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PTO Seeks Public Input on Patent Applications

Posted by ScuttleMonkey on Sat May 20, 2006 08:21 PM
from the changing-the-definition-of-patent-troll dept.
Patents United States
KingAdrock writes to tell us Sciencemag is reporting that the US Patent and Trademark office (PTO) is floating the idea of an online pilot program to gather public input on patent applications. From the article: "Speaking last week at an open forum, officials said that tapping into the expertise of outside scientists, lawyers, and laypeople would improve the quality of patents -- and might also reduce a backlog that this month topped 1 million applications. "Instead of one examiner, what if you have thousands of examiners reading an application?" says Beth Simone Noveck of New York University Law School, who is an independent advocate of the idea."
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[+] USPTO to Use Peer to Patent Program 124 comments
An anonymous reader writes "DailyTech is reporting that the US Patent and Trademark Office is going to start using the Peer to Patent program. From the article:' The US Patent and Trademark Office has been getting praise for officially launching the Peer to Patent program -- the purpose of Peer to Patent is to find patents that have been issued for already made products or items that don't properly qualify for a patent. Because the USPTO usually does not have the manpower and time to thoroughly check every patent that comes into the office, many are unjustly rubber stamped.' The program will utilize a Wiki, among other tools, to get the job done."
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  • Notification of Prior Art (Score:5, Informative)

    by LiquidCoooled (634315) on Saturday May 20 2006, @08:24PM (#15373909) Homepage Journal
    http://yro.slashdot.org/article.pl?sid=06/05/09/12 28221 [slashdot.org]

    The new article is however a derivative, because the discussion seems further on now and a site has been setup.
  • Whats going to stop opponents of said technology from sabotauging patents?

    • Re:Well.. one drawback. (Score:4, Insightful)

      by LiquidCoooled (634315) on Saturday May 20 2006, @08:28PM (#15373919) Homepage Journal
      Moderation and group communication.

      Just because one troll tries to game the system doesn't mean his voice is heard.
      There should be enough general lurkers around to spot the obvious gaming.
      • Is that really going to help? Large corporations could easily field thousands of paid moderator trolls working through proxies or what have you. It would be impossible to police the system unless pre-designated online moderators were used for patent review. And if they did that, the whole notion of community review would go out the window.

        • Re:Well.. one drawback. (Score:4, Interesting)

          by ehrichweiss (706417) on Sunday May 21 2006, @12:02AM (#15374503)
          What if the public is only allowed to declare if there is possibly prior art, not take part in the actual approval process itself? Are these corps gonna hire people SIMPLY to find prior art to invalidate patents? If so, we'll have a LOT fewer patents and that might not be such a bad thing. I mean that IS the goal, right. And yes, while it would enable the corps to attempt to lock-out private inventors, it is also a two way street.
      • If you'd read Frederick Hayak's "Road to Serfdom", essentially when a government's control overwhelms a society, then gaming the system is the only thing that pays.

        He doesn't use those words, exactly. He puts it into terms of working vs. petitioning, then escalates it into lobbying and finally violence of different sorts, but that is essentially what he is saying.

        Therefore, the powerful do game the system, and it will be gamed, and nobody will be able to stop them.

        That's happening right now -- indeed, for
    • All the input and discussion will just make everything much slower.
    • Its only a drawback because you are assuming that competitors will be able to sabotage a patent.

      If you read the article it states that "The peer initiative focuses on so-called prior art, the scientific papers and previous patents that could render claims invalid." So there is not much room for sabotage as I'm sure the prior art would will require some verification.

      It is already possible for anyone to submit prior art submissions to stop a patent but it is much more formal and expensive and slower than this

    • Re:Well.. one drawback. (Score:4, Insightful)

      by NihilEst (976138) on Sunday May 21 2006, @12:30AM (#15374572)
      If a patent can be sabotaged, it should ... particularly a software patent.

