Victory Lap for Ask Patents
joelonsoftware.com
joelonsoftware.com
I'm definitely looking forward to seeing some Wikipedia-level-OCD focused on this site to stop the roughly 100% of bad applications for new software patents dead in their tracks. Imagine a 2014 where zero new software patents were issued.
EDIT: Incidentally, patentlyobvious.com is just a parked domain at the moment. It seems like the obvious choice for a place to host a site like this.
That would enable "Amazon Mechanical Turk"-style killing of most patents with prior art.
And the patent office would become even less effective. Perhaps a good thing, unless you believe some things actually should be patentable.
IE, a patent that was an original idea, someone else tried to duplicate in a blatantly rip-off way before the patent expired, and the ensuing lawsuit lets the patent creator (who has their patent to-market in a useful state) take the copycat off the market?
If someone else 'owned' the drug, then there was no point in pursuing it because the true "owner" would crush us if the drug ultimately proved useful in treating disease.
Interestingly, the people writing the drug patents use the same types of techniques mentioned by Joel...especially making claims as broad as possible.
The chemists that I worked with considered it an art form to be able to make broad claims that did not intersect with those of competing pharma companies.
There's a lot of bullshit that can go on w/ pharma patents, too, but the VCs would never fund a biotech startup if we couldn't defend "our" drugs.
I think it's the opposite. Since it costs so much $ to fund clinical trials and apply for regulatory approval, the lack of patents would stifle innovation because the pharma company that discovered the drug wouldn't be able to recoup their development costs if other companies were waiting in the wings, ready to sell a generic version of the same drug.
If development costs (especially regulatory approval costs) go down significantly, then I think you can argue that drug patents are an unnecessary evil. But if things stay as they are, then they are a necessary evil.
You sink all of that money in, with the hopes that your drug gets approved. And then, once you've done the heavy lifting, every generic manufacturer can come along and sell the drug because you don't have it patented?
No rational person/company will do that.
In a patent-free world, those regulations wouldn't hold weight. What would happen (I imagine) is independently sponsored r&d produces drugs for trial that the FDA itself puts through clinical trials on taxpayer money. You can't sell a drug without FDA approval still, but since drug companies aren't operating as super-for-profit businesses on chemical compounds to help people live, they would foot the bill to make sure its safe.
It would be interesting to see if your scenario would end up doing a better or worse job with respect to drug development.
Systems (legal, computer, etc.) need to be developed with the full expectation that people will do everything in their power to exploit them.
Another argument would be that they promote innovation by (1) preventing blatant rip offs in the first place, (2) incentivizing individual inventors who invest their time and money with the assurance that their efforts won't be blatantly ripped off in the end by someone with more resources.
There are countless examples of truly innovative patents filed by individuals who devoted their lives to creating new things. Some of the inventors profited directly from their patents, others spent their life savings in court trying to defend their patents.
There are also countless patents for idiotic ideas, and countless idiotic patents that shouldn't have been filed in the first place. But saying all patents are bad might be throwing out the baby with the bathwater.
Unless somehow they began rejecting so many applications, and those rejections all cost more than the fees collected from those applications, so as to total more in losses than the surplus revenue of the rest of the PTO (all other patent and trademark activity, including renewals) over its costs.
Which Isn't Going To Happen.
I would hope that filers for patents that are rejected would still get charged a fee. If they aren't, they should be. After all, it still takes up a patent clerk's time.
1) Pretty much each and every action has a fee attached [1].
2) Each rejection has a 3 - 6 month time limit to be responded to.
3) Most applicants will fight every rejection to preserve their rights.
4) Granted patents have (admittedly higher [3]) fees due only every 3, 7 and 11 years, whereas patents in prosecution typically have fees due every 3 - 6 months. However, granted patents are not guaranteed to be renewed, which means their contribution is reduced [4, 5].
So if you want to talk perverse incentives, the USPTO actually have greater incentive to issue more rejections and collect frequent short-term fees on applicant responses, than they do to issue patents and collect infrequent long-term fees on renewals.
[1] http://www.uspto.gov/web/offices/ac/qs/ope/fee031913.htm
[2] http://www.uspto.gov/web/offices/ac/qs/ope/fee031913.htm#mai...
[3] http://www.patentlyo.com/patent/2010/06/patent-maintenance-f...
[4] http://btlj.org/data/articles/20_04_02.pdf
[5] http://www.uspto.gov/about/stratplan/ar/2011/mda_06_01_03.ht...
