The most important being the notion that the PTO is not already doing what is being suggested.

“…it’s problematic when patents are issued for obvious things”

There is a legal test for obviousness that is performed with EVERY patent application. By “obvious things” the narcissists here at Techdirt really mean anything THEY think is “obvious” after the fact (forgetting of course that patents are filed years before they issue or are published and that just because Techdirt thinks the technology is “obvious” by the time they get wind of it, the technology may very well NOT be obvious as of the time it was filed)

-the naive rant continues…

“…, or in areas with significant prior art”

Since when should the amount of prior art be a test? The mere existence of prior art does not, in itself, suggest that more patents shouldn’t be granted in this area. Quite the contrary. Its almost a foregone conclusion that if many patents (prior art) exist in an area, then there must be signficant interests at stake in that area. Interests that require patent protection.

Once again Techdirt gets it exactly wrong.

“…these mistakes can result in long and costly legal battles”

WHAT MISTAKES? Techdirt characterizes a “mistake” as any patent that is litigated (particularly against its corporate favorite)

“…One of the ideas that’s been floated to solve the patent office’s resource crisis is a system of peer reviews”

Duh, the PTO has been doing “peer review” for years. But thanks for the great ideas Techdirt.

…But wait, it gets even more bizarre

“…Also, since patents are only supposed to be granted on ideas “non-obvious to those skilled in the art,” it makes sense to actually ask those skilled in the art for their opinions”

Opinions? Techdirt is in favor of eliminating an objective legal test of obviousness based on evidence in the form of published documents for “opinion” evidence. How cute.

The above absolutely silly and childish notion kind of gets at the heart of Techdirt’s main problem. They think obviousness means or should mean anything they think they could have thought of (after the fact). Their ex post wisdom is flawless (hindsight is 20/20). In every case Techdirt comments and advises on (without a license), you can always find a breathless condemnation of a patented technology based on some armchair take on what they think was “obvious.” What they fail to realize or dont want to realize is that obviousness is a legal determination based on objective tests and evidence. Obviousness is established based on dates associated with the filing of an application usually occuring years before the patent gets any public visibility. Obviousness is not some opinion as to what is obvious, its an objective legal test based on dates of filing and dates of the so-called art.

“One potential complaint…blah blah blah…”

There is no need for all the hubbub. Its not a question of whether patent examiners “have a right” to see all the prior art. This is an example of the kind of ignorant and naive statement that makes one wonder from what perspective these people are coming from. The examiner has AN OBLIGATION to find the best available art. If an article is published ANYWHERE IN THE WORLD, it will be available for review and potential application as “prior art.” Again there are objective legal standards that contol what can be submitted as prior art (pretty much anything with a provable date). Why get a bunch of ninnies like the guys who comment on patent issues here at Techdirt involved to complicate the process?

There is a legal test for obviousness that is performed with EVERY patent application.

Oh really? Even the USPTO has said that the only test they conduct for obviousness is in looking at prior art. Prior art may not necessarily be the best indicator of obviousness. Since the OFFICIAL TEST is supposed to be non-obvious to those skilled in th art, I can’t believe you’re actually suggesting it’s a BAD idea to ask those skilled in the art. That’s the test they’re SUPPOSED to use.

The mere existence of prior art does not, in itself, suggest that more patents shouldn’t be granted in this area. Quite the contrary. Its almost a foregone conclusion that if many patents (prior art) exist in an area, then there must be signficant interests at stake in that area. Interests that require patent protection.

You practice patent law, right? Did you really just say that if an idea has prior art, it still deserves patents?

And you make quite a statement that because an area has interest it “requires” patent protection. If you knew your history and your economics, you’d know that’s false. Absolutely false.

WHAT MISTAKES? Techdirt characterizes a “mistake” as any patent that is litigated (particularly against its corporate favorite)

This is false. We do not say that any patent that is litigated is a mistake. However, we do point out patent mistakes when we see them. And, considering that many of the mistakes we’ve pointed out are later invalidated by the USPTO, it certainly seems like there’s a basis for those claims. If even the USPTO is admitting they made mistakes, are we really so dumb for pointing out why those patents are invalid.

Or do you believe that the USPTO is infallible? Even when they admit they’re wrong?

Duh, the PTO has been doing “peer review” for years. But thanks for the great ideas Techdirt.

Not like this they haven’t. If you bothered to read, rather than react in a kneejerk fashion, you’d notice that this is different. Once again, we come back to your reading comprehension.

Despite what you claim, we’re not just coming up with what we say out of nowhere. It has a real basis in economics. And, when we point out to you where you’re absolutely wrong, you turn and run. Last time we pointed out where you were wrong, your response was “blah, blah, blah.”

Obviousness is not some opinion as to what is obvious, its an objective legal test based on dates of filing and dates of the so-called art.

