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Patents IT

A Simple Plan To Defeat Dumb Patents 234

Steve Jones writes "With the EU being rumored to look at software patents again I thought I'd have a look at the root of the problem — the US Patent Office — and work out if there is a simple way to defeat dumb patents. The big thing that defeats a patent is prior art. At the Patent Office they have the definition of Prior Art that includes the phrase: 'known or used by others in this country, or was patented or described in a printed publication in this or a foreign country.' Now suppose that every time we have an idea that we think is 'obvious' but that hasn't been done before, or something we think would be interesting but don't have the money to create — that we blogged about that idea, tagging it as 'prior art' via Technorati. This would give people an RSS feed of prior art." Read on for more details of Steve's proposal.

My argument is that by doing this we can, rightly, claim that the ideas have been described in the 21st-century version of a printed publication. Even if that is challenged, it is undeniable that by using the RSS feed it can be proven that people in a given country could have "known" about it.

I'm fed up thinking "Bloody hell I did that ten years ago," or "I thought about doing that, its a bit obvious" — when companies with as little intention as I had in developing the idea start putting the squeeze on businesses and developers. What I've always lacked is the visible proof to submit against a claim. This is a simple suggestion about using the power of the Web to create a massive prior art database. IANAL, but could it be this simple?
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A Simple Plan To Defeat Dumb Patents

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  • Would never work (Score:5, Insightful)

    by elrous0 ( 869638 ) * on Thursday July 05, 2007 @09:38AM (#19753323)
    The problem with this is that the vast majority of prior art is so obvious that no one would think of cataloging it beforehand. Take, for example, Amazon's infamous 1-click case [wikipedia.org]. Who would have thought it neccessary to catalog "a technique of allowing customers to make online purchases with a single click" as prior art? It wasn't until Amazon patented this that anyone even THOUGHT about this as something that needed to be defended as obvious.

    Sure, in RETROSPECT, many of these crazy patents are obvious. But how could you possibly begin to catalog every obvious idea, technique, innovation, or invention?

    This is not to mention the practical problems with this website. Who is going to pay for all the lawyers you need after the site becomes embroiled in about 1,000 lawsuits? Who is going to determine WHICH art is truly "prior" when users start fighting over who "did it first"? How are you going to deal with griefers and hucksters who spam the site with stuff like "A technique by which ink is applied to paper using an ink-filled tube" (or, God forbid, try to claim their own patent on obvious stuff by using the site as evidence).

    • by MontyApollo ( 849862 ) on Thursday July 05, 2007 @09:48AM (#19753413)
      It would take a lot of time, effort, and money to make the website something worthwhile. There would probably have to be some editorial control, but since you are trying to list everything obvious, it would become kind of overwhelming. In addition to some of the problems mentioned in the parent, there would be arguments about what is "appropriately" obvious and what is just stupid.
      • Re: (Score:2, Insightful)

        by somersault ( 912633 )
        I thought the whole point in this was to list the stupid ones, because people can patent stupid things. Like one click payment.. how can you patent the storing of information to use at a later date?
        • The question is does every idea get included, or is there editorial control. I think it's value would be in indexing and sorting and that kind of stuff.

          Do you spend the time and effort indexing things like:

          2031 Previously undiscovered variations on the cheeseburger
          My list of favorite beers
          My first novel (full text)
          The best algorithm for making my wife orgasm
          etc...

          • Including every idea would be a necessity, for as we have already seen, sometimes no idea is too silly or too obvious. I'm thinking there could be some interesting legal cases if people become able to register and contest patents on how to illicit orgasms, especially if it *ahem* comes down to married inviduals and prior art..!
            • Re: (Score:3, Interesting)

              by MontyApollo ( 849862 )
              >>Including every idea would be a necessity

              I think too much spam and trolls would preclude it from ever being considered as "published" or have much respectability by the patent office. It could become just a bunch of male enhancement ads. It could also just become a huge adwords-type project where every search term returned a bunch of focused advertising.

              I also used an example of a novel, which cannot be patented to begin with. Some people will confuse copyrights, patents, and trademarks. (I don't kn
          • by EatHam ( 597465 ) on Thursday July 05, 2007 @12:34PM (#19755459)

            The best algorithm for making my wife orgasm
            I already patented how to make your wife orgasm.
      • Re:Would never work (Score:5, Interesting)

        by smilindog2000 ( 907665 ) <bill@billrocks.org> on Thursday July 05, 2007 @11:34AM (#19754611) Homepage
        There are several web sites out there that do nothing but publish your ideas (like these guys [ip.com]) so that they can be recorded as prior art. The stupid part is that they charge a very high fee. There needs to be a free site that is add-sponsored and community supported. In fact, if no one else does it, I'll do one. I already have my own dumb idea blog [billrocks.org] for this purpose. If a few of you respond to this post, suggesting that I actually provide this free service (and maybe some nice ideas about what web host, what CRM software, what to do to get paid adds, etc), I'll go ahead and do it. If any of you would rather do this yourself, please say so. I'd like to be an early user.
        • P.S. If you'd rather just e-mail me instead of replying on /., I can be reached at bill@billrocks.org. Because I publish this e-mail address so widely, I have no choice but to use automated challenge/response on it. You'll be asked what color they sky is. Reply blue. Sorry about the hassle, but I get about 1,000 spams/day.
        • by Skapare ( 16644 )

          Just let the FSF do it. They might not even need to have ads. Of course someone will need to filter out all the spam.

