Peer-to-Patent Project Begins Post-Issue Review

The Electronic Frontier Foundation (EFF) and Public Patent Foundation (PubPat) started the ball rolling with public interest challenges to patents via reexamination. Now the Center for Patent Innovations at NYLS have set their sights on post grant reviews. By leveraging their peer-to-patent system, the group hopes to help discover prior art that will invalidate issued claims. "Our citizen-experts have already found a number of items of prior art relevant to patents being asserted againt Microsoft, Google, and Facebook." (Post-Issue) The project is looking for law students to help. Not relying on altruism — Article One Partners has offered $50,000 for helping invalidate several Rambus patents. "If one or more references show a patent to be invalid, the first respondent who found the research earns the reward." (Article One) If you do find the Rambus prior art, please post a note here first so that we can all sell short.

* Note — I am an Advisory Board Member of the Center for Patent Innovations (although I did not know about this recent development until it had already been released).

39 thoughts on “Peer-to-Patent Project Begins Post-Issue Review

  1. Bread, law and practice in the USA is so different in the USA from that in the rest of the world that I hardly know where to begin. In the Roman/civil law world, there is no Presumption of Validity, no File Wrapper Estoppal, no Due Process, and no Equity. Suppose I see a competitor’s WO with claims that lack novelty but cover my product. What do I do. I could 1) prepare my defences, but otherwise do nothing 2) wait till it grants, then oppose or 3) Tell the EPO Exr about the novelty-destroying art. Option 3) might not be such a good idea, if Applicant then goes to issue with a narrower claim, valid over the art but still covering my product, and also files a divisional. Option 2) might be better. Wait till he issues with no divisional, Then destroy his patent in opposition proceedings. Germans file 70% of all oppositions at the EPO. Why do they do it? Will Germans use USA Peer to Patent? I very much doubt it. Does the EPO drown in Art 115 observations? Most certainly not. Actually, quite the reverse.

  2. My profuse apologies again – it would indeed help if I reviewed Art 115 EPC.

    It appears that the topic concerns the propriety of an application between the Office and the applicant and what adverse and/or beneficial affects may happen from the inclusion of interested third parties.

    As the Office currently does not allow its examiners adequate time to review available material, one particular issue I see is the allotment of time for the examiner to review what may become an avalanche of information from concerns adverse to the applicant. MaxDrei, does the EP have protections built into Art 115 EPC from such potential abuse?

  3. “But they usually find out that they shouldn’t have done, and would have been better off keeping their powder dry,…”

    MaxDrei,

    I apologize for the confusion, as I took the above statement of yours to indicate the actor to be not a member of the public, but rather the applicant or her counsel.

    Perhaps you can expound on what you meant by better off not using Art 115 EPC?

  4. You tell me Bread but bear in mind that the observer under Art 115 EPC is a “member of the public” not the Applicant himself. In what sense is that ordinary member of the public under an equitable obligation to 1) The Applicant or 2) The PTO or even 3) the remaining members of “the public”. You tell me, cos as usual I’m confused.

  5. “But they usually find out that they shouldn’t have done, and would have been better off keeping their powder dry, and not telling the PTO Exr about their knockout art.”

    surely you are not advising anyone to not share material knowledge with the Office MaxDrei, that would be simply inequitable.

  6. Alan, Europe has been there, and done that. Article 115 EPC has been up and running since 1978. People use it. Have done from the start. But they usually find out that they shouldn’t have done, and would have been better off keeping their powder dry, and not telling the PTO Exr about their knockout art. Have I missed something? I still haven’t seen:

    1. The magic feature of US style PtP that will result in it succeeding where Europe hasn’t, and

    2. Any discussion from the sponsors of US PtP, what is wrong with Art 115 EPC.

  7. “Why not role this into the examination process before the first office action…”

    Guh, peer review pilot project?

  8. Why not role this into the examination process before the first office action so that the inventor can deal with (or fold) any additional art at that stage without having to lay out another $15+K for the reexam?

  9. “GS-5s make more than $25/hour. Is the PTO making an exception for you 6 (i.e., paying you less than everyone else)?”

    Before or after taxes? Idk, maybe my math was off a bit. Any number above 20 is outrageously large for someone like me, my dad made 12 17 years into the job.

  10. “Now if you include the fees of the outside counsel that might be reviewing the found patents, then that is another story.”

    How much does it cost to skim 20 abstracts while watching reruns of law and order?

  11. Map P.,

    Public Searcher has already said it, but I have never heard of anyone paying anything close to $50k for a validity search. Around $10k tops is it.

    Now if you include the fees of the outside counsel that might be reviewing the found patents, then that is another story.

  12. Map P.,

    Public Searcher has already said it, but I have never heard of anyone paying anything close to $50k for a validity search. Around $10k tops is it.

    Now if you include the fees of the outside counsel that might be reviewing the found patents, then that is another story.

