Public Patents?

Lettuce asks: "While driving along today, I was mulling over patents. One of the problems with patents, from an open source perspective, is they cost money to acquire. Not only do you have to pay the Patent Office for them, you usually need to obtain the services of some lawyer. Which means you'll usually never see someone patent an idea just so that it can be public domain. What if we lobby our congressmen and senators to wave the charges for patents and even provide patent assistance, for those of us who would patent an idea for the public. With that simple change, couldn't people could flood the patent office with simple ideas and prevent abusers from patenting obvious ideas such as 'delivering e-mail to a wireless device'?"

Flooding?

Couldn't people flood the patent office with simple ideas

Isn't this the very reason why patent application costs money and time? So that the inventors will think twice before wasting the office's time.

And if we can lobby congressmen to wave the charges, we might as well lobby for no patent at all, this way all patents will be public patent.

Yup

Yeah the sheer volume of meaningless patents is already huge. What I would suggest is perhaps somewhat along the lines of the original concept but deals well with the volume issues:

1) Provide an open database for public disclosure. This database would be a repository for prior art claims. So what you would do is, if you had a good idea, you'd drop it into the database and it would be kept there. Then when a patent came up, it would be readily searchable and if your idea was relevant and prior to their invention, it'd prevent them from getting the patent.

2) Seriously improve the patent review process. That means upping fees, hiring more patent clerks, and increasing the difficulty of getting a patent in the first place. It's time we stop pretending that patents are the realm of the lone inventor and recognize that they are weapons in corporate IP arsenals. As such make them very expensive to get and maintain and make the vetting process quite vigorous.

Sounds nice, but will actually make it worse

It sounds like a nice solution, unfortunately it is not. It would require two mayor changes:

1. A reverse of the policy of patent offices as profit centers. Almost all western countries have challenged their patent offices to make money. The only way they can make money is by charging for registering as many patents as possibly. This is one of the major problems driving all the trouble we have today. If it wasn't in the interest of the patent office to accept patents, they would check more thoroughly.
2. MUCH MUCH more personnel for the patent office. If it is free thousands of patent applications will flood the patent office, including many that are already covered by other patents. I doubt that those people that do not apply public patents today (which is possible and cheaper than a regular patent) due to the cost will actually start an intensive (and costly) patent research before applying a free patent in the future. Since patent offices are obviously incapable of handling todays workload, this would finally kill them, resulting in even more trivial patents being accepted due to lack of proper checking.

I'm not a friend of patents, but I see that they have their place. Making them free is an attempt to fight a symptom (patenting trivial things) by being faster and patent any possible trivial thing first so no idiot can use a stupid patent to blackmail everybody. But the real problem is the lack of quality in the review process and the dependency of the patent office on the registration fees (see above).

So I suggest to:

• raise the bar for inventions. No software patents, no business patents. You can patent an implementation, but not an idea. In case of doubt, say no. The applicant has to prove that his invention is patent worthy (yes, this will harm small inventors)
• give the patent office more money. And if they fuck up and register something that was covered by prior art or is just current state of the art, fire them. Let them feel the pain and they will learn.

Defensive publication

This is called defensive publication [google.com]. If you want to make sure that nobody patents a particular invention, get the invention published in a scientific journal.

Re:Defensive pub ... not limited to journals

The notional proponent of the art, the position of whom is addressed in patent inventiveness/novelty decisions, is taken to be aware of all prior worldwide _publications_ (and not just paper ones, audio, video, scratched tree bark, ...). A defense of inventiveness can be mounted for obscure publications (I won't go into that).

There are several services that offer defensive publication.

One such route would be to file a patent _application_ and have it published. It then falls squarely within the gamut of documents regularly searched by patent examiners.

The stages of an application up to publication require fees of about £130 (sterling). This compares favourably with facilities like www.researchdisclosures.com (which I occassionally cited for patent searches) which charges £75 *per page*!!

This is not the hard bit at all.

The hard part is legally challenging a mega-corp with a prior publication of their "invention". Public money would never be able to meet the costs.

Yes ... I used to be a UK Patent Examiner ... how did you guess??

Publication?

Wouldn't it be easier to prominently publish a book or something similar with all those ideas? Then you could point to provable prior art if a company tries to sue based on one of them.

Publish

IANAL, but my understanding is that if something's been published, it can't be patented. I read once (on /., so take it with a grain of salt) that sometimes a company will publish an invention when they don't want to go to the trouble and expense of patenting it, but don't want anybody else to patent it either.

I'm not sure what's considered "publishing" in this context. Maybe releasing an open-source program would be sufficient, or possibly you'd need to make a Usenet post, or send it to the JACM [acm.org] or something.

