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Microsoft Government Patents The Courts

Paul Allen's Lawsuit Patents To Be Reexamined 57

Posted by timothy
from the well-lookie-here dept.
eldavojohn writes "Last year Microsoft co-founder Paul Allen filed suit against eleven tech companies citing patent infringement on four of his patents. Groklaw has followed up with some interesting documents that reveal three out of the four have already been granted a reexamination by the USPTO with the fourth still pending."
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Paul Allen's Lawsuit Patents To Be Reexamined

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  • by Anonymous Coward on Saturday May 28, 2011 @08:16PM (#36276676)

    I wouldn't get too excited yet. Of the three that have had re-exam ordered only one has had the next step, a non-final rejection. After the non-final rejection the patent owner then gets to respond with arguments, evidence showing non-obviousness (inventor affidavits), or amending claims. The reexam examiner can then if unconvinced Finally reject the claims. Even this is pretty meaningless because the examiners decision will be appealed to The Board of patent Appeals.

    Of the 190 appeals revived from re-exam about 20%of Final rejections are overturned in full and another 20% are overturned in part.

    http://www.uspto.gov/ip/boards/bpai/stats/receipts/fy2011_apr_e.jsp [uspto.gov]

    If the patent is still rejected after this the patantee can appeal to the CAFC. Then to CAFC en banc and then finally to the Supreme Court (en banc and Supreme Court are obviously (no patent pun intended) not guaranteed).

    So basically a Non-final action meas Jack and shit and Jack quit the patent office last week.

    • Well, if it's so damn easy and cheap (comparatively) to get an obvious idea patented because it's not in your limited database, and your all just pawns in a fundamentally broken bureaucracy ( it's "first to file" now, what's the point of secrecy of the submissions? A select few examiners must explore a world of prior art in a limited time? ), then why is it so damn hard to get obvious patents invalidated?

      Here's a hint -- "Geniuses" aren't special, and you are not professionals skilled in the art. Seriou

      • The real problem is that patent examiners start off with the assumption that having more patents in existance are better. If you would like to reply (and be held credible) please also explain why the swinging on a swing patent was granted, and why we had to waste our tax dollars getting it invalidated. (Answer: It was easier to get the dumb idea through the system, than to get it invalidated.)

        In my experience prosecuting patents, I have found examiners are quite willing to bend over backwards to make an obviousness rejection, combining references in such a way that sometimes I have to sit back at a loss for words.

        As to the issuance of any one patent that is objectively ridiculous and should never have been otherwise issued, like the swinging on a swing, humans are imperfect and that seems to be a case of an examiner being limited by the bounds of its search. Of course, the challenge for you i

        • by Raenex (947668)

          Given the abundance of utterly crap software patents, and just how simple it is to invent software, I find your complaint rather shallow and self-serving.

          Of course, the challenge for you is to find a reference that invalidates the patent :)

          Yeah, exactly. Most people when writing software don't publish every little novelty they come up with during the course of business. The whole thing is a farce and a blight on humanity. I can only hope one day your parasitical job is legislated out of existence so that productive people can actually be productive.

          • Gotta love slashdot. It's much easier to be derisive and speak in generalities instead of citing any relevant evidence and constructing a cogent argument. Being published isn't necessary for software to qualify as prior art; its use need merely be public. Moreover, if you truly did come up with the patented idea first, feel free to claim your rights, that's a benefit of being in America. It really seems like a substantial number of slashdot posters suffer from extreme hindsight bias.
            • by Raenex (947668)

              Gotta love slashdot. It's much easier to be derisive and speak in generalities instead of citing any relevant evidence and constructing a cogent argument.

              I cited no less evidence than you.

              Being published isn't necessary for software to qualify as prior art; its use need merely be public.

              What the fuck do you think it means to publish something?

              http://www.onelook.com/?w=publish [onelook.com]

              verb: prepare and issue for public distribution or sale

              When you're writing software, especially before open source became so popular, the average developer doesn't go out of their way to publicize their methods.

              Moreover, if you truly did come up with the patented idea first, feel free to claim your rights, that's a benefit of being in America.

              Maybe some people actually want to get work done and not act like a parasite for patenting every stupid little invention they come up with.

              It really seems like a substantial number of slashdot posters suffer from extreme hindsight bias.

              No, the problem is that far too many

              • I cited no less evidence than you.

                Fair enough. For public use, see 35 U.S.C. 102(b). You will see the publication bar is separate and distinct from the public use bar.

                No, the problem is that far too many patents about being handed out like candy, and most of them are for obvious implementations of combinations of technology. Tell a smart developer the problem to be solved, and chances are they could come up with the solution that resembles the patent. When you go look at the patent, it's full of a bunch of mumbo jumbo to describe obvious ideas.

                I wasn't aware software patents were being "handed out like candy." After making a very brief search, it seems allowances are granted less frequently for software applications than many other applications. http://glennfosterpllc.blogspot.com/

                Indeed, allowance rates generally have been on the decline. http://www.patentlyo.com/patent/2007/02/uspto_allowance.html?cid=604832

                • by Raenex (947668)

                  Fair enough. For public use, see 35 U.S.C. 102(b). You will see the publication bar is separate and distinct from the public use bar.

