

The simple fix that could heal the patent system - lisper
http://www.slate.com/articles/technology/future_tense/2013/12/the_simple_fix_that_could_heal_the_patent_system.html

======
belorn
The patent system of today depends on a single core concept left from the 19th
century: _Government knows everything_. It's a 200 year old administrative
artifact, removed from every aspect of law, except patents.

The assumption of the 19th century patent system was that everything that
should be patented already was patented already; therefore, when you would
bring a invention to the office, the correct way to determine whether it is
novel is to ask whether it is novel in light of the art already in the office.
When asking whether it is obvious, you are essentially asking whether the very
semi-skilled form of art knowledge possessed by the patent examiner would have
regarded this as a natural extension of the existing art deposited in the
office.

In other words, determining a patent comes down to searching the patents
offices' own archive. If the old patent texts would be so lucky as to say: "To
unlock the cellphone, the user’s finger moves across the touch screen", it
won't match when Apple adds the word "continuous". The patent examiner is
forced into a position where the least resistance is simply to grant Apple the
patent.

This system is not working. The patent office archives do not have every
iteration and written description about everything. By certainty, they won't
have all the implied descriptions. As such, one should not assume that it is
efficient to do an binary determination - 0 or 1, novel or obvious or not - on
the basis of the consultation of the patent offices' own administrative
records.

The simple change suggested by the article would only remove the ability for
companies to brute force a claim phrase so it does not match exactly something
in the patent offices' archives. It would not fix the patent system, but it
might patch it up so exploiters can't run a brute force method like some
script kids attacking web forms and see what string returns a SQL injection
vulnerability.

~~~
pbhjpbhj
The UK Patent Office certainly searches far, far more art than just the global
patent literature. They make use of many specialist databases, extensive
internet searches (carefully tailored not to disclose novel material),
journals relevant to the art.

The search and substantive examiners in the UK are one and the same (or were a
few years ago) and the majority I knew of had doctorates.

Your example of mismatch according to a word/phrase is laughable. Novelty
means novelty of the invention [defined by the claims], no matter how it's
claims are worded, not novelty of the claims. If indeed USPTO examiners are
searching only on specific word forms then I'd be amazed; that certainly isn't
the case in Europe. You give an example of adding "continuous" \- the problem
here lies in that either that is anticipated or the objection is that it's
obvious based on prior art. If an obviousness objection is made the applicant
can claim that "if it's obvious why hasn't anyone done it already" \- that
then forces their hand to leave the analysis to the courts.

The classic UK example (quite old now) of the breadth of prior art is citing a
children's comic against a "doggy doorbell". The breadth of related arts used
in searches has vastly expanded since then.

In addition to that search and examination is divided up based on the IPC/ECLA
classification systems (and additional subdivisions cast over those that are
local) - which allows for specialisation.

~~~
belorn
> They make use of many specialist databases, extensive internet searches
> (carefully tailored not to disclose novel material), journals relevant to
> the art.

How is that contrary to the core concept of the assumption that " _Government
knows everything_ "? If they do use specialist databases (source?), and
subscribe to journals, it is still simply just more files collected in their
computer system, which patent examiners use when searching key words/phrases
located in the patent application.

A few months, there was a article here on HN about how patent writers
carefully choose words in patent application just so key word searching Google
and patent databases won't result in prior art. The industry that writes the
large mass of patents knows how to exploit the mismatch according to a
word/phrase system.

