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November 29, 2005

Patent Visibility

Frank Hayes of Computerworld and Peter Zura of 271 patent blog have caught patent visibility fever. The concept is creating a public database of software prior art. Frank went so far as to suggest that Microsoft waste money on it. Hey guys, get a clue.

The problem is more focused than supposed, and the proposed solution more problematic than imagined. Maintaining a publicly available database as suggested would be needlessly expensive, and the problems alone with copyright make it infeasible. Not to mention that the idea itself is insensible.

When a company is worried about a patent, if they have a lick of sense, they hire a professional prior art searcher. Microsoft constantly employs prior art searchers, for example.

Less than half the problem is locating prior art. The significant chunk of invalidation is separating prior art wheat from chaff. It takes time and skill. That's why attorneys, who represent companies facing a patent "situation", outsource the work to a professional searcher.

It is essential to have a searcher who is experienced and knowledgeable both about the technology area being searched and patent law. Software in particular has amorphous nomenclature, rendering keyword searching an art form at times.

Mapping to claim terms for most any technology is non-trivial, as any patent litigator can tell you.

Here's a reference sheet for high tech prior art. It's nearly all the database one might need. The missing ingredient is someone with the skill to dig.

And here's a recommended professional prior art searcher. ;-)

Posted by Patent Hawk at November 29, 2005 12:53 PM | Litigation


Think of the database as a public service to our esteemed patent examiners. This would make their jobs much easier, which in turn makes it harder to get bad patents granted. This is good because it nips the problem in the bud, before any litigation makes it to court.

Of course, that would be bad for business if you are a) a lawyer or b) a prior art searcher. So I guess it makes sense that you view this as an insensible solution proposed by the clueless.

I'm not sure why I continue to post here -- maybe its because I find it so entertaining to read your obviously skewed perspective on things. I [and apparently the bulk of netizens] find folks like Peter Zura to be MUCH more reasonable and fair, which is probably why his readership is so much larger than yours.

But I *do* appreciate the fact that you usually approve my posts, eventually. That says something positive about your willingness to at least dialogue on these issues. And you are knowledgable -- I guess I'm hoping you can retain that knowledge but begin to use it to produce a more reasoned rhetoric.

Posted by: joey5 at November 30, 2005 11:33 AM

My views on patents are rather traditional and mainstream, and informed by my backgrounds as an economist and technologist.

My opinion is my own, and it changes readily with new information. I prefer not to form an opinion without substantial information, and having at least tried to think related issues through; that process doesn’t seem to hinder a lot of people from becoming opinionated.

Patent examiners don’t need a database. They have plenty. See: http://www.uspto.gov/web/patents/searchtemplates/searchtemplates.htm

Controversy makes for popular reading, and, as the weblog byline reads, The Patent Prospector is an open forum.

Posted by: Patent Hawk at November 30, 2005 11:58 AM

Traditional? Perhaps. Mainstream? I think the mainstream has long departed from your position. Take this article at IEEE Spectrum, for example: http://www.spectrum.ieee.org/dec05/2349. There are a ton more out there like this, from reputable attorneys and thinkers, that admit that there are serious problems with our current patent system. Admitting that some reform is needed, even if it isn't the reform that is currently proposed, at least demonstrates that you are reasonable in this regard.

Posted by: joey5 at November 30, 2005 3:42 PM

joey5 seemed to miss the key sentence in the IEEE article he cited with regard to adding post-grant opposition into the patent system: "But in fact, it's a proposal that illustrates how efforts to improve the system may, in the end, merely contribute another layer of cost, delay, and uncertainty."

Exactly the kind of thing I was earlier referring to in thinking issues through before forming an opinion. History is replete with changes to dynamic systems that had externalities: unintended side effects.

Posted by: Patent Hawk at November 30, 2005 10:50 PM

Surprisingly, we agree on this point. The reforms being proposed today in our legislative branch don't help a whole lot -- in fact, they have a very deleterious effect. http://righttocreate.blogspot.com/2005/11/which-patent-reform.html has a post on this exact topic yesterday.

But that doesn't mean I'm against *meaningful* patent reform that gives relief to the true engines of innovation in our society. Quite the opposite.

The main problem, as I see it, with the reforms outlined in proposed bills is that they were drafted and backed by those with heavy interests in preserving the status quo, with a few minor tweaks. Microsoft is the best example here. With the number of patents they apply for and receive each year -- many of them bad -- they don't want the system to change to benefit the independent inventor or the small startup, they want the changes to benefit large corporations with huge patent portfolios who "suffer" under the weight of patent litigation from small guys. And the proposed reforms demonstrate this desire very effectively.

Posted by: joey at December 1, 2005 7:30 AM