1. There is no evidence to back your thesis that "more granted patents fuels the fire of more applications". See this graph [1] of allowance rates in 2000 - 2005 (for an explanation, ask a patent attorney or agent about "Dudas") and this table [2] for number of applications over that time period. There is zero correlation with the steep drop in allowance rates and the rate of new patent applications over the relevant time periods.
2. Why do you think your idea of "the right thing" is actually the right thing, if any such thing exists? Just because the HN echo chamber agrees with you? As I have shown time and time again, the Internet, especially tech media, has no real knowledge of how patents work.
3. The Supreme Court, let alone the CAFC, the PTO and various courts, cannot even define what "software patents" are. How would you begin to limit or eliminate them?
4. None of the above entities have found sufficient rationale to exclude business method patents, let alone software patents. Contrary to popular belief, it's not because they are stupid or technically illiterate, it's because they are very careful thinkers and make the best of what they can given their boundaries.
5. The budget and staffing of the USPTO is, unfortunately, mostly independent of the number of patent applications they receive. Currently, they generate more fees than they are allocated a budget for, and the federal government siphons away the rest.
[1] http://www.patentlyo.com/patent/PatentlyO2006059.jpg [2] http://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm
2.3.4. I come to my opinions as a veteran professional programmer, a named inventor on three US software patents (which I now regret signing off on), a software business owner, and a long-time avid follower of this issue. I'm sure that others, perhaps yourself included, may know more about the ins and outs of the patent legal system than I do, but I submit that you and your patent-defending ilk can't see the forest for the trees. The forest is that the vast majority of software-related patents are total bullshit. Given your role here as patent apologist, I don't think I will try to make a case to you why that is; I don't think that would be time well spent.
5. Find me a chart like your second link which shows the staffing levels of the USPTO over time. I'll bet it shows the same upward trend as patent applications and grants.
Similarly, what do you do about the "I was accidently too broad" cases, which are just as dangerous.
That's worth a chuckle.
(In truth, if it were patently obvious, this would be a much easier problem...)
What's stopping anyone from crowd sourcing a database of prior art for existing patents that would invalidate them if it came to it?
A valid defense against patent infringement is to show that the patent shouldn't have been issued in the first place, right? So a database of Ready Made Legal Defense sounds good.
Am I missing something?
Many times.
patentbusters - ditto
Peer to patent - more recent
Patexia - still exists
article one partners - which still exists and pays
I don't feel like trying to hunt down the rest, but there are/have been at least 10 or so crowdsourcing attempts, some serious, some not so serious.
Further the patent climate has become more hostile towards bad patents in recent years, more so than at in point in modern history, this will also enable more possibility for success
The main serious issues are still the same, in fact:
1. If you submit prior art pre-grant, that's basically that. You don't get to argue about it, only the examiner does. If the patent issues, you've now lost a possibly valuable reference if the examiner didn't use it well enough.
2. If you challenge in any of the post-grant proceedings, you'll be estopped from suing on anything you raised or could have raised.
For instance at the minimum you need to bring in an expert witness to explain the prior art. Then you have to contend with the fact that they will bring in their own expert witness to explain how your example is bogus and you both get to cross-examine. etc. etc.
http://www.uspto.gov/patents/stats/Reexamination_Information...
http://www.reddit.com/r/Android/comments/ww982/iama_patent_e...
The bar for prior art is very high - it has to be published in a recognized medium. Most specifically, unless it has a date that the patent officer can verify and cite (and a self stated date on a web site is not "verifiable"), it can't be considered because it is not possible say for sure it came earlier than the patent filing. So - some random thing on the internet - not published. Even an actual real product made and sold by a company - not published. Even standard industry practise, established for years, if not written up and "published" somewhere, may not qualify as prior art. In one comment he says:
"You may be right, that is how everyone does it. But if there is no documented prior art for us to search, we are out of luck rejecting it."
This explains why so many things that software developers routinely do end up in patents. Some of them are just so obvious that publishing it in a formal way is redundant. Yet that is the same bar that the USPTO is applying for rejecting patents. So the patent system itself is enriching the pool of obvious patents that get through.
Anyone using this Ask Patents site really needs to sit through a mini-tutorial explaining these things before they start, or they will waste more time than they save.
