Slashdot Mirror
A Simple Plan To Defeat Dumb Patents
Steve Jones writes "With the EU being rumored to look at software patents again I thought I'd have a look at the root of the problem — the US Patent Office — and work out if there is a simple way to defeat dumb patents. The big thing that defeats a patent is prior art. At the Patent Office they have the definition of Prior Art that includes the phrase: 'known or used by others in this country, or was patented or described in a printed publication in this or a foreign country.' Now suppose that every time we have an idea that we think is 'obvious' but that hasn't been done before, or something we think would be interesting but don't have the money to create — that we blogged about that idea, tagging it as 'prior art' via Technorati. This would give people an RSS feed of prior art." Read on for more details of Steve's proposal.
My argument is that by doing this we can, rightly, claim that the ideas have been described in the 21st-century version of a printed publication. Even if that is challenged, it is undeniable that by using the RSS feed it can be proven that people in a given country could have "known" about it.
I'm fed up thinking "Bloody hell I did that ten years ago," or "I thought about doing that, its a bit obvious" — when companies with as little intention as I had in developing the idea start putting the squeeze on businesses and developers. What I've always lacked is the visible proof to submit against a claim. This is a simple suggestion about using the power of the Web to create a massive prior art database. IANAL, but could it be this simple?
My argument is that by doing this we can, rightly, claim that the ideas have been described in the 21st-century version of a printed publication. Even if that is challenged, it is undeniable that by using the RSS feed it can be proven that people in a given country could have "known" about it.
I'm fed up thinking "Bloody hell I did that ten years ago," or "I thought about doing that, its a bit obvious" — when companies with as little intention as I had in developing the idea start putting the squeeze on businesses and developers. What I've always lacked is the visible proof to submit against a claim. This is a simple suggestion about using the power of the Web to create a massive prior art database. IANAL, but could it be this simple?
A pretty good idea, but will the patent office see it that way?
There are only 10 kinds of people in this world... those who understand binary and those who don't
"I thought about doing that, its a bit obvious" isn't prior art, even if it were spelled correctly.
What I'm listening to now on Pandora...
Looks like somebody else has prior art for the idea of using blogs as prior art.
The Peer to Patent project has gone live, and while it has its own problems, it's a simple, elegant solution that doesn't require something ridiculous like a massive database of ideas. Anyone can sign up and suggest prior art on submitted patents before they're approved. It's a good example of community self-policing.
This is already done and has been going on for a while.
The company where I work encourages everyone to submit patents whenever possible to the local patent layer. If it's deemed that the idea isn't really worth the effort to pursue a patent you're asked to write an article about it to be posted at a site that's specifically designed for some of the purposes mentioned in this story.
Weeding out the shakey ones doesn't get us very far. It leaves us still restricted, and it leaves the patent holders in a less shakey position.
Here's how patents work: MS thinks of an arbitrary way to do X, and then they patent 20 techniques related to this arbitrary technology. In this situation, there is rarely any prior art since the technique that MS is using isn't necessarily very smart - they could have chosen it simply because no one else does anything similar/compatible.
Please help publicise swpat.org - the software patents wiki
While this is an interesting idea in theory, it would unfortunately have little impact within the current system because patent examiners at the PTO do not have unrestricted internet access. In fact, what they have is extremely limited--they can't, for example, "google" for prior art. I believe the databases they rely most heavily upon are unique to the PTO. So in a system such as you propose, this prior art RSS feed would prove most useful as evidence in patent litigation for a party challenging the patent (I'm assuming, arguendo, that the quality and logistical problems with the concept could be solved). However, it would have little or no impact for examiners at the PTO, meaning no reduction in patents being granted. And once a patent is granted, it carries a presumption of validity...
Thankfully, the USPTO has begun a trial run of a new PEER-TO-PATENT system, as proposed by New York Law School Professor Beth Simone Noveck http://www.nyls.edu/pages/591.asp in Peer to Patent: Collective Intelligence and Intellectual Property Reform, which can be found at 20 Harvard Journal of Law Technology 123 (2006) for those of you who want some interesting reading--especially about how ridiculous each PTO examiner's workload is. The PEER-TO-PATENT Project http://dotank.nyls.edu/communitypatent/ between the PTO and NYLS will solve some of the issues with prior art (and obviousness, hopefully), but it'll likely be years before we start seeing any real progress on this front.
For the most egregious software patents, we will still *sigh* have to rely on private litigation for invalidation, but recent Supreme Court decisions (Ebay, MedImmune, Teleflex) may have made that process a little easier as well.
The story is basically describing http://www.halfbakery.com
Warning: One can waste whole hours of one's life at a time on that site.
Indeed.
I think it is also compounded by the fact that, in my limited experience of filing a few patents, the USPTO only appears to search existing US patents when looking for prior art. The European patent offices, OTOH, also include scientific journals, etc, so tend to be more thorough.
Even with prior art, having a patent invalidated doesn't
make economic sense in most situations. For even if
you win, you have to pay your attorneys fees yourself
(often several $100,000). Also, the process can take
several years.
