Could You Really Do Better than the USPTO? 98
lllama asks; "Is there such a thing as an obvious patent? Some ideas are so obvious that they needed to be stated before it's clear how obvious they are. Some are so blindingly simple that maybe a few dead monkeys might not have thought of them first. How would one go about deciding which ideas deserve a patent? Could/Should the patent office open itself up for public voting or moderation? Could a voting system affect how long a patent is grated for? Should the system be allowed to be swayed by public opinion? Should there be another tier of patents that protect IP but cannot be licensed out for money (BSD style patents?)? Given that simply hearing an idea affects how obvious it appears, could a system be devised that would allow an unbiased measure? An Obvious Quotient as such. Is there an obvious other word for 'obvious' that I could be using?"
Score! (Score:3, Funny)
Can Patents really stand up at all? (Score:1)
I guess the Reasonable Man will tell you what is Obvious...
Re:Can Patents really stand up at all? (Score:2, Insightful)
The problem is with the implementation of patent decision right now. Anything can get a patent nowadays, and trivial one-off patents ('obvious') need to go. The fact that you can retroactively add to patents is also a problem.
I also think that there should be some way to differentiate patents based on t
Working model (Score:3, Insightful)
If anything, this requirement would shift balance towards obvious stuff. Think how hard would it be for anyone to code a mock-up of a "one-click" patent!
Paul B.
Re:Working model (Score:1)
I think that's the point. Patents are designed to protect those people who expend the time, effort and money to develop a proof of concept. They were never intended to grant proprietary rights to someone who simply comes up with an idea and then sits back waiting
Re:Can Patents really stand up at all? (Score:1)
The easy answer: (Score:4, Insightful)
Is it implemented in software?
If so, no patent.
If it implemented in software and hardware?
If so, no patent on the software portion.
Is it implemented entirely in hardware?
Build a working model of it, and submit it. You might get a patent.
Re:The easy answer: (Score:2)
Did I do this while I was a kid?
Can I find something equivalent with a single internet search?
Re:The easy answer: (Score:1, Insightful)
Build a working model of it, and submit it. You might get a patent.
This is too broad. Many pieces of hardware are just "solidified software."
They should only get a patent on the PHYSICAL aspects of that hardware, not what's running inside it, IMO.
Re:The easy answer: (Score:3, Insightful)
Great. Idea.
Re:The easy answer: (Score:2)
Re:The easy answer: (Score:2)
Re:The easy answer: (Score:2)
Re:The easy answer: (Score:2)
Give me data showing a significant percentage of patents are redundant or obvious, or shut up. How well do you do your job? 99% perfect?
Re:The easy answer: (Score:2)
Re:The easy answer: (Score:2)
Re:The easy answer: (Score:2)
So is yours.
How many start-ups couldn't get started, or how much money or jobs lost because of companies that abuse the patent laws for patents that shouldn't exist in the first place. I'll bet anything any one of those amount to more than that 1% you mentioned.
But then again, this is America, land of Corporate freedom.
Re:The easy answer: (Score:2)
Re:The easy answer: (Score:1)
MOD PARENT UP!! (Score:3, Interesting)
All pre-existing hardware and software patents are revoked in 12 months. Anyone holding these patents is free to reapply (i.e. the existing model is screwed and bad patents have been awarded. Need to weed this out)
If it's an IT-related patent, maximum patent length is 3 years.
If patent enforcement creates a court-ruled monopoly situation, patent is revoked.
Patent queries relating to prior art are investigated as a priority. If existence of prior art is established, costs of investigation a
Pat(ent) Answers... (Score:4, Interesting)
Yes, the system should be allowed to be swayed by public opinion, or at least expert opinion: we make requests for comment to academia, for instance, all the time in plenty of areas of government, why not the patent system?
The Patent system was designed to reward innovation and further the public good. It's our way of conferring the 'king's monopoly' to those who do something useful. It's supposed to avoid uncreative people making cheap knock-offs of a good implementation and profiting that way, but, it's supposed to be only for a limited period of time, to encourage additional innovation. Given the speed of our economy, a 3-year patent cycle might be just the thing we need to boost it in the 'right way'.