Europe patent offices might have a current better time dealing with this,
since the brute force method illustrated in the article do not exist here.
Like with SQL injections, its harder to do an exploit without the possibility
to try until the claim string matches.

~~~
pbhjpbhj
[to reiterate I can't address the specifics of the USPTO, but can address how
patent search and examination work from personal experience]

> _which patent examiners use when searching key words /phrases located in the
> patent application._ //

You said examiners only search patent documents in their computer systems.
That's just wrong.

There are many commercial databases of technology - IBM's Technical Disclosure
Bulletins (TDB) that they used for defensive publication for example or
compendiums of papers from various scientific journals. All areas of
technology have trade magazines that give details of current tech, enough to
provide a suggestion of where to search in more detail. Of course the internet
is a vast resource too

> _how patent writers carefully choose words in patent application just so key
> word searching Google and patent databases won 't result in prior art_ //

Can you link that. It sounds like nonsense. Claims use language such as
"fixing means" to allow breadth to the legal monopoly defined encompassing all
relevant/possible forms of fixation - glue, screws, bolts, magnetics, welding,
flexible retention. Searches are made for the idea, not the language used to
express it.

Again, it's not about string matching. If it were then it would be a simple
computerised process.

Example of sources of non-patent disclosures -
[http://www.delphion.com/search-prior_art#tdb](http://www.delphion.com/search-
prior_art#tdb), [http://www.questel.com/index.php/en/product-and-
services/pri...](http://www.questel.com/index.php/en/product-and-
services/prior-art-and-alert) [questel orbit],
[http://www.sciencedirect.com/](http://www.sciencedirect.com/). It used to be
that the UK PO had console based access (eg telnet) to create search queries
against these (and other) databases. Now of course the web is [often] used as
the interface medium.

~~~
belorn
It was posted 4 month ago under the title "Victory Lap for Ask Patents"
([https://news.ycombinator.com/item?id=6084110](https://news.ycombinator.com/item?id=6084110))

 _" The second technique to getting bad software patents issued is to use a
thesaurus. Often, software patent applicants make up new terms to describe
things with perfectly good, existing names. A lot of examiners will search for
prior art using, well, search tools. They have to; no single patent examiner
can possibly be aware of more than (rounding to nearest whole number) 0% of
the prior art which might have invalidated the application."_

While searches are made with the intention of finding the idea, no human made
search engine can search for an concept. Search engines work on words. The
semantic web tried to make a web searchable by concept and failed, and the
closest second best is google (which only work for popular forms of the
English language). Patent examiners could brute force and search for any
synonym associated with each term and phrase, including those not making any
sense in context, and use that to find prior art. Doubtful to the point of not
a chance.

However, going back to core augment here about a system that assumes that the
government knows everything, and lets apply the same logic to the justice
system. The police do all the evidence gathering, so why do they not simple
judge and decide verdict themselves. After all, if we assume they know
everything there is to know, why should the state doubt itself in deciding the
outcome? Why should the justice system ever doubt the government expertise,
and do a costly and slow judgement, hearing all side, and then weight it all
as if the government expertise might not always be 100% right all the time?

Is it enough that the police actually go and look outside the officer to
collect evidence (like accessing outside databases or do internet searches)?
Will that make them 100% right all the time?

------
WildUtah
I have a very simple fix to propose. Any patent claim that is or could be
implemented in computer software in whole or in part is automatically invalid.
Accusing a computer program of infringing is _prima facie_ evidence of
invalidity.

That would fix pretty much all the nonsense of garbage software and business
method patents overnight. It would eliminate nearly all patent trolling. And
not a single patent that actually provides effective incentives to advances
the arts, technologies, or sciences would be affected.

~~~
Buttons840
The purpose of the patent system is to incentivise inventors to reveal their
inventions in exchange for a monopoly on the idea. This way, inventions are
not lost and society doesn't slide backwards. Imagine someone invented a pill
to cure cancer, but kept the details secret and then died; we would lose his
invention (a silly example, but it illustrates the point).

I believe patent applicants should have to argue how difficult it would be for
a peer in the industry to reproduce their work.

If you develop an expensive new pill to cure a major disease, we'll give you a
patent in exchange for you revealing the details of your important invention.
Future generations will benefit.

If you put a one click purchase feature on your website, it may be a new idea,
but there are tens of thousands capable of reproducing your "invention" on
their own. It is a new idea, so grant a short patent (maybe 5 years?) but it
hurts instead of helps society to grant a 20 year patent.

~~~
Dylan16807
Software patents rarely provide enough detail to reproduce, so there would be
no loss.

