Peer Review Starts for Software Patents

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."

Comments

Looks pretty solid

[Evets]

Nice...

5 applications online, 22 instances of prior art submitted.

While everyone's favorite seems to be Method, apparatus and computer program product for providing status of a process, I had to laugh at Database staging area read-through or forced flush with dirty notification - it's pretty much a description of how every memcached/SQL plugin works. I guess somebody should mention that.

Apparently, if you make the description sound complex enough it will pass initial review.

It's good to see this kind of a process come to light. Three cheers for Beth Noveck.

Re:Looks pretty solid

[Anonymous Coward]

Apparently, if you make the description sound complex enough it will pass initial review.

Yes. I once had a conversation with a lawyer who worked in a patent office about this, and this is very correct. In theory the people reviewing patents and determining whether or not a patent should be granted are technically educated and competent. In fact, many of them are technically literate, but as we all know the world of computer technology is huge and what is often required to intelligently review a patent is not just technical literacy, but plenty of domain knowledge in the specific area of the patent (many people who use computers every day, even people who program computers, know very little about how memcached/SQL plugins work).

So even though some effort at technical literacy is made, the fact is that there simply isn't enough manpower to pull it off. A patent office only has so many people on staff, and so much money that they can spend on expert consultation, and the submitters are always in a hurry. These real-world pressures leave specific clerks holding the bag; they are more-or-less forced to make a decision with too little information, and financially incensed to lean towards approval.

So, yes, techy-sounding complexity will go a long way towards getting bogus patents approved.

Re:Looks pretty solid

[billsoxs]

I think that it has more to do with the time that the Patent officer has to spend on the patent. I am involved in such an issue and the offending patent has a "Korean" patent referenced on the front. That patent was from "1977". Guess what, the new patent was just a rehash of the "77" patent. (There is prior art to ~"1970".) How can I tell, I've read a translation old patent and the new patent. A laywer has said that because it is listed IN the patent - it is unlikely that a court would over turn the new patent.... The court will assume that the USPTO actually looked at the "Korean" document and thinks that it was different. That same laywer is seeking to find out if a translation of the "Korean" patent was looked at by the USPTO. He thinks it is unlikely. This is because of the time it would take to do so.

Note dates and names have been changed to protect the guilty.

Re:Looks pretty solid

[eggnoglatte]

On first sight, the situation may seem positive, but unfortunatly the quality of the "prior art" submissions is dysmal.

For example, if you read even just the intro of "Method, apparatus and computer program product for providing status of a process", it is immediately clear that the authors use the term "process" in a non-software meaning (i.e. a production process or something similar - they use a power plant as an example). Yet two of the supposed prior art submissions refer to operating system process monitors (one wanker actually uploaded a .exe file). Most of the other "prior art" submission have already been rebuked by other participants.

I predict a very fast end to this pilot test unless the quality improves drastically. If you are gonna comment, you should at least bother reading the patent, for christ sake.

Not peer review

[kmac06]

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

Re:Not peer review

[Evets]

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.

Re:Not peer review

[TheRaven64]

Judging by a lot of software patents, I would be highly surprised if experts in the field were the authors' peers...

Cheap shots aside, aren't you opening yourself up to litigation with this? If you submit prior art on a patent which is then granted anyway then they can prove that you read it, which opens you up to claims of wilful infringement, which carries stiffer penalties than ignorant infringement (which is one of the main reasons patents fail to achieve their aim, since the people who would most benefit from them aren't able to read them). Or is the review process sufficiently anonymous?

Re:Not peer review

[drinkypoo]

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.

Re:Not peer review

[Belial6]

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.

let's actually moderate patents

[1800maxim]

We could use such tags as "Funny" - aka invention too stupid (remember the diaper pants that inflate if a fall is detected? This supposedly saves your bum from bruising).
Or how about "Troll" - aka it's a patent troll, and should be ignored.
"Interesting" means not a bad idea, but let's put it on hold for a while and give it some thought.
I'm sure we could adapt "Informative" and "Insightful" as "Useful".

I'm only kidding about this.

Re:let's actually moderate patents

[jeevesbond]

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

Cheaper?

[vigmeister]

Will this make getting patents cheaper for the applicant?

No, but it probably aids peer review

[EmbeddedJanitor]

Attaching a bunchof prior art (or supposed prior art) to an application sure helps the peer review process.

Only problem I see with this is that it can easily become deep pockets vs the rest exercise. No doubt MS and some others will have a few people perminantly assigned to tearing apart applications from others.

Re:No, but it probably aids peer review

[aim2future]

No doubt MS and some others will have a few people perminantly assigned to tearing apart applications from others. Certainly, but there are plenty of people, like 50% of those I know that would gladly tear MS patent applications apart for free.

Re:No, but it probably aids peer review

[LiquidCoooled]

There is hope then.
If one company can do it, then so can others.
At some point they will realise its a waste of all their time, or we will end up with a server room fist fight broadcast on youtube.

win-win I say.

Remember getting paid for viewing ads online?

[1800maxim]

It was a system that displayed ads while you were using the mouse (moving the cursor, clicking).