Ah, again. It goes back to the “art.” But, that’s a problem. If multiple people are developing the same idea at once, then innovation gets stagnated by giving a monopoly to only the first to come up with the idea (there’s plenty of research to back this up). An obviousness standard is supposed to be based on the views of those skilled in the art. The appropriate test should involve those skilled in the art.

The examiner has AN OBLIGATION to find the best available art.

Yes, and as we’ve seen repeatedly, patent examiners are unable to find important prior art — especially in new areas like software. Just because they have an obligation, doesn’t mean it’s happening. And, that’s what this peer review system is designed to facilitate.

“And, considering that many of the mistakes we’ve pointed out are later invalidated by the USPTO…” This is pure delusion. The “many of the mistakes” are patents you WISH were invalidated.

You haven’t given one example of a patent that the PTO has invalidated. All you have done is talk about how you THINK the NTP patents SHOULD be invalidated because you are cranky about their application against your client – RIM.

While you continue to talk down to me, I continue to try to debate this issue you with you seriously. I really wish you’d do the same.

As I’ve pointed out repeatedly, and which you always seem to ignore, we are discussing this from a business and economics perspective, and your legal nitpicking is silly and irrelevant in most cases.

So, let’s get to the details.

Your point about prior art is hilarious, because you blame us for being obfuscatory, and then you go on to totally ignore the actual point. The issue is if there is prior art for the claims put forth in the patent. That’s what we’re discussing in the first place, and then you, instead, try to focus on prior art *around* the claims — which isn’t what anyone was discussing at all. So, your whole argument has nothing to do with what we’re discussing, but you use it score a point… on an issue that wasn’t even being debated.

I hope you do a better job in court.

After that, you go on to support exactly what I said by claiming “prior art is the ONLY recognized indicator of obviouness.” That’s exactly the problem — because prior art may not be the best indicator of obviousness. Furthermore, if you really believe that prior art is the only indicator of obviousness (a HUGE if) then I can’t see why you would not like this peer review system. After all, all it’s designed to do is bring to light prior art that the examiner may have missed.

But, going back to the point, prior art need not be the only indicator of obviousness. In fact, the law is clear. The test is supposed to be “obvious to those skilled in the art.” That’s a pretty clear test (along the lines of “reasonable person” or other such tests — which are ambiguous on the face, but which can be established by courts). So, clearly, prior art need NOT be the only test of obviousness.

As for your childish “NEWS FLASH” it’s funny that you keep bringing up the past, when you’ve made it clear to us repeatedly that you are almost entirely unfamiliar with the history of patents. You also seem to be entirely unfamiliar with how the patent system has changed in the last twenty-five years, and how new problems have been introduced.

The issue of software patents is again misleading (do you actually get away with these types of arguments in court?). You know as well as I do that the type of software patents we’re talking about are new, and there has been a huge increase in them recently.

As for the claim that we haven’t given an example of a patent being invalidated… well, that’s ridiculous. We’ve pointed repeatedly to patents that have been invalidated.

As for the claim that RIM is a client of ours, that’s 100% false. I ask you to back up your claim. RIM has never been a client of ours and you claiming they are is an outright falsification.

Finally, your claim that I voted “396 times” that the patent needs an overhaul in our poll is also 100% false. Why would I even bother to do that?

So far, all we’ve seen from you are:

(a) insults
(b) misleading arguments that have nothing to do with the issue at hand
(c) outright lies

Yet, when we point each of these out, you never respond to the actual charges.

Once again, I have made it clear to you that I am more than willing to discuss the actual issues with you in an adult manner. You are the one who has resorted to fake names, name calling, and lies.

I’ll say it again. I’m willing to discuss the actual issues. Please focus on them, rather than the name calling and lies.

This guy clearly does not define the standard. Last month when I was in DC talking to policy folks about intellectual property issues, there were many lawyers who clearly understood the issues, and were willing to discuss them rationally.

As for RIM, I’ve already stated that they’re not and have never been a customer of ours. I’ve also never owned a Blackberry or any RIM stock. RIM has neither taken any of my money or given me any money. Ever.

You can act like you’re winning something if you want, your act doesn’t change the facts. I hope you can do a better job right here in your own forum discussing issues. There’s a problem though. You don’t have any idea what you’re talking about. At least “Mr. Pearce” has the good sense to offer a disclaimer e.g. “bearing in mind I haven’t read the patent.” Techdirt never does that. They pretend like they know something. They dont.

And whether one or twenty less patents issues is not of great concernt to me. But what I’m trying to get across to the anti-property rights morons here at Techdirt who talk a great game about something they know nothing about (a big problem with the MacWriters you find here), and even to you Mr Pearce (if that is your real name), is that there are already mechanisms in place to do just the kind of thing the “author” is blathering about. There is already a longstanding peer review system, there is already a provision for art to be filed with the patent office for defensive purposes and there is third party re-exam (and a handful of other mechanisms). Now its time for the ninnies to stop whining.

