If Two People Invent The Same Thing At The Same Time, Should One Get A Patent?

from the obviousnous dept

For quite a long time, we've argued that one of the problems with the patent system is that it goes way overboard in providing rights to whoever came up with an idea first, even if others independently developed the same idea. That's lead some to suggest that patents should have an "independent invention" defense. After all, the patent system is designed specifically to encourage innovation where it might not occur otherwise (basically, assuming that there's market failure for innovation). If multiple people are coming up with the product simultaneously, that suggests (1) that there's demand in the market providing plenty of incentive for innovation and (2) the idea is not particularly non-obvious (as a patented concept must be).

Noel Le points us to some recent research on the topic including one by Mark Lemley and another by Samson Vermont (warning: pdf). The good news is that it's clear that more than a few people are thinking about this very issue. Vermont's piece also has a compelling response to the claim (usually from patent attorneys) that adding in an "independent invention" defense would simply lead to lies from people claiming to have invented a product independently. Vermont explains why there's little evidence to support that, given that with the system today, someone would get even greater benefit in falsifying a claim of "first to invent," and yet it's rarely seen. There are tremendous penalties associated with fraud and perjury (which lying about an invention would amount to), and that (plus moral issues) seem to make that argument less of an issue.

Unfortunately, it appears that Le completely misreads Lemley's article in his writeup about it. He positions Lemley's piece to be arguing against the "independent invention" defense, when if you read the paper, that's not the case at all. Lemley is clearly compelled by it, but just notes that rushing to put it in place without some limitations could create problems -- mainly due to legacy issues. His argument isn't (as Le claims) that adding such a defense would "reduce incentives to innovate and impose inefficiency on the market for patents." Rather, Lemley points out that Vermont's push for an independent invention defense is based on a few assumptions, and if they are wrong, then it could present problems. However, Lemley doesn't seem to be saying that those assumptions are wrong -- just that if an independent invention defense is implemented, it should be done in a way that carefully watches to see if the assumptions hold up (in fact, Lemley seems to agree that Vermont's assumptions may be true). Also, there is an important point that Lemley makes, that we've been suggesting for years. You may not even need an independent invention defense, if you had a better "obviousness" test for patents. The fact that two totally separate entities came up with the same idea, that certainly suggests that the idea had some element of obviousness to it, and was the general progression in the space. In that case, there's no real policy reason to support that patents be given, since the incentives are already put in place by the market. It's good to see that these issues are getting a serious discussion in some areas -- though, whether or not these discussions will ever actually influence policy is another question completely.


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  1.  
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    misanthropic humanist, Jan 17th, 2007 @ 5:32am

    show your working

    Hmm. This is very interesting, and though I read the second abstract (the first link is dead btw) a little too deep to go into all the arguments.

    There's a logical problem in that if a patent is published then how can you prove that the latecomer didn't just read it and copy?

    Possibly the best way to deal with this is demonstration of method. Like a teacher who is trying to stop his students cheating it is necessary to show working. Merely presenting the patent as a conclusion should not be sufficient, the claimant must show (in true scientific style) an aim, a methodology, a set of results (including full statistical analysis), and a conclusion that defines a product.

    Two truly independent researchers will never arrive by exactly the same path even if they arrive at the same place.

     

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    Sanguine Dream, Jan 17th, 2007 @ 5:46am

    A tough issue

    I agree with comment #1 and the point that Mike makes. Making the burden of proof more thorough for those applying for a patent would do a lot of good. These days companies (and patent lawyers) work under the assumption of, "If I can get the patent first that confirms that I came up with it first." I'm sure that there are plenty of examples of two or perhaps more companies that just happen to come up with the same idea at the same time but each with their own methods of research and implementation.

    At a first glance the independent invention defense would help defend against pantent hoarders (who I think should be put in the same section of hell as people that talk in theaters). But in the long run I think it would just open the door to problems like new forms of corporate espionage.

     

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    Noel Le, Jan 17th, 2007 @ 6:49am

    reply to Masnick

    Masnick, have you read Lemley before? Even in other articles where Lemley suggests rather drastic amendments to patent law, he does not propose an independent invention defense, as you claim he does here. And he does not...

