8 ms·

Pure Awesome. Shame there's not a way to do the same thing to existing software patents. There are plenty (~40k/year according to the article) of bad, obvious

• silvestrov 13y ago
  One thing missing in the patent system is that the patent seeker should pay a "fee" of $1000 if it is patentlyobvious that prior art exists. That would enable "Amazon Mechanical Turk"-style killing of most patents with prior art.
  • geoka9 13y ago
    And the person who found prior art should get a cut of that fee. Crowdsourcing at its best.
    • freyr 13y ago
      And then every patent would receive a deluge of obfuscated examples of prior art. And the patent office would become even less effective. Perhaps a good thing, unless you believe some things actually should be patentable.
      • zanny 13y ago
        Can you give an example of a patent being helpful in producing innovation and prosperity in the last 20 years? IE, a patent that was an original idea, someone else tried to duplicate in a blatantly rip-off way before the patent expired, and the ensuing lawsuit lets the patent creator (who has their patent to-market in a useful state) take the copycat off the market?
        • DevX101 13y ago
          The pharmaceutical and biotech industry would be almost non-existent without intellectual property protection.
          • busyant 13y ago
            Absolutely correct. I used to work in this industry, and one of the 1st questions asked when we were thinking about testing a drug to treat a disease was "Does someone else 'own' this drug or do we?" If someone else 'owned' the drug, then there was no point in pursuing it because the true "owner" would crush us if the drug ultimately proved useful in treating disease. Interestingly, the people writing the drug patents use the same types of techniques mentioned by Joel...especially making claims as broad as possible. The chemists that I worked with considered it an art form to be able to make broad claims that did not intersect with those of competing pharma companies. There's a lot of bullshit that can go on w/ pharma patents, too, but the VCs would never fund a biotech startup if we couldn't defend "our" drugs.
            • ESRogs 13y ago
              While I'm sure a case could be made that IP protection is necessary in biotech, isn't the example you gave actually evidence of the the opposite -- that patents stifle innovation and research?
              • busyant 13y ago
                It depends on what you want to get out of the pharmaceutical industry. I think it's the opposite. Since it costs so much $ to fund clinical trials and apply for regulatory approval, the lack of patents would stifle innovation because the pharma company that discovered the drug wouldn't be able to recoup their development costs if other companies were waiting in the wings, ready to sell a generic version of the same drug. If development costs (especially regulatory approval costs) go down significantly, then I think you can argue that drug patents are an unnecessary evil. But if things stay as they are, then they are a necessary evil.
            • 13y ago
  • cyanbane 13y ago
    I have to think that the patent in Spolsky's example cost at least a couple grand to produce/submit. I also would love to see the cost per rejected patent produced by the USPTO that comes from US tax payer dollars.
    • roc 13y ago
      As the Patent office generates net revenue for the US Government, you don't have to worry about that.
      • sutro 13y ago
        Actually you do have to worry about that. Since the USPTO is financed by patent application fees it has a perverse incentive to continue promiscuously granting as many patents as possible.
        • roc 13y ago
          You may have to worry about the incentives, but you don't have to worry about any cost in tax dollars of rejecting applications. Unless somehow they began rejecting so many applications, and those rejections all cost more than the fees collected from those applications, so as to total more in losses than the surplus revenue of the rest of the PTO (all other patent and trademark activity, including renewals) over its costs. Which Isn't Going To Happen.
        • donaldc 13y ago
          Since the USPTO is financed by patent application fees it has a perverse incentive to continue promiscuously granting as many patents as possible. I would hope that filers for patents that are rejected would still get charged a fee. If they aren't, they should be. After all, it still takes up a patent clerk's time.
          • rgraham 13y ago
            This appears to be the case. Well, perhaps not an additional fee, but filing isn't cheap. http://www.uspto.gov/web/offices/ac/qs/ope/fee031913.htm http://www.uspto.gov/web/offices/ac/qs/ope/fee031913.htm
  • Guvante 13y ago
    You would have to make the penalty too high for a small shop to afford to actually impact the big wigs' carpet bombing technique. Similarly, what do you do about the "I was accidently too broad" cases, which are just as dangerous.
  • kbenson 13y ago
    if it is __patentlyobvious__ that prior art exists That's worth a chuckle. (In truth, if it were patently obvious, this would be a much easier problem...)
  • larrys 13y ago
    Would hurt the proverbial small inventor more than it would hurt others. Almost like a regressive tax.
    • mrgoldenbrown 13y ago
      I think the problem is that the proverbial small inventor is extremely rare, and if they are indeed small enough for us to take pity on them, then a patent isn't enough to protect them anyway.
      • fnordfnordfnord 13y ago
        I don't think the proverbial small inventor is so rare, but that as you say, a patent is practically useless for them.
    • dlwh 13y ago
      Make the prior art fee scale up by number of patent applications submitted by that entity, then. First one's free. Then $100, then start growing at some small-ish exponent.
      • pbhjpbhj 13y ago
        Then you get shell companies and such being used for patent filing making it harder to establish who really is in control of the applications.
• ianterrell 13y ago
  > Shame there's not a way to do the same thing to existing software patents. What's stopping anyone from crowd sourcing a database of prior art for existing patents that would invalidate them if it came to it? A valid defense against patent infringement is to show that the patent shouldn't have been issued in the first place, right? So a database of Ready Made Legal Defense sounds good. Am I missing something?
  • DannyBee 13y ago
    It's been tried. Many times.
    • cleverjake 13y ago
      do go on.
      • DannyBee 13y ago
        bountyquest (paid) - existed in early 2000's patentbusters - ditto Peer to patent - more recent Patexia - still exists article one partners - which still exists and pays I don't feel like trying to hunt down the rest, but there are/have been at least 10 or so crowdsourcing attempts, some serious, some not so serious.
        • thecodeore 13y ago
          THe key part is recent changes in the law have given much more weight to community/public commenting on patents, so where these may have failed in the past it is possible for them to have more success today. Further the patent climate has become more hostile towards bad patents in recent years, more so than at in point in modern history, this will also enable more possibility for success
          • DannyBee 13y ago
            Your assertion remains to be seen. There are still significant downsides to submitting prior art to the PTO that also existed when bountyquest was around. The main serious issues are still the same, in fact: 1. If you submit prior art pre-grant, that's basically that. You don't get to argue about it, only the examiner does. If the patent issues, you've now lost a possibly valuable reference if the examiner didn't use it well enough. 2. If you challenge in any of the post-grant proceedings, you'll be estopped from suing on anything you raised or could have raised.