AskPatents.com: A Stack Exchange To Prevent Bad Patents(blog.stackoverflow.com)
blog.stackoverflow.com
AskPatents.com: A Stack Exchange To Prevent Bad Patents
http://blog.stackoverflow.com/2012/09/askpatents-com-a-stack-exchange-to-prevent-bad-patents/
32 comments
> If you violate a patent you know exists, you are liable for treble damages.
Not quite. First, in cases of willful infringement, the judge can --- but need not --- award up to treble damages. Second, a patent owner seeking to prove that infringement was willful must show, among other things, either:
(1) that the accused infringer knew, not just of the existence of the patent, but of an objectively high likelihood of infringement of a valid patent;
OR
(2) that this objectively defined risk was so obvious that the accused infringer should have known it.
If the accused infringer puts on a reasonable defense, it often negates the "objectively high likelihood" element.
See generally http://www.jdsupra.com/legalnews/standard-clarified-for-will...
NB: Issued patents are presumed valid until proven otherwise --- and according to the Supreme Court, that proof must be not merely by a preponderance of the evidence, but by clear and convincing evidence. That was the Supreme Court's holding in last year's Microsoft v. i4i opinion; see http://www.patentlyo.com/patent/2011/06/microsoft-v-i4i-supr...
Not quite. First, in cases of willful infringement, the judge can --- but need not --- award up to treble damages. Second, a patent owner seeking to prove that infringement was willful must show, among other things, either:
(1) that the accused infringer knew, not just of the existence of the patent, but of an objectively high likelihood of infringement of a valid patent;
OR
(2) that this objectively defined risk was so obvious that the accused infringer should have known it.
If the accused infringer puts on a reasonable defense, it often negates the "objectively high likelihood" element.
See generally http://www.jdsupra.com/legalnews/standard-clarified-for-will...
NB: Issued patents are presumed valid until proven otherwise --- and according to the Supreme Court, that proof must be not merely by a preponderance of the evidence, but by clear and convincing evidence. That was the Supreme Court's holding in last year's Microsoft v. i4i opinion; see http://www.patentlyo.com/patent/2011/06/microsoft-v-i4i-supr...
It is definitely true that a lot of companies over-protective legal departments have persuaded their engineers never to read patents.
I don't think that you should optimize for the case where you've actually lost a patent suit. First of all, that's a pretty rare case. But more importantly, it's cowardice. It's the moral equivalent, in my mind, of carefully crossing to the other side of the street when you see the neighborhood bully approach. Yeah, it's "the most logical course of action," but the better course of action is to get your own gang together and shut them the f* down!
I don't think that you should optimize for the case where you've actually lost a patent suit. First of all, that's a pretty rare case. But more importantly, it's cowardice. It's the moral equivalent, in my mind, of carefully crossing to the other side of the street when you see the neighborhood bully approach. Yeah, it's "the most logical course of action," but the better course of action is to get your own gang together and shut them the f* down!
We're not going to shut them down by invalidating them one at a time. You're not plugging a few leaks in a dike; you're trying to splash the ocean back with teacups.
How many teacups we talkin here?
In 2011 there were about 500K utility patent applications: http://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm Many of those are not software related.
There are about 1.3M programmers in the US alone: http://programmers.stackexchange.com/questions/19720/where-c...
So 20 teacups each to have each patent looked over 10 times? Sounds doable to me.
In 2011 there were about 500K utility patent applications: http://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm Many of those are not software related.
There are about 1.3M programmers in the US alone: http://programmers.stackexchange.com/questions/19720/where-c...
So 20 teacups each to have each patent looked over 10 times? Sounds doable to me.
some patents take days to review - some have to be reviewed in context with other patents etc.
So maybe 200 teacups each but the direction is definitely right.
So maybe 200 teacups each but the direction is definitely right.
I just went on to AskPatents and tried my hand at it:
http://patents.stackexchange.com/questions/197/prior-art-for...
I'm not doing anything close to as good a job as a patent examiner would do, but with about an hour of work I (hopefully) was able to start pointing to some prior art that could get an examiner quickly up to speed on what the state of the art is.
