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Posted at 12:39 PM ET, 12/30/2010

Revised Paul Allen lawsuit continues to show what's wrong with tech patents

By Rob Pegoraro

Four months after filing a laughably broad patent lawsuit against a Who's Who of tech companies--and only weeks after a judge tossed out its complaint for being too vague--Paul Allen's Interval Licensing is at it again.

The Seattle corporation, the surviving entity of the defunct Interval Research firm set up by the Microsoft co-founder in the mid 1990s, filed a revised complaint Tuesday against AOL, Apple, eBay, Facebook, Google, Netflix, Office Depot, OfficeMax, Staples, Yahoo and YouTube.

Interval's amended, 35-page filing (PDF) pads out its earlier 15-page complaint by specifying such features as Apple's Dashboard software, the notifications interface in Google's Android operating system and Netflix's viewing suggestions as infringing on Interval patents. It asks for unspecified damages from those companies as well as an injunction on them shipping any products with the allegedly infringing features.

(The four patents in question: "Browser for use in navigating a body of information, with particular application to browsing information represented by audiovisual data" [patent no. 6,263,507]; "Attention manager for occupying the peripheral attention of a person in the vicinity of a display device" [no. 6,034,652]; "Attention manager for occupying the peripheral attention of a person in the vicinity of a display device" [no. 6,788,314]; and "Alerting users to items of current interest" [6,757,682].)

As before, the features Interval claims continue to be insultingly generic. For instance, an allegation that AOL and Gmail's spam-filtering software infringes on an Interval patent because it is "based at least in part on a comparison between the new email and other emails that have been received." (Sure: Like nobody ever thought to make such a statistical comparison until Interval came along.) Later, it contends that when Netflix "generates a display of related content items" after "a user views a particular content item," that infringes on an Interval patent too. (Right, because the concept of a store or a catalog suggesting a related item to a shopper didn't exist until Interval scientists had a brainstorming session.)

And as before, Interval's suit doesn't target Microsoft or Amazon (which happens to pay rent to Allen's Vulcan Real Estate), even though both companies' products would seem to infringe on the same patents.

Bear in mind, I am not a lawyer. But I know a thing or two about the history of computing and the Internet. So I feel within my competency to suggest that Interval's patents are junk. They describe general concepts that should have been obvious to anybody of ordinary skill in this field in the mid 1990s--and for which it shouldn't be difficult to find "prior art" showing that other people had thought of the same thing years before. Had the U.S. Patent and Trademark Office provided the "high quality" examination of patent applications it promises, it's hard to see how these patents would have been granted in the first place.

But that Alexandria-based agency did grant them. So unless and until these patents get invalidated--which can take an absurdly long time--Interval can advance a legally plausible claim to have a property right on dynamically-updated Web sites and multitasking user interfaces. That covers most of the software platforms you use today. PaidContent.org's Joe Mullin phrased things well in a commentary yesterday (emphasis in the original):

If patent claims on such basic ideas are found to be valid, there are surely hundreds of other potential defendants that could be sued by Interval Licensing. Paul Allen would be essentially a tax collector for the internet.

That might be okay if you think that patents are an inalienable right that inventors deserve. But they're not. Patents, copyrights and other intellectual-property rights exist only to benefit society at large. That--not a notion that inventors or authors have a special right to make money off their work--constitutes the sole reason for their existence in this country.

What gives me a reason to spout such a radical notion? The United States Constitution, which in Section 8 of Article I grants Congress the authority to "promote the progress of science and useful arts." How so? By "securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The former justifies the latter--not the other way around.

Would anybody now like to explain how a patent system that allows a company to claim it's invented an entire category of software and then drag a seemingly random selection of competing firms into expensive, time-consuming litigation promotes the progress of anything but the patent-law bar?

By Rob Pegoraro  | December 30, 2010; 12:39 PM ET
Categories:  Policy and politics  
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Comments

I agree completely. A good case can be made that the patent are junk, but the companies will have to spend time and money to do that.

