One Reason Why The USPTO Granted Ridiculously Stupid Internet Patents: Patent Examiners Were Banned From Using The Internet

from the wtf dept

Fri, Feb 10th 2012 1:34pm — Mike Masnick

We already reported on the surprising but good news ruling out of East Texas, that Eolas' crazy patents were judged invalid by the jury. However, Alex Howard's writeup about the ruling includes a crazy tidbit that came out during the short trial that deserves separate attention:

One interesting detail that emerged in the case was that the U.S. Patent Office didn't have access to the Internet in 1994 and was apparently forbidden from going on the Internet in 1997, which would make research into prior art in cyberspace somewhat of a challenge.

I'm not sure I'd use "interesting" as the adjective there. More like insane. I mean, it's pretty well-known that many patent examiners focused solely on other patents or journal articles as the key sources of prior art, rather than what was actually happening in the field, but being forbidden from going online is just crazy. Luckily for the internet, this was still a time period when most tech companies believed that software wasn't patentable -- something that changed the following year when the ridiculous State Street ruling opened the floodgates. While certainly some really bad patents (like Eolas') made it through, just think how much worse things would have been if there were as many internet/software patent filings from 1990 to 1998 as there were after 98.

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Filed Under: internet, patents, uspto
Companies: eolas, google, yahoo

98 Comments

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ChurchHatesTucker (profile), 10 Feb 2012 @ 1:52pm

I'm honestly stunned
I've been bitching about examiners being unable to google for years. I didn't realize it was a job mandate.

Who was responsible for this bit of genius?
[ link to this | view in chronology ]
Jeon, 10 Feb 2012 @ 1:54pm

I don't understand the state street case at all. Can you do write-up in layman's terms?
[ link to this | view in chronology ]
- Mike Masnick (profile), 10 Feb 2012 @ 2:04pm
  
  Re:
  I don't understand the state street case at all. Can you do write-up in layman's terms?
  
  The super simplified (perhaps unfairly) version is that the court basically said "hey, we there's no problem with patenting 'business methods' even though everyone thought there was." And that open the floodgates to both business method and software patents.
  [ link to this | view in chronology ]
  - Anonymous Coward, 10 Feb 2012 @ 9:08pm
    
    Re: Re:
    The holding in the case was that there was not, and never had been, a categorical rejection of "business methods" under the Patent Act of 1952 (which was a codification of prior atatutory and common law) from the class of subject matter embraced with the scope of 35 USC 101.
    
    As Judge Rich, writing for the entire panel, aptly noted, prior cases had never directly confronted the issue presented in this case because those case holdings were based upon other sections of the patent law, namely, Sections 102, 103 and 112.
    [ link to this | view in chronology ]
- Hephaestus (profile), 10 Feb 2012 @ 2:39pm
  
  Re:
  Basically, State Street Bank filed a lawsuit against Signature Financial Group for violating a patented method for doing what IRS regulations allowed under the law. It was an accounting-business method of avoiding taxes and doing reporting. The ruling allowed for business methods to be patented.
  [ link to this | view in chronology ]
- Rob8urcakes, 10 Feb 2012 @ 6:29pm
  
  Re:
  I 2nd that request.
  
  It's always a greater pleasure to read the idiot-proof version of a Court decision - specially if it's written by someone as talented as Mike Masnick.
  *Rob washes brown stain from nose
  [ link to this | view in chronology ]
Anonymous Coward, 10 Feb 2012 @ 1:55pm

SHOCK! In 1997, pretty much every company and government agency did not permit the use of the internet for various reasons. You have to think back and remember that the internet was still not "commercial" in 1994, and not "on every desktop" in 1997.

How old are you again Mike? I would expect a slam like this from maybe a teenager who wasn't around for history, but you seem to be old enough to actually remember this stuff first hand.
[ link to this | view in chronology ]
- silverscarcat (profile), 10 Feb 2012 @ 2:01pm
  
  Re:
  You kidding? 1994, my elementary and high school had dial-up internet, and by 1996, it had broadband (granted, compared to today, it was slow as molasses, and no wikipedia).
  
  We'd play multi-player games on the school's network.
  
  Oh, and so you know, the school that I went to didn't have more than 200 people in it from K through 12th grade.
  
  In a town of less than 500 people...
  
  In the Northern Great Plains...
  
  10 minutes (straight south) of the Canadian border.
  
  The cable TV in town was only 22 channels.
  [ link to this | view in chronology ]
- Anonymous Coward, 10 Feb 2012 @ 2:02pm
  
  Re:
  Um i was around in 94 and had the internet. I was 8 at the time. I used it, as did everyone else in my family. My little brother at the age of 6 used it.
  
  Also it was on every desktop in 97. Not everyone paid for internet access but it was still there. Just because you were oblivious to the facts doesn't mean the rest of us were.
  [ link to this | view in chronology ]
- Mike Masnick (profile), 10 Feb 2012 @ 2:03pm
  
  Re:
  SHOCK! In 1997, pretty much every company and government agency did not permit the use of the internet for various reasons.
  
  In 1995 I had internet access at the company I worked for.
  
  But either way, we're not talking about "a company." We're talking about patent examiners in charge of understanding the state of the art. And, even before the internet was allowed for commercial use, it was used as a research tool. That the PTO examiners were not allowed to use it until 1997 is criminal.
  
  How old are you again Mike? I would expect a slam like this from maybe a teenager who wasn't around for history, but you seem to be old enough to actually remember this stuff first hand.
  