I agree the amount of work involved to comprehensively invalidate a patent would be days - hopefully a group can do the same with shorter time contributions.
I'm not doing anything close to as good a job as a patent examiner would do, but with about an hour of work I (hopefully) was able to start pointing to some prior art that could get an examiner quickly up to speed on what the state of the art is.
I agree the amount of work involved to comprehensively invalidate a patent would be days - hopefully a group can do the same with shorter time contributions.
Unless the rules are different for this process, every piece of prior art that you point to now that an examiner doesn't agree with / understand is a piece of prior art that can't be reused further down the line (e.g. in a trial).
>USPTO patent examiners will be able to search the site to find prior art they may have missed; the USPTO, complying with the new law, will also provide an online system for submitting prior art. We’re also integrating with Google Patent Search, so every patent application on Google will include a link to discussion on Stack Exchange. Google has also implemented an algorithmic prior art search utility that will be helpful to site participants.
I believe the site isn't so much intended for people trying to find out whether or not their idea is patented as it is for the USPTO to easily find prior art before granting patents.
I believe the site isn't so much intended for people trying to find out whether or not their idea is patented as it is for the USPTO to easily find prior art before granting patents.
Respectfully, I have to say that your "rational strategy" is a terrible suggestion. This strategy only makes sense if your desired goal is to reduce treble damage risk. Moreover it completely ignores the risk of devoting a ton of resources to developing a product that is already protected by a patent.
They're all protected by patents. All of them. I can pretty much guarantee you that any of IBM, Microsoft, Google, Oracle, Intellectual Ventures, and many others have sufficient patent coverage to be able to sue you for anything you could possibly build that involves software in any way.
[edited to scope it to software]
[edited to scope it to software]
Doesn't mean they're going to win.
Lawsuits aren't always about winning. Sometimes they're about bullying and showing dominance. Sometimes they're about stalling a competing product while you finish your own. In the case of a big company or troll going after a small company, drawn out legal battles are used to bleed the company dry until they settle or go bankrupt.
> "Moreover it completely ignores the risk of devoting a ton of resources to developing a product that is already protected by a patent."
That's what the legal advisers (who recommend this strategy) are for. You bring them a concept or prototype, they do clearance/patentability checks and make a recommendation -- not only in whether to proceed, but potentially including advice on how to proceed in the most legally advantageous manner.
(Your specific invention may be patentable even when generalized to cover additional uses -- indeed much of the value of good patent counsel comes from their ability to get you the most-broad patent possible.)
That's what the legal advisers (who recommend this strategy) are for. You bring them a concept or prototype, they do clearance/patentability checks and make a recommendation -- not only in whether to proceed, but potentially including advice on how to proceed in the most legally advantageous manner.
(Your specific invention may be patentable even when generalized to cover additional uses -- indeed much of the value of good patent counsel comes from their ability to get you the most-broad patent possible.)
They'll be more measures coming from the USPTO on the issue of software patents soon, if I'm not mistaken. See their website for details.
The advice you give is like an urban myth. It's passed around for many years.
It assumes there's no alternative but to infringe, so you might as well minimize your potential losses.
Maybe it's better to read patents, design around them and not infringe. That seems like the most rational course of action.
Are treble damages automatic? Or are they are discretionary?
The advice you give is like an urban myth. It's passed around for many years.
It assumes there's no alternative but to infringe, so you might as well minimize your potential losses.
Maybe it's better to read patents, design around them and not infringe. That seems like the most rational course of action.
Are treble damages automatic? Or are they are discretionary?
My favorite part is how the Patent Office director approached Stack Exchange about doing this. As someone who leans libertarian, it's easy to learn about the bad ways government restricts innovation, such as the current patent system, and assume that all government agents involved are either bumbling bureaucrats inadvertently screwing up the system or corrupted cronies deliberately screwing up the system. Of course, those kinds of people exist, but it's encouraging to see that the director is taking intelligent and thoughtful steps to improve his office's work, as well as a pleasant reminder that my default stereotypes about government employees are often wrong. Not a panacea for the patent debacle, of course, but an awesome step in the right direction.
