Peer Review Starts for Software Patents 102
perbert writes "As seen in an interview in IEEE Spectrum: Qualcomm v. Broadcom. Amazon v. IBM. Apple v. seemingly everyone. The number of high-profile patent lawsuits in this country has reached a staggering level. Hoping to curtail the orgy of tech-industry litigation, the U.S. Patent and Trademark Office (USPTO) is experimenting with reforming the way patents are applied for and processed. Launched on 18 June 2007 was an Internet-based peer-review program whereby anyone (even you) can help to evaluate a number of software patent applications voluntarily submitted for public evaluation. The one-year pilot Peer-to-Patent program is a collaboration between the USPTO and New York Law School's Institute for Information Law and Policy, in New York City. The program's Web site allows users to weigh in on patent applications by researching, evaluating, submitting, and discussing prior art, which is any existing information, such as articles in technology journals and other patents, relevant to the applicant's claims."
Looks pretty solid (Score:5, Interesting)
5 applications online [peertopatent.org], 22 instances of prior art submitted.
While everyone's favorite seems to be Method, apparatus and computer program product for providing status of a process [peertopatent.org], I had to laugh at Database staging area read-through or forced flush with dirty notification [peertopatent.org] - it's pretty much a description of how every memcached/SQL plugin works. I guess somebody should mention that.
Apparently, if you make the description sound complex enough [peertopatent.org] it will pass initial review.
It's good to see this kind of a process come to light. Three cheers for Beth Noveck.
Re:Looks pretty solid (Score:5, Interesting)
Yes. I once had a conversation with a lawyer who worked in a patent office about this, and this is very correct. In theory the people reviewing patents and determining whether or not a patent should be granted are technically educated and competent. In fact, many of them are technically literate, but as we all know the world of computer technology is huge and what is often required to intelligently review a patent is not just technical literacy, but plenty of domain knowledge in the specific area of the patent (many people who use computers every day, even people who program computers, know very little about how memcached/SQL plugins work).
So even though some effort at technical literacy is made, the fact is that there simply isn't enough manpower to pull it off. A patent office only has so many people on staff, and so much money that they can spend on expert consultation, and the submitters are always in a hurry. These real-world pressures leave specific clerks holding the bag; they are more-or-less forced to make a decision with too little information, and financially incensed to lean towards approval.
So, yes, techy-sounding complexity will go a long way towards getting bogus patents approved.
Re:Looks pretty solid (Score:5, Interesting)
Note dates and names have been changed to protect the guilty.
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This is why I think the patent process should be a direct analogue of the peer-reviewed refereed scientific journal process—so that it is a panel of field experts that make the decisions about what is significant and what is not. Patents should be of a quality that would be accepted for publication in such a journal. This would eliminate about 99% of
I'm still having trouble with this. (Score:5, Insightful)
I am not at all sure this would help either Open Source or small and medium sized proprietary software developers, who I imagine are the folks they want to have doing peer review - and also the folks most in danger from Software patents. I do not at this time recommend that you participate in this at all if you are an Open Source developer, the risk of being exposed to treble damages is too high. I don't know if you should participate in this if you're even an Open Source sympathizer. It sounds too much like an effort to save a software patent system that we should be shutting down.
The only way I think it would help would be if we could entirely kill a patent application. Just fixing one only makes it more powerful.
Bruce
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Because the alternative is more patents that nobody QA's that they STILL use against us.
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But a patent that hasn't been through a QA process is likely to be much easier to defend against.
The strategy of the patent trolls is to get a whole bunch of patents, none of them very good, but hope that maybe just one of them will stick. Fighting against a bunch of bad patents is much easier (although probably more time consuming) than fighting against a patent that has been through QA. After all, the patent troll is certain to use the fact that it has passed a peer review process to push their case.
Re:I'm still having trouble with this. (Score:5, Insightful)
If you have a legal budget and you're willing to fight the patent in court. Most open source projects will just roll over if they get hit with even the threat of a lawsuit, so the strength of the patent is irrelevant.
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Re:I'm still having trouble with this. (Score:5, Insightful)
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IANAL!
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Not so - you just need to show that you used it and sold it to someone else BEFORE the patent application date. At that point it is not patentable.
This is not true in the US. Prior use will get you immunity from a lawsuit, but it won't invalidate the patent and others who had no such prior use will still be vulnerable. To invalidate the patent the prior used "invention" has to have been "known" in the general body or knowledge in the field, which requires that the patented mechanism be described. On the
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The only way I think it would help would be if we could entirely kill a patent application. Just fixing one only makes it more powerful.