  • Thinking Ahead... (Score:5, Insightful)

    by Duncan3 (10537) on Saturday May 20 2006, @08:26PM (#15373916) Homepage
    1. Improve process vastly
    2. Bullshit applications discarded (99%+)
    3. New applications drop 99%
    4. Paychecks at the PTO all disappear
    5. 10,000 lawyers out of work, but still alive to terrorize other parts of the economy
    6. ???
    7. PROFIT

    Yea.. that will happen...

  • Fixed from the submission:

    Instead of one examiner, what if you have thousands of applications reading the examiners?

    Ok so I anthropomorphized application... But I am just saying, by creating a system more capable of finding the correct examiners for a particular application (perhaps by further defining the details required to submit a patent application) the system would more efficiently utilize the knowledge of each examiner. Then perhaps we wouldn't need to throw "thousands" of examiners at a single appl

  • Timely? (Score:3, Funny)

    by FyRE666 (263011) on Saturday May 20 2006, @08:34PM (#15373934) Homepage
    Something about barn doors and bolting horses springs to mind...

  • Public peer review of applications... (Score:5, Insightful)

    by kcbrown (7426) <slashdot@sysexperts.com> on Saturday May 20 2006, @08:36PM (#15373940)
    ...is how the system should have been set up to begin with.

    There are some who might argue that applications need to remain secret in order to prevent competitors from snatching the idea and using it in their products, because it's possible that the application will be denied, and then the patent submitter will lose his competitive advantage.

    To those people, I say: applying for a 20-year monopoly on a method should carry significant risks. The decision to apply for a patent should not be one that is made lightly. Those who want such a monopoly should have to be exposed to the risk that what could have remained a trade secret is instead exposed to the world without any compensation being made to the originator.

    If the patent is approved then suddenly the patent holder can arrange licensing with those who have already implemented products using the method. If a patent looks like it stands a really good chance of being approved, chances are others will stay away from it anyway. But woe to those who attempt to slide an obvious or previously-known method as a patent through such a system.

    That's how it should be.

    • Even then the risk isn't that high because if the patent application is valid then it will be granted. If it's not, then a similar patent will be rejected so the copycat won't be likley to benefit from it.
      • So you submit a patent for a piece of software (we'll call it a 'widget' for the sake of brevity) and your submission goes into a queue. So a large, well-funded company comes along, decides that your idea is a good one and immediately implements it.

        In due time (way too long, IMHO) your patent is approved. Great! Now you can get royalties or some other reciprocation from the large, well-funded company, right?

        Wrong. They'll overwhelm you with lawsuits and counter litigation to ensure that not only do they

      • Re:Public peer review of applications... (Score:4, Insightful)

        by Ohreally_factor (593551) on Saturday May 20 2006, @11:58PM (#15374488) Journal
        Well, the benefit of not patenting is that you have a trade secret, and until 1) someone creates a similar invention independently, or 2) reverse engineers your invention, you have an effective monopoly on your invention.

        If you can control your secret, you have a competitive advantage.

        Note that not all trade secrets are inventions, nor would it be easy to keep some inventions a secret, especially if you intend to make it into a product and sell it to the public.
    • One problem with measuring obviousness is that most things seem obvious after you've heard the solution.

      Having peers review the actual patent, then asking them to honestly estimate it's obviousness is a tall order. Besides the fact that they now have been given your ideas (and may wish to see the patent thrown out), they must also ask themselves how easy it would be to solve a problem for which they already have the answer.

      Instead, we should measure the patent's obviousness indirectly, by asking those "sch

  • Not To Seem Mercenary, But... (Score:3, Interesting)

    by ewhac (5844) on Saturday May 20 2006, @08:37PM (#15373941) Homepage Journal
    Would I be compensated for this work?

    I mean, I could say there was prior art or that the submitted "invention" completely lacks novelty, but such assertions would be more likely to be heeded if I also provided concrete references, and that takes non-trivial work (no, pointing at a Wikipedia article doesn't count).

    So, if I do this, apart from the feel-good karma of smacking down patent trolls, what's in it for me? Maybe a tax credit? Waiver of fees for my own patent/SIR application?

