Community Patent Review Project Announced

PatPending writes "American companies General Electric, IBM, Microsoft and Hewlett-Packard have joined with the New York Law School and the U.S. Patent and Trademark Office to inaugarate a new system of peer review for software patents. The four companies, plus Red Hat, the world's biggest listed open source software business, are the lead sponsors behind the Community Patent Review project. The one-year pilot program will begin in early 2007 and focus on published but not-yet-granted patent applications relating to computer software. Scientists and engineers will be able to submit prior art to patent examiners at the USPTO using an online system. All Community Patent review project documents will be available on the internet for public comment. 'High-quality patents increase certainty around intellectual property rights, reducing contention and freeing resources to focus on innovation,' said David Kappos, vice president of IP law at IBM."

Comments

It won't work

[Weaselmancer]

I hold the patent for online peer-review of patents. I beat Jeff Bezos to it by maybe a day or two.

In Soviet Russia...

[2.7182]

they had a system like this.

Re:In Soviet Russia...

[RuBLed]

You're breaking the trend. No matter how corny it is it should be. "In Soviet Russia Patents announce the Review the Community Project"

Re:In Soviet Russia...

[rts008]

Uhmm...no.
More along the lines of:
In Soviet Russia, patents review the community.
Or something similar in format.
That's the problem with your post...format- it's important- it's the whole point of the *joke*.

Now practice: "In Soviet Russia, (subject/noun) verbs you/convenient scapegoat!"

*cue to obligitory Simpson's scene: Bart writing "In Soviet Russia....." on chalkboard at program intro*

If this is not rectified within the next three (3) business days, your /. geek credentials will be hereby ridiculed and further discredited.

Make the right choice....for your own sake. Do us proud!

Re:In Soviet Russia...

[PrescriptionWarning]

In Soviet Russia, 3 business days rectify YOU!

Re:In Soviet Russia...

[laffer1]

In Soviet Russia, patents review YOU.

Prior art question.

[zepo1a]

What's to stop the company/person with the prior art filing their own patent when the copycat is denied?

Re:Prior art question.

[inf4m0usB]

I think it depends on how long ago to prior art was published (if > 1yr you can't file).

Re:Prior art question.

[theophilosophilus]

What's to stop the company/person with the prior art filing their own patent when the copycat is denied?

Patent Law

Statutory Bars The law requires you to exercise your rights or loose them. The textbook case is Egbert v. Lippmann

Re:Prior art question.

[The Empiricist]

Whether the creator of the prior art could file a patent also depends on whether the patent applicant conceived of the invention before whoever conceived of the prior art. Publishing an invention does not prevent someone else who invented it first from filing a patent application. Although it is an absolute bar if the inventor does not file within 12 months.

It's worth noting that the patent application may also may disclose something more precise than the prior art---an improvement perhaps. In that case, the patent applicant would still be able to claim the improved invention, unless the improvement was obvious to one of ordinary skill in the art.

This endeavor is likely to help in more precisely defining patent claims. Patents that are peer-reviewed potentially would be narrower and stronger. This is good because it would mean less pointless and preventable litigation.

This endeavor is also good as it would increase the average level of knowledge in the software industry of what patent claims are and what they mean. This would also mean less pointless and preventable litigation because 1) more software engineers would know how to steer around existing patents and 2) fewer patent holders would threaten to sue based on narrow patents.

Re:Prior art question.

[aussie_a]

The law requires you to exercise your rights or loose them.

Sounds a lot like the human body.

Sound great, but...

[stox]

Don't the largest current patent holders have the most to gain from this?

What did I miss?

[packetmon]

American companies General Electric, IBM, Microsoft and Hewlett-Packard have joined... The four companies, plus Red Hat, the world's biggest listed open source software business, are the lead sponsors...

Did I miss something or could this have been written as:

American companies General Electric, IBM, Microsoft, Hewlett-Packard and Red Hat have joined with the New York Law School and the U.S. Patent and Trademark Office (USPTO) to inaugarate a new system of peer review for software patents.

