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Open-source Overhauls Patent System 186

Posted by Zonk from the now-we're-getting-somewhere dept.
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."
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Open-source Overhauls Patent System More

Open-source Overhauls Patent System

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  • Surface changes only (Score:5, Informative)

    by lastchance_000 ( 847415 ) * on Tuesday January 10, 2006 @01:18PM (#14437809)
    From a quick scan of the article, it appears the changes will affect searches for prior art only (which is a good improvement), but will not address the deeper problem of patents being issued for things like business processes. (One-click, anyone?)

    • Re: Surface changes only (Score:4, Insightful)

      by stinerman ( 812158 ) on Tuesday January 10, 2006 @01:22PM (#14437849)
      A federal law (or possibly an overreaching executive order) will be needed to eliminate business method patents. IIRC, some court decision made it so that business method patents are just as valid as mechanical ones.

      • Your Sig: The 9th Amendment (Score:4, Insightful)

        by hackwrench ( 573697 ) <hackwrench@hotmail.com> on Tuesday January 10, 2006 @01:45PM (#14438039) Homepage Journal
        Yeah, the Courts pretend that the 9th amendment doesn't exist, or the debate over the "right to privacy" in the Roe vs. Wade case in the Supreme Court would not have happened. I wonder what would have happened if somebody sat them down and said, "Of course the right to privacy exists, read the 9th Amendment!" Yeah, I thought as much.

        • Re:Your Sig: The 9th Amendment (Score:4, Interesting)

          by cpt kangarooski ( 3773 ) on Tuesday January 10, 2006 @02:16PM (#14438463) Homepage
          Have you read Roe v. Wade?

          The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484-485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454; id., at 460, 463-465 (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.

          This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.


          Generally though, no matter what source you're using for the right to privacy, the question becomes one of due process -- whether an imposition on someone's rights is allowable given some competing state interest.

          • Re:Your Sig: The 9th Amendment (Score:4, Insightful)

            by hackstraw ( 262471 ) * on Tuesday January 10, 2006 @04:06PM (#14439796)
            Have you read Roe v. Wade?

            The Constitution does not explicitly mention any right of privacy.

            Keep in mind that the US Constitution is the longest standing constitution in the world, and US is not a very old country. "Good" laws are more on the non-specific side, and bad ones add too specific information that will only be trumped when something similar comes up but not specific enough (most any new law regarding computers is basically redundant. fraud is a very inclusive law that is not used enough, etc).

            The Constitution mentions "Certain Inaliable Rights", which is fairly and intentionally vague. Its in the Bill of Rights somewhere. I'm a little (lot) on the liberal side of people's rights, and I believe that privacy is one of them. I believe that the privacy is implied by the forgotten warrant and illegal search and seizure, not forcing US citizens to house troops, etc.

            If I don't have the right to privacy, ... this does not make sense.

            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).

            To test the opposite, where is it explained that the government allowed to invade privacy? Baring due process and reasonable limits to protect others.

            • "Good" laws are more on the non-specific side, and bad ones add too specific information that will only be trumped when something similar comes up but not specific enough

              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 9
              • 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 did a cursory search of the Constitution and could not find the "inaliable rights" thing, but I hear about it all the time. Is that an urban legend or misquoted or misattributed to the Bill of Rights?

                you do know that the indented portion of the earlier post was a direct quote of Roe v. Wade, and not
                • I did a cursory search of the Constitution and could not find the "inaliable rights" thing, but I hear about it all the time. Is that an urban legend or misquoted or misattributed to the Bill of Rights?

                  You're probably thinking of the Declaration of Independence, which has a passage that reads: We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.
      • Correct, the State Street decision confirmed that "everything under the sun" (with the exception of natural phenomenom and mere forumulas) can be patented, including methods of doing business. Of course lower courts for years had been saying that business methods couldn't be patents and arguably so did the Federal Circuit. However, the State Street opinion simply said "we've never said such a thing" and stated they were patentable.

        Prior to the case the U.S. Patent Office (USPTO) had rejected such paten

    • Worse than surface changes (Score:2, Insightful)

      by Anonymous Coward
      I fear this seems pro-corporate and anti-F/OSS. What it really seems to do is impose a new bureaucratic process on F/OSS projects by making them responsible for finding the bogus patents they may infringe on (and by finding them, making them responsible for willful infringement). It does nothing to reduce the stupidly bogus patents (XOR for a cursor) from happening in the first place -- on the contrary it makes it more difficult to avoid them.

