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EFF Runs Patent-Busting Challenge
markclong writes "Every year numerous illegitimate patent applications make their way through the United States patent examination process without adequate review. The problem is particularly acute in the software and Internet fields where the history of prior inventions (often called "prior art") is widely distributed and poorly documented. As a result, we have seen patents asserted on such simple technologies as One-click online shopping (U.S. Patent No. 5,960,411.), Online shopping carts (U.S. Patent No. 5,715,314.), The hyperlink (U.S. Patent No. 4,873,662.). The EFF is hosting a patent busting project to fight the most egregious abuses of the patent system."
If only one or two of the folks in that office find themselves unemployed after an annual review, because to many of the patents they granted were overturned, it wont take long and the rest will actually take the couple hours required to document prior art on many of them.
An obvious next step, would be for the patent office itself to provide a public input period for feedback on various applications. Heck, if they posted new applications to /., they could save a lot of effort. At least half of the new applications would get responded to with a link documenting valid prior art within an hour of being posted, thereby saving the office the trouble of processing that application.
Not to be overly simplistic about answer this, but two wrongs won't make a right (the system as it is, and not doing anything about it), in an optimistic light if many patents get overturned it might embarrass the system into change, or at least expose it to more of the general public who use the common 'patented' technologies. Cleaning off the ridiculous patents might prevent frivolous cases from making it to court as well, and with a clogged up court system as it is, that wouldn't hurt either. I'm sure we can all think of a patent case that seems obvious that it shouldn't be in the courts but is. On an offtopic note, happy birthday me, still up to post on /. at 2 in the morning EST.
There is another kind of evil which we must fear most, and that is the indifference of good men. -- Boondock Saints
Essentially, you are suggesting that the US Patent Office use volunteers, rather than patent examiners, to determine the validity of patents.
The problem comes when these volunteers start submitting bad and misleading information, either unintentionally (by not understanding the patent) or intentionally (maliciously). For example, you are one of the volunteers. You are evaluating a patent of your competitor. So you might create a fake website with some "prior art" and point to it as an example.
The problem comes not in whether or not that fake prior art will be believed--it will be sorted out in the end, for sure--but rather that you've just created additional work for the patent examiner. Suppose everyone did this--submitted garbage that the examiners need to sort through. Some "prior art" might be valid, some invalid, some irrelevant. Notice on Slashdot how very few people RTFA? Well, consider how few people will RTFP. Much of the prior art suggested to be reviewed will be irrelevant. There are lots of people who will try to come up with something just to show how smart they are.
The net result will, unfortunately, be far more work for the patent examiner, not less.
This is not to say that your idea should be discounted entirely, but rather that implementing it would simply be a lot more complicated than your initial suggestion. It would probably have to be done more along the lines of an anonymous peer-review system like that which is used in academic journals. However, anyone who has had an article turned down for Physical Review Letters will tell you how well that works.
Indeed, it's a complicated problem.
Currently, it is possible to request a patent re-examination of one of two types.
However, the person who must pay the fees is the person who wants the patent to be re-examined. Fees may start (for inter partes) at $8K, plus $12K for legal fees. Getting a patent accepted costs only about $1K. With legal fees and prior art searches (which I swear that a lot of these people don't do) that might get up to $8K or so.
This keeps the playing field quite tilted towards those that file patents -- there is little incentive not to file bogus patents.
I'd like to see this system modified to impose the fee (perhaps with some multiplier) on the *patent filer* if the reexamination finds that the patent is indeed invalid, rather than on the party requesting the reexamination.
If pro-bono legal work is available, or a simple walkthrough on how to do basic requests for review ("I wrote a program that already does this that was sold five years before the patent was applied for, and here it is"), the process could be made effectively zero-cost for organizations like the EFF that attempt to eliminate bogus patents.
I see few drawbacks. It does impose the difficulty of collecting fees on the USPTO, but besides being part of the federal government (and thus being in a good position to locate patent owners that refuse to pay), they can refuse to issue more patents to an individual until he pays his fees.
Old patents, many of which are quite bogus, will have to be grandfathered in. There's no other reasonable way to deal with them, but eventually they will expire, and this prevents future abuse of the system.
It also increases the potential cost of obtaining a patent (not good, if you want to protect the little guy). However, patent filers are *supposed* to do prior art searches ahead of time, and are *supposed* to only be submitting legitimate inventions. Thus, if a patent holder has performed his tasks as he should, there will be no additional cost added.
I don't think it's feasible (since the USPTO can't hire the best researchers in every field) to never let through an illegitimate patent. I do think that making the review process more oriented around discouraging people from filing bogus patents is possible. This also takes a lazy approach -- bad patents are only dealt with and the patent holder only imposed a penalty upon if an actual problem comes up -- otherwise, there's little reason for an organization to go after patents.
I would like to see review fees reduced if possible.
