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USPTO To Reexamine Eolas, SBC Patents 96

Posted by timothy
from the they-did-it-for-sideways-swinging dept.
theodp writes "The USPTO Director has ordered reexaminations of the infamous Eolas Distributed Hypermedia Method (discussed earlier(1) on Slashdot) and SBC Structured Document Browser (discussed earlier(2) on Slashdot) patents. Maybe this will inspire Tim O'Reilly to get that killer piece of 1-Click prior art off his bookshelf!"
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USPTO To Reexamine Eolas, SBC Patents

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  • Pattent System (Score:2, Insightful)

    by spooje (582773)
    Great now if we can just get the USPTO to review the entire pattent process we should be all set.
    • Re:Pattent System (Score:5, Interesting)

      by *weasel (174362) on Wednesday November 12, 2003 @11:13AM (#7453190)
      there's something to be said for limited application resubmissions.

      the current malicious patent application process is to submit as broad and vague a patent as possible (particularly in software) and resubmit over and over, narrowing it down only as much as the particular examiner requires.
      (not all patent applying company's do this - but the ones who do, -always- do).

      at some point there should be a mechanism to prevent such obvious and disingenuous 'gaming' of the system.

      the patent idea is supposed to be cooperative: a limited monopoly for an inventor in return for public disclosure of the invention (provided it meets the qualifications for being patentable), with the intent of enriching the public domain.

      the business practice of filing patents for litigation purposes (sue your competitors out of business because they can't even afford to -defend- themselves) - is equal parts sickening and maddening.

      Patent litigation should have to go through a review process at the USPTO to determine fitness of the claim (paid for by the sue-er, reimbursed by the infringer in the event of guilt).

      instead we wind up having vague patents that are pushed across a reviewer's desk as fast as possible, being enforced in a court of law that does not and should not have the technical expertise to determine veracity of the claim.

      If there was an internal USPTO review process prior to litigation - then they'd have the authority to revoke, suspend, or demand more specific clarification of overly broad patents that slipped through.

      but for some reason there's never a call to restructure the procedures for established government bureaus. even when disaster strikes, and the problems hit the forefront, the solution always seems to be simply to create yet-another-layer of bureaucracy.
  • How many times... (Score:5, Insightful)

    by Space cowboy (13680) on Wednesday November 12, 2003 @11:05AM (#7453111) Journal
    ... has this happened in the US ?

    If this can be duplicated for other patents, could this a possible route to pointing out how futile software patenting is ? I'd guess that if the USPTO had to constantly re-examine s/w patents they might be more leery of granting them ...

    Simon
    • Re:How many times... (Score:5, Informative)

      by Zeinfeld (263942) on Wednesday November 12, 2003 @11:34AM (#7453336) Homepage
      ... has this happened in the US ?

      Director ordered re-exams are rare, a few hundred a year. They tend to only take place when the USPTO is absolutely forced to.

      In this case the director is responding to a public request made by Tim Berners-Lee, the inventor of the World Wide Web on behalf of the 600 odd companies in his consortium. This is the type of request that the director of the USPTO can hardly afford to ignore.

      There are other ways to obtain a re-examination. Anyone can file at any time by paying a fee. The problem is that the re-exam process tends to be as prefunctory as the exam process and if you lose at re-exam the courts are likely to reject challenges based on the material presented in the re-exam.

      I suspect that we will see the Eolas patent quickly evaporate. Director ordered re-exams in the middle of littigation are highly unusual. The trigger for obtaining a director ordered re-exam is considerably higher than the threshold for invalidating a patent.

      • More likely the Directory is responding because huge donors to the administration stand to lose if this patent is upheld.
        • More likely the Directory is responding because huge donors to the administration stand to lose if this patent is upheld.

          It is possible, but over the years most of the pressure on the USPTO has come from patent barons and the lawfirms who service them lobbying to keep the rules loose.

          I see this more as a recognition by the patent baron donors that trying to defend the Eolas patent might end up as the catalyst to wider reforms which would hurt their interests.

    • This has nothing to do with the concept of software patents, or there merit.

