In March I wrote about the new AOP-VETS program in Article One Partners Announces New Veterans Program. The program was a success and on May 16th, AOP announced that Iraqi war veteran, Jason Maples was the winner of its first ever AOP Vets Program.  Jason was one of more than 20 other Veterans who participated in the six week program consisting of intensive education and training in patent research, web-based career learning sessions and competitive research projects.  Not only did he win a $2,500 cash reward for his success in the study he partook in but also was awarded $5,000 for his overall performance.  I had the pleasure of sitting down to talk with Jason recently and following is our exchange:

In December of 2012 Article One Partners announced that they would be launching an educational contest series geared towards military veterans with an interest in research, science and technology. The program, known as the Article One Partners Veterans Program or AOP-Vets for short will consist of three main pillars; an educational curriculum on patent research, a series of career guidance sessions from intellectual property executives, and an “exciting Grand Challenge” with the opportunity to win rewards for success on the research platform.  In fact, at the end of the program, which is set to begin on April 8, 2013 and will run through May 17, of 2013, the best-performing participant of the program will receive a $5,000 reward.

Given that I come from a family of military men, and came so close to signing up for the military myself, I hold the topic of veterans near and dear to my heart.  In fact when I heard about this program I was thrilled because I know that many veterans have been affected by this recession are out of work themselves.  I know a few veterans in particular who could benefit from a program such as this and feel that programs like this are the very least we should give veterans in return for the sacrifices they and their families make for our country.  But the best part about this program is that it affords veterans who wish to participate the opportunity to become trained in the area of intellectual property that should ultimately lead to additional career opportunities that otherwise they would not have qualified for.

Between the legacy issue of bad patents, patent auctions and the many who purchase patents, what has started to happen is that the patent system rewards those who have the finances and ability to game the system. But the problem is extraordinarily complex. What is clear, however, is that the enforcement of bad patents is a problem within the patent and innovation industry.

But at the same time it would really be GREAT if the media and anti-patent community would get a clue and understand that the problem with bad patents is largely a legacy issue. Those that say that the United States Patent and Trademark Office continues to hand out dubious patents like candy are flat wrong. The bad patents that we witness being used in unsavory shake-downs have not been granted over the last few years, but rather were granted many years ago, under a different patent regime and when there was little findable prior art for patent examiners to use.

Those that pretend that bad patents issue today by the dozen and for a dime are living in a fantasy world that does not approximate reality. Yet the misinformation continues, undaunted by reality. So if reality doesn’t support the mountains of misinformation about the patent system and how it operates today, what is going on?

Article One Partners (AOP), a leading crowdsourcing patent research firm, just published a unique call to action on its blog. In an article titled Improve Commercial Agriculture with Seed Sampling, which published on Tuesday, November 20, 2012, AOP says they are looking for “farmers, botanists, and other agricultural professionals” to submit prior art for a research study that will remain open through December 11, 2012. The study in question relates to an automated seed sampler and method of sampling seeds.

While AOP researchers will submit patents and published patent applications for some of the studies, what makes AOP unique is that with over 25,o00 active researchers around the world they have a knack for finding those hard to locate references — so called non-patent literature, or NPL for short. Typically this non-patent literature comes in the form of journal articles or a Ph.D. thesis, for example.

With so many researchers, and more than 50% having advanced degrees, you can start to understand that frequently researchers will have knowledge of an important reference at the ready with little or no searching actually required.  So a significant part of the AOP model is to push studies to highly educated individuals who may well have peculiar knowledge related to the technology being searched. That plus a little old fashion research multiplied by 25,000 leads to great results.

Looking for prior art can be a little like looking for a needle in the proverbial haystack. You set out looking for the closest references, which typically comprise patents and various printed publications. But where are you going to look?  There are plenty of databases one can access, but each database comes with inherent limitations. You can only find what is within that particular database. While you can string databases together to do a more comprehensive search, no patent search is ever going to be able to search for each and every reference known to exist.

When you are doing a patent search to determine whether it makes sense to spend the time, money and energy to move forward with a patent application you expend an amount of money that is a fraction of the amount you will likely spend on the overall pursuit of the patent. For example, when we do patent searches for software related inventions we charge $2,500, which is roughly 10% of the overall cost of obtaining a software patent from start to finish.  Can you find everything for $2,500? No, but you can get a very good sense of what else is out there and whether there is any realistic likelihood that a patent could be obtained.

With every new milestone reached by Article One Partners (AOP) it becomes more and more evident that I am no soothsayer, or if I am my prophecies are more akin to those of Carnac the Magnificent than those of the Amazing Kreskin.  Sometimes I think I should just delete, or at least forget, that article I wrote nearly 4 years ago expressing skepticism about the AOP business model.

In any event, and for all to see my diminished powers of prediction, AOP, the world’s largest patent research community, has passed another significant milestone.  This time the company has passed the $3 million threshold in financial rewards paid to its global research community.  Actually, the milestone was reached at the end of August 2012, but AOP only officially made the announcement last week.  In fact, as of the writing of this article the reward calculator found prominently on the AOP homepage shows that some $3,371,500 in reward money has been paid to its community of crowdsourcing researchers.

The announcement that Article One has reached the $3 million milestone comes only six months after reaching the $2 million milestone, which took place at the beginning of February 2012.  It took AOP 11 months to the day to reach the $2 million milestone, and since they opened for business in November 2008 it took approximately 27 months to pay out its first million in reward money.  What this shows is that AOP is gaining steam, constantly shaving months off the time it takes to reach the next milestone award figure.

