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Public Patents? 105

Posted by Cliff from the non-profit-idea-proliferation dept.
Lettuce asks: "While driving along today, I was mulling over patents. One of the problems with patents, from an open source perspective, is they cost money to acquire. Not only do you have to pay the Patent Office for them, you usually need to obtain the services of some lawyer. Which means you'll usually never see someone patent an idea just so that it can be public domain. What if we lobby our congressmen and senators to wave the charges for patents and even provide patent assistance, for those of us who would patent an idea for the public. With that simple change, couldn't people could flood the patent office with simple ideas and prevent abusers from patenting obvious ideas such as 'delivering e-mail to a wireless device'?"
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Public Patents? More

Public Patents?

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  • Flooding? (Score:2, Insightful)

    by foundme ( 897346 )
    Couldn't people flood the patent office with simple ideas

    Isn't this the very reason why patent application costs money and time? So that the inventors will think twice before wasting the office's time.

    And if we can lobby congressmen to wave the charges, we might as well lobby for no patent at all, this way all patents will be public patent.

    • Yup (Score:5, Insightful)

      by sterno ( 16320 ) on Tuesday April 25, 2006 @07:02PM (#15201418) Homepage
      Yeah the sheer volume of meaningless patents is already huge. What I would suggest is perhaps somewhat along the lines of the original concept but deals well with the volume issues:

      1) Provide an open database for public disclosure. This database would be a repository for prior art claims. So what you would do is, if you had a good idea, you'd drop it into the database and it would be kept there. Then when a patent came up, it would be readily searchable and if your idea was relevant and prior to their invention, it'd prevent them from getting the patent.

      2) Seriously improve the patent review process. That means upping fees, hiring more patent clerks, and increasing the difficulty of getting a patent in the first place. It's time we stop pretending that patents are the realm of the lone inventor and recognize that they are weapons in corporate IP arsenals. As such make them very expensive to get and maintain and make the vetting process quite vigorous.

      • A brief response:

        1) there's an open database already ... you're looking at it, it's regularly and extensively used by patent researchers and not just to look at dilbert cartoons. There are literally millions of patent documents, then there are research papers and other notable journals, reference books, proceedings, ... It's not a lack of recording that's the problem it's one of economics. The patent has to be processed, there's not alot of time to do it in because time is money and taxpayers don't want to
        • Only ideas that people pay for to be protected go into the database. The database does not contain ideas that someone comes up with but doesn't care for protection. Therefore someone can patent something others have been using previously without feeling the need for protection and the database will have no prior record of it.
          • >>> "The database does not contain ideas that someone comes up with but doesn't care for protection."

            Except that many of the databases used have non-patent information in them. Back copies of computer magazines, IBM technical disclosure bulletins, journals of the IEE and IEEE, British Computer Society publications (to name but a few) ... and the one big cheap database, the web. So yes "the database" used for patent searches (at least in UKPO and EPO) does have "free ideas" in.

            For the breadth of ava

      • Provide an open database for public disclosure. This database would be a repository for prior art claims. So what you would do is, if you had a good idea, you'd drop it into the database and it would be kept there. Then when a patent came up, it would be readily searchable and if your idea was relevant and prior to their invention, it'd prevent them from getting the patent.

        That's a great idea.

        Our goal, after all, isn't to patent things, but to keep others from patenting them. As far as I know, under mos

        • Unfortunately, part of the purpose of patents today is defensive -- people now use patents to generate the equivalent of a mexican standoff--- I agree not to sue you over my pool of patents, if you agree not to sue me with your pool of patents. At that point it barely even matters if many of the patents are questionable -- What matters is that you have some to trade for the truce.