Bruce
Bruce is absolutely correct. This process is designed to weed out all the "obvious" software inventions that we complain about - the ones that are just a rehash of something old. If you believe that patents are inherently bad or if you believe that software should never be patented - even if it meets all the requirements of a patent (new, non-obvious) - then you should be aware that this process does make the patent stronger. OTOH, it should remove or narrow some software patents, leaving fewer to worry
Re:Looks pretty solid (Score:4, Interesting)
For example, if you read even just the intro of "Method, apparatus and computer program product for providing status of a process", it is immediately clear that the authors use the term "process" in a non-software meaning (i.e. a production process or something similar - they use a power plant as an example). Yet two of the supposed prior art submissions refer to operating system process monitors (one wanker actually uploaded a .exe file). Most of the other "prior art" submission have already been rebuked by other participants.
I predict a very fast end to this pilot test unless the quality improves drastically. If you are gonna comment, you should at least bother reading the patent, for christ sake.
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The USTPO is asking the public to do their jobs for them. Nice try, but real life doesn't work like that.
Now they're stuck with moderating the website and sifting though an enormous number of garbage posts.
Not peer review (Score:5, Insightful)
Re:Not peer review (Score:5, Insightful)
There are plenty of people out there who wouldn't pass muster if you reviewed their credentials, but they know more about the inner workings of some things than anybody else in the industry.
How many key industry players are drop outs that made their money on hard work and ingenuity? More than a few I imagine.
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This is just an argument about what "peer review" means, not about whether it's useful, how it compares to peer review, etc., but that term has a pretty specific meaning.
Wikipedia's entry starts with "Peer review (known as refereeing in some academic fields) is a process of subjecting an author's scholarly work or ideas to the scrutiny of others who are experts in the field."
Re:Not peer review (Score:5, Insightful)
It means every bit as much as a "jury of your peers" does today.
Once upon a time, a "jury of your peers" was a group of citizens with similar social standing, economic condition, et cetera. Today it's twelve assholes that both lawyers think they can manipulate, who are guaranteed beyond a shadow of a doubt to know nothing about the case they're trying.
I don't see any reason why corporations shouldn't be judged in the eyes of random jackoffs if you and I are.
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Thats the reason that juries today try for diversity- because certain segments of society are more likely to be harsher or more lenient than society as a whole. Or do you want the next Kenneth Lay to be tried by a jury of CEOs?
(Not that there isn't plenty of problems with the current method of jury selection, but trying to get socio-economic peers is a step backwards).
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Jurors AREN'T supposed to be experts on the case. You are allowed to only use your general knowledge of things (ie, gravity holds things down, the sky is blue, basic physics). Lawyers will bring in 'experts' whos testimony you can ignore or accept. Jurors themselves are supposed to be unbiased, and using your expertise will make you biased. In the trial I participated in (civil, car accident), two different experts came to two different conclusions as to the location of one
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Now that you've been a juror, you're an expert on what a juror should be?
Why shouldn't jurors know something about the case? If I'm smarter than the expert witnesses (it's a hypothetical here, bear with me) then isn't it in the interest of justice if I remain on the jury, and don't get booted off just because I know something?
The so-called justice system is flawed at best, and deliberately designed for game-playing at wo
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otoh -
"Weaseling out of things is important to learn. It's what separates us from the animals... except the weasel." H. Simpson
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Well, I'm not saying that I've ever weaseled out of jury duty, but if I had it would have been because I couldn't afford it.
My current employer is the first I've ever had that would pay you for your time spent on the jury. I work for a tribal casino, and they more or less appear to have adopted their holidays and some of their practices directly from federal government practices.
Now, sometimes I've been salaried, but mostly those jobs
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No, but it probably aids peer review (Score:5, Interesting)
Only problem I see with this is that it can easily become deep pockets vs the rest exercise. No doubt MS and some others will have a few people perminantly assigned to tearing apart applications from others.
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Re:No, but it probably aids peer review (Score:4, Interesting)
If one company can do it, then so can others.
At some point they will realise its a waste of all their time, or we will end up with a server room fist fight broadcast on youtube.
win-win I say.
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I'll take Balmer over Jobs in the second round! Jobs will come in the best equipment money can buy but Balmer will change the shape of the court by fiat and then kick Jobs in the balls.
