Post-Peer Review

There have been a couple of interesting developments related to US patents, especially technology and software patents. This isn't the first notice on this website of apparent changes in the USPTO (United States Patent & Trademark Office).

There have been a couple of interesting developments related to US patents, especially technology and software patents. This isn't the first notice on this website of apparent changes in the USPTO (United States Patent & Trademark Office). http://news.zdnet.co.uk/itmanagement/0,1000000308,39285142,00.htm

The first change is that it looks like the Patent Office is going to open up the patent approval process in a pilot program by allowing for a sort of peer review using evidence of prior art or prior patents to be submitted to disqualify a current patent application filing. http://dotank.nyls.edu/communitypatent/ http://www.peertopatent.org/getting_started http://www.uspto.gov/web/patents/peerpriorartpilot/

One of the articles listed above cites the fact admitted to by the USPTO is that there are approximately 1.2 Million patent applications pending. With 6000 inspectors, that translates to 200 applications each. Assuming that 18 hours per application (18 to 20 hours, cited by the USPTO) is required, that translates to 3600 hours each inspector. Assuming that each inspector gets 2 weeks of vacation each year, that translates into nearly 2 years' work by every inspector just to clear away what applications currently exist. It can be assumed that more applications keep coming in. Sounds more like a government jobs program.

The second development is that certain non-profit organizations have taken on activist postures and have filed challenges to patents based on documented prior art. In many cases the prior art cited is previous patents! There have been many patents challenged in the past but usually by corporations with a vested interest in the outcome. These challenges are filed to protect a patent they already own or to prevent a competitor from securing a prior dated patent invalidating a current patent application. http://w2.eff.org/patent

It seems that corporate IP owners think that patenting minor modifications or marginally innovative changes to products is a means of protecting their R & D investment. It would be interesting to do a cost versus profit analysis to determine if most patents are worth the money it costs to file them, to defend them in the application stage or later in the courts.

Following recent news stories concerning a number of software patents, especially in the last few years, it can't be possible that even 50% of the current software patents are worth the effort it takes just to file them. Considering that most algorithms implemented in software are simply just another way to do something already being done, even if not as efficiently, the patented process can be simply programmed around.

The obvious advantage for open source immediately jumps out for attention. If you don't patent the software in the first place, you don't have to pay a lawyer, his staff and the government to “protect” your software. Open source automatically operates like a peer review so the software will get progressively better as time goes on, assuming that the project remains active.

If the software is part of a product and if the product is successful, the software will likely still be of interest to other open-source programmers. Other programmers' contributions to your open source code become much like having multiple on-staff programmers. Your product gets improved for little to no additional costs. In either case, a successful product or not, no profit is lost to the leech-lawyer and to patent fees!

So if the proprietary manufacturers (and you know who you are) won't submit to peer review of their code, maybe we can force them to submit to peer review when they try to patent the stuff!

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