Crowd-sourcing patent searches
July 22, 2013 1:04 PM   Subscribe

"There are a lot of people complaining about lousy software patents these days. I say, stop complaining, and start killing them. It took me about fifteen minutes to stop a crappy Microsoft patent from being approved. Got fifteen minutes? You can do it too." Software Patents previously: 1 2 3 4. Joel Spolsky previously: 1 2
posted by OnceUponATime (34 comments total) 34 users marked this as a favorite
 
This is a great solution to the software patents issue, short of outright disallowing them. It'll be hilarious if/when someone posts a call for prior art on a website that allows users to post calls for prior art and vote up the best response.
posted by spiderskull at 1:18 PM on July 22, 2013 [2 favorites]


It's almost as if it should be someone's job/it should be made so it isn't necessary.
posted by Artw at 1:25 PM on July 22, 2013 [18 favorites]


Sort of misleading framing; no patent application was actually being killed here. This is just the ordinary course of the application process: examiners will always cite prior art and reject applications on novelty and/or obviousness grounds. Applicants then amend the claims and argue the differences between the cited prior art and the invention. This back-and-forth happens a few times. Even after a "final rejection" an applicant can file a request for continued examination and the process can continue indefinitely. The system is actually set up to reward examiners who reject a few times and then eventually grant patents. It seems to me as though the anonymous examiner in question decided to crowdsource his job to search for prior art instead of digging something up himself. It's up for debate whether that crowdsourcing is actually a positive thing in the long run.
posted by naju at 1:28 PM on July 22, 2013 [9 favorites]


From a game theoretic perspective, this still sucks. The well heeled IP lawyer firm has a "huge win" in the same space software firms have "random chance of loss". So software firms still have to that doesn't involve paying a patent tax. Theoretically, the USPTO is supposed to handle this for us, but clearly they cannot. So instead we're going to distribute this unpaid work to underemployed software engineers, and bored patent agents? I'm sure that'll get the job done...

What's needed here is probably patent abolition. Intellectual property has an interesting way of splitting libertarian-leaning policy makers between opposition to government granted monopolies and rabid support of property rights uber alles, and it's pretty obvious which side has their ear =(
posted by pwnguin at 1:45 PM on July 22, 2013 [5 favorites]


> underemployed software engineers

Software developers will go over and above the demands of their current employer to involve themselves with interesting-looking projects.
posted by Space Coyote at 1:51 PM on July 22, 2013 [8 favorites]


It took me about fifteen minutes to stop a crappy Microsoft patent from being approved.

If it's really so easy, then why can't the patent office find that prior art?

I think there's a different mechanism at work here: Sometimes examiners are lazy and do sloppy searches, because they think nobody is looking. But when someone submits prior art, they KNOW someone is looking, so they are extra careful with that application.
In other words, once you start observing the examination process, you actually change the outcome. This is effect also known as the Heisenberg patent examination uncertainty principle.
posted by sour cream at 2:01 PM on July 22, 2013 [5 favorites]


One potential problem with this scheme is that as a software developer you are told to never ever read patents. Knowing about a patent increases damages if you're found in violation.

The patent office is write-only storage.
posted by lucasks at 2:06 PM on July 22, 2013 [16 favorites]




If it's really so easy, then why can't the patent office find that prior art?

It's impossible. You're asking a single patent examiner to have the kind of comprehensive knowledge that a hivemind can bring to bear.

They do their best, but their fallback is the assumption that if they let a patent through that they shouldn't, court tests will correct the mistake.
posted by Chocolate Pickle at 2:16 PM on July 22, 2013 [2 favorites]


It's impossible. You're asking a single patent examiner to have the kind of comprehensive knowledge that a hivemind can bring to bear.

I guess I must have misunderstood the thrust of the article then, because I thought that the basic message was that anybody can invalidate a software patent in a matter of minutes.

Maybe it was that "Got fifteen minutes? You can do it too." line at the end of the first paragraph that threw me off...
posted by sour cream at 2:33 PM on July 22, 2013


The system is actually set up to reward examiners who reject a few times and then eventually grant patents.

That aspect of the count system at the PTO was reformed back in 2009.

How Many Patents Must Be Read to Clear All Patents Rights on Software?

The article's thesis is that the sheer number of software patents means that it is all-but-impossible to perform a freedom-to-operate search for a software project. There's just one glaring flaw with that thesis: the existence of a massive, thriving software industry.