Other words for obvious might be: trivial, uninteresting, derivative.
Final note: there's no reason why Patents have to be awarded so statically, or that the government couldn't charge a variable fee.
For instance, any product that is protected by patents could be required to pay a 5% patent-surcharge (minimum $1k/yr to keep the patent), instead of a static fee of a few hundred dollars.
Re:Pat(ent) Answers... (Score:1)
An individual who would be called an academic is an individual who would have a vested interested in eliminating all patents and no interest in perpetuating any. They would not be impartial.
They may be "qualified" to comment on government policy or economics, but that's only because that generally amounts to so much hot air. They should have no say on individual patents.
Improvement Number 1. (Score:2)
Make the prior-art search open-sauce:
Once an item is under consideration, put the application up on the 'net, and ANYONE who knows of prior-art can prove such exists BEFORE any granting-of-patent, thereby unscrambling the mix, as it were.
And if that doesn't make the patent-granting-judgement tastier to us all, then nothing will.
This idea itself can't be patented by anyone now, because of prior art, So There, Nyaa Nyaa Nyaa.
: P
PS - this is actually the same idea as opensourcing even the spiciest spa
Gah! How to turn it into the never issuing system (Score:5, Insightful)
Voting won't work because large compnaies can get people to vote for them through PR and links on the site and all sorts of manipulations.
Moderation by outsiders is subject to all kinds of abuse. Even without trolls and people just putting an automatic no on everything.
Most importantly, by putting it up for review to the public, every company's competitors would work their butts off to ensure that patent wasn't granted so they could use the idea themselves.
An acedemic review of sorts could work with a public request for prior art previous to ussuance but how long should the USPTO wait?
The system in place is broken but you would have to re-look at the whole idea of intellectual property in order to create a working system.
This just in (Score:4, Funny)
USPTO begins using Slashcode.
Some of the first patents issued under the new system:
Re:This just in (Score:1)
Just try to reproduce the invention. (Score:5, Insightful)
Hire some qualified practicioners in each field (under strict NDAs). Give them a statement of the problem being solved. If they come up with the same solution within a few days, it's so blatantly obvious that the "inventor" is really trying to patent the problem instead of a solution. While you're at it, start enforcing this:
instead of the mountain of gibberish they've accepted to date, and drop the USD 2500.00 "request for ex parte reexamination" fee they demand for pointing out their own mistakes.
Remember, a patent only promotes progress if the cost of licensing it (plus their share of the USPTO overhead) is less than the cost of every licensee having to independently discover it. Granting monopolies on "inventions" that anyone competent would immediately produce in the ordinary course of their work doesn't benefit anyone productive.
Re:Just try to reproduce the invention. (Score:3, Interesting)
That's a great idea! In fact, they could probably have something similar to the way TopCoder handles the architecture review boards. Basically they have lots of small component designs come in and need people to review them
Re:Just try to reproduce the invention. (Score:1)
Re:Just try to reproduce the invention. (Score:2)
The requirement is just that the description be clear and complete. I've been a developer for eleven years and read RFCs for kicks, yet the few patents I've tried to read didn't make any sense--they completely fail to promote progress. I suspect they're deliberately obtuse, so examiners (who have strict quotas to meet) can't really tell whether the invention is obvious and rubber-stamp them by default.
The USPTO's task is to reject applications for patents on non-novel and obvious inventions, which examiner
Re:Just try to reproduce the invention. (Score:1)
As has been stated in cases in considering such an approach:
Re:Just try to reproduce the invention. (Score:2)
Publishing larger searchable databases of prior art attacks the problem from another direction, but RMS and others have pointed out that prior art the examiner looked at is largely ineffective in a later legal challenge, because courts presume examiners did their job correctly (thoug
But it still addresses most of the big problems (Score:2)
It seems that most of the genuine objections I've seen to USPTO-granted patents fall into fairly precise categories:
Re:Just try to reproduce the invention. (Score:2)
Unfortunately this ignores stupidity factor. Some solutions are just too stupid to be suggested by an expert, and could end up getting patented. There really are patents for multi-time pads out there!
