Re: 1-Click, Short-Click, Long-Click, More-Clicks (New Microsoft Patent)

[Tim Jackson]

Rahul Dhesi wrote on Wed, 28 Apr 2004 20:10:43 +0000 (UTC)....
> But as we have discussed before, Tim, the USPTO being under-resourced
> (is that even a word?) is not by itself the problem.

It's not the whole problem, but it's a significant part of it.  To be 
fair, it does seem as if the Bush administration is starting to try to 
do something about this aspect.

> Rather, the
> problem is that, even knowing full well that the USPTO is under-
> resourced and unable to properly determine whether or not a certain idea
> is truly new, both the USPTO and the courts continue to treat published
> and granted patents as if the USPTO was indeed doing thorough searches
> of prior art.  
[snip] 
> Right now every patent implicitly bears an undeserved "prime" rating.

Yes.  In fact, it's explicit, not implicit.  It stems from the 
statutory presumption in US patent law that a patent, once granted, is 
valid.

As I've argued before, I believe that presumption should be abolished.  
No other country has such a presumption.  They recognise that no 
matter how good their patent offices are, there will always be prior 
art that they are unable to find.

It would still be up to a challenger to show invalidity, but he would 
only have to do so on the normal standard for civil litigation, by the 
"preponderance of the evidence".  He wouldn't have to climb the 
mountain of showing "clear and convincing" evidence, which currently 
makes it very difficult to overturn a bad patent in court.

In addition, as I've also argued in the past, the US needs more 
effective procedures for third parties affected by bad patents to 
oppose them.  Again, many other countries do this rather better.  At 
present in the US, the only possibilities are to apply for re-
examination (a procedure with a built-in bias in favour of the 
patentee, so few people use it).  Or to wait until the patentee 
sues you, or threatens to do so, so that you can take action in court.  
That's not good enough (and court action is very expensive).

I noted a few months ago that a recent report by the FTC made similar 
recommendations.  See <http://tinyurl.com/3cg24>.

-- 
Tim Jackson
news@winterbourne.freeserve.invalid
(Change '.invalid' to '.co.uk' to reply direct)
Absurd patents: visit http://www.patent.freeserve.co.uk