Open-source Overhauls Patent System

K-boy writes "The US Patent Office has announced new plans to reform the patent system - and right up there at the front is open-source software. Techworld argues that it is in fact open-source software that has been the driving force behind the reform." From the New York Times article: "At a meeting last month with companies and organizations that support open-source software (software that can be distributed and modified freely), including I.B.M., Red Hat, Novell and some universities, officials of the patent office discussed how to give patent examiners access to better information and other ways to issue higher-quality patents. Two of the initiatives would rely on recently developed Internet technologies. An open patent review program would set up a system on the patent office Web site where visitors could submit search criteria and subscribe to electronic alerts about patent applications in specific areas."

Comments

Re: Surface changes only

[stinerman]

A federal law (or possibly an overreaching executive order) will be needed to eliminate business method patents. IIRC, some court decision made it so that business method patents are just as valid as mechanical ones.

Wow! Temporarily, a victory for OSS?

[CodeShark]

If this survives what I would predict to be a hugelobbying effort on the part of the massive corporate software interests, this could be the most significant reform of the Patent Office in my lifetime. [which is longer than I'd like to admit but shorter than the creation of digital computers].

I mean, since when has there been an "Open submission" for prior art in any of the USPTOs area of authority, or to have a searchable database for newly published applications that allows you, me, and everybody else to offer feedback directly to the examiners who need the information most [Note: I am including the patent quality index" under the heading of feedback by the way.]

From the Techworld article:The USPTO will host a public meeting to discuss the projects at its offices on 16 February.

I hope that RSM, ESR, etc. Lawrense Lessig et. all are there to defend this proposed change.

But it's an advance.

[Spy der Mann]

Remember!

If it's not a step backward, it's a step forward!

Later we can worry about elliminating software patents entirely.

Besides, take a look at this:

Another part will allow anyone who visits the USPTO website to search for patent information and receive emails regarding newly published patent applications. The program will also encourage the public to review patent applications and offer feedback to the USPTO regarding prior art.

The final leg of the program is a patent quality index. The index will assign a number to patent applications and patents indicating the quality of the patent. Members of the public can use the indexing system to evaluate the quality of proposed patents, patent holders can use it to identify weaknesses in their own patents, and companies can use the index to evaluate competitive patents relevant to a field they may be working in.

Not only can prior art be searched more effectively, the PEOPLE (this is, us!) can submit their comments about the patents in question. In other words, if an obvious software patent goes to slashdot, we, the slashdotters, can complain about it DIRECTLY!

And that's a good thing :)

Re:But it's an advance.

[Peter La Casse]

This I don't get. Why should we limit the ability for an ingenius inventor to gain a government funded temporary monopoly for software, but not for a physical thing?

I can think of a few reasons. First, the three problems you note dominate all of the software patents that are issued, so eliminating software patents altogether would accomplish much more good than harm (and would be far easier to do too.) Second, software is essentially a number, and while we like to think that we have invented or created a piece of software, that number has always existed and will always exist, and numbers are not inventions. Third, software is essentially a sequence of instructions, and a recipe is not an invention. Fourth, the unique properties of software allow its development to be very rapid (compared to the development of physical products), and patents inhibit this rapid development, which has negative economic consequences. Remember that patents don't exist in a state of nature: they are an artificial creation designed to create economic benefit for society, and since software patents' economic harm exceeds their economic benefit, they're counterproductive.

Without patents there is little incentive (ie money) for new products to be made.

Nonsense. I can think of plenty of reasons to innovate and to create new products other than their potential patentability.

Worse than surface changes

[Anonymous Coward]

I fear this seems pro-corporate and anti-F/OSS. What it really seems to do is impose a new bureaucratic process on F/OSS projects by making them responsible for finding the bogus patents they may infringe on (and by finding them, making them responsible for willful infringement). It does nothing to reduce the stupidly bogus patents (XOR for a cursor) from happening in the first place -- on the contrary it makes it more difficult to avoid them.

What would be pro-F/OSS would be if the patent office provided a way that F/OSS projects could point out prior art on the large numbers of obvious&non-innovative pending patents more easily. But with industry lobbyests running the show, there's 0 chance that this will happen.

At Last

[johnashby]

This is a tremendous decision. In order for it to have taken place at all, there must already be an element friendly to open-source concepts in the higher circles...and the expansion of staff necessary to implement these changes will alter the culture of the Office at large. Water cooler conversations will change, and the current bias toward approving patenting anythign that moves might finally begin to erode somewhat.