What about the Internet Archive's Wayback Machine?[0]
And how can making a physical product not count -- surely any physical product sold in the United States has some kind of qualifying documentation associated with it which counts as publishing, even a manual?
If that's true,[0] seems to me that the US has a much narrower definition of what can be part of the state of the art than Europe does. Here, the state of the art is "everything made available to the public by means of a written or oral description, by use, or in any other way"[1]
E.g. in the UK there was a famous case where a patent for a windsurfing board was invalidated because it was anticipated by a primitive board hacked together by a 12-year-old boy a decade earlier, and used by him on summer weekends.[2] That "the user was open and visible to anyone in the vicinity of the caravan site where the family stayed" was enough to qualify it as prior art.
[0] To be clear: as a Brit I have no idea about US patent law, and don't know whether the parent description of it is accurate. (It's not impossible that the USPTO's rules on what they'll look at when considering an application are narrower than what a court can consider prior art, just for practical reasons - a court can call and cross-examine witnesses to give evidence of oral disclosures or prior use, unlike a patent examiner. That's just a guess, though).
[1] Article 54(2) EPC
The examiner is not allowed to go on research expeditions to interview witnesses, or to locate, purchase and reverse engineer old products to prove they are implemented in such a way as to invalidate the patent. A court (or the litigants) can certainly do all that, but here we are focusing on what can invalidate a patent prior to it being granted. And for that we are limited to certain classes of readily verifiable types of evidence.
This is basically mip-mapping, and was described in a 1983 paper: http://dl.acm.org/citation.cfm?id=801126.
If only we'd done this a decade or two ago. How about some reevaluation of granted patents?
edit: The original title, "Joel Spolsky, patent killer", was better :/
Wouldn't it also make sense to build up, maybe at the same time, a sort of "counter-thesaurus"?
As in: If you find prior art where the thesaurus method has been used to obscure terms in the patent, enter those as an example into a database. When another patent is looked up, individual terms that show up in the database have a "there are alternative terms for this" marker applied to them.
This might also make it a lot easier to make automatic search for prior art feasible again.
I vaguely recall something about large corporations discouraging engineers from reading potentially relevant patents due to the possibility of greater damages if they were later proved infringing, since demonstrating that they didn't take any inspiration or details from the patent is quite difficult.
Not wanting to spread FUD or anything, but it strikes me as a potential exploit for patent trolls to discourage participation if it's a significant risk.
I am impressed by Spolsky's positive attitude to do something about the problem, I bid ask patents continued good fortune!
In fact, the search history, on PAIR (look for 4-11-2013 SRFW Search information including classification, databases and other search related notes) does not say ask patents was used, nor does the search strategy (document code SRNT).
It could be the USPTO has not gotten around to noting this yet, but the only entry I see that could be related is the NPL entry, which of course, has no image available (god i love PAIR), and does not say it came from outside the search.
Don't get me wrong, I think askpatents is great, but i'm skeptical considering how examiners actually work.
My only question is whether AskPatents was how it got to the USPTO.
I don't see why it's reasonable to assume that they saw it on the site considering most examiners still don't do that sort of thing. Most of them search the USPTO approved databases, internally, and go about their way. This is in fact, what the search strategy/et al says happened. Given that, i think the burden falls on you to show some likelihood here.
For example, do you have anything to say that any significant percentage of examiners (IE > 10%) use askpatents on a regular basis? I would be pleasantly shocked if you did.
The rest is not the argument i am making, the only argument I am making is: "Do you have any evidence that your site is the reason the USPTO found this?"
From what I can tell, your answer is "no".
If you do, great!
No offense meant, of course, my problem is if you declare victory when you were not actually involved, this will actually make things worse - people will think they are helping solve the issue, yet, if the PTO actually isn't using your data heavily, they aren't.
Again, don't get me wrong, i think askpatents is a great idea, and i'd hope and love to find out it's actually being used heavily by the PTO. I can't find any stats on that, and given the history of prior pilot programs/etc, i'm very skeptical.
As to:
> "Do you have any evidence that your site is the reason the USPTO found this?"
Well, the office has told us directly that examiners are reviewing the site. So, when they then reject an application, based primarily on art posted on the site, that was asked for and posted there just prior to the actual review, it makes me highly optimistic that it's not all a coincidence, although I suppose that's theoretically possible.
For example, if the company I work for is being sued by a troll for infringement, could the troll see that employees have been participating on Ask Patents and therefore a reasonable assumption could be made that they're reading/reviewing/participating in discussions on patents, and therefore they knowingly are infringing? Would this something that either I or my employer should be worried about?
