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Could You Really Do Better than the USPTO?
lllama asks; "Is there such a thing as an obvious patent? Some ideas are so obvious that they needed to be stated before it's clear how obvious they are. Some are so blindingly simple that maybe a few dead monkeys might not have thought of them first. How would one go about deciding which ideas deserve a patent? Could/Should the patent office open itself up for public voting or moderation? Could a voting system affect how long a patent is grated for? Should the system be allowed to be swayed by public opinion? Should there be another tier of patents that protect IP but cannot be licensed out for money (BSD style patents?)? Given that simply hearing an idea affects how obvious it appears, could a system be devised that would allow an unbiased measure? An Obvious Quotient as such. Is there an obvious other word for 'obvious' that I could be using?"
Is it implemented in software?
If so, no patent.
If it implemented in software and hardware?
If so, no patent on the software portion.
Is it implemented entirely in hardware?
Build a working model of it, and submit it. You might get a patent.
Karma: Food Fight (Mostly affected by Date Plate).
The problem with all of those ideas are the same as the ones we have with slashdot...
Voting won't work because large compnaies can get people to vote for them through PR and links on the site and all sorts of manipulations.
Moderation by outsiders is subject to all kinds of abuse. Even without trolls and people just putting an automatic no on everything.
Most importantly, by putting it up for review to the public, every company's competitors would work their butts off to ensure that patent wasn't granted so they could use the idea themselves.
An acedemic review of sorts could work with a public request for prior art previous to ussuance but how long should the USPTO wait?
The system in place is broken but you would have to re-look at the whole idea of intellectual property in order to create a working system.
Hire some qualified practicioners in each field (under strict NDAs). Give them a statement of the problem being solved. If they come up with the same solution within a few days, it's so blatantly obvious that the "inventor" is really trying to patent the problem instead of a solution. While you're at it, start enforcing this:
instead of the mountain of gibberish they've accepted to date, and drop the USD 2500.00 "request for ex parte reexamination" fee they demand for pointing out their own mistakes.
Remember, a patent only promotes progress if the cost of licensing it (plus their share of the USPTO overhead) is less than the cost of every licensee having to independently discover it. Granting monopolies on "inventions" that anyone competent would immediately produce in the ordinary course of their work doesn't benefit anyone productive.
The problem is with the implementation of patent decision right now. Anything can get a patent nowadays, and trivial one-off patents ('obvious') need to go. The fact that you can retroactively add to patents is also a problem.
I also think that there should be some way to differentiate patents based on things that have actually been implemented and those that are just theoretical but can be written up. A working model is really a must. If you want to patent something, you should take the time to make it work for real.
Working scale models were good fot the old days when mostly mechanical devices were patented. But now the majority of NON-TRIVIAL patentable ideas require large (if not huge) capital investment to make even a proof-of-concept breadboard thing. And VCs who invest money like to see granted patent(s) before they invest...
;-)
If anything, this requirement would shift balance towards obvious stuff. Think how hard would it be for anyone to code a mock-up of a "one-click" patent!
Paul B.
I've been awarded a few patents; based on my experiences, here's my take:
Seems to me that the biggest problems are:
1. Examiners generally look only at prior art that has moved through the patent office, and do not have general knowledge of a field. So if prior art exists that is unpatented, even in very common use, the examiner may not know it.
2. Once a patent is granted, even one for which there is ample identical prior art that the examiner missed, "infringing" on the patent and having the courts decide is a horror show.
My suggestion is that a patent first be granted and published with some period for the public to comment to the examiner, say, 90 days. This would give people knowledgable in the field of the patent time to point out prior art that the examiner missed. After the comment period, the examiner has another 90 days or so to finalize (or reject) the patent, giving it all the same protection that patents currently have.
This system would probably prevent a ton of bad patents.
Has any considered making patent information available shortly before it is patented?
Offer a 'temporary' patent about a month, during which time people could view the patient but not act on any of the information. People could submit problems or conflicts during this time. At the end of the period, the USPTO reviews the information prior to granting the patent.
Yes, I know this is all supposed to be taken care of before hand, but judging by the number of reviews of granted patents, it obviously isn't happening.