Monday, August 07, 2006

All-Encompassing Patents

What is it with these blanket patents that seem to be making the rounds? Blackboard just got one (read a writeup here) and is already suing another company because of it (another writeup here). And the one obtained by Friendster was pretty broad as well (read a Wall Street Journal article on it here).

Perhaps I'm a bit dense (or maybe I can just blame this awful head cold) but doesn't this type of patent just enable a monopoly? I'll admit, I didn't read the legal text (I tried to but it's just too jargon-y for me) but based on what everyone else is saying, it sure seems that way to me.


Nye! said...

I can't comment on the patents you mention specifically, but with respect to your last comment--"doesn't this type of patent just enable a monopoly?"--the answer is yes. That's expressly what patents are for. They permit the patent holder to exclude others from using the technology disclosed in the application.

Karen said...

Hah! I knew being a patent examiner would come in handy someday.
Currently, it takes about 2-3 years for a patent to go from application to allowance - it differs based on technology, but it's rare for something to move through the system quicker. During that time, a technology might become mainstream, but the only art we can use to prevent a patent from being allowable is that which existed prior to the filing date of the application.
In this case, the Blackboard patent's effective filing date is 1999, so even though it's common to see e-based learning today, it was very new then, and that's probably why nothing was found to pre-date it. The Friendster patent was filed in 2003, so the same concept applies.
Also, in the first link, the article gives the patent's summary of invention. Technically, all that can be enforced as infringement is what is actually in the claims. The spec can contain all sorts of ideas and information that is not claimed.

Kat said...

Nye!: Ooops, I didn't phrase that so well. :) I was thinking more in terms of a market monopoly and hadn't really thought of the fact that a patent does indeed give the holder a type of monopoly. According to various sites I found through Google (yes, I'm a bad librarian, shamelessly using Google), that type of monopoly is often called a patent monopoly. In my head, there should, ideally, be ways around a patent monopoly so that there isn't also a market monopoly - so that Blackboard isn't the only company that can offer any type of online course management system. I skimmed a few blogs (admittedly, not always the most reliable resources) the other day and it sounds like this one is going to be quite hard to get around.

So, is there a difference between a patent monopoly and a market monopoly, or am I just making all this up? I suppose I should be a good librarian and do some real research.

Karen: I'd forgotten you were a patent examiner! Wow, I knew it took a while for patents to go through, but Blackboard filed that one way back in 1999? Then it does seem quite likely that there probably weren't any other similar systems at that time.

I guess it comes down to the fact that I'm really just going on what the posts I've read about Blackboard's patent seem to be saying, and this one doesn't seem to make what Blackboard has patented all that innovative, but then again, perhaps it was back in 1999. I should do some research in more reliable sources, perhaps.

karen said...

I looked into the Blackboard patent's history a bit...

The effective filing date of 30 June 1999 is for a provisional application that was incorporated into their regular application (filed 30 June 2000). The first non-final rejection on the case was sent in October 2003, so that's a reasonable timeline (most of the cases I'm examining now were filed near the end of 2003).

The applicant has up to 6 months to respond to the action, which they took, then another non-final was sent in June of 2004. After another amendment by Blackboard, a notice of allowability was sent in July of 2005, and the patent was issued 17 January 2006.

Some technologies move faster; in general, if more than one non-final action is sent out, the case will be in prosecution for a long time. That, and responses are often returned to the office at the very end of the allowed time, which drags out the overall prosecution time.

Kat said...

Okay, an explanation of part of Karen's earlier comment, which said: "Also, in the first link [this one], the article gives the patent's summary of invention. Technically, all that can be enforced as infringement is what is actually in the claims. The spec can contain all sorts of ideas and information that is not claimed."

I asked Karen in an email to explain this more thoroughly, figuring that I was the only one who didn't get it. Her explanation, however, may be useful to more people than just me, so here it is: "the main parts of a patent are the drawings, specification, and claims; the spec contains things like background, the summary of invention, description of the drawings, and a detailed description of the invention."

So what we really need to be examining is the actual claims because that is the enforceable part. The summary of invention, which is part of the spec, is not enforceable.