      What would be pro-F/OSS would be if the patent office provide

    • Hmmm, all tech companies? So I guess this isn't going to help prevent the medical companies from making patents on isomers of drugs they've already patented before.

      Oh well.
    • What they should do is allow any patents or patent law changes that big business pushes for. However what they should also do is allow for an opt-out clause for anybody who wants it.

      Any individual or company could renounce the protection of patents completely and in return be free from interference by patent holding entities.

      Those who want to play the game can play it. Those who don't can "choose freedom", so to speak.

  • In other news... (Score:2, Redundant)

    by heatdeath ( 217147 )
    Patent portfolio "licensing" (i.e. suing) companies' stock prices just fell through the floor. =P

  • i.b.m.? (Score:5, Funny)

    by Anonymous Coward on Tuesday January 10, 2006 @01:20PM (#14437822)
    awww IBM's finaly growing up, it got its first three periods.

  • Doesn't solve major problems (Score:5, Interesting)

    by nattt ( 568106 ) on Tuesday January 10, 2006 @01:20PM (#14437831)
    Major issue with software patents cannot be solved by better searches for prior art - the only way to fix software patents is to do away with them in their entirety.
    • Remember!

      If it's not a step backward, it's a step forward!

      Later we can worry about elliminating software patents entirely.

      Besides, take a look at this:

      Another part will allow anyone who visits the USPTO website to search for patent information and receive emails regarding newly published patent applications. The program will also encourage the public to review patent applications and offer feedback to the USPTO regarding prior art.

      The final leg of the program is a patent quality index. The index will assign a number to patent applications and patents indicating the quality of the patent. Members of the public can use the indexing system to evaluate the quality of proposed patents, patent holders can use it to identify weaknesses in their own patents, and companies can use the index to evaluate competitive patents relevant to a field they may be working in.


      Not only can prior art be searched more effectively, the PEOPLE (this is, us!) can submit their comments about the patents in question. In other words, if an obvious software patent goes to slashdot, we, the slashdotters, can complain about it DIRECTLY!

      And that's a good thing :)
      • Not only can prior art be searched more effectively, the PEOPLE (this is, us!) can submit their comments about the patents in question. In other words, if an obvious software patent goes to slashdot, we, the slashdotters, can complain about it DIRECTLY!

        I sense a disturbance in the Force. Can anyone say patents.slashdot.org?

      • Peer to patent (Score:3, Informative)

        by andyo ( 109338 )
        A more extensive proposal for opening the approval system is Peer to Patent [typepad.com].

        It may work best for prior art, resembling one of the systems discussed in the article.

      • Later we can worry about elliminating software patents entirely.

        This I don't get. Why should we limit the ability for an ingenius inventor to gain a government funded temporary monopoly for software, but not for a physical thing? If you're against intellectual property completely, you're against patents completely. Without patents there is little incentive (ie money) for new products to be made.

        I see this as (if implemented correctly) the only necessary step. The biggest problem with software patents f

        • Re:But it's an advance. (Score:4, Interesting)

          by Anonymous Coward on Tuesday January 10, 2006 @02:38PM (#14438750)
          The argument against the validity of software patents lies in the fact that they are really mathematics patents. Except for the past 2 decades, math had always been placed deliberately out of bounds for the purpose of granting patents. My understanding on why is that math is simply too foundational for all other inventions across all science and engineering disciplines. For an extreme (okay, silly (I hope) :-) example, imagine the chilling effect patents would have on, say, algebraic identities.

