Collect prior art only for *existing* patents
Posted Sep 19, 2006 0:14 UTC (Tue) by stevenj
In reply to: Collect prior art only for *existing* patents
Parent article: Prior art won't solve the software patent problem (NewsForge)
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.
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