The Web’s longest nightmare ends: Eolas patents are dead on appeal

Web pioneers united to stop "interactive web" patents at an East Texas trial.

Read the whole story

 

[mausium]

siliconaddict[/url]":38nzr2vj]I've never actually met anyone from the USPO before. I'm wondering if its because I've never met anyone there, or because they fear getting their asses kicked by people in the tech industry?

I've met a few very smart patent examiners/patent judges, both engineers, neither of them anti-tech. I haven't asked about the nitty-gritty of the industry versus bureaucracy, but I imagine the system is more of a problem than the individual agents.

 

[ApproximateIdentity]

precambrian[/url]":3gjm9tpz]

ApproximateIdentity[/url]":3gjm9tpz] ...What does it take for something to be considered obvious?

Let us know when you figure that out.
Sure this is all obvious now, just like telephones, fuel injection, and toasters. I certainly don't support Eolas and their ilk, but was this obvious in 1994? I was 34 at the time, and I hadn't thought of it. I bet a bunch of other people hadn't either.
I believe there still needs to be a high bar between not-obvious and patentable. I'm tempted to suggest that patent should be handled by peer review, but I fear that then nothing would ever get approved, because the peers would say, "Well that's obvious. I'm surprised I didn't think of it."

"People hadn't thought of publishing information about this or patenting it" is your definition of obvious? So what you're saying is that "obviousness" means absolutely nothing and is instead superceded by "novelty"? The claims (http://www.google.com/patents/US5838906?printsec=claims) of the patent seem to just be saying that there is a server and a client machine and "interactive" media is displayed. How is such a vague idea possibly patentable? And the decision as to whether prior art applies is also completely subjective. Any idea could be stated in slightly different ways and without a judgement call prior art would never apply. Why should be pretend that the judgement call inherent in "obviousness" is any different?

Also as to your second point, what's the problem if basically no software patents are approved? That's exactly what so many people are arguing for. What I don't understand is how anyone can defend a patent on an idea that would have occurred regardless of the patent. Patents restrict the flow and application of knowledge so they should be approved judiciously for the purposes of increasing knowledge down the road (say by enticing pharmaceutical companies to invest millions of dollars in research). I don't understand how anyone could believe that "idea" would not have evolved without patents. (Well actually it clearly did, since it was ruled that it predated the patent anyway.)

 

[BrainsOnToast]

TheDarkerPhantom[/url]":4ann0y89]

passivesmoking[/url]":4ann0y89]In Douglas Adams' Hitchhiker's Guide to the Galaxy, the planet of Golgafrinchen had a society split into basically 3 groups. The great thinkers (Political leaders, philosophers, inverters, architects, artists, poets, etc), the great doers (Builders, engineers, farmers, miners, factory workers, etc), and the middle men (telephone sanitisers, hair dressers, tired TV producers, lawyers, insurance salesmen, what have you). They got rid of their useless third of society by conning them all into abandoning the planet on the B-ark with spurious tales of impending doom involving a mutant star goat. They then went on to live happy, fulfilling, productive lives. Until they were all wiped out by a plague contracted from an unsanitary telephone.

Can't we build a B ark for the USPTO? Given the patents they approve they're obviously gullible enough to believe anything, including the idea of the Earth being destroyed by a mutant star goat. We could even patent the B-ark first. Its not like they'd bother to check for prior art or anything.

Why do you blame USPTO instead of the coperations the attempt to get the patents themselfs?

The same reason we blame the IRS and Congress instead of the corporations when they minimize their tax bill through legal loopholes.

 

[rockforbrains]

BWinmill[/url]":3d6qsev6]I'm not going to comment on the legitimacy of the patent, because this is one of those cases which is so emotionally loaded that it would be impossible to come to a reasonable conclusion on that issue.

