As mentioned in the AmLaw Daily, Dennis Crouch’s Patently-O blog reported on a newly published patent application by Halliburton Energy Services. The patent application has claims to what can only be described as a method of doing business when your business is patent trolling, i.e., getting rights to a patent and asserting it against infringers.
Presumably, the part that makes one a troll versus non-troll is whether or not the person/entity asserting the patent rights actually makes their own products. Here, the key is asserting a patent as a non-inventor.
This application appears to be an attempt to make a social commentary (or flat out joke) about so-called patent trolls. The application is for “patent acquisition and assertion by a (non-inventor) first party against a second party.” It was amended to include an element about a “secret aspect” — whatever that means — which may be a nod to In re Bilski (that is, adding in a hardware requirement).
It claims:
1. (Amended) A method for a non-inventor first party to acquire and assert a patent property against a second party, the method including the first party performing the following acts:
obtaining an equity interest in the patent property;
writing a claim within the scope of the patent property, the claim being written to cover a product of the second party, where the product includes a secret aspect, the secret aspect including an unobservable aspect, where writing the claim includes performing research using a computer to convert the unobservable aspect to an observable aspect;
filing the claim with a patent office;
offering a license of the patent property to the second party after the patent property issues as a patent with the claim; and
attempting to obtain a monetary settlement from the second party based on the assertion of infringement of the claim.
AmLaw Daily called Halliburton to ask about the application and received a response stating:
It is important to note that Halliburton has no intention of applying the technique offensively. Rather, Halliburton intends to use any patent that may issue from this application defensively to discourage entities that engage in such tactics.
The filing may be an honest attempt to keep from being forced into making payments to patent holders but nothing in this claim appears to be outside what everyone has a legal right to do within the patent system. Every citizen is allowed to (a) acquire patent rights, (b) amend their claims, and (c) offer licenses. I struggle to find what could possibly be novel.
Gene Quinn of IPWatchdog believes that re-examination may be the better solution to a non-inventor first party asserting a patent property against a second party. Statistics show that ex partes reexamination is granted 92% of the time, with all claims being canceled in 10% of cases and at least some claims being changed in 64% of cases. Inter partes reexamination is granted 95% of the time, with all claims being canceled in 78% of cases and at least some claims being changes in 15% of cases. Thus, quality reexamination representation would seem a far better route.
Whether this filing is just a form of protest or commentary on the present state of patent litigation or an honest attempt to stop (perceived) patent litigation abuse, I can’t help but wonder if these kinds of filings don’t make the Patent Office even more hardened against allowing applications.
I struggle daily to get applications allowed over rejections that there is some lack of written description regarding the structural characteristics of the claimed genus, despite years of research data. Will I get even more responses of “Applicant’s arguments have been carefully considered but are found not persuasive“?
Send me a note and tell me what you think.
(Note to Dick Cheney: Everything contained in this post is satire. And thanks for the invite to go duck hunting.)