        • Re: (Score:3, Insightful)

          by thc69 ( 98798 )

          add-sponsored

          what to do to get paid adds
          Well, you're more likely to be taken seriously if you ask for advertisements instead of additions.
      • Re:Would never work (Score:4, Interesting)

        by Vellmont ( 569020 ) on Thursday July 05, 2007 @11:49AM (#19754827) Homepage

        It would take a lot of time, effort, and money to make the website something worthwhile.

        Eh, A talented web developer could setup a useful site in a weekend or two. To make it good would take a few months longer. It's not like we're talking about something extraordinarily complex here, just a site to post ideas that has a few fields to enter keywords, categories, and free text. Then make it searchable.

        It wouldn't take any money to speak of, and it's even in the best interest of software developers, so there's motivation to do so. Hell, it's even in the best interests of large software companies as it takes some burden off them for obvious software patents. The only people it's NOT in the best interest of is scumbag IP companies who don't produce anything but lawyers who sue other companies who actually DO produce things.
        • Re: (Score:3, Interesting)

          by thc69 ( 98798 )
          Or, how about something completely free and hosted/backed up by big companies? Say, for example, usenet.

          alt.patent.reform.bork.bork.bork

          or, more seriously
          misc.int-property
          alt.inventors
    • by kebes ( 861706 ) on Thursday July 05, 2007 @10:10AM (#19753625) Journal
      I have to agree.

      The only way that the present proposal would offer any benefit beyond a random web search for prior art (which you can do nowadays if you really want to invalidate a patent) would be to have a system that was organized and exhaustive. It would have to be very well organized and categorized, and people would have to actively watch what companies are doing, and preemptively writing long discussions about "obvious solutions" to potential problems. These entries would have to be analyzed by others, and refined in some way. Spam and bogus entries would have to be trimmed.

      Ideally, a community of volunteers would watch patents as they are granted (or applied for) and would do their own research, amassing links to prior art that exists elsewhere. This data would then be easily available to anyone who wanted to challenge the patent. By lowering the barrier to challenging software patents, such a system could conceivably reduce the number of frivolous patents.

      However, ultimately to be useful it will require considerable work from alot of volunteers. Merely tagging random blog entries with "prior art" isn't useful--everything you do is prior art for a sufficiently stupid patent claim. So every single page on the internet is "prior art" for something... the tough part is organizing this all so that when you are challenging a particular claim, you can quickly find the prior art that is relevant (and so that you can, with some authority, prove that the prior art existed before a given date).

      A useful volunteer-based anti-patent website is not impossible. Wikipedia proves that you can organize volunteers to generate something useful. A wiki format, for instance, would also inherently maintain histories and dates, making prior-art claims more heavily documented. But such a community will require significant effort by many people. Unfortunately, it stops becoming "a simple plan."
      • Or the website could have a feed of all new patents being filed, presented randomly, or searchable. People could "challenge" these patents on grounds of prior art or obvious, and I am sure some law firm somewhere would take up the case for the patents that get a lot of votes for being ridiculous.
      • It would have to be very well organized and categorized, and people would have to actively watch what companies are doing, and preemptively writing long discussions about "obvious solutions" to potential problems.

        Which still might not work. If 'obvious solution x' is blogged on (say) July 5th, 2007, but the company applying for the patent can show they were working on the solutin on (say) July 4th, 2007 - it's not clearly prior art.
    • Re: (Score:2, Funny)

      by monk.e.boy ( 1077985 )

      So when we're all force to bend over and take it from Big Corp. Inc. at least we have an RSS feed to make us feel better?

      :-P

      monk.e.boy

    • by Richard Steiner ( 1585 ) <rsteiner@visi.com> on Thursday July 05, 2007 @11:18AM (#19754405) Homepage Journal
      Too much software development over the past 40+ years has occurred behind closed doors, either literally or figuratively behind an NDA or employment contract, and that removes a very large portion of existing software from public consideration (most employers/agencies would not allow their intellectual property to be exposed in any way on a public site).

      Because of this, I believe it is impossible for all prior art to be located or described in a publicly-accessible manner, and I suspect most prior art is actually hidden from public view in a large subset of software application areas.

    • The problem with this is that the vast majority of prior art is so obvious that no one would think of cataloging it beforehand.


      People blog about the most mundane things. They post pictures about their dog, and how cute he was when he snuggled up with the cat. Someone blogging about a boring, obvious idea is at least 10 times more interesting than that.

      You might not blog about something you considering boring or obvious, and I doubt I would either.. but then I also wouldn't blog about my dog and cat snugg
    • Even if there was prior art, we're dependent on the overworked Patent clerk investigating and uncovering that. Once the patent is put into effect, it's very difficult to get it undone.

      What I would suggest is that before a patent lawsuit can be initiated, the holder of the patent must pay for a more detailed patent review. At the initiation of that review process, they would be required to give notice to any organizations they felt might be infringing on their patent. Those potential infringers would be g
    • Re: (Score:3, Insightful)

      by westlake ( 615356 )
      Sure, in RETROSPECT, many of these crazy patents are obvious

      The view through the rear-view mirror is always twenty-twenty.

      If an invention becomes obvious only in retrospect then - just maybe - it wasn't so obvious at all. 1-click shopping is simply an idea. Amazon has a system that works.

  • Not quite enough (Score:5, Insightful)

    by ip_vjl ( 410654 ) on Thursday July 05, 2007 @09:42AM (#19753361) Homepage
    It's not about whether prior art exists, it's about whether prior art exists AND it is seen by the patent examiner during the process.

    Otherwise, you have prior art that could *potentially* be used to ust a patent, but that involves getting tied up in litigation which very few independent developers can afford.

    There are already avenues to have prior art published (called 'technical disclosures'), some have more chances than others of being seen by examiners.
    • Re: (Score:3, Informative)

      by N Monkey ( 313423 )

      It's not about whether prior art exists, it's about whether prior art exists AND it is seen by the patent examiner during the process.

