In another step forward for EFF's Patent Busting Project, the United States Patent and Trademark Office (PTO) last week issued an official rejection of all sixteen claims of the Test.com Internet test-taking method patent [6,513,042]. The PTO granted re-examination last year after EFF submitted a petition that included several examples of prior art from a company called IntraLearn that had not previously been part of the PTO record. In light of that prior art, the PTO has now found that all sixteen of Test.com's claims obvious and non-patentable.
So what's next? Well, if Test.com wants to fight to save its patent, it's going to have to come up with some pretty clever arguments to somehow explain why it wasn't obvious to offer online test-taking in 1999, especially in light of the materials we submitted showing that companies like IntraLearn were already doing so. The other option is to somehow attempt to narrow their claims down to something innovative and non-obvious that they did invent. However, given the basic nature of the method and underlying technology, it's hard to imagine what, if anything, they could salvage. When they do respond, we'll make sure to post it on the site and let you decide for yourselves what to make of it.
IPBiz is waiting to see how PubPat and FTCR make out on the WARF / Thomson re-exam.
For all the talk of the need for patent oppositions, it is evident that some people are taking advantage of the re-examination procedure.