Patents outside of the US [LWN.net]

From:		Paul Sheer <psheer-AT-icon.co.za>
To:		letters-AT-lwn.net
Subject:		Patents outside of the US
Date:		Sun, 28 Dec 2003 17:35:56 +0200


I am curious about the attention that the Free software
community gives to patents. It seems that the US has the
luxury of a patent office that can referee patents PRIOR
to them being filed. Here in South Africa (as I am sure is
similar in other countries) one is free to submit ANY
patent, even a completely bogus one. The onus is on oneself
to defend that patent IF a challenge arises from a third
party.

The Free software community is effectively claiming that
the patent office has the job description of ensuring that
patents are unchallengable. But is this really their job?
Considering that some countries do NO refereeing of patents
prior to their filing, it would seem that the US patent
office is merely there to do some cosmetic work in the
face of an over-subscribed patent system.

My question is: since when is the patent office SUPPOSED
to be screening patents as thoroughly as you desire? If
they really did have the capability to do this, wouldn't
the cost of filing a patent become prohibitive? (I.e.
they would have to hire so many experts as to make patents
prohibitively expensive to offset the this cost.)

Best wishes

-paul

Paul Sheer . . . . . . . . . . . . . . . . .  Tel  . . +27 (0)21 6869634
Email . . . http://2038bug.com/email.gif . .  Work . . +27 (0)21 6503467
http://www.icon.co.za/~psheer . . . . . . . . .  http://rute.2038bug.com
L I N U X . . . . . . . . . . . . . . . . The Choice of a GNU Generation

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Patents outside of the US

Posted Jan 8, 2004 12:46 UTC (Thu) by copsewood (subscriber, #199) [Link]

The problem with unrefereed patents is that in the situation where prior art exists, the legitimate user of an invalid patent still has the potentially very significant cost of having to defend their valid use. If the party wishing to enforce a patent is not obliged to pay the costs of the other party up front, this becomes is a license for big business to bully small businesses and individuals on entirely spurious grounds.

The problem of refereed patents is that the cost of refereeing creates an industry determined to lobby for its own expansion.

Society should only grant legally enforceable monopolies where there are very clearly demonstrated benefits. There is no evidence that patents are needed to provide sufficient incentives for people to want to innovate in the field of software invention and design.

Patents outside of the US

Posted Jan 8, 2004 16:37 UTC (Thu) by ssavitzky (subscriber, #2855) [Link]

One of the problems with the US patent system is that, even though the patent office is unable to properly referee patents (it's not just lack of resources; in the case of software it's lack of training as well), the rest of the system assumes that an issued patent is valid until proven otherwise. It's difficult and extremely expensive to get an issued patent overturned, so even if you're almost certain that a patent is invalid it's usually cheaper to pay the license fee.

Patents outside of the US

Posted Jan 15, 2004 11:34 UTC (Thu) by forthy (guest, #1525) [Link]

The German patent system includes a period of public review after the patent office review is over (half a year). Each public comment about a patent is fed into the examination process, and can lead to invalidating the patent - at no costs for the submitter of a comment. This is very much unlike the US patent practice, where a patent is assumed to be valid after examination by the patent office, and you only can challange a patent in court. This system is risky (you have to wait for the patent holder to sue you), costly (you have to pay your legal fees), and time-consuming (courts do not act quickly).

So far, the US patent system really requires either to open up patent examination for a public review period, or to do a real research for prior art. Currently, there's neither. If I was a chinese official and talking to the states about TRIPS or other IP-related trade issues, I'd demand the USA to install such a system before I can accept US patents as valid.

Patents outside of the US

Posted Jan 15, 2004 9:30 UTC (Thu) by ketilmalde (guest, #18719) [Link]

It is of course true that patent review is costly. Some of that cost can be relieved or shifted by inviting comments from outside parties, but it's nevertheless not free.

However, delaying and relaying patent review to the courts is certainly not cheap, either. And an inappropriate patent that isn't challenged is also very costly to society; in this case royalty payments and/or time spent creating workarounds represent unnecessary waste.

And of course, patents may lead to certain applications never becoming realities at all, which, while difficult to quantify, is also a very real cost of patents.

So a penny saved on patent review, may very well be many dollars lost to society as a whole.

-kzm