Google Reexam Requests Devastating to Lodsys(groklaw.net)
groklaw.net
Google Reexam Requests Devastating to Lodsys
http://www.groklaw.net/article.php?story=20110817200754569
9 comments
TL;DR: "Most reexamination requests rely on a finding of obviousness, which is a far more subject[ive] standard than demonstrating a lack of novelty. A lack of novelty can be established by any one piece of prior art that discloses each of the key elements of claimed invention. In each of these cases Google has identified not one, but five separate pieces of prior art that each alone demonstrates a lack of novelty in the critical Lodsys claims."
If this is true, surely the judge will ask: if each of these claims can be invalidated by five separate pieces of prior art, why in the world were the patents granted in the first place?
aren't like 80% of patents invalidated on reexamination? (which is, of course, significantly different than 80% of patents being invalid)
the judges are probably pretty used to crappy patents.
the judges are probably pretty used to crappy patents.
Also, judges live in the real world too, and I would expect some of the current patent talk has leaked into their social circle.
Real world or no, I doubt many of my non-geek friends are aware of the patent/innovation/whatever discussion that we're pretty saturated by here in HN-land. Perhaps in certain jurisdictions that hear a disproportionate number of IP related cases it would be otherwise, but if judges are of the 'real world' I'm not convinced they'll be across this as you might assume…
Judges who deal with these cases take an interest in the goings on, just like sports people tend to read the sports page, and computer geeks keep up with the computer news. People tend to act remarkably similar where their interests lie.
I haven't seen statistics, but I know of many that have passed a reexam or two with flying colors.
That is why he said that 80% are invalidated. The ones you heard about probably fall under the 20%.
Mr. Obvious to the rescue!
Mr. Obvious to the rescue!
No, he asked a question, and I simply shared an anecdote. Do you have a link to proof for 80%?
("Obviousness" is not just a problem for patent examiners, I see.)
Some facts: http://www.uspto.gov/patents/stats/Reexamination_Information...
Ex parte re-exams result in 66% with claims changed and 11% with all claims canceled. Inter partes re-exams result in 43% with claims changed and 44% with all claims cancelled. Not bad.
("Obviousness" is not just a problem for patent examiners, I see.)
Some facts: http://www.uspto.gov/patents/stats/Reexamination_Information...
Ex parte re-exams result in 66% with claims changed and 11% with all claims canceled. Inter partes re-exams result in 43% with claims changed and 44% with all claims cancelled. Not bad.
The answer would surely be: Google has far greater access to organized/relevant information than the patent office (or any other entity) has ever had in the past...
I wonder how effective this will be in fending off the patent trolls (e.g. IV), probably not very ...unless... Washington could implement/regulate a streamlined method of invalidating patents with prior art, it could go a long way in protecting valid inventions, while creating a disincentive for firms filing frivolous lawsuits and patents.
I know the patent office is under-staffed/funded but, you've got to believe that far fewer patents would be filed if there was a more effective system for invalidation in place.
I wonder how effective this will be in fending off the patent trolls (e.g. IV), probably not very ...unless... Washington could implement/regulate a streamlined method of invalidating patents with prior art, it could go a long way in protecting valid inventions, while creating a disincentive for firms filing frivolous lawsuits and patents.
I know the patent office is under-staffed/funded but, you've got to believe that far fewer patents would be filed if there was a more effective system for invalidation in place.
This is a fantastic idea, it would allow the tech community to police patents itself. Perhaps a good way to streamline the process would be to simply mark a patent when prior art has been found and verified by the patent office. The more involved invalidation of the patent could happen later.
The prior art is in relation to Lodsys' claims. Remember that patent trolls use their patents as moving goalposts. What the patent office grants and what the patent troll claims they own are not necessarily the same.