      The reason for this is because there are patent lawyers that would be out of work if were not for software patents.

      There will be about as much progress here as there has been in tort law reform.

      • Re:How many times... (Score:1, Interesting)

        by Anonymous Coward
        This just shows how little you know about the legal system. Tort reform is unnecessary, as it's not really out of control (a few big judgments aside).
        The US gov. did a study a few years back which I'm having trouble finding. It shows that the average tort case is for a car accident with a settlement of $10,000. No biggie. They don't talk about 99.9999% of the tort cases on TV.
  • by levik (52444) on Wednesday November 12, 2003 @11:06AM (#7453119) Homepage
    If you lisence Amazon's 1-Click patent, do they give you an SDK to help understand this advanced and innovative technology?
  • Not to be entirely cynical but what are the odds that Microsoft had a little bit to do with the review by the USPTO. It would seem the best way to avoid paying the billion dollar+ damages claim would be to get the USPTO to invalidate the claim. In this case, I am not sure though that MS would be entirely in the bad as the plug-in patent seems a bit too broad in the first place.
    • by goldspider (445116) <ardrake79NO@SPAMgmail.com> on Wednesday November 12, 2003 @11:11AM (#7453170) Homepage
      "Not to be entirely cynical but what are the odds that Microsoft had a little bit to do with the review by the USPTO."

      And what if they did? It's a patent that, in all likelihood, never should have been awarded, so it really doesn't matter much to me who got the USPTO to examine it as long as it and bad patents like it are thrown out.

      Seriously people, you have to stop cutting off your nose to spite your face. This is a good thing!

      • The problem is that if Microsoft's power and money was the key element in getting the USPTO to move, the same trick obviously won't work when one of MS's own bogus patents becomes a problem.

        Sure, it's good to get rid of a bad patent, but what we really need is a way to get the ball rolling that does not depend on Microsoft's support.
    • Get your head out of your ass. Corporations do what is good for them. I don't like Microsoft one bit, but tagging everything they do as "evil" or "in the bad" and being surprised because they do one thing which benefits everyone else smacks of religious fanaticism, usually accompanied with hefty doses of stupidity.

      Daniel
      • Hmm, wondered why it was so dark, oh wait, maybe my head wasn't up my ass.

        Sheesh people, the comment was merely meant to postulate on why the USPTO suddenly decided to review several of the patents. It doesn't make a bit of difference whether it was Microsoft, IBM, Sun, Oracle, *insert big tech company here* but more so what actually triggered it. It just seems especially odd that suddenly the review is triggered when there have been several significant efforts to get some of the more questionable pat

    • by kansas1051 (720008) on Wednesday November 12, 2003 @11:28AM (#7453289)
      You dont have to be a billionare to force the USPTO to reexamine a patent. Its called inter partes re-examination, ANYONE can file for it, and all you need to do is submit prior art (or even just an argument) that says the patent was granted in error. Its not cheap though, it can cost a few thousand dollars depending on the scope of the reexamination, but it is an affordable option for a company faced with litigation by an over-broad patent.
      • You dont have to be a billionare to force the USPTO to reexamine a patent. Its called inter partes re-examination, ANYONE can file for it, and all you need to do is submit prior art (or even just an argument) that says the patent was granted in error.

        You might not need to be a billionaire to file for a patent reexamination. But given the number of ludicrous patents out there that haven't been reexamined, I can only conclude that you have to be a billionaire to get a patent reexamination, especially o

    • by Anonymous Coward
      " Not to be entirely cynical but what are the odds that Microsoft had a little bit to do with the review by the USPTO. It would seem the best way to avoid paying the billion dollar+ damages claim would be to get the USPTO to invalidate the claim. In this case, I am not sure though that MS would be entirely in the bad as the plug-in patent seems a bit too broad in the first place."

      Actually it was the World Wide Web Consortium W3C and Internet community but hey it's not like you have to read the article.
    • "Not to be entirely cynical but what are the odds that Microsoft had a little bit to do with the review by the USPTO."

