The only rational thing for someone who actually makes stuff to do is to not read any patents, ever, as a matter of general policy.
This might not be the socially responsible answer; we should all be fighting the patent madness in our industry. It is, however, the most logical course of action. It puts the lie to the whole "promote the Progress of Science and useful Arts" thing, but that's where we are.
Not quite. First, in cases of willful infringement, the judge can --- but need not --- award up to treble damages. Second, a patent owner seeking to prove that infringement was willful must show, among other things, either:
(1) that the accused infringer knew, not just of the existence of the patent, but of an objectively high likelihood of infringement of a valid patent;
OR
(2) that this objectively defined risk was so obvious that the accused infringer should have known it.
If the accused infringer puts on a reasonable defense, it often negates the "objectively high likelihood" element.
See generally http://www.jdsupra.com/legalnews/standard-clarified-for-will...
NB: Issued patents are presumed valid until proven otherwise --- and according to the Supreme Court, that proof must be not merely by a preponderance of the evidence, but by clear and convincing evidence. That was the Supreme Court's holding in last year's Microsoft v. i4i opinion; see http://www.patentlyo.com/patent/2011/06/microsoft-v-i4i-supr...
I don't think that you should optimize for the case where you've actually lost a patent suit. First of all, that's a pretty rare case. But more importantly, it's cowardice. It's the moral equivalent, in my mind, of carefully crossing to the other side of the street when you see the neighborhood bully approach. Yeah, it's "the most logical course of action," but the better course of action is to get your own gang together and shut them the f* down!
I believe the site isn't so much intended for people trying to find out whether or not their idea is patented as it is for the USPTO to easily find prior art before granting patents.
[edited to scope it to software]
That's what the legal advisers (who recommend this strategy) are for. You bring them a concept or prototype, they do clearance/patentability checks and make a recommendation -- not only in whether to proceed, but potentially including advice on how to proceed in the most legally advantageous manner.
(Your specific invention may be patentable even when generalized to cover additional uses -- indeed much of the value of good patent counsel comes from their ability to get you the most-broad patent possible.)
The advice you give is like an urban myth. It's passed around for many years.
It assumes there's no alternative but to infringe, so you might as well minimize your potential losses.
Maybe it's better to read patents, design around them and not infringe. That seems like the most rational course of action.
Are treble damages automatic? Or are they are discretionary?
Huge numbers of government employees would love to, and regularly do, suggest ways of improving efficiency and outcome, only to be told "it is illegal to be efficient". I've seen it happen over an over.
I hope folks here will take time to read this new site from time to time and raise any particularly problematic patent applications to their circles. There's the risk of reading a patent and then potentially being made liable for trebled damages, but hopefully any ridiculous patents will get filtered out by this system, reducing the risk of violation in the first place.
I see a two-tier system emerging: a group of "frontline" patent reviewers reading AskPatents regularly, and a wider group of people interested in patents within an industry. If only the really problematic patents are brought to the attention of the wider group, they won't have to worry so much about liability for trebled damages. The "frontline" people reading new submissions on AskPatents and trumpeting out the basket cases - they'll be the ones taking on the trebled-damages risk. I hope there'll be some among us who can play this role. (It'll probably end up being interested hobbyists or the patent-hunting departments of large corporations.)
edit: I wonder if there's any mechanism for discussion of approved patents? This might provide the seed material for patent reexamination, which in turn allows for patent invalidation. If people review approved patents and start offering prior art for some, any patent trolls intending to wield those patents might start having second thoughts, because it'll look like those patents are on shaky legal ground. This way, even after being granted, questionable patents could still be cast into doubt. Maybe I'm overoptimistic, but how far could Spolsky/the PTO push this?
edit2: Someone correct me if I'm wrong, but it looks like there's no "patent application stream" on AskPatents, so it's basically a bog-standard discussion board for patents right now. It might be more handy if it had an integrated feed from the patent application database (no need for an API, even an RSS feed would work).
If you read an application, then you know the invention exists
If the application is rejected – it implies the invention is not novel. Whereas if it is granted, it implies the invention is novel.