However, this is one of those cases where the value of the patent to society is so great that it is wrong to assign the rights to any person or body. That would be true even if the patent was legitimate. It not unheard of for courts to recognize this and make dubious legal decisions to recognize the greater public good. This is arguably what happened in Honeywell vs. Sperry Rand over the computer. Sperry Rand's patents were invalidated, using the Antanasoff-Berry Computer as a form of prior art. (The ruling was dubious because the ABC computer was a primitive and unlikely candidate for the patent, but was close enough for legal arguments to be fudged.) The industry was thus freed or patent litigation on this front in order to facilitate a more rapid expansion.

The issues with any patent are prior art and obviousness. If there is prior, if imperfect, art then a patent should not be granted. If it is obvious to one "skilled in the arts", i.e. actually works in the field, then it should be granted. The ABC computer shows there is possible prior art that would invalidate the patent. This has to do with prior art inspiring or pointing towards a logical solution. Obviousness is somewhat trickier and relies on more on interpretation and more importantly a deep knowledge of the field.

 

[dfiler]

joemullin[/url]":3hx29ve6]

siliconaddict[/url]":3hx29ve6]

Pertaining to "proof" Some of these asinine patents I can spend 90 seconds on Google to find prior art....

I get you guys are probably overloaded. But there is no god damn excuse for some of these patents when they don't even pass the common sense \ BS detector test. If you can't find prior art on crap patents like THIS steaming pile.....your search kung-fu sucks.

Examiners in 1994 didn't have access to the Internet. In fact they were banned from using it until 1997.

Hopefully this comment is intended as condemnation of the patent office's competency, not a defense of it.

 

[Danrarbc]

pyu[/url]":1c5ec0j2]
Let's admit it, the only thing that patents have done is probably to bring some form of order and ritual to the intense competition between innovators and their capitalist backers. Without such a system, rather than a legal department, industrial/corporate espionage would probably be more open, widespread and brutal, ala, Game of Thrones.

I'd actually really like to see that.

sparkleytone[/url]":1c5ec0j2]

bug77[/url]":1c5ec0j2]

Wheels Of Confusion[/url]":1c5ec0j2]How did such a seemingly overbroad and overblown patent claim manage to survive so very long in the face of all that scrutiny?

*cough* rectangle phone/tablet with "minimalist" design *cough*

This article is about software patents, that is a design patent.

IMO, design patents shouldn't be treated any differently. A patent is a patent. If it can't stand under the normal rules then it shouldn't exist.

 

[jimjimjimjimjim]

USPTO understaffed, NSA overstaffed, and it's too bad the feds can't restructure like corporations do all the time.

 

[skyywise]

strohminator[/url]":1suer0xp]
* Appeals are, in his opinion, the #1 reason bad patents exist. Many patents are shut down the first time, but the applicant can appeal endlessly. Eventually, they'll find someone who will grant their patent.

Before the Federal Circuit decision in State Street Bank, the USPTO tended to dismiss what we now call business method patents as simply not eligible. There was enough legal pushing, complaining, and appealing from certain members of industry that such patents should be allowed (likely because they saw how much money they could make in litigation) that the Federal Circuit eventually agreed that such patents were necessary for the good of innovation. The USPTO was then in a position of (1) being chastised by the Federal Circuit and under "informal" pressure to allow such patents and (2) not having a corps of Examiners familiar with the software industry who understood what was old, what was new, or even where to look for prior art. (My understanding is that the most of the Examiners getting the applications at that time were older EE trained folk who generally hadn't dealt with programming. The USPTO hadn't hired people with programming experience to that point because, why would they if software was generally not patent eligible?)

So at that time, a lot of patents were granted that probably should not have been, not due to policy, but for reasons of not being new or being obvious innovations. Those patents created a precedent of how Examiners approached such business method patent applications, and those patents further created child-applications which continue to be prosecuted. It took time for the USPTO to bring in Examiners with the right background to deal with this area, and even then, the court-influenced/mandated institutional bias was toward granting business method patents.

So yes, blaming the appeals process is certainly valid.