  In 1997 I knew how big the internet was. That the USPTO did not is downright scary.
  [ link to this | view in chronology ]
  - silverscarcat (profile), 10 Feb 2012 @ 2:42pm
    
    Re: Re:
    Remember Geocities? That was the best way to start up a website back in the day.
    [ link to this | view in chronology ]
    - Rez (profile), 10 Feb 2012 @ 2:51pm
      
      Re: Re: Re:
      But only if you could blink your way to success.
      [ link to this | view in chronology ]
      - PaulT (profile), 11 Feb 2012 @ 4:35am
        
        Re: Re: Re: Re:
        Not true. You also had to know how to use marquee and create spinning 3D text gifs. Blinking was not nearly obnoxious enough on its own :)
        [ link to this | view in chronology ]
  - 6, 10 Feb 2012 @ 3:38pm
    
    Re: Re:
    Mike this might come as somewhat of a surprise to you but examiners are basically never allowed to go out and understand what is going on "in the real world" at the time they're doing their examination (although we can certainly use the interwebs now). The reasons are at least 2 things. First, what is going on at the time of examination in the "real world" is usually 2 years + after the filing date. Second, it isn't feasible to have examiners all crawling all over industries to find all their secrits to know about the "state of the art" so we rely on the publications that are made, usually patent publications.
    
    Also like the man said, most gov. agencies didn't use the interwebs back then. Just because you had it at your little company and I and others had it at some of our schools doesn't mean that the whole of the federal government was well equipped with such things. These things do cost money to implement on a huge scale.
    
    "That the USPTO did not is downright scary."
    
    I'm sure they "knew how "big" it was". What they also knew was that a huge ship like the PTO cannot turn on a dime like a tiny company. And government agencies cannot turn on a dollar like a giant company would. To make matters evern worse, at that time iirc congress was taking money from the PTO's fees it was collecting to be able to examine in order to pay for tanks, bridges to nowhere and other general fund expenditures.
    [ link to this | view in chronology ]
    - Anonymous Coward, 10 Feb 2012 @ 4:07pm
      
      Re: Re: Re:
      I can only imagine what it would have been like to conduct a search for prior art using the internet circa the mid-90's. Might someone have a time machine to go back to that time, conduct a search, and then post the results for all to see? Just a hunch, but the internet had not as yet emerged as a major supplier of technical documention available to the world at large.
      [ link to this | view in chronology ]
      - Anonymous Coward, 10 Feb 2012 @ 4:56pm
        
        Re: Re: Re: Re:
        Exactly. Mike can't actually point to one "ridiculously stupid internet patent[]" that was granted in part because the examiners were "banned from using the internet."
        
        It's just more, idiotic, faith-based, mindless, baseless IP bashing from the King of Idiocy himself.
        
        Smooth move, Mikey. What a fucking joke.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 10 Feb 2012 @ 5:34pm
        
        Re: Re: Re: Re: Re:
        agreed
        
        mike satan masnick, because my internet pompousness has determined that you're wrong in each and every way i have to say that i'm disappointed with you. why didn't you supply citations i like such as the voices in my head?
        
        look at all these non-citations i have which are clearly superior to your stupid internet links, i myself work in a patent office and cannot use the internet so how am i supposed to view those links? i'm having to make this post on punchtape now.
        
        i hope satan pees in ur butthole, hitler masnick
        [ link to this | view in chronology ]
        
        Anonymous Coward, 10 Feb 2012 @ 5:38pm
        
        Re: Re: Re: Re: Re: Re:
        great reply, you are truly the smartest person on techdirt, nice job mr anonymous brosef
        [ link to this | view in chronology ]
        
        Anonymous Coward, 11 Feb 2012 @ 9:44am
        
        Re: Re: Re: Re: Re: Re: Re:
        Stop using Tor to talk to yourself.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 11 Feb 2012 @ 9:45am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        (sorry, I meant to respond to the person you were responding to).
        [ link to this | view in chronology ]
      - Anonymous Coward, 10 Feb 2012 @ 5:37pm
        
        Re: Re: Re: Re:
        yeah, using the internet to see if these things already exist like "documents that are metafiles for other documents" is too much to ask the people who are supposed to be trained in using the internet so they can make patents on it.
        
        truly, mike hitler has failed us at techsatan.com
        [ link to this | view in chronology ]
      - Anonymous Coward, 10 Feb 2012 @ 5:38pm
        
        Re: Re: Re: Re:
        prior to the 1990's you could FTP and telnet to sites and download software and files and things of interest.
        
        But nothing "on the net" has EVER been 'leading edge' technology, or new inventions..
        
        prior to that, you were into the days of BBS's that you could log into with your trusty 300 baud modem and again down load SIMPLE games, and simple applications.
        
        The beginning of the internet was not from leading edge technology, is was created from 'hand me downs' from the corporate world. Everyone got their modems second hand from companies who were upgrading, it was business, banking and corporate in general that build the internet as we know it by making their surplus modems and second hand computers available to the general public.
        
        The internet was an interesting and fun place before the "WEB" and "browsers" came about..
        [ link to this | view in chronology ]
        
        darryl, 10 Feb 2012 @ 5:50pm
        
        Re: Re: Re: Re: Re:
        yes, I forgot, that you also had to be at a uni to get 'on the internet', it was primarily an academic net, it was not were innovations were created, it was a way for real people to exchange academic information.
        
        The rest of the world had to deal with BBS's.
        
        In the Computer Science department of the University of NSW we had quite a good computer and network system. All the stuff that occurs on the internet today, were doing done in computer science departments world wide long before they were seen on the internet, they were on computer science departments networks years before that..
        [ link to this | view in chronology ]
        
        Anonymous Coward, 10 Feb 2012 @ 9:19pm
        
        Re: Re: Re: Re: Re: Re:
        This can't be the real Darryl. There are two sentences without a space in-between. Although the paragraph makes little to no sense so maybe it is darryl.
        
