USPTO Takes Second Look at Y2K Windowing Patent

Remember this patent? Seems the USPTO is having second thoughts about it, too. Anonymous Coward says, "According to News.com the U.S. Patent and Trademark Office re-evaluates the Y2K windowing patent."

Good!

This patent really needs to be overturned. I know of many products that pre-date this patent and use the 'Windowing' concept. How the US Patent Office could overlook the prior inventions and issue a patent shows how screwed up the US Patent process is. This patent, combined with other patents like the Amazon.com one, calls for an overhall of US patent law.

This is a good thing, but...

At the risk of being redundant, I think it's important for everyone here to realize that the USPTO is reviewing this patent, not because a bunch of open source geeks (no offense intended, I consider myself a geek) made a fuss about patent reform, but because a bunch of big companies that make generous campain contributions to key lawmakers would stand to suffer because of the existence of this patent. I doubt those same companies will support any patent reform that challenges their own bottom lines.

Sure, we've won this battle, but for the wrong reasons. And, I'm sorry to say, this doesn't bring us all that much closer to winning the war.

Hopefully...

I remember trying to submit the original story [cnet.com] to slashdot last month but it was rejected for some strange reason.

Anyway what I was going to say was this...if IBM can get this stupid patent overturned by showing prior art from documents dating as far back as 1991, maybe we can do something about the Amazon patent. I know someone has implemented or described the process of storing user info in a cookie and keeping track of the user's behavior (don't say purchases I'm pretty sure Amazon got a jump on patenting it in a retail environment)... whoever has this info or knows someone who has this info should send that to B&N so they can build a portfolio of prior art. Hopefully we, as a community, can get this stupid patent overturned. It seems like it is about time for that open source patent database.

Bad Command Or File Name

Rubber stamp body?

A number of patent related comments on slashdot recently[0] have accused the US Patent Office[1] of approving anything technology related without doing proper research for prior art.

Given the number of stupid patents that get through, this certainly seems to be the case. Sure they can argue lack of funding, and it is an issue, but that isn't the line they're taking.

From the link in the article [cnet.com]: Patent officials made the decision after some information came to light that was not considered when the patent was originally granted

They're not admitting that they didn't do anywhere near enough checking the first time, or explaining how such a stupid patent could have happend, just covering their backsides about this second look.

Further down: Experts say decisions by the PTO to review patents that are already approved are rare.

It certainly seems to me that someone along the way has forgotten that patents exist to protect original work that contains unique elements. The Patent Office exists not only to grant patents, but to block them when they clearly don't fit the charter.

[0] Admittedly mainly restating the obvious in moderator friendly format.
[1] Disclaimer: I'm in Australia. I rest my case on pointy haired .govs.

Re:Nice to see...

Patent reviews are rare if not non existent

This is absurd. First we patent a user interface to a website (amazon.com), then we patent a business model (priceline.com), and now we're trying to patent (and have apparently succeeded) a method of handling dates??

Somewhere, someone needs to come up wih a way to overturn these absurd patents, AND the patent laws need to be seriously changed to define what is and is not a patentable concept.

For instance, a new drug is very well deserving of a patent. A company spent millions of dollars researching this drug to test its effectiveness on the disease it is supposed to treat, and this company gets in return a patent which prevents others from stealing their invention for a limited period of time, and that period of time is reasonable for that industry.

That's great for the pharmaceutical industry, but the same thing does not hold up in the software and website design industry. What is a reasonable period of time in the pharmaceutical world is an order of magnitude different the a reasonable period of time in the software world. Drugs take many, many years to bring to market, and require a significant investment of time and resources to bring them to market.

Now let's take a look in a little more detail at the amazon.com patent. What they have patented (from what I have read on /. and other places, I have not read that patent myself. If anyone wants to send me the patent# so i dont have to search for it I will read it, but IANAL. While writing this, I decided to do some research of my own, and I did find the patent. Look for some interesting details from it later on.) to be a mechanism for ordering products with one click of the mouse, and having your shipping and credit card information previously stored. A great idea for e-commerce. However, not patentable IM[ns]HO. Perhaps a copyright on the design of the website (the overall design, not that particular element) would be in line, but not a patent. What they have patented is:

1. A method of placing an order for an item comprising:

under control of a client system,
displaying information identifying the item; and

in response to only a single action being performed, sending a request to order the item along with an identifier of a purchaser of the item to a server system;

under control of a single-action ordering component of the server system,
receiving the request;
retrieving additional information previously stored for the purchaser identified by the identifier in the received request; and

generating an order to purchase the requested item for the purchaser identified by the identifier in the received request using the retrieved additional information; and
fulfilling the generated order to complete purchase of the item

whereby the item is ordered without using a shopping cart ordering model.

