USPTO Asks For Input On Software Patents

New submitter MouseTheLuckyDog writes "The patent office is reviewing its policy on software patents and is asking for feedback (PDF). Groklaw reports that the USPTO will be hosting a pair of roundtable sessions in February, during which the public will have the ability to attend and put forth their viewpoints. From the article: 'It's obvious the USPTO realizes there is serious unhappiness among software developers, and they'd like to improve things. Software developers are the folks most immediately and directly affected by the software patents the USPTO issues, and it's getting to the point that no one can code anything without potentially getting sued. I don't wish to be cynical, though, as that's a useless thing. So maybe we should look at it as an opportunity to at least be heard. It's progress that they even thought about having a dialogue with developers, if you look at it that way.' If you can make it to Silicon Valley on February 12 or New York City on February 27, go and make your voice heard."

Comments

I Would Like To Suggest "Accountability"

[Press2ToContinue]

I would like to see a new law on the books: "wrongfully or negligently issuing a patent", to be applied as follows:

In the case where a patent is declared invalid, I would like to see the issuing patent office and/or examiner held responsible for damages done....

And to reimburse the patent applicant for:
1) the fees charged for granting the patent
2) legal fees incurred by the patent holder in attempting to defend the patent before it is struck down

And to reimburse any party who is financially damaged by the patent office having wrongfully issued a patent, such as
3) to any company which licensed the patent: any license fees paid out to use the patent
4) to any company which was sued for infringing on the patent: court costs and damages

Patents are applied for in good faith. If the recipient can be irreparably damaged due to negligence or other actions which wrong the recipient, shouldn't there be legal recourse?

Do you think the USPTO might hold "inventiveness" and the "obviousness" tests, and the search for prior art to a much higher standard? Do you think they might have the motivation to remedy any weaknesses in the system and keep on doing so?

Accountability anyone?

Re:I Would Like To Suggest "Accountability"

[Joce640k]

They could pass new laws to make it much easier to invalidate a patent.

Most software patents weren't applied for in good faith anyway and should never have been approved. The bar for 'non-obviousness' seems to have been set at a negative height for most of the applicants.

Re:I Would Like To Suggest "Accountability"

[morgauxo]

Accountability yes, damages no.

Think of your own job. Whatever you do, how much can it cost the company when you screw up? Do you use any expensive equipment? Does your performance affect the decisions of any large account customers? Do you handle large quantities of product or highly valuable products? Can you afford to replace them? That would be the equivalent of taking damages from the individual examiners.

Damages from the issuing office might make a little more sense but ultimately that would just be punishing the tax payers.

What we need is a change in accountability. Performance is measured mainly on how many patents the offices issue. They are constantly being flooded with applications and the idea is that the patent offices need to keep up or this will harm the economy by slowing businesses down. It's also believed by politicians that the number of patents granted to US companies is somehow a valid measure of how our technical industry is doing vs other countries. That attitude needs to go!

Instead, hold patent offices and examiners accountable for quality of patents granted or not granted. This could be measured by percentage of patents invalidated in court and percentage of rejects that succeed later. That last one might be tricky to measure but it would be important too. Otherwise, maybe keep looking for quantity but also look for quality. It should affect their job reviews, raises, promotions and such just like happens for any other kind of worker. If they are really bad... they get fired.

This will mean huge delays in getting a patent granted given the current quantity of applications. That flow needs to be controlled! One sollution might be increasing the cost to apply for a patent so that only worthy ideas are worth attempting. The problem with that is a price that keeps larger companies in check shuts out individuals and small companies entirely. Instead.. I propose an application fee that gets larger based on how many applications you have in the system. Large companies still might get around this by having their individual employees apply for the patents and then transfer them back to the company. Some rules will be needed to prevent this. Maybe something stating that any contract requiring that an employee transfer patents from the employees name to the company are not valid. The company must apply for the patent itself or the employee might use it as leverage for more money or even sell it to someone else.

Re:I Would Like To Suggest "Accountability"

[Anonymous Coward]

The problem is that there is no single person whose fault the bad patent is. Consider if A (arbitrarily wealthy) and B (not) independently invent and locally produce X, but only A files for it, unaware of B. B resolves not to apply for a patent. Patent examiner C, also unaware of B, grants it. Company D hires B and begins producing Y, a variant of X that 'infringes'. After a few years, A's patent is granted and he (now a fairly large player) becomes aware of D (a very large player) and (because Y was released after he applied for the patent on X) sues. D, due to their ace-in-the-hole of B, cheerfully goes to court.

As far as A is concerned, he invented something, patented it, and is producing it.
As far as B is concerned, he invented something, but didn't bother patenting it. Doesn't matter, as his prior art should be enough to protect him against infringement claims.
As far as D is concerned, they are safe because of B's guarantee he won't patent it.