Similarly, the article points to the estimate of 250,000 patents covering a modern smartphone. And yet you can buy an unlocked Android smartphone for ~$100. That $100 covers the licensing costs of a huge percentage of those patents, and it also covers the ongoing legal wrangling over the remainder. The argument that the proliferation of patents has somehow prevented innovative goods and services from reaching the market is not so easily made.

One potential problem with this scheme is that as a software developer you are told to never ever read patents. Knowing about a patent increases damages if you're found in violation.

This is an often repeated bit of folk-law and it should really stop. That is not the definition of willful infringement. Proving willful patent infringement requires proof by clear and convincing evidence that (1) the infringer acted despite an objectively high risk that its actions infringed a valid patent and (2) the infringer either knew or should have known of the objectively high risk.

It's not just knowing of a patent's existence. It's knowing (or should-have-knowing) of an objectively high risk that the patent is valid and would be infringed by one's actions. If there are objectively valid reasons to doubt the patent's validity or infringement then willful infringement will be rejected. Since there are almost always reasons to doubt a patent's validity or infringement, it has become much more difficult to prove willful infringement.
posted by jedicus at 2:34 PM on July 22, 2013 [2 favorites]


I guess I must have misunderstood the thrust of the article then, because I thought that the basic message was that anybody can invalidate a software patent in a matter of minutes.

Yeah, but the article assumes that "you" are an experienced programmer or engineer who can page through a list of pending patents and find something that you've worked with before (and can therefore translate from Patent Obfuscate-ese into usable English that allows for keyword searches).
posted by Holy Zarquon's Singing Fish at 2:37 PM on July 22, 2013




That is not the definition of willful infringement.

Perhaps not, but I work at Microsoft and we are told in no uncertain terms not to look at non-Microsoft patents unless we first get approval from a company lawyer.
posted by Slothrup at 2:48 PM on July 22, 2013 [7 favorites]


Similar advice is given to engineers at Google. And by the lawyer at the startup I'm currently working for.
posted by jjwiseman at 2:56 PM on July 22, 2013 [1 favorite]


The problem is all of the current existing patients; this forces companies (like mine) to create what amounts to defensive patents.

If Joel wants to be really helpful instead of his usual holier-than-thou self, he can make a system where it can reparse all of the current patents that we can then submit a concept (such as "image resizing") and get some good, proper, de-legalspeak'd results.
posted by Old'n'Busted at 3:02 PM on July 22, 2013


  1. Yes, it's basically impossible to perform a freedom-to-operate search. As evidenced by the fact that nobody does it. Standard practice is to go to market and see if anybody sues you.
  2. I have personally seen cases in which products have been held off the market, or not developed at all, pending the expiration of patents. Open source and other poorly funded efforts are particularly susceptible, but I've seen it in at least one relatively large corporation, and heard of it in other contexts. This isn't some kind of wild speculation; it's actual experience. That the software industry runs in spite of the patents does nothing to demonstrate that they're not a problem.
  3. Like others here, I have personally received legal advice not to read patents in my field. Maybe having seen a patent doesn't prove willful infringement, but it makes it a matter for serious argument. Which risk-averse commercial entities don't want and will do just about anything to avoid, because, as everybody but lawyers knows, winning in litigation doesn't always help (and, as even lawyers ought to know, litigation is unpredictable even when you're in the right). Reading patents is especially risky since the language used in software patents is mostly incomprehensible to actual practitioners of the art, making it hard to be sure whether you're infringing or not. All of which is particularly galling in the light of the fact that publicizing inventions is supposed to be part of the patent quid-pro-quo.
posted by Hizonner at 3:07 PM on July 22, 2013 [1 favorite]


The system is actually set up to reward examiners who reject a few times and then eventually grant patents.

That aspect of the count system at the PTO was reformed back in 2009.


Reformed, but not abolished. I was under the impression that it's still the main incentivizing factor for examiners in their rejections/grants; is it not?
posted by naju at 3:19 PM on July 22, 2013


Jedicus: The article's thesis is that the sheer number of software patents means that it is all-but-impossible to perform a freedom-to-operate search for a software project. There's just one glaring flaw with that thesis: the existence of a massive, thriving software industry.

That's only a flaw with the thesis if we assume that patent laws have actually encouraged the creation of that industry, or that the industry wouldn't be more successful absent patent law, which is about as provable as the efficacy of my tiger-repelling rock here in Seattle.