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Cheap shots aside, aren't you opening yourself up to litigation with this? If you submit prior art on a patent which is then granted anyway then they can prove that you read it, which opens you up to claims of wilful infringement, which carries stiffer penalties than ignorant infringement (which is one of the main reasons patents fail to achieve their aim, since the people who would most ben
I think it is nifty (Score:2, Funny)
Oblig. Sealab 2021 (Score:2)
Dr. Quinn: I've got five Ph.D.'s and a genius grant. I don't have any peers here.
let's actually moderate patents (Score:5, Funny)
Or how about "Troll" - aka it's a patent troll, and should be ignored.
"Interesting" means not a bad idea, but let's put it on hold for a while and give it some thought.
I'm sure we could adapt "Informative" and "Insightful" as "Useful".
I'm only kidding about this.
Re:let's actually moderate patents (Score:4, Insightful)
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It's an awesome idea, you should patent it!
Cheaper? (Score:2, Interesting)
Remember getting paid for viewing ads online? (Score:2, Interesting)
Perhaps they could develop a similar system for patent reviewing - get paid for it. And then I could write a script that keeps moving the mouse cursor around and randomly clicks on ACCEPT/REJECT buttons (and let's not forget, moderate the patents - see my post above for more detail).
I suspect my randomizer would do a better job of filtering bogus patents out.
More expensive (Score:4, Interesting)
On the other hand, it mean that enforcing patents will become a bit easier because the general level of patents will be higher so there'll be less to litigate about.
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"Given enough eyeballs, all patents are obvious."
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It might raise the cost for an individual inventor filing a single patent, particularly if someone challenges it with prior art w
well (Score:1)
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Anyone? (Score:4, Interesting)
Well, anyone who can read a patent without their head exploding. I can't even read my own. let alone other people's
Hopefully the people that do this will know enough to read the claims properly and not just deluge the system with incorrect prior art based on reading the description.
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Re:4 Year Backlog! (Score:5, Insightful)
After all this time, there is no legitimate process for determining the true origination of an idea or whether an idea is actually original. This process is a band-aid for a broken bone.
If you truly want your idea protected, it needs to be kept secret. That is the only real protection an inventor can provide himself with.
The patent system is over encumbered with legislation and politicization (is that even a word?!?) to the point where a true innovator either has to be working under a corporate structure that can support his or her efforts, or that innovator must stop innovating long enough to gain an understanding of the process and navigate through it.
Initially conceived to protect important intellectual property and therefore inspire ingenuity, the patent system has transformed into a system that actually stunts progress and protects very few who actually change our world for the better.
Big flaw: (Score:3, Insightful)
If you read the patent, and it is then granted, and you, or your company, are ruled to infringe, the plaintiff is entitled to treble damage (I think) for "willful infringement".
The people who could make the most interesting contribution (because it's their domain) are also the most likely to be potentially infringing (because it's their domain).
And this thing is not anonymous...
a new era (Score:1)
I like it.
as a side note: my captcha image word was "stalling". Somehow applicable.
You know.... (Score:1)
What Happen to /. (Score:4, Insightful)
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Change was made to a bad system.
Superficial change was made to a fundamentally broken system. They're hoping the complaints will go away so they won't have to deal with the real issues.
Well guess what? The complaints are not going to go away until they start addressing the fundamentals. Like how much benefit, if any, patents actually bring rather than the wholesale hand waving they usually engage in.
---
Scientific, evidence based IP law. Now there's a thought.
scarry (Score:4, Funny)
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Sounds like a Letterman list to me (Score:4, Funny)
U.S. Patent and Trademark Office (USPTO) is experimenting with reforming the way patents are applied for and processed.
Ok, ladies and gentlemen, from the home office in Sioux City, Iowa, the Top Ten ways the USPTO is reforming the way patents are processed:
Require Implementations (Score:1)
This is terrible! (Score:3, Interesting)
But the idea of having my Intellectual property / invention read through by peers / possible competitors before my patent goes through is the worst thing that you can do to a small unfunded startup.
This would kill of the next google before then even get out the starting gate.
Basically I have some software / algorithms that I have been working on for almost 10+ years, Code is developed and I am ready to build a product and get some funding to launch the company. Investors want and need to see patent protection. I have indeed done all of the hard work, but if this it shared before I get my patent fully filed, then
some group of students or Microsoft could through a small army of coders at developing a competing product before I even get funded. I will then be unable to raise funding because M$ is doing it already and therefor will be unable to raise the cash to finish my patent filings or defend the patent.
It is already hard enough as it is, I should know, I have attempted to file about 20 patents of the past 15 years and not one ever made it all the way through because of lack of fund, or someone attempting to take over the company, or M$ putting out press releases and faked demos that were flat out lies.
At this point my plans were to file patents before taking to investors or releasing products, and do this without professional patent attorneys that have eaten up almost $300K with not 1 completed patent to show for it.
