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Paul Allen v. World - World Files Joint Motion for Stay Pending Reexams - Updated
Monday, March 21 2011 @ 12:56 PM EDT

All the defendants in the Paul Allen v. The World patent litigation -- Allen's Interval Licensing is suing AOL, Google, YouTube, Apple, eBay, Facebook, Yahoo!, OfficeMax North America, Netflix, Staples, and Office Depot -- have filed a joint motion asking the court for an order staying the proceedings in this matter pending resolution of petitions for reexamination they've filed with the USPTO regarding the four patents in suit, the '507, '652, '314 and '682 patents.

I gather they don't think much of Mr. Allen's patents. Join the club.

The filings:

03/17/2011 - 198 - Joint MOTION to Stay by all Defendants filed by Defendant Yahoo! Inc. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 4/1/2011, (Walters, Mark) (Entered: 03/17/2011)

03/17/2011 - 199 - DECLARATION of Mark P. Walters filed by Defendant Yahoo! Inc re 198 Joint MOTION to Stay by all Defendants filed (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H - 1, # 9 Exhibit H - 2, # 10 Exhibit H - 3, # 11 Exhibit H - 4, # 12 Exhibit H - 5, # 13 Exhibit I, # 14 Exhibit J)(Walters, Mark) (Entered: 03/17/2011)

And they'd prefer not to have to argue in court about patents likely, they seem to think, to be tossed out as invalid or at least modified:
Defendants have filed requests for reexamination with respect to each of the Patents-in-Suit, which may substantially simplify or outright resolve the issues in this case. No matter the outcome of the reexaminations, substantial economies will be gained from a stay. If the reexamination results in the PTO rejecting and canceling some or all of the asserted claims, this litigation will end or at least be narrowed. If the claims are amended in reexamination, or if Interval makes arguments during the reexamination process to the PTO in an attempt to overcome rejections based on the prior art, the prosecution history of the Patents-in-Suit will have changed and, in the absence of a stay, the work of the Court and the Parties prior to the PTO’s final disposition will need to be redone.
They list prior art they've found already. The petitions for reexamination are attached to the declaration in support. We aren't repeating the patents, Exhibits A-D, because we have them already, attached as exhibits to the first amended complaint, and I try to spend your contributions wisely.

All but two items of prior art on the list are new prior art, they tell the court, prior art the USPTO didn't have before it when Allen's patents were approved, which means the appeal Microsoft has before the Supreme Court in the i4i case will matter here regarding the standard of proof.

[Update: The US Department of Justice just filed an amicus brief [PDF] strongly on the i4i side. I gather they'd like it to be as hard as possible to invalidate a patent.]

Amazingly, a lot of the list are patents already issued. Did the Allen side not do any checking? Incidentally, here's a figure for the ages that the group cites:

92% of all ex parte petitions for reexamination and 96% of all inter partes petitions for reexamination are granted.
That alone tells you what a lousy job the USPTO does in issuing patents to begin with. If you had a doctor and every time he gave you a diagnosis and you then went and got a second opinion and 92% of the time, you find out your doctor got it wrong, what would you think of his work?

The defendants cite the figures to persuade the judge that it makes sense to grant a stay:

In the instant case, if this Court grants the Defendants’ request to stay the litigation, the PTO will have time to review the requests for reexamination and the newly-presented prior art that will likely form the basis for cancellation or amendment of the claims.
Allen's side will likely argue that the PTO hasn't granted the reexaminations yet, and it's best to slog onward until it does, at a minimum, knowing that once litigation gets going, it's really hard to get it to stop. And the defendants anticipate that and point out that it's better to stay a case in its infancy, so you don't have to do the process twice. If the patents are modified, then discovery might have to be repeated, or worse turn out to be a total waste of resources, and it's a waste of the court's time. Also, Interval Licensing is "a holding company", not a competitor with products out there. So "there is no danger of Interval losing market share or customers" they point out, letting the judge know just what kind of folks these are and what the goal is, namely money, which is just as good later as sooner. There will be oral argument on this motion.

Speaking in general, patent trolls know perfectly well that their patents are stupid, although they talk like they are wrapped in the holy flag, but they like to sue to force folks to pay up rather than endure the incredible expense of patent litigation to prove the invalidity of their stupid patents. Lots do pay under that threat. If you are curious, take a look at the Timeline page for this case, shorthanded as "IV v Google" in the menu, due to space constraints. Notice how much has happened already, before discovery has even begun? Hence the business model. If you call that a business.

So this is a wise move on the part of defendants, but the judge may not wish to grant the motion. The motion lists the three factors you have to establish to get a stay We'll see, but it's definitely a smart move on the part of the defendants, who are probably wondering quite seriously how anybody can be sued over stuff like this.

