Patents with source code
Posted Aug 27, 2012 10:15 UTC (Mon) by anselm
In reply to: Patents with source code
Parent article: Mobile patent wars: Google goes on the attack
If John invents something and starts practicing it, and then Mary produces a patent for the same invention and demands that John stop, but John proves that Mary only dreamed it up and never actually proved it would work, I believe that means Mary didn't invent the thing, so her patent is invalid and John doesn't have to stop.
Mary only needs to get the patent office to sign off on the patent application. She doesn't need to actually produce the working invention, although that would probably help if the patent examiner isn't convinced that the invention might work. It is up to the patent office to prove that an invention cannot in fact work, but the patent office, which after all receives its funding essentially based on the number of patents granted, tends to accept anything that isn't obviously a perpetual-motion machine. You can go to the patent office today and apply for a patent on a method of mining Jupiter's moons for gold even if there is no feasible way of putting that method into practice anytime soon, and that patent will very probably be granted as long as your method looks remotely doable and hasn't been patented by someone else yet.
If Mary manages to obtain a patent on John's invention before John does, without actually doing the inventing herself, that is just John's hard luck. He can always try to take Mary to court in order to prove »prior art«. This can become tedious and very expensive. In fact, this is why people who are otherwise not big fans of the patent system still patent stuff, or at least »defensively publish« things that they don't actually intend to patent (or indeed build or market), just so if somebody else tries to patent the same thing later it is easier to establish that it isn't a new idea.
The main problem underlying this is that, when trying to figure out whether an invention is »new« (as opposed to »possible according to the laws of nature«) the patent office tends to look mostly at other patents and official defensive publications, not at all the tech that is available somewhere in the world, so it is fairly easy to patent stuff that the patent office hasn't officially seen yet, even if it appears quite familiar to anybody else with eyes and ears. So merely doing something, even in plain sight, doesn't usually keep the patent office from giving a patent on whatever it is that you are doing to somebody else if you haven't formally written it up and submitted it to the patent office first. (There is the additional safeguard that inventions must not be »obvious« to be patentable, but, as RMS once said in a talk, the patent office usually understands »obvious« as meaning »obvious to a person with an IQ of 70«.)
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