> Something is prior art only if it's an obvious extension of something already patented, not if something else similar but unpatented exists in the wild.
Really? In the Reddit AmA thread by a patent examiner a month ago, he said that works publicly released anywhere in the world prior to the filing count as prior art, and gave the example of paper fans in Vietnam. The issue is that the patent examiners don't have the time or ability to seek out every possible piece of prior art in the world.
Hopefully the state of software patents can be changed at the source, when they tighten patent granting. But the patents already in the wild will need to be re-evaluated and invalidated in the court system, which is why judges like Alsup are so important.
One way to lower the workload on the patent office would be to allow non-parties to file objections before any patent is granted. This way Google could have a department that researches every new patent claim by Apple and file a counterclaim to the patent office showing prior art anywhere in the world.
Letting private companies with real interest in each patent given to their competitor allows a much thorough research.
I really can't see anything bad happening in a process that allows unchecked intrusion into one's IP grants by one's competitors.
The problem isn't so much the patent process, it's scope. Things that shouldn't be patentable are. You have the obvious, like software; but you also have the more challenging like a slight modification to the way a transistor is layed out (hypothetical example) leading to the one of tens of thousands of patents a smartphone needs.
The first is hard to deal with. It's a blurry line between hardware and software, but I could see some rules that could help a lot: things like "it actually requires more than a general purpose computer", "the item is a standalone item and not a piece of a bigger thing", etc.
I have no idea how to deal with the second. I think to solve that, you have to consider moving to a non-IP world (at least in some sectors).
I'm not completely convinced dumping IP protection is the right thing to do, but I think it might be. Clothing is a good example of a sector that has little IP protection (except trade dress, which was a big part of this case [an overplayed one by Apple, IMO]). Like tech, it is highly iterative on the last wave, moves very quickly, and old waves lose value very quickly. It has managed pretty well, but cheap clones have certainly had their impact.
Things seem to be moving in this direction. I'm not clear on details, but:
• "The USPTO Prior Art Submission Site, scheduled for launch on September 16, 2012, will deliver prior art directly to examiners at the USPTO." Any individual can make three submissions for free, beyond that I'm not sure how it works.
• "Google’s new Prior Art Finder searches for relevant inventions that precede the publication of a pending patent application."
• Stack Exchange is also going to launch a new site whose mission includes collaborative searching for prior art to submit through the USPTO's new system to block patent applications.
Really? In the Reddit AmA thread by a patent examiner a month ago, he said that works publicly released anywhere in the world prior to the filing count as prior art, and gave the example of paper fans in Vietnam. The issue is that the patent examiners don't have the time or ability to seek out every possible piece of prior art in the world.
Hopefully the state of software patents can be changed at the source, when they tighten patent granting. But the patents already in the wild will need to be re-evaluated and invalidated in the court system, which is why judges like Alsup are so important.