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This is just one more anecdote, but I once read Sun had a cool new patent, the central idea of which turned out to be three lines of assembly code which had alr

This is just one more anecdote, but I once read Sun had a cool new patent, the central idea of which turned out to be three lines of assembly code which had already been published in the well-known superoptimizer paper by Massalin 15 years before -- I only noticed this because I happened to have been reading it and had the paper lying around my bedroom. To Massalin it merited one paragraph in an appendix about interesting snippets discovered by the superoptimizer. Sun gave it pages of legalese broken out into multiple claims, ending with the usual boilerplate claiming any further variations not explicitly listed that would be obvious to one "skilled in the art". I did nothing about this because the fight would be a drag with nothing in it for me. Yes, the classic justification is to encourage invention, but there are publications arguing that patents aren't a net positive. It's not my field, I don't know, but I've started doubting. Added: I don't think Sun did anything especially wrong -- they worked with the patent system as it is and missed the prior art. What I think is that this example shows some of what's wrong with that system.

pnw_hazor 9y ago
That was just a mistake that slipped through the system. It would be caught later if the patent was ever asserted against anyone. Sun might have caught it themselves as part of their evaluation process before asserting the patent. Now examiners have better access to all types of references. And, it is easier to search through them. Academic papers, foreign patents, foreign publications, books, website copy, etc, are all fair game. Though examiners seem to prefer to use US Patents/Applications if they can. US patents or published applications make great prior art references because they have a clearly defined priority date and patent prosecutors tend to draft specs to be as inclusive as possible.
- abecedarius 9y ago
  It's encouraging to hear the situation may be getting better. I brought up my example because it shows a friction-to-innovation ratio that seems way out of proportion and because the missed prior art makes the comparison unusually clear. The academic paper treated the idea as almost a throwaway -- I can imagine it as one of the first things to be dropped on tighter page limits. (By dim memory -- I ran into this over a decade ago.) More usually when a patent gets argued about, the interested parties make the matter harder to follow for the rest of us without the attention to spare. I think most of us, if we're fair-minded, when we read about one of these disputes should go "That sounds like ordinary junk but the law is complicated, the patent is complicated, my opinion about this case won't be worth much unless I spend way more effort than I can justify." Here was a patent that just by chance I could easily judge, which didn't otherwise look different from others I've heard about. (Maybe I could dig up the patent number since I've been harping on it. I'm not sure.) Having lots of friction from many small inventions helps the big established companies more. My own patent, it'd never have occurred to me to patent it -- but it was work for a tiny startup that needed a defense in this system. (I don't think this patent was a bad one as patents go. It got referenced by a VPRI STEPS paper.) A patent system could encourage growth, or it could get mired in a rent-seeking equilibrium. It seems hard to tell which we've got, but I'd bet on the latter if we knew how to settle this. There's also a freedom-of-thought cost, in that independent invention happens all the time, unlike the case with copyright. That is, even an unarguable finding of welfare benefit wouldn't settle the question if patents are right. It'd have to be a substantial benefit to offset the cost to liberty.

pnw_hazor 9y ago

That was just a mistake that slipped through the system. It would be caught later if the patent was ever asserted against anyone. Sun might have caught it themselves as part of their evaluation process before asserting the patent. Now examiners have better access to all types of references. And, it is easier to search through them. Academic papers, foreign patents, foreign publications, books, website copy, etc, are all fair game. Though examiners seem to prefer to use US Patents/Applications if they can. US patents or published applications make great prior art references because they have a clearly defined priority date and patent prosecutors tend to draft specs to be as inclusive as possible.

abecedarius 9y ago
It's encouraging to hear the situation may be getting better. I brought up my example because it shows a friction-to-innovation ratio that seems way out of proportion and because the missed prior art makes the comparison unusually clear. The academic paper treated the idea as almost a throwaway -- I can imagine it as one of the first things to be dropped on tighter page limits. (By dim memory -- I ran into this over a decade ago.) More usually when a patent gets argued about, the interested parties make the matter harder to follow for the rest of us without the attention to spare. I think most of us, if we're fair-minded, when we read about one of these disputes should go "That sounds like ordinary junk but the law is complicated, the patent is complicated, my opinion about this case won't be worth much unless I spend way more effort than I can justify." Here was a patent that just by chance I could easily judge, which didn't otherwise look different from others I've heard about. (Maybe I could dig up the patent number since I've been harping on it. I'm not sure.) Having lots of friction from many small inventions helps the big established companies more. My own patent, it'd never have occurred to me to patent it -- but it was work for a tiny startup that needed a defense in this system. (I don't think this patent was a bad one as patents go. It got referenced by a VPRI STEPS paper.) A patent system could encourage growth, or it could get mired in a rent-seeking equilibrium. It seems hard to tell which we've got, but I'd bet on the latter if we knew how to settle this. There's also a freedom-of-thought cost, in that independent invention happens all the time, unlike the case with copyright. That is, even an unarguable finding of welfare benefit wouldn't settle the question if patents are right. It'd have to be a substantial benefit to offset the cost to liberty.