This is why I think that the patent examination process should include a challenge-period, where anybody can suggest solutions to the problem posed in the patent-application.
I don't think challenging patents is the whole answer, all the things I outlined operate within the current patent system. The rules are broken. They only way that Open Source has to currently prevent this taking from the commons is
1) Aggressively innovate and publish, including using the same front running techniques as used by industry and academia.
2) Aggressively challenge all patents in a classification. Rapid prototyping and manufacturing, robotics, farming and transportation are all huge land grabs that are going on right now.
3) Get the Bayh–Dole Act repealed or neutered. A penny of public funds (including the facilities, any of the staff, etc) and it should be a public good, available to all.
4) Make the patent office no longer a profit center
This is the case: the whole pre-issuance period a counter party can challenge and provide invalidating arguments. Nine months after issuance there is also a challenging period. Additionally you can invalidate a patent by litigation but this gets more expensive.
Yet many bogus patents still slip through. Challenging patents is a costly and time intensive process.
This is different; this is not about finding arguments why a patent-application should not get through (i.e. the "search" part of the job of the patent officer). This is about finding the solution that is proposed in the application, which shows that the solution is trivial to those skilled in the art.
speaking of costly, their gofundme[1] says "We need $60,000 to pay for attorney fees and patent office fees related to a re-examination of the patent application."
That's quite a bit for an opensource developer to have on hand, but peanuts for major corporations.
One of the major parts of the obviousness tests in the US (and in every other major jurisdiction) is whether a person skilled in the art would even have understood the problem, recognized there was a problem, etc.
Or, keep the system, but allow the PTO, and individual examiners to be liable for any fees resulting from an invalid patent being granted in the first place.
Individuals (like the original project in this case) and the public at large (court/challenge costs) shouldn’t be burdened with the costs of fixing the PTO’s fuckups.
You're basically closing down the patent system here, any prior disclosure anywhere in the World, in any language can be used to show the invention lacks novelty.
There are some restrictions in different jurisdictions on what can be used to show there is no invention (ie there is no 'inventive step' or it's 'obvious' [it's a legal definition, not just a dictionary definition of this term that is used]).
If you're going to hold an examiner liable (there's actually a law in the UK protecting civil servants from liability, but hey) then you're going to have to give them lots of time and lots of resources ... that's going to make it all too costly.
You'll spend more than is profited from most patents in order to be sure that a patent won't be challenged in court ... and it still could be, just under other facets of the law, such as whether the disclosure is sufficient to work the invention.
You have to allow people to be less than perfect. If you're a programmer, imagine you had essentially unlimited liability if you created a single bug (examiners don't know if the patent is worth nothing, or 100s-of-$Millions, that's all down to externalities).
Could the system be improved, for sure, but it's always going to have to balanced against cost of administration. If you're court system is working effectively you don't need anything like a perfect parent examining system. If you're courts aren't working ... well fix them instead of spending disproportionately elsewhere.
All good points; I will however point out something about this specifically:
>then you're going to have to give them lots of time and lots of resources ... that's going to make it all too costly.
If the system has to become prohibitively costly to get it to a level of semblance of actually working, then one has to wonder if it's worth it at all for it to exist.
It doesn't matter how expensive your telescope is, if you want it to have perfect optics you'll have to spend more. You need to decide at what point it is good enough. If your post-processing is good (courts) then you can cut costs on the optics (patent examination) and still achieve the results you want.
Note that I'm not aware of any way to challenge an application on non-prior-art grounds like 101, 112, etc. But I imagine emailing the examiner assigned to the application would work. Unfortunately examiners aren't assigned until a few weeks to a few months before examination, so a challenger will need to periodically check the status of the application before contacting the examiner.
This is something else. Here, not the patent itself is challenged, but the work of the patent officer is made easier because prior art is supplied.
What I propose is that anyone can submit solutions to the original problem stated in the patent, without yet knowing the solution proposed in the patent. This allows us to demonstrate that the solution is trivial to those who are skilled in the art.
Unfortunately the US doesn't work on that legal standard, though I think that's a nice approach.
In practice, almost no third parties submit prior art, which is a lot simpler than submitting solutions. So I doubt people will submit any significant amount of solutions.
If there was a forum like HN where every post was a patent-problem, I would be happy to participate in the discussions about possible solutions, on a daily basis.
This isn't copyright law where independent authorship/creation is a defense. The US is a first to file nation, which it shares with nearly every other major country in the world.