    Lemley argues that an independent invention defense would be valuable in some ways, but should be approached carefully due to possible effects on innovation incentives and the market for patents. Lemley proposes a "policy lever" approach rather than an outright independent invention provision.
    A summary glance at the article will tell you that, as he spends a majority of his time warning against an independent invention defense.

     

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    angry dude, Jan 17th, 2007 @ 6:51am

    Mike wrote:
    "The fact that two totally separate entities came up with the same idea, that certainly suggests that the idea had some element of obviousness to it, and was the general progression in the space. In that case, there's no real policy reason to support that patents be given, since the incentives are already put in place by the market"

    Ignorant BS.

    The incentive for a little guy to invent is provided by the existence of a working patent system.
    Just ask any independent inventor - US Patent system is the ONLY incentive we have.

     

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    Mousky, Jan 17th, 2007 @ 6:55am

    Re: show your working

    There's a logical problem in that if a patent is published then how can you prove that the latecomer didn't just read it and copy?

    It is not that much of a logical problem. A good inventor would keep a record of all notes, correspondence, etc. with proper dates. If the inventor who filed first has an issue, then let a judge decide, provided that both patents are held in abeyance while the case is heard.

     

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    Hulser, Jan 17th, 2007 @ 6:55am

    I do think the current patent system is basically broken, but personally I have my doubts about the use of the "independent invention" clause.

    The fact that two totally separate entities came up with the same idea, that certainly suggests that the idea had some element of obviousness to it, and was the general progression in the space.

    When I read this, I was reminded Alfred Russel Wallace, the guy who independently thought of the theory of natural selection before Charles Darwin published The Origin of Species. Not that it applies to patents, but it does shed some doubt on the link between obviousness and independent invention. In other words, I don't think that natural selection is proved obvious because two people came up with it at about the same time.

    Sure, Darwin and Wallace stood on the shoulders if giants by using knowledge available at the time. But just because someone creates something new in a given environment doesn't mean the environment i.e. "the space" is responsible for the creation.

    Independent invention may suggest that an idea has an element of obviousness to it, but the Darwin/Wallace example, as well as other examples of simultaneous invention, I think shows that it's not a reliable exclusion criteria for obviousness.

     

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    Noel Le, Jan 17th, 2007 @ 6:59am

    Claim about Lemley

    ***Also, there is an important point that Lemley makes, that we've been suggesting for years. You may not even need an independent invention defense, if you had a better "obviousness" test for patents.***

    Masnick, where did you gather this about Lemley. I'm not trying to be confrontational, just asking what article so I can read up on him.

    Lemley does not propose the rigid obviousness standard that PFF, as well as EFF, propose in their siding with KSR. Rather, Lemley argues that patents should be easier to obtain, as occurs under the current oobviousness standards, but should be issued with narrow scope. I actually argued against Lemley on the issue of obviousness here: http://weblog.ipcentral.info/archives/2006/09/too_obvious_to.html

     

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    The infamous Joe, Jan 17th, 2007 @ 7:09am

    Re:

    @ Mr. Angry Dude

    The incentive for a little guy to invent is provided by the existence of a working patent system.

    I feel safe in saying that there would be much debate over the fact that the patent system works. I agree wholeheartedly that independent inventors need a working patent system-- what I'd like to know is that if you and some other guy invent something independently, and Mr. Other Guy files the patent 1 week earlier, are you still fine with Mr. Other Guy getting a patent instead of you-- even though you just as much work as he did? Would you, then, be in favor of an 'independent invention' defense?

    From context clues I assume you consider yourself an independent inventor, so I'm asking you.

     

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    Anonymous Coward, Jan 17th, 2007 @ 7:24am

    The chances of two different people inventing the same thing at exactly the same time is slim to none. Whoever applies for the patent first (even if only by 1 second) gets it. You've heard the saying since you were born. The early bird gets the worm. Being a genius inventor gets you nothing if you are too lazy/stupid to apply for a patent quickly when you figure something out thats worth while.

     

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    angry dude, Jan 17th, 2007 @ 7:24am

    Re: by The infamous Joe

    This is still "First to Invent" country..

    Keep your date and time of conception well documented
    (e.g. notarize your writings) and you can get your patent later even if somebody files first.

    Example - Gordon Gould, the inventor of laser.