(edit: if your friend meant the fact that applicants can just file RCEs forever, well, yeah, that's a pain too, but at least the USPTO has ratcheted up fees for those, as economic discouragement for never-ending applications.)

* It's not an adversarial process. Both the applicant and the examiner start from the premise that there is a decent invention. If every patent application featured someone arguing that the invention is not novel, useful, or non-obvious, there would be far fewer patents granted.

The process should not be adversarial, I think; it is more of a negotiation. Plenty of patent applicants would complain that Examiners already find ways to flip the burden of proof on them, so changing the default assumption may not do much in practice. What one can do now (due to passage of the AIA), however, as a third party, is drop in prior art into someone else's patent application through the Third Party Pre-Issuance Submission process. This is a new and relatively untested route for someone to briefly draw the Examiner's attention to prior art that may be useful for consideration.

 

[Hoogineer]

CFWhitman[/url]":gykixpen]What's really sad about this case is that it underscores everything that is wrong with software patents in the first place. Both the software that was supposedly in violation and the software that was used as prior art were examined on the basis of what they did rather than how it was accomplished. That's not how patents are supposed to work. Patents are supposed to be about how their effects are accomplished, not what the effects are.

The problem with software patents in general (there may be a very few exceptions to this) is that the means to any goal that can be accomplished programmatically are going to be obvious to many programmers. This is because programming languages all have similar tools to accomplish whatever goal is sought after. You just have to figure out which instructions to use and what order to put them in. If you give any ten competent programmers the same goal, then you'll probably see essentially the same method used to accomplish it by all ten, or perhaps you may see two different methods, but not likely more.

Patents are not supposed to be about the novelty and non-obviousness of the goal. They are supposed to be about the novelty and non-obviousness of the method to accomplish the goal. Patents were originally framed as a way to reward someone who came up with a way to do something that many people were seeking to do, but had not yet discovered how. They were not framed to reward people who happened to be the first to think of doing something that anyone could see how to do. Somewhere along the line the patent office seems to have lost sight of this fact.

Think about it this way. According to the way software patents are being awarded these days, it's likely that Eli Whitney's cotton gin was not patentable in the first place. After all, people had been accomplishing what the cotton gin did for a long time with their fingers (apparently, by today's thinking, whoever first thought of taking the seeds out of cotton should have gotten a patent on it). If separating the seeds from cotton (the goal) was what the patent was on, then it shouldn't have mattered how the machine worked (the method). In actuality at the time, however, it was theoretically possible for someone to come up with a machine that separated the seeds from cotton using a different method and to patent that as well (Don't ask me how it may have worked; that's the hard part; in fact, that's supposed to be the hard part, and thus the patentable part).

The original understanding of patents (and really the only logical one) makes it so that any part of software that may be protectible is generally going to be more than adequately protected by copyright. Anything that copyright can't protect is also not protectible by patents for much the same reasons (it's a generic algorithm). If anything, from a logical standpoint copyright should provide more protection for software than a patent does.

I finally created an account so I could enthusiastically this.

 

[bb-15]

joemullin[/url]":12yz9qa7]

precambrian[/url]":12yz9qa7]
Sure this is all obvious now, just like telephones, fuel injection, and toasters. I certainly don't support Eolas and their ilk, but was this obvious in 1994? I was 34 at the time, and I hadn't thought of it. I bet a bunch of other people hadn't either.
I believe there still needs to be a high bar between not-obvious and patentable. I'm tempted to suggest that patent should be handled by peer review, but I fear that then nothing would ever get approved, because the peers would say, "Well that's obvious. I'm surprised I didn't think of it."

People working on the web in 1994 absolutely had thought of it, they had thought of it over and over and were arguing about the best way to do it. They testified at trial—Pei-Yuan Wei was talking with Tim B-L about putting interactive objects on web pages as early as 1991, and by 1993 and Scott Silvey had done it. All three testified at trial.

