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Comments

From Joseph Hardin - 2.12.2006. Very nice article. What was the failure rate of the inter partes re-examinations that your friend pointed out to you? And, you say the emphasis shifts to the re-examinations only if the court stay is granted. But it seems to me the emphasis, in the sense of where the action is, has now shifted. The court date isn't till Feb. 2008. The USPTO will respond in 90 days, good chance less, and then start up the re-exam.

Response from Seb - 3.12.2006. Joseph, be warned that I am based in the UK, not a lawyer, and even less familiar with the US than with the UK patent system. However, since your comment yesterday, a helpful US Patent Attorney whom I emailed speculatively, sent me the latest data issued by the US Patent and Trademarks Office (USPTO). By June 2006 there had been in total 152 inter partes re-examination requests since 29 November 1999. 145 decisions on these requests had been taken, and in 136 cases (93%) the request had been granted, i.e. gone forward for re-examination. But only 3 had progressed as far as a decision by USPTO, in all three cases with USPTO issuing certificates canceling all the claims being re-examined. One way of viewing this is as a 100% success rate. But with so few cases so far dealt with that would seem to be unwise. The impression I get is that a lot must finish up being dropped or going dormant. Furthermore, according to the USPTO data the median "pendency" (filing date to certificate issue date) is 31.2 months. Maybe someone well-versed in these matters will clarify?

There is not yet meaningful data on the success rate of inter partes re-examinations because the data set is still small. Only 7 inter partes re-examinations have proceeded to completion, the result being 1 in which all claims were confirmed and the remainder all claims cancelled. According to the Patent Office statistics, out of the 180+ inter partes requests filed, 93% of them have resulted in a re-examination order. In the majority of cases in which an order to re-examine is granted, the claims are all initially rejected.

Note that the Patent Office recently (in July 2005) formed a new central re-examination unit that administers all re-examinations, which is streamlining the process. For an overview on how reexamination works and the interplay with litigation, see The use of inter partes and ex parte re-examination in patent litigation, by David M. O'Dell and David L. McCombs.

As one of the original proponents of the use of the Internet for online learning, originator of the term "web-based training", and creator of the first website on the Internet devoted to WBT (1994), I find the issuance of patent protection on online learning systems disturbing and unwarranted. Let us hope that the courts and governing agencies come to reason in viewing such general concepts not as unique intellectual property of an individual, institution, or corporate entity, but the prior collective concept of a number of Internet and distance education pioneers. The parties to this litigation may hold legitimate rights to specific components or processes that make their systems unique, though these should not be applied more broadly. The world and its peoples own online learning. Those of us that gave freely and continue to give our intellectual efforts to advance online learning for the betterment of humankind call for reason to supplant greed.

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