     

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    Anonymous Coward, Jan 17th, 2007 @ 7:28am

    I did it

    I created Micorosoft windows first, wheres my roylaty

     

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    The infamous Joe, Jan 17th, 2007 @ 7:47am

    Re:

    @Mr. AC#9

    What does the early worm get?

    Actions speak louder than the sword but the pen is mightier than the sword.

    A witty saying proves nothing.

    All that is off-topic, though. So, judging by your words, you think that if someone invents something first, but patents it second, he's SOL. The point of the patent system is to spur innovation, not timely paperwork processing.

    I say, if two people come up with the same thing, no one gets a patent-- go improve on your idea and patent that.

    Of course, what I say is next to worthless. :-)

     

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    Noel Le, Jan 17th, 2007 @ 7:54am

    Reply to Masnick again...

    Joe, unfortunately, our patent system is broken in part of because of paper work (USPTO administration), so Angry Dude and Anon Coward are getting at something. (speaking of which, I won't even get into how our immigration system is screwed b/c of bad paper work).

    Anyways, I agree that the way Masnick opened this post suggested that he may be interested in the first to file vs file to invent debate, but his main point is the connection between a first to invent defense and the non-obvious doctrine. Although there is little grounding in Masnick's thesis from Lemley, who is skeptical of an independent invention defense and does not propose a raised non-obviousness standard, the issue is still important.

     

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    Jerry Kew, Jan 17th, 2007 @ 8:30am

    Synchronicity

    In 1990 I invented a 360 degree 3D photographic system, 360 degree cameras had been around for 150 years, 3D for 100 years, my combination hadnt. I filed patent in the UK, gained patent in the UK, Europe, Japan and Australia. When it came to the US it turned out that someone else had invented something very similar to me merely weeks before. Given the filing systems neither of us was aware of the other until 18 months after filing. So, yes, even after 100 years, (which I believe justifies the non obvious) the world can be suddenly seeking the same thing, in this case a form of photographic virtual reality. (my viewing system was the best though!! ;-) )

     

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    Hulser, Jan 17th, 2007 @ 8:56am

    Re: Re:

    So, judging by your words, you think that if someone invents something first, but patents it second, he's SOL. The point of the patent system is to spur innovation, not timely paperwork processing.
    I would say, yes, he's SOL. The overall goal of the patent system may be to spur innovation, but it's still a system. Specifically, the patent system exists in the real world at the level where paperwork and timeliness lives.

    In a perfect world, the patent would go to the person who developed the invention first. But in the real world, it would be too impractical to require an investigation into all of the areas that could confirm primacy. It's much more practical to just award to patent on a first come, first served basis.

    This necessarilly means that if two people happen to develop the same thing at about the same time, the patent will go to the one who gets there first. (It doesn't mean the idea was obvoius. Just that the current conditions led up to a situation where someone could make an insightful discovery.) Some may think it's not fair that the true first inventor doesn't get the patent, but the rules of the system are known. They haven't changed. It's just life. It my be trite, but in this case, the early bird really does get the worm.

     

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    famous joe, Jan 17th, 2007 @ 9:40am

    Re: Re:

    Twenty five cars run in a 24 hour race, only one car wins, even though all the cars required basically the same effort to compete.

     

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    Roylaty, Jan 17th, 2007 @ 9:50am

    Re: I did it

    I hope you get what you deserve.

     

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    Mike (profile), Jan 17th, 2007 @ 10:20am

    Re: reply to Masnick

    Even in other articles where Lemley suggests rather drastic amendments to patent law, he does not propose an independent invention defense, as you claim he does here. And he does not...

    Are we not reading the same paper? The one that you link to, and that we link to above, does not argue against the independent invention defense at all. It just notes that there are some risks involved if Vermont's assumptions prove false. However, other than that, he appears interested in the idea. I don't see how you can read it as being against the concept.

    A summary glance at the article will tell you that, as he spends a majority of his time warning against an independent invention defense.

    I read the whole thing through 3 times, and I didn't get that. I got the opposite of what you got out of it. He seems rather interested in Vermont's position, but worried that there are risks involved if Vermont is wrong. However, he does not appear to be wholly against the concept.

    Let's take a few quotes:

    "Vermont’s idea may be one whose time has come."

    "Independent invention has much to recommend it."