There is one true and important point in the article that isn't supported by the example given:
> This patent was, typically, obfuscated, and it used terms like “pixel density” for something that every other programmer in the world would call “resolution,” either accidentally (because Microsoft’s lawyers were not programmers), or, more likely, because the obfuscation makes it that much harder to search.
The patent uses "pixel density" to refer to the physical size of the pixels on a display. This is a fairly common term, with over five million results in a Google search. I've used the same phrase myself for over 10 years with the same meaning.
http://en.wikipedia.org/wiki/Pixel_density
"Pixels per centimeter (ppcm), Pixels per inch (PPI) or pixel density is a measurement of the resolution of devices in various contexts: typically computer displays, image scanners, and digital camera image sensors."
Of course here we can see where the terms get a bit confusing: "...pixel density is a measurement of the resolution..."
But display resolution these days usually refers to the number of pixels, not their physical size:
http://en.wikipedia.org/wiki/Display_resolution
"The display resolution of a digital television, computer monitor or display device is the number of distinct pixels in each dimension that can be displayed."
Advertisements and spec sheets almost always use "resolution" this way, for example the MacBook Pro specs on Apple's site:
"Supported resolutions: 1440 by 900 (native), 1280 by 800, 1152 by 720, ..."
Forgive me if this seems like nitpicking, and I completely agree with Joel's point here: patents often do use unusual terminology to obfuscate what they're talking about.
This just isn't a case of that. The patent is using the correct term, and it even does a very good job of explaining what it means:
> A particular characteristic of display components that may affect presentations rendered thereupon is the pixel density of the display component, such as a pixels-per-centimeter measurement. It may be appreciated that such characteristics may be independent of the size of the display component (e.g., two display components of the same size may present different pixel densities; conversely, two display components of different sizes may present the same pixel density) and/or the pixel dimensions of the display component (e.g., two display components displaying a presentation with a particular pixel dimensions may do so with different physical sizes).
> There is one true and important point in the article that isn't supported by the example given
I can't actually vouch for the "true and important" part. I must confess I put that in there to try to be nicer about what I was saying. :-) And it certainly seemed plausible enough that patents would be deliberately written in obfuscated language, I just can't say it's true or untrue from my own knowledge. I know pixels better than patents.
There's a great comment here that sheds some light on this:
https://news.ycombinator.com/item?id=6085888
In particular, there are reasons for some of the language that seems obfuscated. Read the comment for details and a lot of insight into patents.
Another interesting comment, with a link to a patent examiner's AMA:
https://news.ycombinator.com/item?id=6087057
(Of course there are interesting comments all up and down this thread!)
How do I do so?
The same thing has happened to friends of mine; an undergraduate's summer research presentation may have betrayed patentable inventions. An effect of the 1-year prior art rule is to force researchers to keep mum about what they're doing and to generate greater numbers of incremental patents.
If you're interested in the free flow of information, using a researcher's own publications to kill patents may not help the cause.
Prior art from other work in the past? Bring it on!
The problem I think you are referring to is that researchers run the risk of shooting themselves in the foot by prematurely presenting their findings unless they file an application in the process. Doing so would ruin their chances of being granted a patent.
However, having read the ruling, I see it explicitly cites the prior-disclosure rule. So the bad patent system has invalidated a bad patent, but in a bad way.
Companies like Akamai used to (probably still do) have image resizing proxies which took something like a multi-resolution TIFF file as part of their extended CDN features. I can't remember when I first saw that in action, but I'm sure it was pre-2011.
I'm also not sure why using a researchers own publications to kill a patent would be bad in your eyes. If you think something is really, truly patentable you'd keep it under wraps until you did so, as far as possible. If you only decided later, once you'd published research and people were productizing that research - and you then patented and sued them - well, that's exactly the kind of thing that should be stomped on!
If you think something is really, truly patentable you'd keep it under wraps until you did so, as far as possible.
What this encourages though is, "If you think something is maybe patentable, you can't ever tell anyone about it until the invention is complete and fully functional." Nifty side projects occasionally become a big deal. For precision hardware, development time is often 5-10 years. For young researchers, it's critical to be able to talk about whatever it is that you do.
Completely agreed that bait-and-switch is unethical and wrong.
However, the 1-year grace period isn't available everywhere. The USA has it, for instance, but the EU doesn't.