And of course there was MOSAIC in 1993. The Eolas invention was built on top of a properly operating MOSAIC browser. At the trial, "[w]hen [MOSAIC co-creator Eric Bina] was asked to check out the code made by the UCSF team, Bina found that Doyle and his colleagues had added only 334 lines of code added to about 18,000 lines total."

Others working in HTML were working on how to embed objects. Dave Raggett, who testified at trial, created an <embed> tag for HTML, but it wasn't ultimately accepted. Raggett was working on HTML+, an HTML for "mass consumption," as early as 1991.

That lack of "peer review" you cited is exactly the problem. People don't get bullshit into scientific journals (usually) because of peer review. The only system we have for "peer review" of a patent is a multi-million dollar court trial.

Here's another scary thought: Doyle wasn't first, but what if he had been? If his invention had been a couple years earlier he might have been entitled to a 20-year monopoly on web "interactivity" under our patent laws. That could have been even worse. He got very close even with spot-on prior art being available.

My thoughts; A system that gives software patent holders a 20 year monopoly on an "invention" has some support in US society. It is the outcome that is not liked rather than the process.

For instance the "end software patents" website states;

Microsoft is one of the most fervent lobbyists for software patents...
By 1987, Microsoft ... had only one patent. By 1990, they still had only 5 patents ...
In February 2009, Microsoft announced it had received its 10,000th patent.[3]

As Microsoft began its march towards getting a massive number of patents in the 1990s, the company had broad support within the tech industry.

Now that MS is using software patents against Android phone makers, MS is not as popular.

* But the problem is that a legal and review system for software patents cannot be built on what feels good.
If it was OK for MS to accumulate thousands of software patents through the USPO then others would try to get software patents.
So, it is no surprise Doyle almost got his monopoly.
A system that allows monopolies (again MS) which are supported by software patents (again see MS) can result in others getting a monopoly on a software "invention".

* The problem is the system. And it isn't just the USPO or the government or big corporations.
The problem is the entire process that gives software patents to anyone.
- And to fix the problem requires fundamental reform that may harm popular tech companies.

 

[talzara]

ewelch[/url]":h1bvu0tn]

LuDux[/url]":h1bvu0tn]So, what recourse do previous settlers have to recoup their payments?

I'm hoping nothing. It would motivate them to not settle so quickly in the future.

Well, Microsoft didn't "settle so quickly" at all. They went to the Patent Office, and they lost. They took it to court -- and they lost. They appealed, and they lost. They appealed to the Supreme Court, which refused to hear the case.

Microsoft did not settle with Eolas until *eight years after* the lawsuit was filed. And considering what Microsoft went through, is it any surprise that other companies also settled with Eolas?

Note that Microsoft attempted to bring up Viola as prior art, so it's not like their lawyers were idiots. The court excluded several of Microsoft's exhibits. Sometimes, the legal system just fails.

 

[passivesmoking]

ArmoredCow[/url]":2wjyjdqd]

passivesmoking[/url]":2wjyjdqd]In Douglas Adams' Hitchhiker's Guide to the Galaxy, the planet of Golgafrinchen had a society split into basically 3 groups. The great thinkers (Political leaders, philosophers, inverters, architects, artists, poets, etc), the great doers (Builders, engineers, farmers, miners, factory workers, etc), and the middle men (telephone sanitisers, hair dressers, tired TV producers, lawyers, insurance salesmen, what have you). They got rid of their useless third of society by conning them all into abandoning the planet on the B-ark with spurious tales of impending doom involving a mutant star goat. They then went on to live happy, fulfilling, productive lives. Until they were all wiped out by a plague contracted from an unsanitary telephone.

Can't we build a B ark for the USPTO? Given the patents they approve they're obviously gullible enough to believe anything, including the idea of the Earth being destroyed by a mutant star goat. We could even patent the B-ark first. Its not like they'd bother to check for prior art or anything.

