USPTO likely to adopt 'peer-to-patent' (Feb 2010)

That's a very interesting point.

It'd be fun to think about how one could architect a patent system where the duration and scope of a patent is based on the capital costs that went into developing it as well as the capital costs required for a clean room implementation (still seems silly that a patent can affect somebody else from coming up with the same idea independently).

Exactly. Incentives are what the patent system is all about. More on this here: http://news.ycombinator.com/item?id=1724264

My reading of economic history, thus far, has suggested that patents cannot be justified. Even steam engine patents could not stand the test of empirical evidence.

I cannot yield to your economic reasoning, as I already reject it.

I will be happy though, to read more economic history and dig into it more, as soon it somehow fit into my budget and time.

In theory they should make sense if

    * copycats would have significantly lower costs without
      any offsetting disadvantages, and
    * what's being patented would not be independently
      re-discovered before the patent's expiration

In practice neither happens: copycats tend to be comparatively incompetent, and simultaneous inventions is more the rule than the exception.

I think the core disconnect is whether those two points are taken as true or false: you get the imagery of some lone heroic inventor being always crushed by some conglomerate that patents could save him from; a more accurate version would be a bunch of small businesses that keep doing cool things at more-or-less the same time which the conglomerates pick up on after a year or two, and nobody has the concept of going broke on legal fees arguing over who's allowed to do what.

> Yeah, these monopolies make sense if I have to set up a plant, or do years of research, but that's not true in software anymore.

The hard part of software is figuring out what to do, reimplementing a program is easy (thus the prevalence of programs that are "clones" of other programs). If patents actually worked, I think software would probably be a nearly-ideal example.

> Software algorithms are mathematical expressions. I don't need to show prior art to prove that having a patent on 46,456,456 + 235,566 = 46,692,022 is meaningless even if nobody has done that particular calculation before me.

Straw-man argument by over-generalization.

A better analogy would be that software systems are machines that can be fully specified in some formal system.

But then, so are physical machines, for most useful levels of abstraction.

The distinction is simply not as clear-cut as you're making it. If a software system can simulate a physical system, should there be a difference in patentability?

If you're speaking narrowly of individual algorithms, then perhaps you have an argument, but what's important is how you pull all the various algorithms you need together.

So if I invent, say, a genuinely novel new form of public key exchange, or a new psychoacoustic model that drastically improves audio compression, or a novel forward error correction scheme --- these things shouldn't be patentable, but a new kind of bicycle kickstand should be?

I'm no fan of software patents but comparing a simple arithmetic operation to an algorithm is a bad way to argue about software patents. Algorithms are a higher level of abstraction that can be quite complex in the end. And they are rarely the unique way to do something. It can even be almost impossible that an algorithm is really the best choice in your case.

Do I think software patents (or any patents) make sense? No, but I won't call software algorithms simple mathematical expressions similar to adding 1+1.

Questions:

1) How would you classify a non-reprogrammable hardware device that performs a computation?

2) Would it matter to your classification if it was programmed through the simple arrangement of wires, rather than some source code?

3) How is an arrangement of levers that performs a computation different? Would you argue that a specific physical machine capable of performing a computation is patentable, while the algorithm itself is not?

3b) Since computers are a form of universal machine, if the answer to (3) is yes, then what constitutes the specific physical machine, where the machine is specified in software?

4) Finally, would you simply argue that nothing should be patentable, in which case splitting hairs is irrelevant?

> Isn't there some legal strategy reason why challenging patents is a bad idea? Like, the due process involved is minimal, and having survived a challenge, the facts behind the challenge strengthen the patent in court?

At the margin that's indeed a concern.

Many patent attorneys think, however, that --

A) On average you're likely to get a better take on patentability from an examiner, who has at least some background in the technology and who doesn't have a presumption of validity to overcome;

B) Suppose you have prior art that you think invalidates the claims of a patent application, but you withhold it from the patent applicant in hopes of using it later on as a defense in infringement litigation. The patent owner's trial counsel is likely to argue to the jury that your actions then speak louder than your words now. "If the prior art was so great," counsel will argue, "why didn't they give it to the patent applicant to be forwarded to the patent examiner? They're just trying to pull the wool over your eyes, and making you do extra work evaluating this supposedly-great prior art reference, when they could have saved you the trouble by having the examiner look at it in the first place."

There is if I remember correctly: if the entity applying for a patent places his patent on peer to patent for public review and it passes, I think the process for acquiring the patent will be much faster vs going the traditional route

IANAL

My understanding is that there are a few reasons why it can be a bad idea. First of all, prior art seems to be taken more seriously during the re-examinations that happen during lawsuits. If the prior art is presented beforehand and the patent is granted anyway, then that avenue is closed off. In addition, it gives the patent filer more of a chance to tweak their patent to try to work around the prior art and re-file it (often several times) until it gets granted. So you want to only present prior art during the phase of examination during which it's taken the most seriously and when the patent filer doesn't have an opportunity to game the process by refiling over and over again, which usually means waiting until it comes to trial.

Secondly, patent attorneys don't like their clients doing any sort of search of/reading of any patents that could potentially affect their work. If you're found to have knowingly violated a patent, the damages are far greater than if you did it unknowingly. Submitting prior art to try to get a patent thrown out before it's granted would necessarily require researching and reading up on those very patents, so if the patent didn't get thrown out and you were eventually sued for infringing it, you'd be in much, much bigger trouble. Presumably the people who have the incentive and knowledge to bring up that prior art are likely to be involved in the same segment of the industry, which puts them in an awkward position: do you try to get the patent thrown out ahead of time, and be in serious trouble if you fail, or do you hope you don't end up at trial but keep the prior art in your back pocket in case you do?

Perhaps big companies could have a dedicated legal arm to research and challenge such patents at arms-length from their developers and/or keep their developers aware of potential minefields, but for smaller companies you'd be better off avoiding patent searches or research altogether.

That's fairly paradoxical given that patents are supposed to further innovation by giving people an incentive to disclose their inventions, but that's what the software patenting world has come to . . .

If it's difficult to derive and produce, you're not likely to need patent protection. Patenting a large hadron collider would be money and thought wasted - it's a unique undertaking and people will come to you to use it anyway.

The bleeping 1-click patent, though, God, it's enough to make my head explode if I think too much about that being patented. An utter perversion of the original intent of the patent system.