A large part of the problem isn't the bureaucrats bumbling up the system, it's the "government is always corrupt under all circumstances" crowd passing "accountability" laws requiring 17 redundant forms in triplicate being filled out and sent around to a dozen different independent oversight offices thereby using $100 of resources (in the form of man hours, paper and so on) to spend every $.01. The ones who make these rules do so out a mixture of some absurd fear that that $.01 might be spend incorrectly so we must at all costs prevent such a travesty (damn the costs) and a cynical attempt to prove how awful it must be by their own sabotage (a mentality of "I believe there can be no good here, so I will prove it by injecting as much bad as I can in the system")
Huge numbers of government employees would love to, and regularly do, suggest ways of improving efficiency and outcome, only to be told "it is illegal to be efficient". I've seen it happen over an over.
Huge numbers of government employees would love to, and regularly do, suggest ways of improving efficiency and outcome, only to be told "it is illegal to be efficient". I've seen it happen over an over.
Most of the problems in government stem from the horribly written legislation. Bureaucrats are tasked with bringing sanity and order to the chaos that lawmakers provide them. You never hear about the vast majority of bureaucrats, because they do their jobs like they're supposed to. It's only on those (relatively) rate occasions when they screw up that it becomes news.
This seems wonderful. It's exactly the sort of practical solution that could really make a big dent in the patent problem, and to see it actually come into being with the cooperation of the USPTO and Google Patent Search is very, very heartening.
I hope folks here will take time to read this new site from time to time and raise any particularly problematic patent applications to their circles. There's the risk of reading a patent and then potentially being made liable for trebled damages, but hopefully any ridiculous patents will get filtered out by this system, reducing the risk of violation in the first place.
I see a two-tier system emerging: a group of "frontline" patent reviewers reading AskPatents regularly, and a wider group of people interested in patents within an industry. If only the really problematic patents are brought to the attention of the wider group, they won't have to worry so much about liability for trebled damages. The "frontline" people reading new submissions on AskPatents and trumpeting out the basket cases - they'll be the ones taking on the trebled-damages risk. I hope there'll be some among us who can play this role. (It'll probably end up being interested hobbyists or the patent-hunting departments of large corporations.)
edit: I wonder if there's any mechanism for discussion of approved patents? This might provide the seed material for patent reexamination, which in turn allows for patent invalidation. If people review approved patents and start offering prior art for some, any patent trolls intending to wield those patents might start having second thoughts, because it'll look like those patents are on shaky legal ground. This way, even after being granted, questionable patents could still be cast into doubt. Maybe I'm overoptimistic, but how far could Spolsky/the PTO push this?
edit2: Someone correct me if I'm wrong, but it looks like there's no "patent application stream" on AskPatents, so it's basically a bog-standard discussion board for patents right now. It might be more handy if it had an integrated feed from the patent application database (no need for an API, even an RSS feed would work).
I hope folks here will take time to read this new site from time to time and raise any particularly problematic patent applications to their circles. There's the risk of reading a patent and then potentially being made liable for trebled damages, but hopefully any ridiculous patents will get filtered out by this system, reducing the risk of violation in the first place.
I see a two-tier system emerging: a group of "frontline" patent reviewers reading AskPatents regularly, and a wider group of people interested in patents within an industry. If only the really problematic patents are brought to the attention of the wider group, they won't have to worry so much about liability for trebled damages. The "frontline" people reading new submissions on AskPatents and trumpeting out the basket cases - they'll be the ones taking on the trebled-damages risk. I hope there'll be some among us who can play this role. (It'll probably end up being interested hobbyists or the patent-hunting departments of large corporations.)
edit: I wonder if there's any mechanism for discussion of approved patents? This might provide the seed material for patent reexamination, which in turn allows for patent invalidation. If people review approved patents and start offering prior art for some, any patent trolls intending to wield those patents might start having second thoughts, because it'll look like those patents are on shaky legal ground. This way, even after being granted, questionable patents could still be cast into doubt. Maybe I'm overoptimistic, but how far could Spolsky/the PTO push this?
edit2: Someone correct me if I'm wrong, but it looks like there's no "patent application stream" on AskPatents, so it's basically a bog-standard discussion board for patents right now. It might be more handy if it had an integrated feed from the patent application database (no need for an API, even an RSS feed would work).