So then A sues D, after a long battle the patent gets invalidated, so who is to blame? Not A, he invented and patented the damn thing legally. Surely not B, he's taking the Benjamin Franklin (I think) approach. If B isn't to blame, I can't see a real reason that D is. Do you seriously expect C to scour the entire country himself to find B?

The correct answer would seem to be that if A and B came up with the invention, the patent should be invalid on grounds of obviousness, not prior art. But just because Newton and Liebnitz both wrote about calculus doesn't make their advances obvious. If math were patentable, and Liebnitz invalidated Newton's patent on integration, would you hold C responsible for not considering calculus obvious? Nobody in my example, I believe, "deserves" to lose a few billion. Various parties were simply unaware of each other.

Re:I Would Like To Suggest "Accountability"

[StripedCow]

What I would suggest is the following. Currently, the USPTO gets paid for every patent which they validate. This is so obviously perverse that it actually hurts.
Now instead of letting that money flow into the hands of the USPTO, it should go somewhere else, perhaps it should go into education.
This, imho, would already be a huge improvement.

Let's take it one step further. Let the patent office PAY for each patent they validate. A second government could then pay them back based on the societal impact of the patents they approved (measured, say, 5 years after validation).

Thus, with this two-tier model, lack of societal impact means a loss for the USPTO.

This means that, under this model, the USPTO will not so easily approve simple things such as "one click shopping" because they might lose on it on account of a lack of social impact. Similarly, patent trolling will be actively barred by the patent office (no product means no social impact). However, a patent for a new medicine may be approved.

NYC Feb 27 - I'll try to make it - Slashdot meet?

[MetalliQaZ]

Perhaps Slashdotters in the areas around these meetings would like to get together to plan, practice, and eventually travel to these meetings? Beers/Sodas after the meetings are suggested.

Re:My input on software patents...

[jkrise]

Try rephrasing that, is what I'm saying.

I feel it will not work with the nutcases in the USPTO; so absent summary rejection of ALL software patent applications, and voiding of past software patents granted, nothing will happen. Instead of focusing on the USPTO which is a gone-case, I suggest a different approach when patents are used in litigation, to solve the problem. This is what I posted in Groklaw, on a related discussion:
--------------------
The PTO has a limited amount of time to inspect each patent (I believe it's around a day per patent).

This is the exact problem, and in the rest of your post, you have detailed how to DEAL with the problem. What I am advocating is, how to solve the problem? The fact that the PTO has just 1 day to inspect a patent, implies that innovation is happening at a rapid pace these days. So a roughly 2-decade monopoly on a patent in these modern days; is totally not justified, since entire businesses and ecosystems are impacted by such long term monopolies.

Consider that there are about 2 billion Windows devices worldwide, in about 2 decades. In just 2 more years, it is projected that there could be more than 2.5 billion Android devices, surpassing Windows devices.

So a patent that cripples Android for 2 decades means ENORMOUS incalculable harm to the progress of science and arts, which is the raisson d'etre of patents.

So the cure to the PTO having just 1 day to inspect a patent application, is to drastically reduce the number of applications, rather than hastily issuing dubious patents, re-examining and rejecting them, and further re-examining and validating a limited number of claims.

To reduce the number of patents filed, a severe penalty has to be levied on a patent found to be invalid on re-examination; when such a patent is asserted in a case. If a company faces the prospect of a $10bn penalty, compared to a $1 bn damages compensation; it will think a 100 times before using the patent in a court. Additionally, it will also reduce the need and motivation to apply for a patent in the first place, thus allowing the PTO a lot of time for review and examination of a vastly reduced number of applications, which are bound to be genuine, rather than frivolous.

Re:Questionable summary

[Grond]

If the computer screen is an essential element, then I don't need a patent license for my free software that draws lines using Bresenham's algorithm, because I'm not using Bresenham's patented computer screen!

The patent doesn't claim that the screen is itself new or patented. The patent claims the method of displaying a line on any computer screen. It's no different than a patent on, say, a method of catching mice using a bucket of water, a ramp, and a piece of bait dangled above the bucket. It doesn't matter where you get the bucket, the ramp, or the bait. The patent covers the method of using these pre-existing objects together to catch mice.

You can't have it both ways. If a physical object that I'm not selling or giving away is essential to the patent, then my free software is not covered by the patent.

I'm not trying to have it both ways. This is a long-settled area of the law, codified in the statute. The end users would be directly infringing the patent, and you would likely be liable for indirect infringement. Imagine a patented mechanical device that is held together with screws. If someone sells all of the parts, minus the screws, plus instructions on how to put it together and where to buy the screws, that's indirect infringement. In this hypothetical you're distributing the software knowing that end users will use it in an infringing manner with their computer screens (which, again, could be any kind of computer screen).