USPTO likely to adopt 'peer-to-patent' (Feb 2010)

http://www.sdtimes.com/content/article.aspx?ArticleID=34113&page=1&utm_source=Peer+To+Patent+Email+Announcements&utm_campaign=2090490afa-Email_Announcement_10_11_10&utm_medium=email

by chaostheory • 16 years ago

47 44 16 years ago

sdtimes.com

tptacek5• 16 years ago

Isn't there some legal strategy reason why challenging patents is a bad idea? Like, the due process involved is minimal, and having survived a challenge, the facts behind the challenge strengthen the patent in court?

I bring this up because I remember this being one of the big complaints about the current patent system, and "peer-to-patent" would appear to make that even worse.

dctoedt2• 16 years ago

> Isn't there some legal strategy reason why challenging patents is a bad idea? Like, the due process involved is minimal, and having survived a challenge, the facts behind the challenge strengthen the patent in court?

At the margin that's indeed a concern.

Many patent attorneys think, however, that --

A) On average you're likely to get a better take on patentability from an examiner, who has at least some background in the technology and who doesn't have a presumption of validity to overcome;

B) Suppose you have prior art that you think invalidates the claims of a patent application, but you withhold it from the patent applicant in hopes of using it later on as a defense in infringement litigation. The patent owner's trial counsel is likely to argue to the jury that your actions then speak louder than your words now. "If the prior art was so great," counsel will argue, "why didn't they give it to the patent applicant to be forwarded to the patent examiner? They're just trying to pull the wool over your eyes, and making you do extra work evaluating this supposedly-great prior art reference, when they could have saved you the trouble by having the examiner look at it in the first place."

tptacek5• 16 years ago

Does the latter argument actually work in court? Is it the expectation of courts that people will continually monitor patent applications looking for things to invalidate?

prodigal_erik• 16 years ago

The way I've heard it, patent examiners must meet high quotas. Rejecting too many applications and fighting the inevitable appeals (which isn't counted equally as useful work for some reason, possibly because it doesn't bring USPTO very much revenue) can cost them their jobs, while there are basically no consequences (at least not for themselves or USPTO) for rubber-stamping applications that should rightfully be rejected. If your prior art can only be seriously considered one time, that's not who you want doing it, however qualified they might be.

chaostheory2• 16 years ago

There is if I remember correctly: if the entity applying for a patent places his patent on peer to patent for public review and it passes, I think the process for acquiring the patent will be much faster vs going the traditional route

IANAL

akeefer• 16 years ago

My understanding is that there are a few reasons why it can be a bad idea. First of all, prior art seems to be taken more seriously during the re-examinations that happen during lawsuits. If the prior art is presented beforehand and the patent is granted anyway, then that avenue is closed off. In addition, it gives the patent filer more of a chance to tweak their patent to try to work around the prior art and re-file it (often several times) until it gets granted. So you want to only present prior art during the phase of examination during which it's taken the most seriously and when the patent filer doesn't have an opportunity to game the process by refiling over and over again, which usually means waiting until it comes to trial.

Secondly, patent attorneys don't like their clients doing any sort of search of/reading of any patents that could potentially affect their work. If you're found to have knowingly violated a patent, the damages are far greater than if you did it unknowingly. Submitting prior art to try to get a patent thrown out before it's granted would necessarily require researching and reading up on those very patents, so if the patent didn't get thrown out and you were eventually sued for infringing it, you'd be in much, much bigger trouble. Presumably the people who have the incentive and knowledge to bring up that prior art are likely to be involved in the same segment of the industry, which puts them in an awkward position: do you try to get the patent thrown out ahead of time, and be in serious trouble if you fail, or do you hope you don't end up at trial but keep the prior art in your back pocket in case you do?

Perhaps big companies could have a dedicated legal arm to research and challenge such patents at arms-length from their developers and/or keep their developers aware of potential minefields, but for smaller companies you'd be better off avoiding patent searches or research altogether.

That's fairly paradoxical given that patents are supposed to further innovation by giving people an incentive to disclose their inventions, but that's what the software patenting world has come to . . .

tkeller• 16 years ago

... eight months ago.

IgorPartola5• 16 years ago

Once again, prior art has nothing to do with it. Software patents are as ridiculous as patents on different colors of shoe laces. Software algorithms are mathematical expressions. I don't need to show prior art to prove that having a patent on 46,456,456 + 235,566 = 46,692,022 is meaningless even if nobody has done that particular calculation before me.

JabavuAdams6• 16 years ago

> Software algorithms are mathematical expressions. I don't need to show prior art to prove that having a patent on 46,456,456 + 235,566 = 46,692,022 is meaningless even if nobody has done that particular calculation before me.

Straw-man argument by over-generalization.

A better analogy would be that software systems are machines that can be fully specified in some formal system.

But then, so are physical machines, for most useful levels of abstraction.

The distinction is simply not as clear-cut as you're making it. If a software system can simulate a physical system, should there be a difference in patentability?

If you're speaking narrowly of individual algorithms, then perhaps you have an argument, but what's important is how you pull all the various algorithms you need together.