There's a $5,000 reward being offered if you find prior art, by the way, by an entity called Article One Partners:

Article One Partners today announced that it has launched a new request for research of patent held by Interval Licensing LLC on behalf of operating companies. With its unique crowdsourcing model, Article One Partners' research requests are distributed to three million scientists and technologists worldwide who are conducting research to discover evidence predating the patent claims, widely known as "prior art." That evidence can be used to challenge the validity of a given patent. Article One Partners has conducted similar high profile requests for research, known as Patent Studies, including patents held by NTP Incorporated....

Join the Search

Researchers with Article One can earn $5,000 U.S. or more for the Study. In addition, Researchers earn profit sharing points for active participation in the Study and the AOP Community. Read below for details on the Patent Study and what to look for. Then visit www.ArticleOnePartners.com for additional details and to submit responses.

What to Look For

Researchers can review the Interval Licensing Patent Study at http://www.articleonepartners.com/study.php?id=504 and submit relevant prior art. Prior art is evidence of publicly available information predating a patent's invention, which teaches, or renders obvious, the patent claims. Prior art knowledge and evidence may come from published content anywhere in the world and in any language. This includes: previous patents; news or academic publications; non-digitized documents such as textbooks; or any public document provided to others, including conference or academic papers and business materials. Prior art is often found in documents tucked away in a file cabinet years ago, or in the back corner of a library.

Well, it's a press release, but still. It's hardly "unique". But I thought you'd at least want to know about this. They are looking specifically for prior art not previously known to the USPTO.

  


Paul Allen v. World - World Files Joint Motion for Stay Pending Reexams - Updated | 54 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections thread
Authored by: ais523 on Monday, March 21 2011 @ 12:59 PM EDT
Put a summary of your correction in the title of the post, so that other people
who notice the same mistakes as you will know they needn't bother posting. (Of
course, all this advice is unnecessary if, as often happens, PJ hasn't made any
mistakes.)

[ Reply to This | # ]

Michael Jacobs from MoFo again
Authored by: jmc on Monday, March 21 2011 @ 01:08 PM EDT
I see he's acting for Yahoo!

[ Reply to This | # ]

Off-topic goes here please!
Authored by: perpetualLurker on Monday, March 21 2011 @ 01:10 PM EDT
Anything ON-topic will be ridiculed.... (-:

Thank you! ....pL....

---
"Love is a snowmobile racing across the tundra and then suddenly it flips over,
pinning you underneath. At night, the ice weasels come." -- Matt Groening

[ Reply to This | # ]

News Pick commentaries anyone?
Authored by: perpetualLurker on Monday, March 21 2011 @ 01:11 PM EDT
Please remember to include a LINK since the articles have a
tendency to move quickly off the page...

Thank you! ...pL....

---
"Love is a snowmobile racing across the tundra and then suddenly it flips over,
pinning you underneath. At night, the ice weasels come." -- Matt Groening

[ Reply to This | # ]

  • Fukushima - Authored by: Anonymous on Monday, March 21 2011 @ 02:21 PM EDT
All things Comes go here, please!
Authored by: perpetualLurker on Monday, March 21 2011 @ 01:12 PM EDT
If you are working on transcribing any of the COMES
documents, please leave the details and the transcriptions
here for PJ to find...

Thank you! ...pL....

---
"Love is a snowmobile racing across the tundra and then suddenly it flips over,
pinning you underneath. At night, the ice weasels come." -- Matt Groening

[ Reply to This | # ]

This is common with hardware patents too
Authored by: The Mad Hatter r on Monday, March 21 2011 @ 01:24 PM EDT

The U.S. Patent and Trademark Office appears to be totally incapable of doing a
proper investigation of any patent. They've issued patents for Interstellar
radios, spaceship drives, and all other sorts of insanities.

The only reasonable suggestion that I've been able to come up with is to shut it
down. Totally.

Politically that wouldn't be possible of course. Anyone have any better idea?


---
Wayne

http://madhatter.ca/

[ Reply to This | # ]

Not sure I agree with the analogy....
Authored by: Lazarus on Monday, March 21 2011 @ 01:35 PM EDT
"92% of all ex parte petitions for reexamination and 96% of all inter partes petitions for reexamination are granted." That alone tells you what a lousy job the USPTO does in issuing patents to begin with. If you had a doctor and every time he gave you a diagnosis and you then went and got a second opinion and 92% of the time, you find out your doctor got it wrong, what would you think of his work?


Rather, I'd go with, "If you had a doctor, and every time he gave you a diagnosis, and you asked him if you should get a second opinion / run the tests again, and 92% of the time he agreed to do that, what would you think of his work?"


I lean that way because a request for reexamination doesn't (as far as I know) automatically change the issued patent.

Anyone have any numbers on how often a patent reexamination results in changes?


