Sunday, March 01, 2009

On James Hansen

Fox News has a piece: NASA's Chief Climate Scientist Stirs Controversy With Call for Civil Disobedience.

The article touches on the issue of government employees taking stands on political issues. It might foreshadow some complexities in peer-to-patent, when competitors take stands on patent applications.

**UPDATE. M. Webbink has a comment below, including the text: Those competitors cannot manufacture prior art; they can only ferret out prior art that already exists.

The issue is not about "manufacturing" prior art. It's about stirring up dust with irrelevant prior art, and forcing inventors to spend money to defend themselves from such irrelevancies.

The IT people absolutely will not discuss the director-ordered re-exam of the Eolas patent, wherein pieces of prior art furnished by the illustrious W3C with the help of the high-priced law firm of Pennie & Edmonds did NOT lead to the alteration of a SINGLE claim in the Eolas/Berkeley patent. After seeing defeat on several fronts, Microsoft settled with Eolas.

The California stem cell people will not discuss what really happened in the re-exam of the three WARF patents. The prior art wasn't manufactured, but it was found to be not enabled (i.e., science fiction). The declarations of experts, all competitors, were found conclusionary. But WARF had to spend money to show the prior art was science fiction and the comments of the experts lacking any evidentiary basis.

The approach of Article One is downright scary. As posted previously on IPBiz -->

"RickyJames" seems to be Ricky Roberson. See also Rickyjames Says WOO - HOO !!! which includes text:

I submitted 79 different examples of prior art on the GRMN study and had only a handful rejected as not relevant. The legal nuances of what constitutes prior art, and especially INVALIDATING prior art, are apparently subtle. The patent that was my personal favorite and that I thought would be totally invalidating apparently wasn’t, from a legal standpoint. Some of my patent submissions were deemed legally not relevant even when I couldn’t tell a difference from the patent I had submitted just before it. Ultimately I submitted tens of US Patents for consideration to AOP and none of them were the one that got me the GRMN prize. Only when I kept going and dug into WIPO patents did I come across the winner – and I didn’t even know it when I found it. It was just one more item in a batch submission I made one week.

Such dull-wittedness was manifested in Jaffe and Lerner's discussion of prior art, wherein the one significant example they gave of the USPTO missing prior art was copied from Greg Aharonian (by Jaffe and Lerner) and wasn't even prior art to the claims in question. A law review had already pointed this out, but no one was listening.

Amateur hour, featuring self-serving competitors, at the USPTO will cause a net consumption of resources. As the Hansen case illustrates, not everybody agrees on the facts. We need an impartial USPTO evaluating things, without getting flooded with biased opinions from people who wouldn't know prior art if it bit them.

See also

The convenience of not remembering history when discussing patent reform


Blogger MarkW said...

Hansen's situation and PeertoPatent are not similar. In my view patent applicants actually benefit from their competitors acting in self-interest in an attempt to find prior art that limits or denies claims in a patent application. Those competitors cannot manufacture prior art; they can only ferret out prior art that already exists. Whether motivated by concern over the patent system (not that great a motivator) or by limiting their competitors claims (a significant motivator), the approach taken by PeertoPatent works to help the patent system achieve its ideal purpose, i.e., only granting patents of merit.

M. Webbink
Center for Patent Innovations
New York Law School

4:34 AM  

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