I take several issues with this. First is that it also seems to patent a business model, because what it patents is the complete system of one-click ordering. What I have pasted is only a subset of the patent, but its enough to get the jist of it. Later in the same patent, it would appear that they patent the idea of one-click ordering combined with shopping cart ordering. Again, IANAL.

While researching that previous patent, I came across another Amazon.com patent that is even more absurd. It patents entering only a subset of a credit card number online via an insecure connection, and then placing a telephone call to an automated system and entering the complete credit card number, and having the system correlate the two.

Is there anything that the retarded patent office wont patent???

What Really happened...

When someone like Amazon(TM) patents something One-Click Shopping(TM) and uses it to beat up on a competitor, most other observers are relatively neutral (ie. they have nothing to directly gain or lose from any judgement on the case) and therefore the thing is just a big gladitatorial battle between competing lawyers.

When someone like Big Corporation(TM) patents an Obvious Idea(TM) and sues a bunch of Smaller Companies(TM) for infringement, then they are just bullies who are extorting money from those who don't have the resources to fight back.

In this case, Bruce Dickens, the owner of the Y2K Windowing Technique(TM) [no relation to Microsoft(R) Windows(TM)] is attempting to extort money from almost every other corporation in the US, big and small. Many of these companies depend on this technique for their very survival, and it now being so close to the magic date, Ceasing and Desisting(TM) is not an option. And nobody wants to pay money to some guy they never heard of for using a technique that is so obvious even student programmers know about it.

So picture this: Every big company calls their lobbyists in DC and every small company calls their industry association who calls their lobbyists in DC. All of these lobbyists visit the offices of every politician in DC and remind them that Y2K is an election year and if they have to give money to Bruce Dickens, well then there will be that much less money that they will have available for political contributions. The politicians check their records and see that Bruce Dickens has not really contributed anything to their campaigns in the past. The next thing you know, the head bureaucrats at the USPTO are receiving several hundred memos from their political masters suggesting that it would be in their own best interests to review this particular patent.

In a nutshell, Bruce Dickens pissed off a lot of people, and most importantly, a lot of powerful people.

The fool never really stood a chance.

Would the guy be guilty of extortion?

Say the patent is overturned and someone goes out of their way to prove that the patent was filed maliciously, can the former owner of the patent be jailed for extortion? Everyone with a brain knows that this windowing technique is prior art (_way_ prior, some versions have been used for centuries).

Let's assume that the holder of the patent knew that the technique was prior art, and a criminal court can prove it. They would be very close to an conviction for extortion. How are Mafia 'protection' schemes any different? You threaten someone that if they don't pay, you'll take some action against them, with the threat being based on criminal activity.

Is it a crime to obtain a patent on prior art? IANAL, but it seems like it should be, at least if it can be proven that you knew about it beforehand. If the reason he obtained the patent was specifically because he wanted to shake down other people?

It'd be great if this gonif got sent to jail... =-]

New section for /. ?

Why not have a new section under slashdot for maybe the top ten or top one hundred patent abuses? You could list a patent and then it gets voted upon.

Only by highlighting abuses like this will the USPO maybe change. Once there is a list of abuses then the problem can be highlighted in a stronger manner.

Re:Free Patent Foundation

Maybe some organization to keep track of "prior art" would be helpful.

The Software Patent Institute [spi.org] keeps up a searchable prior art database, and they accept submissions.

Or there could simply be a non-profit organization that accumulates patents (as silly as possible) and then force companies to cross-license for all open source software.

I'm not out to force companies to do anything they don't want to do, but as far as the cross-licensing part goes, and all silliness aside, (parden the pun), I'm trying to promote the notion of a cross-license agreement at www.openpatents.org [openpatents.org] as a method of solving (some of) the problem of software patents.

If people who use their patents defensively could cross-license their patents with each other, that larger total portfolio could help protect them against patent lawsuits. (And of course they wouldn't have to worry about lawsuits among themselves. Well, at least patent infringement lawsuits about covered uses.)

...or sue Micro$oft for a couple billions...

Microsoft is one of the good guys on this issue. They have never used their software patents offensively. You can perhaps complain about them for other reasons and in other contexts, but IMHO it's not appropriate to complain about them as far as software patents are concerned.

Reexamination -- An Opportunity for Reform!

Reexamination (the process of subjecting an issued patent to further review) is probably one of the best and worst ideas the Congress created in recent years. It has substantial upside to make the patent system self-healing, but at present, it isn't enough.

For some intuition, this is precisely the process by which the Compton's patent was neutered.