One of the newer prior art research studies currently underway at Article One Partners is one that relates to U.S. Patent No. 6,332,158, which relates to a system that assists user’s in selecting desired domains.  See Intelligent Domain Name Lookup #1802.  This study is of particular interest because the patent in question is owned by a subsidiary of Acacia Research Corporation, which is one of the largest and most powerful of the patent assertion entities (PAE) in the industry today.

Indeed, Acacia reportedly maintains upwards of 100 patent portfolios and aggressively pursues licenses for its own technologies.  It is also a publicly traded company, so the industry has far more information about Acacia that with respect to virtually any other PAE. For some of my writings on Acacia please see Mother of All Patent Trolls and Acacia Research by the Numbers: Inside the Belly of the Beast.  From what I know about Acacia it seems to me that they have found a very lucrative niche and execute quite well. They seem to acquire solid patents and patent portfolios and they are quite adept at monetization.

Of course, in this industry one man’s well operated company is another man’s patent troll.  While it is entirely possible that they have acquired a patent that could be invalidated in litigation or in other forums, it seems unlikely to me that they would purchase a patent or patent portfolio without engaging in reasonable due diligence.  That doesn’t mean, however, that the search for prior art will be futile.  It just means that Article One is going to need the assistance of everyone who is at all knowledgeable about the industry and technology field.  So if you know of prior art or have some time to hunt I suspect your input in this search could be quite valuable.

The America Invents Act (AIA) has now gone through its second phase of implementation.  Initially there were few things that went into effect over the initial 90 days after President Obama signed the legislation into law.  The first major wave of the AIA took effect on September 16, 2012.  See, for example, Citation of Prior Art, Supplemental Examination, Oath/Declaration and Post-Grant Review et al. The most significant of the changes to U.S. patent law, namely the shift from first to invent to first to file, will not take place until March 16, 2013.  This is a monumental change to U.S. patent law so it is never too early to discuss the many issues that will present with this shift.

The first and most obvious place to begin any discussion of the shift to first to file is with a very basic question: What is prior art?  This is anything but an easy, straight forward question even under first to invent laws that we know so well and have been familiar with virtually throughout the entire history of the United States.  The complexity in what seems an otherwise simple question stems from the fact that prior art is defined by statute.  There is no common sense way to conceptualize what is, or what is not, prior art.

As I was perusing the ongoing research Studies being conducted by Article One Partners (AOP) for this weekly article, I noticed that there are two Studies ongoing relating to two European Patents.  Specifically, there is an ongoing search for prior art relating to the controlling of movement of a virtual body, which corresponds with EP808484.  The other Study relates to a user interface system based on a pointing device, which corresponds with EP1573498. Both of these patents are owned by Koninklijke Philips Electronics.

I have not previously noticed AOP doing Studies relative to foreign patents, but the hunt for prior art knows no boundaries and it seems only logical that some outside the United States would want to tap into the AOP network of researchers for prior art relative to non-U.S. patents.

In the case of EP808484, the technology relates to online gaming and virtual worlds.  The purpose of the invention is to provide a system for modeling a virtual body within a virtual environment, and controlling the movements of the virtual body in response to user body movement while providing acceptable level of realism.

Recently as I have been perusing the ongoing research Studies being conducted by Article One Partners (AOP) I have noticed more of what I would classify as “non-traditional projects.”  In some AOP Studies you will see that they are looking only for non-patent literature, or simply NPL as it is commonly referred to in the industry.  In others the Study is open to both NPL, patents and patent applications.  But increasingly I am noticing Studies that are seeking only issued U.S. patents.

Typically, an Article One Study seeks to identify the best available prior art for a specific technology.  Many times one or more patent numbers are provided in the Study description, so it is easy to surmise that either the patentee is considering litigation and wants to know what could be found, there is some ongoing due diligence associated with a potential acquisition, or a defendant or possible defendant is searching for prior art to use in litigation or perhaps during a reexamination proceeding.

On May 22, 2012, STEC IP, LLC, filed patent infringement complaint against Oracle Corporation in the United States District Court for the District of Delaware.  The patents alleged to be infringed by Oracle are U.S. Patent Nos. 7,596,784, 7,065,637, 6,738,799, 5,944,839, 5,825,891, 5,678,042, 5,495,607, 7,254,621 and 6,925,481.

On the same day as the Oracle complaint was filed STEC IP also filed a lawsuit alleging patent infringement against Amazon.com in Delaware.  The patents alleged to be infringed by Amazon are U.S. Patent Nos. 7,596,784, 7,065,637, 6,738,799, 5,944,839, 5,825,891, 5,495,607, 6,925,481, 7,254,621, 6,631,449, 6,918,014 and 6,963,908.

Similarly, also on May 22, 2012, STEC filed a lawsuit alleging patent infringement against Apple, also in Delaware.  The patents alleged to be infringed by Apple are U.S. Patent Nos. 7,032,089, 6,738,799, 5,495,607, 6,925,481, 7,254,621, 6,963,908 and 5,825,891.

All of these patents asserted by STEC IP in these lawsuits were acquired by the company from the original assignee, Symantec Corporation.  Each of these patents is also the subject of an ongoing patent research study being conducted by Article One Partners.

Mistakes will inevitably happen during the patent process.  If the mistakes could be minimized, however, that would take a giant arrow out of the quiver of those who seek to use misdirection and half-truths to bring down the patent system.  It is unrealistic to expect a patent system that is error free, but there are some mistakes that are quite difficult to rationalize as the type of error that is inevitable.

In a patent system where there are approximately 500,000 patent applications a year with somewhere between 200,000 to 250,000 issued patents a year, it is foolish to think that everything will run with 100% efficiency and accuracy all the time. But how is it possible that claims that are horribly written and terribly disjointed can be allowed after examination by a professional patent examiner?