Patent Quality Week: This One Weird Trick Could Solve Most Patent Quality Problems

from the it's-not-that-difficult,-guys dept

This week is the very first Patent Quality Week, in which a bunch of folks in the innovation space explore what it will take to improve patent quality. Unfortunately, for years, patent maximalists have tried to attack those of us who support a better patent system with somehow being totally against patents. They will regularly conflate arguments people have made to get rid of bad patents, and about how bad patents are abused to hinder, stifle, and slow down innovation, as if they mean that we hate all patents entirely. That’s not true. So this week we’ll be posting a variety of articles from different perspectives about how we can get better quality patents.

Almost exactly a decade ago, I laid out my plan for fixing the patent system, which included four separate proposals, all of which I still think are good. And so far, out of the four, only half of one has actually been put into practice (and is now under tremendous attack). That was the inter partes review process added by the America Invents Act, to make post-grant review of patents easier (though it did not come together with the other half of that suggestion, which is to drop the presumption that a patent, once granted, must be valid).

However, for this inaugural Patent Quality Week, I wanted to focus in on a separate prong of my plan to fix the patent system, which I think would massively improve patent quality practically overnight. It’s this: recognize that independent invention is a sign that an invention is not patentable. This may require a bit of explanation. Going back many decades, US patent law has, officially if not actually, used what’s known as the PHOSITA standard, which stands for “person having ordinary skill in the art.” Specifically 35 US 103, on the conditions for patentability and non-obvious subject matter, says:

A patent for a claimed invention may not be obtained… if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.

This is a different standard than the one that most people talk about regarding patents: whether or not there is prior art. But prior art is covered by Section 102, not 103. Section 103 says that if an invention would be obvious to a PHOSITA, then the patent should not be granted.

Yet, very little is ever actually done to determine if a PHOSITA would find an invention obvious. The PTO’s guidelines on this are more or less… just going back to the prior art determination. But it seems to be that there’s a better way.

If you see a lot of independent invention of the same basic thing done around the same time by multiple parties, that alone should be evidence of obviousness. After all, the others submitting their patent applications (or, better yet, creating their products) are, by definition, PHOSITAs. And if they’re all coming up with the same damn thing by themselves, then that certainly suggests that the inventions are not so novel that they require the incentive (and the monopoly) of a patent to have them created.

Indeed, history has shown time and time again that the biggest inventions occur more or less simultaneously to multiple people around the globe. It’s a recognition of the notion that some ideas are just “right” for their time. It’s not some stroke of individual genius. It’s that other conditions have come up to make the next combination of ideas somewhat obvious to those having ordinary skill in the art.

Lots of people have suggested that we should have an independent invention defense to patent claims (that is, you can get out of a lawsuit if you show you had no idea of the original patent), but I think that doesn’t go far enough. We should note that if there is such widespread invention within the same general timeframe, it’s strong evidence that no patents should issue in that space, because they are obvious to those having ordinary skill in the art.

That one change to the patent system would completely change the system and massively improve patent quality. It would wipe out a wide range of silly minor improvements that anyone with knowledge in a space would come up with, and focus patents on actual breakthroughs that are not at all obvious.

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Comments on “Patent Quality Week: This One Weird Trick Could Solve Most Patent Quality Problems”

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36 Comments
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That One Guy (profile) says:

'Unique innovation'... by half a dozen or more people.

They will regularly conflate arguments people have made to get rid of bad patents, and about how bad patents are abused to hinder, stifle, and slow down innovation, as if they mean that we hate all patents entirely.

Sounds remarkably like the argument that will occasionally pop up that criticizing police corruption is the same thing as criticizing the police as a whole, and I suspect it’s being raised for the same reason, an attempt to defend the rot by hiding behind any good that might exist.

As for the idea in the article I’m not seeing any problems, if patents are meant to reward those that come up with innovative ideas that wouldn’t have occurred to others then the fact that multiple people are coming up with a particular idea is a pretty good indicator that it’s not that innovative or unique and is instead a fairly obvious idea based upon what’s available and as such isn’t something that anyone deserves to have locked down just for them.

