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

    Re: Patent commentary


    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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