Unfortunately for the deconstructionists and the anarchists here at Techdirt acknowledging the existance of these mechanisms would take away the opportunity to patent-bash, whine, and pretend like they know something. They’d also have to admit what morons they are.

I’m not holding my breath.

… you wouldn’t be resorting to your little point by point defense.

The fact is, as a MacWriter and wanna-be lawyer you can’t seem to resist blathering about things you don’t understand in a sloppy way using sloppy language.

For example, talk about my courtroom performace, here is an example of you trying to prove something:

“As for the claim that we haven’t given an example of a patent being invalidated… well, that’s ridiculous. We’ve pointed repeatedly to patents that have been invalidated.”

Oh yes, now I’m convinced… sheesh. You see here would have been a good place to insert references to said patents. But since there are none, there is no reference, imagine that.

You know, you’ve proven yourself to be an angry little attack machine. Attacking a federal judge, attacking an entire federal distict court. The tone of all your articles is sarcastic and antagonistic. Yet strangely, you whine when someone applies the same tone towards you.

You’re not exactly making friends. I’d worry less about me and more about writing something worthwhile. And since you are woefully ignorant on the topic, I’d stay away from patent issues. Stick to wireless gadets. If you want to write about patent issues and actually convince someone of something try to be more humble about it. Like, “I’m no lawyer, but it seems to me that.…”

And then, when people who actually know something give you good information, you might actually try to get the lightbulb to come on and say, well, thanks.

Otherwise, you come across as pushing some kind of ignorant agenda, kind of like, well, now.

I like how you accuse of us “attacking a federal judge, attacking an entire federal district,” two things we’ve never done.

You are the one calling us ninnies, morons, idiots, etc.

Anyway, you are seriously claiming that the USPTO has NOT rejected many of the patents in the RIM/NTP case?

Meanwhile, we weren’t claiming to be authorities because we “went to Washington DC.” I was asked to go to DC to discuss this with certain policy makers. I wouldn’t claim that makes me an expert at all. However, the point was simply that I was talking to people who are in the position to make changes, and many of them are thinking about the issues. That was the entire point of my comment. You can read whatever you want into it — but please don’t suggest I said something I didn’t.

Also, you keep going back to specific legal nitpicking, which is a silly tactic. As we’ve pointed out repeatedly (and which you LOVE to ignore), we are looking at this from an economics and business perspective, and looking at ways to make the system work better… and then you respond by nitpicking that we used the wrong term about the current system. That’s totally irrelevant.

Also, you again ignore the fact that the “peer review” you’re talking about and this new effort are different. Once again, you’re legally nitpicking rather than discussing the issue.

Finally, your point claiming that there can be no other test of obviousness is false. We gave you one and it’s not “hearsay.” The test as laid out by law is non-obvious to those skilled in the art. So answer the question: why doesn’t that involve asking those skilled in the art?

So, again, I ask you, can you seriously discuss this without calling us names? Just once?

Look at that, insulting us again: “silly wabbit… moronic… idiotic.” These don’t help your argument.

Once again, you’re focusing on legal nitpicking, rather than the bigger issue of whether or not that MAKES SENSE. That’s what we’re discussing. Pointing out the problems of the system, and your defense seems to be “but that’s how the system works, because that’s the law!” That’s a tautological argument, and one that does not even touch on the issues we’re discussing.

As for the “powerful mechanism,” you have to be joking. You know as well as everyone else here, that the process is incredibly cumbersome and heavily designed to favor the patent holder.

Furthermore, you again simply point to the law as the reason for using prior art as the obviousness test, when we’ve already explained why that’s a problem. Obviousness need not be defined by prior art. So, pointing to a specific law is missing the point again — we’re not discussing what the law is, but how the system SHOULD work in order to serve its Constitutional purpose of promoting progress in science and the useful arts.

Again, we never “attacked” anyone. We did point out that some are concerned about things, but that’s hardly attacking. Or, are you going to point to a legal definition of attack? For your info, disagreeing with you is not an attack. Throughout this discussion, I have tried to remain civil and accomodating to you. You are the one who keeps calling me names and insulting my intelligence with direct insults. I would think that’s much more of an attack than expressing an informed opinion on why something is problematic.

Forget it, this guy Mike is not happy unless he’s whining about something being broken… C’mon let’s get outta here and play some tetherball.

Mike, Dr Patent (if that is his real name) is clearly a forum troll. The best part is that (unlike patent trolls) these trolls tend to go away if you ignore them.

Interesting to see that the real thread of posts has been side stepped by an embarassed author