by Mike Masnick
Fri, Oct 3rd 2014 10:36am
Fri, Aug 29th 2014 10:58am
from the curing-cancer dept
Good news everyone! The Patent Office has granted a patent on a cure for cancer.
Last December, the Patent Office issued Patent No. 8,609,158 on a “potent drug” that “rebukes cancer, cancer cells, and kills cancer.” According to the patent, this drug cures a litany of other maladies. What is this wonderful invention, you ask? It is a combination of “evening primrose oil, rice, sesame seeds, green beans, coffee, meat, cheese, milk, green tea extract, evening primrose seeds, and wine.” As the patent’s abstract says, “it works.”
There is no reason to doubt the sincerity of the person who filed this application. But the patent examiner could and should have rejected it on any number of grounds, including enablement, indefiniteness, and utility. Why would the examiner issue the patent despite its clear infirmities? The answer to that question reveals the fundamental imbalance at the heart of the patent system.
This patent’s most obvious flaw is lack of utility – there’s no proof that the invention works. But the system places the burden of proof on the Patent Office, not the person asking for a 20 year monopoly. The examiner likely decided a rejection was not worth the effort – frankly, we wonder whether the examiner even read the application. In a similar case, the Patent Office issued a patent to an applicant whose work was widely known to be fraudulent. (The purported inventor had even spent time in jail for the fraud.) As Professor James Grimmelmann observed at the time: “The USPTO is an armory handing out legal howitzers on the honor system. What could possibly go wrong?”
The patent system also provides inadequate review of the crucial questions of anticipation and obviousness, i.e. is the patent really a new invention? Buried by hundreds of thousands of applications, the Patent Office can preform only a cursory review of each one. Examiners spend an average of only 19 hours per application (assuming that the claimed hours are real) and only a portion of that time is spent on the difficult and time consuming task of searching for prior art. Recent research confirmed that “examiners are more likely to approve marginal inventions when pressed for time.”
Despite this plainly inadequate review, granted patents are powerful litigation weapons. An issued patent, even Patent No. 8,609,915, is presumed valid and can only be invalidated in court with clear and convincing evidence. This is part of the reason why defending a patent suit is so expensive, even when the patent is weak. Patent trolls use this as leverage to extort settlements.
This month’s winning patent may be something of an outlier. But finding other bad patents is not difficult. Our (dis)honorable mentions this month include the recent patents US 8,793,159, US 8,793,178, and US 8,793,183. (Each of these patents, despite being issued after the Supreme Court’s decision in Alice v. CLS Bank, merely ties an abstract business process to a computer.) Whether we consider this month’s stupid patent or the runners-up, it’s clear we need fundamental reform to stop the flood of bad patents.Reposted from EFF's Stupid Patent of the Month
by Mike Masnick
Tue, Aug 26th 2014 9:09am
from the incredible dept
In May, however, Landmark sued eBay and its lawyer individually for daring to challenge its patents. Landmark claimed abuse of process, malicious prosecution, tortious interference with prospective business relations, negligent interference with prospective business relations and negligence against eBay and its lawyers... all for using the process allowed by the USPTO to request a re-exam. Landmark (really one guy: Lawrence Lockwood) and his lawyers are asking for $5 million for eBay daring to ask the USPTO to review his patents.
This is all happening in (of course) East Texas, the favorite venue for patent trolls over the past decade. Of course, there's one, new issue with filing such a lawsuit in East Texas, and that's that Texas recently put in place one of the best anti-SLAPP laws around, letting people hit back at baseless lawsuits that try to stifle free speech (SLAPP = Strategic Lawsuit Against Public Participation).
