[IP] Tough road for patent-busters
http://www.cnn.com/2004/TECH/biztech/07/16/busting.patents.ap/index.html
Tough road for patent-busters
SAN JOSE, California (AP) -- A small company called Acacia Research
Corp. went after some of the biggest names in broadcasting last month,
suing nine companies for an estimated $100 million for allegedly
violating its patent on streaming video.
That earned Acacia a spot on what the Electronic Frontier Foundation
considers a top 10 list of intellectual property ignominy: patents the
online civil liberties group is seeking to strike down as unwarranted
and harmful to innovation.
"Good luck," said Paul Ryan, Acacia's chief executive. "Their chances
are pretty remote."
Part fighting words. Part truth.
Only 614 of the nearly 7 million existing patents have been revoked,
according to the U.S. Patent and Trademark Office. Some 3,927 patents
have been narrowed since the agency began conducting re-examinations in
1981.
The hardest part for challengers is qualifying for a re-exam at all.
A challenger must find written evidence, called "prior art" in patent
parlance, showing others developed the technology before the patent
application was filed -- a formidable task that consumes a cottage
industry of patent researchers and lawyers.
One-time startup BountyQuest set out in 2000 on such a quest. It wanted
to debunk questionable patents by letting interested parties offer
rewards of $10,000 or more for hard-to-find prior art. But there were
few takers and the business failed.
The EFF is similarly relying on volunteers -- but without offering
rewards. That's a surefire recipe for limited success, said Bradley
Wright, a patent lawyer with Banner & Witcoff Ltd. "There are not a lot
of people willing to spend free time to research for prior art."
Even when prior art is presented, re-exams are rare. The patent office
held only 6,136 between the time the agency was authorized to do so in
July 1981 and the end of March 2004, said Brigid Quinn, a patent office
spokeswoman.
Intellectual property
The Acacia patent the EFF objects to is on "the transmission of digital
content via the Internet, cable, satellite and other means."
Another on its list, owned by Clear Channel Communications Inc., covers
the distribution of digital recordings right after concerts.
"These companies are trying to claim a monopoly on the tools of free
expression," said Jason Schultz, staff attorney at the foundation.
The group's list, chosen from 200 suggestions solicited through its Web
site, focuses on patents it contends are being unfairly used to demand
licensing fees from rivals or individuals.
Acacia and Clear Channel defend their patents and their right to seek
royalties for intellectual property they say they spent millions to
develop or buy.
Clear Channel bought the so-called Instant Live patent two months ago.
It plans to charge an "extremely small" licensing fee -- $1 per event
in some cases -- to artists who want to distribute freshly minted CDs
after their concerts.
Acacia's digital media patents, granted to the founders of Greenwich
Information Technologies in the 1990s, weren't enforced until Acacia
bought them in 2001. Acacia has since secured dozens of licensing deals
with companies ranging from adult entertainment sites to The Walt
Disney Co. It sued the large cable and satellite providers for patent
infringement last month.
Ryan rejected the foundation's charges of bullying. "We're not trying
to restrict anyone's freedoms, but we'd like to be paid for the use of
our technology," he said.
Schultz and fellow self-anointed patent-busters hope their crusade will
raise awareness about concerns the patent office is issuing baseless
patents because it lacks the resources to thoroughly investigate patent
claims.
"It's too easy to get a patent and too expensive to defend," he said.
Greg Aharonian, publisher of the Internet Patent News Service and
founder of www.bustpatents.com, questions the validity of a patent
granted to Microsoft Corp. in June covering the use of the human body
to transmit power and data, or as an "intrabody communications"
network.
Even the Federal Trade Commission recommended in an October report that
changes in the patent system need to be made, including improvements
for challenging patents.
The patent office, under the auspices of the U.S. Department of
Commerce, has taken steps to improve the process but acknowledges the
system's shortcomings, including staffing constraints -- about 3,500
examiners face nearly 200,000 patent applications every year.
"It's a balance between devoting the right amount of time and doing a
quality job, and unfortunately, they can't take forever," patent office
spokeswoman Quinn said. "We're already taking longer than we want."
Patent specialist Aharonian isn't satisfied with that response.
"There are plenty of people trying to bust patents. If patents are
really stupid, they will go down, but it'll cost money and take some
time. The real question is how do we help the patent office so they
don't issue the crap in the first place?"
Copyright 2004 The Associated Press. All rights reserved.This material
may not be published, broadcast, rewritten, or redistributed.
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