JabavuAdams6• 16 years ago

I realize that combinations of algorithms are still algorithms, but where do you stop?

The main problem with software patents for me are that

1) They stifle innovation by killing small projects or forcing innovators to not care about infringing (for which they can be sued later).

2) A lot of them are BS. There may be not prior art in the patent database, but for a specialist in the field, they're obvious.

3) It costs too much to patent, which puts too much power in large companies' hands. They can spam the USPTO with brain farts, with some non-zero probability of having them approved. If I save for a year, I can make one patent application per year.

IgorPartola5• 16 years ago

According to Donald Knuth[1]:

"[To a computer scientist] every algorithm is as mathematical as anything could be... An algorithm is an abstract concept unrelated to physical laws of the universe."

[1]http://www.pluto.it/files/meeting1999/atti/no-patents/brevet...

tptacek5• 16 years ago

So if I invent, say, a genuinely novel new form of public key exchange, or a new psychoacoustic model that drastically improves audio compression, or a novel forward error correction scheme --- these things shouldn't be patentable, but a new kind of bicycle kickstand should be?

chaostheory2• 16 years ago

Won't copyright and trade secrets offer enough protection?

alextgordon• 16 years ago

In my opinion, that's exactly how it should be. Patents do not exist to serve corporations, developers, inventors or investors. They exist to foster innovation so that the public can reap the benefits.

Can you invent, market and sell a new type of bicycle stand without patents? No. The concept will be copied as soon as it hits the market.

Can you invent, market and sell a new type of algorithm without patents? Arguably yes. Startups do it all the time. A patent is neither necessary nor sufficient for success in this case. In fact, it seems that on balance, patents are far more harmful than they are good to legitimate software companies.

nkassis• 16 years ago

I'm no fan of software patents but comparing a simple arithmetic operation to an algorithm is a bad way to argue about software patents. Algorithms are a higher level of abstraction that can be quite complex in the end. And they are rarely the unique way to do something. It can even be almost impossible that an algorithm is really the best choice in your case.

Do I think software patents (or any patents) make sense? No, but I won't call software algorithms simple mathematical expressions similar to adding 1+1.

JabavuAdams6• 16 years ago

Questions:

1) How would you classify a non-reprogrammable hardware device that performs a computation?

2) Would it matter to your classification if it was programmed through the simple arrangement of wires, rather than some source code?

3) How is an arrangement of levers that performs a computation different? Would you argue that a specific physical machine capable of performing a computation is patentable, while the algorithm itself is not?

3b) Since computers are a form of universal machine, if the answer to (3) is yes, then what constitutes the specific physical machine, where the machine is specified in software?

4) Finally, would you simply argue that nothing should be patentable, in which case splitting hairs is irrelevant?

IgorPartola5• 16 years ago

If you build a physical calculator that can add 2 and 2 in a novel way, you get a patent for the way you've built the machine. By the same token if Intel figures out how to build a quantum CPU they get a patent. You don't get a patent for 2 + 2 = 4, and Intel cannot patent the quantum mechanics formulas, just the blueprints of their device. As for (4), patents serve a purpose in some industries, etc.

JabavuAdams6• 16 years ago

I finally realized the other day what I think is the core miscommunication between the pro-patent and anti-patent camps.

Patents stifle innovation when capital costs are low to 0.

If I can build something fun (and potentially commercializable) for $50 dollars + my time, then there's no way I'm going to spend multiple (ten) thousands of dollars to license someone's patent. The innovation dies right there.

Yeah, these monopolies make sense if I have to set up a plant, or do years of research, but that's not true in software anymore.

There's another factor at work. Creative types can't help but make things. They don't necessarily need a financial incentive to make stuff, nor would they want to get bogged down in those details. They make stuff because it's fun to do, and they have some (un)reasonable expectation of commercializing some projects.

Great engineers make stuff even when no one is paying them. They can't help it.

zacharypinter• 16 years ago

That's a very interesting point.

It'd be fun to think about how one could architect a patent system where the duration and scope of a patent is based on the capital costs that went into developing it as well as the capital costs required for a clean room implementation (still seems silly that a patent can affect somebody else from coming up with the same idea independently).

brlewis2• 16 years ago

Exactly. Incentives are what the patent system is all about. More on this here: http://news.ycombinator.com/item?id=1724264

kiba3• 16 years ago

Wrong. It was the official justification when the patent system was established in the United States.

People have discussed if natural rights applied to patent rights. Some argued not so, and some thought so. This has been going on since the age of enlightenment.

kiba3• 16 years ago

My reading of economic history, thus far, has suggested that patents cannot be justified. Even steam engine patents could not stand the test of empirical evidence.

I cannot yield to your economic reasoning, as I already reject it.

I will be happy though, to read more economic history and dig into it more, as soon it somehow fit into my budget and time.

