Group Attacks Bad Software Patents Before They're Approved

Curupira writes "Ars Technica discusses how the Linux Defenders group are exercising the rights granted by the America Invents Act to identify and fight the patents that potentially threaten Linux and open source software. From the article: 'In a session at LinuxCon today, Linux Defenders director Andrea Casillas explained how the group is using rights granted by the new law to fight patent applications. A project of the Open Invention Network, Software Freedom Law Center, and Linux Foundation, Linux Defenders examines the 6,000 new patent applications published each week, attempting to identify those that are potentially threatening to Linux and open source. Then, the group looks for prior art that would invalidate at least some of the claims in the patents.'"

Comments

Good intentions but potentially harmful

[Anonymous Coward]

Patent attorney here.

While it seems like this is a great idea, getting more prior art in front of the PTO is may not be the best strategy. It allows the patent applicant to try to amend the claims or argue around the prior art. A lot of the the time, the examiner responsible for a patent application is not particularly worried about the quality of the patent being issue but is more concerned with just getting the application off his/her docket. This makes it reasonably likely that the examiner will either ignore the new prior art or accept whatever dubious amendment/argument that the patent owner submitted. Once a patent is allowed over prior art that was made of record, it is much more difficult to use that prior art again later.

I would suggest that a better strategy is to just record and publish lists of prior art after the patent issues. Then, later on if the patent is asserted, there is easy access to fresh prior art that can be used to kill a patent.

Re:Good intentions but potentially harmful

[twmcneil]

a better strategy is to just record and publish lists of prior art after the patent issues

The best part of your plan is that it keeps all the patent attorneys gainfully employed. Amiright?

Re:Good intentions but potentially harmful

[PhrostyMcByte]

A lot of the the time, the examiner responsible for a patent application is not particularly worried about the quality of the patent being issue but is more concerned with just getting the application off his/her docket. This makes it reasonably likely that the examiner will either ignore the new prior art or accept whatever dubious amendment/argument that the patent owner submitted.

This may very well be true, and I would sadly not bat an eye in surprise.

I would suggest that a better strategy is to just record and publish lists of prior art after the patent issues.

But seriously, the fact that the patent office is so messed up that this is the advice when it comes to reducing patent garbage... this launches a huge war in my head, between the pragmatic programmer and the idealistic open-source hacker.

This is fucking disgusting.

Re:Good intentions but potentially harmful

[bzipitidoo]

I agree this effort could be harmful. And, for more reasons than you give. This is playing the patent trolls' game. These heroes are trying to work within a bad system, rather than change the system itself.

What is the best direction to take? How about, abolish software patents? How can that be accomplished? Perhaps the best way is to make patents so painful that even big companies start to think they'd be better off without them. In this respect, trolls are actually doing us all a service. The more that trolls gouge Apple, MS, Oracle, IBM, Google, and the rest of the big tech companies, cost them millions in legal fees, court costs, awards of damages, injunctions that compel them to pass up opportunities, inconvenience and lose customers, the more these politically weighty companies might decide to instruct their bought congress critters to consider eliminating software patents. I would guess RIM saw the light a few years back when NTP sued them. Hope the trolls are also working over Big Pharma, plus Monsanto. Big Pharma may be the major group that most fervently supports strong intellectual property laws, more even than Big Media.

Effective grass roots efforts are hard to pull off. Have to be very big and noisy to scare representatives into heeding them. Last one that really worked was the effort to stop SOPA and PIPA. I think it only worked because Wikipedia got in on the act, and shut down their encyclopedia for one day.

Re:Good intentions but potentially harmful

[PPH]

more concerned with just getting the application off his/her docket.

So, stamp it 'DENIED'.

It allows the patent applicant to try to amend the claims or argue around the prior art.

What this whole game overlooks is that there needs to be a way to send worthless patents away. Permanently.

Re:Good intentions but potentially harmful

[Anonymous Coward]

Actually, I would say the opposite. Only a very, very small percentage of patents are ever actually asserted. Looking at every patent application that is published and submitting prior art with descriptions of the prior art is vastly more time consuming than simply looking up previously identified prior art and killing only those patents that are later asserted. Also, it is much harder to patent owners to amend claims after the patent has issued.

