just_n_examiner: Trolls?

just_n_examiner (

just_n_examiner) wrote,
@ 2008-07-15 22:40:00

Trolls?
I've noticed a few stories over the last few months about what some might call 'trolls'. Basically, stories about people who seem to be trying to abuse the intellectual property system.

Doubtless there are many other stories like these running around the net.

I thought the stories made for some interesting reading.

http://www.reallivepreacher.com/node/186

http://www.audioholics.com/news/industry-news/blue-jeans-strikes-back

http://accrispin.blogspot.com/2008/03/victoria-strauss-copyright-scam-us.html

(Post a new comment)

(Anonymous)
2008-07-16 09:53 pm UTC (link)

These sorts of things have been around for ages. Lemelson and Hyatt were also such trolls.

It's amazing to me how many people get taken in by these sorts of things, but then most people are utterly ignorant about IP. The Singapore company sending letters to the US to enforce their Singapore patent just highlights this even more.

I'm reminded of several years ago when a US company patented a particular strain of Basmati rice that they had engineered to grow in Texas. Many many Indian people were very indignant that the US was trying to steal the rights to their rice by getting a US patent! BTW, that strain of rice is available for sale as Texmati rice, and while it is better than ordinary rice, it is nowhere as tasty as real Basmati.

(Reply to this) (Thread)

	(Anonymous) 2008-07-18 01:29 am UTC (link)
	Stop making me hungry!! I need 5 counts by monday, crap! (Reply to this) (Parent)

(Anonymous)
2008-07-19 05:15 pm UTC (link)

I only read the Blue Jeans Cable article. I've bought product from them several times, and I would highly recommend their product to anybody not willing to pay $$$ for AV cables that 4x overpriced.

That being said, Blue Jeans Cable is being sued by Monster cable ... hardly the classic definition of a troll (i.e., a non-manufacturing entity going after a manufacturer of a product). Typically, the troll is the David and the ones being sued are Goliath. This is the complete opposite.

I read the response from Blue Jeans Cable to Monster's initial letter, and they (Blue Jeans Cable) seem to be well positioned. I very much doubt that he is going to get all the information he is looking for, but it doesn't hurt to ask.

(Reply to this) (Thread)

(Anonymous)
2008-07-20 03:16 am UTC (link)

Same poster ... decided to read the other two articles. Both write about what I would best describe as scams. The first one is demand letter/invoice from some patent holder (no patent named) regarding a certain basic web technology.

The third article is just a plain scam ... trying to get people to register copyrights for websites under the guise of bad things could happen if you don't.

Anyway, all and all, I wouldn't describe any of the situations described in these articles as involving trolls.

(Reply to this) (Parent)(Thread)

	(Anonymous) 2008-07-21 04:00 pm UTC (link)
	could the party sending that demand letter without a real patent to back it up be sued for false marking? I remember reading about false marking suits on patentlyo and found it rather interesting... -MM (Reply to this) (Parent)(Thread)

	juris diction? (Anonymous) 2008-07-22 02:33 am UTC (link)
	WOuld a company based in Singapore be subject to any court outside of Malaysia? could you sue them in the US for "false marking" if they are requesting a license that only covers Malaysia? do they even have a law against "false marking" in Malaysia? some questions for those lawyers out there...just a lowly Examiner relaxing after a long count monday... (Reply to this) (Parent)

	(Anonymous) 2008-08-01 12:26 am UTC (link)
	hey what happened to all the posts about the wonderful SPE's? boo to censorship :( (Reply to this) (Thread)

	(Anonymous) 2008-08-01 01:53 am UTC (link)
	http://just-n-examiner.livejournal.com/2007/06/20/ (Reply to this) (Parent)(Thread)

	(Anonymous) 2008-08-05 05:12 am UTC (link)
	OK JPE, I won't come back again. I noticed other people feel the same way. There lots of other forums, you know, even if there is some truth in what you are saying. I supposed this comment will get screened as well. At any rate, I wish you well. (Reply to this) (Parent)

Policy

just_n_examiner
2008-08-01 02:27 am UTC (link)

Boo indeed. I hate to have to waste my time screening comments, but there are some things that I get tired of seeing.