Therefore even patents with solid prior art don't get
invalidated most of the time. If you don't believe me,
look up "Carmacks Reverse". The algorithm was patented
by Creative _after_ John Carmack presented it on a
conferece. Creative even threatened John's company
because they are using the algorithm he had invented.
Please see http://dotank.nyls.edu/communitypatent/ for the Peer to Patent Project, a Community Patent Review. It allows you to review currently pending patents and provide prior art references. One of the more significant issues with patents is that the holder (plaintiff) is presumed to be the wronged party in any legal proceeding. The defendant is presumed wrong. A suit can be brought for as little as $350 and to answer the complaint from the plaintiff can cost upwards of $10,000 and that's just the beginning. Think about spending $15,000 to $20,000 per month for at least 12 months in any patent litigation. Now consider having multiple simultaneous litigations regarding different patents. The problem is that the defendants costs are orders of magnitude higher than those of the plaintiff. Most plaintiffs simply cannot afford to fight and therefore settle for some amount of money close to or slightly less than what it would cost to go to trial. Trial cost is about $500,000 and you have no guarantee of winning. If you do win, you have little recourse against the plaintiff unless they were clearly in the wrong. Then, sometimes the plaintiff simply has no money! Patents used to be used by companies to protect themselves from other companies by virtue of Mutually Assured Destruction. Microsoft couldn't really sue Apple and Apple couldn't really sue Microsoft because they both did things that probably infringed on each others patents. Therefore neither side sued, and in fact, they executed a deal to share each others patent portfolios. Today, you have companies like Acacia Research, and more importantly, Intellectual Ventures, who don't have a business other than hording patents and licensing them. There's very little for them to loose when they attack another company with their patents. IV and others will be increasing their use of patents to extort money from just about every company. Just watch and see.
I can tell you that it also searches foreign patents, from personal experience.
Your ad here. Ask me how!
I was a UK patent examiner from '98 to '04.
... etc.. Basically all patent docs are given a key which defines the field(s) that it falls in, eg G06F 11/00C2 (http://v3.espacenet.com/eclasrch?ECLA=/espacenet/ ecla/g06f/g06f11.htm?q=11-00c2) is fault tolerance by degradation of service within a computer system. There will be 10's of thousands of patent docs in this category and some non-patent disclosures like TDB's or magazine articles may be categorised (EPO used to do this but UK not really). By crossing categories and using abstract and full-text keyword searching one wittles down the docs to look at.
We searched online databases of UK, EPO, WO, US, JP (Japanese, translated abstracts and later JPO provided [machine] translations), DE (German), FR (French) patents as a matter of course. It was down to the examiner to determine the scope of search to perform. We could also search hundreds of databases of technical disclosures (eg IBM's TDB - technical disclosure bulletins). All UK examiners had to be able to translate enough french and german language to be able to decide if a full translation was needed and we had other language translators to hand - JP docs were obviously important in computer fields.
Other databases included Elsevier journal databases and also paper files (go back 100 years or so) of all UK patents (which were phased out during my time there). In some areas we had libraries of other books and journals. Also if you could put a case for getting a particular publication you could get it - New Scientist and Nature were particularly popular!
One of the vital tools for prior art searches was the different "classification keys" - UKC, ECLA, USC
I also did quite a bit of internet searching (too much) using several search engines as well as site searches and a few company databases that we had access too. The problem with internet citations was proving the publication date, vital to show something is prior art.
In G06F (which is roughly G4A in the UKC, http://www.ipo.gov.uk/patent/p-decisionmaking/p-cl ass/p-class-ukc/p-class-ukc-g.htm) one tended to have about 1.5 days to do a search (sometimes it would be half a day, sometimes 5). In other less strenuous fields a lot less. This means possible a few hundred abstracts to read and digest to whittle down to maybe a dozen docs to read in full and then perhaps cite 3 or 4, depending what you find. Sometimes with searches that don't fit keywords well you'd read more abstracts. Sometimes you can find an exact hit in a few minutes and spend the rest of the time finding docs to cite that will preempt what the patent attorney will try to amend the claims to.
There's no lack of places to look for prior art.
Oftentimes you'd search and search because something seemed so obvious but wouldn't find a strong citation. The problem with obviousness objections is always that the patent agent (aka attorney) can comeback and say if it was so obvious why was no one been doing it (or documented it), show me some evidence. This is especially strong in a well worked field - why did so many people overlook this obvious step. Combinations of docs suffer from ex-post facto analysis - one has to try and work from the prior position and see if the notional skilled man in the art would put those docs together?
---
In response to the parent there's a requirement for US applicants to cite known US patents (and I think other prior art) that is particularly pertinent to their applications (I don't know the specific requirement). If they fail to cite something and it's proven they knew about it and it's relevant they can lose their patent (or at least be sued for big bucks). All major WO patent granting offices have to search at least a certain amount of literature - specific ranges of specific fields of patents; the US is such an office.
As an examiner I found US searches to usua