Open-source Overhauls Patent System 186
K-boy writes "The US Patent Office has announced new plans to reform the patent system - and right up there at the front is open-source software. Techworld argues that it is in fact open-source software that has been the driving force behind the reform." From the New York Times article: "At a meeting last month with companies and organizations that support open-source software (software that can be distributed and modified freely), including I.B.M., Red Hat, Novell and some universities, officials of the patent office discussed how to give patent examiners access to better information and other ways to issue higher-quality patents. Two of the initiatives would rely on recently developed Internet technologies. An open patent review program would set up a system on the patent office Web site where visitors could submit search criteria and subscribe to electronic alerts about patent applications in specific areas."
Surface changes only (Score:5, Informative)
Peer to patent (Score:3, Informative)
It may work best for prior art, resembling one of the systems discussed in the article.
Groklaw (Score:3, Informative)
Apperently the PTO and the companies they are working with are looking for input from the general community so here's a chance to have your $.02 heard somewhere else besides
Per PJ:
I know from your comments that some of you feel that the only solution is to get rid of software patents altogether, and if you can accomplish that, feel free. But others of you have expressed the thought that high quality patents are legitimate, for ideas that are truly innovative and represent real scientific progress. Think what it means that the USPTO is participating and asking for your help.
Re:Wow! Temporarily, a victory for OSS? (Score:2, Informative)
"I mean, since when has there been an "Open submission" for prior art in any of the USPTOs area of authority"
Since 1790. The current "proposal" is nothing new, its just a more effective way of submitting third party prior art. The current and long standing USPTO rules for public submissions of prior art can be found here: http://www.uspto.gov/web/offices/pac/mpep/document s/1100_1134_01.htm [uspto.gov]
Also, the current proposal does not allow third parties (the public) to submit comments after an application publishes (which of course would be most helpful) due to the confidentiality required by federal law (35 USC 122: http://www.uspto.gov/web/offices/pac/mpep/documen
So if you see an application publish that you know is anticipated by prior art there isn't anything you can do about it until the application issues into a patent (in which case you can pay 10k-100k for a reexamination).
Re:But it's an advance. (Score:2, Informative)
After a stumble or two they then reacted by reading Benson as narrowly as possible, partuclarly paying attention to the Benson holding which included the adjective "mathematical", and reversed a subsequent Board rejection affirmance for a program directed to, IIRC, natural language manipulation. The result has been, virtually, to permit anything, since all you have to do is point out some actual use beyond just abstract mathematics. The business method stuff, of course, is not specifically tied to software, so they easily could apply their philosophy in the State Street case and just extend it further.
If the SCOTUS can't be persuaded to correct this, then it will take Congress to fix this, and that's not, currently, very likely.
Re:Your Sig: The 9th Amendment (Score:3, Informative)
It often depends on what you're trying to accomplish. In any event, I don't have a problem with the federal constitution being as open to interpretation as it is.
The Constitution mentions "Certain Inaliable Rights", which is fairly and intentionally vague. Its in the Bill of Rights somewhere.
No, it doesn't. You're probably thinking of the 9th Amendment, but that reads: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
I believe that the privacy is implied by the forgotten warrant and illegal search and seizure, not forcing US citizens to house troops, etc.
Sounds like you find a right of privacy in the penumbra of the Bill of Rights. I agree with you, not that I think that there's any reason to feel that there is only one right answer. BTW, you do know that the indented portion of the earlier post was a direct quote of Roe v. Wade, and not my own words, right?
Unless I am a harm to someone or myself as defined by a law and the law is followed by due process, then privacy is implied. (YAIMNAL).
FYI, there are two kinds of due process, procedural (which is the kind you're likely thinking of there) and substantive. Procedural due process requires that if the government takes action that impairs your life, liberty, or property, they have to go about it the right way, e.g. by going to court. Substantive due process requires that the government cannot take such action unless it has a sufficiently strong reason for doing so, as compared to the strength of your right to life, liberty, or property. For example, they can't execute you for jaywalking, because the government doesn't have a sufficiently strong interest in deterring jaywalking to outweigh your right to live. OTOH, they could probably ticket you and prohibit jaywalking, because your interests then are considerably less.
Also, what is YAIMNAL?
Re:Nice, but what about obviousness? (Score:2, Informative)
Now, 103 rejections usually involve citing two or more prior art references (generally if you copuld show the claimed invention existing in one reference it would be a case of anticipation under 35 USC 102), and the crux of the issue is establishing why this would be obvious to one of ordinary skill in the art.
In the "good old days" examiners were give a great deal of respect in their opinions that two or more references could be "combined" to establish a determination of obviousness. However, the patent bar has pounded and pounded on this over the years, and, they finally got to the Court of Appeals for the Federal Circuit (CAFC) to establish that the cited prior art has to explicitly establish a "motivation" that would lead one to "combine the teachings of two (or more) references together"
What this has meant, in practice, is that many reference sets that could be combined in the past to make a 103 rejection that was likely to be upheld, are no longer valid. This has the general effect to require a) longer searches to find not only the right bare description of some feature, but also a "teaching" of the significance of the feature. The examiner's "handwaving" is no longer legally accepted to support an obviousness rejection.
Given that the time alloted per application has not changed in over 30 years, and that all the effectiveness of new search technology developed in this time period has been erroded by all kinds of additional, non-productive crap that takes a toll from searching and considering the application, it is little wonder that more crap gets issued; examiners that fail to keep up their production are shown the door (much more than almost any other federal job)