And one click purchase is a terrible example to use, because there is no way
to use such a thing as a trade secret, since it's a frontend innovation.

~~~
Buttons840
I failed to explain myself clearly.

I am arguing that front end innovations, especially software innovations,
shouldn't be patentable. Or at least grant them a shorter 5 year patent.

I don't believe patenting things that are easily reproducible, like software,
benefits society.

------
nimble
While empowering patent examiners to say "no" will probably help, it's not
going to fix patents. Changes I would make to fix patents:

\- Get rid of license negotiation before the fact and replace it with
attribution after the fact. All patented ideas should compete for a bounded
slice of the pie of products. Attribution should be incentivized, but failure
to attribute shouldn't be penalized excessively.

\- Instead of just letting a panel of experts (patent examiners) determine
which ideas are novel and which aren't, we should further let them determine
how novel they are and award the most novel ideas bigger rewards. The current
system of granting a monopoly on an idea allows the patent holder to collect a
large potion of the total value of an idea, which would be fair only for ideas
that occur to just one person in the world. In reality, almost all patented
ideas (the good ones, anyway) occur to a number of bright people, even if they
wouldn't occur to a person having ordinary skill in the art.

\- The patent database should be more like the collection of peer reviewed
academic knowledge. Ideas should be rewarded based on impact, rather than just
who technically had the idea first. We should reward high quality exposition
of ideas instead of our current system that mostly rewards obfuscation.

Of course, all of this is even less likely to happen that the idea in the OP.
Abolishing patents or at least software patents would be preferable to the
system we have now.

------
spurgu
Why couldn't patents simply expire after x years? 2-3 years would give small
companies with groundbreaking ideas enough time to develop and differentiate
themselves from their competitors. After that everyone would have equal access
to the idea and the world would be a better place as a result.

~~~
belorn
I would very much like to see patent applicants having to argue for the length
of the requested patent.

When someone goes to the government and asks for financial support, they don't
get a "one size fit all" cash bag. It matters how great in need you are, and
how great an idea you have for a youth center. But when it comes to get an
government enforced monopoly, no argument is even needed. No one will even ask
if 3 years would be enough, or what the extra 17 years are there for. It's 20
year or nothing.

~~~
danielweber
I've been in a place where a bigger company copied our work (including our
typos!) and we finally used a patent for our lawyers to get them to knock it
off. But it was very painful waiting the 2-3 years for the patent to be
granted.

We would have gladly taken a shorter term, like 8 years, in exchange for
getting the patent granted faster. We didn't need to hold onto the stuff
forever, but we needed _some_ breathing room.

------
gyc
The premise of this article that patent attorneys wear down patent examiners
through dragging on prosecution by continually responding to office action
rejections is nonsense. In fact it's just the opposite. Patent examiners would
love to see the same patent application over and over because they will
already be familiar with the subject matter and will have a pretty good idea
of the art in that field from having already examined the applications before.
Plus the patent examiner is allotted extra time to examine the application
each time an RCE or continuation is filed to extend prosecution. So seeing the
same patent application over actually helps the examiner to more easily meet
his production requirements.

~~~
lisper
It is not nonsense. I myself have received two patents (out of five total)
using exactly this method. One of these patents is for a device that sends
information faster than light (US Patent 7126691), so it plainly should never
have issued. (I prosecuted this patent specifically to test the theory that
one could patent anything using this method.)

~~~
gyc
According to PAIR, your patent was allowed after you responded to the first
non-final office action. So no you did not use the method set out in the
article of wearing down the examiner by continually filing continuations to
get a yes.

~~~
lisper
Filing official actions is not the only way to wear down an examiner's
resolve. And does it really invalidate my point that it only took me two
iterations instead of N to obtain a patent on a device that violates the laws
of physics?

