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March 02 2011

Software patents, prior art, and revelations of the Peer to Patent review

A href="http://us1.campaign-archive1.com/?u=33d934c165e69e4b507504c2b&id=8771dc3ae5&e=77c352ede8#mctoc1">report
from the Peer to Patent initiative shows
that the project is having salutary effects on the patent system.
Besides the greater openness that Peer to Patent promotes in
evaluating individual patent applications, it is creating a new
transparency and understanding of the functioning of the patent system
as a whole. I'll give some background to help readers understand the
significance of Manny Schecter's newsletter item, which concerns prior
art that exists outside of patents. I'll add my own comments about
software patents.


Let's remind ourselves of the basic rule of patenting: no one should
get a patent for something that was done before by someone else. Even
if you never knew that some guy on the other side of the world thought
of adding a new screw to add to a boiler, you can't get a patent on
the idea of adding a screw in that place for that purpose. The other
guy's work is called prior art, and such prior art can be
found in all kinds of places: marketing brochures, academic journals,
or actual objects that operate currently or operated any time in the
past. For software (which is of particular interest to most readers
of this blog), prior art could well be source code.

Now for the big lapse at the U.S. Patent Office: they rarely look for
prior art out in the real world. They mostly check previously granted
U.S. patents--a pretty narrow view of technology. And that has
seriously harmed software patenting.

Software was considered a form of thinking rather than as a process or
machine up until the early 1980s, and therefore unpatentable. Patents
started to be granted on software in the United States in the early
1980s and took off in a big way in the 1990s. (A useful href="http://www.bitlaw.com/software-patent/history.html">history has
been put up by Bitlaw. This sudden turn meant that patent
examiners were suddenly asked to evaluate applications in a field
where there were no patents previously. So of course they couldn't
find prior art. It would have been quixotic in any case to expect
examiners--allowed less than 20 hours per patent--to learn a new field
of software and go out among the millions of lines of code to search
for examples of what they were being asked to grant patents for.

In many parts of the world, software is still considered unsuitable
for patenting, but it's worth noting that the European Union has been
handing out patents on software without acknowledging them as such,
because a hard-fought battle among free software advocates has kept
software officially unpatentable.

In the U.S., patents have been handed out right and left for two
decades now, so the prior art does exist within patents on software.
But that even makes things worse. First, the bad patents handed out
over the initial decades continues to weigh down software with
lawsuits that lack merit. Second, the precedent of so many unmerited
patents gives examiners the impression that it's OK to grant patents
on the same kinds of overly broad and obvious topics now.

Now to Schecter's article. He says the patent office has long
acknowledged that they look mostly to patents for prior art, but they
won't admit that this is a problem. One has to prove to them that
there is important prior art out in the field, and that this prior art
can actually lead to the denial of applications.

And Peer to Patent has accomplished that. From Schecter:

Approximately 20% of patent applications in the pilot were rejected in
view of prior art references submitted through Peer To Patent, and
over half of the references applied by examiners as grounds for those
rejections were non-patent prior art.

The discussion over the patent process, which has progressed so
painfully slowly over many years, now takes a decisive step forward.
Prior art in the field should be taken into account during the process
of examining patents. The next question is how.

Peer to Patent and related efforts such as href="http://www.articleonepartners.com/">Article One Partners
offer a powerful step toward a solution. Much of the tinkering
proposed in current debates, such as the number of patent examiners,
the damages awarded for infringement, and so forth (a bill was
debated in the Senate today, I've heard), will accomplish much less to
cut down the backlog of 700,000 applications and improve outcomes than
we could achieve through serious involvement of public input.

I am not a zealot on the subject of software patents. I've read a lot
of patent applications and court rulings about patents (see, for
instance, my href="http://www.praxagora.com/andyo/article/patent_bilski_aftermath.html">
analysis of the Bilski decision) and explored the case for
software patents sympathetically in href="http://radar.oreilly.com/archives/2007/09/three_vantage_p.html">another
article. But I have to come down on the side of position that
software and business processes, like other areas of pure human
thought, have no place in the patent system.