As for for the comment: " Red Hat, the world's biggest listed open source software business," ... Doesn't Sun with Solaris and Java qualify as "the world's biggest listed open source software business"... Even Novell with SuSE could qualify for that title.

Re:What did I miss?

[kfg]

Doesn't Sun with Solaris and Java qualify as "the world's biggest listed open source software business"

http://www-128.ibm.com/developerworks/opensource

KFG

Re:What did I miss?

[ZachPruckowski]

I think they're the largest company on a US stock exchange (or maybe any publically traded company) whose revenue is entirely open-source based. IBM does a bunch of other stuff, Sun sells servers, and Novell has other products designed for Windows. So Red Hat might be the largest company based whose revenue is entirely dependent upon Linux or a stack built primarily on Linux.

wiki time!

[radarsat1]

I'm actually kind of surprised no one's started a wiki like this... :)

I've got a great new piece of software...

[rHBa]

I've got a great new piece of software that hasn't been patented yet, I think I'll hand it over to Microsoft for review...

Re:Wasting resources to stop wasting resources.

[Red Alastor]

While this may appear to be a good thing, what it amounts to is these companies further wasting resources in an effort to stop the resources that are already being wasted due to a flawed patent system.

True. But if we had a decent system, peer-review would have a role to play in it. The way I see a good patent, system :

• There is time penalties for every time you troll the patent office. If you submit a stupid patent, your next one will be queued longer. That way, you cannot use the "throw noodles at the wall, see what sticks" approach. If we make it a monetary punishment, big companies could still abuse the system but a time penalty is fair for everybody.
• Peers (read competitors) have the first opportunity to review the patent. They'll jump on the occasion to point prior art. After that, the patent office can do its own research if that wasn't enough but if good prior art was found, it should be very quick.
• The patent office pays court fees every time a patent is overturned in court. It should make them nervous of approving anything that isn't bullet-proof.

Summary:

[Duncan3]

"We got ours, lets make damn sure nobody else gets any"

How nice.

Re:Summary:

[OakLEE]

"We got ours, lets make damn sure nobody else gets any"

Well if "they" did invent it first, why should somebody else get a patent on it?

Peer review is a good thing in principle because it will filter claims before litigation occurs. The average patent suit costs around $2 million to litigate, not to mention time it takes if the case gets appealed. If you can come up with a cost-effective system of peer review that would reduce the amount of litigation, you would actually be making they system more favorable for lone inventors and small businesses.

Re:Wasting resources to stop wasting resources.

[The Empiricist]

Delaying patent processing for individuals who "troll" the patent office could delay patent processing for everyone else. Applicants for United States patent have the option of keeping their patent applications secret until the patents are issued (although a patent applicant who does this, instead of allowing the patent application to be published after eighteen months, loses the right to get a patent in many countries). If an applicant for a United States patent chooses to abandon one of these applications, then the application is never made public. If the patent issues, then it is prior art from the date of filing. If it is abandoned, it is not prior art.

This causes a problem in processing additional applications that claim to have invented what was in the unpublished patent application. Either the subsequent patent applicants have to narrow their claims, without knowing what the potential prior art is, or they have to wait while the patent office sorts out the first patent application. Punishing the first patent applicant by delaying the patent processing would also punish subsequent patent applicants.

Real Soon Now

[Programmer_Errant]

Of course if you get tire of waiting (they've been announcing this for a while now) you can go look at published patent applications here.

Re:Wasting resources to stop wasting resources.

[aussie_a]

While this may appear to be a good thing, what it amounts to is these companies further wasting resources in an effort to stop the resources that are already being wasted due to a flawed patent system.

Funny I thought this was about combatting bad patents, not stopping resources from being wasted.

Potential Problem

[aussie_a]

Can't you be held liable to a greater degree if you knowingly infringe on someone's patent rather then unknowingly infringe? Given how many non-prior art but still completely obvious software patents are granted all the time that shouldn't be upheld by the courts, you run a much greater risk of handing over a lot more money if you lose, right? If so, I can't imagine too many people would be willing to take that increased risk. It's much safer to simply not read about the patents and then attack the ridiculous patent, and hand over less money if you lose.