But if these patent get publicly dispersed before I even get my patent filed, well I am just dead before I even start.
In the past I had the first and largest content distribution network 1994 and running from (1995 to 1998), Caching servers, Error Correction over IP, QOS, Firewall penetration schemes, Streaming audio over IP 1987, streaming video over IP 1989, the whole concept file sharing P2P 1989 and of live P2P streaming 1994,Dynamic Rate control for video streaming encoders and many more things that all fell apart for one reason or another.
And some of these attempted patents that fell apart are now the core of several billion dollar companies that I have nothing at all to do with.
As a small entrepreneur the system is already slanted heavily against me. This would really just kill any aspirations for me.
And before you criticize, I have shared plenty of this in open source and published papers, usually only after it has lost commercial value for me though.
John
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You should be d
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Like with my afterburner(on sourceforge) when I mentioned that the server is heavily optimized and therefor used much less computing power for the same task. VC's reply was why, there is no advantage? Computers are getting faster (Moore's law), there is no advantage in optimization of software!
After that reply I was just stunned, stupefied and left speechless. Later I realized my comeback shoul
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Kept down by 'the man' Check
Basic facts don't seem to line up with reality? Check.
BS detectors ringing loudly.
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You can see links to many of these things on my home page and sites. If you really want proof I can even dig up the original patent fillings on these things.
Even now, I have work I am doing for electronic cash, electronic voting, Anti SPAM by using Electronic postage stamps,
earthquake detection and early warning, video streaming on cell phones, several Linux kernel drivers. VIVI currently in linux kernel/
Oh and
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In effect, can you actually overturn the patents the other companies have gotten by showing you did it first?
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In the cast with the First byte patent on Digital audio for PC internal speaker, Activision paid me to help overturn that patent.
But in that cast I had posted code to CompuServe that kept an unbiased date and time stamp.
http://www.dnull.com/zebraresearch/ [dnull.com]
Being able to document the inventions date is very important, even when it is released into the public domain. If you can not produced evidence as to when you released it into public or even came up w
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Needle in a hay stack. (Score:2)
I just had a thought... reading a post within this thread.
Considering the sheer numbers of patent applications alone, of any particular field no less, is it even possible, even one of a million is truelly ground breaking? Or, does it not need to be ground breaking? If not, then what else might we call a unique thought? If it's "useful" as in a utility? But, what of the tangible significance of art such as music and paintings? Anything without prior art, certainly requires a unique thought, and I assert
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No, It doesn't, unique in this context doesn't mean totally original, on different then something else, even if it is based on a prior patent.(i.e. slight modification)
"Anything without prior art, certainly requires a unique thought, "
no, it require an original presentation of a thought, not unique.
here
"having no like or equal; unparalleled; incomparable:"
If i
Sounds great, but as always a Qbut... (Score:2)
Over the last five years, I have noticed a significant increase in what I call lurking-lobbyist presenting very reasonable spin-agenda with pseudo-evidence. Some stuff would test the ability of investigative [AKA: muck-racking] news reporters.
Paid "lurking-lobbyist" appears to be big business. I have no proof of "lurking-lobbyist" on
RMS on prior art vs the patent problem (Score:2, Informative)
(by Richard Stallman)
The article has been written a year ago:
http://www.linux.com/articles/57167 [linux.com]
It's going to end up like /. (Score:1)
I Have Prior Art (Score:1)
This is cool because I totally invented this peer review concept in an older /. discussion about patents. I would provide a link but apparently Slashdot has a unique method for "Limiting viewing of Comment History by non-Subscribers" and I can only see my most recent comments.
I can't wait to threaten the USPTO for their unlicensed usage of my idea. Since it is a good idea, I will allow them to keep using it and only require a small percentage of the benefits they receive from the usage of my idea. And by t
so? (Score:2)
Completely bogus (Score:1)
breaking news (Score:1)
Read this (Score:1)
Too bad this isn't retroactive (Score:2)
I tried the new system (Score:2)
I tried this new system...
I chose a Patent and said "Patents are evil."
They replied -1, Irrelevant.
"Voluntarily" (Score:2)
I'm confused... (Score:1)
Painter #1 paints a picture of an apple, and patents painting apples. He clearly was the first to paint an apple, and needs the protection of the government from all the other painters who would steal his idea of painting apples.
Painter #2 cannot paint apples. Poor painter..
Or can he? If we compare solutions to what a software developer #2 would have to do today to get patent licence to make his software available, what can painter #2 do to paint apples, if painter