Is the Patent Office backing off rigor on software patents?

Is the Patent Office backing off rigor on software patents?

Summary: The Patent Office badly needs its own stimulus, to reduce the backlog of applications and to apply more care to their examination.

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TOPICS: Software
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Over the weekend Slashdot went hair on fire over reports the Patent Office is about to weaken its stand on obviousness.

Obviousness is a hurdle every patent application must cross to be approved by an examiner.

It has been especially obnoxious in the world of software patents, one example being Amazon's One-Click Patent, which makes us all go through multiple steps when we buy online anywhere else.

(That may look like a floppy disk under the eagle's right wing there, but closer examination shows it to be part of the shield the eagle has landed upon. Would that a patent troll be found under the shield.)

In addition to being obvious, the One-Click Patent (and many others) fail my mousetrap test. You should be able to patent a mousetrap design, just not the idea of catching mice.

Some patent attorneys think this weakening of obviousness obviously means it's going to be easier to sneak obvious ideas through the patent office. That's Slashdot's fear as well.

I don't think it's quite that obvious.

More important than the various tests of a patent is the examination process itself along, of course, with the result. In the last few years those results, while a big uneven, have seemed to be moving in the direction of rigor.

But we won't really get what we need until we have more patent examiners. The Patent Office badly needs its own stimulus, to reduce the backlog of applications and to apply more care to their examination.

If it takes three years to get an application through the process, and that application isn't examined rigorously, the standards and procedures make little difference.

It also matters little what advocates on any side say if the Patent Office doesn't have the time and people needed to digest these offerings. This seems obvious to me.

So I am uncertain about the Patent Office's policies, but I am certain about its budget. It needs to go up. And if someone can suggest that money come from somewhere other than the general fund it might help the necessary medicine go down.

Topic: Software

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15 comments
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  • USPTO swamped? There's an app for that

    Yet, even without the patents issued, the pace of new development continues, only less hindered by patent trolls it seems.

    There is some benefit to USPTO being swamped, it slows patent trolls down, but seemingly invention continues without those patents being issued.

    So in effect USPTO by it's own failings demonstrates the need for reform of the patent system!

    IMHO, turn it into patent insurance. You think you have an invention that qualifies, you buy invention-insurance to protect it. The insurance company places its bet on whether they think it's an invention, the insurance pays for the legal challenges to protect the invention, profit from it, if they get it wrong they foot the legal + other costs.

    If the invention-insurance company gets it wrong often enough, they go bankrupt.

    Multiple providers, for the insurance, you want to protect your invention for 3 years, then buy cover for 3, any breaks in cover and your invention lapses.

    Let the market decide if an invention is really new and worth defending.
    guihombre
    • RE: Is the Patent Office backing off rigor on software patents?

      @guihombre Thats a great idea and something like what ffii.org proposed some time ago. Its not unlike how copyrights work, where you examine the infringement and construct claims in court instead of in a patent. Patent would work better as insurances - along with the certificate of patent that the insurance co would provide and publish with the government.
      bosson
  • Don't know if that's a market solution

    Big companies can afford the insurance for even bogus crap. Small inventors can't afford it for even the best stuff.

    It's a lot like increasing the USPTO budget by raising application and processing fees. At what point do the fees discourage small inventors?
    DanaBlankenhorn
  • What do you mean "IS"?

    USPTO has lacked rigorness since shortly after Thomas Edison's death.
    Dr_Zinj
    • RE: Is the Patent Office backing off rigor on software patents?

      @Dr_Zinj I wonder if the two events are connected? Edison was one of the first really big advocates of patent rights, and even chased the movie industry to the West Coast, so zealous was he.

      Point being patents can slow the progress of technology, or they can speed it up. It should be the job of policy makers and the USPTO to be certain it's speeding it up. That is the intent in the Constitution, and that should be the test.
      DanaBlankenhorn
  • RE: Is the Patent Office backing off rigor on software patents?

    The monsters have pushed so much "obviousness" through by hiding it in pure obfuscation that it's just become another battlefield of who can pay the most lawyers long enough to bankrupt the opposition or force people to settle and claim they won.

    It's ridiculous.
    Tholian_53
    • RE: Is the Patent Office backing off rigor on software patents?

      @Tholian_53 It comes down to the examiners not being qualified to make a ruling on certain categories of patents. In the case of software, if they are like my neighbor's father, the ability to understand what they are looking at and how it affects the industry is well above their head.
      Ventaur
  • RE: Is the Patent Office backing off rigor on software patents?