    "In the information technology industries, it seems to those of us who litigate patent cases that the overwhelming majority of patent suits are not brought against people who copied a technology, but against those who developed it independently."

    "An independent invention defense would eliminate the troll problem in one fell swoop."

    "Vermont’s contribution is to analyze and dissect a number of common objections to an independent invention scheme. He responds persuasively, for example, to the concern...."

    "In short, Vermont offers generally persuasive justifications for an independent invention defense, and there are good reasons to think that such a defense would eliminate one of the biggest problems with the patent system today."

    Those don't sound like someone against Vermont's point of view. He then goes on to temper those statements with concerns about the risks involved, but his argument is just that if Vermont's assumptions prove false, there *could* be some problems. However, even there, he does still seem to be leaning towards Vermont's view:

    "Nonetheless, I have concerns. I am not sure those concerns are debilitating..."

    He doesn't say don't make the change, but just that things should be looked at "very carefully" before making the change.

    He talks about how he agrees with many of Vermont's points, but then that he's worried an independent invention defense might have some unintended consequences in a few industries (pharma in particular). He's not wholly against the idea at all.

    "Vermont’s analysis implicitly rejects prospect theory. As a general matter I don’t think that’s a problem, because I think the economic evidence is quite strong that it should be rejected—that the market is better than central planning by the inventor in determining how to make use of inventions once they are made."

    There are plenty of quotes along those lines. He seems to like the general concept, but is worried that some of Vermont's assumptions don't apply to all industries, and thus he comes up with policy recommendations that basically move us slightly closer to the defense, without making a complete shift.

    I don't see how that's against the idea at all. He's just taking a cautious approach.

     

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    Mike (profile), Jan 17th, 2007 @ 10:23am

    Re:


    The incentive for a little guy to invent is provided by the existence of a working patent system.


    That's both false and not the intended purpose of the system. The system is designed to encourage innovation overall, and if the market can do that effectively, what use is the patent system?

     

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    Mike (profile), Jan 17th, 2007 @ 10:25am

    Re:

    Not that it applies to patents, but it does shed some doubt on the link between obviousness and independent invention. In other words, I don't think that natural selection is proved obvious because two people came up with it at about the same time.

    I should clarify. By obvious, I mean (as the patent system demands) obvious to people skilled in the art. If two people in the same field are coming to the same conclusion, it suggests that's the obvious direction of progress in the space, rather than some sort of breakthrough that deserves special protection. It suggests that that's where those leading the field were looking anyway *because* that's what the market demanded.

    In other words, there's no need for an artificial gov't granted incentive when the market is doing its job.

     

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    Mike (profile), Jan 17th, 2007 @ 10:28am

    Re: Claim about Lemley

    Masnick, where did you gather this about Lemley. I'm not trying to be confrontational, just asking what article so I can read up on him.

    "If Vermont is right that simultaneous invention is evidence that patent protection may be unnecessary, perhaps we should give this factor more significance in the obviousness analysis."

     

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    Mike (profile), Jan 17th, 2007 @ 10:30am

    Re:

    The chances of two different people inventing the same thing at exactly the same time is slim to none.

    That's not just wrong, it's woefully wrong. Almost every major invention had very similar competition. That helped drive inventors to make better versions.

    Whoever applies for the patent first (even if only by 1 second) gets it.

    This is also false legally. The US is a "first to invent" system, and even if you file first, if someone else proves they invented it first, they get the patent over you. So, you are wrong.

     

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    Mike (profile), Jan 17th, 2007 @ 10:33am

    Re: Re: Re:


    This necessarilly means that if two people happen to develop the same thing at about the same time, the patent will go to the one who gets there first


    That's false in the US. Outside of the US it's (mostly) true. But in the US, we do not have a first to file system.

    But the more important question is whether or not that makes sense from a policy standpoint. If that policy harms the pace of innovation, when it's whole purpose is supposed to be to encourage innovation, then we have a problem.

     

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    Noel Le, Jan 17th, 2007 @ 10:34am

    follow-up to Mike

    Mike, yes Lemley is taking a cautious approach, but why? I raise the reasons in my review. I never claimed that Lemley was wholly against the concept of an indepdent invention defense, I only cite the reasons he is skeptical- and those deal with incentives for innovation and the market for patent licensing. The fact that Lemley supports a series of patent doctrine interpretations rather than an independent invention defense is telling and supports my interpretation.