I assume you read the rest of that book and know what happened to the B-Ark and all the people on board it?

Indeed. They went on to become Earthling patent lawyers, patent examiners, filers of frivolous patents...

 

[moloko_vellocet]

I worked at the law firm representing Eolas during the infringement suit against Microsoft. My job was to analyze patents that came in to the firm, either to be taken on for a contingency, or if we would be paid outright. I took one look at the '906 patent, and the subsequent filings, and the tortured file history of those patents, and I recommended our firm shouldn't touch this hot mess. Nevertheless, history tells the rest of the tale.

Note: I decided to get back into Physics and academia in 2003, after witnessing the lead attorney for Eolas, and senior partner at the law firm lie on his back in the hallway at the firm (in plain view of all the staff) and scream, "I'm rich! I'm rich!.." over and over again. I was never as happy as I was the day I left that place to teach Physics again.

 

[billstewart]

Wheels Of Confusion[/url]":1kypty28]How did such a seemingly overbroad and overblown patent claim manage to survive so very long in the face of all that scrutiny?

It's bad enough that they were able to do that with the original ~1993 patent. But that would have expired this year; what's worse is that they were able to get the 2009 patent that has apparently let them extend their claims to other people's designs for another couple of decades.

 

[stimpy77]

As a web developer this is big news. It means that we can feel free to write HTML that have <OBJECT> tags explicitly declared, without worrying about exposure to a patent violation lawsuit. Yes, that's how ridiculous Eolas was, and the patent enforcement goes back to Internet Explorer 5 or 6 when Microsoft had to make a huge deal about how they had to force everyone to click into all plug-ins before they would function as plug-ins, unless an alternative workaround was used in the code. The Microsoft workaround was to force users to click on any plug-in before they could interact with the plug-in. The legal workaround has been to use Javascript which would inject the OBJECT tag at runtime. Web devs have been doing it that way ever since.

Also, with HTML5 (formerly buzzworded "Dynamic HTML"), with interactive "canvas" elements and with the advent of using data- attribute markup conventions, technically any HTML5 "canvas" tag, or any DIV tag or other tag with attributes that declared itself a placeholder for interactive content, in such cases if the Javascript to make it interactive was inline in the document, these cases were perhaps also a violation of the patent, which is now unenforceable.

 

[zbeeblebrox]

sumguy[/url]":3es2c6m6]There are over 6000 patent examiners. In general, you never hear about the quality work that we do.

Prior art is published information before the application filing date. You may think that it is obvious, but without proof it is just a feeling. The laws and practices have changed greatly since this was first issued. What were you doing in 1994?

I will not be following up.

Of COURSE you won't be following up. Like the reader at the start of the comments page said - the reason you never see patent examiners in the tech sphere is they know if they show their face, they'll get their ass kicked. You don't want to encourage anyone to demolish your shitty argument by sticking around to hear it. Fair enough.

But I'm going to pretend you did stick around.

Here's how patent granting should work:
- Patents written in legalese should be thrown out, rather than the opposite
- The office should be penalized if they approve an unusually high volume of patents, not the opposite
- The office should have a tech dept that specialize in software patents and is EVEN MORE scrutinizing than the regular patent office.
- The process should be adversarial: every patent should be approached with the assumption that it's obvious/already done until proven otherwise.
- The appeal process should be one-and-done instead of indefinite.

 

[Danrarbc]

zbeeblebrox[/url]"ug9drqh]

sumguy[/url]"ug9drqh]There are over 6000 patent examiners. In general, you never hear about the quality work that we do.

Prior art is published information before the application filing date. You may think that it is obvious, but without proof it is just a feeling. The laws and practices have changed greatly since this was first issued. What were you doing in 1994?

I will not be following up.

Of COURSE you won't be following up. Like the reader at the start of the comments page said - the reason you never see patent examiners in the tech sphere is they know if they show their face, they'll get their ass kicked. You don't want to encourage anyone to demolish your shitty argument by sticking around to hear it. Fair enough.