Koby (profile) says:

Competitive Environment

One of the risks that I can forsee with this kind of arrangement is that as soon as one company learns that another is also developing the same idea, that one of them might decide to just quit. Similar to how corporations are willing to relocate to tax friendly environments, researchers will probably avoid developing anything in a location that doesn’t reward first-to-patent. Prepare for some corporate collusion, especially if they think they can get a better deal in another nearby location.

Anonymous Coward says:

Re: Competitive Environment

That would be an implementation detail – ironically through collusion of its own between attractive patent locations. Sometimes calling their bluff is what works.

Vocal businesses like to say that low taxes are what they need/drive them but it is more of what they want. If they actually needed them you would see plenty of business developing in unincorporated areas and small towns in the middle of nowhere becoming job nexuses. Instead they concentrate around either cities or requisite natural resources.

Koby (profile) says:

Re: Re: Competitive Environment

That would be an implementation detail – ironically through collusion of its own between attractive patent locations. Sometimes calling their bluff is what works.

Certainly. I’m open to the idea that it could work. Personally, I’d like to see some tariffs involved. Perhaps they can patent it elsewhere. But the majority of value in a product is not its invention, but its production. And if it has to be manufactured locally, then it’s probably okay for some overseas research department to eat the cost of development, while the jobs and products are enjoyed here.

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Anonymous Coward says:

Re: Competitive Environment

one company learns that another is also developing the same idea, that one of them might decide to just quit

Isn’t that called competition?

Sometimes the first to market wins, sometimes the best product wins. Sometimes multiple companies are making the same thing and they all succeed

That’s what the free market is all about. But considering your post history here, you are a firm believer that the gov’t should be forcing private business to operate how you feel they should be operating, and not what the law and the free market allow.

Koby (profile) says:

Re: Re: Competitive Environment

Isn’t that called competition?

I’m primarily worried about collusion, where two companies decide to get together, one cuts research so that the other gains the patent, and then they agree to return the favor next time.

you are a firm believer that the gov’t should be forcing private business to operate how you feel they should be operating, and not what the law and the free market allow.

I believe the free market should be allowed until the corporations begin cheating the system. Then there should be a vote to change the law.

Anonymous Coward says:

Re: Competitive Environment

So we move from “company B is legally required to halt further development” to “company B may choose to violate anti-trust law by halting development, if company A agrees to perform additional violations of anti-trust law by halting development in another area.”

even if we assume such collusion is an intractable, universal problem…. we are still no worse off than we are now.

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Anonymous Coward says:

Re: Competitive Environment

In many industries, patents really aren’t that valuable. Or if they are, it’s really just to protect yourself against patents.

“Getting a patent” is rarely what makes your idea viable. It’s more that nobody can “wield it against you” that makes it viable

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Doug Wheeler (profile) says:

Review by PHOSITAs

I had a similar idea, although the logistics may be tricky. Before granting a patent, present the problem being solved to a group of PHOSITAs, let them brainstorm as many solutions to the problem as possible. Anything they come up with should be considered obvious and not patentable.

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Doug Wheeler (profile) says:

Re: Re: "Doug Wheeler" another ZOMBIE with 2 year and 5 years GA

I’m not sure if this is some sort of troll-bot or what.

I’m just another mostly quiet reader of Techdirt that happened to see an article discussing an issue that I have thought about a bit in the past (I was peripherally involved in the Roxio/Gracenote/CDDB patent dispute). I had an idea that hadn’t been discussed before, so I decided to share it and contribute to the conversation.

BTW, I have never even exchanged an email with Mike Masnick and don’t know him at all beyond his bylines here on Techdirt (and I didn’t even look at the byline on this article).