And that brings us to the latest, which is that eBay is claiming that Landmark's lawsuit is a clear SLAPP case, in which Lockwood is trying to block eBay from petitioning the USPTO in a perfectly legal manner. This is not the first time that a bogus patent-related lawsuit has met with an anti-SLAPP, but it's worth seeing how this one plays out. Ebay's filing is worth reading. Here's a snippet:
Each of Landmark’s claims against eBay is subject to dismissal under the anti-SLAPP statute because it is clear on the face of the Complaint that each of those claims is based on, relates to, and is in response to eBay’s exercise of its right to petition and right of free speech. See Tex. Civ. Prac. & Rem. Code § 27.003(a). Specifically, each claim is based entirely on eBay’s petitioning of the PTO to review the validity of the Patents through the ex parte reexamination procedure, and eBay’s statements to the PTO in connection with those petitions. For example, Landmark’s abuse of process claim is based on the allegation that “Defendants made an illegal, improper, or perverted use of process before the USPTO in submitting erroneous and misleading Requests for reexamination of Plaintiff’s Patents in violation of federal law[.]” ....Popehat notes that Larry Lockwood has actually tried this before, suing a different law firm using the same theories and was laughed out of court (and that was back before the Texas anti-SLAPP law was in place). Thanks to that anti-SLAPP law, Lockwood may be on the hook for eBay's attorneys' fees. Perhaps he'll "pay them with a credit card online."
The filing of a request for reexamination with the PTO plainly constitutes an exercise of eBay’s right to petition shielded by the anti-SLAPP statute. The statute defines the “exercise of the right to petition” to include “a communication in or pertaining to an executive or other proceeding before a department of the…federal government or a subdivision of the…federal government.” .... The PTO is a federal agency in the U.S. Department of Commerce that performs adjudicatory functions.... Patent reexamination proceedings before the PTO are official proceedings established by federal law.... Thus, eBay’s reexamination requests constitute communications made in or pertaining to an executive proceeding before a department of the federal government, and fall within the protection of the right to petition under the anti-SLAPP statute
by Mike Masnick
Mon, Aug 11th 2014 2:17pm
from the part-II dept
But when it came time last summer for the patent office to turn over the findings to its outside watchdog, the most damaging revelations had disappeared. The report sent to Commerce Department Inspector General Todd Zinser concluded that it was impossible to know if the whistleblowers’ allegations of systemic abuses were true.The white washing of the abuse seems particularly problematic, given that it paints a very different picture, where the problems aren't so pervasive, and that the problems don't go back to leadership (hmm...).
“What we hoped to see was an unfiltered response,” Zinser said.“That’s not what this was. It’s a lot less sensational. The true extent of the problem was not being conveyed to us.”
The original findings, by contrast, raise “fundamental issues” with the business model of the patent office, which oversees an essential function of U.S. commerce, said Zinser, who was provided a copy of the original by a patent official.
Both reports conclude that policies negotiated with the patent examiners’ union have left managers with few tools to monitor their staffs. Both acknowledge that supervisors have limited access to records that could prove suspected time fraud, resulting in negligible disciplinary action.The USPTO is trying to frame this distinction as being that the first report was a "rough draft" and the latter was a more complete version, but it seems like the opposite. The first was pretty complete, and the second is... missing a bunch.
But the original one describes a culture of fraud that is overlooked by senior leaders, lax enforcement of the rules and the resulting frustration of many front-line supervisors. The version provided to the watchdog was far less conclusive, saying that managers who were interviewed held “inconsistent” views on whether examiners were gaming the system.
The fact that the USPTO tried to hide this abuse -- and the fact that it appears to be systemic -- also suggestions an operation that is not looking to fix the problems, but to brush them under the rug. It certainly does not inspire much confidence.
by Mike Masnick
Mon, Aug 11th 2014 1:17pm
from the and-lied-about-it dept
Some of the 8,300 patent examiners, about half of whom work from home full time, repeatedly lied about the hours they were putting in, and many were receiving bonuses for work they didn’t do. And when supervisors had evidence of fraud and asked to have the employee’s computer records pulled, they were rebuffed by top agency officials, ensuring that few cheaters were disciplined, investigators found.This comes on the heels of a similar report about the paralegals who work at the USPTO. We had skipped that story, because it wasn't the actual examiners, but it appears that the story with examiners is basically the same. Generally, the ability to telework is a good thing, offering lots of flexibility for those who can handle it, but it's certainly also open to abuse by those who can't (or by those who wish to abuse the system). It appears that the USPTO set up the worst of all worlds in creating a telework system with no way of either truly monitoring how it was being used or any way to stop any abuses.
Oversight of the telework program — and of examiners based at the Alexandria headquarters — was “completely ineffective,” investigators concluded.
