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

[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.

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.

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

[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.

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!

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.

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.

[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.