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US Software Patents Hit Record High
Aditi Tuteja writes "US Patent and Trademark Office made a new record for the number of software patents awarded in a single year. The agency has issued 893 new patents yesterday. Pushing the total to 30,232 in this year. If this is the trend, more than 40,000 software patents will be issued this year, according to the Public Patent Foundation. The previous record was set in 2004. Several major technology vendors have pledged not to enforce their patents against open source projects. IBM for instance essentially donated 500 patents to open source projects last year. Earlier this year, the US Supreme Court overthrew a prior judgement that required a judge to issue an automatic injunction if he found that a patent was being infringed."
How many of these are based on methods that are centuries old, like Projective Gauss-Siegel? And how many are just plain obvious?
Inventions have long since reached their limit, and I see no hope for further development.-- Frontinus, 1st cent. AD
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In general I'm pro patent and copyright but I may be facing a real problem with a new project. How can I be sure I'm not infringing on some one else's patent? Is the first sign the lawsuit? There's no real system in place for spot checking so anything I do in software development may be in breach and I have no way to know it. I want to support the system but with potentially millions of patents in place it's going to be hard to avoid infinging. We're a small company so a lawsuit is french for bankruptcy.
Ironically, this might actually be a good thing.
//0xFE
If, say, 90% of all obvious patents are granted _now_, then 20 years from now, all obvious patents will have expired and there wont be many more obvious "inventions" to patent.
Ergo: in 20 years - no more obvious patents.
It works, more or less, between large corporations. Patents are used essentially as nukes, with the politics of MoD. Odds are they'll each have patents they could use against each other, but there's a tacit agreement that you won't use yours and I won't use mine. (Destructively, at least). That all falls apart when a large company feels threatened by a small one, without a stash of patents to threaten with.
Look on the bright side, at least we're getting all this patenting nonsense done with and out of the way all at once. In another 20 years there will be no more software patents because everything patentable, or at least worth wile patenting, (even the stupidest most obvious of ideas and interfaces) will have expired. Then we'll be free to bath and bask on two centuries of wealth wasted on two centuries of greed. Perhaps only then will true innovation begin.
I'm dreaming again.
I think you may misunderstand the first to file vs. first to invent situation.
Under both systems, if you have no patent, and somebody with a patent sues you for infringement, you can invalidate the patent by demonstrating prior art. This is exactly the same under either system.
The ONLY situation where first to file vs. first to invent matters is when you have a patent application and someone else also has a patent application for the SAME INVENTION. Note that NEITHER of you actually have a patent yet. In first to file systems, the person who filed first gets the patent. In the US with a first to invent system, we hold an "interference" proceeding to determine, then and there, which one of you invented first. This is extremely expensive for everyone involved, can take well over a year to straighten out, and is of questionable benefit.
Consider the alternative - you invented it first and can prove it, but someone else filed first. You won't get the patent, however you WILL have some valuable information: You can probably invalidate that patent with hardly a struggle. The patent that issued is far weaker, if not abandoned altogether. You don't get the patent protection you may have deserved, but the patent that was issued to the other guy is crippled. The subject matter of a patent that has been abandoned or invalidated becomes public domain, and therefore free to use by anybody.
The only people who win with a first to invent system are those people who truly seek their right to exclude but, for whatever reason, have delayed about filing the patent paperwork. There are many people who think we'd be better off harmonizing with the rest of the world and using a first to file system.
Not only will every thing then be up for grabs, but it will all be neatly documented at the USPTO!
Wake me up in 20 years.
A related question - if someone suspects you of infinging their software patent, but you claim closed source, trade secret status, how can they prove you infringed, if you don't allow them to reverse engineer your software, under penalty of the DMCA?
This issue is a bit more complicated than you think.
The reason your idea would not work is that there is no duty to conduct a comprehensive search for a prior art before filing a patent application. The reason that there is no such duty is that a full search of every printed publication that is in existence would cost hundreds of millions of dollars. Under Federal Rules (37 CFR 1.56), patent applicants are required to submit material art that they are aware of, and patent applicants commonly submit dozens of prior art references for consideration by the USPTO. If an applicant (or its attorneys) violate Rule 56, the patent can be invalidated for inequitable conduct.
Additionally, due to the billions of prior art references that exist, invalid patents are often granted without any fault whatsoever by anyone. Should my client in Arkansas be punished (for perjury as you suggest) for not being aware of a 1990 paper (written in Greek) that is only accessible by manually flipping through a card catalog in Athens? The 1990 Greek paper, indexed only in a physical card catalog in Athens, would be prior art that could invalidate my client's patent, why should he (or I) be punished for not finding it?