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I asked this question of a patent attorney, but never got a great response - I heard that great NPR show about patents (referenced by Joel on a podcast) and had this question:


For this patent:

http://www.google.com/patents/US5771354

According to David Martin (Chairman at M-Cam):

http://www.m-cam.com/news/m-cam-chairman-featured-american-life-when-patents-attackpart-two

There are "5,303" other patents doing "The. Exact. Same. Thing."

He talks about it starting @ 13:22 in this story: http://www.thisamericanlife.org/radio-archives/episode/496/when-patents-attack-part-two

As phase 0 of reform, all I'm asking is that when those 5,303 other patents are being issued, they do a look up in their own system to evaluate if there's overlap. Not too much to ask!


My question is, why wouldn't the owner of the FIRST patent issued immediately claim that all these other patents had prior art (his patent) - wouldn't that massively collapse the problem?

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1 Answer 1

Yes, the owner of the first issued patent would try to get the other 5,303 patents into a reexamination process at the USPTO if the owner thought his/her IP was valuable enough. This alone makes the assertion of such "overlap" questionable.

Sticking to facts - on the audio clip the expert said there were (by some undisclosed search method) 5,303 things going through the system at the same time that had an overlap.Breaking that down - that is not saying that all 5,303 applications made it out as issued patents or taking into consideration that those that were eventually granted may have been required to make claim amendments before being deemed worthy.

Then there is the word "overlap". What patents cover is laid out in their claims. The territory covered by a claim is notoriously difficult to determine by a human reader. My opinion is that whatever overlap meant it could not have meant "claims that cover the same territory." That would be way to hard for a computer to determine.

This is claim 1 of the patent in question:

An online computer system providing commercial backup services to remote customer computers over the Internet by performing the following steps:

(a) providing at least one remote storage area for use in storing customer backup information;

(b) establishing a first online Internet session with a customer's computer;

(c) allowing the customer to sign up for backup services over the first online Internet session, including the step of establishing a customer identifier and associated password for the customer;

(d) establishing a second online Internet session with the customer's computer;

(e) requesting the customer to input the customer identifier and associated password established by step (c);

(f) validating the customer identifier and password requested by step (e);

(g) conditioned at least in part on validating step (f), allowing the customer to access the remote storage area over the second Internet session substantially as if the remote storage area was a backup storage device physically and/or locally attached to the customer's computer, including the steps of:

(1) encrypting backup data provided by the customer's computer,

(2) transmitting the encrypted backup data to the online backup service provider over the second online Internet session, and

(3) storing the backup data in the remote storage area provided by the online backup service provider.

It is a very long claim with many required steps. For someone to infringe this claim they need to do everything the claim says. It is not broad. When the voices on This American Life say it seems to cover so many things they are noticing that many things are described. That is not "covering". Only the claims state what the inventors see as new and non-obvious.

EDITED

Following up on this topic I went to the site of the firm that was used to do the analysis that produced the 5,303 number. In their detailed report they do analyze the claim of the patent in question to the two other patents they boiled the 5,303 list down to. enter image description here

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