Either way, you should not be seeking a patent on that particular invention — because you know that you're not the first to invent.
> But you can still ask for or post prior art and potentially make a difference.
> Even though you can't just submit that for free on a granted patent, you make it a bit easier for the folks that do have skin in the game by sharing what you have on the problematic patent(s). That way, if someone is sued for infringing, they'll be armed with what they need to defend themselves.
However as it stands what this actually means is that finding prior art is an externality of submitting a patent claim. The cost of stopping a dubious patent from causing damage is borne by the victims, rather than the instigator. If these crowdsourcing schemes are successful, the next step should be to make filers of such patents pay a fee to those who found the prior art.
Until that happens, we actually expect that companies in patent-happy industries will monitor filings by their competitors and spend some of their own money and resources blocking competitors from building bad patent portfolios (there was enough of this on Peer To Patent, a very small-scale experiment, to give me confidence that it will happen)
a.) low-cost
b.) high potential for busting garbage patents
c.) low potential for abuse/trolling/making-things-worse
With respect to (c), the most obvious attack vector for Myhrvoldian corporo-fascists would be DOS/dilution-via-huge-numbers-of-paid-shills. But I think that's why Stack Overflow's backing is exciting; they are Internet-scale.
I have some hope that this is a good step towards fixing things. Hopefully that statement sounds cautiously optimistic enough.
http://patents.stackexchange.com/questions/197/prior-art-for...
http://patents.stackexchange.com/questions/133/prior-art-for...
1) An additional "this patent is so bad the applicant deserves to be slapped," and a meaningful penalty for submitting atrocious patents (scaled to be meaningful based on who is submitting it).
2) Some compensation for those who are doing a good job providing prior art. This doesn't have to be financial - improving professional reputation would probably be enough, but that's not really going to happen if it's relatively few people on the site. Could we come up with a way of increasing the exposure of contributers (when they want it)?
http://pyvideo.org/video/425/pycon-2011--how-to-kill-a-patent-with-python
Part I (5 mins): The USPTO as a data source.* The full-text of each patent is available from the USPTO (and now from Google.) What does this data look like? How can it be harvested and normalized to create data structures that we can work with?
Part II (15 mins, in two parts):* Once the patents have been cleaned and normalized, they can be turned into data structures that we can use to evaluate their relationship to other documents. This is done in two ways - by modeling each patent as a document vector and a graph node.
Part IIA (7 mins): Patents as document vectors.* Once we have a patent as a data structure, we can treat the patent as a vector in an n-dimensional space. In moving from a document into a vector space, we will touch on normalization, stemming, TF/IDF, Latent Semantic Indexing (LSI) and Latent Dirichlet Allocation (LDA).
Part IIB (7 mins): Patents as technology graphs.* This will show building graph structures using the connections between patents - both the built-in connections in the patents themselves as well as the connections discovered while working with the patents as vectors. We apply some social network analysis to partition the patent graph and find other documents in the same technology space.
Part III (5 mins): What have we built?* Now that we have done all this analysis, we can see some interesting things about the patent database as a whole. How does the patent database act as a map to the world of technology? And how has this helped with the original problem - finding better prior art?One idea-- it would be awesome if I could set up an account with a list of topics I have experience in (maybe just pulled from linkedin?), and be automatically notified when an application relevant to my knowledge is submitted.
I bet there would be thousands of people happy to chime in once a week / month when a patent in a specific field they have experience in was submitted. It would be a great way to build up a base of expert knowledge without requiring people to be constantly polling the site.
- When you're submitting a patent application you are required to have done a prior art search and list found prior art.
- law firms providing patent services often outsource prior art searches (more and more also to India etc)
- companies attacked with "Jules Verne patents" or overly broad patents often pay large amounts to find most relevant prior art
Suggestions:
(1) alloy users to put up bounties for finding prior art on existing / pending patents or for technology areas. I believe bounties should be starting with about $5K up to $100k+
(2) pay out those bounties based on a particular formula - e.g. when usable results top 5/ best answers get shares of the bounty pool - e.g. best answer 35%, 2nd 20%, 3rd 15%, 4th 10%, 5th 10%, 6th 10%
(3) Similar to bounties this could also be done via a sponsoring system
What effect do you think this would have on small inventors?
