Friday, July 1, 2011

USPTO infringes on patent?

If you read my letter to the USPTO, you may have noticed this bullet in discussing how a community review process would have identified obvious software methods such as:
  • A browser pop-up window as you leave a web page, which is also used on the USPTO web site to issue surveys (6,389,458)
I discovered this last week. I was on the USPTO web site, looking up details for a blog post, when I got a little pop-up window asking if I wanted to participate in a survey about the web site. The note informed me survey would take place after I had finished on the web site, so my browsing experience wouldn't be disrupted.

So I wasn't surprised later, when I closed that browser tab, to get another pop-up window with their survey. But the funny thing is, that exact method is covered by patent 6,389,458 - previously mentioned here.

If this were any other web site, I'd say they should worry about a patent infringement lawsuit. But as explains, the US Government cannot be sued for patent infringement:
Unlike a private party, however, the Government cannot commit the tort of "patent infringement." Governmental use of a patented invention is viewed as an eminent domain taking of a license under the patent and not as a tort.

The Government may delegate its eminent domain power over patents to contractors acting on its behalf. This is accomplished through inclusion of the "Authorization and Consent" clause in the contract [FAR clause 52.227-1].
So even if the USPTO outsourced its web site to an outside contractor, that contractor can't be held liable, either.

I don't believe that the USPTO (or its contractor?) violated this patent intentionally. That's assuming they didn't take a license for using patent 6,389,458. I think it's much more likely they simply didn't know about the "software" patent for this method, and just did what seemed obvious - direct the visitor to the survey via a pop-up window, as they exited the site.

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