Last September, Paul Allen sued eleven major Internet companies for patent infringements on four patents created by his Interval Licensing company.
Our previous piece gave a complete run down of the history of the case and a brief insight into how Paul Allen earned and spends billions of greenbacks.
On December 10, Allen’s and Interval Licensing’s original case was rejected by a Seattle federal judge who said it was too vague.
US District Court Judge Marsha Pechman told them they had until December 28 to file an amended suit. On Monday, Allen and Interval Licensing refiled an amended attempt. The defendants named in the original and amended suit are Apple, Google, Facebook, eBay, AOL, Netflix, Yahoo, Google’s YouTube, OfficeMax, Office Depot, and Staples.
Paul Allen was a co-founder of Microsoft with Sir William (Bill) Gates. Possibly by sheer chance, Allen somehow left Microsoft off the list of defendants in the case. Allen’s supporters claim his suit is worth $500 million from the eleven defendants and tons more money from many smaller companies. This appears to be a fishing expedition for big bucks, rather than proving the patents are valid.
The Seattle Times has a sample iTunes screen shot which Allen is claiming his company – Interval Research, Palo Alto, California – had prior art in their patent fillings. Allen founded the company in 1992 and closed it down in 2000. Thus, Allen and company waited over nine years to attempt to start to protect their original patent filings.
Prior Art is what stops the approval of any Patent Application, or negates it from being held as valid by a court.
The most obvious flaw in Allen’s amended suit is seen in the screen shot above of Exhibit A of the Amended Brief. The process shown is not unique to neither Allen nor the eleven defendants, including Apple iTunes. USPTO (US Patent and Trademark Office) defines something that is patentable this way:
In order for an invention to be patentable it must be new as defined in the patent law, which provides that an invention cannot be patented if:
(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country more than one year prior to the application for patent in the United States . . .
Groklaw, the leading source for computer litigation knowledge, ridicules Allen’s case. They say, "This document [the amended refiling] is Exhibit A for why software patents are an oozing pimple on the nose of the US legal system."
To start the questioning of Allen’s amended legal brief, one needs only to look at the history of Mosaic.
If we were heading the legal team for the defendants, our first witness would be Marc Andreessen.
The big problem at the USPTO is that the patent examiners have less than three hours to read a Patent Application and search for prior art.
Until three years ago, the USPTO examiners could not use Internet search engines.
Thus, when Allen’s and Interval Licensing’s original patent applications were granted, any prior art information was not readily available to the patent examiners.
Clearly, the USPTO patenting process no longer protects innovative creations.
Let us be very specific here: A patent has become nothing more than a rubber stamp passing the whole thing over to the courts to figure out what might be true and then collect money from somebody. In other words, today’s Patent Law is a litigation make-work program to protect the welfare of the legal profession and the courts.
BSN sees the fundamental problem with software patents as there are very few actually independently conceived new creations. Most every software algorithm and software step-by-step process is depending on something someone else did long ago. It is as if the software patent review process at the USPTO lacks somebody with very much historical knowledge of the computing industry.
Pictured above: Paul Allen’s megayacht dubbed Octopus.
Since the protection of new creations is the life blood of the computing industry and every nation’s economic multiplier, to underfund and understaff any patent office is in effect giving away a country’s treasure to well financed plunderors with their high powered legal teams.