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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?
Sure, in RETROSPECT, many of these crazy patents are obvious. But how could you possibly begin to catalog every obvious idea, technique, innovation, or invention?
This is not to mention the practical problems with this website. Who is going to pay for all the lawyers you need after the site becomes embroiled in about 1,000 lawsuits? Who is going to determine WHICH art is truly "prior" when users start fighting over who "did it first"? How are you going to deal with griefers and hucksters who spam the site with stuff like "A technique by which ink is applied to paper using an ink-filled tube" (or, God forbid, try to claim their own patent on obvious stuff by using the site as evidence).
SJW: Someone who has run out of real oppression, and has to fake it.
It's not about whether prior art exists, it's about whether prior art exists AND it is seen by the patent examiner during the process.
Otherwise, you have prior art that could *potentially* be used to ust a patent, but that involves getting tied up in litigation which very few independent developers can afford.
There are already avenues to have prior art published (called 'technical disclosures'), some have more chances than others of being seen by examiners.
There's one thing you can be certain of. There will be people subscribing to these RSS feeds as a source for ideas to patent.
Dan East
Better known as 318230.
Over at ArsTechnica there is an article about the BSA offering a large reward for reporting software piracy.
- announces-1-million-award-for-piracy-snitches.html
http://arstechnica.com/news.ars/post/20070702-bsa
How about OSS users and companies getting together a reward to encourage employees of proprietary software companies to snitch on patent infringement. Perhaps if proprietary software companies had to pay the full price for their use of software patents, then, they might thinks again about supporting such abominations.
This system you propose could get a big boost if the people populating the documentation/DB were those working for public universities and libraries. These people read a lot, and have the training to describe in fairly uniform detail what they've read. In fact, even the science fiction fans of the world, working with their libraries organized in "classes" like grad schools and book discussion clubs, could document most of the real prior art for most of the inventions engineers have produced in the past century or more.
Since these institutions are publicly funded, and that prior art puts the inventions in the public domain, the public's interest in running that process is obvious.
Better do it before some quack patents it.
--
make install -not war
I had an idea. I (effectively) blogged it. And if someone else comes up with it, and makes a working prototype, no sane person should argue that my blog should keep them from earning a patent.
Every patent is an obvious idea in retrospect. In reverse, it's also true that the idea of most patents was obvious beforehand: there were undoubtedly many people who thought that making an electrical device which produces light would be a great idea before Edison came along. The devil is in the details, and what matters is implementation. The standard of patents is that the process they describe should be sufficiently unique and innovative that an expert of the field would not conceive doing it that way prior to being introduced to the patented process; that's the logic that underlies the decision behind the Seldon patent decision.
Simply jotting down ideas doesn't address this issue at all. Even outlining the method doesn't really help, since the patent applicant could easily argue that while it might have seemed like an obvious approach, there were non-trivial technical issues that would arise in trying to implement that approach that their process addresses; the fact that the blogger would neither have mentioned those issues, nor built a working prototype, could reasonably be seen to support the applicant. The amount of effort that would need to go into each blog to actually make it worthwhile would basically boil down to implenting the idea, and that's far beyond what I suspect either the author wishes to suggest, or what any blogger would be willing to invest.
The problems with the patent process are well-established: an overburdened reviewing agency, combined with a fundamental issue regarding the appropriateness of patents on concepts rather than physical entities. I don't see how creating an unmoderated repository of random ideas solves either problem.
Better yet, why not make it mandatory for the party applying for the patent to check it? Since a patent application is supposed to be some sort of legal document ("I certify that we originated this novel idea, and am not aware of prior art..."), then this could be a chance for the applying party to withdraw their patent (admit that there is prior art). If a party doesn't withdraw their patent, and the patent is thereafter rejected on the basis of the prior art evidence from the site, then the applying party must pay a fine (or forfeit a deposit they made, or whatever).
Until we make it financially painful for companies to file bogus patents, they will continue to do so. The system you describe seems like the perfect way to warn a patent applicant that there is prior art. If they pursue their claim despite that knowledge, then they are breaking the law and should, at a minimum, be fined. (A harsher system would might also prevent them from applying for other patents for some time period, or perhaps even bring charges against the persons making the claims, or threaten disbarment for any lawyer who signs off on fraudulent claims.)
Too much software development over the past 40+ years has occurred behind closed doors, either literally or figuratively behind an NDA or employment contract, and that removes a very large portion of existing software from public consideration (most employers/agencies would not allow their intellectual property to be exposed in any way on a public site).
Because of this, I believe it is impossible for all prior art to be located or described in a publicly-accessible manner, and I suspect most prior art is actually hidden from public view in a large subset of software application areas.
Mainframe/UNIX Bit Twiddler and long time Windows/Linux Hobbyist.
The Theorem Theorem: If If, Then Then.
Just let the FSF do it. They might not even need to have ads. Of course someone will need to filter out all the spam.
now we need to go OSS in diesel cars
Are you really saying that these things would only be available as a result of the patent system? If so, why should anyone make aspirin nowadays - the patent has expired, so there's obviously no money in it! And most of the chemical industry was founded in Switzerland at the turn of the century - a country which did not (at the time) have patents. Incidentally, if you look into the history of Edison/Westinghouse, it isn't especially pretty - the fights over patents substantially slowed down introduction of new technology.