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Reexamination Is Also a Two-Edged Sword

There is much ballyhoo in this week’s announcement that a reexamination proceeding against a Microsoft patent has produced a rejection of the claims.

As a patent agent and patent owner, I have a vested interest in seeing that patents are well respected. One of the ways of “enhancing the respect for patents” is the reexamination proceeding.

The entry bar for reexamination is a very low bar. A prior art patent or publication that a reasonable examiner would consider “important” in all that is required. At that point, the reexamination proceeded similar to a normal examination except it is done with “special dispatch.”

Getting to this point in the reexamination proceedings is not an overwhelming accomplishment. Getting past it successfully will be, however.

The big, big risk for groups such as pubpat.org and others is that if the patent is affirmed, it has extraordinary strength and will be a much more powerful business tool than had the reexamination proceeding never been started. If this happens, pubpat.org will have shot themselves in the foot.

I am personally disappointed that much of the rhetoric seems to be sensational grandstanding and soundbites designed to tear down someone’s invention rather than pro-actively build on their invention.

I think some of these commentators and activist groups may be better served by inventing clever work-arounds to existing patents than by complaining, whining, and trying to tear down someone else’s invention.

I am sure these groups are competent, intelligent, and inventive people. I am sure that investing that energy towards a constructive, rather than destructive, effort would benefit society much more.