    Mike, can you answer my question about where Lemley advocates raising the non-obvious bar?

     

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    Anonymous Coward, Jan 17th, 2007 @ 10:39am

    The fact that two totally separate entities came up with the same idea, that certainly suggests that the idea had some element of obviousness to it, and was the general progression in the space.

    The problem may be obvious to all, e.g. our electronics need much better battery life. But if it takes five years to solve it then the solution certainly wasn't.

    Only goes to show that the patent system is a complex problem that isn't going to be solved by simplistic solutions. Like most things, actually.

     

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    angry dude, Jan 17th, 2007 @ 11:00am

    Re: Re:

    >>The incentive for a little guy to invent is provided by >>the existence of a working patent system.

    Mike wrote:
    "That's both false and not the intended purpose of the system"

    Hey Mike, if you don't believe me, just ask any independent inventor out there..
    I mean the real one, somebody who can put his money where his mouth is, not a techdirt prick like Misantropic Onanist.. oops, sorry, Humanist whatever..

     

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    Noel Le, Jan 17th, 2007 @ 11:07am

    Lemley on obviousness

    Mike: ***"If Vermont is right that simultaneous invention is evidence that patent protection may be unnecessary, perhaps we should give this factor more significance in the obviousness analysis."***

    Oh, OK, I see, however, one line compared to a whole article he wrote on software patents and obviousness doesn't really say much about Lemley's position on the non-obvious doctrine. Further, look at how Lemley makes the claim you cite. If there was any evidence, not just simultaneous invention, that patents are not necessary, then the non-obviousness doctrine would be affected.

    I'm somewhat frustrated that Lemley does not give more basis for why he believes software patents help innovation; he certainly does not say they are unnecessary (in any article you've cited), but seems amenable to considering that prospect's implications on patent doctrine.

     

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    Mike (profile), Jan 17th, 2007 @ 11:21am

    Re: Re: Re:

    Hey Mike, if you don't believe me, just ask any independent inventor out there..
    I mean the real one, somebody who can put his money where his mouth is, not a techdirt prick like Misantropic Onanist.. oops, sorry, Humanist whatever..


    Two things. First, we're not concerned with independent inventors, we're concerned with innovation. The system isn't supposed to be a subsidy for independent inventors, it's supposed to be a system for encouraging innovation.

    I'm not sure how many times we need to repeat that.

    Second, we talk to independent inventors all the time who are completely FRUSTRATED by the patent system, because it blocks them in their work. They discover that what they've come up with on their own can't be offered in the market without paying a huge toll fee to companies who claimed broad inventions in related spaces. That's what the complaints are about. It's often a tremendous impediment.

    Angry dude, I really don't understand why you refuse to ever support a single argument you make. We have explained the *reasons* why the patent system doesn't work. All you have ever come back with is (a) calling us idiots or (b) insisting that the patent system really really really is important, but never explaining why what we've said is wrong. We'd take you a lot more seriously if you actually had any reasoning to your argument.

     

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    viewfromthenorth, Jan 17th, 2007 @ 11:45am

    Re: Re: Re: Re:

    just a comment for all to accept or reject;

    never attack the person, you may attack thier ideas and give counter arguements..but if you attack the person ie. namecalling etc. it just shows lack of a compelling statement to back up your point of view..

    ~ always more than one way to skin a cat~

     

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  30.  
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    Anonymous Coward, Jan 17th, 2007 @ 12:00pm

    By obvious, I mean (as the patent system demands) obvious to people skilled in the art. If two people in the same field are coming to the same conclusion, it suggests that's the obvious direction of progress in the space, rather than some sort of breakthrough that deserves special protection.

    Thanks Mike. The clarification helps put the term "obvious" in the context of the patent system. But because I'm no expert in patent law, I'm looking at the issue in broader terms.

    I would agree that there has to be a line drawn somewhere between something that is so obvious it does not deserve a patent and something that is a breakthrough which does. But where to draw the line? I can't help but think about the breakthroughs that were deemed obvious after they were discovered/invented. Spapping his forehead, the scientist said, "Of course! Why didn't I think of that?!"

    There's a great quote by Arthur Schopenhauer...
    "All truth passes through three stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident."