          Of course, with the invention and refinement of mechanical computers in last 50 years, the number, size, and specifity of mathematic expressions (i.e., programs) has grown at a even faster rate than, say, Moore's Law (IMO). Given the new world of software, it is possible that the historic reasons against patenting math have become obsolete. I don't think so but that's just me and, apparently, the patent office disagrees with me.
          • However, computer programs are only theoretically mathematical expressions. Slashdot, or pretty much the rest of the web, is intended for expressing human-meaningful data such as text and pictures. In the human mind Amazon's One-Click button is a "thing" "on" the screen rather than a set of numbers.
          • Actually, this has been expressly held by the SCOTUS, in Gottschalk v. Benson, which reversed the Court of Customs and Patent Appeals (CCPA), the court that then took appeals from the Patent Office's Board of Appeals. The CCPA, and its current successor, the Court of Appeals for the Federal Circuit (CAFC) has been the driving force to extend the definition of patentable subject matter as far and wide as possible, so this reversal was like a "slap in the face" to them.

            After a stumble or two they then reac
        • The problem is that software in the end comes down to mathematical formulas. Which are not patentable. Software is just the solution to a problem. I guess in the case of truly revolutionary software, one could be granted a patent. I don't think I've seen that piece of software yet. Software is so much built upon older software, that I don't think that anybody really makes steps in software that I would really call patentable. When you look at software patents, most people presented with the same probl

        • This I don't get. Why should we limit the ability for an ingenius inventor to gain a government funded temporary monopoly for software, but not for a physical thing?

          I can think of a few reasons. First, the three problems you note dominate all of the software patents that are issued, so eliminating software patents altogether would accomplish much more good than harm (and would be far easier to do too.) Second, software is essentially a number, and while we like to think that we have invented or created a

          • Nonsense. I can think of plenty of reasons to innovate and to create new products other than their potential patentability.

            I agree. There are many reasons (hobby, fun, etc), but the biggest reason products are created is for profit. Usually if a product is anything but the most complex, it is readily copied by competitors. This results in little profit for the original inventor. Sure, you get the ego trip of saying you were the first, but in the corporate world, that's not much.

            If certain types patents

            • "If you want to compete now you'll have to solve the problem a different way."

              The problem is that most software patents try to claim solving the problem as under their purview. If all they were protecting was a particular solution, they'd get much more protection from copyright, which has a longer term. Instead, they claim all solutions.

              One of the primary confusions about patents is that they are designed to protect innovative *ideas*. They are not. Patents are designed to protect the *process* of innov

            • Nonsense. I can think of plenty of reasons to innovate and to create new products other than their potential patentability.

              I agree. There are many reasons (hobby, fun, etc), but the biggest reason products are created is for profit. Usually if a product is anything but the most complex, it is readily copied by competitors. This results in little profit for the original inventor.

              Most created products are not inventions. Usually, developer profit is generated via contract: an entity has a need for someth

              • I don't understand the analogy. Could you elaborate?

                I'm not talking about the paint making process, but the actual paint compound. My point is that software is more than just a sequence of instructions, just as paint is more than just a color. Software is (or at least most commercial software is) essentially a black box that does something. For example, if you create a purely physical machine to detect counterfiet money, would that not be patentable? Why then wouldn't a piece of software that just reads

        • Because software is NOT a tangible thing, period. Mathematical formulas are one thing which are NOT supposed to be patentable, and software is, though a complex one, nothing more than a mathematical formula.

          Now, I do agree with software being subject to copyright protection (provided that similar reforms are made to copyright, our current system has it all wrong.) That leaves the author free to sell his/her program, if that's what they should wish, it just doesn't allow them to prohibit someone else from

      • "Members of the public can use the indexing system to evaluate the quality of proposed patents, patent holders can use it to identify weaknesses in their own patents, and companies can use the index to evaluate competitive patents relevant to a field they may be working in."

        Who gave the slashcode to the patent office?

  • Fear this is anti-open-source (defense agains OS) (Score:3, Interesting)

    by Anonymous Coward on Tuesday January 10, 2006 @01:21PM (#14437833)
    From TFA: 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.

    So basically this means open source projects are now liable for making sure they don't infringe on corporate patents.

    I fear this seems like either lawyers creating a whole new industry that'll inflict expensive patent-searches and licensing deals on more projects; or SQ industry lobyiests trying to put more burdens on open source projects.

    By making a whole bunch of legal game playing a required part of an open source project, MSFT will finally make Open Source development as bureaucratic as themselves.

    • "So basically this means open source projects are now liable for making sure they don't infringe on corporate patents."