------
pbhjpbhj
Surely you can't litigate against someone until you have a granted patent? You
can't infringe an ungranted patent - that would be ridiculous in extremis.

~~~
lisper
Yeah, you'd think that, wouldn't you. And of course you can't infringe on a
never-granted patent, but you can infringe on a not-yet-granted patent.

[http://en.wikipedia.org/wiki/Submarine_patent](http://en.wikipedia.org/wiki/Submarine_patent)

~~~
pbhjpbhj
Submarine patents no longer work since TRIPs.

When they did work however there was no liability up until the patent becomes
granted an unpublished submarine couldn't be used to make money until it
surfaced. The idea was that you'd keep it hidden to allow the industry to make
use of the invention and then when the invention was established you'd surface
the patent and say "stop or pay up".

That's been [largely] fixed now with "early" publication (18 months I think it
is in the USPTO).

~~~
lisper
In the technology world, 18 months is still a very long time.

It's actually even worse now since the US switched to first-to-file. Suppose
you invent something and show it to your buddy, Fred. Fred can then turn
around and patent your invention, and then sue you for using it. And unless
you took the precaution of patenting it yourself or formally publishing it to
establish prior art, Fred will win. The fact that you actually invented it
doesn't matter.

~~~
pbhjpbhj
The fact you invented it means you have prior art. Proving it in court may be
hard, but the patent is legally invalid if it counts as a "public" disclosure
(cf Windsurfer vs Tabor Marine [it's been a long time I may have misremembered
that caselaw it's Australian IIRC but the principle is the same]).

There is no requirement for "formal publication". It needs to be disclosed in
public, that could be a photo on your Facebook, showing a person in the pub
with the public present, anything.

The fact that you invented it gives you absolute indemnity in the law and a
public disclosure invalidates any subsequent patent application.

But as always you can't protect against being sued for anything.

~~~
lisper
> It needs to be disclosed in public, that could be a photo on your Facebook,
> showing a person in the pub with the public present, anything.

No, this is not enough. You have to be able to _prove_ in court of law that
you disclosed it when you said you did, and that your disclosure was in fact a
disclosure of the invention in question. So a blog post that says, "I just
invented this cool widget" is not enough. Even a blog post with a detailed
description may not be enough unless you have some way of proving that you did
not go back and edit the post after the fact.

And in my scenario where you don't make a public disclosure but just show the
thing to your friend Fred who then decides to stab you in the back, you will
almost certainly have no recourse whatsoever. In theory, yes, the fact that
you invented it and Fred didn't protects you. In practice, to avail yourself
of this protection you have to _prove_ that Fred didn't invent it
independently, and that will be nearly impossible for you to prove if Fred is
even a remotely competent backstabber. (And, of course, in actual practice it
won't be Fred, it will be FredCo, Inc.)

~~~
pbhjpbhj
Yes, as it's tort law the measure is usually that you have to show beyond
reasonable doubt that something is true in order for it to be considered fact
by the court.

I did point this out in the post but it's kinda implicit within the topic of
law that courts require proof.

For the avoidance of doubt - any public disclosure which you can show beyond
reasonable doubt to have been made prior to the priority date of the
application may be used to invalidate the patent. [Jurisdictions vary but
AFAIK this is now true both before the USPTO and EPO and member state's
offices].

Is it really necessary to point out that it has to disclose the invention. Or
that it has to be public within the legal definition. Do you want to go in to
how "prior" should be interpreted?

------
dllthomas
I don't like limiting appeals. What about raising the costs of new
applications based on the number of outstanding applications by a single
entity? That should leave things affordable for the little guy, but encourage
judicious dropping of applications.

Of course, there's the tremendous problem of the manipulability of what
constitutes "an entity" \- shell companies and what have you.

------
edvinbesic
The simple fix would be to give you a grace period after the acquisition of
the patent (if you file or purchase) to actually put it to use or else you
lose your claim to it.

This would abolish the patent trolls as well as stop companies from doing
preemptive filing because its "good practice".