    Not that the patent system seems to be in any danger becoming too restrictive (i.e. excluding too many "obvious" things ), but I still find myself being skeptical of too heavy a reliance on the concept of obviousness. I understand it has a specific meaning in the context of patent law, but I keep on coming back to how easy it is to say something is obvious after it's been explained to you. Anyone at the time could have come up with the idea of natrual selection. All the information was there. But anyone didn't; Darwin did.

     

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    Anonymous Coward, Jan 17th, 2007 @ 12:11pm

    shocker

    Unfortunately, it appears that Le completely misreads Lemley's article in his writeup about it

    I stopped paying any attention to most of what Noel Le says a long time ago.

     

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    Noel Le, Jan 17th, 2007 @ 12:28pm

    Thats fine Anon Coward:)

    I don't believe Masnick understand's Lemley's argument (either in the reviewed article or his general writings); he went from calling my write-up a complete misreading, but then moves on to actually support it by saying that 1)Lemley has reservations about an indepdendent invention defense, 2)Lemley cites reasons why, 3)Lemley opts for other ways to improving patent policy.

     

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    Andrew D. Todd, Jan 17th, 2007 @ 12:43pm

    Patents, Simultaneous Invention, and Blogs

    Some time ago, Pamela Jones of Groklaw made what I consider a very useful point: Techies do not have to waste their time working within lawyers' rules. They can simply create whatever facts their lawyers need to win the case on a hands-down basis. For example, if a particular C function is supposedly infringing, write a noninfringing replacement overnight.

    Traditionally, technical art was published in refereed journals. Refereed journals had much higher standards than the patent office, and as a result, the patent office was able to crank out spurious patents faster than the refereed journals could publish good articles. Now, however, we have blogs, listservs, etc. Every open-source project of any size has its own blog. Blogs are freely available to the public, rather than being behind a "paywall." Further, there are "archiving engines," which record the contents of the blogs, along with the rest of the internet, and can eventually prove date of publication. Over a period of years, blogs can outrun the patent office. They will create paper trails of ideas two or three or four years before the patentees even realize that the ideas are worth money. A fourteen-year-old kid, playing with ideas, will always discover things long before a businessman does. It may take a while for the pre-blog patents to expire, of course, but the balance will gradually shift. You will eventually get the Commissioner of Patents on the stand before a Senate Sub-Committee, trying to explain why he does not allow patent examiners to do web searches, the real reason being that doing so would allow the patent examiner to definitively reject too many patent applications in a few minutes each.

     

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    Mike (profile), Jan 17th, 2007 @ 12:59pm

    Re:

    I don't believe Masnick understand's Lemley's argument (either in the reviewed article or his general writings); he went from calling my write-up a complete misreading, but then moves on to actually support it

    You positioned Lemley's argument to be that an independent invention defense would be harmful to innovation. That's flat out wrong. He has some worries that it *could* cause problems *if* implemented incorrectly and *if* Vermont's assumptions are false, but he doesn't present much to say that Vermont's assumptions absolutely are false. Just that we should be careful about it.

    Your positioning of his paper was simply wrong.

     

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    Noel Le, Jan 17th, 2007 @ 2:17pm

    Anyways, Masnick, I encourage you to read the Burk/Lemley article on designing optimal patents (linked above). It sheds light on this article, although I was surprised that Lemley does not support a more rigid non-obvious standard. Almost every other article I've read from him (most of what he's written) would suggest so.

    Over the course of several articles, it seems like Lemley is not so much trying to answer the question of whether software benefits from patent protection, but whether improved patent disclosure and patent scope are the culprits of bad patents; perhaps due to the market uncertainty of many technological innovations. Also, check out his articles with Julie Cohen on patent scope and Dan Burk on policy levers. I would provide the cites, but am jammed at the moment.

     

    reply to this | link to this | view in thread ]

  36.  
    identicon
    angry dude, Jan 17th, 2007 @ 6:02pm

    Re: Patents, Simultaneous Invention, and Blogs

    Another ignorant rant..

    Patent examiners already do Google and Yahoo searches to find prior art and also to dig up more info about inventor.

    At least, in my case, this was the first thing he did: searched the Internet and included first 2 pages of Yahoo hits in his official search report (couldn't find any relevant prior art though...)

     

    reply to this | link to this | view in thread ]


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