        Also in 1994 the rest of the world was on AOL, not BBSes. (BBS's would be a the possessive version of BBS)
        [ link to this | view in chronology ]
        
        michael, 14 Feb 2012 @ 9:22am
        
        Re: Re: Re: Re: Re: Re:
        Well, I checked my billing records and I had internet access in 1993. Back then I had access to Usenet, gopher and archie as well as telnet and ftp. This was before the days of the "web" or google searches. Also, I was not at a university but was a private person. I came up through the BBS days and remember FidoNet fondly.
        [ link to this | view in chronology ]
      - Mike Masnick (profile), 11 Feb 2012 @ 1:01am
        
        Re: Re: Re: Re:
        I can only imagine what it would have been like to conduct a search for prior art using the internet circa the mid-90's.
        
        Not saying that they should have been looking for prior art necessarily. Saying they should have some familiarity with the technology if they're about to issue patents on it.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 11 Feb 2012 @ 6:18am
        
        Re: Re: Re: Re: Re:
        It is a leap of faith that just because examiners may not have been able to use the internet at work for conducting searches for prior art is not the same as saying that examiners were not familiar with the internet and the technology upon which it was based.
        
        Long ago I learned that advancements in technology are examined by the USPTO many years before the technology becomes generally know to the public. For example, the USPTO was dealing with the first working embodiments of transistors and how to make them in the early to mid-40's, and yet they did not come to the fore until many years later as equipment and processes were developed that made their implementation in products feasible.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 11 Feb 2012 @ 9:44am
        
        Re: Re: Re: Re: Re: Re:
        "It is a leap of faith that just because examiners may not have been able to use the internet at work for conducting searches for prior art is not the same as saying that examiners were not familiar with the internet and the technology upon which it was based."
        
        That's not the argument being made, the argument is that examiners would have been better equipped to properly examine patents with the Internet than without.
        
        "Long ago I learned that advancements in technology are examined by the USPTO many years before the technology becomes generally know to the public."
        
        Well, yes, non-contributing patent trolls that develop and contribute nothing are probably already trying to obtain patents on quantum computers and all sorts of potentially emerging technologies as an attempt to profit off of anyone else that does develop them. It's a catch all attempt, they don't know what future technologies will emerge so they attempt to patent all sorts of potentially new technologies based on the latest research to catch whatever does emerge and profit off of it. That's another problem with our patent system.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 11 Feb 2012 @ 9:51am
        
        Re: Re: Re: Re: Re: Re: Re:
        Which is why we need a 'if you don't use it you lose it' provision to patents. Patent trolls should be banned and entities that want to troll, by piling up patents for the sake of suing others that develop (while not providing relevant products themselves) should have their patents invalidated. If you don't sell a product you have a patent on you lose the patent and others are free to freely sell it at will. The patent office shouldn't be about who can grab a patent on the first abstract idea that someone can come up with, like the idea of quantum computers, based on our current knowledge, patents should be granted based on companies that will actually sell the products they have patents on.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 11 Feb 2012 @ 9:21pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Need
        What we need is for the patent system to just go away, permanently. That's what we really need.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 11 Feb 2012 @ 7:52am
        
        Re: Re: Re: Re: Re:
        Not saying that they should have been looking for prior art necessarily. Saying they should have some familiarity with the technology if they're about to issue patents on it.
        
        Of course, Mike is moving the goalposts rather than just admit that he's making stuff up. The headline reads: "One Reason Why The USPTO Granted Ridiculously Stupid Internet Patents: Patent Examiners Were Banned From Using The Internet"
        
        So Mike is clearly saying that THE REASON certain patents were issued is BECAUSE examiners weren't using the internet. And when called out, he can't point to a single patent that wouldn't have issued but for the fact that the examiners weren't using the internet.
        
        Now he's trying to pretend like he was merely suggesting they should have been familiar with the internet. But how does that support his claim that patents were being issued that shouldn't have been? It doesn't.
        
        Typical scumbag, slimeball, idiotic, double-talking fuckwad move. Mike is so desperate to say something--anything--negative about IP law. You are a complete fucking joke.
        [ link to this | view in chronology ]
        
        PaulT (profile), 11 Feb 2012 @ 8:04am
        
        Re: Re: Re: Re: Re: Re:
        "The headline reads: "One Reason"
        
        "So Mike is clearly saying that THE REASON"
        
        I love the smell of self-pwnage in the morning...
        
        No, moron, he says ONE reason, not "the". Meaning that he accepts and understand the existence of other reasons, perhaps even reasons that are more important.
        
        If you're going to criticise others for reading comprehension, at least make sure you have some yourself.
        
        "Typical scumbag, slimeball, idiotic, double-talking fuckwad move."
        
        I also love projection.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 11 Feb 2012 @ 8:59am
        
        Re: Re: Re: Re: Re: Re: Re:
        There is no reasoning behind his "one reason". It is an empty assertion with nothing substantive to back it up.
        [ link to this | view in chronology ]
        
        PaulT (profile), 12 Feb 2012 @ 12:21am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        You really do find yourself pathologically unable to admit you made a mistake, aren't you? Keep digging.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 12 Feb 2012 @ 8:49am
        
        Re: Re: Re: Re: Re: Re: Re:
        No, moron, he says ONE reason, not "the". Meaning that he accepts and understand the existence of other reasons, perhaps even reasons that are more important.
        
        You missed the point. Mike says that it's "one reason" but then does not (and cannot) show that it was actually a reason in any particular patenting decision. He can't even explain how that fact would have had any bearing on this Eolas patent.
        
        Mike has absolutely nothing to back up his claim that it is "one reason." In other words, he just completely fucking made it up. Of course, he won't come into the comments and explain himself or back up his ridiculous, baseless assertion.
        
        Mike is, again, just mindlessly bashing on IP law like a foaming-at-the-mouth idiot. He is proving, once again for the upteenth time, what a delusion, sad, chubby, fucking idiot he is.
        [ link to this | view in chronology ]
    - Anonymous Coward, 10 Feb 2012 @ 10:04pm
      
      Re: Re: Re:
      "First, what is going on at the time of examination in the "real world" is usually 2 years + after the filing date."
      