      IIRC, the W3 consortium had requested a reexamination of the Eolas patent.
  • I assume... (Score:1, Redundant)

    by jeffkjo1 (663413)
    I assume he has also ordered 're-evaluations' of the jobs of the 2 clerks that granted these patents as well.
    • From what I understand, it isn't the patent clerks' job to scan the Internet and look for prior art, rather thier search for prior art is limited to thier own patent database.

      I wouldn't be surprised if these 2 clerks were forced by USPTO policy to grant these patents, regardless of thier opinions. I suspect this policy has been influenced by the Commerce Dept. and many federal judges over many years of litigation..

      Hell, they may ever reassign the same 2 clerks to re-evaluate the patents with a li
      • it isn't the patent clerks' job to scan the Internet and look for prior art

        IANAPL, but the way I understand the situation, they ARE supposed to look at more than just the patent database - if they were able to do their jobs correctly, they should scan all of the literature which is "typically available to a practictioner of the art" for the field of invention that they are reviewing. All of that stuff represents "prior art", and by not including it in their acceptance decision, they are requiring that some

  • by dcavanaugh (248349) on Wednesday November 12, 2003 @11:12AM (#7453182) Homepage
    The Patent Office is a government agency. Like all government agencies, it lwill do whatever it takes to sustain itself and grow. Their growth strategy has been to collect fees and issue patents, often without much regard for prior art and common sense.

    Trying to stop the growth of USPTO is like trying to stop the sun from rising. Perhaps there is a way for them to collect additional (even higher) fees for re-examining questionable patents. Considering all the garbage that is out there, they is quite a bit of work to be done and a captive market to pay for it. I think the Patent Office needs something to do. Pulling the plug on misguided patents would be a worthwhile effort. All we need for patent reform is a way to align the inevitable collection of fees with the policy goal of protecting only those truly innovative ideas that cost big money for R&D.

    • Wouldn't shorter durations for technology patents increase revenue from fees? Or do they collect many times during the term of the patent? I would think that shorter durations / more fees would make their flow of revenue a little more even.
      • by jkabbe (631234) on Wednesday November 12, 2003 @12:08PM (#7453617)
        Wouldn't shorter durations for technology patents increase revenue from fees? Or do they collect many times during the term of the patent? I would think that shorter durations / more fees would make their flow of revenue a little more even.

        As I am studying for the patent bar right now I can answer that....

        Maintenance fees (for utility patents) are due at 3.5, 7.5, and 11.5 years.

        I hope I got that right!
    • I think the Patent Office needs something to do. Pulling the plug on misguided patents would be a worthwhile effort.

      The patent office needs to *do something* but it certainly doesn't need something to do.

      I'm a law student who spent the summer at a patent law firm working on software patent prosecution. You would not believe how understaffed the USPTO is for the volume of CS related patents. One of the ways this is most obvious is that a lot of objections the examiners sent back to us were completely

    • The PTO is a beaurocracy. In every beaurocracy, the boss is the group that signs the paychecks, i.e. the U.S. Congress, for the PTO. The first rule in every beaurocracy is "Never Embarasss The Boss". Different organizational cultures have different meanings for "Embarass The Boss", but for U.S. Federal Agencies, that means being invisible outside the organization, and never doing anything that generates complaints about performance, well made or not. Right now, big corporations rule. They complain to C
  • by oolon (43347) on Wednesday November 12, 2003 @11:13AM (#7453183)
    I make you wonder what would have happened if it had not been MS. If MS had the patent and Eolas was being sued, the bet the patent office would have let the court decide if the patent should stand or not, which is the normal way they behave.

    James
    • I wonder what would happen if it was discovered that a patent clerk suddenly had one meeelion dolllars in their bank account that was deposited by an unknown person whose initials were B.G.
    • I think this case had two things going for it, neither to be underestimated:

      1. Microsoft's power to litigate and make news.
      2. The impact this patent would have on just about every web user.

      Factor #2 has been demonstrated to have some leverage in the realm of very obvious patents (BT's hyperlink patent).

