If you violate a patent unknowingly, you are liable for damages. If you violate a patent you know exists, you are liable for treble damages.
The only rational thing for someone who actually makes stuff to do is to not read any patents, ever, as a matter of general policy.
This might not be the socially responsible answer; we should all be fighting the patent madness in our industry. It is, however, the most logical course of action. It puts the lie to the whole "promote the Progress of Science and useful Arts" thing, but that's where we are.
> If you violate a patent you know exists, you are liable for treble damages.
Not quite. First, in cases of willful infringement, the judge can --- but need not --- award up to treble damages. Second, a patent owner seeking to prove that infringement was willful must show, among other things, either:
(1) that the accused infringer knew, not just of the existence of the patent, but of an objectively high likelihood of infringement of a valid patent;
OR
(2) that this objectively defined risk was so obvious that the accused infringer should have known it.
If the accused infringer puts on a reasonable defense, it often negates the "objectively high likelihood" element.
NB: Issued patents are presumed valid until proven otherwise --- and according to the Supreme Court, that proof must be not merely by a preponderance of the evidence, but by clear and convincing evidence. That was the Supreme Court's holding in last year's Microsoft v. i4i opinion; see http://www.patentlyo.com/patent/2011/06/microsoft-v-i4i-supr...
It is definitely true that a lot of companies over-protective legal departments have persuaded their engineers never to read patents.
I don't think that you should optimize for the case where you've actually lost a patent suit. First of all, that's a pretty rare case. But more importantly, it's cowardice. It's the moral equivalent, in my mind, of carefully crossing to the other side of the street when you see the neighborhood bully approach. Yeah, it's "the most logical course of action," but the better course of action is to get your own gang together and shut them the f* down!
>USPTO patent examiners will be able to search the site to find prior art they may have missed; the USPTO, complying with the new law, will also provide an online system for submitting prior art. We’re also integrating with Google Patent Search, so every patent application on Google will include a link to discussion on Stack Exchange. Google has also implemented an algorithmic prior art search utility that will be helpful to site participants.
I believe the site isn't so much intended for people trying to find out whether or not their idea is patented as it is for the USPTO to easily find prior art before granting patents.
Respectfully, I have to say that your "rational strategy" is a terrible suggestion. This strategy only makes sense if your desired goal is to reduce treble damage risk. Moreover it completely ignores the risk of devoting a ton of resources to developing a product that is already protected by a patent.
My favorite part is how the Patent Office director approached Stack Exchange about doing this. As someone who leans libertarian, it's easy to learn about the bad ways government restricts innovation, such as the current patent system, and assume that all government agents involved are either bumbling bureaucrats inadvertently screwing up the system or corrupted cronies deliberately screwing up the system. Of course, those kinds of people exist, but it's encouraging to see that the director is taking intelligent and thoughtful steps to improve his office's work, as well as a pleasant reminder that my default stereotypes about government employees are often wrong. Not a panacea for the patent debacle, of course, but an awesome step in the right direction.
A large part of the problem isn't the bureaucrats bumbling up the system, it's the "government is always corrupt under all circumstances" crowd passing "accountability" laws requiring 17 redundant forms in triplicate being filled out and sent around to a dozen different independent oversight offices thereby using $100 of resources (in the form of man hours, paper and so on) to spend every $.01. The ones who make these rules do so out a mixture of some absurd fear that that $.01 might be spend incorrectly so we must at all costs prevent such a travesty (damn the costs) and a cynical attempt to prove how awful it must be by their own sabotage (a mentality of "I believe there can be no good here, so I will prove it by injecting as much bad as I can in the system")
Huge numbers of government employees would love to, and regularly do, suggest ways of improving efficiency and outcome, only to be told "it is illegal to be efficient". I've seen it happen over an over.
Most of the problems in government stem from the horribly written legislation. Bureaucrats are tasked with bringing sanity and order to the chaos that lawmakers provide them. You never hear about the vast majority of bureaucrats, because they do their jobs like they're supposed to. It's only on those (relatively) rate occasions when they screw up that it becomes news.
This seems wonderful. It's exactly the sort of practical solution that could really make a big dent in the patent problem, and to see it actually come into being with the cooperation of the USPTO and Google Patent Search is very, very heartening.