While some may say that this is a good thing (prevents other people from being stupid by taking away the stupid option), it isn't really. Sometimes an overly broad stupid patent may cover a decent idea that the original (stupid) inventor didn't think of. Worse, a patent usually indicates some sort of prog
Re:Just try to reproduce the invention. (Score:2)
RE: Could You Really Do Better than the USPTO? (Score:2)
Until that mindset is changed, we will continue seeing patents for the incredulous, the obvious, the impossible, and the idiotic. Problem is, this is
Re: Could You Really Do Better than the USPTO? (Score:2)
More significantly, examiners don't get any credit towards their quotas for rejections after the first, so if the applicant tries again there's a lot of pressure to accept it.
Re: Could You Really Do Better than the USPTO? (Score:1)
Actually, that's true. But only for genuine patentable ideas. It needs to be novel, non-obvious to the practitioner in the field, have a prototype, etc. And shorten the patent terms.
Patents were supposed to help the little guy. Let him get his unique product out on the market before megacorp steals his idea and grinds him into the dust with economy-of-scale. But with the rubber stamp mentality of the
Lets just save some money. (Score:2)
If we give the monkeys actual ink to stamp with or let them use their fecal matter is of little concern to me. I think the fecal matter would just drive the point home a bit better though.
simple solution (Score:2)
Re:simple solution (Score:1)
economic ignorance (Score:2)
Re:economic ignorance (Score:2)
That, however, is a problem with the implementation of patents in the US, and not with the principle of patents per se.
As far as I'm aware, no other country in the world suffers anything like the same problems with patents at the US does. Having worked in industries where patents are relevant and genuine R&D does result in genuine new developments, I thi
Not yet (Score:2)
Patents will have to go when people invent something that allows things to be invented o
A patentable idea should require resources to make (Score:2)
Patents exist in order to encourage inventors and labs to expend the resources to come up with inventions. They are encouraged by having exclusivity over their idea for a limited time. This incentive provides the "activation energy" for inventions that would probably otherwise not come to be, and it is pretty hard to argue against. Pharmaceutical companies, chemical engineering c
Re:A patentable idea should require resources to m (Score:1)
the fact that i have expended a large amount of my own time and resources in this endeavor leaves me little choice.
cake anyo
Re:A patentable idea should require resources to m (Score:1)
(a) define the level of expenditure which merit a patent? Would it be the same for all patent classes? Would it change over time? If so, how would you do this?
(b) by setting a level you encourage inefficiency or at least purported inefficiency. That is, instead of thinking up something in the shower, the inventor goes to great lengths to 'prove' all the effort they went to to develop the invention. Sure, audits mitigate this b
Re:A patentable idea should require resources to m (Score:2)
> Hardly seems fair that we would encourage the inefficient dumb thinking X's of the world and not encourage the insightful,
> question
Re:A patentable idea should require resources to m (Score:2)
This is exactly the point that nearly everyone misses. No company would spend a billion dollars researching an idea if they had no way of protecting that idea until they had had time to recoup their research money (and make some profit from it). It just wouldn't happen. The patent system allows this research to be worthwhile in the eyes of shareholders.
The patent system needs to be policed better, but without it private sector
Re:Public Voting and Software Patents (Score:2)
I disagree. SCOTUS clearly spelled out that software was not patentable in a handful of cases, which they reaffirmed in the 1981 Diamond v. Diehr ruling. It's the USPTO that then started granting software patents left and right because they couldn't be bothered to actual
Radical.. but.. removing patents? (Score:1)
Since the world is becoming one big economy and unit having separate patent in multiple country is like having no patent at all! So perhaps we could live without patents at all, and who ever can market the be
Countries without patents (Score:2)
I question, quite sincerely, how many of those countries develop significant numbers of new inventions compared to countries that have parents. My (limited) experience is that most of the new tools, technologies and similar developments in such countries are copied from essentially the same things in other patent-offering countries, where the original research to develop them was done.
Re:Radical.. but.. removing patents? (Score:1)
The amount of time granted is the problem (Score:1)
The US patent office is clearly negligent, they award obvious patents which they arent supposed to do, if the US government (their boss) lets them keep doing the wrong thing then why will they ever change ?
The biggest objection i have to Patents is the amount of time that "inventors" get granted monoply use of "their" idea.