Maybe Rivest, Shamir, and Adleman deserved their famous href="http://www.google.com/patents?vid=4405829">patent (now
expired) on public-key cryptography--that was a huge leap of thought
making a historic change in how computers are used in the world. But
the modern patents I've seen are nothing like the RSA algorithm. They
represent cheap patches on tired old practices. Proponents of software
patents may win their battle in the halls of power, but they have lost
their argument on the grounds of the patents to which their policy has
led. Sorry, there's just too much crap out there.

December 24 2009

Peer to Patent Australia recruits volunteer prior art searchers

The

Peer to Patent
project has already earned its place in history. It was explicitly
cited as inspiration for the open government initiative in the Obama
administration, which recently released a comprehensive directive
(available as a
PDF)
covering federal agencies. The founder of the project, law professor
Beth Noveck, began implementation of the directive as Deputy CTO in
the US government. But I've been wondering, along with many other
people, where Peer to Patent itself is going.

It's encouraging to hear that a new pilot has started in Australia and
has gathered a small community of volunteer patent art seekers. You
can check out the

official site

and its

Wikipedia page
.
Because Australia is much smaller in population than the US and sees
much less patent activity, the scope of the pilot is smaller but seems
to be chugging along nicely.

The pilot started on December 9 and plans to run for six months,
offering 40 patents for review in the areas of software and business
methods (the same ones as the US Peer to Patent project). Among
participating patent applicants are IBM, General Electric,
Hewlett-Packard, Yahoo!, CSIRO, and Aristocrat. Right now, 15 patents
are posted, each has at least one volunteer reviewer, and one boasts
two suggestions for potential prior art.

Professor Brian Fitzgerald of the Queensland University of Technology,
the Project Leader of Peer to Patent Australia, says, "Peer to Patent
allows people from anywhere to plug into the patent examination
process and to add what value they can. And from what we have seen in
the US, it works: examiners are relying on the Peer to Patent prior
art notifications. Our aim is to help build an international platform
for the project as well as embed its benefits within the Australian
patent system. We ask you to join the Australian project and help
contribute to the development of Peer to Patent on a worldwide basis."

While the U.S. pilot is undergoing evaluation, Peer to Patent's
executive directory Mark Webbink says, "Signs are good for a potential
restart of the program some time in 2010. Dave Kappos, the Under
Secretary of Commerce and Director of the USPTO, has long been a
supporter of Peer to Patent, and the prior art contributions appear to
be proving useful. The worldwide economy produced some drag on program
expansion when the UK Intellectual Property Office delayed its
anticipated pilot. However, the Japan Patent Office, which previously
ran its own peer review pilot, now appears interested in expanding its
program. IP Australia and Queensland University of Technology are to
be commended for moving on the pilot so quickly." Brian Fitzgerald
says that China and other Asian countries are watching Japan and
Australia with interest.

I have followed Peer to Patent since fairly early drafts of the
proposal, have written about it frequently, and believe it is both
viable and necessary. The recent ruling against Microsoft Office shows
that patents in software, at least, are way out of control. Prior art
cannot in itself solve a broken system, but a robust examination
process can at least make applicants think twice about trying to exert
ownership over routine concepts such as separating a document's markup
from its content. (That's the purpose of markup in the first place.)
Incidentally, Australia has its own version of the famous

Bilski patent case
,
Grant v Commissioner of Patents.

In fact, the progress Peer to Patent has made in many countries proves
my faith in it. Just think about the inertia of government agencies
and the impenetrability of both the individual patent application and
the patent process as a whole. Who would imagine, putting all those
barriers together, that Peer to Patent could have accomplished so much
already?

We're not on Internet time here, but on policy time. Peer to Patent is
still a baby, and with enough care and feeding it can thrive and grow
strong.

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