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?

Comments

Would never work

[elrous0]

The problem with this is that the vast majority of prior art is so obvious that no one would think of cataloging it beforehand. Take, for example, Amazon's infamous 1-click case. Who would have thought it neccessary to catalog "a technique of allowing customers to make online purchases with a single click" as prior art? It wasn't until Amazon patented this that anyone even THOUGHT about this as something that needed to be defended as obvious.

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).

This is ridiculous.

[Christianson]

I've got an idea: imagine travelling faster than light by using black holes to deform space-time beyond relativistic constraints. The idea is that you take an array of black holes and position them around the object; not only do you get a singularity, but the tidal forces can be arranged to cancel each other out, letting you move within the singularity without being destroyed.

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.