Friday, August 11, 2006

Patent Overhaul

Recently the Senate proposed sweeping changes to the systems and procedures for the U.S. Patent Office. The Patent Reform Act of 2005 (not 2006, sorry, my bad) has been two years in the making. Parts of it sound very good, but other parts make you shake your head (side-to-side, not up-and-down).

This is still a long way from becoming law, but let's speculate about some of the aspects and how they would have affected BlackCT if they were already in place.

1. It would provide for a "postgrant opposition" system where those of us on the outside could bitch about the validity of the patent in front of a patent board without going to court and incurring enormous legal fees. This would be allowed for 12 months (9 months says the House) as a petition for cancellation of a newly granted patent. Apparently during this time the opposition would have a chance to provide evidence to the USPTO that they didn't bother to uncover themselves before granting the patent. In the Blackboard case, that would mean that all of the evidence gathered about prior art and different architectures, and all that might actually make a difference in getting the patent rescinded.

2. Patent plaintiffs would no longer be allowed to "forum shop" for those uninformed or weak-patent-friendly judges. In the Blackboard case, that would mean that they wouldn't be able to file in the friendly district in Texas that otherwise has no bearing on this suit.

3. Damages would be restricted only to those items in the patent that are clearly infringed upon rather than the entire value of the patented item. In the Blackboard case, what that would mean is unclear to me since I can't see the basis for the infringement in the first place.

4. Quoting from the CNET article, "Such a system, some argue, has contributed to the rise of "patent trolls"--that is, companies that exist primarily to make money from patent litigation and are using the system to force lucrative settlements." In the Blackboard case, that means that the troll would probably have never filed suit in the first place.

5. The Coalition for Patent Fairness supports this legislation while the Professional Inventors Alliance opposes it. The Coalition includes companies like Apple, Dell, HP, the Business Software Alliance, and others. The Professional Inventors Alliance seems to keep it's membership pretty secret. In the Blackboard case, their actions tell me that Blackboard would not like this new legislation to become law and that they are more likely to belong to the Inventors Alliance rather than the Coalition for Patent Fairness.

6. Now for the troubling part of the proposal. The standard for awarding patents would be based on the first to "file" for the patent. Forget (as Blackboard has) who invented it, forget who put in the R&D, forget who deserves it...apparently we are rewarding the quick over the righteous. It's hard to believe that they would actually have a provision that just allows the first filing to patent something unless they can also provide some evidence that it is their invention in the first place. In the Blackboard case, they would love this provision since that appears to be what they have already done. They didn't invent online test questions and discussion boards in an LMS, but they have a patent now that it makes it look like they did.

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