1) Should there be a penalty for people who file patents that obviously have a ton of prior art to incentivize people not to do this or to do more research?
2) Should there be a reward for people who discover prior art invalidating patent applications/ claims? The reward could come from a) people who are using the idea without holding the patent and thus don't want to get sued over the patent and are benefiting from the research, and b) the frivolous filers from 1).
Last week it was "Cross Validated" - their version of stack overflow but entirely for stats.
Sure, the existence of the post could prove you thought of it first, but that doesn't prove that the idea was stolen from there nor does it pay for a lawyer...
> In other words, as of September 16, the USPTO is required to accept submissions from the public of prior art.
This is for third parties to weigh in on the patentability of an idea, not for the person filing the patent.
Once filed, patents are up for discussion.
There's not a huge cost to having this tag, either.
It will be interesting to see how much of the activity ends up being useful.
As it is now, simply paying off one troll because you validate a password or a license in you app is no guarantee whatsoever that another won't show up next week to troll you on the exact same feature.
Right after the patent examinator decides the claim is novel it should test whether it is overly broad. For this, simply testing if the claim covers more than one implementation should save a lot of grief. If the software algorithm is described in pseudocode: rejected, in C: approved. This would allow for clean-room reverse-engineering (the claim uses C, we used java), something held as legal for ages in the non software patent world.
And before somebody argues this would make pretty much all software patents worthless: you are correct. Software should not be protected by patents since it is already protected by copyright law.
Given that it has to happen some time, let's start right now.
I really wonder how it's supposed to work with the amount of patents granted nowadays. Say you come up with a new product, can you really be expected to go and read all pending patents in existence to verify you're not infringing? It's practically impossible, so I suppose it's mostly fingers crossed that you won't get sued.
I'm serious. This is a horrible idea. It's simply a way to get you to forge your own new set of chains.
This at least brings attention to the issue, and has the support of Google (and, I bet, other tech companies large and small in the coming days) and the USPTO. Before today, would you have expected so large a community as SE to create a website specifically dedicated to reviewing patents, of all things? The scale of this site and its supporters should show that this is a growing issue, and it's only going to garner more attention through Ask Patents.
One big advantage a site like Ask Patents gives us is the ability to quote numbers and statistics. Consider an argument like this being presented to Congress. 75% of the 500,000 patent filings in 2013 were found by Ask Patents to contain claims on prior art, and were rejected by the USPTO. Each of these cost an examiner two work days to review the application, prior art submissions, and process the rejection. That adds up to <insert math here>, or a whole lot of money! Clearly we need to enforce fees on rejected patents to cut down on government spending.
I wholeheartedly support this idea and would love to see it take off.
I bet if an examiner posted each patent application during review, within 24 hours prior art would be posted for each one, most especially software patents.
Maybe we can get congress to pass a law - ha, nevermind what am I even thinking...
> "Maybe we can get congress to pass a law, nevermind what am I even thinking."
"a tiny provision in the America Invents Act, the “Patent Reform Act” which, on the face of it, appears to have done absolutely nothing to solve this problem, but if you look closely, there’s a tiny provision in there, which says:
“Any person at any time may cite to the Office in writing prior art consisting of patents or printed publications which that person believes to have a bearing on the patentability of any claim of a particular patent…”
In other words, as of September 16, the USPTO is required to accept submissions from the public of prior art."
The PTO approached SE and asked them to do this as part of their efforts to reform the patent system without waiting for Congress to get around to it.
I bet if an examiner posted each patent application during review, within 24 hours prior art would be posted for each one, most especially software patents.
They already do this; indeed, they are required to do so by law, and indeed, public posting of each patent application is a fundamental part of the patent process. Not many people actually bother to post prior art.