the circumstances facing many of the patents it's reviewing.

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]]> shot-down-by-the-uspto http://www.techdirt.com/comment_rss.php?sid=20080708/0049511620 Tue, 18 Mar 2008 18:50:12 PDT Mike Masnick http://www.techdirt.com/articles/20080313/021643530.shtml http://www.techdirt.com/articles/20080313/021643530.shtml why I'm not comfortable with the proposed patent reform effort, as there are a number of changes in it that could potentially make the system much worse. One example, as the EFF highlighted last month, was that it would unnecessarily limit the ability of third parties to request a re-exam of a patent. Now the EFF is looking through some statistics and noting some rather shocking numbers about third-party-initiated patent re-exams. Contrary to what some supporters of the patent system claim, it appears that a large majority of these requests aren't just legitimate requests, but serve to have a patent's claims limited or rejected entirely. 92% of re-exam requests are granted, with 3 out of every 4 exams resulting in adjustments (or total rejections) of the patents. In other words, clearly, the process helps improve patent quality. So why would Congress want to remove that part?

However, a much bigger question should probably be: why is the Patent Office so bad at getting things right the first time around? If so many patents end up needing to be corrected on re-exam, it certainly sounds like patent examiners aren't doing a very good job. Given the already massive economic costs that result from bad patents, this should be a major concern.

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]]> questions-that-should-be-answered http://www.techdirt.com/comment_rss.php?sid=20080313/021643530 Fri, 1 Feb 2008 12:21:00 PST Mike Masnick http://www.techdirt.com/articles/20080129/015710104.shtml http://www.techdirt.com/articles/20080129/015710104.shtml any website with a JPEG image. He's been known to particularly target his critics. It appears that all of the attention this patent has generated, has resulted in at least one party filing with the Patent Office to request a re-exam of the patent. While the patent has already gone through a re-exam in the past, and only this one claim survived, it would be nice to get it completely rejected.

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