So if most people do decide it's safer to avoid reading about the software patents, isn't that going to make this new system difficult to actually work?

Bad patents

[Tony]

The only good software patent is a dead software patent.

All software patents are bad patents. Full fucking stop.

Great . . .

[LuYu]

Now Microsoft can use its software and EULAs to control what patents are issued.

Subsection: The User agrees that s/he will not use the Software to disprove, dispell, reject, invalidate, or otherwise hinder patent applications submitted by Microsoft or Microsoft's affiliates. The User hereby agrees that, in the case of Microsoft's patent applications, prior art does not exist. The creation of documents that claim to show pre-Microsoft prior art with the Software constitutes a violation of this License.

Re:Great . . .

[Jesus_666]

This is the subsection when filtered through a "what's effective in Europe" lens:

Subsection: Bork bork bork bork bork bork bork bork Software bork bork bork bork bork bork Microsoft bork bork bork bork bork bork patents bork bork bork bork bork License.

Once the FFII has finally won and Europe is rid of software patents the phrase "bork bork patents bork" will be struck from the legal understanding of the EULA.

Re:Wasting resources to stop wasting resources.

[OakLEE]

The patent office pays court fees every time a patent is overturned in court. It should make them nervous of approving anything that isn't bullet-proof.

It's the government, do you really think they are going have a problem with spending extra cash?

this sounds like

[drgroove]

a fantastic way for billion dollar multi-national software corporations to prevent startup companies from gaining any traction in the marketplace by preventing them from protecting their IP.

This Makes Sense to Me

[magixman]

To fairly grant a patent, the patent office must be able to understand a) what has already been done b) what is just plain obvious.

To achieve either you have to be skilled in the art of the subject at hand and that is just not something one could reasonably expect of a patent examiner who must be a generalist. A community skilled in the art must get involved and I really think this a good thing and could turn the patent system around. No matter how evil you think patents are, they are not going away anytime soon. The best we can do is to better the current situation by supporting efforts such as this.

Re:This Makes Sense to Me

[Chris Chiasson]

In the mean time, it will be harder for people to obtain patents. However, after the current ridiculous patents expire, we might be looking at a better system than what we have now.

Re:This Makes Sense to Me

[bit01]

To fairly grant a patent, the patent office must be able to understand a) what has already been done b) what is just plain obvious.

True. The legal fiction that a minor government bureacrat would be able to assess all of human knowledge and arbitrarily decide whether something is original is just mind blowing. Scientists spend their entire working lives in very narrow fields and even they sometimes make mistakes. Not to mention the idiocy of allowing a minor, empire building government department to act as gatekeeper on all of technology.

To achieve either you have to be skilled in the art of the subject at hand and that is just not something one could reasonably expect of a patent examiner who must be a generalist.

True.

A community skilled in the art must get involved and I really think this a good thing and could turn the patent system around.

Not a chance. Have you seen how many software patents are being issued? There is absolutely no chance of a comprehensive review of a significant fraction of them. Particularly since the ones who should do the review, the people who do the actual work, quite rightly regard it as legal fiction make work.

No matter how evil you think patents are, they are not going away anytime soon.

So the patent mafia like to claim. The US is only 5% of the world's population. The software patent situation in 95% of the world's population is in flux. With only a bit of luck the USPTO might find itself out in the cold, to the benefit of everybody. Including the US at large.

The best we can do is to better the current situation by supporting efforts such as this.

No, the best we can do is to get our congressional representatives to fix the law so that it actually implements the objectives laid out in the constitution, to also make sure this massive interference in the citizen's business has a scientific basis and maybe send some of the bribed examiners at the USPTO to jail (with the amount of anonymity, ambiguity and money involved it's a certainty there's a lot of corruption going on). These are all unlikely but not impossible.

---

Scientific, evidence based IP law. Now there's a thought.

Re:This Makes Sense to Me

[magixman]

No, the best we can do is to get our congressional representatives to fix the law so that it actually implements the objectives laid out in the constitution, to also make sure this massive interference in the citizen's business has a scientific basis and maybe send some of the bribed examiners at the USPTO to jail (with the amount of anonymity, ambiguity and money involved it's a certainty there's a lot of corruption going on). These are all unlikely but not impossible.