          Generating a patent database might make it easier for the owner of a patent to justify it's existence (look! It's not in

      • Re:Yup (Score:2, Insightful)

        by postsingularity ( 874666 )
        The patent process has been gradually becoming more expensive with the latest round of changes greatly increasing the costs to file applications with many claims. Unfortunately, the profits of the patent office, it is one of the few government agencies that actually makes money, are diverted and not used to improve the examination process. Because of this examiners only have a few hours per application to review prior art. This, and the culture of meeting patent quotas needs to change before the U.S. pat

      • OK (Score:2)

        by rockhome ( 97505 )
        1) Provide an open database for public disclosure. This database would be a repository for prior art claims. So what you would do is, if you had a good idea, you'd drop it into the database and it would be kept there. Then when a patent came up, it would be readily searchable and if your idea was relevant and prior to their invention, it'd prevent them from getting the patent.

        Yeah, but no, but...

        That makes the ASSUMPTION that said idea was unoriginal. If 2 people come up with very similar, yet not obvious
        • The intent of the patent process was to provide a quid pro quo for invention. That is, if you created something new, you would be given a temporary monopoly on the invention. In exchange you make concise instructions available that allow other people to replicate your invention after the patent expires. This quid pro quo establishes a financial incentive to invent under the premise that there's a certain amount of expense in invention.

          So to get back to the notion of the solid state MP3 player. Let's say
          • The intent of the patent process was to provide a quid pro quo for invention. That is, if you created something new, you would be given a temporary monopoly on the invention.

            That's my point. I also referred to inventions that were non obvious. Someone that has an invention worthy of a patent, ought to be ably to achieve a temporary monopoly on the invention. Many inventions are hardly unique, there are too many people attempting to find solutions to the same problem. I don't think that only one person c

  • Sounds nice, but will actually make it worse (Score:5, Insightful)

    by chriss ( 26574 ) * <chriss@memomo.net> on Tuesday April 25, 2006 @06:56PM (#15201375) Homepage

    It sounds like a nice solution, unfortunately it is not. It would require two mayor changes:

    1. A reverse of the policy of patent offices as profit centers. Almost all western countries have challenged their patent offices to make money. The only way they can make money is by charging for registering as many patents as possibly. This is one of the major problems driving all the trouble we have today. If it wasn't in the interest of the patent office to accept patents, they would check more thoroughly.
    2. MUCH MUCH more personnel for the patent office. If it is free thousands of patent applications will flood the patent office, including many that are already covered by other patents. I doubt that those people that do not apply public patents today (which is possible and cheaper than a regular patent) due to the cost will actually start an intensive (and costly) patent research before applying a free patent in the future. Since patent offices are obviously incapable of handling todays workload, this would finally kill them, resulting in even more trivial patents being accepted due to lack of proper checking.

    I'm not a friend of patents, but I see that they have their place. Making them free is an attempt to fight a symptom (patenting trivial things) by being faster and patent any possible trivial thing first so no idiot can use a stupid patent to blackmail everybody. But the real problem is the lack of quality in the review process and the dependency of the patent office on the registration fees (see above).

    So I suggest to:
    • raise the bar for inventions. No software patents, no business patents. You can patent an implementation, but not an idea. In case of doubt, say no. The applicant has to prove that his invention is patent worthy (yes, this will harm small inventors)
    • give the patent office more money. And if they fuck up and register something that was covered by prior art or is just current state of the art, fire them. Let them feel the pain and they will learn.
    • My question is: What if somebody comes up with a simple device and does not patent it, but just gives it away? I believe that this is an example of such actions. http://video.google.com/videoplay?docid=-308519180 989677405 [google.com] Is this still open to be patented by someone else? What happens if you just don't patent things and give them away? I'm also curious how Creative Commons licenses play into all of this?

    • "And if they fuck up and register something that was covered by prior art or is just current state of the art, fire them. Let them feel the pain and they will learn."

      No they wont. They wont be around long enough to learn. The patent office would be training new employees every week or two.

      Fact of Life: People make mistakes. Rather than simply punish people for them, try and plan around them so when they do happen, it's not a big deal. You'll find you get much less stressed (and thus usually more productive)

    • I agree with all of the above note except for the following:
      • You can patent an implementation, but not an idea.
        I think that the entire idea of patents is to protect ideas, so I would reverse this.
      • No software patents.
        I think there are a very few cases where the disclosure of an otherwise secret algorithm advanced the state of the art. IMHO, the RSA algorithm and the spreadsheet user interface were patent-worthy ideas.

