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   Author  Topic: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY  (Read 19083 times)
Isaac
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USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« on: Jan 10th, 2006, 9:58am »
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USPTO PARTNERS WITH OPEN SOURCE COMMUNITY TO EXPAND  
PATENT EXAMINER ACCESS TO SOFTWARE CODE  
 
Alliance will focus on software-related patents
 
 
The Department of Commerce’s United States Patent and Trademark Office (USPTO) has created a partnership with the open source community to ensure that patent examiners have access to all available prior art relating to software code during the patent examination process.  
 
more at...
 
http://www.uspto.gov/web/offices/com/speeches/06-02.htm
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Isaac
JSonnabend
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #1 on: Jan 11th, 2006, 8:10am »
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I saw a blurb on this in the New York Times, and of course, the Slashdot folks are frothing at the mouth, but I'm not sure what it really means.  Has anyone taken the time to actually figure any of this initiative out?  I'd love to hear.
 
- Jeff
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SonnabendLaw
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JimIvey
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #2 on: Jan 16th, 2006, 2:35pm »
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I've been sort of following the indirect discussions re software and patents and open source.  I'll try to read between the lines in the notice....
 
Quote:
The group agreed to improve prior art resources available to the USPTO;

First, it's not clear whether "the group" is the entirety of the meeting attendees or just the representatives of the open source community.
 
I read this as providing better access to non-patent software prior art for use by examiners.  
 
This is one of the major concerns of the open source community.  The hope of OS is to create something and set it free to benefit the world generally.  Much of the focus on OS development is on independent creation, to avoid copyright infringement.  The licensing aspects of OS is to prevent the software from being corralled and privatized for exclusive business use (think of a corralled wild stallion -- that's the mental image of the software taken and privatized by a corporation).  Unfortunately, there is no independent creation defense to patent infringement (hence, the disdain for software patents, in my opinion).  The other problem is that prior public use of OS software generally doesn't prevent subsequent patenting of the same thing -- due largely to inadequate searching facilities (and to inadequate documentation of the OS software itself, from a patent examiner's likely perspective).  If such a patent issues, it has a strong presumption of validity and woe is the OS developing community.
 
This statement seeks to address at least the inadequacy of searching tools to cover a substantial portion of publicly used and/or distributed OS software, and may attempt to addressed the perceived inadequacy of OS software documentation (not how to use it, which is reasonably well documented, but how it does what it does and to some degree, what is does exactly).
 
Quote:
to develop a system to alert the public when USPTO publishes certain software-related applications so that interested parties can submit related prior art in accordance with relevant rules and law;

My guess here is that the OS community wants to know when there's a new software patent application for which to mobilize the troops.    I don't know who's going to build the tool, but I could probably do it myself (some script to perform a weekly search of published applications in a given group and at least a front page download).  In fact, I've already done something like that for other types of searches (downloads the front pages of all results on a patent search page).  I'd happily share that with the OS community (or any other community) under OS terms.
 
I think combining this tool (mine or another's) with inexpensive means for third-party IDS submission could go a long way to overcoming any limitations in searching tools for OS software.  This would allow the OS community to voluntarily provide search services for the PTO.
 
Quote:
to explore developing additional criteria for measuring the quality of software patents.

This one is scary to me.  For some in the OS community, they wouldn't know a quality patent (software or otherwise) if it came up and bit them on the behind.  There's no reason to single out software from all other sorts of technology within the patent system.  All criteria for a good software patent should be applicable to all other types of patents.  As much as I'm sympathetic to the OS community, asking them which software patents are good is like asking a canary which cats are good.  
 
Personally, I think that 70%-80% of the concerns of the OS community would be addressed by a good way to effectively consider publicly used OS software as prior art during patent examination.  The first two items quoted above would represent good progress in satisfying this need.  Hopefully, the last item just means the PTO and the OS community will keep an ongoing and open dialogue to facilitate providing high-quality examination of software patent applications.
 
Regards.
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JSonnabend
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #3 on: Jan 17th, 2006, 8:40am »
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Quote:
I think combining this tool (mine or another's) with inexpensive means for third-party IDS submission could go a long way to overcoming any limitations in searching tools for OS software.

This, I believe, would help fix our broken system immeasurably.  Create an "opposition" system, of sorts, akin to the opposition mechanism for tm's.  Even third party IDS' would be a big step in the right direction.
 
- Jeff
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SonnabendLaw
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #4 on: Jan 17th, 2006, 11:53am »
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Of -->This one is scary to me.  For some in the OS community, they wouldn't know a quality patent (software or otherwise) if it came up and bit them on the behind.  There's no reason to single out software from all other sorts of technology within the patent system.  All criteria for a good software patent should be applicable to all other types of patents.  As much as I'm sympathetic to the OS community, asking them which software patents are good is like asking a canary which cats are good. <--
 
the work on the patent quality index is probably an outgrowth of the patent quality problem proposed by Quillen and Webster, wherein it was once alleged that the USPTO grants patents on 97% of all applications.  Although even Quillen and Webster dropped that, one notes that Professor Wagner cited the 97% number in a law review published in Nov. 2005, so he may be laboring under a false impression of how bad the "quality" problem is.  Separately, there seems to be a US patent very similar to the approach taken by Wagner (6,556,992).  Thus, ironically, the approach taken to alleviate problems caused by neglect of prior art seems to ignore prior art pertinent to the approach.  
 
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