Among them, personal attacks and broad generalizations.

Anyone who wants to complain about a problem they've had prosecuting a patent application, have at it. One of the reasons for having this blog is to get the news from the attorney's side of the fence. I've said before that hearing what kinds of problems attorneys are having makes me better able to avoid causing those problems. It gives me an idea as to what I should be looking for when I am reviewing other examiners' actions.

Comments that complain that 'All examiners do this' or 'All attorneys do that', on the other hand, and those comments are likely to get screened. Post a personal attack against another commenter, ditto.

Believe me, I've got other things that I'd rather spend my time doing than policing comments here, but it seems to have (once again) gotten out of hand, so apparently I'm forced to do it, again.

Please folks, just a little bit of respect, going both ways.

JPE

(Replies frozen)(Parent)

Hey JPE, what do you think of US Patent 7,407,089?
(Anonymous)
2008-08-06 08:47 pm UTC (link)

P.S. MPEP 1701 says you can't express any opinion on issued patents, so mums the word... but here's claim 1:

1. A method of determining a customer's packaging preference in a conventional point-of-sale retail location, wherein the point-of-sale retail location includes a person who performs the packaging of items purchased in the point-of-sale retail location for the customer, comprising the steps of: identifying the customer using a customer identifier; and retrieving available container packaging preference information for the purchased items using the customer identifier for the identified customer.

How many umteen pairs of eyes did that one get past? Sorry state of affairs at PTO. Patent Prospector has the story.

(Reply to this) (Thread)

Re: Hey JPE, what do you think of US Patent 7,407,089?
(Anonymous)
2008-08-06 10:36 pm UTC (link)

well, interpreting the claims in view of the spec for that patent, it seems that it's a system that automatically determines paper or plastic based on an RFID card held by the customer... essentially eliminating the horrible inconvenience of having to speak one word or the other, and of the cashier having to speak BOTH words with "or" in the middle!

However, had I examined it, I would have encompassed verbal identification of the customer in the "broadest reasonable interpretation" and made the applicant distinguish in the claims before allowing (assuming I found no other prior art).

I don't think any court would construct those claims to include verbally asking "paper or plastic?" And it's really kind of a useless invention aside from that, so... who cares?

(Reply to this) (Parent)(Thread)

	Re: Hey JPE, what do you think of US Patent 7,407,089? (Anonymous) 2008-08-06 10:37 pm UTC (link)
	If you couldn't tell by the lack of a login name that the above was not JPE, well, it wasn't JPE. It was me, MM. -MM (Reply to this) (Parent)

	Re: Hey JPE, what do you think of US Patent 7,407,089? (Anonymous) 2008-08-07 02:31 am UTC (link)
	Why bother with "verbal identification". How about facial recognition: Sam goes to the Giant food store for years. Alice the cashier/bagger recognizes Sam's face and retrieves from her brain a memory that Sam always likes paper. Humph, I wonder if that has every happened before? IPGuy (Reply to this) (Parent)

Re: Hey JPE, what do you think of US Patent 7,407,089?
(Anonymous)
2008-08-08 01:36 am UTC (link)

I think the "hook" for this claim isn't just identifying a preference of "paper" or "plastic" for a particular customer. Instead, I think the claim is directed to identifying a packaging preference based upon the item ("container packaging preference information for the purchased items"). For example, I assume that for some items, you don't care about plastic or paper, but for some items you want plastic (i.e., something that leaks) and for some items you want paper (i.e., for heavier items).

This invention won't win anybody the Nobel prize, but patentability never rested on how important an idea is, just whether it is anticipated and/or obvious.

(Reply to this) (Parent)(Thread)

Re: Hey JPE, what do you think of US Patent 7,407,089?
(Anonymous)
2008-08-08 02:58 pm UTC (link)

I don't think the "hook" would fly legally for several reasons:

1) Limitations are not generally read into the claims from the preferred embodiments, and such a reading (that the preference is based on the particular items in the current shopping trip) is not necessitated by the claim in this instance. All that is required by a literal reading of the claim is that generic "items" were "purchased" and the "preference information" is used for them.

