Cleaning up the patent system
An interesting article on dubious patents ("Owning the Future: Patent Pollution", by Seth Shulman) appears in the July/August 2001 issue of Technology Review Magazine.
Shulman points out, "as almost anyone in the intellectual-property game will tell you, the U.S. Patent and Trademark Office continues to grant patents that are, well, patently invalid. I'm talking about patents for things that have either already been invented or are so straightforward and apparent they don't meet the patent's law requirements for being novel and nonobvious."
He continues, "For years, people have griped about these bogus patent claims . . . And the patent office has long promised to do better. But now two Web-based ventures, IP.com and BountyQuest, are taking their own steps to rein in bad patentsóeither by stopping them before they are granted or by knocking them out after the fact. What makes these startups really interesting is that they are attracting support across a broad spectrum of intellectual-property players — from patent system boosters to open-source programmers. In the polarized IP field, that is no small feat."
IP.com is a partner with Foresight in the PriorArt.org project, a joint venture that gives open-source and free-software developers the chance to 'defensively publish', and place their innovations in a searchable software database.
June 26th, 2001 at 9:19 AM
PriorArt is a good start, but…
I've worked with Chris Pheonix on getting some intellectual property put into PriorArt.Org (with Chris doing most of the work I might add), but it is still an incomplete solution. The fundamental problem is that the courts presume that the patent examiner is competent, even when they obviously are not. If an incompetent patent examiner reads a disclosure on PriorArt, there is an excellent chance that they will not understand it, and issue a bogus patent anyhow. Indeed, since the courts presume that the patent examiner is competent, it will be presumed that the material in PriorArt is not Prior Art, and its importance will be reduced in future litigation. Obviously, this is not the intent.
What is needed is a public disclosure period between the time that the patent examiner claims that the patent is valid but before the patent actually issues. This would allow the public to read the patent and bring up additional prior art and perhaps get the patent thrown out before it is issued. My understanding is that Europe already has such a process. Until then, the patent office is going to keep issuing huge numbers of bogus patents.