From: jpinkerton
Sent: Tuesday, August 24, 2004 9:52 AM
I would agree with Wayne - I lurk on that list but I wouldn't
dare make a
contribution, as it's all been said by the big guys anyway.
It occurs to me that the patent Microsoft are talking about
is only "applied
for". And given the fact that it is an absolutely obvious technology
according to folks on the ietf-mxcomp list - can some strong
representation
be made to the people in the patent ofice who judge these
things? I am
clue-less as to how patent application decisions are made in
USA - but I
believe it would be thrown out in UK or Europe, and possibly
many other countries as well.
I can't speak much about other countries, but I have some experience in
the U.S. patent system as a hardware engineer with a number of patents
and very limited experience with European applications. The workings of
the U.S. patent system probably seem bizarre to those who are new to it.
A typical patent examiner gets only a day or two of total time to grant
or deny an application. Often, in order to get the applicant to more
fully explain why the invention is not covered by prior art and is not
"obvious to one of ordinary skill in the art" (our obviousness
criterion), the examiner rejects the entire application on the first
round. Since the examiner has limited time to do his job, it is almost
a necessity to force the applicant to do as much of the investigation as
possible. While not desirable, this is how the present U.S. system
works.
The applicant then comes back with an updated application and the real
consideration starts. Right from the outset, the situation is unequal.
The examiner has a limited number of hours to consider the application,
but a large corporate assignee (individual employees of the company are
the applicants and the rights are assigned to the company for USD$1) has
skilled attorneys with far more resources. The patent attorneys
probably have more experience with the patent system than the examiner.
Good patent attorneys can usually craft applications that allow them to
argue past the prior art and obviousness barriers. This has little to
do with technical merit and more to do with smart legal strategy coupled
with the limited time an examiner has to review it. What remains is for
the examiner to decide which claims to accept and reject.
The claims are the legal heart of the patent and are the basis for any
future legal actions. The rest of the patent is just a combination of
problem summary, historical paper and, in fact, a teaching document.
The applicant fully discloses the invention to the public, at least in
theory, in exchange for exclusive, limited-term use of that technology.
However, none of this disclosure gives them any specific rights. The
only rights granted are those included in the claims. An applicant
makes numerous overlapping claims that allow an examiner to pick from a
"menu" as to precisely which claims he will allow. The examiner thus
can determine how narrow or broad the patent actually is by which claims
he ultimately allows.
In the end, many, many patents are granted that do not, IMO and in my
specific area of expertise, pass the tests of obviousness and being
sufficiently different from prior art. I have seen many patents granted
in my area where the technology claimed has been used in commercial
products of other companies for years, which in our system constitutes
public disclosure. A lot of these patents would probably not survive
legal challenge, but the cost of bringing such challenge is in excess of
USD$500K and approaching USD$1M. The result is that unless you are
talking about corporate behemoth vs. corporate behemoth (as in Rodan vs.
Godzilla), baseless patents are allowed to stand because no one has the
resources to challenge them. It goes without saying that if Microsoft
is granted a patent, whether or not it has any merit, and they see that
patent as important to their intellectual property portfolio, you better
have nearly unlimited resources if you care to challenge it.
Many intelligent readers will cry "foul", this is not fair. It isn't,
but that is our system.
--
Seth Goodman