IANAL, TINLA.
One a day would be less than a 1% reduction in software patents. We need to shut them ALL down.
I'm kind of surprised this isn't happening already.
This is because that's how software development often proceeds. We start with the concrete problem, then notice a pattern that encompasses a class of concrete problems, then a pattern that describes a group of classes of problems and so on. Building abstractions is literally what we do as a profession.
Now, as Joel points out, the rational strategy is to take the highest-level, most abstract version of your invention to the patent office to see what will get passed in. So patent applications are written like matrioshka dolls, with a super general case on the outside, and progressively more concrete descriptions as you go deeper. Somewhere near the bottom is the original thing that started the ball rolling.
More generally, it seems logical to have the size of the penalty increase at a quadratic or even exponential rate, based on the number of rejected patents within a certain trailing time period[1], and scaled by the rejected/submissions ratio. So every rejection would carry a penalty, but the more that were rejected (both in total and as a percentage), the larger the penalty would be, at an increasing rate.
It might also be an idea to do this with individual claims as well as, or even instead of, entire patents, to also deal with the overly broad claims problem.
[1] Or even for all time, but with a weighting factor based on recency. Wouldn't want to get overly complex though.
I would think mipmapping would be the core prior art, and that's from 1983. But I suppose anything over a year older then the application is good enough.
Also note there is another technique for patent manipulation which is to provide a provisional patent application (to start the clock) which can't be granted, then continually refine and the application as time goes by. In a worse case scenario you could taller a general patent into a specific patent based on someone else work, and have a patent already in place that will predate the new invention.
A few comments on this article:
1) This is a very unusual case; most answers (and almost all questions) from "lay engineers" completely misunderstand the scope of the patent, since they don't even know what claims are. And even if they do, they are very lax at interpreting claims. And even then, most posters frequently misunderstand the terms used (case in point, Spolsky's very post! https://news.ycombinator.com/item?id=6084884). All this leads them to post irrelevant prior art.
That does not mean there are no useful answers at all; there are, but they mostly come from people who are somewhat versed in patent law (such as agents, lawyers and examiners). Some re-wording of claims, such as what Micah Seigel does in his posts, helps, but for the proportion of useful answers to go up, we need more education about how patents work for this to be useful. It's really not that hard; heck I did it!
2) It's wayyy too soon for a victory lap because that was only the first non-final rejection, for which a response has already been filed. Statistically, this application will undergo 2.5 more rejections [1] and (based on my guestimate) at least one Request for Continued Examination (RCE) before being abandoned or (more likely considering the applicant) issued with much narrower claims.
3) Patents are worded so not (primarily) to be obfuscating, but rather because of legal, technical and some silly historical reasons. For instance, pronouns are very rarely used because any indefiniteness can be cause for invalidation. Obfuscation will not help much, because you are not trying to get it past lay engineers, but patent examiners, who have a technical background and are (usually) adept at reading patentese. Complaining about how hard it is to read patents is like a Blub programmer complaining about Lisp. You simply need to learn the language to appreciate what you are reading.
4) Most "software" patents (which can't even be cleanly categorized as such) are not crappy, at least with respect to all other patents. There are studies presenting this view [2, 3], but it's also based on my experience having read hundreds of patents. Almost none are revolutionary, but just as few are really as bad as the media portrays. The PTO has gotten pretty good at finding prior art (interestingly around the same time Google came around), and the really broad patents are dying out.
The "crappy software patents" view is common mostly because tech media routinely publishes uninformed (or disinformed? [4]) rhetoric, mostly because they garner some easy rageviews, and audiences accept it without critical thought. I do think the bar for non-obviousness should be different, but solving that is a difficult, almost-philosophical problem.
5) In response to various comments on this thread regarding pay-for-prior art schemes, initiatives such as Article One Partners already exist.
I am not a patent lawyer or an agent, but I believe in the patent system, as I have actually worked for the mythical small-guy firm that was ripped off by the big guys and almost died, but eventually prevailed with patents. You don't hear these stories much because typically the small guys don't have the PR budget for it [4]. (And also because many of those with patents turn to trolls, who like to keep a low profile.)
I have only recently become personally invested in the patent system, but I want all inventions, including mine, to be truly novel and worthwhile. And I want people to get off their butts and do something rather than complain about patents on HN. This is why I support Ask Patents.