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Rico R. (profile) says:

PHOSITA is part of the equation

I’d also argue that this relevant section should also prohibit patents that fall under BOAC syndrome. A few years ago, I remember almost every month, the EFF’s bad patent of the month suffered from the same problem: Existing, well-recognized invention, But On A Computer. This was everything from watching a video (which would affect streaming content) to organizing files and folders in a file cabinet-like system (what almost every file system already does on a computer). Even in the case of the most novel physical invention, anyone familiar with it and how it works could reverse engineer and either simulate or emulate said invention on the computer in software form. How does that not also run afoul under this interpretation of the phrase, "person having ordinary skill in the art"? I’d argue it does, and a lot of those patents would (and should) thus be invalidated, let alone never granted in the first place.

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Anonymous Coward says:

I would also like to see a requirement that whatever is being submitted for patent must actually exist. No claims that you’ve invented something that requires a material or mechanism that isn’t known.

No claiming that you’ve invented warp drive if part of your invention is an "engine" that uses an unexplained "mechanism" to generate superluminal velocity, or to make space-rippling waves that the ship can ride, or whatever. If you can’t actually explain how it works, then it’s not patentable.

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Anonymous Coward says:

YOU don't get credit for exact plan I had prior!

I just neatly eviscerated your taking credit for it by asserting the claim exactly as grifters would for valuable work.

Now, you didn’t invent this plan, so remove your name and all proprietary claims from the writing above.

See how works in practice, college boy? I don’t know whether you’re stupid and think this practical, or stupid and thought this a neat way to steal patents.

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Anonymous Coward says:

Re: YOU don't get credit for exact plan I had prior!

From your own link, here’s your wish for that "reform":

So if we want to offer solutions instead of just "complaining," here’s how we would fix the patent system (short of just scrapping the damn thing).

You trotted that out when I comment in your piece:

https://www.techdirt.com/articles/20200925/17032945381/watch-out-patent-maximalists-are-warpath-to-destroy-innovation-empower-patent-trolls.shtml

I stated: "Masnick has NEVER and will NEVER suggest any reform. — Because what [Maz] actually wants is do away with patents entirely."

I’ve now again proved by your own words that you hope for "scrapping the damn thing".

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Anonymous Coward says:

You are again trying to put over "reform" that will...

… actually do away with all patents!

You’re not fooling anyone, Maz.

What about the common case where one party succeeds in making an idea practical, and others are just filing speculatively on the idea? *By your notion here, the one who has actually succeeded would then have all rewards taken away. — And corporations could then swoop in and use that work without paying: legalizing corporate theft is always your goal.

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Anonymous Coward says:

Software patents are pointless , any company can copywriter its code,
They are just a means to earn money from other peoples work, it should be easier to challenge old patents, broad patents on basic ideas or common business methods should be banned,
Eg taking customer orders on a website with
customer logins and accounts and giving special offers to customers or bulk discounts via a website
Anyone who wants a software patent should have to show its not obvious to a programmer or does not use previous programs or coding methods used by many
programs or operating systems

Trolls are sueing small company’s for using
basic operations like taking orders on goods
through a website

Anonymous Coward says:

I can see why people would take that argument as opposing all patents. As you note, inventions in general are made simultaneously by multiple people. If that means they don’t qualify for a patent, then what does? Is anything at all a "stroke of individual genius" that others skilled in the art could not have invented?

I don’t think so. But then, I’m one of those people who oppose all patents entirely. Patent maximalists on the other hand should believe this individual genius does exist (and exist everywhere, considering all the trivially obvious patents routinely approved), so it feels paradoxical that they’d be the ones to follow that line of thought.

Anonymous Coward says:

Re: Re:

I can see why people would take that argument as opposing all patents. As you note, inventions in general are made simultaneously by multiple people. If that means they don’t qualify for a patent, then what does? Is anything at all a "stroke of individual genius" that others skilled in the art could not have invented?

I see the difference being, if you asked a skilled person "could this invention address this need," and the answer was "of course. There’s really nothing else you could do," then it’s not patentable. If the answer was "oh wow, that’s a really clever way to do that," then it is.

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