      Indeed.

      I think it is also compounded by the fact that, in my limited experience of filing a few patents, the USPTO only appears to search existing US patents when looking for prior art. The European patent offices, OTOH, also include scientific journals, etc, so tend to be more thorough.
      • Re: (Score:3, Informative)

        the USPTO only appears to search existing US patents when looking for prior art

        I can tell you that it also searches foreign patents, from personal experience.

      • by pbhj ( 607776 ) on Thursday July 05, 2007 @06:36PM (#19760023) Homepage Journal
        I was a UK patent examiner from '98 to '04.

        We searched online databases of UK, EPO, WO, US, JP (Japanese, translated abstracts and later JPO provided [machine] translations), DE (German), FR (French) patents as a matter of course. It was down to the examiner to determine the scope of search to perform. We could also search hundreds of databases of technical disclosures (eg IBM's TDB - technical disclosure bulletins). All UK examiners had to be able to translate enough french and german language to be able to decide if a full translation was needed and we had other language translators to hand - JP docs were obviously important in computer fields.

        Other databases included Elsevier journal databases and also paper files (go back 100 years or so) of all UK patents (which were phased out during my time there). In some areas we had libraries of other books and journals. Also if you could put a case for getting a particular publication you could get it - New Scientist and Nature were particularly popular!

        One of the vital tools for prior art searches was the different "classification keys" - UKC, ECLA, USC ... etc.. Basically all patent docs are given a key which defines the field(s) that it falls in, eg G06F 11/00C2 (http://v3.espacenet.com/eclasrch?ECLA=/espacenet/ ecla/g06f/g06f11.htm?q=11-00c2) is fault tolerance by degradation of service within a computer system. There will be 10's of thousands of patent docs in this category and some non-patent disclosures like TDB's or magazine articles may be categorised (EPO used to do this but UK not really). By crossing categories and using abstract and full-text keyword searching one wittles down the docs to look at.

        I also did quite a bit of internet searching (too much) using several search engines as well as site searches and a few company databases that we had access too. The problem with internet citations was proving the publication date, vital to show something is prior art.

        In G06F (which is roughly G4A in the UKC, http://www.ipo.gov.uk/patent/p-decisionmaking/p-cl ass/p-class-ukc/p-class-ukc-g.htm [ipo.gov.uk]) one tended to have about 1.5 days to do a search (sometimes it would be half a day, sometimes 5). In other less strenuous fields a lot less. This means possible a few hundred abstracts to read and digest to whittle down to maybe a dozen docs to read in full and then perhaps cite 3 or 4, depending what you find. Sometimes with searches that don't fit keywords well you'd read more abstracts. Sometimes you can find an exact hit in a few minutes and spend the rest of the time finding docs to cite that will preempt what the patent attorney will try to amend the claims to.

        There's no lack of places to look for prior art.

        Oftentimes you'd search and search because something seemed so obvious but wouldn't find a strong citation. The problem with obviousness objections is always that the patent agent (aka attorney) can comeback and say if it was so obvious why was no one been doing it (or documented it), show me some evidence. This is especially strong in a well worked field - why did so many people overlook this obvious step. Combinations of docs suffer from ex-post facto analysis - one has to try and work from the prior position and see if the notional skilled man in the art would put those docs together?

        ---
        In response to the parent there's a requirement for US applicants to cite known US patents (and I think other prior art) that is particularly pertinent to their applications (I don't know the specific requirement). If they fail to cite something and it's proven they knew about it and it's relevant they can lose their patent (or at least be sued for big bucks). All major WO patent granting offices have to search at least a certain amount of literature - specific ranges of specific fields of patents; the US is such an office.

        As an examiner I found US searches to usua
    • Re: (Score:3, Interesting)

      by Ed Avis ( 5917 )
      As I understand it, what matters is *published* prior art. You can get a patent invalidated if there was prior art that the patent office missed - but not just because somebody was already using the same invention in secret.

      However, you may not want the examiner to be able to see all prior art. As Don Marti pointed out [linuxworld.com], that would just allow patent troll companies to design more cleverly worded patents that get around the prior art but are still able to cause damage - and indeed are more difficult to inva
    • The core problem is that the USPTO, and those in a position to fix current brokenness (ie the whole patent machine), have no incentive to fix the system. From their perspective it is perfectly fine as it is.

      USPTO has no accountability for the quality of its patents and is a nice little money-spinner for Uncle Sam. Making it semi-easy to get a patent makes more people apply wich generates more money. Make it harder and less people apply.

      The patent lawyers love the current system. Lots of people applying for

  • I don't think the issue can be resolved. Either you have patents or you don't. If you do then stupid patents will ALWAYS get through you can't stop it. Some articles say throw man power at it but considering places like the NIH are losing massive amounts of money (and heck they only look for cures to devastating diseases) because of the war, I hardly doubt the patent office will magically prove 100x more important and get all this extra cash.

    Also define good/bad/obvious/etc. They are all subjective
    • Much like the USPS, the patent office is a money-maker for the federal government. Their fees more than offset their expenses.

  • Patent fodder (Score:5, Insightful)

    by Dan East ( 318230 ) on Thursday July 05, 2007 @09:45AM (#19753379) Journal
    There's one thing you can be certain of. There will be people subscribing to these RSS feeds as a source for ideas to patent.

    Dan East
    • Re: (Score:3, Funny)

      by Anonymous Coward

      There's one thing you can be certain of. There will be people subscribing to these RSS feeds as a source for ideas to patent.
      Quick, patent that idea!