A better system
Re:The amount of time granted is the problem (Score:2)
I'm not sure it's quite as simple as that -- probably the effort required to implement the invention would also be relevant, for example -- but I think the idea of granting varying degrees of exclusivity has a lot of merit.
Kinda drastic... (Score:3, Funny)
Applications are initially confidential (Score:1)
But why? (Score:2)
I realise that what you say is currently the case, but I'm not sure it's a good idea to limit investigations as a result. After all, if you apply for a patent and it's turned down, chances are the confidentiality wasn't protecting much anyway.
Preliminary Patent (Score:3, Insightful)
Seems to me that the biggest problems are:
1. Examiners generally look only at prior art that has moved through the patent office, and do not have general knowledge of a field. So if prior art exists that is unpatented, even in very common use, the examiner may not know it.
2. Once a patent is granted, even one for which there is ample identical prior art that the examiner missed, "infringing" on the patent and having the courts decide is a horror show.
My suggestion is that a patent first be granted and published with some period for the public to comment to the examiner, say, 90 days. This would give people knowledgable in the field of the patent time to point out prior art that the examiner missed. After the comment period, the examiner has another 90 days or so to finalize (or reject) the patent, giving it all the same protection that patents currently have.
This system would probably prevent a ton of bad patents.
Re:Preliminary Patent (Score:2)
The biggest beef I have is that patents are used as tollbooths on non-existent tollroads. That is, the principal way the system is abused is that people think up something they think could potentially be useful, try to patent it, and hope someone comes up with a working model so that the patent holder can use his monopoly to financial advantage. This occurs because most patents are granted to people who never intend to create a working mode
How to tell if it's obvious... (Score:2)
Personally, I think the USPTO should:
elected patent officers (Score:1)
Unfortunately you'd probably end up with a group of people put in place by the microsofts of the world...
Some battles are best not fought at all (Score:2)
Then, if/when someone want to sue another for infringement, let the court sort it out. The big point is that the court will NOT assume that just because the USPTO has stamped some d
A good basis, but needs further development. (Score:2)
The problem with that scheme is proving, obviousness and prior art after the event.
My suggestion:
Suggested alternative to "non-obviousness" (Score:1)
Under this approach, in addition to novelty (ie. has this product/process been done before), etc., in order to fulfil the requirement for non-obviousness the patentee would be required to:
For one... (Score:2)
Also, I think that granted patents should have a 1-year "probation"; if someone discovers prior-art, the patent gets disqualified quickly and effectively - none of that going to courts crap.
Failing that "probation period", I think that the actual examiners should be held directly accountable if an "obvious" patent is issued, especi
Re:For one... (Score:2)
So who decides if something is prior art?
Disclosure (Score:1)
Simply disclose the patent in some way. Either to the public, or to your patent attorney. Or file a "preliminary" patent (forget the exact term) and then let it lapse.
You've just established prior art, and no one else can patent it.
The problem is that others will take your general idea and patent a specific application. So try to include as many specific applications as you can in your discl
Patents vs. antitrust (Score:2)
From a public-policy perspective, pat
Ideas are not patenable (Score:1)
USPTO should return to accepting patent according to the law - no need for voting or public hearing.
Preview system (Score:2, Insightful)
Offer a 'temporary' patent about a month, during which time people could view the patient but not act on any of the information. People could submit problems or conflicts during this time. At the end of the period, the USPTO reviews the information prior to granting the patent.
Yes, I know this is all supposed to be taken care of before hand, but judging by the number of reviews of granted patents, it obviously isn't h
Re:Preview system (Score:2)
Simple, Make 'em pay (Score:1)
have anyone who is issued a patent that is overturned or has prior art pay back twice the royalties they earned. Also make it free to challenge a patent or a very small reasonable fee like $50.
This should grossly reduce the stupid profit only patents.
Re:Simple, Make 'em pay (Score:1)
time duration (Score:1)
this does not have to be a explicit duration, it could be made to expire when the r&d costs are recouped by the product's sales. this involves auditing but a decision to invoke patents should share this responsibility of supervision.
i think
Patents are of unproven net benefit. (Score:1)
Incidentally, I have si
So true (Score:1)