Google Scholar
http://scholar.google.com/
has long had an interface for searching patents, and here we see one example of an application of full-text searching of patent filings. Part of what has made patent law an arcane subfield of law has been the tedious reference work necessary to look up what has already been patented. If Google fulfills its mission of organizing the world's information, patent law will become clearer--perhaps clearly ridiculous in more than a few cases--and at length patent litigation will play less of a role in impeding technical innovation. Technology for the win.
http://scholar.google.com/
has long had an interface for searching patents, and here we see one example of an application of full-text searching of patent filings. Part of what has made patent law an arcane subfield of law has been the tedious reference work necessary to look up what has already been patented. If Google fulfills its mission of organizing the world's information, patent law will become clearer--perhaps clearly ridiculous in more than a few cases--and at length patent litigation will play less of a role in impeding technical innovation. Technology for the win.
Equally interesting is that one of Lodsys's targets is seeking discovery in Arizona of whether Lodsys is a cat's paw of Intellectual Ventures: http://www.groklaw.net/article.php?story=201108171318536
It is sad that you even need to 'seek discovery' to check such things. Why is it even possible to do business anonymously?
What I do not understand: Google and Apple are both investors to Intellectual Ventures. So the dog is biting its own tail quite horrendously here.
Intellectual Ventures started as a sort of patent pool for small inventors, at least purportedly. The idea was, as a small inventor, you could pay IV or, I think, contribute patents, or some combination of both, and IV would protect you from patent litigation. They only recently started suing people through shell companies. I'm pretty sure most of those companies invested in IV before it started trolling, but I'm having trouble looking up the info. I'll edit later if I find anything.
I could be wrong, but I think IV's model was to pay inventors for patents that the inventor couldn't afford to enforce. IV then turns around and sells blanket licenses to companies in the portfolio market space.
Hedging?
Nothing requires their company to be ideologues against patents.
(except for "Don't be evil")
-- signed, an EFF member
Nothing requires their company to be ideologues against patents.
(except for "Don't be evil")
-- signed, an EFF member
Intellectual Ventures has way more than these couple patents. Google/Apple's user base is more important than these couple patents. They only have them to protect themselves, not to assert them, so invalidating them won't do anything.
I suspect that as a result of some out of court settlement with Intellectual Ventures, people are asked to invest. I also suspect that the best lawyers in the world - and apple and google have the best in the world - pick the fights they have a chance of winning. A similar example is http://www.iwf.org.uk/.
This is a nice piece of work. And it is refreshing to see Google jump in here. When I saw they paid $12.5B for the Motorola patents I wondered why, if they were willing to play at that level, they couldn't set aside 200 - 300M for a bunch of greybeards and IP lawyers to sit around dissecting the patent database, every journal article ever printed, etc and just obliterate a crap ton of the stupid patents.
Now an evil company would say "Ok, we can invalidate half your portfolio, or you can give us a free license to anything you've patented and we'll look the other way, which will it be?"
Few companies could pull off such a strategy.
Now an evil company would say "Ok, we can invalidate half your portfolio, or you can give us a free license to anything you've patented and we'll look the other way, which will it be?"
Few companies could pull off such a strategy.
It's quite possible that Google realized Motorola had some non-stupid patents. Motorola has been in the mobile space a long time (from the first cell phone) and has done tons of innovation.
A lot of the speculation re: Lodsys was that the license Apple et al had from IV for these patents prevented them from contesting the validity of the patents (standard language apparently).
So what's great here is Google either confirms that this is not the case or that they found a way around it or are ignoring it.
So what's great here is Google either confirms that this is not the case or that they found a way around it or are ignoring it.
From the comments: Taking a weapon that is susceptible to a search for prior art, up against a company that specializes in search is a bad plan.
Hah. Wonder if Lodsys will sue their lawyers?
Hah. Wonder if Lodsys will sue their lawyers?
Lodsys is their lawyers. It's not a real company. It's a patent attorney who registered a company specifically as a vehicle to monetize the four patents they purchased/licensed from Intellectual Ventures.
Yes, sorry. I was thinking of Dan Abelow, the original 'inventor' ( http://computing2.com/) but on reflection, he's already got his license fee so I suppose he has no reason to care.
I never thought to look the guy up. It's one thing to file a bad patent. There are potentially many reason, such as your employer forces you to. But I'd feel dirty doing so. He seems to love it.
Has he commented at all on the state and use of his patents?
Has he commented at all on the state and use of his patents?