      United States Patent Application

      A Method For Using RSS Feeds as a Source for Obvious Ideas to Patent

      Inventors: Anonymous P. Coward (Internets, U.S.)
    • It's become very obvious to me that the patent office doesn't give a rat's ass about whether or not something has prior art or not. They don't care about what someone does with a patent or whether a patent is legitimate. If the RSS feed was used for fodder as patents, it would be very easy for someone to throw some money down and get it struck down in court and instigate some reform (assuming that the current court cases don't do the trick). Something needs to happen, especially since the patent system as i
  • Too late! (Score:5, Funny)

    by aerthling ( 796790 ) on Thursday July 05, 2007 @09:46AM (#19753389)
    Ah yes. This sounds a lot like my 'electronic patent-nulling system'. You can license it from me, if you like. Does AU$500/user/year sound reasonable? :)
  • by Dekortage ( 697532 ) on Thursday July 05, 2007 @09:50AM (#19753429) Homepage

    Personally, I don't think we can record all the blindingly obvious stuff we think of, mainly because it's blindingly obvious. Or very often, we can think of salient prior art that would probably invalidate any patent claims, so we assume it's not worth mentioning.

    I would rather see the patent process made a little more transparent: any patent application has to go through 90 days on a public wiki or discussion board, where we could view applications and immediately reference prior art. This might simplify the job of the patent reviewers, who cannot possibly know the history of entire industries. They could simply check out the claims of prior art (which themselves could be ranked by visitors for validity -- "oh ya, I remember THAT") and immediately see that, duh, one-click purchasing is a really dumb idea.

    Why would anyone participate? First, it's in our nature. You might have heard of Slashdot, where people with varying kinds of brain matter make varying kinds of comments about varying kinds of "news." But second and more importantly, it would be protection. If you work in a business that would be affected by a one-click patent, you have incentive to make sure nobody can charge you for it, or sue you for using it, if it isn't really an original idea.

    Today's patent process in the U.S. is slightly public, I know, but how about making it totally Web 2.0 and buzzword-compliant?

    • Re: (Score:3, Interesting)

      by MontyApollo ( 849862 )
      >>You might have heard of Slashdot, where people with varying kinds of brain matter make varying kinds of comments about varying kinds of "news."

      Where everybody thinks they are legal expert AND a quantum physicist, and where there is a lot of noise to filter out. And where many people think that a fair number of the moderations are wrong (or even absurd) and think the moderation system itself kinda sucks (how 'bout only giving one negative mod point, for example.)

      I think the idea does have merit, but
    • any patent application has to go through 90 days on a public wiki or discussion board

      This fails because it would be overwhelmed by trolls, shills, astroturfers and spammers.

      Large companies would camp on the site just to disrupt any patent which might affect their business.

      • Ok so I;m a large company and my competitor submits a patent for (the sake of example) a working fusion reactor.

        I clearly want to prove that this is an obvious idea so I try and submit prior art for any previous working fusion reactors. Failing to find any, I then try and invalidate the patent in terms of how it is not physically possible. Lets assume i also fail in that.

        No matter how much fuss I generate, if i can't find prior art, or demonstrate how it is obvious, or prove it is impossible, then they will
    • by kebes ( 861706 ) on Thursday July 05, 2007 @10:26AM (#19753813) Journal

      This might simplify the job of the patent reviewers, who cannot possibly know the history of entire industries. They could simply check out the claims of prior art...
      Why not make it mandatory for them to check it?

      Better yet, why not make it mandatory for the party applying for the patent to check it? Since a patent application is supposed to be some sort of legal document ("I certify that we originated this novel idea, and am not aware of prior art..."), then this could be a chance for the applying party to withdraw their patent (admit that there is prior art). If a party doesn't withdraw their patent, and the patent is thereafter rejected on the basis of the prior art evidence from the site, then the applying party must pay a fine (or forfeit a deposit they made, or whatever).

      Until we make it financially painful for companies to file bogus patents, they will continue to do so. The system you describe seems like the perfect way to warn a patent applicant that there is prior art. If they pursue their claim despite that knowledge, then they are breaking the law and should, at a minimum, be fined. (A harsher system would might also prevent them from applying for other patents for some time period, or perhaps even bring charges against the persons making the claims, or threaten disbarment for any lawyer who signs off on fraudulent claims.)
      • by guruevi ( 827432 )
        Well, that's already a requirement. As we hear frequently, corporate lawyers do advice on not checking/not checking thourougly so that they can just say they didn't know.
    • I would rather see the patent process made a little more transparent: any patent application has to go through 90 days on a public wiki or discussion board, where we could view applications and immediately reference prior art. This might simplify the job of the patent reviewers, who cannot possibly know the history of entire industries. They could simply check out the claims of prior art (which themselves could be ranked by visitors for validity -- "oh ya, I remember THAT") and immediately see that, duh, one-click purchasing is a really dumb idea.

      Why would anyone participate? First, it's in our nature. You might have heard of Slashdot, where people with varying kinds of brain matter make varying kinds of comments about varying kinds of "news."

      Prior Art: :) I posted on this idea back in Feb of 2006: PatentDot - [slashdot.org] http://yro.slashdot.org/comments.pl?sid=177904&cid =14756447 [slashdot.org]

      Also, the PTO (later) made a suggestion along these same lines: PTO Seeks Public Input on Patent Applications [slashdot.org]

      Also, ChrisGilliard (913445) [slashdot.org] Suggested using the new SlashDot tagging system [slashdot.org] which I think holds promise, too.

  • by Alizarin Erythrosin ( 457981 ) on Thursday July 05, 2007 @09:50AM (#19753431)

    My argument is that by doing this we can, rightly, claim that the ideas have been described in the 21st-century version of a printed publication.