      While Eolas' patent may seem obvious to your average software engineer, it isn't to your average Joe. Had it not been Microsoft, I think the impact of the installed base would have been a signif
  • Precedent (Score:4, Insightful)

    by SparklesMalone (623241) on Wednesday November 12, 2003 @11:16AM (#7453215)
    I doubt everything will be reviewed, but if there is a single review of a software patent then there is precedent for more reviews, and hopefully a message to all that patents aren't to be handed out like candy. Unfortunately the General Powers and Duties of the USPTO according to law [uspto.gov] are 1) to follow the policy of the secretary of commerce, 2) to issue patents, and 3) to disseminate patent information to the public. There is nothing in the general duties about ensuring the patent is "first art".
    • Re:Precedent (Score:3, Informative)

      by ajakk (29927)
      Yeah, there is nothing in those duties about ensuring that the patent is "first art" ... EXCEPT THE DEFINITION OF A PATENT. "Whoever invents or discovers any new and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." 35 U.S.C. 101. That is the statutory authority for the USPTO to grant patents.
      • Oh, I agree. I just find it sadly amusing that in an 84 page documenbt that describes details like how to order office supplies there are no standards for ensuring the invention is truly new.
  • Did no one notice this one [uspto.gov] from the link in the article?

    6,520,942 Reexam. C.N. 90/006,758, Ordered Date: Sept. 24, 2003, Cl. 604/290, Title: METHOD TO IMPROVE PERI-ANAL HYGIENE AFTER A BOWEL MOVEMENT, Inventor: Edward L. Putman, Owner of Record: Edward L. Putman, Vernon, CT, Attorney or Agent: Owner is representing self, Ex. Gp.: 3761

    What a lovely patent. [uspto.gov] Anal gel.

  • Other reviews (Score:1, Redundant)

    by ekephart (256467)
    From the SBC link, another patent under review:
    "6,520,942 Reexam. C.N. 90/006,758, Ordered Date: Sept.
    24, 2003, Cl. 604/290, Title: METHOD TO IMPROVE PERI-ANAL HYGIENE AFTER
    A BOWEL MOVEMENT, Inventor: Edward L. Putman, Owner of Record:
    Edward L. Putman, Vernon, CT, Attorney or Agent: Owner is
    representing self, Ex. Gp.: 3761"


    Well...
    U.S. Cl. 604--290 6 Claims

    1. A method to improve peri-anal hygiene comprising:
    providing a gel of viscosity thick enough to rest for several seconds on a piece of toilet paper w
  • So wait (Score:4, Interesting)

    by Lane.exe (672783) on Wednesday November 12, 2003 @11:23AM (#7453252) Homepage
    If they review these patents, and find them to be void, every past legal proceeding involving these patents gets reversed? The decisions no longer hold, etc.? That actually seems unlikely. New laws 9 times out of 10 don't grandfather or reverse old decisions. It makes little sense that overturned patents should also.

    • Think of reversing a patent as invalidating evidence, which will probably be submitted to an appeals court at a later time. Once you've found evidence is invalid or is misrepresented, then all arguments based on that evidence need to be reargued.

      This reversing of a patent will probably be submitted to the appeals court (if there isn't already a more convienent avenue), which will overturn the prior decisions.
    • As you have surmised, patents are considered valid (and enforceable) until they have been overturned in Federal court through the patent appeals process. As long as the patent holder can pay to keep the appeals process going, they can still litigate based on the patent. (The company I'm working for has encountered this issue recently.)

    • All of those court proceedings were based on the fact that the patent office thought it was patent worthy. I would be pretty sure that the courts would have taken a different side had the patent office said "we really don't think this is a valid patent."
  • by perrye (619347)
    I can't find any mention of the EOLAS patent on this list: Director Ordered Reexamination [uspto.gov] Check your sources!
  • No FEAR! (Score:2, Funny)

    by Anonymous Coward
    U.S. Under Secretary of Commerce for Intellectual Property James E. Rogan

    Man, I love him on Fear Factor.

    Especially when he makes them eat worms and stuff.
  • by drakaan (688386)
    Go Microsoft, go???

    That's SO unfair...