Oh, and worse, the USPTO then tried to hide all of this... but I'll leave that for my next post...
by Glyn Moody
Wed, Aug 6th 2014 12:41am
from the above-the-law dept
It would be easy to assume that the European Patent Office (EPO) stands in the same relationship to the European Union as the USPTO does to the United States, but that's actually wide of the mark. The EPO is a very strange beast indeed, as its Wikipedia entry makes clear:
The premises of the European Patent Office enjoy a form of extraterritoriality. In accordance with the Protocol on Privileges and Immunities, which forms an integral part of the European Patent Convention under Article 164(1) EPC, the premises of the European Patent Organisation, and therefore those of the European Patent Office, are inviolable. The authorities of the States in which the Organisation has its premises are not authorized to enter those premises, except with the consent of the President of the European Patent Office.
Far from being some boring government office like any other, the EPO is like a mini nation-state. This curious fact has been taken as the starting point for a witty post on the IPKat blog about a little-known country, Eponia:
a small landlocked state mainly based in Munich, though it has established colonies in The Hague, Berlin, Vienna and Brussels. Few people are born in Eponia (though it is rumoured that quite a few have been conceived there); most are settlers -- though they prefer to call themselves by a less provocative term, Examiners.
Here are some details about its financial operation:
One of the most buoyant economies in Europe, Eponia enjoys a unique and apparently inexhaustible source of income: patent tourism. Pilgrims come from far and wide to place their supplications before the local sages, or Boards of Appeal. Well-wishers also ply Eponia with money in order to obtain patents, cancel patents, amend patents or sometimes just to accelerate or retard the rate at which these much-desired services are delivered. Those whose petitions for a patent are successful often find that they are blessed with plenty, and that their influence extends from one end of Europe to the other. Some say that this good fortune can persist for getting on for 20 years, so long as occasional sacred donations, quaintly termed "renewal fees", are paid. What other country in Europe can offer such attractions? The horseshoe, the four-leaf clover, the leprechaun pale into insignificance in comparison.
And let's not forget about more elevated matters:
The national religion of Eponia is contained in a document known as the European Patent Convention, whose Articles (far more numerous than the Church of England's mere 39) are held to have been dictated directly into the ear of Blessed Bob van Benthem by a divine voice in the form of a holy hummingbird. While of less mystical origin, the Rules are also greatly revered. Like any sacred text, its superficial meaning is open to misinterpretation, and only specially trained priests are initiated into the deeper meaning of its rites and rituals (enigmatically referred to as "Guidelines"). When sufficiently inspired, those who are closest to achieving spiritual ecstasy can be seen and heard to be "talking in tongues", which embrace English, German and French -- but never Spanish or Italian.
It's a great piece, but its gentle humor exposes a serious point about the EPO: it is literally above the law. That could be a problem because of a major change to the European patent landscape: the introduction of the unitary patent:
A unitary patent will be a European patent granted by the EPO under the provisions of the European Patent Convention to which unitary effect for the territory of the 25 participating states is given after grant, at the patentee's request.
Unitary patents will be granted and administered by the EPO, and will have effect across most of the European Union. However, they will not be directly subject to the European Union. A perceptive paper by Dimitris Xenos, entitled, "The European Unified Patent Court: Assessment and Implications of the Federalisation of the Patent System in Europe", explores some of the problems this could cause once the associated Unified Patent Court (UPC), the sole arbiter of unitary patent disputes, comes into operation :
The UPC will operate in relation to an upgraded framework of patents that are granted by the European Patent Office (EPO), with such patents being able to have unitary effect in all participating states (i.e. those which have approved the relevant EU Regulation). By replacing the jurisdiction of the national courts in enforcement and invalidity proceedings of such patents, the UPC will take exclusive competence to determine all disputes relating to patents with unitary effect. The new system has all the main characteristics of a federal court, apart from the name. However, although a federal structure is adopted, important elements are strikingly different. First, the EU states do not form a federation under which benefits are pursued for the common good of one state and second, there is no legislative authority to influence the economic policy which underlies the determination of the legal principles and standards that define patents as objects of property in the UPC system.
That emphasizes once more that the unitary patent system has been decoupled from the normal legislative and democratic processes of the European Union, and thus will be under no obligation to take heed of the economic interests of the European citizens. Here's why that is likely to be a problem:
There is no precedent in the political history of modern democracies where important property issues affecting the economic sustainability and development of a country, and the proprietary rights and business prospects of its people, were conclusively and exclusively taken by a judicial body at supranational level. A democratic policy-making process for the determination of patents as objects of property exists, of course, in all countries of the world, including the US, whose system the UPC tries to imitate. The difference is that the US unified patent system does not escape democratic control, and the economic policies that it serves are widely debated by legislators, judges, economists, lawyers and industry players, all of whom are residents of the same country.