Regarding the treble damages for having read a patent - since these are patent applications, not granted patents, perhaps one could argue that one didn't know it was actually granted?
That wouldn't matter.
If you read an application, then you know the invention exists
If the application is rejected – it implies the invention is not novel. Whereas if it is granted, it implies the invention is novel.
Either way, you should not be seeking a patent on that particular invention — because you know that you're not the first to invent.
If you read an application, then you know the invention exists
If the application is rejected – it implies the invention is not novel. Whereas if it is granted, it implies the invention is novel.
Either way, you should not be seeking a patent on that particular invention — because you know that you're not the first to invent.
It matters a lot in whether or not you should /implement/ your design, not whether you should try and patent it.
I think it's fine to ask about and discuss already approved patents on Ask Patents. See the answer to: http://patents.stackexchange.com/q/191/288
> But you can still ask for or post prior art and potentially make a difference.
> Even though you can't just submit that for free on a granted patent, you make it a bit easier for the folks that do have skin in the game by sharing what you have on the problematic patent(s). That way, if someone is sued for infringing, they'll be armed with what they need to defend themselves.
> But you can still ask for or post prior art and potentially make a difference.
> Even though you can't just submit that for free on a granted patent, you make it a bit easier for the folks that do have skin in the game by sharing what you have on the problematic patent(s). That way, if someone is sued for infringing, they'll be armed with what they need to defend themselves.
This is a step forward, and I hope it is successful.
However as it stands what this actually means is that finding prior art is an externality of submitting a patent claim. The cost of stopping a dubious patent from causing damage is borne by the victims, rather than the instigator. If these crowdsourcing schemes are successful, the next step should be to make filers of such patents pay a fee to those who found the prior art.
However as it stands what this actually means is that finding prior art is an externality of submitting a patent claim. The cost of stopping a dubious patent from causing damage is borne by the victims, rather than the instigator. If these crowdsourcing schemes are successful, the next step should be to make filers of such patents pay a fee to those who found the prior art.
I love that idea!
Until that happens, we actually expect that companies in patent-happy industries will monitor filings by their competitors and spend some of their own money and resources blocking competitors from building bad patent portfolios (there was enough of this on Peer To Patent, a very small-scale experiment, to give me confidence that it will happen)
Until that happens, we actually expect that companies in patent-happy industries will monitor filings by their competitors and spend some of their own money and resources blocking competitors from building bad patent portfolios (there was enough of this on Peer To Patent, a very small-scale experiment, to give me confidence that it will happen)
That makes sense. Consumer protection law (Trade Practices Act) in Australia was designed for consumers to use - but it turned out it was always competitors who used them.
Fuck yeah. Applying crowdsourcing to prior art discovery is probably the most viable treatment for improving the USA's patentile dysfunction problem, due to:
a.) low-cost
b.) high potential for busting garbage patents
c.) low potential for abuse/trolling/making-things-worse
With respect to (c), the most obvious attack vector for Myhrvoldian corporo-fascists would be DOS/dilution-via-huge-numbers-of-paid-shills. But I think that's why Stack Overflow's backing is exciting; they are Internet-scale.
a.) low-cost
b.) high potential for busting garbage patents
c.) low potential for abuse/trolling/making-things-worse
With respect to (c), the most obvious attack vector for Myhrvoldian corporo-fascists would be DOS/dilution-via-huge-numbers-of-paid-shills. But I think that's why Stack Overflow's backing is exciting; they are Internet-scale.
I was incredibly skeptical of this initially, but this is a collaborative effort between SE, the USPTO, and Google.
I have some hope that this is a good step towards fixing things. Hopefully that statement sounds cautiously optimistic enough.
I have some hope that this is a good step towards fixing things. Hopefully that statement sounds cautiously optimistic enough.