      IOW, others were perfectly capable of inventing the same thing without the patent well within the patents 20 year length after filing. So the patent was never necessary to begin with and should be rejected since it's not doing much to promote the progress.
      
      "Second, it isn't feasible to have examiners all crawling all over industries to find all their secrits to know about the "state of the art" so we rely on the publications that are made, usually patent publications. "
      
      Searching the Internet != crawling all over industries to find all their secrets. Also, aren't patents supposed to be about state of the art technologies and technological transparency and discovery? Prior patents aren't the only means to uncover prior art.
      [ link to this | view in chronology ]
    - Anonymous Coward, 10 Feb 2012 @ 10:05pm
      
      Re: Re: Re:
      "Also like the man said, most gov. agencies didn't use the interwebs back then."
      
      and you don't see it as a problem that the USPTO, an agency that's in charge of being familiar with and advancing the latest in technological innovation, wouldn't have this?
      [ link to this | view in chronology ]
      - Anonymous Coward, 10 Feb 2012 @ 10:07pm
        
        Re: Re: Re: Re:
        "doesn't mean that the whole of the federal government was well equipped with such things."
        
        Not the whole federal government, but at least the aspects allegedly in charge of technological advancement (ie: the USPTO).
        [ link to this | view in chronology ]
      - Anonymous Coward, 10 Feb 2012 @ 10:08pm
        
        Re: Re: Re: Re:
        "What they also knew was that a huge ship like the PTO cannot turn on a dime like a tiny company."
        
        So if the USPTO can not keep up with the latest in technological innovation then perhaps it has no business being in charge of facilitating such advancement. Maybe we should just abolish patents and abolish the USPTO.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 10 Feb 2012 @ 10:09pm
        
        Re: Re: Re: Re: Re:
        (and, besides, aren't patents supposed to be about the little guy? Aren't they supposed to be to help Joe Startup with his new business? Or is this a tacit admission that they are only designed to help big corporate entities because they can't move fast enough to keep up with the little guys to help them? So then they aren't about helping the little guy).
        [ link to this | view in chronology ]
    - Mike Masnick (profile), 11 Feb 2012 @ 12:59am
      
      Re: Re: Re:
      Just because you had it at your little company
      
      You shouldn't make assumptions.
      
      I was working at General Instrument, a rather large company at the time (later swallowed up by Motorola). In '97 I was working at Intel... and I also had internet access there.
      
      Also... not a "little company."
      
      These things do cost money to implement on a huge scale.
      
      Yeah, but tons of companies had done so.
      
      What they also knew was that a huge ship like the PTO cannot turn on a dime like a tiny company.
      
      Not asking them to "turn on a dime." Saying that if you're in charge of certifying what's "new" it's crying shame if you don't even allow your own employees to know what's new.
      [ link to this | view in chronology ]
- John Fenderson (profile), 10 Feb 2012 @ 2:05pm
  
  Re:
  "You have to think back and remember that the internet was still not "commercial" in 1994"
  
  True. I remember, I was there. Back then, only governmental & educational institutions and their contractors had internet access. If only the USPTO was a governmental institution then they could have enjoyed the benefits of internet access too.
  [ link to this | view in chronology ]
- Anonymous Coward, 10 Feb 2012 @ 2:07pm
  
  Re:
  More conclusive evidence that TAM is a know-nothing.
  [ link to this | view in chronology ]
- Anonymous Coward, 10 Feb 2012 @ 2:08pm
  
  Re:
  1997 was two years after the internet was shoved down everyone's collective throat by the integration of Internet Explorer 6.0 into Microsoft's Windows 95 desktop.
  
  You must be really old if your memory is this spotty.
  [ link to this | view in chronology ]
  - Anonymous Coward, 10 Feb 2012 @ 2:09pm
    
    Re: Re:
    html fail - should be:
    
    1997 was two years after the internet was shoved down everyone's collective throat by the integration of Internet Explorer 6.0 into Microsoft's Windows 95 desktop.
    
    You must be really old if your memory is this spotty.
    [ link to this | view in chronology ]
    - MrWilson, 10 Feb 2012 @ 2:52pm
      
      Re: Re: Re:
      IE 4 came out in 1997. IE 6 wasn't until Windows XP came out.
      [ link to this | view in chronology ]
    - Raven Morris, 11 Feb 2012 @ 2:21am
      
      Re: Re: Re:
      "Windows 95 OEM Service Release 1 was the first release of Windows to include Internet Explorer (version 2.0) with the OS."
      
      MSIE 6.0 was a decade or so later.
      [ link to this | view in chronology ]
- MrWilson, 10 Feb 2012 @ 2:10pm
  
  Re:
  "SHOCK! In 1997, pretty much every company and government agency did not permit the use of the internet for various reasons."
  
  [citation needed]
  [ link to this | view in chronology ]
  - Atkray (profile), 10 Feb 2012 @ 2:35pm
    
    Re: Re:
    His mom wouldn't let him on AOL and he has never quite recovered.
    [ link to this | view in chronology ]
    - Anonymous Coward, 14 Feb 2012 @ 8:51am
      
      Re: Re: Re:
      I was thinking along similar lines, by '94 I had a rather large stack of AOL coasters
      [ link to this | view in chronology ]
- vancedecker (profile), 10 Feb 2012 @ 4:42pm
  
  LOL! WHAT... A... DUMB.ASS.
  It wasn't on every desktop because it took elderly corporate stooges that long to figure it out...
  [ link to this | view in chronology ]
- TtfnJohn (profile), 10 Feb 2012 @ 9:01pm
  
  Re:
  What's appalling is that this is the same group who were judging the validity of software and internet patents who had no access to the technology they were ruling on, in fact weren't allowed to. At least at work.
  