  13. Why, I wonder, is this so-called public interest group expending its efforts trying to knock out patents asserted against GOOGLE, Facebook, and Microsoft? I would think these three behemoths are perfectly capable of fighting their own battles. It used to be that “public interest” groups and progressives tried to help the little guys against Big Business, but the modern era appears to be quite different. It’s the elites against the rest of us, it seems.

  14. Is it just me who has noted that the majority of these “hindsight, pro bono quarterbacks” tend to be persons having technical knowledge that exceeds that of a PHOSITA?

  15. “The project is looking for law students to help.”

    What kind of help are they looking for from law students? I’ve looked at all of the referenced pages and haven’t found anything regarding students and this project. I would like to help, if possible, but don’t have the experience or knowledge to just jump in and start searching.

  16. “Is the PTO making an exception for you 6”

    No, 6 just spends about half the time he should doing searches. That way he effectively doubles his income (BigGulps are getting more expensive every day ya know – and you gotta have time to get your drink on).

  17. Alun, Good to see you alive and lurking around. Hope the hair is a little shorter and the winter coat is a little cleaner these days now that you’ve left the PSR and entered the real world (I guess prosecuting counts as that).

  18. “I can guarantee you if I saw some claims that I felt confident I could tank with a little bit of searching and someone was offering me a lot of cash to do it, I’d just pour myself a STRIKETHROUGH*beer*STRIKETHROUGH UNDERLINE*white wine, smoke some crack, put on some satin panties*UNDERLINE and have some fun.”

    “Why not? The pleasure achieved STRIKETHROUGH*knowing that you’ve helped turn a baloney patent into worthless dust*STRIKETHROUGH UNDERLINE*from rolling around in whipped cream after doing the above*UNDERLINE has a value of its own. And that is all that a genuine artist really seeks.”

  19. Although nothing was ever found to invalidate the ‘one-touch’ patent, the bounty was actually split between those who were deemed to have found the closest references. One of these was a British patent agent called Stuart Geary. Sadly, the last I heard he was seriously ill and unable to work, so I am very glad he got the money.

    Before either of us moved into prosecution (him in the UK and myself in the US by then) we worked for a well known patent search company with it’s base in the UK. I am happy to point out that I was the one who trained him (as a searcher, not as a patent agent), which is probably as close as I will ever get to one of those bounties!

    Nonetheless, I knew many professional searchers and other former searchers (i.e. patent attorneys and patent agents that used to be mere searchers) that had a shot at that bounty and at others. It’s a bit like the lottery, with a big payout if you collect, but probably no payment atall, except that actually having existing skills at patent searching increases the odds of winning, and instead of buying a ticket you have to invest your own time.

    The biggest actual search fee I have encountered was $20,000 for a clearance search for a standard, and that kept a whole team of searchers busy for weeks, although you could adjust that figure upwards for the cost of living.

  20. “Personally I make more money searching for prior art than recycling cans. It’s around 25$ an hour or something in that region. Kind of lame when it should be more like 60 or more considering the quality of art found.”

    GS-5s make more than $25/hour. Is the PTO making an exception for you 6 (i.e., paying you less than everyone else)?

  21. Public Searcher DIP “Dotting the i’s, crossing the t’s, and avoiding the shortcuts is how searching generates the best results.”

    Nobody claimed otherwise, DIP. My point was that a good searcher does all that you describe and more. And consistently good results (i.e., good patent-destroying art) is highly dependent on the “more.” In the abstract, nobody knows what you mean when you say that “dotting the i’s, crossing the t’s and avoiding shortcuts” is what searching is all about.

    Searching begins, of course, with an understanding of claim construction. Are engineers good at claim construction?

    The next critical skill is a deep understanding of the art and the variety of terms that might be used.

    But the difference between a hack and a true pro (by which I mean an “artist”) is that the pro can look at that first pass of results and see a new trail worth pursuing that could not have been envisioned prior to the search. Perhaps a name pops up in the search. Perhaps that person can be searched to see what else he/she has done. Perhaps that person can be contacted for information.

    “engineers do not work for free”

    The engineers who are out of jobs may want to sharpen up on their searching skills. If there’s money to be made finding good art (especially in a post-KSR world) then it might be a way to earn some income on the side.

    I can guarantee you if I saw some claims that I felt confident I could tank with a little bit of searching and someone was offering me a lot of cash to do it, I’d just pour myself a beer and have some fun. Why not? The pleasure achieved knowing that you’ve helped turn a baloney patent into worthless dust has a value of its own. And that is all that a genuine artist really seeks.

  22. I am a full time professional searcher and I strongly disagree with the statement: “Searching is an art form, as anybody who’s done a fair amount of it will tell you.”

    I know this is what everyone has been conditioned to believe and I’ve heard it plenty of times, but searching is all about putting in the time using proven methodologies. Dotting the i’s, crossing the t’s, and avoiding the shortcuts is how searching generates the best results.