There's some interesting ones on there already:
http://patents.stackexchange.com/questions/197/prior-art-for...
http://patents.stackexchange.com/questions/133/prior-art-for...
http://patents.stackexchange.com/questions/197/prior-art-for...
http://patents.stackexchange.com/questions/133/prior-art-for...
This needs two things:
1) An additional "this patent is so bad the applicant deserves to be slapped," and a meaningful penalty for submitting atrocious patents (scaled to be meaningful based on who is submitting it).
2) Some compensation for those who are doing a good job providing prior art. This doesn't have to be financial - improving professional reputation would probably be enough, but that's not really going to happen if it's relatively few people on the site. Could we come up with a way of increasing the exposure of contributers (when they want it)?
1) An additional "this patent is so bad the applicant deserves to be slapped," and a meaningful penalty for submitting atrocious patents (scaled to be meaningful based on who is submitting it).
2) Some compensation for those who are doing a good job providing prior art. This doesn't have to be financial - improving professional reputation would probably be enough, but that's not really going to happen if it's relatively few people on the site. Could we come up with a way of increasing the exposure of contributers (when they want it)?
We need this too:
http://pyvideo.org/video/425/pycon-2011--how-to-kill-a-patent-with-python
Part I (5 mins): The USPTO as a data source.* The full-text of each patent is available from the USPTO (and now from Google.) What does this data look like? How can it be harvested and normalized to create data structures that we can work with?
Part II (15 mins, in two parts):* Once the patents have been cleaned and normalized, they can be turned into data structures that we can use to evaluate their relationship to other documents. This is done in two ways - by modeling each patent as a document vector and a graph node.
Part IIA (7 mins): Patents as document vectors.* Once we have a patent as a data structure, we can treat the patent as a vector in an n-dimensional space. In moving from a document into a vector space, we will touch on normalization, stemming, TF/IDF, Latent Semantic Indexing (LSI) and Latent Dirichlet Allocation (LDA).
Part IIB (7 mins): Patents as technology graphs.* This will show building graph structures using the connections between patents - both the built-in connections in the patents themselves as well as the connections discovered while working with the patents as vectors. We apply some social network analysis to partition the patent graph and find other documents in the same technology space.
Part III (5 mins): What have we built?* Now that we have done all this analysis, we can see some interesting things about the patent database as a whole. How does the patent database act as a map to the world of technology? And how has this helped with the original problem - finding better prior art?Really cool!
One idea-- it would be awesome if I could set up an account with a list of topics I have experience in (maybe just pulled from linkedin?), and be automatically notified when an application relevant to my knowledge is submitted.
I bet there would be thousands of people happy to chime in once a week / month when a patent in a specific field they have experience in was submitted. It would be a great way to build up a base of expert knowledge without requiring people to be constantly polling the site.
One idea-- it would be awesome if I could set up an account with a list of topics I have experience in (maybe just pulled from linkedin?), and be automatically notified when an application relevant to my knowledge is submitted.
I bet there would be thousands of people happy to chime in once a week / month when a patent in a specific field they have experience in was submitted. It would be a great way to build up a base of expert knowledge without requiring people to be constantly polling the site.
The questions are supposed to be tagged with the industry, so you can subscribe to that tag.
This is really great - some additional suggestions:
- When you're submitting a patent application you are required to have done a prior art search and list found prior art.
- law firms providing patent services often outsource prior art searches (more and more also to India etc)
- companies attacked with "Jules Verne patents" or overly broad patents often pay large amounts to find most relevant prior art
Suggestions:
(1) alloy users to put up bounties for finding prior art on existing / pending patents or for technology areas. I believe bounties should be starting with about $5K up to $100k+
(2) pay out those bounties based on a particular formula - e.g. when usable results top 5/ best answers get shares of the bounty pool - e.g. best answer 35%, 2nd 20%, 3rd 15%, 4th 10%, 5th 10%, 6th 10%
(3) Similar to bounties this could also be done via a sponsoring system
- When you're submitting a patent application you are required to have done a prior art search and list found prior art.