Bribed examiners?
Give me a break.
Good luck writing to your representative. In the mean time I think the review process is a major step forward.

Re:This Makes Sense to Me

[Halo1]

Yes, we really should all start working for free for the big companies helping them vet their patent applications. Come on, if a bureaucratic government run monopoly-granting system is broken you do not solve that by making the people work for you for free (in particular because they could be doing productive work instead, like writing or fixing software). Instead, you should fix the system.

No matter how evil you think patents are, they are not going away anytime soon. The best we can do is to better the current situation by supporting efforts such as this.

This band aid does not solve any problems (the big companies will still own all the software patents and will still be able to squash the competition with them), and actually makes the productivity loss caused by software patents even bigger since more people are wasting their time on them.

The only thing it might do is make the system a little more bearable for these large (ab)users of the patent system. This means it *will* take longer for them to drown in the mess they are creating and pushing for with all the software patents, resulting in even more immobility and less energy spent on solving the core problem.

So no, working for free for the IBM patent review department is not the best thing you can do.

Re:This Makes Sense to Me

[bit01]

Bribed examiners?

Give me a break.

Don't be so sure.. This is anonymous so it's only indicative but it does show how corruption could happen. And for one of the most important patents ever:

It's widely known that Alexander Graham Bell beat Elisha Gray to the patent office by a mere two hours with his application to patent the telephone. However, ten years after Bell's patent was issued, patent examiner Zenas Wilber admitted in a sworn affadavit that he had taken a $100 bribe from Bell, had taken a loan from Bell's patent attorney, and had given Bell the complete details of Gray's caveat. Hmmmm....
Source: Inventor's Digest, July/August 1998, pages 26-28.

As I said, it's just too easy, there's no checks and balances and there's too much money (i.e. incentive) and anonymity/ambiguity (i.e. no risk) involved.

Good luck writing to your representative.

Thanks.

In the mean time I think the review process is a major step forward.

Well, it's better than nothing but I think it's going to have only a minor effect because it doesn't address a root cause of the problem, that it's far easier to have a bad patent issued than it is to stop one. We'll see.

---

The USA and Europe should harmonize their software patent laws with China and India.

Re:This Makes Sense to Me

[magixman]

As I said, it's just too easy, there's no checks and balances and there's too much money (i.e. incentive) and anonymity/ambiguity (i.e. no risk) involved.

Thanks for citing the examples and references. There may well be corruption but I just hate to make the assumption that because there is so much money and anonymity/ambiguity that corruption automatically exists. I guess you can call me naive.

Re:This Makes Sense to Me

[vyvepe]

A community skilled in the art must get involved and I really think this a good thing and could turn the patent system around.

The penalties are higher when an infringement is found and the code writer/owner did know about the patent. It seems to be safer to carefully avoid it.

Total conflict of interest

[btarval]

Absolutely. These big companies have managed a clever scheme to hijack the resolution of the problems with Software Patents. Instead, this gives the Patent Office some credibility, while at the same time offering a platform to make certain that no individual ever threatens these companies again with Software Patents.

Take Microsoft. They've spend a ton of money this year alone settling patent infringement claims against small people/organizations. Now they no longer have to. And Microsoft isn't the only one.

Back in the 70's, the rumors (I heard from guys at IBM no less) were that IBM had Patent Examiners on the take to make certain no patent popped up that might be a threat to them. Now they've created a monster that is much cheaper to operate.

In short, this approach gives the appearance that the big companies can collaborate to approve each others patents, while completely shutting out any little guy who might be a threat. Companies are obligated to do things in their own best interest. And they appear to be taking the Patent Office for a ride.

I'm sorry, but this is yet another incredible screw-up by the Patent Office, once more displaying that they just haven't a clue about what they are doing. This effort raises so many questions about conflict of interest that it just doesn't have any credibility whatsoever.

There really is no way out of the Software Patent mess other than to abolish them. Until then, innovation will continue to suffer.

