Netflix New Patent, & Intellectual Vertigo

On Tuesday we learned about the latest patent from Netflix courtesy of Aaron Feigelson's blog 12:01 Tuesday. 12:01 Tuesday is the time each week that the Patent and Trademark Office issues the electronic gazette that publishes all of the newly granted patents.

Mr. Feigelson post provided insight into the origin of Netflix -- it's founder Reed Hastings started Netflix after paying a $40 late fee to Blockbuster eleven years ago. It's only five years? That's what Mr. Feigleson thought too. He then provided an insightful analysis of the new patent Netflix -- "Approach for managing rental items across a plurality of distribution locations", patent number 7,546,252.

The comments we found most interesting were:

"What do we make of the Examiner’s statement in the Notice of Allowability:

“Applicant’s voluminous IDS received August 28, 2008 has been given a cursory review.”

"Should an accused infringer need to present clear & convincing evidence to show invalidity in this situation where the Examiner essentially admits he did not read the references?"

A cursory review?? They had this thing for six years even if the IDS only came in in 2008. Ah, but it's bad to jump to conclusions with our doing a little work of your own. So, we did.

Since we specialize in all manner of technology for searching and researching intellectual property matters, we decided to see for ourselves. It was a nice Friday afternoon so we decided to spend a little time on it.

We read the claims. Eighty seven total claims, 6 independent claims, 81 dependent leading to intellectual vertigo. So many permutations we couldn't keep them straight.

This lead us to ask our own interesting question: How hard would it be to find all these references if you had to start from scratch; would it have been so hard for the examiner to read the references. So we spent a few minutes seeing what we were up against.

We started with the 58 patent prior art references including my personal favorite 6,334,127,

System, method and article of manufacture for making serendipity-weighted recommendations to a user. How can you not like something dealing with serendipitous recommendations? This one has 67 claims and its own voluminous set of patent and non-patent prior art citations. A cacophony of art across a broad spectrum of subject matter.

The application portfolio from inventor John N. Gross was interesting. Since these were PGPubs we couldn't figure out if he was an independent inventor or worked with another firm. We didn't look that hard though.

First we downloaded the File Wrapper -- it's huge. Too much to deal with for a casual Friday exercise. We'll extract it and figure out what's in there next week. None of the non-patent prior art was there though.

Then we started tooling around and tried to get to some of the prior art references gathered from the internet. This should be somewhat fruitful we thought. Not so. The very first one produced the following dead end as did many others revealing variations on the Not Found message.

Then there was a link that led to a one page reference to a library circulation system that cites how books are selected by computer based on the reader's grade. The link worked this time. It produced a silly reference but one that, if it wasn't their, might prove troublesome if someone tried to claim that Netflix' approach was like the process of stocking a book mobile.

There are two references from publications that are almost impossible to find:

Anonymous, Untitled, Press Release, Business Wire, Apr. 27, 1999, 1 page. cited by other .
Anonymous, Untitled, Press Release, The Washington Post, Apr. 24, 1999, 1 page. cited by other.

We look forward to reading the entire issue of the April 24th Washington Post looking to find the Anonymous Untitled Press Release that has something to do with inventory management, renting movies, taking books out of the library with the aid of a computer. This ought to cost a bundle if anyone tried to challenge the patent unless they are prepared to wonder to Alexandria to read the file itself.

Imagine if this application was submitted under the new proposed rules on claims. The enhanced information disclosure would be encyclopedic. Or maybe it would have been a deterent. Hard to tell at this point.

After this exercise, I started to feel bad for the examiner. I wonder it the examiner was overtaken by the urge to heave the whole file out the window? I wonder if the examiner figured, let these guys duke it out in the marketplace. USPTO has had this thing for years and if I don't get it off my docket I'm never going to hear the end of it. Maybe the use of the word approach was enough for the examiner to say, maybe Bilski will take care of this eventually. Maybe it was a nice Friday and the examiner decided enough, I'm done for the day.

Either way, the whole exercise was intellectual property, intellectual vertigo.