Tuesday, December 16, 2008

Article One praised, sort of

In a post titled Kuddos to Article One Partners, Gene Quinn writes I have a feeling that Article One might be more successful than I orginally anticipated, and even if that is not the case at least they are trying to do something productive about the growing problem of bad patents. So I applaud Article One for the effort and wish them well.

The words growing problem of bad patents sound like something taken out of Quillen and Webster. With the application acceptance rate now below 50%, one might inquire about the "growing" problem of improper rejection.

One comment to the Quinn post got to the heart of the issue, which is beyond what Quinn was discussing:

Instead of trying to change the law, let's focus on making the law we have actually work. The basic quid pro quo of disclosure for limited exclusive right is in place. We need to have the system applied so that the disclosures are in line with the priveleges bestowed. A strong 112 enforcement would clear up both the nebulous disclosures and reduce the broad overclaiming rampant in certain sectors. If we change the laws per industry, what happens for each suceeding wave of innovation? We will end up perpetually repeating the segragation of laws and will create a burdensome thicket. Building silos does not work, nor should we aim to isolate one sector of innovation from another. Cross-fertilization is an innovative well-spring that should be encouraged, not squashed.

Examination quality needs to happen the first time through. A second set of eyes is a stop-gap band-aid measure at best. Perhaps the legislature should order the Office to obey the laws we have, including executive orders that require officials to evaluate whether the current systems have something to do with the problem. The willful ignorance of the Office pertaining to its beloved production system coupled with its offensive power grab is the root of the system's failure. Let's focus on that rather than what anyone, including trolls, decide to do with their lawful property.

The commenter's remark about "first time through" resonates in Deming and previous statements by LBE. Re-examination is a form of product inspection, and a true solution is to correct problems in production, as Deming would tell you if he were still alive. Thus, re-examinations are preferred to Intellectual Ventures (as Quinn says: I do still believe that reexaminations are the way to go) but, if hypothetically in Quinn's world there is a growing problem of bad patents, re-examinations are not the way to go to solve that underlying problem.

Quinn himself did not discuss some real but not-yet-crystallized problems with what Article One is doing, described variously as front running or market manipulation.

**UPDATE. 17 Dec**

The 271Blog mentioned published application 20080270255 to Cheryl Milone (published October 30, 2008, based on application 12/058653) which notes of priority:

This application is a continuation of U.S. patent application Ser. No. 11/933,343, filed Oct. 31, 2007 which claims the benefit of Provisional U.S. Application Ser. No. 60/920,395, filed Mar. 28, 2007 and this application also claims priority to U.S. patent application Ser. No. 11/933,362, filed Oct. 31, 2007, the contents of which are incorporated herein by reference in their entirety.

There was an IDS filed for the '653 application which referenced Poltorak's published application 20020103654.

Of the '343 application, a PCT was filed: PCT/US08/58794. The first named inventor of the '343 is listed as Cheryl Bab. An IDS filed 15 May 08 for the '343 is far more extensive than that filed for the '653. Within non-patent literature, there is a reference to BountyQuest and a reference to Mark Lemley [Probabilistic Patents, Journal of Economic Perspectives, Spring 2005]. Some references in the IDS are given only as URLs. The IDS should be viewed by the interested reader!


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