By DAN CARNEVALE
The United States Patent and Trademark Office has agreed to re-examine the validity of a patent whose owner claims that it covers many types of online testing.
The owner, a company called Test.com, was awarded a patent in 2003 that relates "generally to a method of making a test and posting the test online for potential test takers." The company has since asked some colleges that offer online courses to pay licensing fees for rights to give students online tests.
Some colleges and organizations have criticized Test.com’s patent, saying it is too broad and would prevent colleges from conducting many types of online education. The Electronic Frontier Foundation, a nonprofit watchdog group, filed a challenge with the patent office, saying another company had been selling online-testing software for more than a year before the Test.com patent was granted (The Chronicle, April 21).
Brigid Quinn, deputy director of public affairs for the patent office, said that officials there had determined that "prior art" — an earlier example of a similar technology created by a different party — may exist that would undermine the legitimacy of the Test.com patent, and that they would re-examine whether the patent should have been granted in the first place.
To prompt such a re-examination, a challenge "has to raise a substantial new question of patentability," Ms. Quinn said. But even after that threshold has been reached, she said, nothing about the outcome of the re-examination can be presumed until the process is complete.
James J. Posch, chief executive of Test.com, said he expects the patent to survive the challenge. "We’ve been going through this for a long time, and the patent has survived the initial process," he said. "I’ll be surprised if it doesn’t survive a second time."
But Jason Schultz, a staff lawyer at the Electronic Frontier Foundation, said the re-examination was most likely the beginning of the end of the Test.com patent.
"Right now they’re up against the wall," Mr. Schultz said of Test.com officials.
It will take the patent office at least two months to re-examine the patent, during which time Test.com will be given an opportunity to defend it. But Mr. Schultz said that unless Test.com has some secret evidence it has been hiding, the patent should eventually be revoked.
"Test.com has an opportunity to come up with new evidence," Mr. Schultz said. "We’re pretty confident that we have the goods."
The chronical of higher education Patent Office Will Re-Examine a Company’s Broad Patent on Online Testing