Isn't the OSDL already working on this issue?

http://www.osdl.org/about_osdl/legal/patent_common s/ [osdl.org]

Not quite

I don't think we need "public patents". All that we need is a way to make sure that these ideas make it into whatever database the patent office use to search for prior art. Surely that's much easier to do than creating a whole new category of patents?

Of course, if the patent office actually did it's job diligently, even that wouldn't be necessary. All you need to do is publish the result.

RE: couldn't people could flood the patent office

...couldn't people could flood the patent office...

Why yes. Yes, people could. Which is precisely why the US Patent Office doesn't give away free patents.

The fragility of patents

Everyone knows that prior art defeats patents. If you are the first person to develop an idea, and you publish your work immediately, then you are immune from a subsequent patent. This does not cost anything.

Where open source/Free software runs into trouble is when they are replicating the work of others, such as GIF, MPEG4 etc. To a lesser extent, there are very broad patents, such as some online shopping patents, and UI patents. The broader a patent is, the easier it should be to find prior art. Again, if you publish your work (and CVS, etc would count) then you have nothing to worry about.

Anyway, if you intend to share the patent with the world, there is no need to apply for a patent then "free" it... just make the information available to the public, and it should have the same effect.

Taking it one step further....

I think you could make an interesting court case on the premise that patents are a *constitutional* right, at least in the US and therefore there should be no charge. What other constitutional rights does an individual have that he/she has to pay to exercise?

Public Domain

Im sure one can submit a patent and release it under public domain

There is no need

The whole purpose of a patent is to grant a limited time monopoly for the patent holder. Since this would be of no interest to one inventing for the public good, all that person need do is publish everything he or she has. As always, see (http://en.wikipedia.org/wiki/Defensive_publicatio n [wikipedia.org] for more, but really all you would need to do is lay all the details of your invention out on a web page. No one else will be able to patent that material because your published work would be "prior art" against it.

Not a question of cost

you'll usually never see someone patent an idea just so that it can be public domain

Probably true (I have no numbers to say either way). But it is undeniable that there are plenty of people who will gladly sacrifice hundreds or thousands of hours of their time to get an open source project under way. Ironic.

My guess is that most OSS developers do it for fun rather than altruism or personal beliefs -- and fun isn't fungible.

SIR: Statutory Invention Registration

SIRs are a sort of un-patent, also issued by the USPTO. This more or less officially registers your invention into the corpus of prior art, giving it a far better chance of being found by patent examiners. However, it grants you no rights of action against "infringers".

These registrations used to be used by government researchers, back when all publicly-funded research used to enter the public domain.

Schwab

"...public online registries that document..."

I claim prior Art on your Idea : From February 24, 2005 [blogspot.com]

The USPTO patent application examiners task could be made more reliable if the examiners could consult one or more public online registries that document cases of prior art and public discoveries. The online registries could provide a means for the public to retroactively point to cases of preexisting prior art for pending patent applications and a means to proactively document publicly known ideas and concepts. Although websites and digitally stored content in general is changeable, individual entries and changes in an online registry could be legally authenticated by means of digital timestamping ( http://www.rsasecurity.com/rsalabs/node.asp?id=234 7 [rsasecurity.com] ). An online registry could be hosted by the USPTO as an adjunct to the existing online public patent and patent pending databases. The USPTO could also publicly recognize other individual registries hosted by third parties such as a commercial entity or a non-profit community similar to Wikipedia ( http://www.wikipedia.org/ [wikipedia.org] ). An individual adding an entry to such a publicly online registry does not involve granting that individual any form of monopoly, therefore the action need not have any artificial barrier involving fees or payments. Would the existence of digitally timestamped public content overcome any objections by the USPTO to its citing as prior art? Has the USPTO any plans to add some form of publicly accessible feedback mechanism to the patent application process?

How about Public Domain?

Isn't that what Public Domain is? You could just start a website that documents diffrent ideas in patent form. Seeing as you can not patent previous art, no one would be able to patent the idea. This also prevents people from revoking the privlages/rights of the patent.

Waive

The word you're looking for is "waive" not "wave".

Problems do have solutions, you know

One of the problems with patents is they exist.

The system is screwed up, it was never designed for the kind of abuse the technological revolution has brought forth. We either need dramatic reform of the patent system, or just abolish it entirely. Patents are being used as strategic weapons against competition, hindering progress. The recent case vs RIM concerning their email system is a perfect example of bad patents. Its sole use was to slam a competitor by threatening to cripple the entire customer base including some high officials. The company that owns it doesn't even use it. We have patent holding companies whose only purpose is to sit on a patent portfolio until someone pays for a license, or someone's ripe for a lawsuit. They serve no other purpose. They're IP pimps.

Another option: violence

I hate to say this, but there is another option that should be mentioned: violence, or the threat of it. As bad as this sounds, some people imposing patents have acutally done worse.

Sometimes a few credible threats can do a lot more to hold back the patent dogs than years of litigation and petitioning.

