[jasonkester]

Pure Awesome. Shame there's not a way to do the same thing to existing software patents. There are plenty (~40k/year according to the article) of bad, obvious nonsense patents already out there. It'd be nice if there were a simple process to appeal and invalidate them with similar demonstrations of prior art and obviousness.

I'm definitely looking forward to seeing some Wikipedia-level-OCD focused on this site to stop the roughly 100% of bad applications for new software patents dead in their tracks. Imagine a 2014 where zero new software patents were issued.

EDIT: Incidentally, patentlyobvious.com is just a parked domain at the moment. It seems like the obvious choice for a place to host a site like this.

[silvestrov]

One thing missing in the patent system is that the patent seeker should pay a "fee" of $1000 if it is patentlyobvious that prior art exists.

That would enable "Amazon Mechanical Turk"-style killing of most patents with prior art.

[geoka9]

And the person who found prior art should get a cut of that fee. Crowdsourcing at its best.

[freyr]

And then every patent would receive a deluge of obfuscated examples of prior art.

And the patent office would become even less effective. Perhaps a good thing, unless you believe some things actually should be patentable.

[zanny]

Can you give an example of a patent being helpful in producing innovation and prosperity in the last 20 years?

IE, a patent that was an original idea, someone else tried to duplicate in a blatantly rip-off way before the patent expired, and the ensuing lawsuit lets the patent creator (who has their patent to-market in a useful state) take the copycat off the market?

[freyr]

You're assuming that patents promote innovation once they're defended in court.

Another argument would be that they promote innovation by (1) preventing blatant rip offs in the first place, (2) incentivizing individual inventors who invest their time and money with the assurance that their efforts won't be blatantly ripped off in the end by someone with more resources.

There are countless examples of truly innovative patents filed by individuals who devoted their lives to creating new things. Some of the inventors profited directly from their patents, others spent their life savings in court trying to defend their patents.

There are also countless patents for idiotic ideas, and countless idiotic patents that shouldn't have been filed in the first place. But saying all patents are bad might be throwing out the baby with the bathwater.

[DevX101]

The pharmaceutical and biotech industry would be almost non-existent without intellectual property protection.

[busyant]

Absolutely correct. I used to work in this industry, and one of the 1st questions asked when we were thinking about testing a drug to treat a disease was "Does someone else 'own' this drug or do we?"

If someone else 'owned' the drug, then there was no point in pursuing it because the true "owner" would crush us if the drug ultimately proved useful in treating disease.

Interestingly, the people writing the drug patents use the same types of techniques mentioned by Joel...especially making claims as broad as possible.

The chemists that I worked with considered it an art form to be able to make broad claims that did not intersect with those of competing pharma companies.

There's a lot of bullshit that can go on w/ pharma patents, too, but the VCs would never fund a biotech startup if we couldn't defend "our" drugs.

[zanny]

I don't necessarily call that a good thing. It isn't a black and white pro that a business gets monopoly rights to distribute new drugs for 2 decades, even if most new drug research is funded for that profit.

[Guvante]

You would have to make the penalty too high for a small shop to afford to actually impact the big wigs' carpet bombing technique.

Similarly, what do you do about the "I was accidently too broad" cases, which are just as dangerous.

[cyanbane]

I have to think that the patent in Spolsky's example cost at least a couple grand to produce/submit. I also would love to see the cost per rejected patent produced by the USPTO that comes from US tax payer dollars.

[roc]

As the Patent office generates net revenue for the US Government, you don't have to worry about that.

[sutro]

Actually you do have to worry about that. Since the USPTO is financed by patent application fees it has a perverse incentive to continue promiscuously granting as many patents as possible.

[throwawaykf]

Another frequently repeated myth. Actually:

1) Pretty much each and every action has a fee attached [1].

2) Each rejection has a 3 - 6 month time limit to be responded to.

3) Most applicants will fight every rejection to preserve their rights.

4) Granted patents have (admittedly higher [3]) fees due only every 3, 7 and 11 years, whereas patents in prosecution typically have fees due every 3 - 6 months. However, granted patents are not guaranteed to be renewed, which means their contribution is reduced [4, 5].

So if you want to talk perverse incentives, the USPTO actually have greater incentive to issue more rejections and collect frequent short-term fees on applicant responses, than they do to issue patents and collect infrequent long-term fees on renewals.