As Hizonner pointed out, standard industry practice is to basically ignore patents and hope you don't get sued/can negotiate/settle any suit that comes along. Consider that in conjunction with the literal impossibility of performing a thorough freedom-to-operate search, the clear inadequacy of our patent office, and the myriad other shortcomings of our patent system (e.g. patent trolling), and this is just yet another example of American intellectual property law being utterly divorced from reality.

The economic landscape modern patent law has created is one where diligent compliance with the law is so cripplingly expensive and impractical that it's best to not even try and deal with the consequences as they appear, which are enforced unpredictably at best. It's like legal whack-a-mole, because the law has utterly failed to keep pace with modern technology.
posted by Vox Nihili at 4:05 PM on July 22, 2013 [4 favorites]


The article's thesis is that the sheer number of software patents means that it is all-but-impossible to perform a freedom-to-operate search for a software project. There's just one glaring flaw with that thesis: the existence of a massive, thriving software industry.

How is that a flaw? You can't know whether you are violating patents, so you simply go to market and hope not to be sued. If you are a small company, this will probably work because nobody will notice you, and they won't be able to extract enough money from you to justify the cost of a lawsuit. If you are a large company, this will also probably work because you will be able to mount a credible defense, perhaps by threatening to countersue.

It is only the high cost of litigation which prevents the patent system from crippling the software industry.

This is an often repeated bit of folk-law and it should really stop. That is not the definition of willful infringement.

The legal departments at both Microsoft and Google (and presumably other places too) disagree with you so strongly that both companies have strictly forbidden their engineers from reading software patents.
posted by Mars Saxman at 4:13 PM on July 22, 2013 [7 favorites]


It's impossible. You're asking a single patent examiner to have the kind of comprehensive knowledge that a hivemind can bring to bear.

Interestingly, the Microsofts, Amazons and Googles are coming at this in the other direction, tasking their "hive" of devs to patent any and all patentable ideas, no matter how ridiculous.
posted by Blazecock Pileon at 5:37 PM on July 22, 2013 [1 favorite]


Little more info on the Peer-to-Patent thing (previously #4 from OP "software patents") was in Democracy Journal back in 2008.
posted by Lukenlogs at 6:41 PM on July 22, 2013


Hey guys I heard cancer is nbd, look at you all being alive and shit. Thriving even. I've done some freedom - to - operate research followed by "hmm maybe this applies to me, probably not, maybe WE should be applying" thought process, meanwhile programmers can be pedantic and can get sucked into obsessive thought loops and it's painfully obvious to me in light of that AND the clarification (not refutation) why I shouldn't spend my time diligently figuring out if the code I'm about to write is knowingly infringing on something. There's code to be written and the system is fucked, let legal deal with that shit.
posted by lordaych at 6:47 PM on July 22, 2013


The argument that the proliferation of patents has somehow prevented innovative goods and services from reaching the market is not so easily made.

"This report examines changes in the patenting behavior of the software industry since the 1990s. It finds that most software firms still do not patent, most software patents are obtained by a few large firms in the software industry or in other industries, and the risk of litigation from software patents continues to increase dramatically. Given these findings, it is hard to conclude that software patents have provided a net social benefit in the software industry."

Of course no economics argument is easily made, because it's tough to run a meaningful experiment. But to flip it around -- the argument that the exponentially increasing* software patent lawsuits each year are accomplishing anything, other than sucking money out of software development, is not so easily made, since it doesn't seem that availability of patents is much of a driver for investment.

* I mean "exponentially" literally -- check out the parabola-shaped graph on page 28.
posted by jhc at 7:27 PM on July 22, 2013 [1 favorite]


As Spolsky points out, patent applicants are effectively rewarded for confusing their readers. A clear patent is less likely to be infringed, which means that the applicant is less likely to be able to win damages for the infringement. I'd like to see a requirement that patent applications be easy to find, as well as to comprehend. One way to do this would be to grant patents as of the time of application, but bar recovery of any damages for infringement that were incurred before the applicant supplied a plain-English description of the patent with appropriate tags to aid computerised searching.
posted by Joe in Australia at 7:59 PM on July 22, 2013


The article's thesis is that the sheer number of software patents means that it is all-but-impossible to perform a freedom-to-operate search for a software project.

I've never seen a company perform a freedom-to-operate search for software. In cases where you'd expect such a search might be practical, like open source media codecs, there's a big "probably" in front of the "patent free" claim, and companies still try to go after them anyway.

