For years people have moaned and groaned about the goings-on at the U.S. Patent and Trademark Office, especially in the high-tech field. The practice of awarding patent protection to software has been reviled almost universally (except by the patent holders, of course). Think of the bad press Amazon.com got for its patent on “one click” ordering (see, for example, “Boycott Amazon!“).
While reform of the USPTO is desirable, staffing it to properly handle a myriad of technologies and a deluge of applications would cost more than a tax-avoiding U.S. population would bear. Thoughtful people, though, always have felt that the judiciary would throw out the most egregious patents should anyone ever try to enforce them. After all, the first defense anyone would make against patent infringement would be that the patent was invalid, wouldn’t it?
Well, they try to. But evidently there are judges who have a myopic view of the USPTO and seem to believe that they wouldn’t award a patent if it weren’t valid. One of these is District Court Judge James Zagel in Chicago. In a recently decided case brought by Eolas Technologies (a company with one employee, no products but a handful of patents and more than 100 investors) against Microsoft, the judge twice refused to let the Redmond company present evidence that the particular patent was invalid.
Eolas says that Microsoft’s ActiveX technology infringed the patent (which describes, in part, “a system allowing a user of a browser program . . . to access and execute an embedded program object”) that was granted in 1998 for work originally done at the University of California. If the patent is valid, then the claim is true.
Microsoft could show that its work on what became ActiveX began in the 1980s and was ready to call an independent third-party witness who developed similar, but earlier, technology, also at the University of California. Zagel refused to let the jury hear this evidence showing the patent was invalid.
It’s hoped that the appeals court will be more skeptical of the USPTO, but then we always thought that a district judge should be able to recognize an invalid patent. We were very wrong, and we should be very afraid. Hundreds of patents are granted every day. Many, perhaps most, have no real commercial application. But some could alter drastically the technology landscape and deeply affect your pocketbook.
Tip of the week
The patent under dispute, No. 5,838,906, can be viewed at the USPTO Web site. Remember that you understand technology in ways the patent examiner – and especially the judge – do not. Read the patent, then write your congressman and demand patent reform.