Disclaimer: Vicodin -and- Claratin today.

---
Ph'nglui mglw'nafh SCO L'ndon wgah'nagl fhtagn.

[ Reply to This | # ]

Paul Allen v. World - World Files Joint Motion for Stay Pending Reexams
Authored by: Anonymous on Monday, March 21 2011 @ 02:02 PM EDT
To find evidence unknown to the USPTO, all one has to do is look at the content
of the other patents on file...

[ Reply to This | # ]

Paul Allen v. World - World Files Joint Motion for Stay Pending Reexams
Authored by: BobDowling on Monday, March 21 2011 @ 02:10 PM EDT
If you had a doctor and every time he gave you a diagnosis and you then went and got a second opinion and 92% of the time, you find out your doctor got it wrong, what would you think of his work?

I would think that I was very good at choosing when to ask for a second opinion, PJ.

Be careful with statistics. They are a lot deeper than many people realise.

[ Reply to This | # ]

The problem with the PTO
Authored by: Anonymous on Monday, March 21 2011 @ 02:35 PM EDT
(Or at least one of the problems...)

There is only the most obscure connection between *what a patent does* and *how
it is described* in patent-ese.

That means that the PTO has a hard time sorting out which patents are prior art
to which, just because of the verbal sludge that patent applications are written
in...

MSS2

[ Reply to This | # ]

The precedent of NPT vs RIM
Authored by: Anonymous on Monday, March 21 2011 @ 03:42 PM EDT
It disturbs me that in NPT vs RIM, the judge refused to grant a stay under
similar circumstances, and the USPTO wouldn't expedite a review, allowing NPT to
nail RIM for a huge amount of money using questionable patents. If that
precedent is any indication, then The World in Paul Allen vs The World might not
get the stay.

[ Reply to This | # ]

"There are three kinds of lies:"
Authored by: stend on Monday, March 21 2011 @ 04:45 PM EDT
"lies, [CENSORED] lies, and statistics." -- Mark Twain, misatributting Benjamin Disraeli.
92% of all ex parte petitions for reexamination and 96% of all inter partes petitions for reexamination are granted.
That alone tells you what a lousy job the USPTO does in issuing patents to begin with.
That doesn't tell us what percentage of patents receive ex parte or inter parte petitions for reexamination, or what the results of the reexaminations are, so it really doesn't tell us much about the quality of the USPTO's work.
If you had a doctor and every time he gave you a diagnosis and you then went and got a second opinion and 92% of the time, you find out your doctor got it wrong, what would you think of his work?
Have you looked at the rates of preventable deaths in hospitals recently?

---
Please see bio for disclaimer.

[ Reply to This | # ]

Paul Allen v. World - World Files Joint Motion for Stay Pending Reexams
Authored by: old joe on Monday, March 21 2011 @ 06:17 PM EDT
If over 90% of "petitions for reexamination are granted" that's like
you having a doctor and mostly trusting her but now and again wanting a second
opinion and over 90% of the time the second doctor agrees to see you and give
you his opinion. Nothing extraordinary there.

The interesting statistic would be the percentage of patents which have
petitions lodged against them. This number will be biased by the fact that most
stupid patents are never enforced and the petitions only arise in the case of
the few that are.

The other interesting statistic is the percentage of petitions which result in
the patent being declared invalid. Any one got those numbers?

[ Reply to This | # ]

Paul Allen v. World - World Files Joint Motion for Stay Pending Reexams - Updated
Authored by: Anonymous on Monday, March 21 2011 @ 09:05 PM EDT
Did the Allen side not do any checking? Incidentally, here's a figure for the ages that the group cites:
92% of all ex parte petitions for reexamination and 96% of all inter partes petitions for reexamination are granted.
That alone tells you what a lousy job the USPTO does in issuing patents to begin with. If you had a doctor and every time he gave you a diagnosis and you then went and got a second opinion and 92% of the time, you find out your doctor got it wrong, what would you think of his work?
This paragraph is semi-misleading. When the USPTO grants reexamination, it grants reexam on the basis of there being a 'substantial new question' not whether the claims are going to be invalidated or not. An action granting reexam on a SNQ may not even contain the first action rejecting or affirming the claims. A piece of art could form a substantial new question but not be invalidating.
The actual statistics for invalidation are for ex parte cases: Are 12% all claims canceled, 23% all claims affirmed, and 65% some claims changed. The last category doesn't tell too much as 3 independent, 19 total claims could be the same but 1 independent claim has been changed.
http://www.uspto.gov/patents/stats/EP_quarterly_report_Dec_2010.pd f
Even these statistics are misleading as they are not a random sample of patents but selected for reexam because art was found (patents where all claims are 100% valid and no art can be found will likely not be put through reexam).

[ Reply to This | # ]

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