    A pretty good idea, but will the patent office see it that way?
    • Re: (Score:2, Interesting)

      I've got schematics for a voxel display apparatus that I'm not sure if I'll patent or publish a description of. The summary points out the "printed publication" bit, which makes me realize that just publishing the specs online won't prevent someone else from taking my idea and patenting it.

      Which gives me another idea...What if a "printed publication" was devised with limited printed circulation and extensive online publication. The whole idea would be to make ideas unpatentable via publication. Folks cou
  • Ummm.... (Score:3, Informative)

    by Otter ( 3800 ) on Thursday July 05, 2007 @09:51AM (#19753439) Journal
    I'm fed up thinking "Bloody hell I did that ten years ago," or "I thought about doing that, its a bit obvious"...

    "I thought about doing that, its a bit obvious" isn't prior art, even if it were spelled correctly.

  • Prior Art Irony (Score:5, Informative)

    by Se7enLC ( 714730 ) on Thursday July 05, 2007 @09:51AM (#19753451) Homepage Journal
    Looks like somebody else [liddell.com] has prior art for the idea of using blogs as prior art.
  • by Chysn ( 898420 ) on Thursday July 05, 2007 @09:55AM (#19753477)
    From TFA:

    > Now to me it seems that a blog post can be classified in this day and age as the modern equivalent of a "printed publication"

    Ah, a J.D. in the old "It Seems To Me" School of Legal Theory. Let me know how that works out for you.
  • by BlueTrin ( 683373 ) on Thursday July 05, 2007 @09:55AM (#19753483) Homepage Journal
    Whenever a patent is classified as "dumb patent" and the jury has decided that you went to the court with a "dumb reason", you will be requested to pay X times the amount requested to the court and the person/company you sued for wasting everybody's time. You would be put also on a probation period during which suing for "dumb reasons" would increase the X for each time you bother the court with invalid/stupid reasons.

    Would work also for RIAA abuse.

    Now that would save alot of time and money ... Economics is based on incentive, people react to incentives and the courts are already enough busy to deal with these complaints.
    • I think this is the key to fixing the courts system, the patent system, and probably some other systems. If people have a patent that gets disqualified on prior art or simple and obvious, there should be a penalty. If someone takes a person to court with a specious case - whether they actually thought they could win, or just wanted to rack up legal expenses for someone they don't like - there should be significant penalties for both the plaintiff and the lawyer who took the case. I'm not saying every time s
  • Public Education (Score:3, Insightful)

    by Doc Ruby ( 173196 ) on Thursday July 05, 2007 @09:56AM (#19753489) Homepage Journal
    This system you propose could get a big boost if the people populating the documentation/DB were those working for public universities and libraries. These people read a lot, and have the training to describe in fairly uniform detail what they've read. In fact, even the science fiction fans of the world, working with their libraries organized in "classes" like grad schools and book discussion clubs, could document most of the real prior art for most of the inventions engineers have produced in the past century or more.

    Since these institutions are publicly funded, and that prior art puts the inventions in the public domain, the public's interest in running that process is obvious.

    Better do it before some quack patents it.
  • by GrayCalx ( 597428 ) on Thursday July 05, 2007 @09:57AM (#19753511)
    Anyone else read that title as "A Simple Plan To Defeat Dumb Parents?" All I could think was "Finally!"
  • by Roxton ( 73137 ) <roxton.gmail@com> on Thursday July 05, 2007 @09:58AM (#19753517) Homepage Journal
    The Peer to Patent [typepad.com] project has gone live, and while it has its own problems, it's a simple, elegant solution that doesn't require something ridiculous like a massive database of ideas. Anyone can sign up and suggest prior art on submitted patents before they're approved. It's a good example of community self-policing.
  • Already done (Score:4, Informative)

    by uarch ( 637449 ) on Thursday July 05, 2007 @10:00AM (#19753533)
    This is already done and has been going on for a while.

    The company where I work encourages everyone to submit patents whenever possible to the local patent layer. If it's deemed that the idea isn't really worth the effort to pursue a patent you're asked to write an article about it to be posted at a site that's specifically designed for some of the purposes mentioned in this story.
  • Darn it... I thought of this a while ago, I should have patented it. :-)

    Seriously, the patent system in the US is broken and I don't think this would help. It, as was previously mentioned, would end up being abused by the patent trolls.

  • by Richard_J_N ( 631241 ) on Thursday July 05, 2007 @10:01AM (#19753549)
    The problem isn't just the "dumb" patents, but it's the notion of a patent in the first place which is wrong. We should be working to eliminate all patents. No patent has ever spurred innovation; many have severely held it back. Some pharma patents are indirectly responsible for people dying.

    The problem with your idea is that it helps the patent examiner, thereby reducing the ratio of dumb:smart patents. This lowers the cost of obtaining a patent. What we need is some sort of hash: if you have an "obvious" idea, you publish in such a way that it cannot be searched for easily until the patent has been granted (i.e. publish, but don't index) - thus the patent can be overthrown easily, but the patent office remains overwhelmed, inefficient, and expensive.
    • by Aladrin ( 926209 )
      "No patent has ever spurred innovation;"

      You've got the cart before the horse, there. Of course no patent ever spurred innovation. It isn't the patent themselves that do that, it's the promise that you will be given ample opportunity to profit from the idea that spurs innovation.

      Look at it this way: If you make a new widget that quickly fruzzles gumplestongs, but the idea is easy to replicate, you can pretty much bet that you'll not get your R&D costs back and thus will never make money from having i
      • Your entire argument is an oft-repeated one, but still has very little bearing on reality. Studies show that entrepreneurs value factors like time-to-market, trademark recognition and actual innovation much higher than patent protection (Mazzoleni and Nelson, 1998; Cohen et al., 2000). Besides, the actual copycat threat comes from low-wage countries like China who basically doesn't give a rat's ass about US patent protection in the first place.

