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Peer Review Starts for Software Patents

Posted by Zonk on from the clarity-to-a-muddy-situation dept.

perbert writes "As seen in an interview in IEEE Spectrum: Qualcomm v. Broadcom. Amazon v. IBM. Apple v. seemingly everyone. The number of high-profile patent lawsuits in this country has reached a staggering level. Hoping to curtail the orgy of tech-industry litigation, the U.S. Patent and Trademark Office (USPTO) is experimenting with reforming the way patents are applied for and processed. Launched on 18 June 2007 was an Internet-based peer-review program whereby anyone (even you) can help to evaluate a number of software patent applications voluntarily submitted for public evaluation. The one-year pilot Peer-to-Patent program is a collaboration between the USPTO and New York Law School's Institute for Information Law and Policy, in New York City. The program's Web site allows users to weigh in on patent applications by researching, evaluating, submitting, and discussing prior art, which is any existing information, such as articles in technology journals and other patents, relevant to the applicant's claims."

13 of 102 comments (clear)

  1. Not peer review by kmac06 · · Score: 5, Insightful

    While this is an improvement, it is not peer review. Allowing public comments is different than requesting recommendations from experts in the field.

    1. Re:Not peer review by Evets · · Score: 4, Insightful

      While there is a semantic difference, I'd hate to leave "Peer Review" to academics and "career experts" that have taken the time and effort to have their own credentials reviewed.

      There are plenty of people out there who wouldn't pass muster if you reviewed their credentials, but they know more about the inner workings of some things than anybody else in the industry.

      How many key industry players are drop outs that made their money on hard work and ingenuity? More than a few I imagine.

    2. Re:Not peer review by drinkypoo · · Score: 4, Insightful

      Then what does the "peer" mean? If anyone can comment, it's just "review".

      It means every bit as much as a "jury of your peers" does today.

      Once upon a time, a "jury of your peers" was a group of citizens with similar social standing, economic condition, et cetera. Today it's twelve assholes that both lawyers think they can manipulate, who are guaranteed beyond a shadow of a doubt to know nothing about the case they're trying.

      I don't see any reason why corporations shouldn't be judged in the eyes of random jackoffs if you and I are.

      --
      "You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
    3. Re:Not peer review by Belial6 · · Score: 2, Insightful

      The problem with Jury Duty is that it wasn't supposed to be a financial burden. You can bet the $5 a day they pay was actually worth something when it was first implemented. It's a sad state of affairs when juries are made up entirely of people who can afford to just not get paid for weeks at at time. If we require maternity leave, and disability to be paid by employers, we sure could help our country a lot more by adding jury leave to the list.

  2. Big flaw: by Anonymous Coward · · Score: 3, Insightful

    The people who could most contribute to this have the biggest incentive not to.

    If you read the patent, and it is then granted, and you, or your company, are ruled to infringe, the plaintiff is entitled to treble damage (I think) for "willful infringement".

    The people who could make the most interesting contribution (because it's their domain) are also the most likely to be potentially infringing (because it's their domain).

    And this thing is not anonymous...

  3. Re:let's actually moderate patents by jeevesbond · · Score: 3, Insightful

    Good idea, I'd only have one moderation option though: 'SoftwareIsNotPatentable'. :)

    --
    I'm going to transform myself into a mighty hawk. Either that or I'll just go and work at Dixons, haven't decided yet.
  4. What Happen to /. by Bucc5062 · · Score: 4, Insightful

    Holy Mother Of God!!! After all the whini^H^H^H^H^H commentary about how awefulthe Patent Office is regarding software patents, after all the knashing of teeth over why can't the US Patent Office let the public help....They DO!!! And the first 15-20 comments are complaints about the word Peer, litigation, and Microsoft still fixing the system....oh wait, this still is /. Folks, I would figure a big cheer is in order. Change was made to a bad system. Maybe not the panacea we hope for, but better then do nothing and bitch. How about a hand to the Patent Office for taking a trail run at trusting the public to balance on the side of good. I have to specific gain or loss in this, but if it stops the banal patent whoring, submarining, or patent camping I gladly lend my voice to say three cheers, and make the public win!