      You mean, just like they always have been? If you infringe on someones patent and they send you a cease-and-desist, you've got some level of problem, and this has no impact on what that level is.
      This is trying to let you hear about patent applications in particular areas before the patent is granted; presumably so you can tell the patent office, "Hey, wait! I'
    • No. Existing patent law does not require inventors to conduct a patent search before developing a product. It does require them to do so before releasing it. It has been defined this way because noone can conduct a complete patent search without the final product in place. By the time one had reviewed all of the preexisting patents one would have to review the patents that were issued while one was conducting the initial search and so on.

      Uner the present system the fact that you developed something with

  • A Troll in TFA (Score:5, Interesting)

    by Red Flayer ( 890720 ) on Tuesday January 10, 2006 @01:21PM (#14437837) Journal
    "One frequent critic of the patent system, Gregory Aharonian, publisher of The Internet Patent News Service, said it was unlikely that the new initiatives would have a significant impact, because the patent office was not able to deal efficiently with the information it already had."

    Let's see, give someone organized data and better search tools, and it won't help them search faster and more accurately?

    Hey! My bike chain broke because my gears are not set properly. Let's not fix the gears, it's the chain that broke!

    I'm not saying that information access is the only problem the patent system has. And I also understand that the three steps proposed are not a panacaea. But not taking steps to fix part of the problem. just because the problem exists? Ridiculous.
    • The complaint is that they are approving too many frivolous patents not that they can't approve good patents fast enough. Giving someone better equipment means they can approve patents faster. The problem is not the equipment, it's the process.

      How many times have we seen a frivolous lawsuit post on slashdot, and how many people within 15 minutes of it's posting came up with links to prior art? Give a person a faster computer can help if they are experiencing slowed down processes. If I can find prior ar
      • "and faster equipment will help speed the process once the right process is in place."

        The process is partly addressed in the the overhaul -- better review for prior art, which is the point of the upgrade to their search methods. Community input, etc.

        This will reduce the number of frivolous patents, since it will be more easily demonstrable that prior art exists.

        The article isn't really about faster equipment. It's about more efficient and exhaustive methods.

        Of course, though, you're right -- a lo

    • Re:A Troll in TFA (Score:3, Interesting)

      by aztracker1 ( 702135 )
      I think they should pump up the filing fee to enough for the PTO to hire skilled people to do due research on patents. make the filing fee like $10k by itself with no guarantee, then another $1k if approved... isn't it like reverse that now? if there was more to "lose" and a greater chance of not being approved, I think that would help.

      Hell, google needs some business ideas, become a gov't consulting co to implement better search systems... that's what they're good at, let them spread their wings a bit
      • If you pump up the filing fee, the small guy loses protection, which is a primary purpose of the patent system (or used to be, anyway).
        • Yeah, but if the "small guy" gets his patent, he still has to come up with the $10k for the patent... I'm saying get the 10k up front... if it's a legitimate idea, he'll still get it, and pay the same amount in the end.
          • You're kidding me, right? Part of the reason that the filing fee is relatively low (in contrast to the maintenance fees) is that the USPTO acknowledges the incredible amount of work that goes into applying for a patent. What you and I might consider prior art, they may not, and vice versa. Even on a good day, when an intensive prior art search has been performed, twelve different lawyers have reviewed the application, and the stars are in the right alignment, your chances of coming out on top are less than

  • Quick, patent these while you can! (Score:5, Funny)

    by kimvette ( 919543 ) on Tuesday January 10, 2006 @01:22PM (#14437843) Homepage Journal
    Please!

    before the overhaul takes place will some do-no-evil company please patent the following:

      - flash advertisements which use sound

      - flash advertisements which take over your browser and shove themselves over the content you're trying to read

      - annoying flashing siezure-inducing animated GIF advertisements

    and then sue every advertiser which uses that style ad for patent licensing fees, and commit to not use those style ads on any web site, EVER?

    Thanks. This would be an appropriate use for patenting prior art. If you do this you will have my eternal appreciation.

  • Wow! Temporarily, a victory for OSS? (Score:5, Insightful)

    by CodeShark ( 17400 ) <ellsworthpc AT yahoo DOT com> on Tuesday January 10, 2006 @01:24PM (#14437868) Homepage
    If this survives what I would predict to be a hugelobbying effort on the part of the massive corporate software interests, this could be the most significant reform of the Patent Office in my lifetime. [which is longer than I'd like to admit but shorter than the creation of digital computers].

