USPTO To Reexamine Eolas, SBC Patents

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!"

Pattent System

[spooje]

Great now if we can just get the USPTO to review the entire pattent process we should be all set.

How many times...

[Space cowboy]

... 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

Hmmmm, other motivations....

[RedStapler]

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.

Re:Hmmmm, other motivations....

[goldspider]

"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!

Putting a leash on the patent monster

[dcavanaugh]

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.

What if it wasn't MS

[oolon]

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

Precedent

[SparklesMalone]

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:Hmmmm, other motivations....

[RedStapler]

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 patents looked in the first place for quite some time.

I think it is a sad commentary when the only way to get changes done is through back door channels rather than overt/open channels (i.e. review process, etc.). The "in the bad" comment which seems get everyone's feathers all in a tizzy is really addressing this fact, can Joe Citizen go out and drive these changes or is it limited to those with sufficient $ to participate in the process.

Re:How many times...

[joab_son_of_zeruiah]

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.

What I have not seen mentioned

[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.

They're not "Changing the Rules."

[AzrealAO]

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?

I think you're right, with one exception...

[JohnDenver]

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 significant factor.

Had it been MS vs. the World, I think it would sink thier reputation to where even loyal Microsoft users would want to stop buying thier products.

Re:paid for by the sue-er?

[Anonymous Coward]

if you want to sue someone over a patent, sure.

you had lawyers to file the claim - doesn't seem like a stretch to me.

if there is infringement, you'll reclaim your expenses 100% on top of any settlement.

hell a fee for the USPTO pre-litigation exam wouldn't even be necessary. most company's would shirk away at unnecessary litigation at the mere thought of giving the USPTO another look at their carefully overly-broad patent.

surprisingly though, it's -not- the lawyers who are propagating this type of stuff. at least, not the IP lawyers i've met (dealing with 2 firms of them and their foreign associates, i'd say i've met quite a few).

thing is, they're paid to file the suits their clients want filed. if they don't file ridiculous suits, they'll lose their client.

for instance -there is a certain cereal manufacturer that loves to sue people for supposed infringements on their 'trademark' - even in situations where it's -clearly- not a competing product, industry, or company. most times the -only- similarity is in regards to the -type- of animal they have for their trademark.

their business people come up with these desires to sue. each time they are warned that the odds of winning are astronomically against them, but the client insists - so what do you expect them to do? play moral judge and lose a client? c'mon. they're a for-rofit business. no firm would stand for one lawyer acting up like that - they'd be out of a job before the client could sneer. they advise against ridiculous suits - but they don't refuse them.

not all lawyers are ambulance chasers. most ip lawyers come from technical backgrounds - and think surprisingly similar to most /.-ers.

Higher bar for patents

[samwhite_y]

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 appropriate training) because it takes more energy and thought to come up with an effective argument to deny a patent then it does to just let it slide through. If we made a law which forced the patent office to raise the bar on which patents got through (it should probably be knocking down 90% of the applications it receives), then that would probably help quite a bit.

However, this is yet another good government idea that is probably politically impossible because such a solution will create too much outcry from players who are comfortable with the status quo (Another example: Try taking away the agriculture handouts from our large agribusiness corporations).