It's still early days for the unitary patent and the Unified Patent Court, so it's not yet clear how the new system will work, and how serious the problems will be. The danger is that Eponia might turn out to be not so much a quaint oddity in the European political landscape as a dangerous rogue state with serious negative consequences for the region's businesses and citizens.
by Mike Masnick
Thu, Jul 10th 2014 12:35am
johnson & johnson
Following Backlash, White House Realizes Guy Who Opposed Obama's Own Patent Reform Plan Shouldn't Lead The Patent Office
from the how-did-it-even-get-that-far? dept
At the very least, that suggests that the "leak" of his name was something of a trial balloon, to see how it would go over -- and the vocal rejection (including by big patent reform supporter Senator Chuck Schumer) made the White House realize that it would be in for a pretty angry fight over the nomination. Hopefully, the next nominee isn't someone who has vocally fought against the President's own position on patent reform...
by Mike Masnick
Mon, Jun 30th 2014 4:02pm
johnson & johnson
Obama To Appoint Pharma Patent Lawyer, Who Has Fought Against Any Patent Reform, To Head Patent Office
from the because-of-course dept
As many of you know, I’m a longtime user of the patent system. I’ve been a scientist in a laboratory. I’ve represented inventors and innovative businesses, patent plaintiffs, and patent licensors. I am now the head of the agency charged with examining and issuing patents.There's a lot more in there that's worth reading. I can't recall ever seeing a head of the patent office open to even recognizing that patents are not the be-all and end-all of innovation. I can't recall ever seeing a head of the patent office even willing to admit that there could be costs to the patent system that need to be weighed against the benefits. For the most part, they've tended to just want to expand the patent system on the assumptions that "patent = good; more patents = better." So this kind of speech was actually both surprising and refreshing.
That said, I’ve also been on the other side of countless demand letters and lawsuits from patent holders, and have spent a good part of my career representing patent defendants and licensees—including against so-called “patent trolls.” In fact, I’ve even argued on behalf of clients that some patents should be invalidated.
Now, I wouldn’t call myself “anti-patent,” nor would I call myself “pro-patent,” whatever those labels mean. But let me be clear: I am, without reservation, “pro-patent system.”
What do I mean by "pro-patent system"? It means that I believe that a strong patent system is essential to fostering the innovation that drives our economy. I recognize that our patent system is not something that exists in the state of nature, but is the result of policy decisions made by Congress and the Courts that weigh the costs of patent exclusivity against its benefits. We are constantly reexamining those policy decisions, to make sure the benefits continue to outweigh the costs.
I believe that, for the most part, the benefits do outweigh the costs, but we need to be clear about what those benefits and costs are, and about the realities underlying innovation today. Patents are not the only drivers of innovation. The first entity to bring a product to market has a first-mover advantage that provides an incentive to innovate on its own, even if no patents are ever sought or granted. Some firms opt for an open source model, where they benefit from the network effects of the widespread adoption of a technology they developed. We also know that reputation and branding—with or without trademark protections—play a large role in facilitating innovation. And, of course, there are a large number of innovations protected by trade secrets or by copyrights, not by patents.
And yet, patents still play a critical role in promoting innovation. Patent exclusivity—that is, the right of a patent owner to exclude others from using the patented invention—provides a unique route for inventions to find their way to the marketplace. Even with a patent, an inventor requires access to capital, developing a prototype, finding channels of distribution, and more before he—or increasingly, she—can get it to the market. Exclusivity protects the competitive position of a new entrant to the marketplace, which in turn attracts investment. And that plays an essential role in giving inventors and investors the confidence to take the necessary risks to launch products and start businesses.
And, of course, just days later, it appears that President Obama is poised to appoint a long-time pharma industry patent-maximalist who has spent years fighting against patent reform, to take over as the director of the USPTO. One can hope that, just as Lee didn't turn out to be a total patent hater, but rather a moderate who was trying to find a middle ground, that the same will be true with Phil Johnson, the former executive from pharma giant Johnson and Johnson -- but I have my doubts.