        There's an anecdote from a local (to me) innovation and manufact
      • Now say you are in the same situation, but don't have the capital to produce the first widget. With no patent, you can't even solicit investors because each and every one of them would simply make the widget themselves and leave you nothing.

        If you don't have that capital you probably don't have the money to defend the patent against large corporations who would do exactly the same. Good patent lawyers always advise that if you can't afford to defend the patent, don't patent it.

        • by moeinvt ( 851793 )
          "If you don't have [capital to produce the 1st widget] you probably don't have the money to defend the patent ."

          "Good patent lawyers always advise that if you can't afford to defend the patent, don't patent it."

          What kind of a standard is that? Wouldn't a good patent lawyer give you advice based on the merits and potential value of the idea itself? I would find a reality which conforms to your statement to be absolutely infuriating, as it would basically preclude all but corporations and wealthy individual
  • by H4x0r Jim Duggan ( 757476 ) on Thursday July 05, 2007 @10:02AM (#19753559) Homepage Journal
    • Currently we have many patents and 10% are solid and 90% are shakey.
    • Only one valid patent is needed to kill a project.
    • The worrisome patent holders all have hundreds or thousands of patents.

    Weeding out the shakey ones doesn't get us very far. It leaves us still restricted, and it leaves the patent holders in a less shakey position.

    Here's how patents work: MS thinks of an arbitrary way to do X, and then they patent 20 techniques related to this arbitrary technology. In this situation, there is rarely any prior art since the technique that MS is using isn't necessarily very smart - they could have chosen it simply because no one else does anything similar/compatible.

  • Peer Review (Score:3, Interesting)

    by Ajehals ( 947354 ) on Thursday July 05, 2007 @10:04AM (#19753567) Journal
    A simple solution would be to require all patents to be made public in full for a period (say 6 months) prior to acceptance, this would allow any interested parties to object to them *before* they are enforceable. Obviously there are a lot of patents applied for on an annual basis, - so to simplify this it may be possible to have patents categorised into areas in which they apply, with penalties for having a patent that does not in fact cover all the areas claimed, but also making clear that if an area is not included in the patent it is not applicable in that area. I cant see anyone who actually innovates and patents new ideas to have a problem with this as it should work quite well, moreover it would be in large companies interests to challenge patents that affect them, thereby helping everyone.

    (IANAL so I have no idea if all or any of this is already the case)
    • A simple solution would be to require all patents to be made public in full for a period (say 6 months) prior to acceptance.....

      Unfortunately for us, the government's definition of "public" is "prominently displayed in a locked file cabinet in an unlit basement in a disused lavatory labeled 'Beware of the Tiger'"...
    • by metlin ( 258108 )

      A simple solution would be to require all patents to be made public in full for a period (say 6 months) prior to acceptance, this would allow any interested parties to object to them *before* they are enforceable.

      What the hell are you talking about? The very idea behind a patent is that a party can have an idea and has time to develop it and take it to market before everyone gets wind of it. In the mean time, the patent filing process happens in parallel so that others cannot use the idea for a period afte

    • A simple solution would be to require all patents to be made public in full for a period (say 6 months) prior to acceptance, this would allow any interested parties to object to them *before* they are enforceable.

      That's an insane solution - granting patents would then become like trying to get permits and plans approved for a major development or construction project, you'd have to answer every nutjob (and potential competitor trying to shoot you down) with time on their hands or an axe to grind. Progress

  • Lots of people have pointed out why this "solution" won't work, so I'll point out what the actual problem is.

    Like spam, it's a problem of economics. Technical fixes will not work.

    The core problem is that patent offices are paid when they issue patents. They are not paid when they deny patents. Therefore, it is in their interest to issue as many stupid patents as they can get away with.

    In addition, even if the patent isn't totally stupid, looking for prior art is a cost center. The more time they spend looki
  • You forgot the rest of 102(a) [cornell.edu]:

    A person shall be entitled to a patent unless -- the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent

    If someone else thought of the dumb idea before you, even if you didn't know about it, you publishing it won't prevent them from patenting it. Obviously -- one purpose of patent laws is to get inventors to disclose their inventions to

  • by Christianson ( 1036710 ) on Thursday July 05, 2007 @10:10AM (#19753631)
    I've got an idea: imagine travelling faster than light by using black holes to deform space-time beyond relativistic constraints. The idea is that you take an array of black holes and position them around the object; not only do you get a singularity, but the tidal forces can be arranged to cancel each other out, letting you move within the singularity without being destroyed.

    I had an idea. I (effectively) blogged it. And if someone else comes up with it, and makes a working prototype, no sane person should argue that my blog should keep them from earning a patent.

    Every patent is an obvious idea in retrospect. In reverse, it's also true that the idea of most patents was obvious beforehand: there were undoubtedly many people who thought that making an electrical device which produces light would be a great idea before Edison came along. The devil is in the details, and what matters is implementation. The standard of patents is that the process they describe should be sufficiently unique and innovative that an expert of the field would not conceive doing it that way prior to being introduced to the patented process; that's the logic that underlies the decision behind the Seldon patent decision [wikipedia.org].

    Simply jotting down ideas doesn't address this issue at all. Even outlining the method doesn't really help, since the patent applicant could easily argue that while it might have seemed like an obvious approach, there were non-trivial technical issues that would arise in trying to implement that approach that their process addresses; the fact that the blogger would neither have mentioned those issues, nor built a working prototype, could reasonably be seen to support the applicant. The amount of effort that would need to go into each blog to actually make it worthwhile would basically boil down to implenting the idea, and that's far beyond what I suspect either the author wishes to suggest, or what any blogger would be willing to invest.