- law firms providing patent services often outsource prior art searches (more and more also to India etc)
- companies attacked with "Jules Verne patents" or overly broad patents often pay large amounts to find most relevant prior art
Suggestions:
(1) alloy users to put up bounties for finding prior art on existing / pending patents or for technology areas. I believe bounties should be starting with about $5K up to $100k+
(2) pay out those bounties based on a particular formula - e.g. when usable results top 5/ best answers get shares of the bounty pool - e.g. best answer 35%, 2nd 20%, 3rd 15%, 4th 10%, 5th 10%, 6th 10%
(3) Similar to bounties this could also be done via a sponsoring system
When you're submitting a patent application you are required to have done a prior art search and list found prior art.
What effect do you think this would have on small inventors?
What effect do you think this would have on small inventors?
this is a current requirement for everybody submitting a patent application
Ah, I read "suggestions" as "let's make this change." Mea culp.
I'm not an economist or a lawyer so wondering:
1) Should there be a penalty for people who file patents that obviously have a ton of prior art to incentivize people not to do this or to do more research?
2) Should there be a reward for people who discover prior art invalidating patent applications/ claims? The reward could come from a) people who are using the idea without holding the patent and thus don't want to get sued over the patent and are benefiting from the research, and b) the frivolous filers from 1).
1) Should there be a penalty for people who file patents that obviously have a ton of prior art to incentivize people not to do this or to do more research?
2) Should there be a reward for people who discover prior art invalidating patent applications/ claims? The reward could come from a) people who are using the idea without holding the patent and thus don't want to get sued over the patent and are benefiting from the research, and b) the frivolous filers from 1).
Every week I am becoming more and more impressed with Stack Exchange.
Last week it was "Cross Validated" - their version of stack overflow but entirely for stats.
Last week it was "Cross Validated" - their version of stack overflow but entirely for stats.
What about existing patents, can they be challenged with prior art too?
Maybe I'm missing something, but if I come up with a great idea and have any inkling that it may be patentable, why would I want to post the idea publicly before trying to patent it? Wouldn't that open it up to the possibility of theft?
Sure, the existence of the post could prove you thought of it first, but that doesn't prove that the idea was stolen from there nor does it pay for a lawyer...
Sure, the existence of the post could prove you thought of it first, but that doesn't prove that the idea was stolen from there nor does it pay for a lawyer...
“Any person at any time may cite to the Office in writing prior art consisting of patents or printed publications which that person believes to have a bearing on the patentability of any claim of a particular patent…”
> In other words, as of September 16, the USPTO is required to accept submissions from the public of prior art.
This is for third parties to weigh in on the patentability of an idea, not for the person filing the patent.
> In other words, as of September 16, the USPTO is required to accept submissions from the public of prior art.
This is for third parties to weigh in on the patentability of an idea, not for the person filing the patent.
That's not the point and you'll never get a patent if you make it public before filing.
Once filed, patents are up for discussion.
Once filed, patents are up for discussion.
Part of me is cringing that each Patent gets its own tag, given that it's likely there won't often be more than a few topics per patent.
Some patents will get a lot of questions, and an advantage of doing things this way is that you can use tag descriptions to provide background information on patents.
There's not a huge cost to having this tag, either.
There's not a huge cost to having this tag, either.
The whole thing only makes sense as giving a way for the public to more directly communicate with examiners. Keeping the bar very low for examiners is a key component of that.
It will be interesting to see how much of the activity ends up being useful.
It will be interesting to see how much of the activity ends up being useful.
Looks like a really great idea to me; you can follow specific patents.
This is even more useful than it sounds at first. If all it did was to prevent patents with essentially identical claims from being issued over and over, it would be a huge win.
As it is now, simply paying off one troll because you validate a password or a license in you app is no guarantee whatsoever that another won't show up next week to troll you on the exact same feature.
As it is now, simply paying off one troll because you validate a password or a license in you app is no guarantee whatsoever that another won't show up next week to troll you on the exact same feature.
This is awesome. Check out how it's already turned up prior art for Microsoft's 'whack to silence a phone' patent application: http://patents.stackexchange.com/questions/109/microsoft-hav...
