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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.
Ah yes. This sounds a lot like my 'electronic patent-nulling system'. You can license it from me, if you like. Does AU$500/user/year sound reasonable? :)
Personally, I don't think we can record all the blindingly obvious stuff we think of, mainly because it's blindingly obvious. Or very often, we can think of salient prior art that would probably invalidate any patent claims, so we assume it's not worth mentioning.
I would rather see the patent process made a little more transparent: any patent application has to go through 90 days on a public wiki or discussion board, where we could view applications and immediately reference prior art. This might simplify the job of the patent reviewers, who cannot possibly know the history of entire industries. They could simply check out the claims of prior art (which themselves could be ranked by visitors for validity -- "oh ya, I remember THAT") and immediately see that, duh, one-click purchasing is a really dumb idea.
Why would anyone participate? First, it's in our nature. You might have heard of Slashdot, where people with varying kinds of brain matter make varying kinds of comments about varying kinds of "news." But second and more importantly, it would be protection. If you work in a business that would be affected by a one-click patent, you have incentive to make sure nobody can charge you for it, or sue you for using it, if it isn't really an original idea.
Today's patent process in the U.S. is slightly public, I know, but how about making it totally Web 2.0 and buzzword-compliant?
$nice = $webHosting + $domainNames + $sslCerts
Looks like somebody else has prior art for the idea of using blogs as prior art.
From TFA:
> Now to me it seems that a blog post can be classified in this day and age as the modern equivalent of a "printed publication"
Ah, a J.D. in the old "It Seems To Me" School of Legal Theory. Let me know how that works out for you.
--I'm so big, my sig has its own sig.
-- See?
Whenever a patent is classified as "dumb patent" and the jury has decided that you went to the court with a "dumb reason", you will be requested to pay X times the amount requested to the court and the person/company you sued for wasting everybody's time. You would be put also on a probation period during which suing for "dumb reasons" would increase the X for each time you bother the court with invalid/stupid reasons.
... Economics is based on incentive, people react to incentives and the courts are already enough busy to deal with these complaints.
Would work also for RIAA abuse.
Now that would save alot of time and money
Don't you know it is now both immoral and criminal to think beyond the next quarterly report?
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
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.
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.
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.)
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.
In many cases, there is never a problem finding prior art. Most software patents would never survive in court. The problem is that no company, working in their rational self-interest, would take the time, expense, and risk of a court case. It's cheaper to either take a settlement or fire back with their own patent warchest (resulting in stalemate).
Not a typewriter
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.
The patent system is just some arbitrary way of encouraging innovation. The US system is obviously failing, as the costs of maintaining the system outweigh the benefits it imparts on our society.
Other countries have different ways of encouraging innovation, and in the long term, their economies may dwarf ours due to our failing system.
All property rights, be they Intellectual or Physical property, exist to encourage investment. No one "naturally" owns anything, though many people have been brainwashed into thinking that is the case.
I don't know which way is best. It seems the Stalinist system doesn't work well, and the US system has some SERIOUS problems which require periodic correction (trust-busting and such).
My advice: Watch the world economies, and don't be afraid to immigrate if you see one system collapsing and another rising. Of course, you should avoid contributing to economies in countries which deny fundamental human rights (China, Iran, etc.) but don't let nationalism blind you to economic realities.
A slashdotter who didn't build his own computer is like a Jedi who didn't build his own lightsaber.
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?
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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