Saying nothing would be slightly better than the false promise that's actually there:
We've also issued new guidance to examiners to help ensure that patents cover only "new" and "non-obvious" inventions.
That's impossible in the field of software. There is simply too much activity and too many specialties for the patent office to have any hope of being able to reasonably evaluate whether a claimed invention is novel, or whether it's obvious to a skilled programmer in the relevant specialty.
This is one big reason (though not the only reason) why software is incompatible with the patent system. Patent law has a presumption of validity for issued patents, and that presumption is laughable if it's a software patent.
If millions of people carried machine shops around in their backpacks, mechanical engineering would be incompatible with the patent system too.
Have you actually read this document (http://edocket.access.gpo.gov/2011/pdf/2011-2841.pdf)? Because it gives clear guidelines applicable to new and existing patents. It DOES cover most issues raised against software patents. It CLEARLY provides means to defend against crap and broad patents. Meaning: unscrupulous lawyers and trolls WON'T be able to play on ambiguities anymore. Presumption of validity is worth zero against most cases covered by this document. Just read it, because it could put a smile of your face !!!
I had not read that. Thank you. Those guidelines, if followed, will address some issues with software patents, but not the problems I mentioned. This is understandable, because the problems I mentioned are intractable.
The key problem you mention, of not having enough specialist knowledge, applies to /all/ patents. Actually, like every other field, 99% of engineers will understand 99% of patents. The specialist areas are the small minority. I'm sure I can find 100 UI or web patents for every sound or graphics one... for instance. So I agree this is an intractable problem, but I disagree that its a serious one...
It's not a problem of understanding the patents. The problem is determining novelty and non-obviousness. There are so many open-source jQuery plugins coming out all the time that a web/UI patent's novelty is going to be very hard to determine. Similarly, this ongoing flood of progress will help give new ideas to ordinary skilled programmers, rendering lots of potential "inventions" obvious.
I still contend that this is a serious problem in a legal system that includes presumption of validity.
I only had time to briefly skim this, but I didn't catch anything about reforming the compensation system for patent examiners, which incentivizes the granting of patents without giving them sufficient review. Anyone else find any info of this nature in the PDF?
(I recently learned that examiners at the European Patent Office have no direct incentives for granting a patent and may internally bill more working time if they reject a patent application instead. However, as rejecting an application requires a lot more research than granting a patent, examiners still might have an incentive to just grant a patent.)
From what I've heard, it's combination of time restrictions for reviewing a patent and penalizing rejections that later get overturned when the applicant appeals the decision.
> If millions of people carried machine shops around in their backpacks, mechanical engineering would be incompatible with the patent system too.
Ah, another person who doesn't remember when good metal shops in school were nearly universal and even the drones took shop and passed when that meant something.
And yes, it was relatively easy to get the equipment and start making things.
Comments
Saying nothing would be slightly better than the false promise that's actually there:
We've also issued new guidance to examiners to help ensure that patents cover only "new" and "non-obvious" inventions.
That's impossible in the field of software. There is simply too much activity and too many specialties for the patent office to have any hope of being able to reasonably evaluate whether a claimed invention is novel, or whether it's obvious to a skilled programmer in the relevant specialty.
This is one big reason (though not the only reason) why software is incompatible with the patent system. Patent law has a presumption of validity for issued patents, and that presumption is laughable if it's a software patent.
If millions of people carried machine shops around in their backpacks, mechanical engineering would be incompatible with the patent system too.
Have you actually read this document (http://edocket.access.gpo.gov/2011/pdf/2011-2841.pdf)? Because it gives clear guidelines applicable to new and existing patents. It DOES cover most issues raised against software patents. It CLEARLY provides means to defend against crap and broad patents. Meaning: unscrupulous lawyers and trolls WON'T be able to play on ambiguities anymore. Presumption of validity is worth zero against most cases covered by this document. Just read it, because it could put a smile of your face !!!
I had not read that. Thank you. Those guidelines, if followed, will address some issues with software patents, but not the problems I mentioned. This is understandable, because the problems I mentioned are intractable.
The key problem you mention, of not having enough specialist knowledge, applies to /all/ patents. Actually, like every other field, 99% of engineers will understand 99% of patents. The specialist areas are the small minority. I'm sure I can find 100 UI or web patents for every sound or graphics one... for instance. So I agree this is an intractable problem, but I disagree that its a serious one...
It's not a problem of understanding the patents. The problem is determining novelty and non-obviousness. There are so many open-source jQuery plugins coming out all the time that a web/UI patent's novelty is going to be very hard to determine. Similarly, this ongoing flood of progress will help give new ideas to ordinary skilled programmers, rendering lots of potential "inventions" obvious.
I still contend that this is a serious problem in a legal system that includes presumption of validity.
I only had time to briefly skim this, but I didn't catch anything about reforming the compensation system for patent examiners, which incentivizes the granting of patents without giving them sufficient review. Anyone else find any info of this nature in the PDF?
This is not the purpose of this document.
What are these incentives?
(I recently learned that examiners at the European Patent Office have no direct incentives for granting a patent and may internally bill more working time if they reject a patent application instead. However, as rejecting an application requires a lot more research than granting a patent, examiners still might have an incentive to just grant a patent.)
From what I've heard, it's combination of time restrictions for reviewing a patent and penalizing rejections that later get overturned when the applicant appeals the decision.
> We've also issued new guidance to examiners to help ensure that patents cover only "new" and "non-obvious" inventions.
So "new" and "non-obvious" weren't already requirements?? That explains a lot.
> So "new" and "non-obvious" weren't already requirements?? That explains a lot.
On the off chance that you weren't being ironic, novelty and non-obviousness (to one "skilled in the art") have been requirements for decades.
The author of "we've issued new guidance" is either playing you for a sap or doesn't know patent law.
> If millions of people carried machine shops around in their backpacks, mechanical engineering would be incompatible with the patent system too.
Ah, another person who doesn't remember when good metal shops in school were nearly universal and even the drones took shop and passed when that meant something.
And yes, it was relatively easy to get the equipment and start making things.