I hope folks here will take time to read this new site from time to time and raise any particularly problematic patent applications to their circles. There's the risk of reading a patent and then potentially being made liable for trebled damages, but hopefully any ridiculous patents will get filtered out by this system, reducing the risk of violation in the first place.
I see a two-tier system emerging: a group of "frontline" patent reviewers reading AskPatents regularly, and a wider group of people interested in patents within an industry. If only the really problematic patents are brought to the attention of the wider group, they won't have to worry so much about liability for trebled damages. The "frontline" people reading new submissions on AskPatents and trumpeting out the basket cases - they'll be the ones taking on the trebled-damages risk. I hope there'll be some among us who can play this role. (It'll probably end up being interested hobbyists or the patent-hunting departments of large corporations.)
edit: I wonder if there's any mechanism for discussion of approved patents? This might provide the seed material for patent reexamination, which in turn allows for patent invalidation. If people review approved patents and start offering prior art for some, any patent trolls intending to wield those patents might start having second thoughts, because it'll look like those patents are on shaky legal ground. This way, even after being granted, questionable patents could still be cast into doubt. Maybe I'm overoptimistic, but how far could Spolsky/the PTO push this?
edit2: Someone correct me if I'm wrong, but it looks like there's no "patent application stream" on AskPatents, so it's basically a bog-standard discussion board for patents right now. It might be more handy if it had an integrated feed from the patent application database (no need for an API, even an RSS feed would work).
Regarding the treble damages for having read a patent - since these are patent applications, not granted patents, perhaps one could argue that one didn't know it was actually granted?
> But you can still ask for or post prior art and potentially make a difference.
> Even though you can't just submit that for free on a granted patent, you make it a bit easier for the folks that do have skin in the game by sharing what you have on the problematic patent(s). That way, if someone is sued for infringing, they'll be armed with what they need to defend themselves.
This is a step forward, and I hope it is successful.
However as it stands what this actually means is that finding prior art is an externality of submitting a patent claim. The cost of stopping a dubious patent from causing damage is borne by the victims, rather than the instigator. If these crowdsourcing schemes are successful, the next step should be to make filers of such patents pay a fee to those who found the prior art.
Until that happens, we actually expect that companies in patent-happy industries will monitor filings by their competitors and spend some of their own money and resources blocking competitors from building bad patent portfolios (there was enough of this on Peer To Patent, a very small-scale experiment, to give me confidence that it will happen)
Fuck yeah. Applying crowdsourcing to prior art discovery is probably the most viable treatment for improving the USA's patentile dysfunction problem, due to:
a.) low-cost
b.) high potential for busting garbage patents
c.) low potential for abuse/trolling/making-things-worse
With respect to (c), the most obvious attack vector for Myhrvoldian corporo-fascists would be DOS/dilution-via-huge-numbers-of-paid-shills. But I think that's why Stack Overflow's backing is exciting; they are Internet-scale.
1) An additional "this patent is so bad the applicant deserves to be slapped," and a meaningful penalty for submitting atrocious patents (scaled to be meaningful based on who is submitting it).
2) Some compensation for those who are doing a good job providing prior art. This doesn't have to be financial - improving professional reputation would probably be enough, but that's not really going to happen if it's relatively few people on the site. Could we come up with a way of increasing the exposure of contributers (when they want it)?
http://pyvideo.org/video/425/pycon-2011--how-to-kill-a-patent-with-python
Part I (5 mins): The USPTO as a data source.* The full-text of each patent is available from the USPTO (and now from Google.) What does this data look like? How can it be harvested and normalized to create data structures that we can work with?
Part II (15 mins, in two parts):* Once the patents have been cleaned and normalized, they can be turned into data structures that we can use to evaluate their relationship to other documents. This is done in two ways - by modeling each patent as a document vector and a graph node.
Part IIA (7 mins): Patents as document vectors.* Once we have a patent as a data structure, we can treat the patent as a vector in an n-dimensional space. In moving from a document into a vector space, we will touch on normalization, stemming, TF/IDF, Latent Semantic Indexing (LSI) and Latent Dirichlet Allocation (LDA).
Part IIB (7 mins): Patents as technology graphs.* This will show building graph structures using the connections between patents - both the built-in connections in the patents themselves as well as the connections discovered while working with the patents as vectors. We apply some social network analysis to partition the patent graph and find other documents in the same technology space.