    Schwab

    • That wouldn't be such a bad idea. Many Wikipedia articles actually have a lot of references, which takes a non-trivial amount of work, but it's not so bad when you have a non-trivial amount of people working on the project.
    • There's a massive incentive for your compeditors to review your applications. They don't want you to get that patent that you could use to prevent them from making money. If I was IBM I'd have a team of people reviewing all of Microsoft's patents, it gives IBM an insight into what Microsoft is doing, and if you can block Microsoft from getting patents then it stops you having to deal with the issue later. Of course Microsoft would be reviewing all of IBM's patents too...
    • Whats in it for you is treble damages if you should ever later happen to implement anything even remotely related to one of the patents you've commented upon earlier -- they're gonna claim it must be willfull infringement since you had read the patent-application and thus "must" know your implementation infringes.

      It really works like that: reading patents to try and make sure you're not infringing anything, *increases* your vulnerability to patent-trolls. Coders should avoid even looking at patents as far

  • The sooner the competition sees a company's patent application, the sooner they can create further innovations that build-on or work-around the proposed patent. That's one of the cool things about a patent - it forces the applicant to disclose the invention so that other can innovate further.

    • A "submarine patent" remains unpublished after it is granted. By running silent, running deep, the submarine patent's owners let other people develop and implement inadvertantly infringing products. Then *BLAMMO* the Patent surfaces and holds the inadvertant infringers at gunpoint (er, torpedo point. What-ever).

      Publishing applications as soon as they are filed stops this tactic. Potential infringers have the ability to check whether their product infringes BEFORE they invest. That's a good thing!

      • Incorrect. A granted patent is by definition published. A submarine patent is one in which the application is filed in secret and then not granted because of continuations of the original application. This was possible under previous US patent law, but under current law it is no longer possible.

        Also, what many people refer (incorrectly) to as Submarine Patents are earlier patents that were not researched by the victim for a variety of reasons. These reasons might be 1) Lack of time or money to perform the s

        • In-In-correct.

          In the U.S. system, patent applications need not be publicized for a year-and-a-half after filing ... and that time can be extended with the applicant makes certain declarations. That's a vast improvement over our old system (where submarines could stay under the surface for decades) but still a long way from being "good". If your 18 months of effort got holed amidship and sank into the frigid North Atlantic, you would not say "well, at least it's not decades" you would say "that is bad" (or

          • A secret patent can be extended for six months at a time, but a patent can and will be overturned in court through what is known as prosecutorial laches. Further, the patent holder must satisfactorily show reason for the both the secrecy of the original application and for the continuations. In recent years, the courts have not hesitated to invalidate "submarine" patents. Also, the clock starts running from the date of the application, not the granting, so the longer the patent applicant tries to run this g
    • This public good you describe is the raisin deeter (or raison d'être for you purists) for patents. It helps society as a whole avoid reinventing the wheel.
  • in the past, also on previous slashdot posts when patents came up.

    I would also think a bounty for disproving the application (showing prior art, that the application is too vague or obvious or whatnot), coming directly from a percentage of the applicant fee would be wise - $250 to $5000. Applicant fees should also be raised, individual applicants within a certain income bracket should have to pay the lowest, while mega-corps have to pay the highest fee (within reason) - and this fee would also be reflected

    • I agree that altruism works faster with a material incentive booster ...

      ... but when it comes to finding prior art, the incentive is simple:

      1. Find hot patent application

      2. Find prior art sure to sink patent

      3. Setup production of competing product using information disclosed in application

      4. When you're ready to go to market: reveal prior art and blow away patent

      5. PROFIT!!!

  • Double or triple the cost of the application and then offer up half of the money to anyone who can conclusively prove that a patent is invalid. Sort of a reverse user fee, someone proves that the government "should not do its job."
  • This is a great step in the right direction, but it won't change the underlying law and it can still be gamed. The biggest problem is not a lack of reviewers, it's what can be granted a patent. If business method patents are valid, more reviewers will only make more dumb business method pattents happen. Worse, those with money may be able to hire lots of people to mod bomb competing patents. Carefully qualified peer input will be very useful if patents once again are restricted to non obvious inventio
  • I've recently thought of an idea for how to deal with patents. Something similar to Slashdot should be used. Imagine if there was a website running slashdot software would allow everyone to comment on the validity of patents before making a determination to grant or deny the patent. If that had been around at the time the hyperlink patent came up for review, you can count on a large number of posts saying that's just silly. The public has many informed people on all subjects. It's just a matter of letting t

    • I've recently thought of an idea for how to deal with patents. Something similar to Slashdot should be used.