    The problems with the patent process are well-established: an overburdened reviewing agency, combined with a fundamental issue regarding the appropriateness of patents on concepts rather than physical entities. I don't see how creating an unmoderated repository of random ideas solves either problem.

    • by LihTox ( 754597 )
      Patents on implementations are good patents, no problem; but the dumb patents ARE just patents on basic ideas, with no more meat to them. If Amazon wants to protect their implementation of 1-click shopping, fine, but how complicated is the idea itself, that it deserves protection?

      Reminds me of an episode from "Surely You're Joking, Mr. Feynman!" where somebody comes around in the Manhattan Project looking for patentable ideas involving nuclear energy. Feynman says "what a ridiculous idea" and rattles off
  • most blogs allow you to back-date things. I could write a LJ post today and have it show as posted for Sept 11, 2001, for instance.
  • by cmattdetzel ( 1067146 ) on Thursday July 05, 2007 @10:14AM (#19753673)
    While this is an interesting idea in theory, it would unfortunately have little impact within the current system because patent examiners at the PTO do not have unrestricted internet access. In fact, what they have is extremely limited--they can't, for example, "google" for prior art. I believe the databases they rely most heavily upon are unique to the PTO. So in a system such as you propose, this prior art RSS feed would prove most useful as evidence in patent litigation for a party challenging the patent (I'm assuming, arguendo, that the quality and logistical problems with the concept could be solved). However, it would have little or no impact for examiners at the PTO, meaning no reduction in patents being granted. And once a patent is granted, it carries a presumption of validity...

    Thankfully, the USPTO has begun a trial run of a new PEER-TO-PATENT system, as proposed by New York Law School Professor Beth Simone Noveck http://www.nyls.edu/pages/591.asp [nyls.edu] in Peer to Patent: Collective Intelligence and Intellectual Property Reform, which can be found at 20 Harvard Journal of Law Technology 123 (2006) for those of you who want some interesting reading--especially about how ridiculous each PTO examiner's workload is. The PEER-TO-PATENT Project http://dotank.nyls.edu/communitypatent/ [nyls.edu] between the PTO and NYLS will solve some of the issues with prior art (and obviousness, hopefully), but it'll likely be years before we start seeing any real progress on this front.

    For the most egregious software patents, we will still *sigh* have to rely on private litigation for invalidation, but recent Supreme Court decisions (Ebay, MedImmune, Teleflex) may have made that process a little easier as well.
  • half baked (Score:5, Informative)

    by radarsat1 ( 786772 ) on Thursday July 05, 2007 @10:15AM (#19753687) Homepage
    The story is basically describing http://www.halfbakery.com [halfbakery.com]
    Warning: One can waste whole hours of one's life at a time on that site.
  • I'm in the minority thinking something like this might work. More like a search engine who's job it is to find prior art would be better.

    But that's not addressing a couple of core issues:

    1. The obvious can be patented. This must be abolished for a much narrower definition.
    2. Patent Office as a revenue generator. One of the problems with treating government institutions like businesses is that the whatever good service intentions an institution starts out with diminish over time to arrive at a point where
  • We need to encourage the search for prior art, and discourage bogus patent applications. How about a "reward and penalty" system? The first person to discover some prior art that would invalidate a patent gets half the applicant's deposit by way of a bounty. The disgraced patentor must then wait a reasonable period of time (6 weeks?) before submitting any further patent applications.

    Also, patent examiners need to be paid at least as much for the applications they reject as for the ones they approve.
  • Submit it here: halfbakery.com [halfbakery.com]
  • The major bottleneck that exists in the process of examining patents is the search. There are thousands of potential databases with billions of potential references. The typical examiner only has time to search a fraction of these before they need to move on to the next case. Additionally, Lawyers make the battle to search much harder by using obscure terms which turn into a double edged sword for the patent world because initially it makes it harder to obtain the true meaning of the invention under review.
  • Carmacks Reverse (Score:4, Informative)

    by jeti ( 105266 ) on Thursday July 05, 2007 @10:39AM (#19753967)
    Even with prior art, having a patent invalidated doesn't
    make economic sense in most situations. For even if
    you win, you have to pay your attorneys fees yourself
    (often several $100,000). Also, the process can take
    several years.

    Therefore even patents with solid prior art don't get
    invalidated most of the time. If you don't believe me,
    look up "Carmacks Reverse". The algorithm was patented
    by Creative _after_ John Carmack presented it on a
    conferece. Creative even threatened John's company
    because they are using the algorithm he had invented.
    • I think you're sensationalizing the situation. Wikipedia's take on the this [wikipedia.org] is that it was first created in or before 1999 by developers at Creative. They filed for a patent in 1999 [google.com] which was granted in 2002. John Carmack independently came up with this idea in early 2000 and presented this at various conferences and such later, thereby not constituting prior art.
    • http://en.wikipedia.org/wiki/Carmack's_Reverse#De p th_fail/ [wikipedia.org]

      Hmm... your history doesn't match up with Wikipedia's, read the last paragraph or two of the section of Depth fail. If you can cite sources for the version you present, that might be of interest in updating. I don't have an interest either way, but I dislike patents as currently implemented. Thus any abuses of them are of interest to me.

