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Patent News: Prior Art + Outcry = Holy Cow, It Worked!
Thursday, November 13 2003 @ 05:00 AM EST

The U.S. Patent and Trademark Office has agreed to re-examine the Eolas patent that Microsoft's Internet Explorer browser was recently ruled to have infringed, after the World Wide Web Consortium (W3C) presented the USPTO with examples of prior art and asked them to re-examine the issue.

"'A substantial outcry from a widespread segment of the affected industry has essentially raised a question of patentability with respect to the 906 patent claims,' Stephen Kunin, the USPTO's deputy commissioner for patent examination policy, wrote in his order for re-examination. 'This creates an extraordinary situation for which a director-ordered examination is an appropriate remedy.' . . .

"'The thing that's exciting to me is that the (US)PTO sort of made the ruling on the basis of how much interest there is in this issue on the Internet,' said Dale Dougherty, a vice president of online publishing and research at Sebastapol, Calif.-based publisher O'Reilly & Associates, who posted news of the USPTO's decision on the O'Reilly Web site. 'And it seems that they felt they had to respond to it.'"

It's encouraging to know outcry works. Of course, it is Microsoft, so that probably didn't hurt the cause either. You can read about the efforts by folks over the internet to find prior art to invalidate this patent here. There just is something to this many eyeballs thing. I don't suppose MS will get that part of the story, even though it is the beneficiary this time.

In other patent news, there is an interview with Dan Ravicher, Esq., Executive Director of the newly launched Public Patent Foundation on The Inquirer.

PubPat's mission statement reads, in part, like this:

"The Public Patent Foundation works against illegitimate patents in many ways, including requesting re-examinations of issued patents (asking the Patent Office to reconsider the validity of an issued patent with the goal of having it narrowed or revoked). The Public Patent Foundation also advocates for improvements to the patent laws and educates the general public on the esoteric issues implicated by patents and how they impact their everyday life."

Here's a sample of the interview, and of course I zeroed in on his remarks on the SCO case:

"Q: Do you suspect that closed-source software companies will use their patents and legal resources to fight Open Source software in the courts?

"A: Those companies most likely to be sued for patent infringement are those that are either posing the largest competitive threat to a patent holder or are reaping significant profits from the allegedly infringing activity. Well, those same companies are also likely to be fairly large and capable of dealing with any patent threat. For instance, IBM or HP are more likely to get sued for patent infringement than Apache or the kernel developers, because suing a small group or individual is not worth the cost of litigation for a patent holder. Thus, since the larger members of the Free Software community are the ones most likely to be sued, the Free Software community would be adequately represented. . . .

"Q: Do you have any comments on the SCO related litigation now underway?

"A: Having agreed to a trial date in 2005 and having not sought any preliminary relief, SCO seems to have brought this action primarily to get press. While they have been wildly successful in achieving their goal, they have also caused the marketplace to educate itself about Free Software, which is a tremendous benefit to the community."

I admire Dan for taking time out from a lucrative and prestigious career track (Patterson, Belknap isn't chicken liver, folks) to serve as a public interest attorney and set up the foundation.

If you are curious about patent law and software issues, here is an article you might enjoy, either as a PDF or as HTML, although as is typical with PDFs to HTML, it's a bit hard to read. Pick your poison. It's hard to find even, so scroll down until you find: "What a Patentee Must Do to Prove Infringement and Damages of a Method Claim for Computer Software" by Marc Lorelli of Brooks & Kushman, P.C.


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