    I've been prosecuting a patent for about 7 years (it's finally going to issue later this year). From my perspective, it felt pretty rigorous, though I admit the examiner seemed swamped with work, and only marginally able to cover the subject area (due to workload).
    bobhazy
  • RE: Is the Patent Office backing off rigor on software patents?

    "In addition to being obvious"

    First, one must understand the meaning of the word "obvious" as it applies to patent law. Simply put, it must have been obvious to one skilled in the art AT THE TIME OF THE INVENTION. As patent attorneys like to say, everything is obvious once someone else has invented it -like magnetic core memory as invented by Ann Wang. Heh, that patent has already been through the ringer. It's time to move on.
    staff2
    • RE: Is the Patent Office backing off rigor on software patents?

      @staff2 - There's a blast from the past!

      I used to work at the Wang Labs facility in Tewksbury, MA three decades ago on the VS and VP computer lines. Thanks for the memory jog!
      PollyProteus
  • No

    Software shouldn't be patented it goes again the whole idea of patents to begin with patents were grant to stimulate creativity not stifle it get rid of patent in software and watch the business bloom
    wizardb@...
  • RE: Is the Patent Office backing off rigor on software patents?

    Remember back in the golden age of music (late 60's- mid 70's)? Someone wrote a song, other musicians thought it was groovy, then covered it. They didn't re-record it for sale, they just played it at concerts. This sort of "obviousness" should be seen throughout all aspects of patents. It's like the Intel/Amd mess. Intel sues Amd for infringing on the 32bit coding. Then Amd countersues on grounds that Intel is infringing on 64bit. I think we should get rid of the court systems and go old school and force CEO's and CFO's into deathmatches and winner take all. Let's see how many companies still screaming infringement.
    trust2112@...
  • Cure for USPTO overload

    Why not just ban software patents? Return to the "you can't patent mathematics" stance of yesteryear.

    Software patents, ever since they were allowed, have never had the rigor of hardware patents. Hayes tried every-which-way to get a patent through -- eventually amending it so all it patented was the idea of using timing to distinguish out-of-band signals. Something *I* had prior art on at the time, in open-source software (though the term hadn't been invented yet). And considered obvious at the time I did it.

    So, all their hardware innovation didn't make it through the examining process, but a trivial software idea sailed through without a hitch.

    It's only gone downhill from there. Yes, there are some software ideas deserving of patents. Like my wife's patent. But I have yet to see any of these patents actually fill the role that our founders envisioned.

    In fact, because so much of software depends on compatibility and interoperability -- patents are more often a barrier to progress in the software domain, than an economic stimulus.

    So maybe we can fix software patents, but I've seen no evidence we ever will. So I think we're better off abolishing them, than living under the current system.
    Bob.Kerns
  • RE: Is the Patent Office backing off rigor on software patents?

    I guess the best thing you guys can do then if you feel the patent office is too overworked, is stop inventing !!.

    Sure, that is allready the plan, wait until someone else comes up with a good idea, and just copy it, and use it for yourself. For your own gains.

    that is really going to improve the variety and quality of consumer products. Right !!!. .

    After all if we followed that plan we would still be using the steam engine or water wheel for our source of energy.

    After all, why invent a better engine !!! just use whatever has allready been invented. Takes NO brains all you have to do is copy.

    Ofcourse, you think lots of people are just going to keep invention, and doing the leg work for you, even thought in the long run, after their idea has been stolen by WELL EVERYONE, and they get no reward from thier efforts, they will go find a job that actaully pays money..

    NO one is going to work and invent, if they know their efforts will be stolen by groups that want to take advantage of your idea.

    Look at the defence industry, patents are useless for military secrets and military technology, as others will use that technology regardless of the law.

    What is the result, secrecy, total secrecy at that, if someone cannot protect their idea's and their developments by patents, they have to protect it by other means.. simple as that..

    Remove patents, and people who create good idea, with make it impossible for you to copy what they have done.

    If you believe having no patent protections will make 'things better' then my friends, you are sadly mistaken..
    Aussie_Troll
  • Patent office fails the utilitarian test

    Greatest good for the greatest number of people means the PTO should go bye bye. Some people will stop inventing but mostly inventing will accelerate since one will not have to worry about lawyers descending like vultures to pick your flesh.
    Most people invent because it is in their DNA... they are driven. Look at all the "ameteur" inventors. People invent for the same reason they play amateur sports ; becuase it is fun.
    Getting big government out of the PTO is the first , best step. *privatize* Zeroing out the PTO would be a better step.

    Gus in Denver
    99guspuppet