But maybe that's a too simplistic view of the situation.

~~~
pbhjpbhj
There is, in UK law, a clause that allows the patent office to force the grant
of a license for a reasonable price. This is supposed to stop people from
offering onerous licensing terms or simply sitting on the tech.

The thing here is that patent terms are too long for the rate of change of
technology nowadays. About 7 years seems like a reasonable term to me.

An alternative to limiting years would be having a vastly increasing rate of
increase on the patent maintenance fees per year for granted patents;
particularly if it could be related to the revenue of any products that it is
in. Then at least the public purse would benefit - from the monopoly the
public are giving - in proportion to the benefit the private company is
receiving..

------
nova
I'd say the patent system is working exactly as intended.

------
etanazir
Law is probably an irreducibly complex (NP hard) problem; and a simple
solution is most likely naive.

~~~
lukev
Please don't use precise computer science terminology to describe social
problems unless you also plan on providing a precise model describing the said
problem in mathematical terms.

Otherwise, you're co-opting language about things that are precise and
provable to make your subjective point.

</rant>

~~~
etanazir
Prove P = NP, or is it P != NP? Just write an array of the ways a law may be
written.

------
throwawaykf
Ahh, Bessen. Interesting that he cites his own "trolls cost $29B" study [1]
without mentioning that it's been "called into question" [2, 3, 4] to put it
diplomatically. It's not like he's unaware of criticism of his work either,
since he has responded to criticism in the past [5].

And par for the course, this article of his has several flaws as well:

1\. Giving examiners the power of irreversible rejection is pretty bad, if you
think about it. Valid patents are regularly rejected for the very same reasons
that people argue invalid patents are allowed. Contrary to popular belief, if
examiners are overworked and lack enough time, their default reaction is
usually to reject the application. I have seen many a BS rejection issued
because the examiner just wanted to meet his quota. And I'm not even a patent
agent or lawyer!

2\. (Nitpicking) Continuations are not the only way to continue examination
after a rejection. You can also file for a Request for Continued Examination
(RCE) and continue prosecuting the same application.

3\. Continuations are a very valuable tool and not just fodder for abuse. Like
TFA says, it allows applicants to claim multiple inventions off a single
patent application. But that is often what happens! A single invention could
have multiple facets that are inventions in their own right. As a random
example, a lightbulb that uses tungsten filament and bulb with an inert gas
could actually be three inventions: a) the material being used for the
filament, b) the use of an inert gas in the bulb, and c) the combination of
both that creates an even longer lasting bulb! What may happen is you file a
patent for the combination but may realize each aspect is valuable by itself,
and you may later want to claim them separately.

And sometimes, this is not in your control. A patent is allowed to only claim
a single invention. An examiner may look at your claims and decide that they
cover two (or more) separate inventions, and issue a "restriction", which
essentially forces you to choose one invention to continue. If you still want
to protect the other claims, you have to file a continuation.

And even further: Companies regularly dump hundreds of pages of technical
specs (or a professor dumps a dozen papers) on to a patent lawyer and ask them
to file on all the inventions covered in there. Sometimes this happens under a
pretty tight deadlines (e.g. the product has already been on sale, or the
papers published, for almost a year, which puts a bar on when a patent can be
filed). In that case, lawyers write up one gigantic spec, slap on claims for
whatever they think is the invention, and file it. Over time, they can then
sit the inventors down and hash out the real invention and cover them in
continuations.

4\. I looked at the file wrapper for the Apple patent. "continuous" was not
the only word added. Almost a third of the claim was amended to make it more
precise of what they were claiming. I personally don't think this is a stellar
patent, but such misinformation must be pointed out.

5\. Strangely (or maybe not so strangely) enough, academics who write so much
about patents have no idea how examination actually happens, or even how
patents even work. To show invalidity, an examiner must show a one or more
references that completely cover each and every element of the claim. If they
cannot, no matter how obvious it seems to us, they have to allow it. The
reason for this is that the decision must be an objective one, and all our
opinions are inherently subjective. Supporting a rejection with previously
published information, which is a recorded fact, is the only currently known
way of doing this objectively.

6\. Bessen implies other countries don't have patent litigation problems
because their examiners can issue an absolute rejection. First of all, I
highly doubt that is the case - there always avenues of appeal. Secondly, he
ignores the legal environment in other countries, such as "loser pays" in EU,
which tend to discourage lawsuits in general, not just frivolous ones.
Thirdly, this makes no difference in the quality of patents - I have seen a
ton of US patents and their international counterparts, and they pretty much
all have the same claims. And they can all be just as each other. Nokia
actually prevailed in some lawsuit in the EU over a patent that claims,
without (much) exaggeration, pausing downloads when something more important
is to be downloaded.

7\. Rambus, as underhanded as their FRAND patent shenanigans were, was not a
patent troll. By this standard, all fabless semiconductor companies would be
patent trolls.

1\.
[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2091210](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2091210)

2\.
[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117421](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117421)

3\. [http://blog.patentology.com.au/2012/06/29-billion-us-
troll-t...](http://blog.patentology.com.au/2012/06/29-billion-us-troll-tax-or-
just-another.html)

4\. [http://gametimeip.com/2012/07/30/patent-scholars-
challenge-b...](http://gametimeip.com/2012/07/30/patent-scholars-challenge-
bessen-meurers-bogus-29-b-npe-costs-figure/)

5\.
[http://www.researchoninnovation.org/hahn.pdf](http://www.researchoninnovation.org/hahn.pdf)

