Collect prior art only for *existing* patents [LWN.net]

Collect prior art only for existing patents

Posted Sep 18, 2006 23:45 UTC (Mon) by PaulMcKenney (subscriber, #9624)
In reply to: Collect prior art only for *existing* patents by stevenj
Parent article: Prior art won't solve the software patent problem (NewsForge)

It might well be good to collect prior art only for the purpose of challenging existing patents. However, there is no reasonable way to actually do this in practice. The reason for this is that we have no way of knowing who the defendants in patent litigation will be, nor do we know in advance which patents will be used in that litigation. Therefore, resisting existing patents requires that the prior art be made public so that the defendants can find it quickly and easily -- they don't have a whole lot of time to put their case together.

Also, are you absolutely certain that preventing additional weak patents from issuing is a bad thing? Or that forcing additional patents to have narrow rather than broad scope is a bad thing?

Please keep in mind that the more weak patents there are, and the broader the scope of each such patent, the greater the ability for patent attackers to extract more money. And the more money patent attackers have, the more tenaciously they can resist badly needed patent reform, again, up to and including abolition of software patents.

As to helping patent applicants more than future defendants, it takes considerable time for the patent applicant to obtain a patent, time in which legislative and judicial patent reform might be possible.

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Collect prior art only for *existing* patents

Posted Sep 19, 2006 0:14 UTC (Tue) by stevenj (guest, #421) [Link]

First, collecting prior art on existing patents need not wait until a defendant is named. For example, you can do what PubPat does and request an ex partes re-exam to attack strategic patents.

Second, you are assuming that a prior art database will stop "weaker" patents, or cause broad patents to be substantially narrowed. The FSF's legal counsel apparently thinks otherwise: as Stallman explains, making more prior art available to patent applicants can easily backfire.

Based on my experiences with the patent office, I suspect that Stallman is right. Examiners usually seem to be overworked, and only have time to compare art based on superficial characteristics like diagrams and terminology. This helps a software patent to get through, in spite of cited prior art, just by dressing up the description in strange terms. Then future defendents are screwed because the patent is presumptively valid in the face of already-cited art.

Collect prior art only for *existing* patents

Posted Sep 19, 2006 0:45 UTC (Tue) by PaulMcKenney (subscriber, #9624) [Link]

PubPat does great work, no doubt about it. The problem is that they can take only only a very few patents. Like prior-art databases, they are an important piece, but are in no way a complete solution. In any case, I am surprised that you give PubPat as an example -- seems to me that by your own line of argument, PubPat is strengthening all the patents that it does not kill (VFAT being a case in point). (Just for the record, and as noted earlier, I disagree with your line of argument, whether applied to PubPat or applied to prior-art databases.)

Because PubPat can only take on a very tiny fraction of the patents, PubPat alone cannot possibly solve the problem faced by patent-litigation defendants. Something more is needed, such as prior-art databases.

Your second point indicates you have not read my posts carefully. My argument is that the real benefit of prior-art databases to defendants outweighs the potential harm via future patents, and that the long timeframes of patent examination permits other reforms to take effect, blunting the potential harm via those future patents. In addition, yes, I do happen believe that prior-art databases have the potential to substantially narrow some patents, prevent others from issuing, and raising the cost to the patent applicant, all of which discourage patent attacks -- which, after all, are motivated by money. However, my main argument does not rely on this belief.

On your final point, there can be no doubt that patent examiners are allowed very little time to evaluate a patent. This is one of the reasons for making it easier for them to find the relevant prior art more quickly. It is also true that patent examiners tend to be hired fresh out of college, where they were not taught about the older technologies that seem to be prior art against all to many recent patents. Another reason to make such information more accessible.

Again, you seem to be considering prior-art databases in isolation, when they are but one piece of the puzzle.

Paul E. McKenney (speaking for myself, not necessarily for my employer)

Collect prior art only for *existing* patents

Posted Sep 19, 2006 0:17 UTC (Tue) by stevenj (guest, #421) [Link]

Of course, another problem is that the amount of available art for software is so huge that I suspect OSDL will do little more than scratch the surface. In that case, the OSDL program will neither substantially strengthen nor substantially weaken patents, and will just serve as political window-dressing that will make real patent reform more difficult.