Not so great at all

[Bruce Perens]

What, you think the biggest patent holders in the world, the sponsors of this program, have the most to gain from having the Open Source community help them make their patents bullet-proof before they're granted so that court challenges of them won't survive later on? How cynical of you!

...sarcasm off. Of course you're right.

Bruce

A sensible patent system would not cover software.

[Bruce Perens]

How about a patent system that was based on sound economic policy? We don't really have much reason to believe that software patenting promotes innovation in software. Indeed, if you look at the tremendous success of Open Source, the thing they do differently from the rest is that they eschew most intellectual property protection. And they are certainly not short on innovation.

A lot of this is because software is one of the few products that can be effectively produced with reasonably low capital input and has essentially no cost of manufacture once it's been created. Letting everyone get their hands on an idea will be more effective for that sort of product.

So, I submit that a sensibly defined patent system would not have software and business methods within its scope.

Re:A sensible patent system would not cover softwa

[novus ordo]

Do patents help innovation? I don't necessarily think so but we have an experiment in the works. Europe has no software patents while in the US all they are doing is trying to make patents "better"(they just want to spend less on litigation and refiling using free labor...bastards). Let's see how this works out:

1. Big Patent Holder Patents X in USA
2. European Company uses X in its software
3. Profit!

Europe is looking like a good place to be making software...

and the crowd goes wild

[z4pp4]

(chirp, chirp, chirp)

So?

[sugarmotor]

Have money, will waste other people's time (the happy patent applicant)

Re:A sensible patent system would not cover softwa

[jhines0042]

It just occurred to me though that if you _do_ remove software patents then for _non_ trivial pieces of software engineering, pieces that may take years to write, you will end up with no protection. One of your own engineers could go, re-write your software in a different language, or even write it in parallel, and sell it themselves.

Now the market forces are different for software. But just because the cost to replicate a copy is $0.00 does not mean that you aren't due protection. Software's "manufacturing process" just so happens to be R&D time. A _good_ patent system would recognize that.

However, patents on _small_ or _trivial_ pieces of software is a different matter.

Re:Wasting resources to stop wasting resources.

[Red Alastor]

Punishing trolls would make the process go faster for everyone else. If you remove all the stupid non-sense patents, it's much faster to review what's left. You could also declare the official date the patent was filed to be right after the queue.

Re:A sensible patent system would not cover softwa

[Anomalyst]

The only people SW patents and patents in general protect are the trolls and the uber corporations with thousands of patents already in a portfolio to be swapped with other portfolios.
The major expenditures for software, both up front and ongoing is not R&D, but marketing and support. A company with such a non-trivial peoce of software is much better off to keep its development under wraps and trade secret. The advantage lies in being first to market, capturing and keeping mindshare and not an artifical constraint on competition.
Your rogue employee is kept in check by NDA and yellow-dog contracts enforced by the legal department of a company large enough to undertake such a non-trivial project.
If you cant kick it, you cant patent it.
If you don't have something generating revenue using it in 2 years, you loose it.

Re:A sensible patent system would not cover softwa

[Bruce Perens]

Actually, you can't patent a large piece of software that takes years to write.

You can only patent an algorithm or a process.

In general, these translate to small parts of an overall body of software. So what protection is there for large works? Copyright. If you put in a lot of time to write something, other folks aren't allowed to copy your work without permission. They have to put in time just like you did.

Bruce

Just the big boys trying to stop the trolls.

[Jaywalk]

American companies General Electric, IBM, Microsoft and Hewlett-Packard have joined with the New York Law School and the U.S. Patent and Trademark Office (USPTO) to inaugarate a new system of peer review for software patents.

When the judiciary started allowing patents on software (along with business processes and who knows what else) it was a sweet deal for the big players. They apply for a ton of expensive patents that the little players can't afford. If they need to use a patent they don't have, they just agree for a patent swap. And they can still crush any little player who tries to get in the game.

Then along come the patent trolls. These people don't have any viable products to defend, so they aren't interested in swapping patents. They just want cash. Its an unforseen consequence of the new rules that the big players don't like.

