Alexander Reben is automatically generating all possible prior art. Which will probably take a while.

Instead, why not stop examining patents altogether?

(via Boing Boing)

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On Thursday The White House announced a trio of executive actions to fight patent trolls, most interestingly:

"Crowdsourcing Prior Art — To help ensure that U.S. patents are of the highest quality, the USPTO is announcing a new initiative focused on expanding ways for companies, experts, and the general public to help patent examiners, holders, and applicants find relevant “prior art”—that is, the technical information patent examiners need to make a determination of whether an invention is truly novel."

I've considered this for a few years as a for-profit business, paying a bounty to anyone who contributes prior art that helps take out a troll. But I have a way better idea: stop examining patents altogether.

(previously, previously, previously, previously, previously, previously, previously, previously, previously)

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"The patent system in the USA is so distorted it's now more lucrative for companies known as 'patent trolls' to sue manufacturers rather than actually make anything. The problem's so serious that President Obama has got involved -- and British companies are targeted if they do business in the US. Rory Cellan-Jones investigates and finds one of the world's biggest trolls in his lair in Dallas."

Patently Absurd is available to stream for the next six days (the BBC never took me up on the offer for a new hard drive).

(previously, previously, previously, previously, previously, previously, previously, previously)

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Eolas invalidated (some more).

Joel on Software on Destroying Patents.

(previously, previously, previously, previously, previously, previously, previously)

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How to make war on patent trolls (The New Yorker), Obama wants to crack down on patent trolls. That’s not enough. (Washington Post) and When Patents Attack... Part Two! (This American Life).

And then call your congress person.

(previously, previously, previously, previously, previously, previously)

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I've supported the SHIELD Act before, which would force patent trolls to pay legal bills for unsuccessful shakedown attempts, but a TechCrunch article today made me think this through some more. 

SHIELD would be a serious deterrent for trolls who have their eye on large companies with the means to defend themselves. But trolls eat startups first and a startup is often unable to fight through the courts and get to the point where SHIELD would help. If the troll is after something like $1,000 from every company using a scanner then not many businesses are going to risk going to court. And if the troll isn't interested in any reasonable settlement then the legal fees and management distraction can kill you. 

SHIELD is well intentioned and would certainly help. But we need to stop examining patents before issuing them and do the job properly for the few that ever get used in anger. 

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A friend pointed me at the SHIELD (PDF) act today. This bill would make unsuccessful patent trolls pay defendants’ legal bills. It’s not as good as my radical plan to fix patents, but it’s a step in the right direction. If you care, let your congressperson know. Here’s the note I just sent to mine:

Dear Rep. Pelosi,

I'm writing to let you know that I support the SHIELD act Introduced by Rep. Peter DeFazio (D-OR) and co-sponsored by Rep. Jason Chaffetz (R-UT). As an entrepreneur and professional software developer I have personally experienced the job destroying effects of ill founded patent litigation. Any step to reduce this drag on our industry is a welcome step.

Regards,

Rob Ellison
San Francisco 

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Send them a troll. Now.

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The Startup Genome people have launched a complicated tool to benchmark your Startup against others.

I’ve developed a simpler model. It used to be you spent too much money on Sun and Oracle. Now it’s fighting off patent trolls.

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In 1790 Thomas Jefferson became the first patent examiner and issued a grand total of three patents. 220 years later the US Patent Office has a backlog of over 1.2 million applications. Internet and software industries are created and destroyed in the time it takes the average patent to issue.

Here's how a startup can easily turn to the dark side:

1. Investors pressure a startup to file patents in an attempt to make the business defensible.
2. Tens of thousands of dollars of billable hours result in ‘System and method for displaying a text based colloquial greeting to the populace of a planetary body’.
3. Startup fails but notices that other companies have implemented their ‘Hello, World’ IP and a patent troll is born.

Software patents are especially frustrating as it's the idea — usually the easiest part of the business — that gets patented. Because patent law doesn't require actual implementation, let alone success, it's as if you could patent “cancer drug” and then sue pharmaceutical companies each time a new treatment rolled out.

It's tempting to call for an outright ban on software patents, as Vivek Wadhwa did recently. This doesn't work because so much technology is software based and because somewhere in that 1.2 million backlog there probably are a few genuinely novel ideas. 

The first part of the fix is to stop examining the patents at all.

This may sound crazy, but think about copyright. You don't need to pay a bunch of lawyers to represent you before the copyright office and prove that this really is the first time a particular novel has been written, or that you were in fact holding the camera when you snapped that photo. Copyright is automatic.

A patentable invention isn't a specific work of art and so some registration system is required. My suggestion is that you upload a PDF and pay a registration fee of around $1,000. It's small enough not to discourage startups and large enough to prevent abuse. USPTO would timestamp the PDF, store it for eighteen months and then publish it.

The obvious flaw would seem to be opening the floodgates to even more patent trolls. That's where the second part of the fix comes in — shift the burden of proof of validity to the company that owns the patent. You can still sue, but the first step is a rigorous and expensive exam process. 

This system makes it easy to obtain a patent but changes the nature of the patent to an insurance policy in case your idea really is as clever as you think it is. It also makes it much harder to use a patent offensively. Resources are more efficiently used to evaluate the novelty of a patent when it is enforced, rather than to do the impossible task of evaluating millions of ideas that never will be.

Full disclosure: I'm co-inventor of several software patents that I hope will never be used against you. I also recently lost a product (Cucku Backup) as a result of settling a patent infringement lawsuit and I hope that never happens to you either!

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