    If the goal is to find art in the shortest amount of time possible, then searching as an art form is an appropriate analogy. This is the style practiced by patentability searchers and examiners. But professionals who are performing clearance or invalidity work review thousands of references using proper methodology. A very different beast!

    Engineers make good searchers, artists do not. And engineers do not work for free, certainly not the ones who are qualified to understand claim language of patents like Rambus. And if they can do that, they eventually transform into patent attorneys where the money is even better.

    Also, please don’t turn this thread into yet another MM bashing event.

  23. ” “some killer but forgotten conference paper is just past the next click.”

    Happens all the time. Searching is an art form, as anybody who’s done a fair amount of it will tell you.”

    Of course as an interested party, Mooney has to say stuff like the above. Its all about the puppet show.

    Art form notwithstanding, if its not there, its not there. People like Mooney, don’t understand the concept of hindsight, just like they don’t understand the concept of claims “reading on.”

    I agree with Dave, the more things change, the more they stay the same. That’s why, contrary to Mooney’s “I h8te old people” rant, people with a ton more experience than Mooney (earned by years in the business) will always be eating Mooney’s lunch.

  24. So the Patent Office has found yet another vehicle to avoid doing their job….great.

    Silly idea though, outside of the screaming hippies that make up these various Foundations, nobody is offering free patent examination services….and hippies don’t like to really work, they just complain a lot and smoke wacky tobaccy.

  25. I think post issueance review and retraction is good especially if they reissue the patent to the actual invention conciever.

  26. “Searching is an art form, as anybody who’s done a fair amount of it will tell you.”

    Picasso don’t work for free.

  27. “some killer but forgotten conference paper is just past the next click.”

    Happens all the time. Searching is an art form, as anybody who’s done a fair amount of it will tell you.

  28. So instead of commissioning a search company, they’re asking everyone on the internet who’s bored to work for free and only paying one person for results that (presumably) a commissioned search company failed to obtain?

    It’s like playing the lottery only instead of costing a dollar, the tickets cost hours and hours of your time and the prize is not that great anyway.

    I don’t know who’s dimmer: People expecting 100s of people to work for free, or people who think that some killer but forgotten conference paper is just past the next click.

  29. Plus ça change, plus c’est la même chose.

    I remember back in the early 90’s, a $10,000 reward was offered for invalidating references for (as I recall) the one-touch patent. None was ever found. The lesson I took away was, the PTO usually does a pretty good job.

  30. “they realized they could make more recycling cans rather than search for prior art . . .?”

    Personally I make more money searching for prior art than recycling cans. It’s around 25$ an hour or something in that region. Kind of lame when it should be more like 60 or more considering the quality of art found.

    102b’s boys 102b’s that’s where the action is.

  31. “I expect 6K to be collecting his $50k after a 30 second google search…”

    If you read through the fine print it’s a whole lot of rigamarole, and it’s illegal for me to collect :(

    B S BS BS BS

    I would have to have my dad collect or something. Though if I did that it might at least help pay for his nursing home in years to come.

    “If you do find the Rambus prior art, please post a note here first so that we can all sell short.”

    Also, if you do google some art then don’t sell it for 50k. Get 250k-1M (or more) from Rambus to sit on it, or simply collect $ from the other side directly.

    Don’t kid yourself thinking that Article One isn’t taking the lions share out of the real reward.

  32. Mad P.,

    Even “blank check searches” don’t reach 50K. At most 10K and those are few and far between. The majority of budgets for invalidity searches are in the few grand region. A 50K reward is definitely enough to perk the interest of professionals, particularly those who normally are forced to split the pie with several layers of management.

    The hard part is probably the fight over what qualifies as a winning citation. Does a collection of 103 art qualify? Do you have to wait years for a final ruling after years of appeals?

  33. Those sites that used to put out bounties for prior art to invalidate certain “infamous” patents were just trying to prove a point. It’s easy to look at claims with hindsight and say, “There’s no way that’s patentable! I’ve been seeing that for years!” But when you rigorously search for the prior art, it almost never turns up. The anticipated, and confirmed, failure to invalidate the patents was meant to rebut criticism of the quality of patent examination. Seems no one paid attention.

  34. Also, if someone found a patent that invalidated Rambus’ patent, they would be a fool to contact a middleman like Article One and limit themselves to $50,000. Why not bring your patent to the party looking to invalidate, and command a much, much, much bigger return?

  35. Who participates in such endeavors? Searchers were certainly paid much more than $50,000 by those looking to invalidate Rambus’ patents, and the searchers were paid regardless of what prior art was found.

    This will work about as well as Patent Busters . . . what, they went out of business because armchair searchers were tired of putting in hours worth of work for no return . . . they realized they could make more recycling cans rather than search for prior art . . .? Oh well, another (terrible) idea whose time never was.

  36. “Article One Partners has offered $50,000 for helping invalidate several Rambus.”

    Another incomplete sentence…

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