I find it humorous that his "Invention" site is mostly text but all in images. Humorous because his other business is web usability consulting. Not using text is probably the least usable thing you can do.
> his "Invention" site is mostly text but all in images... Not using text is probably the least usable thing you can do.
Well, if you consider the problems that full text search is now causing for his patent licensee, maybe it's intentional...
Well, if you consider the problems that full text search is now causing for his patent licensee, maybe it's intentional...
... sounds like a real company to me. Do you mean they don't produce anything? None of the patent troll companies do.
It's a real company in that it has a legal registration. But it's a vehicle created by a patent attorney (or more likely multiple patent attorneys) specifically to monetize four patents. The OP said Lodsys should be mad at its attorneys which is incorrect--Lodsys is a product of its attorneys! Lodsys would have to sue itself if it was to try and sue its attorneys.
Eh I'm just being a pedantic ass, sorry, been a long day. I think it's time to leave the office and grab a beer.
Have another one for me.
No, jonknee has it right. I confused Lodsys with CV2, Dan Abelow's firm that licensed the patents.
For what?
Not checking for prior art when filing the patent application. Sorry, I guess my comment above looked like I was talking about the current litigation.
Lodsys didn't file the patent application. As far as I understand, these are patents filed by Intellectual Ventures (Nathan Myhrvold's company). Lodsys is just a front for them.
http://www.guardian.co.uk/technology/2011/jul/27/intellectua...
http://www.guardian.co.uk/technology/2011/jul/27/intellectua...
You don't have to do that, and most people don't. If you happen to know about some relevant prior art, then you have a duty to disclose it to the PTO... but you don't have to go looking for it.
Ah, I see. Thanks.
I was afraid that Groklaw wouldn't be any good now that PJ isn't heading it up anymore, but I really shouldn't have worried. Still informed, insightful, opinionated, and funny.
I wish they will do more so every news piece will stop quoting the terrible Florian Muller
Florian Muller seems to have a much better track record of accurate predictions about what will actually happen in patent cases than Groklaw. And he seems to be better at reporting the facts dispassionately. Groklaw seems to focus more on cheerleading for entities they favor (Linux, IBM, Google) and against ones they hate (Sun, Microsoft).
I really don't understand why so many people seem to think they are better than Muller, other than perhaps because they enjoy being told what they wanted to hear regardless of truth.
I really don't understand why so many people seem to think they are better than Muller, other than perhaps because they enjoy being told what they wanted to hear regardless of truth.
I don't read Mueller or Groklaw that much, and never did until recently, but when I do, it comes off to me as Mueller trying to sound dispassionate and hide his biases against certain parties, while contributing mostly FUD. Whereas Groklaw wears its biases openly.
Again, that's just the impression I got. I'd be interested in seeing a data-based comparison of predictions, though.
Again, that's just the impression I got. I'd be interested in seeing a data-based comparison of predictions, though.
Groklaw's biases are definitely obvious, but I would want to see documentation of Florian's accurate track record. I think what most people object to is his sensationalism, particularly the seeming crises he uncovers that turn out to be nothing much (with considerable indication that he knew that they were nothing much).
I pick where I get my news to avoid that sort of source, so it's annoying when they start quoting him.
I pick where I get my news to avoid that sort of source, so it's annoying when they start quoting him.
For one thing, he correctly predicted that in the Nokia vs Apple case, Apple would end up paying Nokia a royalty, which seems to be what actually happened.
For another, his predictions of the judge's likely reactions to damages requests and requests to suppress evidence in Google vs Oracle seem to be largely playing out as predicted.
I do get the feeling sometimes from reading his stuff that he may have anti-Google biases, but his facts and predictions are generally accurate and his analysis seems informed.
He's predicted that it's likely that Apple will be admitted as an intervenor in the Lodsys case, let's see if that one comes true. Likewise he predicts that Motorola Mobility will likely suffer an ITC import ban due to the Microsoft case (if not settled before then). Let's see what happens on that one.
For another, his predictions of the judge's likely reactions to damages requests and requests to suppress evidence in Google vs Oracle seem to be largely playing out as predicted.
I do get the feeling sometimes from reading his stuff that he may have anti-Google biases, but his facts and predictions are generally accurate and his analysis seems informed.
