Sunday, August 19, 2007

On re-examination of patents

Buried in the back issues of The Patent Lawyer (Robert J. Ambrogi, Editor-in-Chief) is an article on re-examination by Daniel W. McDonald containing a comment about the re-examination of the Berkeley/Eolas patent:

For example, the $521 million jury verdict in the Eolas Technologies v. Microsoft case is at risk, due to the PTO's decision to grant reexamination of that patent. Reexamination is a potent but underused weapon....

The re-exam in the Eolas matter was ordered by the USPTO director, with input from W3C and a claim chart by Pennie & Edmonds. The arguments in that claim chart were rejected in the re-examination, and Eolas ultimately prevailed without amending its claims.
See for example the 2005 IPBiz post Does the Eolas re-exam result make it harder for Microsoft in court?

The article did discuss the cost advantages of re-examination, noting that an ex partes re-exam can be filed for tens of thousands of dollars. IPBiz notes that it is also less expensive for a patentee to respond to an ex partes re-exam than to a litigation or to the proposed opposition (cancellation) proceeding. It is more or less like responding to an Office Action in normal prosecution, and the arguments are done on the papers (no depositions).



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