But I'm going to pretend you did stick around.

Here's how patent granting should work:
- Patents written in legalese should be thrown out, rather than the opposite
- The office should be penalized if they approve an unusually high volume of patents, not the opposite
- The office should have a tech dept that specialize in software patents and is EVEN MORE scrutinizing than the regular patent office.
- The process should be adversarial: every patent should be approached with the assumption that it's obvious/already done until proven otherwise.
- The appeal process should be one-and-done instead of indefinite.

I'd sign up for all of that.

Except software patents. Those are ridiculous. Patents are for implementations of ideas, the implementation in this case is code itself - code is protected by copyright, therefore patent protection is unneeded.

 

[OmegaWolf747]

Anything interactive online is from Doyle? Well, I guess this jerk is the true father of the World Wide Web, rather than Al Gore.

 

[enorl76]

In my opinion, "software patent" is an oxymoron.

I dont mind patents on FAT32 and XFS because these structures produce something physically representable, ie, we can examine a disk and see the structure. But even these become abstract in the software world, (key up SSD drives)

When Amazon patented "One Click Shopping" my first instinct was to go out and patent an electronic Shopping Cart gathering system. How absurd would that have been to have been granted that?

I don't mind copyright in software, but patents just dont seem to work.

 

[BennyRop]

It cost my father about $10,000 to patent one of his inventions. That was AFTER having created a prototype. I don't know the breakdown of how much the lawyer took, and how much the patent office took.. but I got the impression the patent office was getting a fair chunk of change to review patent applications. i.e. they should be able to afford a lot more than 12-20 hours of review per patent app. Can someone track down current costs? (My exposure has only been with physical items.. not software patents.)

For another device he invented, the company he was with basically loaned him to a company that supplied the industry he worked in, and they spent around half a million dollars to create a prototype. The market disappeared, so the device never got put to use. If they patented it, the patent expired once - and if renewed, will have expired a 2nd time by the time the market returns. They gambled and lost.

(these two items were fishing industry related.)

 

[bratonite]

There was definitely prior art available at the time and also well known (at the time):
For example AOL's Quantum-Link (see: http://www.youtube.com/watch?v=fjgH27p-FAM), later added Lucas Arts "Club Caribe" (see: http://www.youtube.com/watch?v=uiUxAn7dxM8 )

For classical displays of the effectiveness of their screening process see:
http://en.wikipedia.org/wiki/Method_of_exercising_a_cat
http://www.google.com/patents/US6368227 "Method of swinging on a swing"
(this patent was refered to by the USPO agent in "Secure machine counting US 8181265 B2")

The system is flawed, but I don't know of an easy way to fix it. But starting by kicking out method and software patents from the system seems like a good starting point.

 

[deckeda]

I'm concerned that original authors of the Web and the VPlot/Viola pieces were needed/requested to testify. Their contributions should already have been documented, authenticated, validated and easily researched without them having to show up and say, "yeah, here I am and I did this ..."

I understand it makes your case stronger and so "why not use them?" but at some point it's like "needing" Henry Ford to show up when the company with his name on it needs defending.

 

[skyywise]

zbeeblebrox[/url]":x2xu3f0z]

Here's how patent granting should work:
- Patents written in legalese should be thrown out, rather than the opposite
- The office should be penalized if they approve an unusually high volume of patents, not the opposite
- The office should have a tech dept that specialize in software patents and is EVEN MORE scrutinizing than the regular patent office.
- The process should be adversarial: every patent should be approached with the assumption that it's obvious/already done until proven otherwise.
- The appeal process should be one-and-done instead of indefinite.

