[zmmmmm]

There was an extremely depressing AMA on reddit a while ago where a patent examiner explained that what all of us consider "prior art" will be completely ignored by a patent examiner:

http://www.reddit.com/r/Android/comments/ww982/iama_patent_e...

The bar for prior art is very high - it has to be published in a recognized medium. Most specifically, unless it has a date that the patent officer can verify and cite (and a self stated date on a web site is not "verifiable"), it can't be considered because it is not possible say for sure it came earlier than the patent filing. So - some random thing on the internet - not published. Even an actual real product made and sold by a company - not published. Even standard industry practise, established for years, if not written up and "published" somewhere, may not qualify as prior art. In one comment he says:

"You may be right, that is how everyone does it. But if there is no documented prior art for us to search, we are out of luck rejecting it."

This explains why so many things that software developers routinely do end up in patents. Some of them are just so obvious that publishing it in a formal way is redundant. Yet that is the same bar that the USPTO is applying for rejecting patents. So the patent system itself is enriching the pool of obvious patents that get through.

Anyone using this Ask Patents site really needs to sit through a mini-tutorial explaining these things before they start, or they will waste more time than they save.

[mr_luc]

Wait.

What about the Internet Archive's Wayback Machine?[0]

And how can making a physical product not count -- surely any physical product sold in the United States has some kind of qualifying documentation associated with it which counts as publishing, even a manual?

[0] http://archive.org/web/web.php

[axman6]

The wayback bachine is used routinely, at least in Australia, to show that a web document was publicly available before the priority date of an application. One problem is that if the document happens to be from the domain of the applicant (more common than you'd think, some applicants are dumb like that), they can have it removed by archive.org. This is why examiners will make copies of the page from a date before the priority date when using documents accessed through the wayback machine.

[rational_indian]

Even a receipt.

[SEMW]

> The bar for prior art is very high ... Even an actual real product made and sold by a company - not published. Even standard industry practise, established for years, if not written up and "published" somewhere, may not qualify as prior art

If that's true,[0] seems to me that the US has a much narrower definition of what can be part of the state of the art than Europe does. Here, the state of the art is "everything made available to the public by means of a written or oral description, by use, or in any other way"[1]

E.g. in the UK there was a famous case where a patent for a windsurfing board was invalidated because it was anticipated by a primitive board hacked together by a 12-year-old boy a decade earlier, and used by him on summer weekends.[2] That "the user was open and visible to anyone in the vicinity of the caravan site where the family stayed" was enough to qualify it as prior art.

[0] To be clear: as a Brit I have no idea about US patent law, and don't know whether the parent description of it is accurate. (It's not impossible that the USPTO's rules on what they'll look at when considering an application are narrower than what a court can consider prior art, just for practical reasons - a court can call and cross-examine witnesses to give evidence of oral disclosures or prior use, unlike a patent examiner. That's just a guess, though).

[1] Article 54(2) EPC

[2] http://en.wikipedia.org/wiki/Peter_Chilvers

[zmmmmm]

Yes, to be clear, (and I realize now that I wasn't above), what I'm talking about above is what a patent examiner is allowed to use to routinely disqualify a patent up front as part of the application process prior to granting it.

The examiner is not allowed to go on research expeditions to interview witnesses, or to locate, purchase and reverse engineer old products to prove they are implemented in such a way as to invalidate the patent. A court (or the litigants) can certainly do all that, but here we are focusing on what can invalidate a patent prior to it being granted. And for that we are limited to certain classes of readily verifiable types of evidence.