And yet you can buy an unlocked Android smartphone for ~$100. That $100 covers the licensing costs of a huge percentage of those patents, and it also covers the ongoing legal wrangling over the remainder.

Except when it doesn't, and patent trolls go double dipping.
posted by RobotVoodooPower at 8:10 PM on July 22, 2013 [1 favorite]


it doesn't seem that availability of patents is much of a driver for investment.

This is not true. The 2008 Berkeley Patent Survey found that 24% of surveyed software and internet startups held patents whereas 67% of venture capital-backed software and internet startups did. Stuart J.H. Graham et al., High Technology Entrepreneurs and the Patent System: Results of the 2008 Berkeley Patent Survey, 24 Berkeley Tech. L.J. 1255, 1277 (2009). In general, "[v]enture-backed firms are much more likely to hold patents, regardless of technology focus." Id. at 1280. As for why this is:
Our evidence points, however, to a relationship that runs both ways. Firms that seek venture-funding appear to be patenting more actively prior to the funding event (and for the purpose of securing funding), and venture-capital investors appear much less willing to fund companies that hold no patents.
Id. (emphasis added). Thus, evidence suggests that in all technology areas, including software, the availability and acquisition of patents is a driver for investment.
posted by jedicus at 8:30 PM on July 22, 2013 [2 favorites]


Some possible movement on business method patents, which can be very similar in absurdity to some software patents:

In recent years, supermarkets have been hit with patents claiming rights to "store locator" features on websites, having a clickable menu on a website, rendering JPEG graphics, and sending out text messages with embedded links

Source

Also, the Eolas patents might finally be dead.

Like many, I'm not optimistic that abuse across the board of patent lawsuits will be greatly reduced.
posted by juiceCake at 9:08 PM on July 22, 2013 [1 favorite]


Evidence that venture capitalists invest in software companies only when they have patents is definitely evidence of investment in patents. It is not evidence of investment into software companies.
posted by alasdair at 1:31 AM on July 23, 2013 [5 favorites]


This story sparked an idea in my head. What if patent applications became an adversarial process? Imagine inventors had to advocate their idea against a public (commons) defender, with a judge deciding validity? This is similar to what is done when someone wants to have a patent overturned, but done ahead of all applications. The idea has a few advantages to the current system:

- The roles of advocate, critic and judge are clearly separated, rather than all mixed up in one position of "examiner".

- The extra cost involved will slow down frivolous patent applications, and ensure only the very best ones are granted protection. The value of a monopoly on an idea can be enormous, so lets make the hurdle a little higher

- There's still work for lawyers in this plan, so the change might meet less resistance :)

The only downside is that the cost would become prohibitive for the Garage Inventor who deserves to profit from his brilliant idea. As a sometime garage inventor myself, I am pretty confident in claiming that this never happens. The "Garage Inventor" a straw-man argument (a double-strawman argument actually, since I'm putting it up myself).
posted by Popular Ethics at 8:03 AM on July 23, 2013




venture-capital investors appear much less willing to fund companies that hold no patents.

Patents are useful if you want to strongarm another company into giving you money or getting out of your market. They are useful if you want to deter another company from strongarming you. This is a negative-sum environment: everyone would be better off if nobody played the game. The harder people play, the worse it gets for everyone.

It's not hard to see why a venture capitalist might be willing to pay for patents, because patents are useful in the metagame, as a way of fucking people over and reducing productivity. In terms of actually driving software innovation, however, they have only negative value. We would all be better off if they didn't exist.
posted by Mars Saxman at 11:52 AM on July 23, 2013 [3 favorites]


information entropy aside, pi and it's decimal foreverness contains all finite numerical sequences, and therefore, contains all decimal-encoded text-based patents and may be considered "Prior Art"

Perhaps your friendly-neighborhood software outfit can just patent pi and be done with it. If the recording industry wants to fight that, they can patent tau.

Have your cake and eat it too.

NOTE: This comment contains copyrighted material; Walmart, owner of pi, (Title 7505 U.S.C. Section 5648) the use of which has not always been specifically authorized by the copyright owner. I am making such material available in my efforts to advance understanding of issues of copyright, patent and humanitarian significance. I believe this constitutes a 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this comment is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.
posted by Monkey0nCrack at 6:39 PM on July 23, 2013 [3 favorites]




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