Jeez, I hope that server isn't using Linux, that infringes on the double linked list patent.
http://www.patentstorm.us/patents/7028023/fulltext.html
http://www.makelinux.net/ldd3/chp-11-sect-5
http://www.patentstorm.us/patents/7028023/fulltext.html
http://www.makelinux.net/ldd3/chp-11-sect-5
Oh good! Something like this is what I asked for/about a 1.5 months ago. Although, I missed the crowdsourcing angle. Also glad to see that the Patent Office does want to be more productive =)
http://news.ycombinator.com/item?id=4339035
http://news.ycombinator.com/item?id=4339035
This is progress, but not nearly enough. Imho we shouldn't need to dig prior art like this to protect ourselves. I think granting a patent should be the EXCEPTION, not the norm and patent examinators should aim at finding any excuse not to grant the patent instead of rubber stamp it unless they find prior art.
Right after the patent examinator decides the claim is novel it should test whether it is overly broad. For this, simply testing if the claim covers more than one implementation should save a lot of grief. If the software algorithm is described in pseudocode: rejected, in C: approved. This would allow for clean-room reverse-engineering (the claim uses C, we used java), something held as legal for ages in the non software patent world.
And before somebody argues this would make pretty much all software patents worthless: you are correct. Software should not be protected by patents since it is already protected by copyright law.
Right after the patent examinator decides the claim is novel it should test whether it is overly broad. For this, simply testing if the claim covers more than one implementation should save a lot of grief. If the software algorithm is described in pseudocode: rejected, in C: approved. This would allow for clean-room reverse-engineering (the claim uses C, we used java), something held as legal for ages in the non software patent world.
And before somebody argues this would make pretty much all software patents worthless: you are correct. Software should not be protected by patents since it is already protected by copyright law.
Check out Joel's Intro http://blog.stackoverflow.com/2012/09/askpatents-com-a-stack...
I thought it said AskParents.com .. which could be a good idea in itself.
This is awesome, my only fear is that it only stops new Patents, giving existing dubious patents even more power, since it will be harder to create a new "defensive" Patent?
Yes, but what other plausible way do we have for getting rid of bad patents? The problem is that those "defensive" patents are all bogus too. If the bad patents are ever going to stop, there has to be a transition period where some of the old ones are still valid (although they can be invalidated over time), but new ones aren't being granted (or realistically, not being granted at the same rate as they were in the past).
Given that it has to happen some time, let's start right now.
Given that it has to happen some time, let's start right now.
So they're basically hoping to get free labor using crowd sourcing. I don't see this taking off because I don't see the incentive for volunteers to put a lot of work into shooting down someone's patent. While the result will be less patents, a much preferable situation would be no patents at all.
I really wonder how it's supposed to work with the amount of patents granted nowadays. Say you come up with a new product, can you really be expected to go and read all pending patents in existence to verify you're not infringing? It's practically impossible, so I suppose it's mostly fingers crossed that you won't get sued.
I really wonder how it's supposed to work with the amount of patents granted nowadays. Say you come up with a new product, can you really be expected to go and read all pending patents in existence to verify you're not infringing? It's practically impossible, so I suppose it's mostly fingers crossed that you won't get sued.
Is it true that you can't get a software patent in the UK yet US software patents are applicable here?
Read that as Parents... might be a good idea?
Ha! By far the worst of the stackexchange network sites I've seen. My wife and I sometimes read it for laughs.... Funny that people who can come up with a dozen ways to solve a trivial programming problem, when confronted with a parenting issue, invariably offer some useless brute-force based advice like ”show the kid who's boss”, or ”keep them in line”...
so spend a few minutes posting an answer which is not so bad?
But... Wouldn't that just keep the other answers in line by showing them who's boss?
First thing to be done is to reform the legal practice. Why is legal assistance so costly? Why can't it be done cheap. The legal mafia needs to be busted first.
It's a trap!
I'm serious. This is a horrible idea. It's simply a way to get you to forge your own new set of chains.
I'm serious. This is a horrible idea. It's simply a way to get you to forge your own new set of chains.
Change doesn't often happen in huge leaps and bounds. If you wait for huge leaps and bounds to occur before you endorse a change, you'll never get any change at all.