Part III (5 mins): What have we built?* Now that we have done all this analysis, we can see some interesting things about the patent database as a whole. How does the patent database act as a map to the world of technology? And how has this helped with the original problem - finding better prior art?
One idea-- it would be awesome if I could set up an account with a list of topics I have experience in (maybe just pulled from linkedin?), and be automatically notified when an application relevant to my knowledge is submitted.
I bet there would be thousands of people happy to chime in once a week / month when a patent in a specific field they have experience in was submitted. It would be a great way to build up a base of expert knowledge without requiring people to be constantly polling the site.
This is really great - some additional suggestions:
- When you're submitting a patent application you are required to have done a prior art search and list found prior art.
- law firms providing patent services often outsource prior art searches (more and more also to India etc)
- companies attacked with "Jules Verne patents" or overly broad patents often pay large amounts to find most relevant prior art
Suggestions:
(1) alloy users to put up bounties for finding prior art on existing / pending patents or for technology areas. I believe bounties should be starting with about $5K up to $100k+
(2) pay out those bounties based on a particular formula - e.g. when usable results top 5/ best answers get shares of the bounty pool - e.g. best answer 35%, 2nd 20%, 3rd 15%, 4th 10%, 5th 10%, 6th 10%
(3) Similar to bounties this could also be done via a sponsoring system
1) Should there be a penalty for people who file patents that obviously have a ton of prior art to incentivize people not to do this or to do more research?
2) Should there be a reward for people who discover prior art invalidating patent applications/ claims? The reward could come from a) people who are using the idea without holding the patent and thus don't want to get sued over the patent and are benefiting from the research, and b) the frivolous filers from 1).
Maybe I'm missing something, but if I come up with a great idea and have any inkling that it may be patentable, why would I want to post the idea publicly before trying to patent it? Wouldn't that open it up to the possibility of theft?
Sure, the existence of the post could prove you thought of it first, but that doesn't prove that the idea was stolen from there nor does it pay for a lawyer...
“Any person at any time may cite to the Office in writing prior art consisting of patents or printed publications which that person believes to have a bearing on the patentability of any claim of a particular patent…”
> In other words, as of September 16, the USPTO is required to accept submissions from the public of prior art.
This is for third parties to weigh in on the patentability of an idea, not for the person filing the patent.
Some patents will get a lot of questions, and an advantage of doing things this way is that you can use tag descriptions to provide background information on patents.
There's not a huge cost to having this tag, either.
The whole thing only makes sense as giving a way for the public to more directly communicate with examiners. Keeping the bar very low for examiners is a key component of that.
It will be interesting to see how much of the activity ends up being useful.
This is even more useful than it sounds at first. If all it did was to prevent patents with essentially identical claims from being issued over and over, it would be a huge win.
As it is now, simply paying off one troll because you validate a password or a license in you app is no guarantee whatsoever that another won't show up next week to troll you on the exact same feature.
Oh good! Something like this is what I asked for/about a 1.5 months ago. Although, I missed the crowdsourcing angle. Also glad to see that the Patent Office does want to be more productive =)
[+] [-] njl|13 years ago|reply
The only rational thing for someone who actually makes stuff to do is to not read any patents, ever, as a matter of general policy.
This might not be the socially responsible answer; we should all be fighting the patent madness in our industry. It is, however, the most logical course of action. It puts the lie to the whole "promote the Progress of Science and useful Arts" thing, but that's where we are.
[+] [-] dctoedt|13 years ago|reply
Not quite. First, in cases of willful infringement, the judge can --- but need not --- award up to treble damages. Second, a patent owner seeking to prove that infringement was willful must show, among other things, either:
(1) that the accused infringer knew, not just of the existence of the patent, but of an objectively high likelihood of infringement of a valid patent;
OR
(2) that this objectively defined risk was so obvious that the accused infringer should have known it.
If the accused infringer puts on a reasonable defense, it often negates the "objectively high likelihood" element.
See generally http://www.jdsupra.com/legalnews/standard-clarified-for-will...
