The Federal Communications Commission (FCC) released a report recently on current problems with the patent system and how to reform it, including how to get rid of bad patents through a new administrative procedure that will make it easier for firms to challenge a patent’s validity, and a process of allowing courts to find patents invalid based on the preponderance of evidence.
"A number of these bad patents are targeting individuals who have no financial resources to hire lawyers," Jason Schultz, a staff attorney for EFF, told XBiz. "Those are the ones we are concerned about."
Schultz says that over the past year numerous patent claims have emerged over processes that have been happening in the real world for years, long before the rights to the patents were ever granted. For example, a company recently stepped forward claiming to own the rights to the process of hyperlinking.
The EFF's new patent initiative intends to pinpoint certain patents that have been approved by the PTO and then request a reexamination. The process first entails a formal letter submitted to the PTO regarding a particular patent. Then the patent holder gets a chance to respond to the request for reexamination. The EFF gets another rebuttal after that, and then it is up to the PTO to review the patent and make another determination regarding its validity.
"Any patent can be challenged at any time under a reexamination procedure," said Schultz. "Essentially it is up to the examiner."
In order to get a patent application approved in the first place, the holder must prove to the PTO that it is a novel idea and that its creation entailed a creative or inventive "leap."
EFF cooked up the idea for its proactive stand against certain patents because in many cases, if certain companies or individuals contest patents directly to the PTO they could detract from their own legal defense if litigation becomes the next step.
"The reason EFF needs to do this is because any argument that is raised or could have been raised during this reexamination process cannot be raised as a future defense," said Schultz. "You get one bite of the apple. So a lot of companies are worried because they could take the chance here, but if they lose, they could lose legal weapons. Whereas EFF can be a more neutral party."
And while Schultz is critical of some aspects of Acacia Technologies Group's patents, he believes that some of their claims might actually be valid.
"There are pieces of their patents that are really bad," he added. "A lot of the technology has been around for a long time. The general idea that they control audio or video over a distribution network is absurd."
Shultz went on to claim that Acacia and many other companies are out to build themselves "war chests" by collecting fees from some of the smaller players in the industry.
"More and more, people are using software and Internet technology to express themselves," said EFF Staff Attorney Wendy Seltzer. "Patent owners who threaten this expression are creating a chilling effect on free speech."
EFF will announce later this month which patent companies it intends to target. EFF will post those company names on a specific website and encourage people to submit evidence of prior art.
"When we feel we have a strong enough case, then we will take all the prior art we have collected and file it with the patent office," said Schultz.
