Monday, February 20, 2006

RESULTS FROM THE USPTO'S OPEN SOURCE MEETING: On February 16, the USPTO conducted a public meeting with the open-source software community to discuss issues of patent quality and prior art (the meeting agenda can be viewed here). Specifically, the meeting focused on the recent effort to get the "best" prior art references to the examiner during the initial examination process to improve patent quality, and continued the discussion on issues that were raised in the December 6th meeting. Like its predecessor, the February 16th meeting was open to the public.

Speakers included:

- Jack Harvey, Director of the USPTO's Technology Center 2100;

- John Doll, Director of the USPTO;

- Manny Schecter, Associate General Counsel for IBM;

- Jay Lucas, the Acting Deputy Commissioner of Patent Quality for the USPTO;

- Tariq Hafiz, Supervisory Patent Examiner for Art Unit 3623;

- Kees Cook, Senior Network Administrator for OSDL;

- Marc Erlich, Intellectual Property Counsel for Patent Portfolio Management;

- Ross Turk, Site Architect for SourceForge (who also has a blog detailing
this event);

- Professor Beth Noveck of the New York Law School, the organizer of the Peer to Patent Project; and

- Rob Clark, Deputy Director of the Office of Patent Legal Administration for the USPTO.

The meeting was attended by over 200 people, and was generally well-received. Groklaw has an absolutely stunning blow-by-blow submitted by multiple attendees of the meeting, and needs to be read by anyone interested in this subject (the posts are even more amazing considering that audio recording was prohibited). Topics of discussion included the current state of third-party prior art submissions in pending applications (37 C.F.R. 1.99), as well as an examiner's perspective (Mr. Hafiz) on the examination process.

Some concerns that were discussed included:

"Prior Art Flooding" and the danger that the USPTO would quickly become
overwhelmed by submissions from the public;

"Gaming the USPTO" by bad actors using the system to intentionally obstruct otherwise valid applications; and

"Willful infringement danger," where developers would be reluctant to look at any patent data whatsoever for fear of becoming liable for willful infringement.

It is clear that the USPTO is seriously pursuing multiple fronts in an attempt to improve patent quality for software. I remain skeptical over how effective these policies will ultimately be, but it will be interesting to see the different ideas that come from the current discourse.

See complete Groklaw rundown here.

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