SkyMarshal3• 16 years ago

C'mon man throw us a bone here. What exactly did 'your reading of economic history' teach you? Why can't patents, even the steam engine one, be justified? What test of empirical evidence? Why do you already reject his reasoning? Why do you need to read and dig more if you're already decided on the issue?

tbrownaw• 16 years ago

In theory they should make sense if

    * copycats would have significantly lower costs without
      any offsetting disadvantages, and
    * what's being patented would not be independently
      re-discovered before the patent's expiration

In practice neither happens: copycats tend to be comparatively incompetent, and simultaneous inventions is more the rule than the exception.

I think the core disconnect is whether those two points are taken as true or false: you get the imagery of some lone heroic inventor being always crushed by some conglomerate that patents could save him from; a more accurate version would be a bunch of small businesses that keep doing cool things at more-or-less the same time which the conglomerates pick up on after a year or two, and nobody has the concept of going broke on legal fees arguing over who's allowed to do what.

> Yeah, these monopolies make sense if I have to set up a plant, or do years of research, but that's not true in software anymore.

The hard part of software is figuring out what to do, reimplementing a program is easy (thus the prevalence of programs that are "clones" of other programs). If patents actually worked, I think software would probably be a nearly-ideal example.

cybernytrix• 16 years ago

Quick! file an app for 'peer-to-patent' and we'll be riiiiich!

alok-g• 16 years ago

There are three requirements on an invention to be patentable -- It "must be new, non-obvious, and useful". All three clauses are important there.

The proposal handles the "new" part only, and as IgorPartola suggests, it has issues. IgorPartola's argument "prior art has nothing to do with it" is still incorrect though since the "new" is still important. If the "new" part has difficulties, they can be more readily handled via litigation, provided both parties are given balanced opportunity to litigate (http://www.readwriteweb.com/archives/eff_apache_software_fou...)

A lot more difficult is to judge the "non-obvious" part. Many patents that should not have been issued fall in this category and would remain hard to handle even with litigation.

Anyone has ideas on how to handle non-obvious part?

SkyMarshal3• 16 years ago

I wrote the following as part of an email to the USPTO when it was requesting comments for Bilski Guidance a few weeks ago. I threw it together on the last day so it's not entirely well thought out, but I'm curious what's the HN take on the general idea of such a framework like this:

"One framework for thinking about software patents is the Edison Criteria - inspiration vs perspiration. Thomas Edison said:

'None of my inventions came by accident. I see a worthwhile need to be met and I make trial after trial until it comes. What it boils down to is one per cent inspiration and ninety-nine per cent perspiration.'

This statement illuminates the fact that there are several domains under which inventions can be categorized:

1. Easy/inexpensive to derive, and easy/inexpensive to implement or produce (ex: Amazon 1-click check out)

2. Easy/inexpensive to derive, and difficult/costly to implement or produce (Google Search)

3. Difficult/costly to derive, easy/inexpensive to implement or produce (pharmaceuticals)

4. Difficult/costly to derive, difficult/costly to implement or produce (Saturn V rocket, Large Hadron Collider)

Easy and difficult are, of course, relative values, and there are certainly grey areas in between, not every invention or innovation falls neatly within one of these criteria. However, if the objective of the patent system is to promote the progress of science and useful arts, then I suggest the PTO allow patents only for #3 and #4, but not for #1 and #2."

The idea is that #1 is obvious and easy - others would likely come up with the idea independently and implement it, creating competition, improvement, and falling prices. Patenting inventions in this area would hence harm progress in the 'useful arts'.

#2 has a natural moat (cost of implementation) and hence does not need additional protection from patents, and may fail the obviousness test anyway.

#3 is costly to derive and has no natural moat (as demonstrated by the generic drug industry) and hence needs additional patent protection to preserve the incentive to make the large investments required for progress in this domain.

#4 is both costly and has a natural moat, and I'm not entirely sure how patents should apply here, but it's not relevant to issue of software patents and Bilski.

What do you guys think of categorizing inventions/knowledge like this for purposes of deciding what can be patented or not?

Vivtek3• 16 years ago

If it's difficult to derive and produce, you're not likely to need patent protection. Patenting a large hadron collider would be money and thought wasted - it's a unique undertaking and people will come to you to use it anyway.

The bleeping 1-click patent, though, God, it's enough to make my head explode if I think too much about that being patented. An utter perversion of the original intent of the patent system.

SkyMarshal3• 16 years ago

Yeah, Amazon 1-click was the public start of the insanity. Peer-to-Patent formalization just can't come fast enough, it's a great idea.

And under this framework, difficult to derive implies a need for patent protection, in order to prevent one entity from piggybacking off the derivation work and investment of another. But difficult to implement implies a lack of need for patent protection due to an implementation moat/barrier. Combine the two, and it gets into gray areas.

I used the LHC as an extreme example, but I can imagine other less extreme examples of #4 where the patentability is not so clear. Say, quantum processors - lots of time and research is going into deriving them, and they certainly won't be easy or cheap to produce, but the payoff may mitigate the implementation/production cost and be particularly attractive to some company looking to piggyback off the derivation work/expense of another.

USPTO likely to adopt 'peer-to-patent' (Feb 2010)

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