[1] http://www.uspto.gov/web/offices/ac/qs/ope/fee031913.htm

[2] http://www.uspto.gov/web/offices/ac/qs/ope/fee031913.htm#mai...

[3] http://www.patentlyo.com/patent/2010/06/patent-maintenance-f...

[4] http://btlj.org/data/articles/20_04_02.pdf

[5] http://www.uspto.gov/about/stratplan/ar/2011/mda_06_01_03.ht...

[sutro]

This myopic myth-busting of yours assumes that the number of patent applications remains unchanged regardless of how many are granted when in reality more granted patents fuels the fire of more applications. If the USPTO did the right thing and severely limited or even eliminated software patents there's no question that the number of applications, and thus the USPTO's overall budget and staffing levels, would decrease dramatically.

[roc]

You may have to worry about the incentives, but you don't have to worry about any cost in tax dollars of rejecting applications.

Unless somehow they began rejecting so many applications, and those rejections all cost more than the fees collected from those applications, so as to total more in losses than the surplus revenue of the rest of the PTO (all other patent and trademark activity, including renewals) over its costs.

Which Isn't Going To Happen.

[donaldc]

Since the USPTO is financed by patent application fees it has a perverse incentive to continue promiscuously granting as many patents as possible.

I would hope that filers for patents that are rejected would still get charged a fee. If they aren't, they should be. After all, it still takes up a patent clerk's time.

[rgraham]

This appears to be the case. Well, perhaps not an additional fee, but filing isn't cheap.

http://www.uspto.gov/web/offices/ac/qs/ope/fee031913.htm

[kbenson]

if it is __patentlyobvious__ that prior art exists

That's worth a chuckle.

(In truth, if it were patently obvious, this would be a much easier problem...)

[larrys]

Would hurt the proverbial small inventor more than it would hurt others. Almost like a regressive tax.

[mrgoldenbrown]

I think the problem is that the proverbial small inventor is extremely rare, and if they are indeed small enough for us to take pity on them, then a patent isn't enough to protect them anyway.

[fnordfnordfnord]

I don't think the proverbial small inventor is so rare, but that as you say, a patent is practically useless for them.

[dlwh]

Make the prior art fee scale up by number of patent applications submitted by that entity, then. First one's free. Then $100, then start growing at some small-ish exponent.

[pbhjpbhj]

Then you get shell companies and such being used for patent filing making it harder to establish who really is in control of the applications.

[ianterrell]

> Shame there's not a way to do the same thing to existing software patents.

What's stopping anyone from crowd sourcing a database of prior art for existing patents that would invalidate them if it came to it?

A valid defense against patent infringement is to show that the patent shouldn't have been issued in the first place, right? So a database of Ready Made Legal Defense sounds good.

Am I missing something?

[Guvante]

Showing a patent clerk prior art is much easier than showing prior art in a courtroom.

For instance at the minimum you need to bring in an expert witness to explain the prior art. Then you have to contend with the fact that they will bring in their own expert witness to explain how your example is bogus and you both get to cross-examine. etc. etc.

[lisper]

Anyone can file a request for re-examination with the PTO.

http://www.uspto.gov/patents/stats/Reexamination_Information...

[DannyBee]

It's been tried.

Many times.

[cleverjake]

do go on.

[DannyBee]

bountyquest (paid) - existed in early 2000's

patentbusters - ditto

Peer to patent - more recent

Patexia - still exists

article one partners - which still exists and pays

I don't feel like trying to hunt down the rest, but there are/have been at least 10 or so crowdsourcing attempts, some serious, some not so serious.

[thecodeore]

THe key part is recent changes in the law have given much more weight to community/public commenting on patents, so where these may have failed in the past it is possible for them to have more success today.

Further the patent climate has become more hostile towards bad patents in recent years, more so than at in point in modern history, this will also enable more possibility for success

[DannyBee]

Your assertion remains to be seen. There are still significant downsides to submitting prior art to the PTO that also existed when bountyquest was around.

The main serious issues are still the same, in fact:

1. If you submit prior art pre-grant, that's basically that. You don't get to argue about it, only the examiner does. If the patent issues, you've now lost a possibly valuable reference if the examiner didn't use it well enough.

2. If you challenge in any of the post-grant proceedings, you'll be estopped from suing on anything you raised or could have raised.