Freesteel Blog » Patent Part Deux

Patent Part Deux

Wednesday, December 14th, 2005 at 6:56 pm Written by:

While at Euromold we got into a discussion with somebody about these problematic Software Patents taken out by Surfware.

They said that if the patent is still pending you can pay a fee and file evidence of prior art with the US Patent Office which they will take into consideration when they re-examin it before granting the patent. It’s always worth doing this, he said, because the patent office will do one of two things:

1) They will decide that what you have presented is prior art, and so the patent will be rejected.

2) They will decide that your work is not prior art and is not covered by the patent being applied for, and this is enough evidence to discourage potential litigation against the pursuit of your own work.

You have to be aware that patent disputes can continue in litigation until one side runs out of money or confidence, and caves in. It’s nothing to do with right and wrong and there is no legal aid.

It’s also true that the system is heavily skewed towards people who take out patents. After a lot of phoning around the different offices of the US Patent Office bureaucracy and some lucky online links, we found out how to make a Third-party submission in published application Under 37 CFR 1.99, which looked like it fitted the bill. We were even lucky to find that we were in the limited 2 month window when such things can be filed.

Unfortunately we then discovered that according to Section 1.52 of the same manual, we couldn’t submit our evidence as a third party in the form in which it was. You see, it needs to be on “sheets of paper that are the same size, not permanently bound together, and Flexible, strong, smooth, non-shiny, durable, and white”.

Our publications are in the form of a shiny one page brochure and a video.

Generally speaking, the Patent Examiners like to have their world properly organized. Prior Art, according to them, is only to be found in (a) Other patents which people have applied for, and (b) proper authentic academic publications. It is not to be observed among the chaos of activity that people in the world actually get up to, generally inventing and sharing ideas. All human creative activity is supposed to be moderated through the patent system and the academic system, and nowhere else. That’s the law. There is no such thing as learning and doing something yourself.

So our only recourse is to send copies of our material to Surfware and their patent attorneys Akin Gump Strauss Hauer & Feld LLP, who appear to be a vast legal firm bloated on Iraq Reconstruction Contracts and other aspects of Washington DC corruption, and appeal to their duties under 37 CFR 1.555, which says:

“Each individual associated with the patent owner in a reexamination proceeding has a duty of candor and good faith in dealing with the Office, which includes a duty to disclose to the Office all information known to that individual to be material to patentability in a reexamination proceeding. The individuals who have a duty to disclose to the Office all information known to them to be material to patentability in a reexamination proceeding are the patent owner, each attorney or agent who represents the patent owner, and every other individual who is substantively involved on behalf of the patent owner in a reexamination proceeding. The duty to disclose the information exists with respect to each claim pending in the reex¬≠amination proceeding until the claim is cancelled.”

I really hope I don’t have to find out more about how corporate American law firms work. I really don’t. I expect it won’t be pretty.


  • 1. Freesteel&hellip replies at 4th November 2009, 8:00 pm :

    […] time as technical blogging like this — I asked someone about it at Euromold 2005 and took action. I received effective confirmation about it from their General Counsel of Surfware Inc in February […]

  • 2. Freesteel&hellip replies at 20th November 2012, 5:54 pm :

    […] consult some early and embarrassing 2005/2006 entries in this blog, specifically Patent Schmatent, Patent part deux, and Nothing […]

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