                  Lots of software is never made public at all, and it's not easy to find somebody who was using a technique unless they went out of their way to publish it. It does no good that somebody, somewhere was using the technique if you can't find it, as you so glibly pointed out in your post: "Of course, the challenge for you is to find a reference that invalidates the patent :)"

                  I wasn't aware software patents were being "handed out like candy."

                  I just don't know where you've been then since the 90s and on.

                  Indeed, allowance rates generally have been on the decline.

                  Yes, there's been pushback in recent years as the abuses piled up.

      • Seriously, give the problem to any skilled individual and look at the solution they come up with, then tell me it wasn't obvious

        The threshold for obviousness involves one having ordinary skill in the art. Not one who's an expert in the field, not generally one with years of experience. Ordinary skill. This varies depending on the field, but a lot of times, you're talking about the skill of someone fresh out of college, or maybe with enough experience to get past the OTJ portion of their job.

        and why we had to waste our tax dollars getting it invalidated

        The USPTO is funded entirely by the fees it collects from patentees and applicants. In fact, a portion of those fees end up diverted to othe

        • The USPTO is funded entirely by the fees it collects from patentees and applicants.

          And therein lies the problem.

          • You're going to have to explain why that's a problem, then.

            • by sjames (1099)

              The USPTO is paid by satisfied customers, which means the more patents they approve, the more fees they get. Meanwhile, they suffer no costs when they allow an invalid patent.

        • by sjames (1099)

          Ordinary skill would seem to call for a middle of the road level of experience. Not the most senior and not fresh out of school. That is where most professionals are in their career, after all.

          Yes, the USPTO itself is funded by application fees. However, the courts and armies of lawyers that must get involved in invalidating the latest USPTO mistake cost many millions and are NOT funded by patent applications. The lawyers are paid by draining the economy directly and the courts are paid through involuntary

      • by Splab (574204)

        The problem is, most solutions are simple as soon as someone thought them up - reading about a solution is vastly easier than being the first to come up with it.

        I'm in the process of developing a new idea (both hardware and software) - as soon as the product is out on the shelves a lot of competing companies are going to ask "why didn't we come up with this?". It's an obvious solution to a difficult problem, but as far as I know; no one has yet thought of it.

        • by sjames (1099)

          The bigger problem is the number of solutions that become obvious once the problem is identified.

          Most of the crazy patent lawsuits out there aren't cases where the solution looked obvious in retrospect so someone decided to infringe. They are cases where the same problem inspired the same obvious solution and someone with a few 10s of K to waste beat a path to the patent office with it. The people being sued never saw the patent they're being sued over and never looked at the patented solution first, they j

      • ( it's "first to file" now, what's the point of secrecy of the submissions?

        Just because a few senators have discussed changing the law doesn't mean it's actually been changed yet.

        Seriously, give the problem to any skilled individual and look at the solution they come up with, then tell me it wasn't obvious (no, don't say to a consultant: "is there a known solution" -- Pay a professional a small fee to come up with a proposed solution, or maybe, let the public do it for free by posting the end result requirements/results desired online and asking for solution suggestions from the public you serve -- The ugly truth is YOU DON'T ACTUALLY TEST FOR OBVIOUSNESS!!!

        The ugly truth is that you don't actually understand what obvious means in this context. It doesn't mean "no professional could come up with a proposed solution". If it were, there wouldn't be any point for a "first to file" system because only one person could possibly have come up with the idea: the very fact that two inventors file means that it must have been obvious, right?

        But no, that's not how it

    • Aren't your statistics saying 60% of final rejections are affirmed in full and 80% are affirmed at least in part? Seems like more than jack to me.
  • A real shame (Score:5, Insightful)

    by Man On Pink Corner (1089867) on Saturday May 28, 2011 @08:45PM (#36276828)

    Paul Allen has done a lot of great stuff (and some not so great stuff) for the Seattle area, but on the whole he's definitely made a positive contribution. Now, at a time in his life when he might have looked to the Gates Foundation or other global interests to occupy his time, he decided instead to buy up a bunch of bullshit software patents and go trolling.

    So fuck off, Paul. You could've made a difference, but you decided to enrich a gang of lawyers instead.

    • by topham (32406)

      He's doing it to affect his investments. It's about manipulating stock values, he doesn't give a crap if the patents survive a challenge.

    • by Anonymous Coward
      You mean the Paul Allen that's giving the bulk of his 13 billion dollars to charities? Well and, you know, funding the first real crack at space travel for the rest of us? And all the museums and millions (maybe billions now?) of dollars in charitable contributions he's already made? That's the guy you want to go "fuck off" for "enrich[ing] a gang of lawyers"?

      You need a real bad guy to vent about man. It'll do you good.
      • Re:A real shame (Score:4, Insightful)

        by Man On Pink Corner (1089867) on Saturday May 28, 2011 @10:09PM (#36277190)

        So what's his angle? Why is someone with that kind of reputation stooping to patent trolling? Do you think that's what Allen wants to be remembered for?