[1] http://www.uspto.gov/dashboards/patents/main.dashxml [2] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=650921 [3] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=970083 [4] http://www.paulgraham.com/submarine.html
when i read my ones (basically the same crap that other 99% software patents are) in patent legalese they sound more pompous, yet still an utter crap.
Let me clarify: people think they are crap for the wrong reasons, such as vastly overestimating the scope of the claims. But they are (IMO) still mostly crap because they are ridiculously narrow and not necessarily clever... Yet they are still valid because that's what the patent system is tuned to.
I have said this before in other comments -- the way patents are examined is mostly quantitative: find enough pieces of prior art where enough snippets of texts cover the text of the claims, and you have a rejection. No thought is given to the quality of the claims. For instance, I'd wager the RSA patent (which even the most die-hard anti-patent folks typically admit is novel) would not be granted today because each aspect of the claims is mentioned somewhere in the prior art. It is the combination of steps which is novel. Yet todays examination process would shoehorn the claims into a ridiculously narrow set of steps that (the attorneys hope) would still typically be infringed.
Examination these days is a mechanical process whereby examiners just try to find enough references with language in them to cover all steps in a claim to issue an easy rejection. (Yes, the "rubber stamp" is more likely used to reject rather than allow.)
So how do you try to qualitatively judge a patent when you have only a few hours appreciate all the prior art out there and appreciate what is being claimed and to do so?
The answer is, you can't; the only way to have a scalable process is to issue actions on a quantitative basis rather than a qualitative one.
As I said, it's a difficult, almost philosophical question.
[0] http://en.wikipedia.org/wiki/Learned_Hand
[1] Lyon v. Boh, 1 F.2d 48, 50 (S.D.N.Y.1924), copy available at http://scholar.google.com/scholar_case?case=9696597566965196....
I think this is one reason that most examiners (at least IME) have their default mindset to "Reject! Reject! Reject!" Also, this is why something like Ask Patents is invaluable to even the odds.
I don't agree with the quantitative approach, but I can't help think that technology can help. Google has already (in my opinion) helped the PTO greatly narrow claims the past decade; similar technology can help even more.
I have some background in NLP. And I know it's surprisingly effective when it comes to domains with specific jargon (cf. Watson and medical language). I've lurked long enough to know some here (such as VanL) have already experimented in this area. Personally, I have toyed with the idea of constructing parse trees out of multiple technical texts and claims, "normalizing" them using ontologies, and trying to find matches (i.e. prior art) using various tree-matching algorithms. I have a feeling it would be very effective. (Maybe Google already does this!)
But that does not address the problem of identifying patents that are quantitatively invalid but qualitatively valuable. To me, that is the more important long-term problem.
It's the renewal fees where you should be charging highly IMO; hyperbolic year-on-year increases would be an interesting option to model.
>For small filers, the legal fees will dwarf the USPTO fees //
You can self file; though it's not generally advisable. $10k isn't even a blip for someone like HP who (at least in the past) markets themselves on the number of patents they have.
"Inventive patent filed covering obscure corner of programming" is not going to garner pageviews, for the same reason that "Grandmother walks home safe from 1000th time without being assaulted by ne'er-do-wells" doesn't appear on any newspaper outside The Onion.
That's only a person assessment, not a fact, as you are making out it is. The consensus in the tech industry among almost everyone (from software developers to tech legends) is that the patent system is broken and continues to routinely pass invalid and valueless patents.
>The "crappy software patents" view is common mostly because tech media routinely publishes uninformed (or disinformed? [4]) rhetoric, mostly because they garner some easy rageviews, and audiences accept it without critical thought.
No, it's because it's actually the truth and the software community is not nearly as susceptible to junk journalism as you make out.
>I am not a patent lawyer or an agent, but I believe in the patent system, as I have actually worked for the mythical small-guy firm that was ripped off by the big guys and almost died, but eventually prevailed with patents.
For every example of a situation as you described, there are 10 of a patent troll shutting down another small-guy firm or making them work for slave wages.
For example the Twitter patent was granted, even though there is prior art (mine), and even though I submitted my prior art as soon as I found out about the patent. But I got a reply along the lines of "too late, the patent has been granted". It turned out that the application was kept secret until it was granted, thus guaranteeing protection from any prior art not already known to the patent office employee assigned to that patent.
The "new" US patent laws require an application to be made public after 18 months, but there could be thousands upon thousands of older patent applications benefiting from the secret option.