Whatever happened to patent reform?

Posted by: RepealObamacareNow | December 30, 2010 5:52 PM | Report abuse

The patent office approves the most obvious stuff that any ordinary person doing the same thing would think up. All the time.

Posted by: AsperGirl | December 30, 2010 10:17 PM | Report abuse

I think I will patent the idea of Internet postings using a made-up "user name."

I will be RICH!!!

Posted by: roblimo | December 31, 2010 12:43 AM | Report abuse

A few key points you miss:

1) The Patent Office was entirely paper-based in the '90s when these patents were being issued. Examiners had to go to paper files to look for "prior art." If it wasn't there, even if another examiner had it, it "didn't exist." Now they use electronic systems which renders this moot for newer cases.

2) The case law at that time was such that everything had to be specifically defined within the prior art, and a motivation for combining had to be explicit in the art. It was a strict "teaching, suggestion, motivation" (TSM) standard set down by Federal Courts. It wasn't until the 2007 KSR v. Teleflex Supreme Court decision that "common sense" and other reasoning could be respected as well.

3) It's all about the claims. Sometimes they are written in a manner that the examiner just can't (or doesn't have the time to) find. Saying "it seems obvious" or "I could have done that" doesn't work. There must be art cited.

Patent reform is largely a joke, because it often focuses too much on damages in court rather than getting quality patents issued in the first place.

Posted by: wanderingjoke | December 31, 2010 10:31 AM | Report abuse

"entirely paper-based in the '90s when these patents were being issued"
Sorry, editing gone wrong. That should be "early '00s."

Posted by: wanderingjoke | December 31, 2010 10:36 AM | Report abuse

There were three main problems with the Patent Office in the 1990s. (1)It was required to follow the legal precedents of the Court of Appeals for the Federal Circuit (CAFC); that court is filled mostly with political hacks and was going way out in left-field with their decisions. Some of those decisions are now being reined-in by the Supreme Court - the 2007 KSR decision being a prime example. (2)The Patent Office was run by relatively low-paid, often alcoholic, managers. Congress' only interest in the Patent Office was to drain off up to 1/3 of its revenues. Congress and Commerce provide no effective supervision and Patent Office management has been stupid and venal for decades. The Patent Office and the examining corps continually have one of the worst working relationships in government because Patent Office management is not effectively supervised. Therefore, examiners just mindlessly follow idiotic (and often inebrieted in the 90s) management directions. There was one management meeting I attended in the mid-1990s that started with a senior manager stating "We're the Patent Office, not the Rejection Office." What can cowed examiners do in the face of this type of management "guidance"?? Finally, (3) Patent Office management, the CAFC, and many patent practitioners have a fundamentally flawed understanding of the part of the patent law (35 USC 112 - first paragraph) that requires patent applicants to fully disclose how to make and use their invention in a patent application. This flawed understanding facilitates the granting of patents on half-baked general ideas.

There has been some slight improvement in recent years, most notably the Supreme Court's KSR decision. Unfortunately, the Patent Office generally ignores this decision and most of Patent Office management does not really understand it. For the first time in living memory, no current senior Patent Office manager is known to be a raging drunk. This, in particular, fills the examining corps with hope.

However, until the Supreme Court strikes down the CAFC and PTO's fundamental misunderstanding of 35 USC 112, and until the Patent Office actually begins to correctly implement the KSR decision, we will continue to see the poor quality patents discussed here. There will be little option but to try to have the patent knocked out in litigation or through the lengthy Patent Office procedures.

Posted by: dallaspatents | December 31, 2010 10:53 AM | Report abuse

There's never been a patent law suit that ever created a single job.

There's never been a patent law suit that ever created any wealth.

There's never been a patent law suit that ever increased the sum of human knowledge.

A patent law suit is nothing more than a Ponzi scheme, intended to remove money from one pocket and insert it into a different pocket.