Considering that some patents have held back medical innovation and have led to deaths, or safety devices that have also led to death. Or considering how pharmacuticals sued African nations to keep them from making generics and that led to countless AIDS deaths. Or the countless other small innovative companies that were sued out of esxistence, and all the families and related people who suffered greatly from that. It is not an out of the question option.

essay: A Violent Protest Against Patents [slashdot.org]

US-only?

I'm probably wrong here, but, as with trademarks don't you have to take out a patent for your idea in every country in which you're intending to use the idea?

I think it unlikely that the US government will pony-up US tax dollars to register an "Open Source" patent in the EU.

Public patents are a great idea!!

Just send me $5,000 so I can write it for you. Maybe I'll knock the price down to $4,000 for public patents.

But it won't cost you a cent to file it. You'll save $500!.

Sincerely,
Sharkb8
registered patent agent.
no, really.

Not needed -- already free

I actually met with several people from the patent office last week. They were visiting companies in Nevada [zappos.com] to learn how patents effect our business. First thing I want to say is that they weren't a bunch of idiots and they took their job seriously.

Anyways, we discussed the idea of public patents, and there's a simple solution already. You don't have to patent anything to make it public. You just have to publish it. That's all. If you have something that could be patentable and you want to make sure that it's free for public use, just write up a whitepaper, date it, and make it available publicly on the web. Make sure it gets into the WayBack machine [archive.org]. They use these resources when researching patents, so it should prevent them getting granted. If not, it would still function as prior art.

Cheers.

Prior art

Since a patent is invalid if prior art exists, how would this "public patent" concept be better than simply publishing the idea so it becomes prior art?
All it would take would be a cheap/free way of timestamping the idea as to establish it as being prior to any patent appearing thereafter.

Don't patent - publish.

Which means you'll usually never see someone patent an idea just so that it can be public domain.

That's what publishing is for (in some magazine, journal, whatever). If someone tries to patent the idea later on, it should be easy to prove that the idea was not original and prior art exists.

Why did patents exist & why are they superfluo

Patents were invented so that the simple man, inventing something complex had time to create a company around it and produce enough products to give him a real tactical advantage against big corporations that have a lot of production capacity standing ready and so that he would actually benefit from his invention. Also, it served to make sure that all ideas were public 20 years after conception so that no true invention would be lost. Consider what would've happened if Einstein didn't publish stuff but just keep it to himself, or if Lempel and Ziv never considered telling others about compression. You'd have a lot of pointless repeated research.

Currently patents are being used for patenting the obvious. When you have an idea nowadays, you have to make a proof-of-concept before you can publish it (since it might not work - guys with patents on infinite compression, please do comply with this rule too...). In software in particular, your proof of concept is 80% of the work needing to be done and the sole thing that you have that others don't. You won't get a marketing position that's better than theirs, you won't be able to get any products on the shelf since both the products and the shelf are virtual. There is nothing to be gained by patents except for a very small gain on behalf of the company producing it.

However, if something is obvious and you patent it, you stifle inventions made by others that actually are with some content. Around 5 years ago I've seen a small article illustrating how to make a webshop in a few hundred lines of code. They also illustrate that you'd have broken about 40 software patents in those 300 lines, all the while not seeing those patents or actually stealing their ideas. If all those patents were enforced, you wouldn't be able to make such a webshop until about 2012. Just consider what would happen if something like that happens.

Shut down the USPTO software department and disallow any patent claiming a method for processing.

"public patent" is an oxymoron

A patent = a legal right to exclude others from using a technology.

What then is a "public patent"? A legal right to exclude no one from using a technology?

A solution in search of a problem

You don't have to patent something for it to become part of the public domain. Just publish your ideas anywhere, and they become part of the prior art pool. You need to learn a lot more about the patent system before you start suggesting policy changes. You're like a blind surgeon.

Re:Patents

If your really worried about what you are working on and want it to becme public domain very cheaply, stick a copy of everythig into an envelope and mail it to your self, that way if a company tries to claim if for their own sue them and pull out the postmarked envelope as evidence and bam, thats all the proof any judge will need.

That's "the poor man's copyright," and it's not worth the cost of the stamp. There's no way of proving there was anything in the envelope when it was sealed; you could have mailed yourself an unsealed envelope and filled it later. If you try to use this, you'll be laughed out of court. Sorry, but that's the way it is.

Re:Patents

...that way if a company tries to claim if for their own sue them and pull out the postmarked envelope as evidence and bam, thats all the proof any judge will need.

Aside from what techno-vampire just said, what exactly would one sue them for? The royalties one isn't collecting anyway? Damages to what income?

Assuming they worked at all (which I'm not granting, but let's say), they'd only be good for defending against lawsuits by companies (or conceivably individuals) trying to enforce a patent against oneself or a third party.