NB: Issued patents are presumed valid until proven otherwise --- and according to the Supreme Court, that proof must be not merely by a preponderance of the evidence, but by clear and convincing evidence. That was the Supreme Court's holding in last year's Microsoft v. i4i opinion; see http://www.patentlyo.com/patent/2011/06/microsoft-v-i4i-supr...
[+] [-] spolsky|13 years ago|reply
I don't think that you should optimize for the case where you've actually lost a patent suit. First of all, that's a pretty rare case. But more importantly, it's cowardice. It's the moral equivalent, in my mind, of carefully crossing to the other side of the street when you see the neighborhood bully approach. Yeah, it's "the most logical course of action," but the better course of action is to get your own gang together and shut them the f* down!
[+] [-] Permit|13 years ago|reply
I believe the site isn't so much intended for people trying to find out whether or not their idea is patented as it is for the USPTO to easily find prior art before granting patents.
[+] [-] dfc|13 years ago|reply
[+] [-] dumb_dumb|13 years ago|reply
The advice you give is like an urban myth. It's passed around for many years.
It assumes there's no alternative but to infringe, so you might as well minimize your potential losses.
Maybe it's better to read patents, design around them and not infringe. That seems like the most rational course of action.
Are treble damages automatic? Or are they are discretionary?
[+] [-] joshuahedlund|13 years ago|reply
[+] [-] sophacles|13 years ago|reply
Huge numbers of government employees would love to, and regularly do, suggest ways of improving efficiency and outcome, only to be told "it is illegal to be efficient". I've seen it happen over an over.
[+] [-] rprasad|13 years ago|reply
[+] [-] creamyhorror|13 years ago|reply
I hope folks here will take time to read this new site from time to time and raise any particularly problematic patent applications to their circles. There's the risk of reading a patent and then potentially being made liable for trebled damages, but hopefully any ridiculous patents will get filtered out by this system, reducing the risk of violation in the first place.
I see a two-tier system emerging: a group of "frontline" patent reviewers reading AskPatents regularly, and a wider group of people interested in patents within an industry. If only the really problematic patents are brought to the attention of the wider group, they won't have to worry so much about liability for trebled damages. The "frontline" people reading new submissions on AskPatents and trumpeting out the basket cases - they'll be the ones taking on the trebled-damages risk. I hope there'll be some among us who can play this role. (It'll probably end up being interested hobbyists or the patent-hunting departments of large corporations.)
edit: I wonder if there's any mechanism for discussion of approved patents? This might provide the seed material for patent reexamination, which in turn allows for patent invalidation. If people review approved patents and start offering prior art for some, any patent trolls intending to wield those patents might start having second thoughts, because it'll look like those patents are on shaky legal ground. This way, even after being granted, questionable patents could still be cast into doubt. Maybe I'm overoptimistic, but how far could Spolsky/the PTO push this?
edit2: Someone correct me if I'm wrong, but it looks like there's no "patent application stream" on AskPatents, so it's basically a bog-standard discussion board for patents right now. It might be more handy if it had an integrated feed from the patent application database (no need for an API, even an RSS feed would work).
[+] [-] d2vid|13 years ago|reply
[+] [-] cruise02|13 years ago|reply
> But you can still ask for or post prior art and potentially make a difference.
> Even though you can't just submit that for free on a granted patent, you make it a bit easier for the folks that do have skin in the game by sharing what you have on the problematic patent(s). That way, if someone is sued for infringing, they'll be armed with what they need to defend themselves.
[+] [-] ajb|13 years ago|reply
However as it stands what this actually means is that finding prior art is an externality of submitting a patent claim. The cost of stopping a dubious patent from causing damage is borne by the victims, rather than the instigator. If these crowdsourcing schemes are successful, the next step should be to make filers of such patents pay a fee to those who found the prior art.
[+] [-] spolsky|13 years ago|reply
Until that happens, we actually expect that companies in patent-happy industries will monitor filings by their competitors and spend some of their own money and resources blocking competitors from building bad patent portfolios (there was enough of this on Peer To Patent, a very small-scale experiment, to give me confidence that it will happen)
[+] [-] veidr|13 years ago|reply
a.) low-cost
b.) high potential for busting garbage patents
c.) low potential for abuse/trolling/making-things-worse
With respect to (c), the most obvious attack vector for Myhrvoldian corporo-fascists would be DOS/dilution-via-huge-numbers-of-paid-shills. But I think that's why Stack Overflow's backing is exciting; they are Internet-scale.