    I mean, since when has there been an "Open submission" for prior art in any of the USPTOs area of authority, or to have a searchable database for newly published applications that allows you, me, and everybody else to offer feedback directly to the examiners who need the information most [Note: I am including the patent quality index" under the heading of feedback by the way.]

    From the Techworld article:The USPTO will host a public meeting to discuss the projects at its offices on 16 February.

    I hope that RSM, ESR, etc. Lawrense Lessig et. all are there to defend this proposed change.

    • No, it isn't.

      What this is, in my opinion, is a grab by the content cartel to entice OSS to change their ways. They'll offer to make some patent-law changes, but not enough to make the OSS crowd happy. They'll ask the OSS crowd to take steps closer to the cartels' desires. Sort of a "meet halfway" deal.

      The likelihood of real change is slim. The OSS crowd will generally not give in to the cartel crowd. Those who do will find themselves hurt by stomping on their customers.

      I think this is an eyewash. To t

    • "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 applicatio

  • Obiviously the patent office needs to return to the example set in early 20th century Europe (e.g. Bern). They were hiring people like Einstein to examine patents. I don't see the USPTO working to recuit brilliant young physicists.

  • Simple solution? (Score:5, Interesting)

    by LightningBolt! ( 664763 ) <lightningboltlightningbolt@yahoo . c om> on Tuesday January 10, 2006 @01:28PM (#14437893) Homepage
    If there were an official website where patent applications were scrutinized and commented on by the public, I'd bet a lot more patent applications would be thrown out due to prior art. Here on slashdot, every time some patent is mentioned at all, there's some cranky old technology guy who remembers doing the same thing back in '78 on some project at Fubartronics Inc. Further, competing companies would have the incentive to do the research to find solid prior art and comment on it.
    • Here on slashdot, every time some patent is mentioned at all, there's some cranky old technology guy who remembers doing the same thing back in '78 on some project at Fubartronics Inc.

      Those guys are great.

      IIRC, prior art requires publication, patenting, or public availability of what is done, though. I'm not sure that some hidden internal of a software system, even if ten years earlier, counts as prior art.

  • Google search technology (Score:4, Funny)

    by ajdavis ( 11891 ) on Tuesday January 10, 2006 @01:31PM (#14437926) Homepage
    Google had participated in the discussions and it was possible that its search technology would be used in the project.

    Meaning, patent examiners will now Google the phrase "customer review" before saying, "Gosh, what an original idea!"

    In other news, patent examiners' computers will now have web access...

  • At Last (Score:2, Insightful)

    by johnashby ( 819655 )
    This is a tremendous decision. In order for it to have taken place at all, there must already be an element friendly to open-source concepts in the higher circles...and the expansion of staff necessary to implement these changes will alter the culture of the Office at large. Water cooler conversations will change, and the current bias toward approving patenting anythign that moves might finally begin to erode somewhat.

    It's an excellent beginning.

  • Not enough (Score:4, Funny)

    by voice_of_all_reason ( 926702 ) on Tuesday January 10, 2006 @01:32PM (#14437937)
    Any fix of the patent system that doesn't address all the outstanding issues is a waste of time. I'm specifically looking for a solution involving the phrases "crush the patent office", "see them driven before me", and "hear the lamentation of the women"

  • deja vu... (Score:5, Funny)

    by revery ( 456516 ) <`charles' `at' `cac2.net'> on Tuesday January 10, 2006 @01:34PM (#14437954) Homepage
    I think all the patents should be put in a queue that is visible to the public and that we can moderate. Also, maybe there should be a limit on how many patent submissions you can make in a day, or a week, or something. And I don't think Roland Piquepaille or Beatles Beatles should be able to patent anything.

    Wait... didn't we already have this discussion today?

  • Reform? (Score:3, Interesting)

    by amightywind ( 691887 ) on Tuesday January 10, 2006 @01:35PM (#14437963) Journal

    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.

    This will only make anti-innovation patent enforcement more efficient. Great for patent holders (and the Patent Office I might add). Lousy for everyone else. I was hoping they would consider rescinding all software patents.

