Wednesday, November 16, 2005





















FROM HELL'S HEART, PUBPAT STABS AT THEE! Well, it seems that at the twighlight of Forgent's enforcement effort on their JPEG patent (US 4,698,672), the Public Patent Foundation ("Pubpat") has put an onion in the ointment by filing a reexamination request with the USPTO. For those that may not be familiar with the organization, Pubpat is a not-for-profit legal services organization that "represents the public's interests against the harms caused by the patent system, particularly the harms caused by wrongly issued patents and unsound patent policy." PUBPAT provides the general public and specific persons or entities otherwise deprived of access to the system governing patents with representation, advocacy and education.

The most interesting part of this move by Pubpat is that Forgent's JPEG patent will expire at the end of October, 2006. By filing this reexam request, Forgent's pending litigations could be open to motions to stay proceedings, based on the outcome of the reexam. And if Forgent has to amend their claims during the proceeding (which, statistically speaking, is a likely outcome), Forgent will have to re-start all of their litigation based on the amended claims. Also, the multitude of companies that previously settled with Forgent will be motivated to review the infringement claims to see if an escape hatch has opened for them.

The other interesting fact is that this appears to be the first challenge to the JPEG patent via reexamination. Considering the history that Forgent has with the industry, and the numerous individuals that claimed to have invalidating art, it's almost shocking that someone didn't pull the reexamination trigger earlier.


The reexamination request (which can be viewed here) cites another Forgent patent (i.e., Compression Labs), US Patent 4,541,012, as invalidating art under 102(b). The reexamination request also insinuates inequitable conduct, noting that Forgent obviously knew about the patent (along with at least 5 other Forgent patents), and yet failed to cite any of them as relevant art under its Rule 56 obligations.

Most likely, the USPTO will grant the reexamination request in the next few months. And once they do, the Forgent patent should join the ranks of NTP, Eolas, and Microsoft's FAT patent as one of the most closely watched reexaminations in the Office.

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