Electronic Frontier Foundation Media Release

Internet Test-Taking Patent Draws Official Suspicion

EFF Wins Second Reexamination from Patent Office

San Francisco – At the request of the Electronic Frontier Foundation (EFF), the U.S. Patent and Trademark Office(PTO) will reexamine a controversial patent for online test-taking from Test.com. The reexamination order is the second granted in just two months after petitions from EFF’s Patent Busting Project.

EFF filed the reexamination request because the extremely broad patent claims to cover almost all methods of online testing. Test.com has used this patent to demand payments from universities with distance education programs that give tests online. .

Electronic Frontier Foundation Media Release

For Immediate Release: Thursday, May 18, 2006

Contact:

Jason Schultz

Staff Attorney

Electronic Frontier Foundation

jason@eff.org

+1 415 436-9333 x112

Internet Test-Taking Patent Draws Official Suspicion

EFF Wins Second Reexamination from Patent Office

San Francisco – At the request of the Electronic Frontier

Foundation (EFF), the U.S. Patent and Trademark Office

(PTO) will reexamine a controversial patent for online

test-taking from Test.com. The reexamination order is the

second granted in just two months after petitions from

EFF’s Patent Busting Project.

EFF filed the reexamination request because the extremely

broad patent claims to cover almost all methods of online

testing. Test.com has used this patent to demand payments

from universities with distance education programs that

give tests online. But EFF, in conjunction with Theodore

C. McCullough of the Lemaire Patent Law Firm, showed that

Test.com was not the first to come up with this testing

method — IntraLearn Software Corporation had been

marketing an online test-taking system long before Test.com

filed its patent request.

“Bogus patents like these are hurting innovation and

education in America,” said EFF Staff Attorney Jason

Schultz, who heads up the project. “This is a perfect

example of how the patent system is broken and what needs

to be fixed.”

Test.com now has the opportunity to file comments defending

the patent, and then the PTO will determine whether to

invalidate the patent. The PTO has narrowed or revoked

roughly 70% of patents it has decided to reexamine.

The successful reexamination request for the Test.com

patent is the latest big victory for EFF’s Patent Busting

Project, which combats the chilling effects bad patents

have on the public interest and innovation. The first

reexamination request was granted in April and involves a

Clear Channel patent for a system and method of creating

recordings of live performances, locking musical acts into

using Clear Channel technology and blocking innovations by

others.

Earlier this week, the U.S. Supreme Court weighed in on the

eBay patent case, signaling how important patent issues are

in today’s economy. In a unanimous decision, justices

overturned a dangerous injunction rule that threatened free

speech and consumers’ rights — following the reasoning

outlined in an amicus brief from EFF. Four justices also

joined in a concurring opinion questioning so-called

“patent trolls” and business methods patents, which could

foreshadow future intellectual property showdowns in the

nation’s highest court.