    --
    Life is a great ride, the vehicle doesn't matter
  5. Re:4 Year Backlog! by Evets · · Score: 5, Insightful

    You just made a brilliant argument for getting rid of software patents all together.

    After all this time, there is no legitimate process for determining the true origination of an idea or whether an idea is actually original. This process is a band-aid for a broken bone.

    If you truly want your idea protected, it needs to be kept secret. That is the only real protection an inventor can provide himself with.

    The patent system is over encumbered with legislation and politicization (is that even a word?!?) to the point where a true innovator either has to be working under a corporate structure that can support his or her efforts, or that innovator must stop innovating long enough to gain an understanding of the process and navigate through it.

    Initially conceived to protect important intellectual property and therefore inspire ingenuity, the patent system has transformed into a system that actually stunts progress and protects very few who actually change our world for the better.

  6. I'm still having trouble with this. by Bruce+Perens · · Score: 5, Insightful
    Don Marti said in his blog a few days ago, and I agree: Why are we giving software patent holders free QA so that they will have more solid patents to use against us? . And some folks are trying to tell us that this won't expose us to the treble damages we would get if we looked at granted patents because these are only applications, but what happens when these get granted? Do we have to somehow insulate ourselves from knowledge that they are ever granted?

    I am not at all sure this would help either Open Source or small and medium sized proprietary software developers, who I imagine are the folks they want to have doing peer review - and also the folks most in danger from Software patents. I do not at this time recommend that you participate in this at all if you are an Open Source developer, the risk of being exposed to treble damages is too high. I don't know if you should participate in this if you're even an Open Source sympathizer. It sounds too much like an effort to save a software patent system that we should be shutting down.

    The only way I think it would help would be if we could entirely kill a patent application. Just fixing one only makes it more powerful.

    Bruce

    --
    Bruce Perens.
    1. Re:I'm still having trouble with this. by Anonymous Coward · · Score: 1, Insightful

      > Why are we giving software patent holders free QA so that they will have more solid patents to use against us?

      Because the alternative is more patents that nobody QA's that they STILL use against us.

    2. Re:I'm still having trouble with this. by PitaBred · · Score: 4, Insightful

      I don't agree with software or business method patents in general (or genetics for that matter), but this is a hell of a lot better than BS patents being passed through and then someone having to pay through every orifice for having transgressed on a bogus patent. It's a stop-gap as far as I'm concerned. We can still fight the good fight against them, but until then, this is the best step we can take. Fixing one may make it more powerful, but it may also marginalize it enough with prior art that it becomes irrelevant instead of the "one click" type crap. If you're in an out of control car, the first step is taking your foot off the gas, not stepping on the brake.

      --
      My blog. Good stuff (when I remember to update it). Read it.
    3. Re:I'm still having trouble with this. by Anonymous Coward · · Score: 1, Insightful

      Because most bad software patents you should be able to disprove with prior art. If its so good that it can overcome all prior art, then maybe it does deserve a patent. However, I've yet to see a software program in the last 5 years or so that was that good, so it shouldn't be a worry. There are plenty of affirmative defenses to willful infringement that just looking at a patent doesn't expose you. This is a good program all around. People should participate, and if you don't like software patents, work at the legislative level. The courts and the executive aren't going to fix it, because the way the Fed Circuit has interpreted the law, they shouldn't. For the patent system in general, though, this is a great thing.

    4. Re:I'm still having trouble with this. by Wesley+Felter · · Score: 4, Insightful

      But a patent that hasn't been through a QA process is likely to be much easier to defend against.

      If you have a legal budget and you're willing to fight the patent in court. Most open source projects will just roll over if they get hit with even the threat of a lawsuit, so the strength of the patent is irrelevant.