Problems with your proposals, from my perspective as a patent attorney (for the tl;dr crowd, each main point is in bold):

- A patent is a legal document; it is necessarily going to be written in "legalese" because it has to have standardized language and structure so that judges, juries, other inventors, etc. can all read and generally understand both what the patent is directed toward and how to treat the patent in the grand scheme of the legal system. I'll certainly agree that patent language and structure is complicated and ossified with weird quirks, but it is still more straightforward than most anything the average tech/engineer/programmer/scientist can put together. Please believe me when I say that a tech disclosure or "records of invention" I get from an inventor may have a kernel of useful language that the average person can read, but it takes at least ~6 hours of talking/emailing (in aggregate) with the inventor(s) to extract/clarify what the actual invention is and how it works to the point one can put it into (relatively) normal English. There is necessary complexity in patent language, and shifting from legal complexity to technical complexity isn't going to help clarify anything in terms of using a patent in court.

- Quality, not quantity, of patents granted should be the concern with the USPTO. Under David Kappos (Obama's first appointee as Director of the USPTO), the number of patent grants has gone up and the 700,000 application backlog has been steadily (finally) going down. Under John Dudas (W. Bush's appointee as Director) there was a push against granting "too many" patents. The philosophical change between Dudas to Kappos was that Kappos held the mission of the USPTO to be (paraphrasing), "To grant valid patents" as opposed to under Dudas where the policy seemed to be (again paraphrasing), "Critically inspect twice every application." Both philosophies sound nice, but under Dudas, the practical result was that Examiners felt like they had to issue rejections even when they didn't see any reason to, so they would pick out minor technicalities to support their rejection numbers - that did not lead to an increase in quality. Also, Dudas (well-meaning, mind you) implemented a "second set of eyes" program to review potential allowances, which in practice seemed to only work against the Examiners, with the second set of eyes only ever finding errors, which were then marks against the Examiners that negatively affected their yearly reviews. I can't speak for the general effect on quality that Kappos' philosophy had, but the general morale of the Examiner corps (from my interactions and understanding) is that the positive approach under Kappos led to more investment and engagement in examination, as opposed to under Dudas where it seemed that the Examiner could only do wrong unless they were able to stay under the radar.

- The USPTO already has Tech Centers directed to specialized disciplines. Most of the business method stuff will get routed to 2100 and 2400, but some filters into 2600 and 2800 as well.

- If you want an adversarial proceeding, be prepared for costs more like litigation, because that will be the long term result. But in the short term, I think flipping the burden of proof would more likely lead to gamesmanship by patent applicants. If the patent applicant is responsible for producing and showing over prior art, why the invention is new, then what stops the applicant from providing disingenuous or misleading prior art to the Examiner? The applicant will easily show that their application is clearly new and not obvious over the (crap) prior art references they've provided. The Examiner can then do a search, sure... but they will have already spent hours on the (crap) prior art and arguments given to them, so they'll have less time to seek out closer prior art. Letting the Examiner search first and provide prior art already flips the burden against the applicant, but it doesn't make sense for the default position to be not-patentable, otherwise the Examiners simply won't be as driven to find relevant prior art.

- I do generally defend the Examiner Corps because they are seemingly in a no-win position, overburdened, and under-appreciated. I have worked with several extremely competent and understanding Examiners, and that is in fact the majority of my experience. That said, there are some Examiners who issue completely arbitrary, technically incorrect, legally incorrect, obstinate, intentionally vague, and pointless rejections as a matter of course. In such cases, more than one appeal is often necessary to get to the substantive argument and merits of the application. Without an appeal process (referring to continued examination within the USPTO, not court appeals), worthless rejections against an applicant waste the applicant's time and money without reasonable recourse.

In sum, the patent system exists as it does because people have put thought into its structure. There are certainly problems with the system, and disagreements about the underlying policies, but the structure is designed and intended to be as efficient as it can.

 

[Nineveh]

LuDux[/url]":a5ezi59n]So, what recourse do previous settlers have to recoup their payments?

Why the hell should the yellownecks who rolled over and lapped so obediently at Douche's boots be able to recoup jack-all?