  Complete lunacy. Particularly as other branches of the US Government had helped develop the Internet.
  
  I hate to tell you this but where I worked there was access on every desk in my department in 1997 and on about half of them in 1994. So to say that pretty much every company didn't permit it is false. I personally know of many brokerage firms who were early adopters as the Web grew and became more valuable to them.
  
  There may not have been ADSL to homes in those days but there was certainly HDSL to businesses and other technologies available such as ISDN. And, I can also tell you that governments got the best of connections for the Internet from suppliers as that would come in very handy later as ADSL and cable were extended to homes.
  
  It's still utterly stupid and appalling that those making decisions about software patents weren't allowed to access the technology they were making judgements on.
  [ link to this | view in chronology ]
- Lawrence D'Oliveiro, 10 Feb 2012 @ 11:38pm
  
  Re: You have to think back and remember that the internet was still not "commercial" in 1994 ...
  Yes it was! It officially went �commercial� somewhere around 1988. There were already commercial companies on the Internet (DEC, Sun etc) before then, but they weren�t allowed to connect directly to each other, they had to go through �non-commercial� hubs like Universities or research institutions.
  
  All those restrictions were lifted by the late 1980s, which is when the Internet really took off. The fact that it took another decade to penetrate your particular consciousness is neither here nor there; I was there at the time, and saw it happen.
  [ link to this | view in chronology ]
  - PaulT (profile), 11 Feb 2012 @ 4:40am
    
    Re: Re: You have to think back and remember that the internet was still not "commercial" in 1994 ...
    To be fair, this is probably one of those morons who thinks that "web" and "internet" are the same thing.
    [ link to this | view in chronology ]
- Anonymous Coward, 11 Feb 2012 @ 9:59pm
  
  Re:
  "You have to think back and remember that the internet was still not "commercial" in 1994"
  
  That is a lie. The internet was well and truly commercial by 1994. It was the days of Windows 3.11, 486 CPUs, Netscape and the early modems. The web was up and going, with text, pictures and hyperlinks. There was tremendous public interest in the web and those early modems were flying off the shelves. Having internet access was routine in business. Home users were signing up in droves.
  
  Many government entities were setting up their websites. All this in 1994, remember. The USPTO has no excuse for not giving examiners web access by as late as 1997. Disgraceful. The sooner the patent system gets closed down, the better.
  [ link to this | view in chronology ]
- aikiwolfie, 12 Feb 2012 @ 8:45am
  
  Re:
  In 1997 I had web access at college. In Scotland. The USA likes to think it invented the Internet all on it's own. Pretty pathetic then one of it's most important institutions for academics and engineers didn't think far enough a head to actually make use of something almost the entire academic community had decided to sigh on to.
  
  It might have been forgiveable in 1994. By 1997 they should have been on-line with the rest of the world.
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Alexander Howard (profile), 10 Feb 2012 @ 2:16pm

First time commenter, long time reader
Hey, Mike. Thanks for the link. Glad to have finally met you in person at the State of the Net conference last month.

I wondered how many people would take note of that detail, which came from an interview about the case with a trustworthy source who'd been following it quite closely for years.

In 1995, I was a sophomore in college and learning how to use HTML and an FTP app to put a web page online. I logged onto a BBS in 1993. In 1994, I fired up a Web browser for the first time.

While that does make me an early adopter, in some respects, I was surprised to hear that the USPTO didn't do more due diligence online.

When I used the word "interesting" in my post, readers no doubt could not see me ruefully shaking my head.

While the Internet access issue from a government building is not novel in that time period, enough citizens and certainly government employees were logging on at that point that an examiner could have walked over to a library, study or school to do a search and find Viola.
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vancedecker (profile), 10 Feb 2012 @ 2:18pm

Anything and Everything but the Obvious.
Why is it so difficult to believe that the people working there are mentally unfit and/or on the take?

I love my grandfather, but would I trust him making decisions about Internet policy? patent applications?

HELL NO!
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Bengie, 10 Feb 2012 @ 3:11pm

Excusses
"One interesting detail that emerged in the case was that the U.S. Patent Office didn't have access to the Internet in 1994 and was apparently forbidden from going on the Internet in 1997, which would make research into prior art in cyberspace somewhat of a challenge."

If they don't know what they're doing, they shouldn't be doing it.

I may be a programmer, but I don't tell marketing how to do their job.
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- ShellMG, 11 Feb 2012 @ 10:14am
  
  Re: Excusses
  Remember, the US Patent Office is a *government* agency. All government bureaucracies have their own special bizarre practices that are spectacularly batsh** insane. It's why Michigan has the "Slurpee rule." If you're paying for a Slurpee at 7-11 using a Bridge card (aka food stamps), you can't put the straw in it until after you've left the store.
  
  This rubbish is probably the result of either an ignorant director who knows nothing about the actual job involved, or a lobbyist/contractor shmoozer wined and dined the person in charge to persuade them to keep buying the traditional (and expensive) documentation used for patent research. Law journals and dead-tree reference material wasn't cheap then, either.
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Anonymous Coward, 10 Feb 2012 @ 3:11pm

...something that changed the following year when the ridiculous State Street ruling opened the floodgates...

Almost thought that said Sesame Street. I was going like "Cookie Monster? Is that you?"
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Anonymous Coward, 10 Feb 2012 @ 3:19pm

Does this mean all patents since '97 are invalid?
If the patent examiners were explicitly denied access to available resources to do their job properly. Can any patents be considered valid from that time? Or would they be considered approved in error because of lack of due process or even fraudulent?
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Prashanth (profile), 10 Feb 2012 @ 3:22pm

Dogfooding
This could be the first recorded use of software-related government dogfooding; the patent examiners were expected to approve patents that would essentially destroy most of the Internet, so the patent examiners didn't want to be hypocrites so they blocked themselves off of the Internet when examining these patents. It's a great cycle, and dogfooding is good, so everybody wins, right? Oh, wait...
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Anonymous Coward, 10 Feb 2012 @ 3:49pm

Good God, you jump to conclusions and will latch onto anything that can possibly be spun as a negative with regards to IP. Your bias is downright stupid.

