EFF Wins Another Patent Re-Examination

by Glen Shapiro, LawAndTax-News.com, New York

22 May 2006

For the second time in recent weeks, the US Patent and Trademark Office has agreed to reexamine a controversial patent at the request of the Electronic Frontier Foundation. The EFF says that the patent in question, in the name of Test.com, claims to cover almost all methods of online testing.

The EFF says that its Patent Busting Project will take on illegitimate patents that suppress non-commercial and small business innovation or limit free expression online.

EFF says that Test.com has used its patent to demand payments from universities with distance education programs that give tests online. But EFF says that, in conjunction with Theodore C. McCullough of the Lemaire Patent Law Firm, it has shown that Test.com was not the first to come up with this testing method - IntraLearn Software Corporation had been marketing an online test-taking system long before Test.com filed its patent request.

"Bogus patents like these are hurting innovation and education in America," said EFF Staff Attorney Jason Schultz, who heads up the project. "This is a perfect example of how the patent system is broken and what needs to be fixed."

Test.com now has the opportunity to file comments defending the patent, and then the PTO will determine whether to invalidate the patent. The PTO has narrowed or revoked roughly 70% of patents it has decided to reexamine.

The successful reexamination request for the Test.com patent is the latest victory for EFF's Patent Busting Project. The first reexamination request was granted in April and involves a Clear Channel patent for a system and method of creating recordings of live performances, locking musical acts into using Clear Channel technology and blocking innovations by others.

Both the Federal Trade Commission and National Academy of Sciences have issued a series of recommendations for reforming the patent system; however, says EFF, there is no guarantee that these reforms will be adopted or that they will be considered on any specific timeline. EFF says its project will:

• Identify the worst offending patents;
• Document the prior art that shows their invalidity; and
• Chronicle the negative impact they have had on online publishers and innovators.

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