      The Wikipedia article leads me to believe that Creative didn't do anything wrong in terms of current legal

  • This is already done quite a bit, both on sites like halfbakery and on individual blogs. The reason is more to get the ideas out there than to have a dated record for prior art purposes, but it also serves that purpose well (although the timestamp is somewhat unreliable unless the post date is updated on edits).
  • the definition of a patent requires that it is something original and unobvious. Unfortunately, the US PTO has a very ignorant view into what is obvious and what isn't. While any industry insider could tell them that the 1-click was obvious, to them it wasn't and so patent granted. The obviousness and originality need to be enforced more strictly, and then prior art won't be an issue.
  • The problem with obvious is that it based on a context.
    If something is obvious then many people, when given the same problem, will come up with the obvious solution.
    But if nobody is given the problem, then there is no reason for them to come up with the solution.

    So, the patent system is a race to find problems to solve. Not a race to find a solution to a known problem.

     
  • This looks like a nice idea, but my feeling is that it would really mean not much more than wasted resources. This is a fight against several powerful lobbies, and most people in these lobbies are lawyers.

    I would think that it would be more effective to fight dumb patent legislation where it comes from: legislation. Invest the time and effort to organize yourselves, to put pressure on your MPs, to form groups withing universities and even better, companies that make their official statement heard.

    The sad si
  • by hardburn ( 141468 ) <hardburn.wumpus-cave@net> on Thursday July 05, 2007 @11:08AM (#19754295)

    In many cases, there is never a problem finding prior art. Most software patents would never survive in court. The problem is that no company, working in their rational self-interest, would take the time, expense, and risk of a court case. It's cheaper to either take a settlement or fire back with their own patent warchest (resulting in stalemate).

  • Disclaimer: IANAL

    But I have spent years keeping lab notebooks in academia and industry. And the lawyers everywhere I've worked have always walked me through the process of documenting that notebook, dating each page, never deleting anything, only crossing it out, making copies (lab notebooks used to come with a sheet of carbon and every other page was for duplicates), and having pages you were particularly interested in witnessed and notarized. Otherwise you could spend years in court trying to prove tha
  • At first I thought it said "A Simple Plan to Defeat Dumb Parents"
  • We already have something like this; it just needs to be better utilized. It's called a defensive publication, and the authors are usually anonymous. The whole point is to document something as prior art.
  • Now suppose that every time we have an idea that we think is 'obvious' but that hasn't been done before, or something we think would be interesting but don't have the money to create -- that we blogged about that idea, tagging it as 'prior art'

    Then all those great ideas, or at least many of them, would never get done at all because nobody could make money out of it? How many of your great thoughts that you can't pursue yourself do you want to see spiked for everyone?

  • How is making sure that every idea you have, but never intend to build, winds up in the public domain any better than patenting something and lying in wait for the poor sap who actually spends time and treasure building it? In both cases you are denying someone who did the hard work: building it and bringing it to market, the fruits of their labor. Just because your motivation is socialist (give things to me that other people worked for) doesn't make it any better than greed. In its effect on the guy who bu
  • Searching problems (Score:3, Interesting)

    by rumblin'rabbit ( 711865 ) on Thursday July 05, 2007 @11:40AM (#19754709) Journal
    Searching such a database must be an interesting excercise. Consider, for example, the singular-value decomposition, a common tool in mathematical computation. This can go by such names as...
    • Singular-value decomposition
    • SVD
    • Spectral decomposition
    • Principal component analysis
    • PCA
    • Eigen analysis
    • eigenimage analysis
    • Karhunen-Loeve transform
    • KL transform
    This is further complicated by the fact that inventors are not always up on the literature and may not know the proper names for things.
    This isn't an insurmountable problem, but it's a big one even when searching among existing U.S. patents.
  • by Lord Ender ( 156273 ) on Thursday July 05, 2007 @11:46AM (#19754779) Homepage
    The patent system is just some arbitrary way of encouraging innovation. The US system is obviously failing, as the costs of maintaining the system outweigh the benefits it imparts on our society.

    Other countries have different ways of encouraging innovation, and in the long term, their economies may dwarf ours due to our failing system.

    All property rights, be they Intellectual or Physical property, exist to encourage investment. No one "naturally" owns anything, though many people have been brainwashed into thinking that is the case.

    I don't know which way is best. It seems the Stalinist system doesn't work well, and the US system has some SERIOUS problems which require periodic correction (trust-busting and such).

    My advice: Watch the world economies, and don't be afraid to immigrate if you see one system collapsing and another rising. Of course, you should avoid contributing to economies in countries which deny fundamental human rights (China, Iran, etc.) but don't let nationalism blind you to economic realities.
  • This seems to be a re-hash of the WhyNot.net concept of sharing ideas.

    *shrugs*

    - Saj
  • I already patented this idea.
  • My first idea post (Score:3, Interesting)

    by Skapare ( 16644 ) on Thursday July 05, 2007 @01:29PM (#19756215) Homepage

    I won't disclose how long ago I thought of this, but in the many years since I have not ever seen it done anywhere. So either it's a new idea, or it really doesn't work, or I just haven't looked around enough.

    My idea is a simple syncronous motor without a controller that will run at double speed (6000 RPM at 50 Hz, 7200 RPM at 60 Hz). The idea is to construct the stator with 3-phase windings just like a normal syncronous motor. However, for the rotor, replace the permanent magnets with 3-phase windings powered by AC current coupled to the rotor through 4 slip rings. Wire the rotor windings so the rotating magnetic field turns in the opposite direction of the intended rotation and the stator field rotation. For proper startup, use 12 distinct windings organized as 6 pairs at opposite sides. Half of the windings will be wired to line-to-neutral power connections and the other half will be wired for 1.732 times the voltage and wired to line-to-line power connections. This should give a reasonably uniform magnetic field.

    Now, how do I get this tagged?

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