In December, Johnson testified before the Senate on behalf of the 21st Century Patent Coalition, a group of companies who opposed a bill that would have made it easier for defendants to challenge low-quality patents, and to recover legal costs in the face of frivolous patent lawsuits. (Johnson’s group ultimately prevailed last month when Senate Democrats killed the bill altogether.) Johnson has also opposed previous patent reform initiatives, describing them as “almost everything an infringer could ever want.”Last year, President Obama came out surprisingly strongly against patent trolls and in favor of comprehensive patent reform. Of course, after lots of negotiations on reform proposals, a combination of trial lawyers and big pharma -- from where Johnson came -- stepped in to kill the whole process dead. That certainly does not bode well for patent reform under the likely next director of the USPTO.
Wed, Jun 18th 2014 2:09pm
from the finally dept
Given that I've been quite vocal about my interest in the Washington NFL team changing its name from the disparaging "Redskins" moniker to something more civil, you might think that I'm doing some kind of happy dance in my office now that the USPTO has rescinded the trademark registration for the team (something I had predicted, along with others, a while back). Look, I won't pretend like any steps moving us closer to a world where that team's name is changed don't make me happy, but I do take the counterpoints seriously. I don't particularly care for a world where speech deemed "offensive" can't be uttered, nor do I generally like when the government sticks its nose in most things. I understand that completely -- I just think there are some serious arguments for ensuring the government doesn't grant exclusive rights to organizations on the backs of horribly racist terms. So when the USPTO says they're removing the registration because the term is disparaging and they don't want to grant rights for the team to seek trademark damages to that kind of language in all of our names, I happen to think that make sense.
“We decide, based on the evidence properly before us, that these registrations must be cancelled because they were disparaging to Native Americans at the respective times they were registered,” the board wrote in its opinion, which is here.Again, if you think this is yet another example of government's intrusion on free enterprise, I get where you're coming from. After all, damn it, we wouldn't need to have come to this point if the citizens of D.C. had risen up and refused to go to games until the name was changed. That would have been a far preferable solution. That said, the provision in trademark law forbidding marks of a racial nature is fairly clear and I think there's fairly good reason for that language. As plaintiff Amanda Blackhorse said:
“I am extremely happy that the [Board] ruled in our favor,” Blackhorse said in a statement. “It is a great victory for Native Americans and for all Americans. We filed our petition eight years ago and it has been a tough battle ever since. I hope this ruling brings us a step closer to that inevitable day when the name of the Washington football team will be changed. The team’s name is racist and derogatory. I’ve said it before and I will say it again – if people wouldn’t dare call a Native American a ‘redskin’ because they know it is offensive, how can an NFL football team have this name?”This ruling isn't only in the name of being politically correct to Native Americans, it's about a government office that purports to represent all of us granting exclusive rights based on language that an overwhelming majority of outlets define as racist. The public can and does have an interest in how government represents us and granting trademark to that kind of term just isn't okay.
Now, before anyone gets their First Amendment panties in a twist here, the team doesn't lose the right to use the name and even keeps its registered mark during the appeals process, which has already begun.
The team will almost certainly appeal the case, and it will be able to keep its trademark protection during appeal. Losing the trademark would not force the team to change its name, but it would allow anyone who wanted to use “Redskins” on merchandise or through other means to do so, which could cost the team — and, because of the NFL’s revenue-sharing model, other NFL teams — “every imaginable loss you can think of,” as the team’s lawyers argued in the original case. For that reason, the trademark has long been thought of by opponents of the team’s name as the easiest avenue to changing it.If Dan Snyder, a man who has filed lawsuits claiming anti-semitism, wants to stick to his racist guns and keep the team name, he can. He just doesn't get the ability to seek damages that a registered mark affords him. Speech is actually opened up by this ruling, not infringed upon. In other words, for those of you that think the team name is awesome and/or the USPTO shouldn't be getting involved in this, all is not lost. The racist term you wish to protect can still be used by the team if it wishes, it's just that those of us who think the government shouldn't be sanctioning that kind of thing are finally being represented.
by Mike Masnick
Wed, Jun 11th 2014 3:06pm
Amazon Got 'Photography Against A White Background' Patent Because CAFC Says Obvious Ideas Must Be Written Down
from the idiots dept
The ethically challenged court that is at the root of so many problems in the patent system, often thanks to a too close relationship with patent lawyers, is the heart of the problem once again. Even with the Supreme Court unanimously reversing CAFC left and right (and even saying that CAFC "fundamentally misunderstands what it means to infringe" a patent), CAFC is still causing all sorts of damage.
