The Problem With A Database Of Prior Art Is You Don't Know What's Worth Putting In

from the not-so-easy dept

Dan Berninger, who I almost always agree with, has tossed out a suggestion for how tech companies can deal with situations like the one where Verizon was able to squeeze millions of dollars out of Vonage using patents that clearly never should have been granted, as there was tremendous amounts of prior art on the patents (much of which was brought to light by Berninger himself). His suggestion is that tech companies should create “a formal process of contributing software innovations to the public domain.” It’s one of those ideas that sounds good in theory, but won’t work in practice. In the past, we’ve explained why similar ideas (such as a database of “obvious ideas” for the sake of prior art) will never work.

The main reason: if you’re not in the business of generating patents, you generally don’t think all of the little things you do are worth patenting or dropping into a database. They just seem obvious and natural, so you don’t even bother. It’s only in retrospect — when someone else has patented the concept — that people start to realize that they wish they had some sort of record of the obvious ideas they had or things they did years before the patent was filed. Sure, people will submit some ideas here or there, but it simply won’t seem worth it to many people, especially on very minor things, or very broad things like setting up a hands-free kit in a car. That seems so obvious, why would you even think to patent it… or put it in a database of prior art? So, while it’s a nice idea in theory, it will fail in retrospect, because the ideas and concepts that need to be in a database will seem so obvious that people won’t bother entering them until it’s too late and someone else already has the patent.

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Comments on “The Problem With A Database Of Prior Art Is You Don't Know What's Worth Putting In”

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Paul (user link) says:

I dunno...

I mean, with the current state of things, people may notice that any idea they have should be placed into that database. basically, if you make any sort of project, you just make it a habit of logging it in the database. its annoying as hell, many people won’t do it, but look at it as sort of an open source database or a wiki of obvious ideas. it’ll probably get the more blatant ones that people have already made little projects about.

jonnyq says:

Another Danger

Another danger is that if such a database existed, patent seekers would use it as an excuse to patent the obvious and the tried. By noting that no prior art was in the database (because it was too obvious to include) patent seekers will claimed that there is no prior art and they did their due diligence to find it (by checking the database), and the system suddenly becomes worse than it currently is.

boomhauer (profile) says:


the whole thing is pointless because if obvious != obvious, there is no foundation for a patent system at all. If the courts cant man up and call some things obvious that really are, theres no point in even having the patent system at all.

Hmm. gives an idea though… perhaps like these domain name generators. what if were to develop a system that didnt try to come up with ideas, but simply compbined every known thing in existence with every other thing known, and with every possible known usage… and build a list of everything that could possbily be invented today. Put this on a website and let google index. Instant prior art for any possible idea.
But i just patented this idea, so sorry…

KD says:

I think it is unfixable, therefore ...

I agree this idea is unworkable, but even if it were practical, it wouldn’t be worth doing.

Patents are just a tool for large companies to bash each other and stomp out small companies. If they ever served the original purpose of promoting progress, that has long since ceased to be true. They now are inhibitors of progress. I’ve seen quotes attributed to some of the founding fathers that seem to indicate that some of them feared this would happen. Man, those guys were smart.

Large companies have enough other ways to bash other large companies and stomp out small ones. The patent tool should be removed from their hands. Either abolish patents outright or severely restrict their issuance and use. Abolishment is probably the better choice, because I really believe the system is unfixable given the influence/control that the large corporations have over the governments (plural — I don’t mean just the U.S.). And by “abolish” I mean revoke all existing patents and stop issuing new ones.

Yes, I know that is very radical and unlikely to happen (see corporate control of governments). If someone could figure out a way to prevent the large corporations from controlling the governments, perhaps this problem (and several others) could be solved without radical action. I think the chance of that happening is even less than the chance that we could abolish patents. If we do neither, the only approach left is even more radical (can you say 1776?), but we’re all too comfortable to undertake armed insurrection (I include myself in the “we”), so THAT will never happen.

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