Re:Good intentions but potentially harmful

[Anonymous Coward]

Patent Examiner here:

Don't forget that the amount of time that we get to examine an application hasn't changed since the 1970s in most areas. In many areas there is at least two orders of magnitude more prior art and case law to consider now, but the quota is exactly the same. Yet raising the hours of examination per application is a non-starter because the Office is busy trying to dig itself out of the backlog hole which they dug by the Office (and Congress) falling prey to the trap you mentioned.

Also look out for the next few years as senior examiners retire instead of dealing with the new Patent Classification scheme.

Very, very few people in the Patent system don't care about issuing shitty Patents. I'd feel pretty awful if anything I've issued got overturned in court.

Re:Good intentions but potentially harmful

[tao]

The *real* solution is to stop issuing software patents in the short term and patents in general in the longer term.

Re:Very interesting...

[cdl]

And the others you mention aren't? BTW, Sun doesn't exist anymore, it's in Larry-land...

Re:Very interesting...

[Nerdfest]

It's a tight race in douche-baggery between Oracle and Apple, but I think Apple has the upper hand in useless patents.

Re:Very interesting...

[Nerdfest]

You make your own copy of an application and then block the original from your curated marketplace.

A shame

[CuteSteveJobs]

It's a shame that so many in the public must give up their time for free to try and counter inaction by Congressmen.

Re:A shame

[larry bagina]

inaction by Congress is, in most cases, preferable to action by Congress.

Examiners Replaced by Volunteers?

[organgtool]

Linux Defenders examines the 6,000 new patent applications published each week, attempting to identify those that are potentially threatening to Linux and open source.

I wonder how much work these people could be contributing to open source projects if they didn't have to waste time sifting through mountains of garbage patents to do the jobs that the patent examiners should be doing. Add on to that the advantage that other countries have by not having to waste time on this nonsense and it just seems silly to justify the existence of software patents. But since these patents make big money for powerful companies who bribe legislators, I'm not holding my breath for anything to change.

Re:Can I patent

[Anonymous Coward]

A sarcastic post attacking a company, practice, or person scorned by the majority of Slashdotters, will often be modded up even if the idea has been posted 500 times before.

Moderation on this site basically sucks. Mods are supposed to facilitate give-and-take discussion, not vote for what posts they agree with.

Sounds like the job of the patent office

[kry73n]

I really don't get it, isn't looking for prior art the main job of the patent office before granting a patent?

Re:Sounds like the job of the patent office

[Anonymous Coward]

No, searching for prior art is the job of the applicant. That is why the applicant is supposed to give a list of prior art to show how he himself has come up with his invention and how it is different.

Of course:
* The patent pool is to big to search.
* The pool of other prior art sources (publications and products) is to big to search.
* Description of patents is unreadable by anyone, on purpose.
* Lawyers recommend inventors to not look for prior art, because of triple damages.
* Inventing and implementing, especially these days, is so easy that you don't need any help.

I believe patents in this age should all go, not just software patents. If an industry needs patents to survive then this should be proven before allowing an exception.

Why don't we get a cut off the fee?

[fsterman]

Given that patents cost $1,000-$10,000 each just in fees to the USPTO and their multi-year backlog, why don't they just offer up bounties? They could assign them semi-randomly so that by the time a patent reaches an actual examiner, they would have plenty of independent reviews of the material. Given that it took Joel Joel Spolsky 10 minutes to kill a Microsoft patent, I would spend an hour or two for a cut on the fees.

when you show the patent examiner what part, how,

[raymorris]

Sure, when you show the patent examiner what part of the Linux OS (or just kernel if you prefer) previously did that thing in the patent, how, and when. It sounds like that's the type of thing these people are doing.

What if we

[EuclideanSilence]

1) Make those who file for patents pay even if the patent is not approved.
2) Give a portion of the money paid to the first people who find prior art or make a good case for not supporting a patent.

Re: Very interesting...

[PixetaledPikachu]

And probably none of those has business portfolio as extensive as IBM

Re:Very interesting...

[drinkypoo]

None of the listed companies come close to IBM for patents filed per year.

IBM probably has their share of bad patents, but none of the listed companies come close to IBM for R&D budget, either.

Re:Very interesting...

[Nerdfest]

I'm not remotely a fan of IBM, but with respect to patents, most of theirs (but not all) seem to be decent hardware patents. They do a lot of R&D on leading edge processor and storage tech. I'm not sure how MS spends that much money on R&D.