The issue here is "obviousness." Now, you may recall that, back in 2007 (back when the Supreme Court was just getting warmed up with its annual bout of CAFC-smacking), the Supreme Court issued an important ruling in Teleflex v. KSR, saying that the CAFC's "standard" for what counts as "obvious" was way too strict, and that patent examiners should be allowed to use basic common sense in rejecting patents that tried to claim obvious things. This resulted in new guidelines at the US Patent Office, in which examiners actually had some ability to apply common sense. The new rules had an immediate impact, with courts and patent examiners getting much more aggressive in rejecting bad patents. Unfortunately, in 2010, then USPTO director David Kappos rewrote the rules again, deleting a bunch of "tests" for obviousness, making it once again harder for examiners to reject patents for obviousness.
More recently, CAFC effectively blessed a new set of very strict rules for judging obviousness that require any indication of obviousness to be written down somewhere. In other words, if you can't point to a written explanation that explicitly states that something is obvious, the USPTO won't reject a patent for being obvious. As Duan explains:
Even though this latest case is a recent ruling, it shows the kind of situation that CAFC has been creating for ages. It has never appreciated the idea that obviousness is different than prior art. A patent is only supposed to be awarded if it's both new and non-obvious to a person skilled in the art. But, for reasons that make no sense, many in the patent world seem to think that something is only obvious if it's been first written down somewhere specifically. But, of course, some things are so obvious that there's no need to write them down.
Hear-Wear was about a patent on hearing aids. The patent was being reconsidered by the Patent Office, and the independent claims had already been held unpatentable.
But a dependent claim further added an element about a wire coming out of the hearing aid:
Claim 3. The at least partially in-the-canal module for a hearing aid of claim 2 [of the Hear-Wear patent] wherein said insulated wiring portion is terminated by a plurality of prongs that provide a detachable mechanical and electrical connection to an audio processing module.
This is complicated language, so the visual to the right should help you to understand it.
Most people call this a plug: a plurality of prongs (those two things at the end) that provide a detachable mechanical (you can plug and unplug it) and electrical connection (electricity flows across the prongs) to an audio processing module (whatever you plug it into, like your computer).
It is hard to believe that a patent could be granted for adding a multi-pronged plug to a well-known invention. “Every purchaser of electrical devices in the United States for the past 50 years or more is familiar with multipronged electrical connections,” wrote the lone dissenting judge in Hear-Wear. But the two judges in the majority would have none of that. As they said, the Patent Office “cannot accept general conclusions about what is ‘basic knowledge’ or ‘common sense’ as a replacement for documentary evidence for core factual findings in a determination of patentability.” Proving this patent obvious, according to them, required paper documentation.
And that's the case with this white background patent. As Duan points out, one of the dependent claims adds what may seem like a useless detail to the patent: "The studio arrangement of claim 2, wherein the first distance is about 4.5–5.5 times a height of the top surface of the elevated platform. " That 4.5-5.5 times issue is really nothing special, but because a previous patent on a similar setup doesn't include the number, well, suddenly this patent is "non-obvious."
No one would write an article with that exact distance ratio or file a patent application about it. No one would want to do so. It was too uninteresting a feature to have ever merited any attention. Who knew if Saigo had used that distance ratio—Saigo’s application didn’t say. Who knew how many other photographers had actually used that distance ratio before—it didn’t matter, since it wasn’t on paper before her. Who knew if some college dissertation mentioned the exact numbers—with only a few hours left, and with a stack of other applications to examine, this examiner would not find it.Welcome to the wonderfully insane world of patent law, where common sense has no place. And you can patent just about anything if you're tricky enough.
It was a silly thing to grant a patent on, no? Photography against a white background is obvious, but photography against a white background at a certain distance is nonobvious? The examiner could perceive no reason why that 4.5–5.5 ratio was advantageous, and the text of the application revealed none. If this patent issued, it would not be because the invention was an improvement; it was because this Studio Arrangement claim was different. Not better, just different.
But, the law said, that was enough to grant a patent.