"One Reason Why The USPTO Granted Ridiculously Stupid Internet Patents: Patent Examiners Were Banned From Using The Internet"

Please point to one patent that would not have been granted had the examiner had internet access, and please explain the connection.
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- Digitari, 10 Feb 2012 @ 4:23pm
  
  Re:
  the Eolas' patents, DUH!!!
  
  reading is FUNdaMENTAL
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  - Anonymous Coward, 10 Feb 2012 @ 4:41pm
    
    Re: Re:
    You haven't explained a thing. What relevant prior art would have been found using an internet search at the time that would have anticipated the claim?
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    - Anonymous Coward, 10 Feb 2012 @ 6:29pm
      
      Re: Re: Re:
      The internet.
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- vancedecker (profile), 10 Feb 2012 @ 4:40pm
  
  1999 1-Click Checkout Patent Granted To Amazon
  In 2006 it was re-examined on the basis that there was prior work. THIS IS STILL INSANE AND IDIOTIC!!!
  
  ONE CLICK CHECKOUT IS AN OBVIOUS PROCESS. ONLY A HALF RETARDED PATENT OFFICE EMPLOYEE WHO HAS NEVER USED THE INTERNETS WOULD EVEN CONSIDER GRANTING SUCH A BALLSY CLAIM TO AN OBVIOUS ADVANCE.
  
  from wikipedia:
  The United States Patent and Trademark Office (USPTO) issued US 5960411 for this technique to Amazon.com in September 1999.
  
  On May 12, 2006, the USPTO ordered a reexamination[1] of the "One-Click" patent, based on a request filed by Peter Calveley.[2] Calveley cited as prior art an earlier e-commerce patent and the Digicash electronic cash system.
  
  On October 9, 2007, the USPTO issued an office action in the reexamination which confirmed the patentability of claims 6 to 10 of the patent.[3] The patent examiner, however, rejected claims 1 to 5 and 11 to 26. In November 2007, Amazon responded by amending the broadest claims (1 and 11) to restrict them to a shopping cart model of commerce. They have also submitted several hundred references for the examiner to consider.[4] In March 2010, the revised patent was confirmed.[5][6][7]
  
  In Europe, a patent application on the 1-Click ordering was filed with the European Patent Office, but was never granted.[8]
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  - Anonymous Coward, 10 Feb 2012 @ 4:46pm
    
    Re: 1999 1-Click Checkout Patent Granted To Amazon
    Um, your example shows that even with a full re-examination (and with some amendment of the claims), the patent was still confirmed. That doesn't show that had they used the internet at the time that the patent wouldn't have been granted. It suggests the opposite.
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    - vancedecker (profile), 10 Feb 2012 @ 5:53pm
      
      Re: Re: 1999 1-Click Checkout Patent Granted To Amazon
      The European patent office refused to even consider such an absurd patent application.
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- anonymous, 14 Feb 2012 @ 11:53am
  
  Re:
  Simple one.
  
  MS .not patent.
  
  Amazons "one click" patent. for another.
  
  And Eolas patent (now canceled) for another.
  
  All were obvious.
  
  The big problem is that these are all mathematical in nature, and mathematics is not supposed to be patentable.
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  - Anonymous Coward, 14 Feb 2012 @ 1:50pm
    
    Re: Re:
    Let's stick to the Eolas patent. You seem to be making huge assumptions. Can you show that if the examiner had access to the internet, he would then have considered Viola and found that Eolas was obvious in light of it? My understanding is that Viola was only shown to a few people at the time, so it's not like the examiner could have hopped on the internet and found it. And what about the fact that on re-examination of the Eolas patent, the examiner found that Viola teaches away? http://www.universityofcalifornia.edu/news/2005/ptonotice0905.pdf In other words, the examiner said that Eolas was not obvious even if Viola was considered as a reference.
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darryl, 10 Feb 2012 @ 5:24pm

patented prior art - is required - applicant responsible for search
Masnick, learn something !!!

The patent office is not required to discover prior art, that responsibility falls with the applicant !!!.

Then it falls with the person who holds the patent on that prior art (if undescovered) to file a claim to have that patent rejected.

I am guessing that Masnick has never taken out a patent, as it is clear he has no concept of the process, or what prior art is or means !!

Obviously that is not a problem for a person who has a complete disregard for the truth or reality for that matter.
Or for someone who believes 'culture' is a 'business model' !!..

Another -10 points off masnick's credability counter...

If there is so much prior art as you claim masnick why are there not an equal amount (LOTS) of claims for prior art, and many more patents being rejected ?

You also do not have to look for prior art, you have to look for patented prior art.

If some moron invents something, and uses it in public without gaining patent protection (or even patent pending), they it is their stupid fault for not gaining a patent on that invention.

It is not 'just' prior art, is it recognised prior, that recognisition comes from that prior art having allready been provided with patent protection.

Learn something please masnick, because now you are either 1) talking from ignorance
OR
2)lying.

probably both...
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- Lawrence D'Oliveiro, 10 Feb 2012 @ 11:41pm
  
  Re: The patent office is not required to discover prior art, that responsibility falls with the applicant !!!.
  Did you just say that it is the sole responsibility of the applicant, and nobody else, to provide reasons why their patent application should not be granted?
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  - AC.hu, 11 Feb 2012 @ 5:32am
    
    Re: Re: The patent office is not required to discover prior art, that responsibility falls with the applicant !!!.
    Yes. You see, he thinks, that the USPTO is in the patent granting business. If the applicant "fails" to present prior art, then everyone involved is happy, because it means less work, decreasing backlogs, etc. All those sore losers then should go to court to clean up the mess later.
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darryl, 10 Feb 2012 @ 6:09pm

Anomyous FTP thousands of sites trying to find prior art ??? LOL Pointless
and what were they supposed to do on the internet, to research a patent application ?

the internet then, is nothing like the internet today, there were not huge search engines, or promoted technologies, were they expected to FTP as many sites as they can and "ls" their way through their files to find something.

