Could You Save Software Patents With A Special Team Of 'Obviousness' Developers?
from the that's-one-idea dept
In the past when discussing different ways to potentially improve the patent system, I’ve pointed out that one of the key points in determining whether or not something is patent worthy is supposedly whether or not the invention would be “non-obvious” to a “person having ordinary skill in the art.” And, yet, at no point in the patent review process does the average examiner — who quite often does not have ordinary skill in the art — ever go out and ask those who do. That always troubled me. So, I thought one (of quite a few) useful improvements to the system would be to let patent examiners call on certain folks who work in various fields. Now, this wouldn’t be to have that person give a total thumbs up or thumbs down on the patent. That would still be reserved for the examiner. But, at least hear some knowledgeable people out on whether or not the idea is obvious.
Stephen Burch has sent over a blog post he did with possible ways to improve the quality and utility of software patents, which has a similar, but slightly different take, that could conceivably be more effective. It would involve seeing if skilled programmers, given the general problem, could explain a similar method of solving the problem:
The patent office should create a pool of programmers and keep a database of their related skills. When a software patent is submitted, the patent office searches the database for programmers with skills in those related areas, then selects three to five programmers to perform the blind study. The study would involve giving the selected programmers the problem that the patent seeks to solve and some amount of time (24-48 hours or varying based on complexity) to outline or pseudo-code a solution. If none of the selected programmers are able to determine the solution described in the patent, then the non-obvious prong of the patent would be met. This would prevent patents that do obvious things with new technologies from being granted.
Take Apple for example. Apple creates some new technology, say a touch-screen smart phone, that is rightfully protected by patents. Then it goes on to patent the software that interfaces with this technology. The problem with these second patents is that they are obvious. Apple has basically patented doing something with a finger on a touch-screen that people have been doing for years with a mouse on standard computers. I don’t believe that just because the technology is patentable, various ways of interfacing with that technology are de facto patentable. A proposed blind study approach, using programmers willing to work for free just to ensure the quality of software patents, would prevent such obvious patents from being granted.
This might be worth an experiment, but I wonder how well it would work in practice. It would seem like a big commitment on the part of participating software developers who (one assumes) already have jobs. In some sense, it goes back to the problem of software patents simply not scaling. Still, it seemed like an idea worth tossing out there for discussion.
By the way, that post is actually the fourth in a series of posts that Stephen wrote on software patents. The first three seemed more like background posts, but if you want to see them, there’s an introductory post followed by a post on the effect of software patents on innovation and another post on that same subject, all leading up to his suggestions for potentially saving some forms of software patents. It’s also worth noting that the suggestion above is not his only suggestion. He also combines it with a shorter duration for software patents. As I said, I’m not convinced it would work, but it’s a different sort of idea that seemed worth discussing.