      However, I would add a few more restrictions on patents:

      • Every software patent m

    • raise the bar for inventions. No software patents, no business patents. You can patent an implementation, but not an idea. In case of doubt, say no. The applicant has to prove that his invention is patent worthy (yes, this will harm small inventors)

      I don't know about raising the bar but with regards to software and business method patents, I strongly agree with the above, they shouldn't be allowed. I'd also add life, er the process of patenting life, genes, or the insertion of genes into a life form tha

  • Defensive publication (Score:5, Informative)

    by tepples ( 727027 ) <.tepples. .at. .gmail.com.> on Tuesday April 25, 2006 @06:57PM (#15201381) Homepage Journal

    This is called defensive publication [google.com]. If you want to make sure that nobody patents a particular invention, get the invention published in a scientific journal.

    • if you had RTFA you would have... oh wait....
    • This is called defensive publication. If you want to make sure that nobody patents a particular invention, get the invention published in a scientific journal.

      Which would cost...there's that ugly word again...money.

      Your search suggestion turns up an interesting article [carmodylaw.com] mentioning companies like IP.com, but I bet they don't do offer their services for smiles and sunshine either.

      I think the real trouble is ensuring that a publication meets legal requirements to be considered 'prior art', most of which have to

      • Which would cost...there's that ugly word again...money.

        True, $0 < cost of publication, but cost of publication < cost of patent.

      • Your search suggestion turns up an interesting article mentioning companies like IP.com, but I bet they don't do offer their services for smiles and sunshine either.

        I think the real trouble is ensuring that a publication meets legal requirements to be considered 'prior art', most of which have to do with making sure that the source of the publication is authentic and that the date of publication is verifiable. Meeting either of those requirements probably cannot sidestep the need for notarizing the documen

    • Re:Defensive pub ... not limited to journals (Score:4, Interesting)

      by pbhj ( 607776 ) on Tuesday April 25, 2006 @07:57PM (#15201687) Homepage Journal
      The notional proponent of the art, the position of whom is addressed in patent inventiveness/novelty decisions, is taken to be aware of all prior worldwide _publications_ (and not just paper ones, audio, video, scratched tree bark, ...). A defense of inventiveness can be mounted for obscure publications (I won't go into that).

      There are several services that offer defensive publication.

      One such route would be to file a patent _application_ and have it published. It then falls squarely within the gamut of documents regularly searched by patent examiners.

      The stages of an application up to publication require fees of about £130 (sterling). This compares favourably with facilities like www.researchdisclosures.com (which I occassionally cited for patent searches) which charges £75 *per page*!!

      This is not the hard bit at all.

      The hard part is legally challenging a mega-corp with a prior publication of their "invention". Public money would never be able to meet the costs.

      Yes ... I used to be a UK Patent Examiner ... how did you guess??
  • Wouldn't it be easier to prominently publish a book or something similar with all those ideas? Then you could point to provable prior art if a company tries to sue based on one of them.
    • No, I think getting a book published would be pretty hard.
      • OK, so use a podcast instead. Better yet, a video podcast. You could make up a skit, and act out your idea.

        Holy shit! I better patent this idea!
      • Maybe in 1980. In 2006? I think getting a book published is pretty easy, once you assemble the material you want in it, through any number of services that do POD publishing on a fee-per-copy basis. Getting the book distributed may be hard, but is that the goal, or is it just documentation? Seems to me writing up the description of the process to the necessary detail to demonstrate that it is prior art if someone tries to patent the same idea is the hard (and, if you need professional advice to assure you

  • Publish (Score:3, Interesting)

    by Piquan ( 49943 ) on Tuesday April 25, 2006 @07:00PM (#15201402)

    IANAL, but my understanding is that if something's been published, it can't be patented. I read once (on /., so take it with a grain of salt) that sometimes a company will publish an invention when they don't want to go to the trouble and expense of patenting it, but don't want anybody else to patent it either.