These aren't small businesses or individuals being frightened or cowed:-

The company relocated to East Texas before filing suit against 20 big companies, including Apple, Perot Systems, Blockbuster, eBay, Adobe, Google, Yahoo, and Amazon.

...

By the end of the 2012 jury trial, only Google, Yahoo and JC Penney had not struck deals with Eolas.

So in this case at least, it gives me tremendous satisfaction to be able to say: NONE WHAT. SO. EVER.

 

[Fixpir]

dfiler[/url]":33j6rbm2]

Haravikk[/url]":33j6rbm2]Patents are supposed to be a means for creative people to protect their ideas before they have a chance to develop them, but more and more they're being used as a means to try and sue as many as people as possible on the loosest possible interpretation of the patent's wording (which is usually as vague as possible to begin with).

I'm glad to see these patents invalidated though; considering how loose the description of "interactive" is you could pretty much claim hypertext as prior art as clicking on a link is interactive, and if the server logs activity then you're creating changes on the server side (even if you can't actually see them).

Patents have become poisonous to technology innovation, as they make it extremely hard for smaller companies to compete as they can't afford to settle patent cases like big companies can, but even then it's costing the industry huge sums of money. At the very least patents should expire much more quickly if the patent holder isn't actively developing the idea or has licensed someone to do that for them. When it comes to the technology space though it's difficult to think of many truly original implementations; if you describe creation of an interactive website to someone then they can go away and come back in a week (or less) with a working prototype. What should matter is the way something is implemented, how user friendly etc., with the consumers choosing which they prefer, rather than patents being used to prevent competing features from surfacing, or just to leach money out of obvious ideas that you can't be bothered developing yourself.

That isn't my understanding of the history of patents. My understanding is that they were originally intended for the public good, not personal enrichment. Guilds, people, organizations, etc used to keep all of their knowledge secret. If not kept secret, it could be freely used. For the public good, and to advance knowledge, patents were created. By making it possible for people to profit off of non-secret knowledge, knowledge could be made public and others could build on top of it.

Personal enrichment is a more modern take on the purpose of patents.

You are right. The basics of the patent system is abargain, a deal between the pople and the inventor. We the people, represented by our government/country/law whatever accepts to deliver a limited time exclusivity (which is at our disadvantage) against the full publication of the invention, and how to realize/ manufacture it. The second part is understood to be in the long term interest of the people. I let you make money in the short term on me if you help everybody else make the product in a distant (20 years) future. It should be a win win situation. Which would obviously not had been the case here had the patent been granted.
If we feel that the system is not bringing value to us the people, then we should reform it.
'The people is not made for the law, the law is made for the people".

 

[Rain Rain]

I've seen one patent troll suit up close. The patent texts are obfuscated beyond belief. They are pure jibberish. They don't mean anything, but lawyers love ambiguity and makes a huge profit arguing this twaddle. The USPTO are a joke. They approve anything and "let the courts sort it out" at huge profit to lawyers. Occasionally they will query something, but all the trolls have to do is come back and amend their patent or insert obfuscated text which is so vague the USPTO once again say "let the courts sort it out."

The USPTO are a cancer. Patent trolls are a cancer. Lawyers are a cancer. But the root cause is Congress. Those dumb-ass, greed-as-hell, thick-as-two-planks yokels who pass inane and stupid laws, but won't stop patent trolls because it makes no difference to them.

 

[iknowed]

There are over 6000 patent examiners. In general, you never hear about the quality work that we do.

Prior art is published information before the application filing date. You may think that it is obvious, but without proof it is just a feeling. The laws and practices have changed greatly since this was first issued. What were you doing in 1994?

I will not be following up.

I was on the Advanced Technology Group team with Doyle, Martin and Ang in 1994 at the UCSF Library and Center for Knowledge Management. I was asked to sign on as a witness to this patent. I declined and expressed my misgivings with this approach and mentioned prior art, Viola in particular.

I hope that previous Eolas licensees have sued Doyle back into the stone age.