TDCommons and the Future of Patent Law

An illustration of a patent figure for some Hello World generation

Paresh Dave in Wired writes about TDCommons.org, a Google funded but bepress operated site. The idea is to publish technical disclosures as prior art that might invalidate future patents. It's an interesting overview of the subject, including a USPTO attempt to do the same thing (I covered this here) and a commercial competitor, IP.Com. Apparently USPTO is looking for help with this problem:

"Google is hoping TDCommons has a chance to be embraced as Kathi Vidal, a tech patent attorney who was sworn in as director of the USPTO almost two years ago, settles into her role. Deciding that generative AI programs can’t be patent holders has been a higher priority, she says, but creating a better search tool for prior art is an issue she’s discussed with a lot of organizations. Vidal says she’s open to the USPTO administering and funding its own prior art repository, offering up her email, [email protected], for feedback on how to do so."

I'm not super-convinced that she's providing her actual email address, but when I have a few minutes I might suggest my own plan - issue all patent applications and shift the examination to the start of any litigation or enforcement attempt.

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(Published to the Fediverse as: TDCommons and the Future of Patent Law #politics #patents #uspto Prior art attempts like TDCommons, IP.com and even the USPTO's failed scheme should be replaced with a fundamental overhaul of the patent system. )

HBR on the Wrong Patent Reform

Patent Reform

The Harvard Business Review has a curious article this week by Paul R. Michel: Big Tech Has a Patent Violation Problem. The thrust of it is that we should not reform patent law to make it easier to invalidate patents because:

"If they succeed in weakening America’s intellectual property system, it could be devastating for thousands of small, innovative startups — with disastrous consequences for the economy as a whole."

Sounds bad, and attacking big tech is a great way to make you look like a populist. But as a small, innovative startup founder and worker I know that this is exactly the wrong way round. Google etc can easily afford to fend off patent litigation and deal with the consequences when a lawsuit occasionally breaks the wrong way. A fine after all is just a price. It's the startups that can't afford to fight off an infringement lawsuit, or pay to file a patent for every other line of code on the off chance that it could become a weapon one day.

So who is Paul R. Michel? HBR says:

"Paul R. Michel (Ret.) served on the United States Court of Appeals for the Federal Circuit from 1988 to his retirement in 2010, and as its chief judge from 2004 to 2010."

But fails to disclose that he's currently listed as a member of the Intellectual Property Owners Education Foundation and:

"Judge Michel also consults for law firms and their clients in intellectual property litigations, conducting moot courts, mock trials, case evaluations, editing briefs, advising on strategy and providing mediation and arbitration services."

Which doesn't mean that he shouldn't express his opinion in HBR but does color that opinion a little in my view. If nothing else the current system is an all you can eat buffet for IP lawyers.

HBR: please feel free to run this as a counter-argument, the best way to fix the patent system is to stop examining them altogether as I proposed nearly twelve years ago.

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(Published to the Fediverse as: HBR on the Wrong Patent Reform #politics #patents #google Paul R. Michel in the Harvard Business Review proposes maintaining the status quo on Patents. My suggestion is a little more radical... )

Links for April 2022

Prior Artist

Updated on Sunday, October 23, 2022

You won't believe this one crazy trick that would fix the broken patent system

Updated on Thursday, November 12, 2015

You won't believe this one crazy trick that would fix the broken patent system

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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(Published to the Fediverse as: You won't believe this one crazy trick that would fix the broken patent system #politics #patents The best way to fix patents is to stop examining them altogether. )

BBC On Patents

Updated on Thursday, November 12, 2015

Patently Absurd

"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).

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(Published to the Fediverse as: BBC On Patents #politics #patents The BBC's 'Patently Absurd' program on patent abuse which is of course no longer available. )

Die, Software Patents, Die

Updated on Sunday, October 23, 2022

This week in defeating Patent Trolls

Updated on Sunday, October 23, 2022

Bringing a SHIELD to a conker fight

Updated on Thursday, November 12, 2015

Bringing a SHIELD to a conker fight

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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(Published to the Fediverse as: Bringing a SHIELD to a conker fight #politics #patents #uspto #shield #trolls SHIELD might help patent reform but what we really need to do is stop examining patents altogether. )

Support SHIELD–a small measure of patent sanity

Updated on Thursday, November 12, 2015

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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(Published to the Fediverse as: Support SHIELD–a small measure of patent sanity #politics #patents Let your congressperson know that you support SHIELD, a small measure of patent sanity. )