The root of the problem, the patent system itself need to be abolished.
Also, like Quora, does the StackExchange system allow one to register one's fields of expertise, to have questions suggested to you? (I'm not a big participant on SE but I know it may be hiding that feature from me, because it slowly reveals features based on karma).
Anyway I'm sure this has been thought of before, just curious if it's on the todo list.
There is also an advanced "filters" functionality (visible at stackexchange.com/filters) which apparently lets you filter out all but certain tags, as well as have 15-minute/3-hour/daily emails with new questions in that tag. I have never used it, but it sounds like what you're aiming for.
Wouldn't the result of this be that the company who finds out that they have the earliest implementation of the code in question be able to get the patent for it?
TLDR: Give people financial incentive to destroy patents, and they will be ALL over it.
Its actually some part of governing delegated to the public. A part they can be good at. I wonder if the crowd can be authoritative, rather than just helpful. That would let them tackle obviousness, not just prior art I could see a stackexchange-like. It might be that they can tackle it now, if good methods/guidelines exist for objectively determining obviousness.
1. Swap the burden of proof: couldn't much of these issues with software(!) patents be avoided just by forcing the "inventors" to check for prior arts themselves and prove (somehow) that they actually did do that?
2. Make them pay: What about a (huge) fine when the patent does not get approved eventually or when prior art was found during the approval process?
"The Mexican standoff bit would be neat. The AIA allows for third-party submissions directly into the patent application file. I am not sure that any of the larger companies would do this, but I think a devoted engineer in some of the smaller companies could use askpatents to stave off predatory patents."
"My dream is that when big companies hear about how friggin’ easy it is to block a patent application, they’ll use Ask Patents to start messing with their competitors. How cool would it be if Apple, Samsung, Oracle and Google got into a Mexican Standoff on Ask Patents?"
How great would that be?
> 1. A method of transportation
> 2. The method of transportation in claim 1, wherein there is an engine connected to wheels
> 3. The method of transportation in claim 2, wherein the engine runs on water
> Notice that claim 2 mentions claim 1, and narrows it... in other words, it claims a strict subset of things from claim 1.
> Now, suppose you invented the water-powered car. When you submit your patent, you might submit it this way even knowing that there’s prior art for “methods of transportation” and you can’t really claim all of them as your invention. The theory is that (a) hey, you might get lucky! and (b) even if you don’t get lucky and the first claim is rejected, the narrower claims will still stand.
I'm pretty sure this is not accurate. To my knowledge, the claims of a patent are considered only as a whole, not individually, so there should be no fear that this is somehow trying to patent "methods of transportation" broadly.
To make a broad patent claim, you can't have any narrowing claims on the same patent. Put another way, the maximum scope of claim by a particular patent is defined by the narrowest claim in the list.
Lawyers--correct me if I'm wrong.
Here: http://en.wikipedia.org/wiki/Claim_(patent)#Basic_types_and_...
Our lawyers even admit that. The company I work for gets sued for a bogus patent every week(!), so we were all ask to file patent applications. I didn't, but I got involved in some applications as co-inventor anyway.
This isn't - and not been for a long time - about inventions.
http://www.thisamericanlife.org/radio-archives/episode/496/w...
Any idea to which two he might be referring?
http://blog.stackoverflow.com/2013/02/podcast-43-false-facts...
Maybe the fee should start low and then increase by some percentage with each new application you submit.
Also, given we just switch from first-invented to first-filed, it is particularly onerous for those garage-based small inventors as a big corp can easily justify the cost.
What might make more sense is to tax intellectual property. We tax physical property with much less value than a "successful" software patent (ahem, Eolas?), why not tax the non-physical property as well? If you make it progressive based on the number of patents owned/controlled, it will also limit the usability of maintaining warchests of patents for controlling markets.
It says "Resolution"
There are half-a-million patent applications per annum in the US alone (10 million since 1963). I'd estimate a global corpus of billions of patent applications. Prior art search extends though [in theory] to all publications.
You can see why prior art submissions are allowed from third parties. If you want to ensure only valid patents, or perhaps as few patents as possible, are granted then making such submissions is in your own interests.
Edit: Actually the gross figures are misleading, but remember these are complex 20+ page [in normal print size] documents on the whole. G06F11 - an IPC classification concerning error correction, detection and handling has ~9000 docs in the espacenet database for each of 2010/2011/2012.
Spolsky, Patent Killer