This at least brings attention to the issue, and has the support of Google (and, I bet, other tech companies large and small in the coming days) and the USPTO. Before today, would you have expected so large a community as SE to create a website specifically dedicated to reviewing patents, of all things? The scale of this site and its supporters should show that this is a growing issue, and it's only going to garner more attention through Ask Patents.
One big advantage a site like Ask Patents gives us is the ability to quote numbers and statistics. Consider an argument like this being presented to Congress. 75% of the 500,000 patent filings in 2013 were found by Ask Patents to contain claims on prior art, and were rejected by the USPTO. Each of these cost an examiner two work days to review the application, prior art submissions, and process the rejection. That adds up to <insert math here>, or a whole lot of money! Clearly we need to enforce fees on rejected patents to cut down on government spending.
I wholeheartedly support this idea and would love to see it take off.
This at least brings attention to the issue, and has the support of Google (and, I bet, other tech companies large and small in the coming days) and the USPTO. Before today, would you have expected so large a community as SE to create a website specifically dedicated to reviewing patents, of all things? The scale of this site and its supporters should show that this is a growing issue, and it's only going to garner more attention through Ask Patents.
One big advantage a site like Ask Patents gives us is the ability to quote numbers and statistics. Consider an argument like this being presented to Congress. 75% of the 500,000 patent filings in 2013 were found by Ask Patents to contain claims on prior art, and were rejected by the USPTO. Each of these cost an examiner two work days to review the application, prior art submissions, and process the rejection. That adds up to <insert math here>, or a whole lot of money! Clearly we need to enforce fees on rejected patents to cut down on government spending.
I wholeheartedly support this idea and would love to see it take off.
It's a shame the patent office cannot/will not crowdsource patent research before approval.
I bet if an examiner posted each patent application during review, within 24 hours prior art would be posted for each one, most especially software patents.
Maybe we can get congress to pass a law - ha, nevermind what am I even thinking...
I bet if an examiner posted each patent application during review, within 24 hours prior art would be posted for each one, most especially software patents.
Maybe we can get congress to pass a law - ha, nevermind what am I even thinking...
> "Maybe we can get congress to pass a law, nevermind what am I even thinking."
"a tiny provision in the America Invents Act, the “Patent Reform Act” which, on the face of it, appears to have done absolutely nothing to solve this problem, but if you look closely, there’s a tiny provision in there, which says:
“Any person at any time may cite to the Office in writing prior art consisting of patents or printed publications which that person believes to have a bearing on the patentability of any claim of a particular patent…”
In other words, as of September 16, the USPTO is required to accept submissions from the public of prior art."
@CK2 That's exactly what AskPatents is - a platform for the community to review patent applications and submit prior art to the USPTO during the application review process so that bad applications are never granted.
According to the article, this appears to be exactly what is happening.
I will take that bet any day of the week. We could even test this by using the next X number of patents awarded. Put it on longbets and I will put up $1k. The only way I am not winning is if everything that could be invented is already invented.
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It's a shame the patent office cannot/will not crowdsource patent research before approval.
The PTO approached SE and asked them to do this as part of their efforts to reform the patent system without waiting for Congress to get around to it.
I bet if an examiner posted each patent application during review, within 24 hours prior art would be posted for each one, most especially software patents.
They already do this; indeed, they are required to do so by law, and indeed, public posting of each patent application is a fundamental part of the patent process. Not many people actually bother to post prior art.
The PTO approached SE and asked them to do this as part of their efforts to reform the patent system without waiting for Congress to get around to it.
I bet if an examiner posted each patent application during review, within 24 hours prior art would be posted for each one, most especially software patents.
They already do this; indeed, they are required to do so by law, and indeed, public posting of each patent application is a fundamental part of the patent process. Not many people actually bother to post prior art.
The only rational thing for someone who actually makes stuff to do is to not read any patents, ever, as a matter of general policy.
This might not be the socially responsible answer; we should all be fighting the patent madness in our industry. It is, however, the most logical course of action. It puts the lie to the whole "promote the Progress of Science and useful Arts" thing, but that's where we are.