    I'm not sure what's considered "publishing" in this context. Maybe releasing an open-source program would be sufficient, or possibly you'd need to make a Usenet post, or send it to the JACM [acm.org] or something.

    • Re:Publish (Score:1, Interesting)

      by Anonymous Coward
      Funny, I was thinking about this the other day....

      http://www.patent.gov.uk/media/pressrelease/2003/1 106.htm [patent.gov.uk]

      Basically this chump thought of an idea to make a toaster which waits for the second slice to pop. He told everyone on Big Brother and now it is NOBODYS because it will never be made because manufatureres wont spend the extra R&D when they cannot patent it.
      • How could an implementation of that be patentable. I could draw up a design based on an existing toaster design in a day or two, and I'm not even an expert in the toaster field.

        Besides, he hasn't blown his chance unless he described how the device works. The patent office is up to their usual PR tricks of pretending that unpatentable things (the very concept of a toaster with a second slice delay) *are* patentable until everybody believes they are.

  • I don't think we need "public patents". All that we need is a way to make sure that these ideas make it into whatever database the patent office use to search for prior art. Surely that's much easier to do than creating a whole new category of patents?

    Of course, if the patent office actually did it's job diligently, even that wouldn't be necessary. All you need to do is publish the result.

  • RE: couldn't people could flood the patent office (Score:3, Insightful)

    by KyleUnverferth ( 948500 ) on Tuesday April 25, 2006 @07:11PM (#15201480) Homepage
    ...couldn't people could flood the patent office...
    Why yes. Yes, people could. Which is precisely why the US Patent Office doesn't give away free patents.

  • The fragility of patents (Score:5, Insightful)

    by blibbler ( 15793 ) on Tuesday April 25, 2006 @07:11PM (#15201482)
    Everyone knows that prior art defeats patents. If you are the first person to develop an idea, and you publish your work immediately, then you are immune from a subsequent patent. This does not cost anything.

    Where open source/Free software runs into trouble is when they are replicating the work of others, such as GIF, MPEG4 etc. To a lesser extent, there are very broad patents, such as some online shopping patents, and UI patents. The broader a patent is, the easier it should be to find prior art. Again, if you publish your work (and CVS, etc would count) then you have nothing to worry about.

    Anyway, if you intend to share the patent with the world, there is no need to apply for a patent then "free" it... just make the information available to the public, and it should have the same effect.

    • Not immune (Score:3, Insightful)

      by bill_mcgonigle ( 4333 ) *
      If you are the first person to develop an idea, and you publish your work immediately, then you are immune from a subsequent patent.

      No you're not. You just stand a good chance of winning the court fight, provided you can afford to defend the lawsuit by the patent holder and it doesn't bankrupt you.
  • I think you could make an interesting court case on the premise that patents are a *constitutional* right, at least in the US and therefore there should be no charge. What other constitutional rights does an individual have that he/she has to pay to exercise?
    • all of them....
    • Not to be overly critical, but I think this would be a pretty weak argument.

      The Congress shall have power to... promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries

      I'd say that there's a difference between a power and a duty- easily illustrated by its power to declare war: it isn't compelled by the Constitution to declare war on somebody. And given its power to "lay a
    • Copyrights, patents, etc., are things that Congress has the express Constitutional power and discretion to provide for, not a Constitutional right. The Copyright Clause no more creates a Constitutional right to IP than the clause providing Congress the power to issue letters of marquee and reprisal makes privateering a Constitutional right.

  • Public Domain (Score:1, Redundant)

    by drfrog ( 145882 )
    Im sure one can submit a patent and release it under public domain
    • Yes, it's called "dedication to the public." You will see it on issued patent sometimes, where all or a portion of the patent's term is "dedicated to the public."

