The Electronic Frontier Foundation, Public Knowledge and Engine have submitted comments [PDF] to the US Patent and Trademark Office explaining how examiners could improve the quality of patents that the USPTO issues by expanding their search for "prior art" (that is, evidence that the thing under discussion has already been invented) by building searchable databases, and by seeing through the common, misleading practices of using synonyms for common words to make obvious things sound new.
As EFF points out in its post on the filing, the real answer for this is action from Congress to reform patents and end patent-trolling, but these are all useful steps for the USPTO to take in the meantime.
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Two more high-profile patent cases are headed to the US Supreme Court, which has already agreed to hear a patent case this year. The patent system is in chaos, with ever-more-trivial patents being granted, and ever-broader theories of patent infringement being created by the Federal Circuit, the court that oversees the patent system.
A Supreme Court ruling that restored some sanity to patents would be very welcome indeed -- but if they went the other way, it would be dreadful. The only solution at that point would be for Congress -- whose campaigns depend on revenue from patent abusers -- to pass a new law (don't hold your breath).
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MPHJ is America's most notorious patent troll. The company -- whose owners are shrouded in mystery through a network of shell companies -- claims a patent on scanning documents and then emailing them, and they threaten business-owners with massive lawsuits unless they pay $1,000 per-employee "license fees."
Mostly, the troll has gone after small-fry, companies too small to defend themselves, and has stopped short of actually going to court. But now they've gone big-league, announcing suits against Coca-Cola, Dillards, Unum Group and Huhtakami.
It's not clear whether they've built their litigation warchest through the small-fry, but it seems unlikely. The lawsuit discloses that the troll extracted payments from Canon and Sharp in exchange for not suing their customers, and I suspect this is where the money for the suits came from.
The legal filings in the cases are very long, and detail the companies' internal networks as evidence of patent violation. The troll relies on the fact that all three companies use Xerox and Lexmark products and since these two companies haven't paid ransom for their customers, it can be assumed that anyone using their devices violates the patents.
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The US Patent and Trademark Office is required by law to let the public submit "prior art" for pending patents -- essentially, evidence that the thing the patent-filer is claiming to have invented already exists. People who spot patents in need of killing post them to a Stack Exchange forum called Ask Patents, in the hopes that other forum members will come up with invalidating art.
Joel Spolsky writes about how he found -- in 15 minutes, mind you -- the prior art necessary to invalidate a dumb-ass Microsoft patent on scaling images. He documents the process by which he did it, and shows how easily you could do it, too. As Spolsky points out, software patents are all basically shit, and trivial to prove as such. It just takes a dedicated army of freedom fighters to find and submit the prior art that helps the overworked patent examiners at the USPTO to reject the garbage they get by the truckload.
Software patent applications are of uniformly poor quality. They are remarkably easy to find prior art for. Ask Patents can be used to block them with very little work. And this kind of individual destruction of one software patent application at a time might start to make a dent in the mountain of bad patents getting granted.
My dream is that when big companies hear about how friggin’ easy it is to block a patent application, they’ll use Ask Patents to start messing with their competitors. How cool would it be if Apple, Samsung, Oracle and Google got into a Mexican Standoff on Ask Patents? If each of those companies had three or four engineers dedicating a few hours every day to picking off their competitors’ applications, the number of granted patents to those companies would grind to a halt. Wouldn’t that be something!
Victory Lap for Ask Patents - Joel on Software
(via O'Reilly Radar)
The Village Voice received an improbable trademark over the use of "BEST OF" in connection with lists of the best things on offer in various cities, and now they're suing Yelp for creating their own "Best of" lists. This ridiculous suit is only possible because of the US Patent and Trademark Office's bungling, terrible methods, as the Electronic Frontier Foundation's Corynne McSherry writes, and will only be resolved when the USPTO cleans up its act:
What is going on at the Patent and Trademark Office? For decades, folks have been complaining (with good reason) that the patent examiners need to do a better job of screening out bogus patent applications. It’s clear that the problem extends to the trademark side as well. The PTO has allowed companies and individuals to register marks in any number of obviously generic and/or descriptive terms, such as “urban homestead” (to refer to urban farms), “gaymer” (to refer to gay gamers), and “B-24” (to refer to model B-24 bombers).
Once a mark is registered, it is all too easy for the owner to become a trademark bully. And while companies like Yelp have the resources to fight back (as we expect it will), small companies and individuals may not. Just as dangerous, the trademark owner may go upstream, to intermediaries like Facebook who have little incentive to do anything other than take down an account or site that’s accused of infringement.
"Good enough for government work" isn't good enough for free speech. It’s time the PTO did its part to stop trademark bullies and tightened up the trademark application process. Fewer bogus registrations means fewer bogus threats, and more online creativity and competition. That's a win for everyone.
Stupid Lawyer Tricks (And How the PTO Could Help Stop Them)
Luma Labs is a small company that sells a camera sling with a sliding clip. When a competitor of theirs filed for a patent on the idea, they weren't concerned. After all, Luma knew of prior art for their mechanism stretching all the way back to 1885. So they were surprised when the USPTO recklessly granted the patent to their competitor. And they were aghast when their lawyers explained that getting the patent overturned in the course of a lawsuit would bankrupt their company.
So they're giving up.
In short, the idea of a sliding camera sling isn’t an amazing new invention. It’s just a really good idea that’s been around for a while and which has been iteratively developed. Neither we nor our lawyers believed that the USPTO would grant a patent for the claims related to this concept. It was a surprise, then, when our competitor was granted a patent covering the concept on November 1st, 2011. To say that we’re disappointed that the USPTO couldn’t find the prior art around the idea is an understatement.
Our disappointment doesn’t matter much in the scheme of things, however. Our competitor now has a legal tool and we’re pretty sure that they desire to use it. This is, as they say, a problem. We and our counsel are more than confident that we can defend ourselves, and will do so vigorously if necessary. On the other hand, we’re a very small company that sells our products in limited volumes and mounting such a defense would consume the majority of our resources. After all, it took three years to rescind a patent about a method of using a swing. In other words, we have a Hobson’s choice on our hands. We could very well lose everything even if we won.
Therefore, we’re acting unilaterally and conceding the market by immediately discontinuing the Loop and LoopIt. Full stop. We apologize for the sudden nature of this decision and our implementation of it, but we feel like our options on this matter are limited.
They've got another camera strap idea that they're hoping to bring to market. But of course, they'll only be able to sell it until the USPTO recklessly grants another ridiculous patent against it.
An open letter to our customers, past and future
(via O'Reilly Radar)