Posted by: seattle_wa | December 31, 2010 11:42 AM | Report abuse

paul allen is a greedy coksucr

Posted by: kkrimmer | December 31, 2010 1:51 PM | Report abuse

The Patent Office really needs to clean up their act.

Though they say that you can NOT patent an "idea", their current patents are so broad in nature that they are essentially giving patents to "ideas."

They really need to reexamine the criteria for patents in view of the new experiences of the Digital Age.

Posted by: JamesCaroll | December 31, 2010 1:54 PM | Report abuse

An inevitable discovery rule should be applied in patent law like it is in criminal law.

My other feeling is that patents should only be allowed on drugs and only on one molecule specification/related filing/year. Upon FDA approval, marketing, or drug commercial transaction, a Markush claim would be limited to a single FDA-approved entity within the group.

Posted by: brian308griffin | December 31, 2010 4:43 PM | Report abuse

I'm sure 1960s era AT&T network monitoring software had an attention manager in case of a transmission line failure.

I'm sure 1960s era air space monitoring software had an attention manager in case of an enemy aircraft or possible mid-air collision.

And nuclear power plant software....

Posted by: brian308griffin | December 31, 2010 5:04 PM | Report abuse

Stock market industry software would also be another rich source of precedents.

Posted by: brian308griffin | December 31, 2010 5:10 PM | Report abuse

The easiest way to get a patent is take something blindingly obvious like "Call your neighbor to tell him to get your newspaper when you're out of town", and add the following phrases:

"Using a digital computer"
"Connected via a network"
"Take advantage of digital storage"

So the patent would be:

Inform geographically close people using your digital personal computer taking advantage of networking and storing the resulting message as part of archiv-able digital storage to let them know to pick up your newspaper when you're gone"

Bang, that's a patent.

Guarantee you've got a patent

Posted by: Ombudsman1 | December 31, 2010 5:23 PM | Report abuse

dallaspatents says:

"For the first time in living memory, no current senior Patent Office manager is known to be a raging drunk."

Good.

I think.

Posted by: RepealObamacareNow | December 31, 2010 8:24 PM | Report abuse

"I think I will patent the idea of Internet postings using a made-up 'user name.'

I will be RICH!!!

Posted by: roblimo"
-----------

I claim prior art on that.

Posted by: RepealObamacareNow | December 31, 2010 8:47 PM | Report abuse

All this tech stuff is such a farce. Next some techie will claim he invented gravity or sunlight and want to charge a fee for us to use them.

The patent office is so intimidated by the tech companies, they have lost their compass of reality.

Posted by: wesatch | December 31, 2010 9:00 PM | Report abuse

One aspect that touches on both poor examination and also the public disclosure aspect of patent law, which desperately begs for reform, is the so-called enablement standard. Basically, the patent disclosure exists to enable an ordinary skilled person in the art to practice the claimed invention. In earlier times, nearly all inventions were mechanical or electrical in nature, such that a simple figure or schematic was sufficient to copy the invention.

However, as software patents emerged in greater numbers, the enablement standard was set far too low in favor of an assumed high level of skill of the reader. This conveniently dovetailed with a much lower examination effort by the USPTO, perhaps even due to a lack of recognition that software inventions represented a whole new paradigm of technology that was simply not contemplated under previous patent practice. The result was the issuance of many patent claims directed to software embodiments, as described in this article, which now enjoy a presumption of validity under the law. The enablement standard on such patents is arguably absurdly low, and even today, only a very abstract, architectural level of detail is required to enable such claims. Therefore, if a court ruling would reset the current enablement standard in favor of a higher one that required much more specific implementation details to be included in the patent specification, I believe a great service would be done to patent law, and that many problems in our patent system would correct themselves.

Unfortunately, such a bold step might lead to a very large number of software-type patent claims being held invalid, which would be an immense economic loss (if only against book values) that patent holders would fight against. There is no path to reform without curtailing the powers that be, as usual. That is why all change is pretty darn difficult.

Posted by: AgentG | December 31, 2010 9:36 PM | Report abuse

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