  • There is no need (Score:2, Informative)

    by Patentmat ( 846401 )
    The whole purpose of a patent is to grant a limited time monopoly for the patent holder. Since this would be of no interest to one inventing for the public good, all that person need do is publish everything he or she has. As always, see ( http://en.wikipedia.org/wiki/Defensive_publicatio n [wikipedia.org] for more, but really all you would need to do is lay all the details of your invention out on a web page. No one else will be able to patent that material because your published work would be "prior art" against it.
    • The whole purpose of a copyright is to grant a limited-time monopoly, too. And you can release copyrightable material into the public domain quite easily. But, still, people feel the need to use actual copyrights and license agreements like the GPL to create things like "open source software". Conceptually, one can easily see the same thing being done with patents, the main barrier is the enormous expense, whereas copyrights are free.
  • you'll usually never see someone patent an idea just so that it can be public domain

    Probably true (I have no numbers to say either way). But it is undeniable that there are plenty of people who will gladly sacrifice hundreds or thousands of hours of their time to get an open source project under way. Ironic.

    My guess is that most OSS developers do it for fun rather than altruism or personal beliefs -- and fun isn't fungible.

  • SIR: Statutory Invention Registration (Score:5, Informative)

    by ewhac ( 5844 ) on Tuesday April 25, 2006 @08:08PM (#15201718) Homepage Journal
    SIRs are a sort of un-patent, also issued by the USPTO. This more or less officially registers your invention into the corpus of prior art, giving it a far better chance of being found by patent examiners. However, it grants you no rights of action against "infringers".

    These registrations used to be used by government researchers, back when all publicly-funded research used to enter the public domain.

    Schwab

    • From what I understand, SIR's are not that common, but they should be. They certainly would be more visible to an examiner. There's too many places to search in the course of a patent examination, especially given that an examiner usually only has 8 to 15 hours, given experience and type of invention, to examine the case and find prior art. Some time has to be spent on reading and understanding the invention and writing up the findings. Doesn't leave much time for a thorough examination.

      SIR's should b
  • I claim prior Art on your Idea : From February 24, 2005 [blogspot.com]

    The USPTO patent application examiners task could be made more reliable if the examiners could consult one or more public online registries that document cases of prior art and public discoveries. The online registries could provide a means for the public to retroactively point to cases of preexisting prior art for pending patent applications and a means to proactively document publicly known ideas and concepts. Although websites and digitally stored c

  • How about Public Domain? (Score:3, Insightful)

    by diamondmagic ( 877411 ) on Tuesday April 25, 2006 @08:20PM (#15201750) Homepage
    Isn't that what Public Domain is? You could just start a website that documents diffrent ideas in patent form. Seeing as you can not patent previous art, no one would be able to patent the idea. This also prevents people from revoking the privlages/rights of the patent.
    • Yes, and you can put material in the public domain that would otherwise be subject to copyright. OTOH, nothing stops people from creating proprietary products with public domain material (whether of the type that is amenable to copyright or the type amenable to patent). In the copyright world, the desire to make material free but keep it from being boxed up in closed derivative products resulted in open licensing (both open source licensing, and similar models applied to things that aren't source code). S

  • Waive (Score:1)

    by marx ( 113442 )
    The word you're looking for is "waive" not "wave".

  • Problems do have solutions, you know (Score:4, Insightful)

    by billcopc ( 196330 ) <vrillco@yahoo.com> on Tuesday April 25, 2006 @09:23PM (#15202005) Homepage
    One of the problems with patents is they exist.

    The system is screwed up, it was never designed for the kind of abuse the technological revolution has brought forth. We either need dramatic reform of the patent system, or just abolish it entirely. Patents are being used as strategic weapons against competition, hindering progress. The recent case vs RIM concerning their email system is a perfect example of bad patents. Its sole use was to slam a competitor by threatening to cripple the entire customer base including some high officials. The company that owns it doesn't even use it. We have patent holding companies whose only purpose is to sit on a patent portfolio until someone pays for a license, or someone's ripe for a lawsuit. They serve no other purpose. They're IP pimps.