    • Even if that happened, they'd have to grandfather in old patents. The USPTO is *never* going to say "Oh, you know all those millions of dollars you companies blew on non-applied research? Well, we're taking away your patents." Larry Lessig tried pushing for copyrights to be retroactively reverted to Revolutionary War-era lengths, and SCOTUS basically laughed him down.

      Companies would scream bloody murder. Hell, IBM would never, ever be involved in pushing for something like that -- a lot of their assets

  • I for one... (Score:3, Interesting)

    by oscartheduck ( 866357 ) on Tuesday January 10, 2006 @01:44PM (#14438034)
    I for one would like to congratulate our Open Source Geek overlords. Yes, I mean you, you GNU/Linux running geeks you. This isn't the radical overhaul that the patent system needs, but it's something, and it's a clear sign that our commitment to ideas and ideals that we know make sense can have an effect if we keep with them and keep pushing the good word.

  • Nice, but what about obviousness? (Score:5, Insightful)

    by Bob9113 ( 14996 ) on Tuesday January 10, 2006 @01:50PM (#14438087) Homepage
    This is nice, but the real problem with patents today is not novelty, it is obviousness. The article implies that the obviousness problem is not being addressed. The worst patents in recent memory have been bad because they were obvious, not because they had been done before. One-click was novel (as proven when the prior art challenge failed). One-click was not non-obvious. Obviousness cannot be tested by patent examiners; they are not skilled in the art.

    I recently read what seems like a good solution; when a patent is submitted it must be tested for obviousness. Submit the problem that the patent solves to a panel of experts. If they come up with a sufficiently similar solution, the patent is void. Funding? Submitters who get their patents voided for obviousness pay the expense of the panel - calculate the cost at the end of the year and divvy it among the applicants. That has the added bonus of penalizing patent flooders, and since there will still be rivers of patents coming from IBM and MS, the individual patent submitter will only risk a tiny fraction of the cost of the board.

    • Obviousness cannot be tested by patent examiners

      No, it's done all the time; it's part of their job. Examiners determinine patentability of each claim against the prior art of record using, among others, 35 USC 103 as interpreted by relevant case law they are not skilled in the art This is true. They cannot establish prior art (well, thechnically, they could under some very rare instances; I'm not aware of even one occurance, however). It's the cited prior art that must not only show the invention, o

      • 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"

        So what you're saying is that patents are, in effect, the right to solve a given problem? The first person to notice that a problem exists, the motivation you note, is the only person with a legal right to solve that problem? That regardless of the obviousness of the solution
    • The sense in which a patent is "obvious" is not "obvious" as defined in the dictionary, the common word. "Obvious" patents are those that are trivial modifications of existing ideas. An "obvious" patent might be a patent on a blue taxi, when someone has patented a yellow taxi already.

      This becomes significant when the problem is new (maybe due to a changing environment), and nobody has done anything like it before, but that any expert in the field would, in short order, provide a similar answer to the prob

  • Groklaw (Score:3, Informative)

    by just_another_sean ( 919159 ) on Tuesday January 10, 2006 @01:54PM (#14438134) Journal
    As usual there is great information on this at Groklaw [groklaw.net].

    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.

  • Software is not patentable.... (Score:4, Insightful)

    by 3seas ( 184403 ) on Tuesday January 10, 2006 @01:56PM (#14438160) Homepage Journal
    By its very nature software falls into the scope of what is not patentable.

    Physical Phenomenon
    Natural Law
    Abstract Ideas.

    Mathmatical algorythims are a subtopic of the above three primary facets of what is not patentable.

    Haven't the time at the moment to read the article but I don't need to. I know software is provably not patentable.

    How software got patent status in teh US is not by approval of the people, but by the abstract rethoric of abstract arguement.

    Software creation is all about abstraction creation and manipulation.

    This alone make its a a human right and duty to apply. For we as creatures able to go beyond other creatures have only this as our advantage enabling us to go beyond the limits other creatures have.

    Software is not patentable and there are more details as to why this is and provable, then I have time to go into ATM.

    We only advance by building upon the works of those before us. Why falsely limit that process and increasing rate of? Ity is not consistant with what we are.

    Reform???? What we need is correction in accord with what is not patentable.
    • What about user interface, and workflow? Those aren't algorithms, but they are the most important parts of any software.

