EFF kills another stupid internet patent

EFF's patent-busting project has put another notch in its belt: today they killed a truly outrageous patent on the use of subdomains for navigation and content management, as with jwz.livejournal.com. Can you believe that the patent office granted that patent in 2004, based on a 1999 application? Can you believe that the people who filed the patent claimed (with a straight face) that they didn't know of any other prior art that made this invalid?

It's hard to know whether to be happy for and grateful to the Electronic Frontier Foundation for killing this abomination, or pissed off with the patent office for creating it.

In the original reexamination request, EFF and Rick Mc Leod of Klarquist Sparkman, LLP, showed that the method Ideaflood claimed to have invented was well known before the patent was issued. In fact, website developers were having public discussions about how to create these virtual subdomains on an Apache developer mailing list and on Usenet more than a year before Ideaflood filed its patent application. The open source community's public record of the technology development provided the linchpin to EFF's patent challenge.

"In the reexam, the Patent Office systematically rejected each of Hoshiko's arguments as well as the patent claims. We were fortunate to have the Internet Archive and Usenet Archive as proof of the prior work by the open source community," said Rick Mc Leod, who drafted the EFF petition.

"This patent was particularly troubling because the company tried to remove the work of open source developers from the public domain and use it to threaten others," said EFF Legal Director Cindy Cohn. "Ironically, the transparent open source development process gave us the tools to bust the patent!"

EFF Busts Bogus Internet Subdomain Patent

• [Anonymous]

  Ironically, the transparent open source development process gave us the tools to bust the patent!

  That’s not ironic, it’s just coincidental.

• [johnnyuber]

  I thank the universe for the EFF!
  They help the web suck way less than the internet that the corporate soul sucking money grubbing wankers would have force fed us if they had their druthers…

  VIVA LA EFF!

• [Oceanconcepts]

  It’s a sad fact that in many smaller industries (recreation, niche medical devices, etc.) it can cost more to invalidate such bogus patents than they are worth. Larger companies are able to harass or eliminate smaller competitors and discourage entrepreneurs by patenting design elements, even if they are known and there is prior art. Primacy goes to the company that can best afford the lawyers.

  I’ve been involved in two situations where the company I worked with could have invalidated patents that were clearly awarded when there was prior art, but it was less expensive in time and money to in one case change the design to one not so good, in another case to pay off the patent holder. Consumers are the losers.

  The US changing (as we seem to be doing) to a “first to file” system rather than a “first to invent” could make this worse. As an entrepreneur/ inventor I worry it means a company that can afford a legal staff could rob you of development work you have done, if they get to filing first.

• [KeithIrwin]

  I’m thrilled to see another bad patent busted. But someone needs to have a talk with Cindy Cohn about what the word “ironically” means.

• [Nadreck]

  I was working at a computer security company that was using elliptic curve encryption and we had to file (useless) patents on the curves that we were using because everyone else was. Worse, we had to use 2-bits in a flag to indicate which side of an axis intersection a point was because the guys around the block had a patent on “single-bit flags” for this purpose and we had neither the time nor the money to fight it.

• [Anonymous]

  A VERY big thank you to EFF!
  Having known about them and their work for a very long time, it wasn’t until now I finally became a member.

• [Andrew Katz]

  I was amazed to discover the other day that there is no requirement for patent applicants, or their agents, to certify that they have taken reasonable steps to determine that there is no conflicting prior art, and that they have no reason to believe, acting in good faith, that the patent will not proceed to grant.

  I’ve even come across a patent application which was made by a company knowing that it would never proceed to grant (there was no inventive step), simply so that it could describe its “invention” as “patent pending”.

  Shouldn’t we require patent agents to make such a declaration? A false declaration would be a professional misconduct issue at the least, and possibly also an offence, depending on how the legislation was drafted.

• [Capstan]

  Seems like we need a garbage collection. I don’t think the patent office can nor should they be culpable for perfectly validating patent applications before granting patents; they are a Q/A department in that they do their job, but there will always be bugs, even serious ones. Instead, I want there to be a mechanism to be reimbursed for reasonable legal expenses if you go to trial and successfully invalidate a patent. This would be paid for by the patent applicant (or the gov’t for grandfathered patents). Furthermore, there would be an invalidated “with prejudice” for which additional damages could be incurred from the patent applicant. (In this case the applicant could in turn sue the gov’t if it was especially aggregious that the examiners didn’t reject the application.)

  Patent submitters would be less likely to want to submit bad patents, and the submission of normal patents might be be made with concommitant insurance so that the small guy can still contribute.

• [PaulR]

  1) Is Ideaflood liable for making a false declaration on a government document? (Dang, Andrew beat me to the question…)

  2) Does Ideaflood have to reimburse any patent-generated roylaty fees they might have collected, and any legal costs they may have incurred to other parties, especially from court cases arising from this patent?

  3) ??

• [PaulR]

  Oh yeah:

  3) If there’s no real, expensive penalty for making an obvious-to-a-moron-in-a-hurry bad patent application, what’s to prevent others from trying the same stunt?

• [Anonymous]

  Check out Peer to Patent, http://www.peertopatent.org/

  Maybe this Web 2.0 stuff can do some good with killing patent applications where there is prior art.

• [george57l]

  “It’s hard to know whether to be happy for and grateful to the Electronic Frontier Foundation for killing this abomination, or pissed off with the patent office for creating it.”

  Umm – can’t you do both? I reckon everyone should!