Here's the deal. Reexam can happen three ways: (1) the applicant asks for reexam; (2) a third party asks for reexam; or (3) the commissioner asks for reexam.

What happens is this: if the Office decides to reexamine the patent, it is treated for these purposes as thought the patent had never issued. No presumption of validity. The examiner makes another search (help them! help them! this may be the last chance!) and issues another official action, probably rejecting all the claims. This is the upside.

The downside is this: the applicant may then Amend his claims to narrow the scope of his patent to avoid the prior art. Unlike a trial on the patent, where a binary valid/invalid decision can be made -- and in which the patent can disappear forever, reexam permits a good lawyer (and he's nuts if he doesn't get the best) to tailor the patent to just barely distinguish the prior art, but still "read on" a meaningful royalty base.

There are limits to what he can do, because he is stuck with his present patent specification. (He can't make up new limitations out of whole cloth -- each element of the new claim must be drawn from the spec). But as I said, a great lawyer could make a deadly asset out of what is presently a harmless patent.

Harmless? How can it be harmless? Well, its like this: McDonnell Douglas had a patent which, if valid, in the next twelve months or so is like having the right to a royalty on sex. If it were what it purports to be, it would be worth untold zillions. Instead of putting every legal body behind a licensing program, they assigned it to an employee. What do you think that highly sophisticated company thought about its validity/enforceability?

At last report, no one has bought a license from this guy. This is because no one has taken his claims seriously, not even the small potatoes folks. No small entity is going to be terrorized by him, because the first defendant will be helped by every major economic force on the planet to assure no powerful judgment of validity is made. In short, this patent is harmless (unlike run-of-the-mill patents -- with respect to which small guys would be on their own and forced to capitulate rather than go broke fighting the good fight) for the ironic reason that, if it were valid and enforceable, it would be too great a commercial threat.

Testimony to this is that the patent issued years ago and has yet to be a meaningful commercial threat.

Bottom line, for a narrow class of patents, reexamination make self-healing the limitations of USPTO novelty-standard examination.

But for many reasons, the process is practically useless for the rest of them. It is absolutely true that reexamination often serves to make a patent much, much stronger. The applicant can disclose all prior art that defendants have raised, distinguish it on commercially irrelevant grounds, and then rewrite the claims to read directly on the prospective defendant's righs. Once surviving the examination, the new patent, as amended, is VERY difficult to avoid, both on infringement and on validity grounds.

Third party reexamination is not effective, because the applicant, not the requestor, controls the process. While the requestor gets to play a bit (and under a recent revision, can play a bit more), the applicant effectively controls the show, and gets to use amendments to "shuck and dive" around any argument it can't win straight up.

Recent attempts to empower the Office to make the process more practically useful have been vehemently opposed by the so-called "independent inventor" lobby. I believe their conduct to be misguided -- certainly for the software patent market. Strengthening the reexam process to be more generally useful would go a LONG WAY toward mitigating the harms of software patents issued as the result of limited examination.

More important, there is a substantial interest in the Congress to do this -- and a large lobby that would support it. Reform has been proposed and seriously debated, and limited versions have been passed. If a strong technical lobby were also to get behind it (particularly the open source community), it would go a long way toward neutralizing the "little guy" appeal of the independent inventor lobby. More important, if the position were stated articulately, it would be an EXCELLENT foothold to begin making the case against sotware patents generally.

So, there it is. Reexam is good for a limited class of off-the-scale-dangerous patents, like Comptons, the bunny and the Y2K patent. Indeed, for such patents the process is virtually self-healing. It has dangers, and reexam (or reissue) is a strategy this patent owner should have considered in the first instance.

More important, getting behind the PTO on reexamination, and pushing for more effective Reexamination reform in the Congress would also be an EXCELLENT political vehicle to begin the process of making real patent reform changes.

Another observation. If the slashdot community wanted to target particular patents, and found slam-dunk prior art, a reasonably inexpensive means can be found to force those patents into remission. Perhaps we ought to get our leaders and foundations to invest reources investigating this little-used process to shut down egregious patents that are not only "bad for the community," but also genuinely "bad for the patent system because they are clearly invalid." This might be useful, particularly for patents that genuinely threaten the open source community.

Off with his head

I'm amazed no one has mentioned a critical step -- fire the examiner who approved the patent with as much fanfare as possible. Sure, in the best of all worlds, we could get a patent office with sane policies, but that doesn't appear to be an option right now. A good substitute is just to "encourage" examiners to actually check the patents before they approve them. Saying "you approve an idiotic patent, we fire you" would go a long way toward reforming the patent system.

--Kevin