DO you know how fruitless and timeconsuming that would have been, there were no central databases to access, you certainly could not "just Google it" or BING it as I prefer.

So for them to do an 'internet search' for something would have been impossible.

Masnick, the internet has changed quite a bit and is today nothing like it was at those times. Yet is it still improper for the patent office to be made responsible for finding prior art, it is the responsibility of the patent applicant to conduct an appropriate search for prior art.

Prior art, I might add that is patented in that country !!
Not just 'any old' prior art, does not count (as you well know masnick)..

Say someone lodges a patent for a "Cure for cancer", Masnick does a google search for "cure for cancer" gets lots of hits and cries "PRIOR ART" !!!!

Sorry Masnick, just because something is on the internet does not mean it is right, true, patented or that specific method of doing something.

Sure there may be many 'cures for cancer', there are !!
Each one is a specific METHOD of curing cancer, the method is what is patented, not the cure... THE METHOD..

You do not patent the transistor, you patent the method of achieving the transistor action.

There is no patent on a car tyre, but there are many patents on the method of constuction of tyres, there is no patent on the 'wheel' but many patents on methods of making wheels.
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- Anonymous Coward, 10 Feb 2012 @ 9:24pm
  
  Re: Anomyous FTP thousands of sites trying to find prior art ??? LOL Pointless
  Did you patent double spacing every sentence?
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harbingerofdoom (profile), 10 Feb 2012 @ 6:24pm

while i know it bucks the trends, i kind of have to begrudgingly give this one to the trolls & morons... and heres why:

in 1994, consumer users base vs. educational/governmental user bases were ~2:1. around 1994 the financial institutions were just then getting an online presence. w3c was founded in 1994... hell, time even had a front cover called "the strange new world of the internet".

the point in all that is that it was a very new concept. and while yes, it would have been great to say that every facet of the government would have already had access to the interet, this *IS* the federal US government we are talking about here. the government moves at a pace that makes snails look pretty damn zippy. besides, it was NEW. very very NEW. the internet has been around long enough by now and how many times do we see politicians sticking their foot in their collective mouths and their general complete lack of understanding of something thats been a fundamental of the majority of people for the last 10 years?

i dont like a single bit of it... but in this case i understand it and when set in its proper context, its not as bad as it sounds.

and dear trolls (you know who you are) please diaf... kthxbye
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- ShellMG, 11 Feb 2012 @ 10:26am
  
  Re:
  harbingerofdoom, thank you for your remarks on how the government drags its collective feet when it comes to technology.
  
  My husband works for the State of Michigan in eLearning for DHS. Every month he has to train "experienced" social service workers -- people who allegedly have a bachelor's or masters degree -- kicking and screaming through basic computer courses. Oh, and his department just upgraded to Windows XP a few years ago.
  
  People forget that funding for technology updates is dependent on approval from congress, local boards, etc. It usually comes in over-budget and has to be adapted to work with arcane software built on old platforms. That is a HUGE, huge problem with legacy systems right now. It makes me wonder if the computers in 1994 would have been able to get online without a bottleneck in the PC's themselves.
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Anonymous Coward, 10 Feb 2012 @ 10:21pm

In 1997, I had my first job at a Fortune 100 company as a programmer and the company still viewed the Internet as a time waste and liability, so I had to submit a request for every web site that I wanted access to and it had to be approved by both my manager and my director. Other Fortune 100 companies and government organizations also had similar policies.

However, the patent office reviews patent applications against prior patents, so there isn't any need for Internet access for their examinations. The patent office is looking at the claims in the patent applications and a patent examiner can much more easily compare claims between two patents than try to compare claims against non-patented prior art, which would already be at least 3-5 years old by the time the patent application reached the examiner. It's up to the inventor to search for non-patented prior art, but there isn't much incentive if the inventor is just trying to make money off the patent, since a bad patent can be used to extort money, since it costs an extremely high amount of money to fight a bad patent. If there was an easier and less expensive way to invalidate patents for prior art, patents would much less likely be filed if there is non-patented prior art.
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Anonymous Coward, 11 Feb 2012 @ 5:36am

USPTO Examimer - "Nope, no tubes in this patent request." - stamps Approved.
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wvhillbilly (profile), 11 Feb 2012 @ 7:21pm

Patent trolls
If congress would use some common sense in passing patent law instead of just listening to greedy corporations who want it all, we might not have all these patent parasites running around suing world plus dog with all these bogus, overbroad patents that are their only real invention. The rule ought to be, you don't own the invention, patent is unenforceable. If two or more people patent the same thing, patent is invalidated for obviousness. If you patent something that already exists, patent is invalid because of prior art. And so on.

Patent trolls are nothing but parasites and shouldn't be allowed to exist.
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Wolfy, 12 Feb 2012 @ 11:17am

Some enterprising researcher could have a good story, if they went back into the records of the time, and found out who made that rule, and who stood to gain the most by it.
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Anonymous Coward, 13 Feb 2012 @ 9:11pm

There was a policy regarding use of the internet to search for prior art formally promulgated in mid-1999. If one takes the time to read it (it can be found in the MPEP), they will learn that there is much more to this matter than just "What a bunch of dopes, and no wonder they allow such garbage to be issued patents".
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- Anonymous Coward, 14 Feb 2012 @ 5:34am
  
  Re:
  There was a policy regarding use of the internet to search for prior art formally promulgated in mid-1999. If one takes the time to read it (it can be found in the MPEP), they will learn that there is much more to this matter than just "What a bunch of dopes, and no wonder they allow such garbage to be issued patents".
  