~~~
mattmanser
Point out your objections, don't personally attack the guy.

~~~
throwawaykf
Hmm, genuinely curious, which part of my post sounded like a personal attack
as opposed to an objection?

~~~
mattmanser
Ahh, Bessen...It's not like he's unaware of criticism of his work...And par
for the course, this article of his has several flaws as well

------
lisper
Note that the actual original title of this piece is "The Power of No", which
is plainly much less informative than the subtitle, which I actually submitted
("How a simple change could fix the patent system -- but it will never happen"
just in case the mods change my submission). c.f.
[https://news.ycombinator.com/item?id=6834019](https://news.ycombinator.com/item?id=6834019)

And yes, I realize that this submission directly contradicts my earlier vow
not to submit direct links any more. What I didn't realize at the time I made
that vow was that it directly contradicts explicit HN posting guidelines. I
think that particular part of the guidelines is counterproductive, but as long
as the guidelines are what they are I will respect them. But I will also keep
pointing out why I think they should be changed.

~~~
tocomment
Sorry, dumb question. What's a direct link and why can't you submit them?

~~~
lisper
There are two kinds of HN submissions: URLs, and text submissions. What I
called a "direct link" is a URL submission. An "indirect link" would be a text
submission with an embedded URL, but these turn out to be specifically
disallowed by the HN submission guidelines. (I didn't know that when I wrote
the submission referred to in the upstream comment.)

------
raldi
What a linkbait headline. It might as well be, "Trolls hate this one weird old
trick that could fix the patent system"

~~~
lisper
Unfortunately, HN rules left me no choice but to submit the headline that the
article had. But just out of curiosity, what headline would you have
considered appropriate?

~~~
raldi
I wasn't blaming you; I was blaming Slate. A non-linkbait headline would be,
"Doing _____ would, all by itself, go a long way toward reforming the patent
system."

~~~
lisper
Well, it's not really fair to blame Slate either. Their business depends on
getting people to click on links, link bait is effective, so they have little
choice but to use it. This is one of the reasons that IMO the requirement to
submit original titles is counterproductive. The interests of site headline
writer are not generally aligned with those of the HN audience.

~~~
raldi
"It's not really fair to blame a spammer; their business depends on you
getting spammed, spam is effective, and so they have little choice but to spam
you."

~~~
lisper
Not a proper analogy. Spam is a property of the delivery mechanism, linkbait
is a property of the content. Apples and monkey wrenches.

~~~
raldi
Oh come on. Fine, pretend I said Nigerian scammers.

~~~
lisper
Still not a proper analogy. Nigerian scammers are scammers. They are
committing fraud. Slate is an ad-supported publisher, which in most places is
still considered an honorable trade.