He's predicted that it's likely that Apple will be admitted as an intervenor in the Lodsys case, let's see if that one comes true. Likewise he predicts that Motorola Mobility will likely suffer an ITC import ban due to the Microsoft case (if not settled before then). Let's see what happens on that one.
So, the one definitive prediction he had so far is that a patent case would end in a royalty? Forgive me if I don't take that as a sign of an insightful commenter.
I gave two examples, you picked out one, and you appear to assume that this is the only time Muller has been right about anything. Somehow, it does not seem to me like you are on a dispassionate quest for truth here.
However, just in case you are: Apple and Nokia were both suing each other over various patents, and had various defenses. Often such cases end in a cross-licensing deal with little or no money changing hands. He correctly assessed that in this case Nokia had the upper hand and that Apple would end up paying. That conclusion was not obvious to casual observers at the time.
However, just in case you are: Apple and Nokia were both suing each other over various patents, and had various defenses. Often such cases end in a cross-licensing deal with little or no money changing hands. He correctly assessed that in this case Nokia had the upper hand and that Apple would end up paying. That conclusion was not obvious to casual observers at the time.
I've noticed that Florian Muller is more skilled at covering his own behind, rather than predicting patent litigation outcomes.
Every prediction he makes is hedged with a statement about how the alternate outcome is possible "even though many don't believe it's likely". Whatever his preferred outcome, he will make the stronger case for that.
Every prediction he makes is hedged with a statement about how the alternate outcome is possible "even though many don't believe it's likely". Whatever his preferred outcome, he will make the stronger case for that.
Hedging your predictions with qualifying statements is something that any good lawyer will tend to do, and also just plain intellectually honest since predictions about legal processes are rarely 100% certain.
FM didn't disclose he was funded by big players (Microsoft?). Also he is full of it with his crusade against Google.
Could it be that Groklaw hates certain companies based on some principle? Or do you think they just randomly pick which side they're going to support?
They seem to stay silent or downplay it when IBM is a patent aggressor. So I don't think their friendliness towards IBM is based on principle.
Yeah, I really don't like how Groklaw tries to play the principled moral leader. I generally don't read Groklaw (including this article). You can just tell me who the principals in the case are and I can tell you what Groklaw's opinion on the "merits" are. The fact that I can pretty consistently do that tells me all I need to know.
You're missing one of the more interesting parts of groklaw -- they pull together the relevant legal documents so you can look at them yourself, if you like.
The question is: How much did it cost for this defense? Would a small player without outside help have a good chance of reproducing this positive outcome in the face of a patent holder in the wrong like in this Lodsys case?
Otherwise this outcome doesn't do much to quell my anxiety as a small entrepreneur.
Otherwise this outcome doesn't do much to quell my anxiety as a small entrepreneur.
What kind of resources would it take to attempt to invalidate as many of IV's patent's as possible? Is that something that could be crowd-sourced or does it require significant capital?
Doing the research for prior art seems like a great project for crowd sourcing. The lawsuits could be brought by big corporate stakeholders based on that research.
Been thinking more about this: With http://www.google.com/patents, a collective should be able to prepare detailed research on prior art for all kinds of obnoxious software patents. That research could be neatly packaged and ready to go when the trolls come sniffing.
Someone should create a database of all similar patents that are granted so it's easier to prove that other patents are invalid because they are equivalent to the ones found to be invalid, essentially disarming them.
Someone did.
Listen to the "When Patents Attack" podcast: http://www.thisamericanlife.org/radio-archives/episode/441/w...
Someone created a system where they can enter a claim and go back and see how many times that claim was already granted in a patent. The one they looked up found something like 5000+ prior claims.
Why the USPTO doesn't use this software before approving patents is beyond me.
Listen to the "When Patents Attack" podcast: http://www.thisamericanlife.org/radio-archives/episode/441/w...
Someone created a system where they can enter a claim and go back and see how many times that claim was already granted in a patent. The one they looked up found something like 5000+ prior claims.
Why the USPTO doesn't use this software before approving patents is beyond me.
Companies pay money for patents. Granting less patents means less money. Pure and simple.
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