I would also like to see it be made possible for an inventor to freely invalidate a patent. This means that if a company (let's say Microsoft, or the FSF) discovers that someone is going after them with a patent, and they are able to produce prior art, it's easy for them to just send a letter to the patent holder noting that they have identified prior art, and unless the patent holder wants them to initiate a review, to mark his patent invalid within the next month.
That way, Microsoft or the FSF doesn't have to pay the legal fees associated with requesting a review (so it's in their interest to first send out a letter), review load on the USPTO is reduced, and the inventor is never hit with the fee associated with losing a review.
There are some details to be resolved -- how should invalidation of individual claims be resolved? Should a per-claim fee be increased, and fees for review on individual claims be lower?
I don't think any of them are showstopping issues, though.
I've brought this up once before on Slashdot and haven't gotten any idea-killing issues brought up -- I'd be interested in any feedback.
May we never see th
Apparently the current US patent system does not want to spend the time/money to carefully check new patents. Now the EFF and volunteers are doing the USPTO's work for free. It might remove the most harmful and obviously insane patents, thus making the idiocy of the current system less visible.
It should be obviousness that prevents such patents, not so much prior-art. Most software prior art is in the form of trade secrets, not prior patents.
They should use the "graduate criteria". If at least 20% of computer-sci graduates with a B or better could implement the functionality being claimed for a patent, then it should be tossed.
Table-ized A.I.
I hope the patent re-examination fee gets refunded if the claim is found to be legitimate. I mean, why should we have to pay for the USPTO's mistakes? That would be some racket!
I don't know the answer, but if the fee does not get refunded, things start to make sense. In this case, USPTO has no incentive to deny any patents, since they get more money for the patent re-examination than if they simply researched and denied the patent in the first place.
End of Line.
Guys (that's you guys across the pond). This is a governemt office. You have democracy. Your politicians will do anything for a vote. Tell your congress man that if he will make sure you vote for him again, he will do something about the hilarious patent office that's the laughing stock of the rest of the world.
This project might help an awful lot in proving that something is rotten in the state of patents.
Actually, the PTO is one of the few government agencies that brings in more than it spends. The problem is that that extra money is not used to upgrade what's there, it's put into the general coffers. Call your senator and tell him to help stop fee diversion.
This is going down the right track. The main problem with the current patent system is the implementation. There are far too many obvious and trivial patents. One way that we've been using in the sciences for hundreds of years to stop this is peer review. So why not open up the patent system to peer review?
A site like this could be used to coordinate this process in much the same way as conferences and journals coordinate the peer review of scientific publications. It would be in the interests of companies to get involved as they would have some say in the granting of patents in the fields that they operate in.
Combine this with a shorter term (say 3 years) and software patents wouldn't be such a bad thing...
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i keep hearing an argument going along the lines "doing the job/work of the patent office". i am somehow irritated by this.
let me explain. whenever we participate in political affairs, for this example, without any financial compensation, aren't we doing someone jobs, which would be located in the government?
another example. what about the people active in the eco movement? now looking especially at all those involved in research, collecting data, publishing reports, etc.., aren't they also doing the governments job?
what i am trying to demonstrate is, part of democracy involves copies of existing processes. this is a safty procedure, to ensure the legitamecy of current affairs. this does not mean, doing someones elses job, but controling that other people have done their job correctly.
just look at sience. every experiment needs to be repeated multiple times, to become validated. why not also apply this concept to patents. to make this seems to make a lot of sense.
regarding the previous posters comment concerning the popularcy of the project. well this may be so at the beginning, taking the general public into consideration.
this i see as a benefit.
at the beginning of such a project, if it turns out as promissing as we hope, the reputation will spread quickly amongst those involved and interested with the matters subject. a community of professional people will form, that hopefully will be able to establish a fairly extensive resource library, and develop information sources specially created for the lai person. having established this ground work, the general puplic WILL tale notice. as what has been established will certainly cause references in the public media, which again will attrack the general public to the community.
enough written.......
exactly. peer review! that is a term i should have used in my other reply. /.'ers might have to swallow first, befor excepting your last statement, i must agree.
i only managed to compare the patent granting process, with the scientific process of replicating experiments.
The idea of coordinating peer review of patents to grant, organised by an online community could prove to be quite revolutionary.
as many
patents + open peer review + short term licence == fair compromise
with a system like this in place, we could all live.
just let me state: in general, i do not believe in the concept of intellectual property. to me this is a joke. a bad one, but never the less a joke. i won't go into this though. why do i then state the above? we live in a democratic organised society. most of believe, that the every human being on thie planet should have the right to live under such cirumstances. the cosequenzes of this is, we need to find compomises - all the time.
democracy is about finding an agreement, that all can live with. of course this is crap to a radical mind. then again.....just take a look at the alternatives.
i have written all this to underline the importance of a change in the patenting system, and elude to the possibilety, that our democratic future might be connected, or at least a part of our societies actions, in how we decide to deal with intellectual property.
will we erode our individual rights and liberties, for the benefit of a few corporations?