You are, of course, correct in stating that inventors have an obligation to disclose prior art to the patent office. However, it’s very difficult to prove that someone was aware of a particular set of documents (unless you can prove a clear link via, say, an advisory relationship between the inventor and one of the gurus in the field).

In the patent in question, all of the prior art listed was raised by the patent examiner (shown by having * next to the reference).

As for whether I should have submitted prior art to the patent office, that would be a very unusual step. However, I’d agree that hindsight is a wonderful thing. Also, there’s no restriction on anyone putting forward prior art even after a patent is granted and asking for a re-examination.

Just because I didn’t do it earlier doesn’t make it wrong now. Nor does it say anything about the validity or strength of my position.

Stuart Frost
CEO, DATAllegro

Furthermore, under laws of disclosure, if the patent attorney who submitted the claim knew of any prior art they were legally obliged to disclose it. If there was any blantant prior art out there at the time they would have been foolish to ignore or hide it.

If Stuart thought the patent submission was invalid you’ve got to wonder why two years later he submitted his own patent with much the same technology – “Ultra-shared-nothing parallel database”.

This case has a smoking gun, if Microsoft cannot invalidate the patent they are gone. Injunction. However it’s going to take several years to get to that point and they may settle before then.