      You mean something like PatentDot ??? [slashdot.org] which I suggested on Feb. 12, 2006:

      How about a Slashdot for Patents???? Given the knowledge and interest I've seen displayed here, and the fact that the SlashCode is available, I really think this could work!

      Features: Here's a rough, back of the envelope, sketch of how it could work:

      1. Getting patents A daemon could periodically check the USPTO si

      • Good idea! Have you patented it yet?!?! ;)
      • Categorization Patents would be categorized into different "departments". Hmmm, could a Bayesian filter come up with a short list of recommendations? These could be attached to the article as options for "High-Karma" users to select (or offer something better). As soon as some threshhold (say 10 votes) is reached, the article is moved from the NEW department to the selected department.

        Now that there's tagging, I think that's a supperior method of categorization.
  • It's a very good idea in theory, but might not work so well in the real world. There would have to be a way to verify that "outside scientists" really are scientists. Also, how would training (presuming at least some training is needed...) be provided for the outside examiners?

  • It would be funny, ironic and sad "if"... (Score:3, Funny)

    by layer3switch (783864) on Saturday May 20 2006, @10:44PM (#15374235)
    "The patent office is weighing an online pilot project to solicit public input on patent applications. [...] The idea is for volunteers to be alerted about new patent applications--applications become public after 18 months--and invited to submit prior art."

    If the idea is already patented... Oh the irony!!!

  • Problem: People can't read patents (Score:3, Interesting)

    by edashofy (265252) on Saturday May 20 2006, @11:14PM (#15374328)
    Here's the main problem with this idea: the vast, vast majority of people, even smart Slashdot readers, have no idea how to read a patent. Sure, they read the abstract and that might bring to mind some other invention that's sort-of-like the one described in the patent, and that is helpful to a small extent. However, did you know that the abstract has little to no bearing on what the patent actually covers?

    Patent claim language (the actual property rights granted by the patent) is byzantine and ugly. Besides that, there are all kinds of nuances. Do you know the difference between an apparatus and a method patent? The terms used in the claims may (nay, probably) don't mean what you think they mean. The applicant doesn't even know what they mean, since the legal claim construction process only occurs when the patent is challenged. Then, if the applicant (as many do) uses USC 30 S112P6 "means-plus-function" language, you're in a whole other world of indirection and confusion.

    Patents need reform, but having a million uneducated people looking at the applications is only part of the solution. Reforms to patent law itself, such as:

      - Making applicants provide a binding glossary of terms
      - Making applicants identify corresponding structure for means-plus-function elements
      - Reforming the byzantine nature of claim language

    would go miles and miles to easing the process and squeezing out inefficiency
  • I don't think most people understand how evil patnets really are. While we have all herd the theory of how patents supossedly help small inventors, and how pharma R&D would supposedly never happen without patents, what we never hear are things like how African nations were sued in the world court for trying to make generic AIDS medications - locking out millions who were dying. We never see story about the millions of inventors who are locked out of using inventions cause of legal and royality costs,
    • How is this going to stop patent trolls? Granted, they'll have more trouble finding bogus patents, but that's not all they do. Patent trolls also buy up valid patents that haven't been marketed yet and either sue whoever tries to implement the idea (not knowing about the patent) or charge extortionate royalties. All this will do is cut down on the crap patents for them to feed off of, it won't stop them.
    • More people - for one thing, how many Slashdotters can read and understand a patent (or even tell the difference between the claims and the technology description, and what they are for)? Putting this in the hands of laypeople will be a disaster.

      Then you have the conflict of interest. Let's say a large company wants to stomp a startup - they get their lawyers to wallop every part of the application, and they steal all the technology in the process. So much for the little guy.

      Nope. I am not as optimistic as

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