[+] [-] gpcz|13 years ago|reply
[+] [-] debacle|13 years ago|reply
I have some hope that this is a good step towards fixing things. Hopefully that statement sounds cautiously optimistic enough.
[+] [-] laserDinosaur|13 years ago|reply
http://patents.stackexchange.com/questions/197/prior-art-for...
http://patents.stackexchange.com/questions/133/prior-art-for...
[+] [-] dllthomas|13 years ago|reply
1) An additional "this patent is so bad the applicant deserves to be slapped," and a meaningful penalty for submitting atrocious patents (scaled to be meaningful based on who is submitting it).
2) Some compensation for those who are doing a good job providing prior art. This doesn't have to be financial - improving professional reputation would probably be enough, but that's not really going to happen if it's relatively few people on the site. Could we come up with a way of increasing the exposure of contributers (when they want it)?
[+] [-] denimboy|13 years ago|reply
[+] [-] bpodgursky|13 years ago|reply
One idea-- it would be awesome if I could set up an account with a list of topics I have experience in (maybe just pulled from linkedin?), and be automatically notified when an application relevant to my knowledge is submitted.
I bet there would be thousands of people happy to chime in once a week / month when a patent in a specific field they have experience in was submitted. It would be a great way to build up a base of expert knowledge without requiring people to be constantly polling the site.
[+] [-] alexchamberlain|13 years ago|reply
[+] [-] fpp|13 years ago|reply
- When you're submitting a patent application you are required to have done a prior art search and list found prior art.
- law firms providing patent services often outsource prior art searches (more and more also to India etc)
- companies attacked with "Jules Verne patents" or overly broad patents often pay large amounts to find most relevant prior art
Suggestions:
(1) alloy users to put up bounties for finding prior art on existing / pending patents or for technology areas. I believe bounties should be starting with about $5K up to $100k+
(2) pay out those bounties based on a particular formula - e.g. when usable results top 5/ best answers get shares of the bounty pool - e.g. best answer 35%, 2nd 20%, 3rd 15%, 4th 10%, 5th 10%, 6th 10%
(3) Similar to bounties this could also be done via a sponsoring system
[+] [-] danielweber|13 years ago|reply
What effect do you think this would have on small inventors?
[+] [-] nancyhua|13 years ago|reply
1) Should there be a penalty for people who file patents that obviously have a ton of prior art to incentivize people not to do this or to do more research?
2) Should there be a reward for people who discover prior art invalidating patent applications/ claims? The reward could come from a) people who are using the idea without holding the patent and thus don't want to get sued over the patent and are benefiting from the research, and b) the frivolous filers from 1).
[+] [-] bduerst|13 years ago|reply
Last week it was "Cross Validated" - their version of stack overflow but entirely for stats.
[+] [-] kristaps|13 years ago|reply
[+] [-] laserDinosaur|13 years ago|reply
[+] [-] wizzard|13 years ago|reply
Sure, the existence of the post could prove you thought of it first, but that doesn't prove that the idea was stolen from there nor does it pay for a lawyer...
[+] [-] cruise02|13 years ago|reply
> In other words, as of September 16, the USPTO is required to accept submissions from the public of prior art.
This is for third parties to weigh in on the patentability of an idea, not for the person filing the patent.
[+] [-] alexchamberlain|13 years ago|reply
Once filed, patents are up for discussion.
[+] [-] lambada|13 years ago|reply
[+] [-] chalst|13 years ago|reply
There's not a huge cost to having this tag, either.
[+] [-] maxerickson|13 years ago|reply
It will be interesting to see how much of the activity ends up being useful.
[+] [-] citricsquid|13 years ago|reply
[+] [-] noonespecial|13 years ago|reply
As it is now, simply paying off one troll because you validate a password or a license in you app is no guarantee whatsoever that another won't show up next week to troll you on the exact same feature.
[+] [-] AshleysBrain|13 years ago|reply
[+] [-] batgaijin|13 years ago|reply
http://www.patentstorm.us/patents/7028023/fulltext.html
http://www.makelinux.net/ldd3/chp-11-sect-5
[+] [-] Dn_Ab|13 years ago|reply
http://news.ycombinator.com/item?id=4339035