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Tapping the Web's Collective Wisdom For Patents
BountyX sends in a CNN story offering an update on the US patent office's experiment in crowdsourcing, called Peer-to-Patent. (We've discussed this initiative a few times in the last couple of years.) In its first year the program has dealt with a minuscule fraction of patent applications, which numbered over 467,000 in 2007, up over 97% from a decade earlier. "The Patent Office reports that it has issued preliminary decisions on 40 of the 74 applications that have come through the program so far. Of those, six cited prior art submitted only through Peer-to-Patent, while another eight cited art found by both the examiner and peer reviewers... [I]n its second year, Peer-to-Patent is being expanded to include claims covering electronic commerce and so-called 'business methods' ..."
Simple answer: The USPTO is begging for a lawsuit from large corporates.
Crowdsourcing has the potential to leak a company's "confidential" secrets, and hence a corporate will sue the government to overturn such a decision.
Obviously the USPTO has better ways to spend its limited grant, so they will default or withdraw this decision.
All good intentions can be undone with a lawsuit.
"Doing what i can, with what i have." ~ Burt Gummer
I never really understood the business method patent thing.
can I build a copy of a patented item if I want?
Isn't it only illegal if I try to sell that item?
a company isn't selling it's business method.
So unless it's a consultancy firm which makes it's money restructuring other businesses...
You can use a patent spec for research purposes or when you will not harm the financial benefit to the patent holder (IIRC). So you can't sell it, but also you can't benefit financially nor cause a financial detriment to the patent holder. So you can't give patented stuff away (without a license) as this potentially harms the patent holders income. If you're using a business method then you're gaining financially from it ... ergo ...
Business Method patents are a weird thing in a capitalist economy though.
Note that pure business methods (without technical elements) aren't supposed to be patentable in Europe.
The second biggest problem is that "someone skilled in the art..." really means a Judge who is skilled in legalese.
That's because the PHOSITA (Person Having Ordinary Skill In The Art) doesn't exist! If a lawyer tries to bring in an expert witness to testify that something is obvious to someone ordinarily skilled in the art, he's caught on Morton's Fork. Either (a) the witness is not an expert, and therefore cannot be qualified to testify, or (b) the witness is an expert, and is ipso facto extraordinarily skilled.
The fact that an invention is obvious to someone who is extraordinarily skilled says nothing about whether it will be obvious to a PHOSITA. The result is that "ordinarily skilled" means "unskilled, a layman" rather than a practitioner. What's the solution to this twisting of the law? I don't know. Maybe it would work to bring in a university professor to testify as to the skill level he expects of ordinary students? Or point out that even an ordinarily skilled lawyer can describe some everyday method and append the words "on the Internet?"
Usually, this happens in corporations and academia because they're the only ones that have been working in the field long enough to know the limits of current technology, but it can definitely happen with small time innovators as well if they read alot technical literature on a particular subject.
Not always. In my chocolate factory, we had patented an idea; it must have been good, because as soon as the patent expired, everyone and their dog (in the chocolate world) began doing Just That.
It was small-time innovation at the time... now a few years back (but much later), we met a guy who was using the same idea in his products and he thanked us for the idea that had made him rich. Way richer than us, I can tell you...
But the idea was had without reading lots of technical stuff. All you need for having ideas is a working brain. There was even no machine for doing what we had invented at that time...
Making laws based on opinions that stem up from false informations leads to witch hunts.