2) The claim never apparently recites that particular items are identified. If identification of particular items is an essential part of the claimed invention, then perhaps the claim is incomplete and likely invalid on its face. See 2172.01 Unclaimed Essential Matter.

3) The Reasons for Allowance states that the prior art "fails to disclose utilizing the preference information at the point-of-sale retail location for purposes of container packaging preferences." Obviously the Examiner was not focussed in on particular itentified items.

4) Applicant characterized the claims as requiring that "the items being purchased at the point-of-sale retail location are packaged into appropriate containers by a person who packages the items for the customer. The claims are amended to clarify *this aspect* of the invention which sets it apart from the teachings of...." Particular purchased items are apparently not in applicant's own characterization.

(Reply to this) (Parent)

Re: Hey JPE, what do you think of US Patent 7,407,089?
(Anonymous)
2008-08-07 11:48 am UTC (link)

Well, the application was examined by a junior examiner (26 issued patents per PatFT this morning) and was signed by the SPE. The question is how much time does an SPE get to train the lower-graded (i. e. GS 5 - 11 or so) examiners? What happens on "count monday" when all the junior "end loaders" (confession: I was a notorious end loader) have a pile of work for the SPE? And what if the count monday is for the last pay period for a quarter? Not saying this is the case here, but it is a reality.

This is the fix the office is in: poor supervision of inexperienced examiners and, because production and action taking are the cardinal principles of patent eaxamination, substituting a "reject, reject, reject" policy to squeeze in quality gives the worst of both worlds: "junk" patents being issued, yet meritorious inventions being rejected of "junk" rejections using poor prior art.

And a long time primary and former ex-colleague tells me that the Office is planning to cut off examiner hiring next year. Oh, this is going to be fun!

And, to keep this post on topic, I don't think anyone will have any problem from IBM; I don't see them going into the E. D. of Texas to sue Safeway, Kroger, Albertson's et al. But it is just patents like this issued to independent inventors and small to mid sized companies that have brought such troll suits as a speculative attempt to pry out cash from deep pockets. This is all the more reason for a fundamental reform of the PTO to bring it up to a position of respect. IMHO, the biggest challenge is not legal education (sorry JD) but Search, search, search... you can't make good rejections without good prior art. If this means that more time is needed per application, then so be it. I also think that the deemphasis of classification and reliance on text searching as the key search productivity tool has been a big mistake. It is often a concept that uses the same old words, but in a new context that is the objective of a search. Also, there is the problem of establishing and proving "Ordinary skill in the art" and common practices, something that is frequently absent from a predominent reliance on patents for prior art.

-GratefullyExExaminer

(Reply to this) (Parent)(Thread)

Agree, agree, agree!
(Anonymous)
2008-08-07 12:38 pm UTC (link)

The search is the most important part of the process, but the powers-that-be would rather offload that to the applicant (fox in charge of the henhouse phenomenon). And if the PTO Examiners don't do the search and can't become even remotely technically competent in most arts (class 5 excepted), then what useful function would Examiners serve? (As JD apparently points out, they are not even especially competent legally - and that is understandable - we don't necessarily expect them to be Harriet Meiers... oh, wait, bad example.)

The way I see it, either Examiners work to become true experts in the art (I don't mean receiving GS-15 pay), or we're better off with a registration system. Or alternately, let's just roll over and give China all our technology right now, and hasten the inevitable downfall of the U.S.

Don't we all have to do our part? Or is that burden just on patent applicants? (Yes, the applicants *do* need to do a better job, as this patent demonstrates.)

(Reply to this) (Parent)

	Re: Hey JPE, what do you think of US Patent 7,407,089? (Anonymous) 2008-09-28 07:27 pm UTC (link)
	What about 5,677,521 as prior art (Reply to this) (Parent)

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