But now they have a hand in screening new patents. Consider:

The one-year pilot program will begin in early 2007 and focus on published but not-yet-granted patent applications relating to computer software.

Note that the huge pile of dubious patents already granted aren't up for review. Adding another layer of review will probably slow down matters for big companies as well, but everything already granted is getting a free ride.

Re:Just the big boys trying to stop the trolls.

[The Empiricist]

They apply for a ton of expensive patents that the little players can't afford. Are patents necessarily that expensive? Look at the current fee schedule. A basic patent would cost about $1,200 in fees. The big costs are getting a patent agent or patent attorney in to draft up the claims properly and push the patent through the USPTO. And a lot of that cost can be reduced if the patent applicant is willing to take care of the dirty work of identifying the invention and producing an enabling disclosure.

not a generalist

[ProfBooty]

Patent Examiner's aren't generalists, they look at a specific subset of technologies.

I had a chance a few weeks ago to sit in on a meeting of the IPLA on this exact subject.

The peer review project will be of use to examiner's for prior art, but as I undestand from the implementation, the comments may or may not be visible to the Examiners on the IDS they recieve. Further, how will the legal education of the participants be ensured? For example, who will educate them on the differences between comprising/consisting/consisting essentially of etc and what the legal definition of obviousness really is?

Will references be supplied to reject the claims, or the specification?

Will applicants have a chance to ammend their claims prior to examination after recieving the prior art references?

Re:not a generalist

[magixman]

The answers to those questions will determine how effective the whole thing ends up being.

The definition of non-obvious is supposed be "non-obvious to those skilled in the art". While a patent examiner may specialize in a specific area (e.g. software, medicine), they still are not likely to be "skilled in the art" enough to make a reasonable judgment on obviousness. I have heard it suggested that a better way to use outside experts is to explain to them what needs to be solved and see if they come up with the same solution. While a very slippery slope, something along these lines is needed.

Finding better prior art is a big step but I concede that the review process is far from a complete solution.

Re:Wasting resources to stop wasting resources.

[foobsr]

"Then, in 1991, under pressure to reign in massive budget deficits, lawmakers passed (and President George H.W. Bush signed) a law that revolutionized the way the patent office does business. Borrowing ideas then in vogue among private sector consultants and CEOs to "reengineer" organizations to make them more "customer-driven," Congress instructed the patent office, which had always been funded from government revenues, to now pay its own way through fees charged to applicants, and to make the process of winning a patent easier on them."

http://www.washingtonmonthly.com/features/2005/050 6.roth.html

CC.

Re:Wasting resources to stop wasting resources.

[JimDaGeek]

I agree 100%. This "review" board... well it seems bogus. Would any of the bogus MS patents get through this "review" process?

The idea of this peer-reviewed format is great. However, for it to work, no big patent holding companies can be a part of it. Otherwise we get all the bogus patents denied for all companies except MS, IBM, etc. MS, IBM and other big patent holders have tons of bogus patents. Is MS going to give up their current bogus patents? Or do they get to keep those?

Re:A sensible patent system would not cover softwa

[JimDaGeek]

Your argument makes no sense. How in the world would software that takes years to write be done by *one* person in another language in a short time frame to be able to compete?

There are already enough laws to protect large software companies. The first is copyright. I could not take the source code of Oracle or MS and sell it. If I did, I would owe all my profits to Oracle, MS or whatever company I took the copyrighted code from. As for your other suggestion of just *one* guy recreating the code in parallel, well that is just not reality. First, I am am a programmer with a decade of experience. Any good sized project requires more than one person. No one single programmer understands the whole code base enough to do what you suggest. Second, I have never worked for a company where I didn't sign an NDA. So if I did do what you suggested, I would be in court and lose a very fast court case and all the profits I made would be owed to the company I took the code base from.

Point being... there are already plenty of laws and contracts in place to protect just about any legitament situation that could arise with regards to the "IP" of source code.

The *only* things software patents allow are: patent trolls (people/companies that do not actually create, they just patent a stinking idea with no real work and either prevent or charge others to have the same idea) and companies with enough cash to buy up literally thousands of bogus patents to lock up the software development industry from any competition.