  • Was MS granted a patent on cookies [uspto.gov] today, or am I reading this wrong?
    • mmmmm, i wonder if there is any prior art for this kind of thing.
    • You're reading it wrong. The patent refers to a method for allowing a user to customise the content of a page returned by a web server, through the use of a configuration page. Although the illustrative description of the patent refers to the use of cookies to identify the user, this is no more a "patent on cookies" than it is a patent on computers, networks, the Internet or any of the other technologies referred to as being involved in the process decribed.

      Of course, it's still laughable to suggest tha

      • Anybody got prior art on the use of cookies to allow the punters to customise a page, details of such customisation being held on the server?

        Your reading from it right now. I remember doing that eons ago on /.
    • You're reading it wrong. It was granted yesterday. :-)
    • Maybe the wrong link was provided but that "patent on cookies" leads me to a patent on a method of circuit placement in an IC layout:

      "One embodiment of the invention is a recursive partitioning method that place circuit elements in an IC layout."

  • by gmajor (514414) on Wednesday November 12, 2003 @12:22PM (#7453750) Journal
    From the bottom of the uspto page (no pun intended):
    METHOD TO IMPROVE PERI-ANAL HYGIENE AFTER A BOWEL MOVEMENT

    Wiping your ass with moist toilet paper was actually patentable. Non-techies might be more interested to hear that absurd patents are not just limited to the technology realm.
    • There is actually a patent that some guy got for the manner in which he combed his hair. I've seen some others that looked as though they would be more cumbersome that the current methods available. The PTO does not evaluate whether a patent is defensible, only that prior art has been referenced and that yours doesn't infringe upon a current patent. I've been running some searches for prior art for my S/O who has some ideas and it's been educational! ;)
    • It's not absurd, it's Aloe Vera!

      USPTO search [uspto.gov]

      -----
      What is claimed is:

      1. A method to improve peri-anal hygiene comprising:

      providing a gel of viscosity thick enough to rest for several seconds on a piece of toilet paper without causing noticeable disintegration of the piece of toilet paper;

      dispensing a quantity of the gel onto the sheet of toilet paper;

      applying the gel to an anal area using the sheet of toilet paper as an applicator; and

      wiping the anal area with a dry sheet of toilet paper to dry the
  • The patent office is going to admit that they might have made a mistake? This has me extremely worried.

    Is this prophesied in the Book of Revelations, or Nostradamus or something? Will this throw the Earth out of orbit? Somebody get Satan on the phone, and ask if it's snowing.

    ~Knautilus
    • Uncalled for. The USPTO has rexamined and invalidated patents before. It does the Patent Office no good to issue bad patents, although that happens *all the time*.

      GJC
  • by Anonymous Coward
    No one seems to understand that throwing out this patent will have no effect whatsoever on reforming the patent system. This is just another case of microsoft proving that they are above the law by changing the rules to fit their current business model.

    Yes, the patent system is wrong, and yes it should be reformed. But if MS wants to get out of this mess, they should have to change the rules for all, not just themselves.

    Selectively applying the laws will only continue the problems we face now.
    • First off, Microsoft was denied the ability to argue prior-art in the original trial.

      Secondly, it's the W3C that's requested the Patent Re-examination.

      Thirdly, it's a patent re-examination, it's rare, but it's a normal part of the process. No one is changing any rules at all here.

      But of course, it's benefits Microsoft, so clearly, there must be some shenanigans going on, Microsoft getting(buying) special treatment that no one else would get, right?
  • If you look at the number of patents that are created per year (in the 10s of thousands I think), you would think a lot of creative and useful activity was being done. But if you look at the visible effect on our actual world and environment, it is not hard to see that most of these patents are not that original or do not have much new creative insight.

    Out patent office is biased towards approving patents, not towards denying them. This is probably somewhat due to the understaffing (and lack of appropriat

    • It's because of these corporate welfare handouts to agrobusiness that the Doha Rounds of the WTO negotiations in Cancun, Mexico fell apart. The US and Western Europe, who gives agrobusinesses billions in subsidies wants other countries like Brazil to open up their markets to imports while stopping those countries from giving their own farmers subsidies, driving them out of business, making those countries dependent of heavily subsidied imported food.

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