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Topic: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY (Read 25515 times) |
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Isaac
Senior Member
Posts: 3472
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #35 on: Feb 7th, 2006, 6:35am » |
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on Feb 7th, 2006, 6:15am, Cibola wrote:I guess that depends on what one means by "badly." Enitities as MercExchange and NTP have been criticized as trolls who impede innovation through operating more by litigation than discovery of new things. Here, eBay filed a re-exam asserting prior art that had already been analyzed in a litigation. The prior art was not even publicly available at the time MercExchange filed its application. MercExchange's patent was available to eBay at the time eBay infringed. In its actions in the re-exam, eBay did nothing "illegal" but yet its actions did not bear out the contention that MercExchange's patent claims were well-known in the art.
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Your point that the art was not publicly available is one thing we disagree about the importance of. A 102(e) reference is evidence that the legally required number of people knew about the art at the filing date of the reference. That's as "well-known" as the law requires.
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Separately, in mis-stating the contents of the first paper by Quillen and Webster, I would say eBay did behave badly. People may say just about anything in law reviews, but stating something to the Supreme Court is a different matter. There is a duty to verify. There are at least two levels of bad behavior. First, the statement is not an accurate presentation of what Quillen and Webster said in 2001. Second, shepardizing the paper would have revealed that a number of authors, including Quillen and Webster, had found the 97% number deficient. |
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We agree completely about the cite to the Q+W paper. There is simply no excuse for citing 97% number. In fact even citing the 85% number is inexcusable. Further the line of argument implying that a high issue rate means that the patent at hand is suspect is bogus anyway given the successful defense in court.
I am also uncomfortable with the labeling of patent holders as trolls, and with attempts to change patent law to prevent these alleged trolls from meaningfully asserting their patents. A troll appears to be a patent holder that cannot be made to cross license.
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Isaac
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Cibola
Newbie
Posts: 25
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #36 on: Feb 7th, 2006, 11:50am » |
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Both the reexam and Quillen 97% remarks appeared in the eBay brief section concerning the "public interest" test in the traditional injunction inquiry.
A different "public interest" issue is that both eBay and RIM are presenting significant products to the public, while the patentees are not. From the Philadelphia Inquirer about NTP and RIM:
"What's the harm to NTP?" Yoches said. "They're not actually making the stuff. At best they're a weak competitor. What's the harm to the public? You've got a lot of these BlackBerrys out there. You've got a strong public interest in only having them stopped if the patents are valid."
This issue goes to the requested briefing on Continental Paper.
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bvigorda
Newbie
Posts: 30
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #37 on: May 17th, 2006, 5:05am » |
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Hi All,
I'm not an attorney or in the IP profession in any way, but I've been lurking through your posts on this subject and finding it fascinating.
Based on your apparent enthusiasm for you field, I'd want any one of you for my IP attorney.
Anyway - I just can't help making this comment regarding the following statement:
"Wagner also has adopted the "97% of all applications are granted" number of Quillen's first paper, even though Quillen himself dropped the 97% in a paper published one year later, and years before Wagner adopted the 97% number. This is way more than a byline issue or nice guy issue."
I hope none of you are Bush fans because what I want to say is this reminds me of the way he handled his campaign to go to war with Iraq.
So - please excuse my intrusion and enjoy the rest of your discussion uninterrupted.
Gail
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Cibola
Newbie
Posts: 25
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #38 on: May 20th, 2006, 12:47am » |
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Two updates:
#1. eBay won the case before the Supreme Court, illustrating that there is not a big risk in telling whoppers to the Supreme Court.
#2. Professor Kimberly Moore, who has endorsed the 85% number of Quillen/Webster, has been nominated to fill a vacancy on the Court of Appeals for the Federal Circuit. Professor Moore is separately the editor of the journal in which the 97% and 85% numbers are published.
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JimIvey
Moderator
Senior Member
 
Posts: 2584
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #39 on: May 20th, 2006, 8:38am » |
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on May 20th, 2006, 12:47am, Cibola wrote:| #1. eBay won the case before the Supreme Court, illustrating that there is not a big risk in telling whoppers to the Supreme Court. |
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This statement, on its face, is ludicrous. Either you don't fully understand what "risk" means or you've forgotten the most basic precepts of logic. Drawing a generalized conclusion of probabilities (which is exactly what risk is) from a single trial is ... well, ludicrous.
That's even under the presupposition that your premises are correct -- that eBay did in fact tell a whopper to the SCt and that the SCt relied on that whopper in its opinion. I don't have confirmation of either of those, but the general nature of the statement itself renders the credibility of those premises rather dubious.
Regards.
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James D. Ivey
Law Offices of James D. Ivey
http://www.iveylaw.com
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