  Of course there's a lot more to it. Mike doesn't care about getting it right, he only cares about bashing IP. Mike is a transparent and worthless scaremonger.
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  - PaulT (profile), 14 Feb 2012 @ 6:35am
    
    Re: Re:
    Whereas you're the bastion of truth who never bashes people who disagree with him, no matter how valid their opposition, no sir...
    
    At least you know who Masnick actually is...
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    - Anonymous Coward, 14 Feb 2012 @ 10:23am
      
      Re: Re: Re:
      Whereas you're the bastion of truth who never bashes people who disagree with him, no matter how valid their opposition, no sir...
      
      At least you know who Masnick actually is...
      
      Such a good lapdog, or sockpuppet--it matters not which one you actually are.
      
      Funny how you can't comment critically on the point, which is that Mike has not given any evidence whatsoever where internet access would have made any lick of difference in patenting decision. Considering the article is about that very subject, it seems a strange omission, no?
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      - PaulT (profile), 15 Feb 2012 @ 12:44am
        
        Re: Re: Re: Re:
        "Funny how you can't comment critically on the point, which is that Mike has not given any evidence whatsoever where internet access would have made any lick of difference in patenting decision"
        
        He gave his reasons and his opinion. You've given nothing except attack both him and myself with no evidence to the contrary, and based your criticism on something he didn't actually say (he never claimed the internet issue was the only factor, nor even the biggest factor).
        
        You're tilting at windmills again, Senor Quixote. Yet, you expect everybody to take your clearly deluded words over and above somebody who can be identified and his credentials verified. Very poor.
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        Anonymous Coward, 15 Feb 2012 @ 5:09am
        
        Re: Re: Re: Re: Re:
        LOL! Mike hasn't shown how the lack of internet access was a factor in even one patenting decision. Nor can he. Mike just made it up in his sad, desperate, and idiotic quest to bash on IP law. The fact is, he got called out on it and he ran away like a little girl. Just once. ONCE. I'd like to see him debate someone who calls him out. I'd love to see him admit that he has nothing to back up his claim. You're right, though. Mike will NEVER admit that. Never. Because Mike is a sad, chubby, pathetic shit stain of a human being. His idiocy is unparalleled on the internet. He's a complete fucking joke.
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        PaulT (profile), 15 Feb 2012 @ 5:17am
        
        Re: Re: Re: Re: Re: Re:
        Kindergarten finished for the day again?
        
        Come back when you're actually prepared to discussed what the article says without resorting to childish name-calling. Even if you had a point, you'd still look stupid due to your own conduct.
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        Anonymous Coward, 15 Feb 2012 @ 5:27am
        
        Re: Re: Re: Re: Re: Re: Re:
        I am discussing it. Please show that lack of internet access was even one factor for even one patenting decision. That was the claim, and there has been zero evidence to back it up. Why? Because it was completely made up. Techdirt has no journalistic integrity, much less any integrity, at all. And Mike is such a lousy piece of shit that he can't even admit that he's wrong when called out. He run and hides like a little child EVERY TIME. Everyone reading this thread and article can see that Mike didn't back up his headline--AGAIN.
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        PaulT (profile), 15 Feb 2012 @ 5:36am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        Like I said...
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        Anonymous Coward, 15 Feb 2012 @ 9:40am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Obviously you think it's great that he just posts a bunch of nonsense that he can't be bothered to fact-check or stand behind when challenged. The hilarious part is that he does this, but then he expects to be taken seriously. Sorry, Mikey, but you can't get my respect unless you earn it.
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        PaulT (profile), 16 Feb 2012 @ 12:18am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Wow, 3 fact-free posts that consist on nothing but childish abuse, still claiming Mike said something he didn't. You are a special person, aren't you?
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  - Anonymous Coward, 14 Feb 2012 @ 7:36am
    
    Re: Re:
    Merely by way of example, one unalterable feature of US law is that applications are to be held in the strictest of confidence until publication (which is relatively new in our law). Back in the timeframe talked about there was significant and legitimate concern that internet searches could very easily run afoul of the requirement for strict confidentiality since search requests would be directed to companies not bound as such.
    
    Yet another example is that searches over the internet could quite easily run afoul of US export control laws, namely, the Export Administration Act and the Arms Export Control Act.
    
    The point I am making is that other laws had to be taken into consideration before giving a green light to using the internet for searching. Unfortunately, such considerations are not generally known to the public at large, so it is quite easy to believe that the USPTO was acting quite the fool.
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Anonymous Coward, 14 Feb 2012 @ 10:09am

Marine Corps
We had internet access using wfw 3.11 and/or vines-ip (Banyan Vines encapsulation of TCP/IP). This was in the 93 and 94 timeframe. The Marine Corps motto is do more with less (and sometimes do everything with nothing)...). If we had an internet connection in eastern NC (Cherry Point) I am sure that they were probably a lot more common in D.C. In short, it wasn't a matter of couldn't, it was purely wouldn't! And before all that fancy html stuff there was ftp, listserv's and gopher..... Not to mention smtp and nntp.
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Phil, 14 Feb 2012 @ 12:31pm

Playboy was not a commercial website?
I remember browsing in 1994 with Mosaic and seeing a link to a Bill Gates interview. I blindly clicked on it and the next thing I knew the Playboy bunny came up, and I was sitting at a government PC! I hit the back button so fast. . .
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Anonymous Coward, 14 Feb 2012 @ 4:23pm

C'mon, Mike. Why don't you chime in? Why don't you explain yourself, or at least admit that you have no evidence to back up your point. Tell you what, admit that you made it all up, and I'll leave you alone. Deal?
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