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Today one of the Belgian patent information centers got back to me to discuss the state of Channel Intelligence's European patent application. They confirm that the patent is indeed still under examination and that means that it has not even been sent to the local patent offices of each individual country where this patent would apply.
The patent has been under examination for over 7 years and Channel Intelligence has been gradually trying to adapt some of the claims to get it past the examinator. The fact that it is taking this long is a good sign since it means that the patent office never consider it to be into an acceptable state and it already went through several iterations. Also, since this is clearly a software patent, the representative of this Belgian information center confirmed that it will be almost impossible for this patent application to be approved in Europe.
He suggested that I put a comprehensive dossier together with all prior art and detailed explanations about how they invalidate the novelty and inventiveness of the patent. This seems to correspond with what's written in article 115 of the European Patent Convention. The examinator however has no obligation to take this into consideration. At his sole discretion he can decide to use or ignore the information that is sent to him.
However, that's not all. In the very unlikely event that this patent might be accepted in Europe, there's still a 9 month period after the acceptance date where an official protest can be filed. This doesn't have to be done through a lawyer and can simply be coordinated with a local patent office. Such actions however can't be ignored and will have to be examined in detail by the global European Patent Office.
I thus plan on creating this dossier and also publish it on my blog. Anybody that feels strongly against this patent will then be able to use this information to send his or her own letter to the patent office. If we coordinate this correctly, they might not be able to ignore the pressure.
Thanks a lot everyone for all your support. I'm amazed at how friendly and helpful everyone has been so far.
Since the European patent that Channel Intelligence tries to sue us with doesn't seem to be granted yet. I'm now looking for prior art to stop the patent from being awarded. This could make this lawsuit go simply go away for everyone they targeted in Europe.
Below is a list of what I already found with the help of friends. If you have other suggestions, please add them as comments.
Also, I'd appreciate it if people could help me to read over the patent and validate the applicability of this prior art. I might have missed something.
The official complaint from Channel Intelligence states the US patent number but it only vaguely mentions that they 'own the foreign equivalents'. I thus decided to search for them, and I found this: http://register1.epoline.org/espacenet/regviewer.
It turns out that the equivalent European patent is still under examination. I've contacted the Belgian patent office to see what the local status is and they're getting back to me shortly. With the abundance of prior art, it might actually be easy to stop the patent from being granted in Europe now. Apparently it's much more effective to intervene during the examination process than it is to contest the patent once it's granted.
Thanks a lot everyone for all your helpful comments. It's heartwarming to see how many people care and manifest their support.
I already had some informal legal assistance and it seems that causing a patent to be revoked is a very expensive process. That is the only thing that prior art can be used for. Since the patent is there and has been granted by the US patent office, its validity cannot be challenged unless it's entirely revoked. What I can do is challenge the relevance of the patent in regards to Bla-bla List. I'm now waiting for replies from several open-source foundations that are supposed to provide free legal assistance is cases like this. If they don't come through, I'll have to hire a patent lawyer in Belgium.
I've also contacted the lawyers that sent me this letter directly to ask them for concrete suggestions about the amicable resolve that they propose. At least this will give me a picture about what they're after. This what I sent them:
I just received a fedex about your claim that http://blablalist.com would infringe intellectual property rights that are allegedly held by Channel Intelligence, Inc. in US patent No. 6,917,941.
The service provided at http://blablalist.com has been free of charge and the technology is actually made available for free under an open-source license that has been approved by the Free Software Foundation. Uwyn has never received any payments from the users of the service nor made any profits from it.
As you suggest in the last paragraph of your letter, I'm ready to discuss ways to resolve this amicably. What are your suggestions?
There seem to be a collection of possible reasons that I can use to dismiss myself as a defendant. I didn't know that the legal system worked this way, but apparently it's common for patent infringement cases to target a whole laundry list of defendants. They all typically try to be dismissed and only one valid reason is needed for this to happen. If the suggestions for an amicable resolve don't satisfy me, aiming for a dismissal will probably be my next course of action.
I'll keep you all posted!
Bla-bla List has just been an experiment for me with Rich Internet Applications. It has always been an open-source effort and I made it available as a free service to see how well it would fare out in the wild. Since this service never generated any revenue for me, paying for a lawyer to dig into this is something that I'd like the avoid (though maybe I can't).
Has anyone here ever had to defend himself again such a claim? Does the software being open-source or the service being free make any difference?
Thanks for any help or recommendations that you can give me.
update: people have asked me for the lawyer's letter and the claim, I scanned it and you can download it as a 1MB PDF from http://blablalist.com/ca-08-437.pdf or browse through it online at http://www.docstoc.com/docs/document-preview.aspx?doc_id=953027
update 2: seems I'm not alone in this, they have sued about any list application out there : http://www.techcrunch.com/2008/07/17/channel-intelligence-sues-just-about-everyone-who-offers-wishlists/