Perhaps they could develop a similar system for patent reviewing - get paid for it. And then I could write a script that keeps moving the mouse cursor around and randomly clicks on ACCEPT/REJECT buttons (and let's not forget, moderate the patents - see my post above for more detail).

I suspect my randomizer would do a better job of filtering bogus patents out.

Anyone?

[niceone]

...whereby anyone (even you) can help to evaluate...

Well, anyone who can read a patent without their head exploding. I can't even read my own. let alone other people's :)

Hopefully the people that do this will know enough to read the claims properly and not just deluge the system with incorrect prior art based on reading the description.

More expensive

[qbzzt]

No. This will mean that there will be more people finding more prior art, and therefore more documents to wade through and more correspondence with the Patent Office. This means more expenses rather than less. I'm not saying it's a bad idea (I already argued against one application), but it won't make patenting inventions cheaper. The patent examiner will still do a literature search and find things in addition to whatever this process finds.

On the other hand, it mean that enforcing patents will become a bit easier because the general level of patents will be higher so there'll be less to litigate about.

Re:More expensive

[Anonymous Coward]

> This will mean that there will be more people finding more prior art

"Given enough eyeballs, all patents are obvious." :)

Big flaw:

[Anonymous Coward]

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...

I think it is nifty

[Presto Vivace]

Three cheers for the USPTO for coming up with the idea.

What Happen to /.

[Bucc5062]

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!

scarry

[phrostie]

for a second i thought they said, Pay Perview for Software Patents.

Re:4 Year Backlog!

[Evets]

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.

Sounds like a Letterman list to me

[Weaselmancer]

U.S. Patent and Trademark Office (USPTO) is experimenting with reforming the way patents are applied for and processed.

Ok, ladies and gentlemen, from the home office in Sioux City, Iowa, the Top Ten ways the USPTO is reforming the way patents are processed:

• 10. Removing the approve-it dartboard from the breakroom
• 9. Firing Kiki the approval badger
• 8. Banning Jeff Bezos from the office
• 7. Doubling the 45 second research phase
• 6. Free donut if the clerk actually looks for prior art
• 5. Using one of them there computer thingys to search this "database" whatchamacallit
• 4. Cut workload by 50% by arranging a death match between Bill Gates and Steve Jobs
• 3. Halt the "approval by the pound" employee bonus incentive plan
• 2. Up standards to a sixth grade education for all clerks
• 1. Actually reading them first!

I'm still having trouble with this.

[Bruce Perens]

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

Re:I'm still having trouble with this.

[PitaBred]

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.

Re:I'm still having trouble with this.

[IWannaBeAnAC]

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

The strategy of the patent trolls is to get a whole bunch of patents, none of them very good, but hope that maybe just one of them will stick. Fighting against a bunch of bad patents is much easier (although probably more time consuming) than fighting against a patent that has been through QA. After all, the patent troll is certain to use the fact that it has passed a peer review process to push their case.

I agree with Bruce, this is like going through your enemies ammunition supply, filtering out the duds, and leaving him with a box and a note "here is the good ammunition, come and shoot me!".

Re:I'm still having trouble with this.

[Wesley Felter]

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.

This is terrible!

[John Sokol]

I haven't read this all that closely,
  But the idea of having my Intellectual property / invention read through by peers / possible competitors before my patent goes through is the worst thing that you can do to a small unfunded startup.

  This would kill of the next google before then even get out the starting gate.

  Basically I have some software / algorithms that I have been working on for almost 10+ years, Code is developed and I am ready to build a product and get some funding to launch the company. Investors want and need to see patent protection. I have indeed done all of the hard work, but if this it shared before I get my patent fully filed, then
  some group of students or Microsoft could through a small army of coders at developing a competing product before I even get funded. I will then be unable to raise funding because M$ is doing it already and therefor will be unable to raise the cash to finish my patent filings or defend the patent.

  It is already hard enough as it is, I should know, I have attempted to file about 20 patents of the past 15 years and not one ever made it all the way through because of lack of fund, or someone attempting to take over the company, or M$ putting out press releases and faked demos that were flat out lies.

  At this point my plans were to file patents before taking to investors or releasing products, and do this without professional patent attorneys that have eaten up almost $300K with not 1 completed patent to show for it.
  But if these patent get publicly dispersed before I even get my patent filed, well I am just dead before I even start.

  In the past I had the first and largest content distribution network 1994 and running from (1995 to 1998), Caching servers, Error Correction over IP, QOS, Firewall penetration schemes, Streaming audio over IP 1987, streaming video over IP 1989, the whole concept file sharing P2P 1989 and of live P2P streaming 1994,Dynamic Rate control for video streaming encoders and many more things that all fell apart for one reason or another.

And some of these attempted patents that fell apart are now the core of several billion dollar companies that I have nothing at all to do with.

As a small entrepreneur the system is already slanted heavily against me. This would really just kill any aspirations for me.

And before you criticize, I have shared plenty of this in open source and published papers, usually only after it has lost commercial value for me though.

John

RMS on prior art vs the patent problem

[sick_soul]

Prior art won't solve the software patent problem
(by Richard Stallman)

The article has been written a year ago:
http://www.linux.com/articles/57167