The Vaults of Innovation

There is the faster-than-light radio communication patent out there.

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Darin Johnson
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Reply to
Darin Johnson
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snipped-for-privacy@iwvisp.com (Everett M. Greene) wrote in news: snipped-for-privacy@mojaveg.nodomain:

I disagree here. I think the problem isn't that procedures have changed, but that they *haven't* changed. The USPTO is "validating" software and business-model patents the same way they've always evaluated physical- invention patents. The big problem here is that because physical inventions have always been patentable, any relevant prior art will almost always be found in prior patents. This means that any disqualifying prior art in a new patent application for a physical invention will be easily turned up by a search of previous relevant patents, so that's what patent examiners do.

This doesn't work for software, though, because software's been around for decades before it was patentable, so most of the relevant prior art is unpatented and therefore can't be discovered by looking at old patents. Thus the USPTO can't, by its usual procedures, discover prior art for software unless it was invented quite recently. Effectively, the examiners have to trust the applicants. The prior art for software is mostly documented in academic literature, old product manuals, textbooks, and proprietary internal company documents, and the USPTO isn't currently set up to search that kind of documentation.

Reply to
Eric Bohlman

examiners

As far as I understood it, the USPTO does not do any research or checking of prior art of any sort - they simple ask the applicant if there has been any prior art. For traditional types of patents, it is easy for the applicant to check - they can look through the patent archives as you suggest. This also means that applicants know that any future challengers will also have easy access to solid proof of prior art, so there is no point in wasting effort applying - any challenges would be settled immediately by court rulings. For software patents, the lack of patent histories does not affect the USPTO's research - they clearly do practically none anyway, as ten minutes with google would turn up prior art to a hefty proportion of software patents. However, such sources are not as clear and strong evidence when the patent is contested, so a big company can get their patent and rely on challengers being unwilling to spend the time and money in long court battles showing the proir art.

I have also heard that the USPTO is funded based on the number of patents it issues, rather than on the work required to do a proper job. If this is the case, then I think this is the key to solving a lot of its problems. It would certainly be nice if they actually thought a little bit about what patents actually are, and why they were introduced in the first place (to protect small inventors from large, rich companies).

I don't know whether patent offices in Europe are going to be just as bad once software patenting gets underway here.

Reply to
David Brown

"David Brown" wrote in news:ca1ksh$prs$ snipped-for-privacy@news.netpower.no:

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A couple of comments:

The USPTO generates revenue from patent applications, issue fees, maintainance fees, and sale of publications. A typical patent application costs an individual or small business about $700 in application-related fees, + about $700 to issue the patent, + another $500 to maintain it after 4 years + $1000 to maintain it after 8 years, + $1500 to maintain it after 8 years. For large companies, double those numbers. So the PTO's revenue stream is substantial.

For quite a few years the PTO has been generating a profit, with the excess funds going into Uncle Sam's pocket along with other tax money. A bill was recently passed that should allow the PTO to hold onto the funds it generates; hopefully the office will use the money to improve services.

In the US, and most countries of the world (Belgium is the most notable exception) patents are examined not only for formal requirements, but also for novelty and non-obviousness. While the system is far from perfect, I can assure you that most patent applications have to overcome at least one prior art rejection.

Richard

Reply to
Richard Tanzer

This prior art rejection is probably just a text scanner that triggers on a set of words. Including perpetum mobile and such

Rene

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Reply to
Rene Tschaggelar

True. All patent offices work this way.

The European Patent Office already is. Its practice is virtually indistinguishable from that of the USPTO. The only difference, AIUI, is that patentees have to pay more attention to the /form/ of the claim (one has to make sure that it is sufficiently "technical", which is not all that difficult).

Some national patent offices in Europe (notably the UK one) also grant software patents. Also under UK case law these patents are actually enforceable. What the patent movement is trying to do is make these patents legally enforceable everywhere in Europe.

Alex

Reply to
Alex Macfie

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