    • The system is screwed up, it was never designed for the kind of abuse the technological revolution has brought forth. We either need dramatic reform of the patent system, or just abolish it entirely. Patents are being used as strategic weapons against competition, hindering progress. The recent case vs RIM concerning their email system is a perfect example of bad patents. Its sole use was to slam a competitor by threatening to cripple the entire customer base including some high officials. The company that

      • I'd much rather have a free-for-all without patents. Nowadays developing a new product is like running naked through a minefield. Screw that, let the customers choose the winner, as it should be.

        • I'd much rather have a free-for-all without patents. Nowadays developing a new product is like running naked through a minefield. Screw that, let the customers choose the winner, as it should be.

          You know, Thomas Jefferson thought the same but his friend James Madison talked to him about it after which he came to believe issuing patents to inventors, and copyrights to writers and artists, would do more to advance the arts and sciences. Afterwards TJ using actuary tables decided patents and copyrights sho

  • Another option: violence (Score:3, Funny)

    by argoff ( 142580 ) on Tuesday April 25, 2006 @09:54PM (#15202116)
    I hate to say this, but there is another option that should be mentioned: violence, or the threat of it. As bad as this sounds, some people imposing patents have acutally done worse.

    Sometimes a few credible threats can do a lot more to hold back the patent dogs than years of litigation and petitioning.

    Considering that some patents have held back medical innovation and have led to deaths, or safety devices that have also led to death. Or considering how pharmacuticals sued African nations to keep them from making generics and that led to countless AIDS deaths. Or the countless other small innovative companies that were sued out of esxistence, and all the families and related people who suffered greatly from that. It is not an out of the question option.

    essay: A Violent Protest Against Patents [slashdot.org]
  • I'm probably wrong here, but, as with trademarks don't you have to take out a patent for your idea in every country in which you're intending to use the idea?

    I think it unlikely that the US government will pony-up US tax dollars to register an "Open Source" patent in the EU.
  • Just send me $5,000 so I can write it for you. Maybe I'll knock the price down to $4,000 for public patents.

    But it won't cost you a cent to file it. You'll save $500!.

    Sincerely,
    Sharkb8
    registered patent agent.
    no, really.

  • Not needed -- already free (Score:4, Informative)

    by localman ( 111171 ) on Wednesday April 26, 2006 @12:56AM (#15202720) Homepage
    I actually met with several people from the patent office last week. They were visiting companies in Nevada [zappos.com] to learn how patents effect our business. First thing I want to say is that they weren't a bunch of idiots and they took their job seriously.

    Anyways, we discussed the idea of public patents, and there's a simple solution already. You don't have to patent anything to make it public. You just have to publish it. That's all. If you have something that could be patentable and you want to make sure that it's free for public use, just write up a whitepaper, date it, and make it available publicly on the web. Make sure it gets into the WayBack machine [archive.org]. They use these resources when researching patents, so it should prevent them getting granted. If not, it would still function as prior art.

    Cheers.
  • Since a patent is invalid if prior art exists, how would this "public patent" concept be better than simply publishing the idea so it becomes prior art?
    All it would take would be a cheap/free way of timestamping the idea as to establish it as being prior to any patent appearing thereafter.

  • Don't patent - publish. (Score:3, Interesting)

    by Ihlosi ( 895663 ) on Wednesday April 26, 2006 @05:32AM (#15203420)
    Which means you'll usually never see someone patent an idea just so that it can be public domain.

    That's what publishing is for (in some magazine, journal, whatever). If someone tries to patent the idea later on, it should be easy to prove that the idea was not original and prior art exists.
  • Patents were invented so that the simple man, inventing something complex had time to create a company around it and produce enough products to give him a real tactical advantage against big corporations that have a lot of production capacity standing ready and so that he would actually benefit from his invention. Also, it served to make sure that all ideas were public 20 years after conception so that no true invention would be lost. Consider what would've happened if Einstein didn't publish stuff but just
  • A patent = a legal right to exclude others from using a technology.

    What then is a "public patent"? A legal right to exclude no one from using a technology?
  • You don't have to patent something for it to become part of the public domain. Just publish your ideas anywhere, and they become part of the prior art pool. You need to learn a lot more about the patent system before you start suggesting policy changes. You're like a blind surgeon.

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