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Public Patents?
Lettuce asks: "While driving along today, I was mulling over patents. One of the problems with patents, from an open source perspective, is they cost money to acquire. Not only do you have to pay the Patent Office for them, you usually need to obtain the services of some lawyer. Which means you'll usually never see someone patent an idea just so that it can be public domain. What if we lobby our congressmen and senators to wave the charges for patents and even provide patent assistance, for those of us who would patent an idea for the public. With that simple change, couldn't people could flood the patent office with simple ideas and prevent abusers from patenting obvious ideas such as 'delivering e-mail to a wireless device'?"
IANAL, but my understanding is that if something's been published, it can't be patented. I read once (on /., so take it with a grain of salt) that sometimes a company will publish an invention when they don't want to go to the trouble and expense of patenting it, but don't want anybody else to patent it either.
I'm not sure what's considered "publishing" in this context. Maybe releasing an open-source program would be sufficient, or possibly you'd need to make a Usenet post, or send it to the JACM or something.
http://www.osdl.org/about_osdl/legal/patent_common s/
all of them....
The notional proponent of the art, the position of whom is addressed in patent inventiveness/novelty decisions, is taken to be aware of all prior worldwide _publications_ (and not just paper ones, audio, video, scratched tree bark, ...). A defense of inventiveness can be mounted for obscure publications (I won't go into that).
... I used to be a UK Patent Examiner ... how did you guess??
There are several services that offer defensive publication.
One such route would be to file a patent _application_ and have it published. It then falls squarely within the gamut of documents regularly searched by patent examiners.
The stages of an application up to publication require fees of about £130 (sterling). This compares favourably with facilities like www.researchdisclosures.com (which I occassionally cited for patent searches) which charges £75 *per page*!!
This is not the hard bit at all.
The hard part is legally challenging a mega-corp with a prior publication of their "invention". Public money would never be able to meet the costs.
Yes
From what I understand, SIR's are not that common, but they should be. They certainly would be more visible to an examiner. There's too many places to search in the course of a patent examination, especially given that an examiner usually only has 8 to 15 hours, given experience and type of invention, to examine the case and find prior art. Some time has to be spent on reading and understanding the invention and writing up the findings. Doesn't leave much time for a thorough examination.
SIR's should be free, because no one has to examine them. Examiner's have less databases to search to find related teachings.
Congress certainly won't let the Patent Office offer free examination. Congress relies on the Patent System's fees to balance their budget defecits. Congress would not legislate away a source of income.
I happen to know the IP.com gang (used to be one myself) and can tell you that there is more to making sure the stuff is available than just slapping it on a server somewhere. Documents published with them get digital notarizations (to allow you to prove times of availability) are made searchable, documents are collected in such a way to allow the collection of metadata (as many companies have rigid publishing formats for patents, but not disclosures) to help searchability. In addition the data is made available to patent offices, and they publish a printed journal containing the disclosure info (and optionally the full disclosure).
Do you have to go to these lengths to do something yourself? No. Does it increase the chances that your disclosure will be seen by a patent examiner. Yes.
Do people really think patent examiners have the time to go wading through every obscure website to find non-patent prior art? The fact that companies like IP.com and Research Disclosure (another defensive publishing company) have consolodated, high value collections makes them worthwhile to search. In addition, the inclusion of high-profile disclosures (like those from companies like IBM) makes these sources far more attractive to a patent examiner than Joe Nobody's blog that might have a good idea mixed in with pages of what he had for dinner last night, and why he thinks the Star Wars Empire would beat Star Trek's Federation in a fight.
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So while it isn't free - it is reasonable for the amount of work that is involved. Interestingly, years ago, IP.com did offer a free publishing service (in conjunction with the Foresight Institute) which allowed free publications for inventions in the software and nanotechnology areas (paid for by grants) but it was completely ignored and eventually dropped. The original story was covered on Salon and commented here on
A lot of people just dislike the patent process so much, but seem to want to complain about it rather than explore the actual alternatives.
>>> "The database does not contain ideas that someone comes up with but doesn't care for protection."
... and the one big cheap database, the web. So yes "the database" used for patent searches (at least in UKPO and EPO) does have "free ideas" in.
e nt/windsurf.html
Except that many of the databases used have non-patent information in them. Back copies of computer magazines, IBM technical disclosure bulletins, journals of the IEE and IEEE, British Computer Society publications (to name but a few)
For the breadth of available prior art check out this synopsis of the famous "Windsurfer" case http://slcc.strath.ac.uk/scotslawcourse/ip/ip/pat
Which means you'll usually never see someone patent an idea just so that it can be public domain.
That's what publishing is for (in some magazine, journal, whatever). If someone tries to patent the idea later on, it should be easy to prove that the idea was not original and prior art exists.
That's why rather than flooding the patent system with public patents, the patent challenge system should be opened so that bogus patents can be easily challenged by the public and the evidence they provide would be used as part of the challenge review process. Of course, this still requires more money and people for the patent office as mentioned in a previous post.