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'?"

Comments

Sounds nice, but will actually make it worse

[chriss]

It sounds like a nice solution, unfortunately it is not. It would require two mayor changes:

1. A reverse of the policy of patent offices as profit centers. Almost all western countries have challenged their patent offices to make money. The only way they can make money is by charging for registering as many patents as possibly. This is one of the major problems driving all the trouble we have today. If it wasn't in the interest of the patent office to accept patents, they would check more thoroughly.
2. MUCH MUCH more personnel for the patent office. If it is free thousands of patent applications will flood the patent office, including many that are already covered by other patents. I doubt that those people that do not apply public patents today (which is possible and cheaper than a regular patent) due to the cost will actually start an intensive (and costly) patent research before applying a free patent in the future. Since patent offices are obviously incapable of handling todays workload, this would finally kill them, resulting in even more trivial patents being accepted due to lack of proper checking.

I'm not a friend of patents, but I see that they have their place. Making them free is an attempt to fight a symptom (patenting trivial things) by being faster and patent any possible trivial thing first so no idiot can use a stupid patent to blackmail everybody. But the real problem is the lack of quality in the review process and the dependency of the patent office on the registration fees (see above).

So I suggest to:

• raise the bar for inventions. No software patents, no business patents. You can patent an implementation, but not an idea. In case of doubt, say no. The applicant has to prove that his invention is patent worthy (yes, this will harm small inventors)
• give the patent office more money. And if they fuck up and register something that was covered by prior art or is just current state of the art, fire them. Let them feel the pain and they will learn.

Defensive publication

[tepples]

This is called defensive publication. If you want to make sure that nobody patents a particular invention, get the invention published in a scientific journal.

Isn't the OSDL already working on this issue?

[GrigorPDX]

http://www.osdl.org/about_osdl/legal/patent_common s/

Yup

[sterno]

Yeah the sheer volume of meaningless patents is already huge. What I would suggest is perhaps somewhat along the lines of the original concept but deals well with the volume issues:

1) Provide an open database for public disclosure. This database would be a repository for prior art claims. So what you would do is, if you had a good idea, you'd drop it into the database and it would be kept there. Then when a patent came up, it would be readily searchable and if your idea was relevant and prior to their invention, it'd prevent them from getting the patent.

2) Seriously improve the patent review process. That means upping fees, hiring more patent clerks, and increasing the difficulty of getting a patent in the first place. It's time we stop pretending that patents are the realm of the lone inventor and recognize that they are weapons in corporate IP arsenals. As such make them very expensive to get and maintain and make the vetting process quite vigorous.

RE: couldn't people could flood the patent office

[KyleUnverferth]

...couldn't people could flood the patent office...

Why yes. Yes, people could. Which is precisely why the US Patent Office doesn't give away free patents.

The fragility of patents

[blibbler]

Everyone knows that prior art defeats patents. If you are the first person to develop an idea, and you publish your work immediately, then you are immune from a subsequent patent. This does not cost anything.

Where open source/Free software runs into trouble is when they are replicating the work of others, such as GIF, MPEG4 etc. To a lesser extent, there are very broad patents, such as some online shopping patents, and UI patents. The broader a patent is, the easier it should be to find prior art. Again, if you publish your work (and CVS, etc would count) then you have nothing to worry about.

Anyway, if you intend to share the patent with the world, there is no need to apply for a patent then "free" it... just make the information available to the public, and it should have the same effect.

Re:Defensive pub ... not limited to journals

[pbhj]

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).

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 ... I used to be a UK Patent Examiner ... how did you guess??

SIR: Statutory Invention Registration

[ewhac]

SIRs are a sort of un-patent, also issued by the USPTO. This more or less officially registers your invention into the corpus of prior art, giving it a far better chance of being found by patent examiners. However, it grants you no rights of action against "infringers".

These registrations used to be used by government researchers, back when all publicly-funded research used to enter the public domain.

Schwab

Problems do have solutions, you know

[billcopc]

One of the problems with patents is they exist.

The system is screwed up, it was never designed for the kind of abuse the technological revolution has brought forth. We either need dramatic reform of the patent system, or just abolish it entirely. Patents are being used as strategic weapons against competition, hindering progress. The recent case vs RIM concerning their email system is a perfect example of bad patents. Its sole use was to slam a competitor by threatening to cripple the entire customer base including some high officials. The company that owns it doesn't even use it. We have patent holding companies whose only purpose is to sit on a patent portfolio until someone pays for a license, or someone's ripe for a lawsuit. They serve no other purpose. They're IP pimps.

Not needed -- already free

[localman]

I actually met with several people from the patent office last week. They were visiting companies in Nevada to learn how patents effect our business. First thing I want to say is that they weren't a bunch of idiots and they took their job seriously.

Anyways, we discussed the idea of public patents, and there's a simple solution already. You don't have to patent anything to make it public. You just have to publish it. That's all. If you have something that could be patentable and you want to make sure that it's free for public use, just write up a whitepaper, date it, and make it available publicly on the web. Make sure it gets into the WayBack machine. They use these resources when researching patents, so it should prevent them getting granted. If not, it would still function as prior art.

Cheers.