        I don't disagree with you about his many positive contributions (and I believe I made that very clear), but this is like Bill Gates waking up one morning and deciding to go club seals with a video crew tagging along. Is it profitable? Not likely. Is it a good PR move? Of course not. Is it a masterstroke of respectable villainy, worthy of history's all-time great evil overlords? No. It just doesn't make any sense.

        For one thing, if I were that wealthy and didn't care about my legacy or public image, I'd get more serious about my evil-doing. I wouldn't fart around with a bunch of chickenshit patent suits. I'd build a vast island fortress in the desert and staff it with robotic underage hookers or something.

        Anything but engage in this sort of penny-ante legal lameness, which does nothing but tarnish my reputation among informed, technologically-literate people.

        • by Anonymous Coward

          Not ALL patents by successful people are trolled patents - some of them (most outside of .com's) actually invent stuff that helps the world in some way significant enough to have earned the money they make. These are pretty big companies he's going after for stealing his work - mostly ones that DON'T actually do anything for society (Yahoo! for example).

    • by Nyder (754090)

      Paul Allen has done a lot of great stuff (and some not so great stuff) for the Seattle area, but on the whole he's definitely made a positive contribution. Now, at a time in his life when he might have looked to the Gates Foundation or other global interests to occupy his time, he decided instead to buy up a bunch of bullshit software patents and go trolling.

      So fuck off, Paul. You could've made a difference, but you decided to enrich a gang of lawyers instead.

      I live in Seattle, and honestly dude hasn't done shit but try to make more money in his pocket.

      • by hedwards (940851)

        I take it you're not familiar with the term "confirmation bias" the bast majority of what Paul Allen does is never made public because he tends to keep a pretty low profile in general. The things that folks tend to hear about are things like the South Lake Union development that his company has been doing, buying the Seahawks and now this.

        Anybody who says that he hasn't done shit but try to take money from them is obviously either a dumbass or a troll. Unfortunately, they're probably not a troll.

        • by cthulhu11 (842924)
          Well, let's see -- we had a stadium with a new roof that wasn't even paid off, but there was a vote re tearing it down and building not one but two replacements. We said no, but it was done anyway, resulting in higher sales taxes, and more income channels for PA. The LSU development -- more cookie-cutter mixed use buildings that again are income channels for PA. The SLUT -- a vanity trolley because PA wanted one. Slow, limited capacity, just one line. Benefit to Seattle is limited to an increase in bicy
    • Or maybe his intentions are to collect a lot of money from these patents and do something useful with it, like, say, medical research.

  • by Mike_K (138858) on Saturday May 28, 2011 @09:16PM (#36276950)

    Isn't one rule of "novelty" for a patent that just about any expert in the field wouldn't be able to come up with the same solution to the problem? Because IIRC, his company basically gets experts to sit together with lawyers and speculate about the future. And that would pretty much mean to me that any expert in the field can come up with the same solution to the problems these patents describe. Which would make these solutions, well, non-patentable and the patents invalid.

    m

    • No. You are completely wrong in every detail.

      Novelty means no prior art.

      What you are thinking about is obviousness, and the hurdle for that is much lower. The definition is that it is not obvious to someone with ordinary skill. Not experts.

  • Sometimes I take pride in the /. community. The people who post here show clear and decisive understanding of the issues.

    Sometimes I see this thread, which as of 201105290137z shows two sets of comments:
    1. A lack of understanding of USPTO patent re-examination process
    2. Trolls about groklaw being done

    With all due respect, and whether or not groklaw is done (it's not), the USPTO re-examination is the beginning of the end for ex-MS-troll Paul Allen's world domination. Whether you agree with software patents

    • by cthulhu11 (842924)
      The people who post here show clear and decisive understanding of the issues We demand rigidly-defined areas of doubt and uncertainty!
    • Sometimes I take pride in the /. community. The people who post here show clear and decisive understanding of the issues.

      Sometimes I see this thread, which as of 201105290137z shows two sets of comments: 1. A lack of understanding of USPTO patent re-examination process 2. Trolls about groklaw being done

      With all due respect, and whether or not groklaw is done (it's not), the USPTO re-examination is the beginning of the end for ex-MS-troll Paul Allen's world domination. Whether you agree with software patents or not (I don't), the patents on the face of it will not survive due mostly to prior art. After prior art there are issues of non-patentable material, and methods, but I doubt it will get that far.

      Consider this one man saying "BOO" to those of you who instead of addressing the issue from a seat of knowledge are either taking potshots at groklaw or have no understanding of the USPTO process. If you're from another country... I'm sorry the US system is different than yours.

      So, you qualify under comment type 1, huh?

      First, from a proces perspective, the USPTO would not even begin to address prior art if there were serious issues of non-patentable material and methods. The Office looks first for patent-eligible subject matter - why bother exhaustively searching the prior art to determine that your mathematical equation is, in fact, new and non-obvious when the equation isn't patentable in the first place? So, "after prior art there are issues of non-patentable material" and not

  • He has patents on how to file lawsuits? I guess for Microsoft that would go under the heading "business methods".

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