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.

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Comments on “EFF Bad Patent-Busting Project Scores Another Re-Exam”

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anonymous coward says:

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?

Don Gray says:

Re: 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.

Anonymous of Course says:

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.

Dennis says:

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.

Napolean Dynomite says:

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…

Rocket Scientist says:

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.

Mike (profile) says:

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.

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