It's an excellent beginning.

Your Sig: The 9th Amendment

[hackwrench]

Yeah, the Courts pretend that the 9th amendment doesn't exist, or the debate over the "right to privacy" in the Roe vs. Wade case in the Supreme Court would not have happened. I wonder what would have happened if somebody sat them down and said, "Of course the right to privacy exists, read the 9th Amendment!" Yeah, I thought as much.

Re:Your Sig: The 9th Amendment

[hackstraw]

Have you read Roe v. Wade?

The Constitution does not explicitly mention any right of privacy.

Keep in mind that the US Constitution is the longest standing constitution in the world, and US is not a very old country. "Good" laws are more on the non-specific side, and bad ones add too specific information that will only be trumped when something similar comes up but not specific enough (most any new law regarding computers is basically redundant. fraud is a very inclusive law that is not used enough, etc).

The Constitution mentions "Certain Inaliable Rights", which is fairly and intentionally vague. Its in the Bill of Rights somewhere. I'm a little (lot) on the liberal side of people's rights, and I believe that privacy is one of them. I believe that the privacy is implied by the forgotten warrant and illegal search and seizure, not forcing US citizens to house troops, etc.

If I don't have the right to privacy, ... this does not make sense.

Unless I am a harm to someone or myself as defined by a law and the law is followed by due process, then privacy is implied. (YAIMNAL).

To test the opposite, where is it explained that the government allowed to invade privacy? Baring due process and reasonable limits to protect others.

Nice, but what about obviousness?

[Bob9113]

This is nice, but the real problem with patents today is not novelty, it is obviousness. The article implies that the obviousness problem is not being addressed. The worst patents in recent memory have been bad because they were obvious, not because they had been done before. One-click was novel (as proven when the prior art challenge failed). One-click was not non-obvious. Obviousness cannot be tested by patent examiners; they are not skilled in the art.

I recently read what seems like a good solution; when a patent is submitted it must be tested for obviousness. Submit the problem that the patent solves to a panel of experts. If they come up with a sufficiently similar solution, the patent is void. Funding? Submitters who get their patents voided for obviousness pay the expense of the panel - calculate the cost at the end of the year and divvy it among the applicants. That has the added bonus of penalizing patent flooders, and since there will still be rivers of patents coming from IBM and MS, the individual patent submitter will only risk a tiny fraction of the cost of the board.

I thought they did this years ago

[Anonymous Coward]

Two of the initiatives would rely on recently developed Internet technologies.

Wasn't the "reform" to take any mundane activity, and add "over the Internet" to it and you get a patent?

Software is not patentable....

[3seas]

By its very nature software falls into the scope of what is not patentable.

Physical Phenomenon
Natural Law
Abstract Ideas.

Mathmatical algorythims are a subtopic of the above three primary facets of what is not patentable.

Haven't the time at the moment to read the article but I don't need to. I know software is provably not patentable.

How software got patent status in teh US is not by approval of the people, but by the abstract rethoric of abstract arguement.

Software creation is all about abstraction creation and manipulation.

This alone make its a a human right and duty to apply. For we as creatures able to go beyond other creatures have only this as our advantage enabling us to go beyond the limits other creatures have.

Software is not patentable and there are more details as to why this is and provable, then I have time to go into ATM.

We only advance by building upon the works of those before us. Why falsely limit that process and increasing rate of? Ity is not consistant with what we are.

Reform???? What we need is correction in accord with what is not patentable.

Some of you are missing the point

[ZB Mowrey]

Those who say this is worthless because it doesn't completely fix all your problems with the system, should evaluate the following:

"All these incremental fixes to Firefox are just annoying. I wish they'd just get over it and release version 5.1 *right now*. Anything else is a waste of time and effort."

Change at this level of society doesn't come in an avalanche, it's an incremental, patch-like process. This is done to minimize harm to the basic structure of society, which after all has fed and educated some of us, despite its flaws. I don't know how many others like me are out there, but I know I've been hoping for exactly this kind of open review for patents for a long time. Now hobbyists and competing commercial interests will have the ability and incentive to help crush some of the utterly stupid patents that get granted.

Re:Recently developed?

[glwtta]

I figured the two technologies were Google and Wikipedia...