      How is the user interface of a word processor any different from the user interface of a type-writer in terms of abstraction? There is no practical difference. There is no good reason that elements of user interface and workflow should be any less patentable in software products than in hardware products.
      • http://wiki.ffii.org/IstTamaiEn [ffii.org]

        Physics of Abstraction (abstraction physics)

        Abstraction enters the picture of computing with the representation of physical transistor switch positions of ON '1' and OFF '0' or what we call "Binary" notation. However, computers have far more transistor switches in them than we can keep up with in such a low level or first order abstract manner, so we create higher level abstractions in order to increase our productivity in programming computers. From Machine language to applic

  • Some of you are missing the point (Score:3, Insightful)

    by ZB Mowrey ( 756269 ) on Tuesday January 10, 2006 @01:57PM (#14438187) Homepage Journal
    Those who say this is worthless because it doesn't completely fix all your problems with the system, should evaluate the following:

    "All these incremental fixes to Firefox are just annoying. I wish they'd just get over it and release version 5.1 *right now*. Anything else is a waste of time and effort."

    Change at this level of society doesn't come in an avalanche, it's an incremental, patch-like process. This is done to minimize harm to the basic structure of society, which after all has fed and educated some of us, despite its flaws. I don't know how many others like me are out there, but I know I've been hoping for exactly this kind of open review for patents for a long time. Now hobbyists and competing commercial interests will have the ability and incentive to help crush some of the utterly stupid patents that get granted.

    • Agreed. Maybe this new system won't work. Maybe it will. But I can list a heck of a lot of good things about it:

      (a) IBM and RH are involved (and maybe some of those ideas churned up on Slashdot [slashdot.org], FWIW). Both have incentive to keep patents workable for open source developers.

      (b) The USPTO is aware of the problem, has acknowledged that it can improve, and is trying ideas to do what it can. This is a *huge* leap.

      (c) It's an idea to try out. It might make things better. If it turns out to be a disaster, i

  • Other interesting developments in Patent Reform (Score:3, Interesting)

    by Unequivocal ( 155957 ) on Tuesday January 10, 2006 @02:06PM (#14438316)
    I found these interesting links about more patent reform work out there. The first one is a partnership between IBM and some university people on building some kind of peer review patent system. Looks very interesting:

    http://dotank.nyls.edu/communitypatent [nyls.edu]

    Second is an article by one of the university people with more details on this (PDF warning):

    http://peertopatent.jot.com/WikiHome/PeerToPatent- BethNoveck.pdf [jot.com]

  • Recently developed? (Score:3, Funny)

    by c0d3h4x0r ( 604141 ) on Tuesday January 10, 2006 @02:36PM (#14438727) Homepage Journal
    recently developed Internet technologies

    Database-driven web sites and web forms? It's recent in geological terms, I suppose.

  • It would be a good start if the USPTO could start by not issuing invalid patents. For example, patents which are patently obvious, or patents with well-known but not published prior art, or patents for devices that don't work, or patents which rely on techniques that haven't been invented yet -- but when they are, this patent will have priority.

    For example, you could require that a functioning device [blogspot.com] which implements the claims of the patent must be sold within a year of the granting of the patent.
  • The whole concept being proposed is interesting but, sounds like it's just a Wikki that IBM is going to bill the PTO huge money to set up.
  • It might be interesting to enforce a maximum number of enforceable patents at any given time.

    Not only would it make it easier to search the patent database for violations (given a small enough max # of patents), but if you include some kind of competitive process for the granting of the patent "slots", then the process should weed out a lot of the worthless patents.
  • to 51% of Slashdot that hates Open Source (not to mention freedom) I think I speak for many in the Linux community when I say:

    NNNYYYYAAAAHHHH!-8P

  • Somebody should patent ... "An open patent review program that 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." and "the creation of a patent quality index that would serve as a tool for patent applicants to use in writing their applications". (From the Article)

    That way, the USPTO will have to pay royalties to reform the patent process. Oh, the irony.

    (This is a joke.)
  • In my opinion the fixes the article describes will only complicate the present system. A true fix would be to return to copyrighting software instead of patenting it, and to end the utterly stupid patenting of business practices.

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