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What's your problem?

Patent reform
  (+3, -2)
(+3, -2)
  [vote for,

Here in the US, we have a problem.

(Ok, ok, don't get off topic. We have *this* problem)

Too many patents. Patents on everything, patents that make no sense, patents that are kept secret, patents that are duplicated...

We're supposed to have patents to "promote the Progress of Science and useful Arts", not choke it to death.

OK, here's my solution: the first step in getting a patent is registering the problem the new device is going to solve. The problem - not the solution, but the problem itself - is checked for obviousness. In fact, the problem is published.

If, within 180 days of publication of the problem, *anyone* responds with a working solution, or, within 90 days, a workable solution - then no patent can issue. If the problem could be solved within that time frame, the solution was close enough to "obvious" to disqualify it from patentability.

After closure of the exclusion period, solutions are *potentially* patentable. Not automatically so, however - if more than one solution is submitted within a 14 day period, then the multiple solutions - and any other later ones - are disqualified for simultaneity. (That is, if the answer occurs to multiple people at once, then no one gets a monopoly on it.)

This should dramatically decrease the number of patents issued, and limit those that *are* issued to real inventive solutions.

lurch, Sep 16 2011


       Interesting timing. Watch the news much?
Alterother, Sep 16 2011

       I like the sentiment but this seems needlessly complicated. It should be easier to get a patent. Perhaps a patent could be more a registration that does not preclude others to use your idea.
zeno, Sep 16 2011

       Do you have a clarifying link [alterother]?
zeno, Sep 16 2011

       Whilst perusing a patent in (mostly mock) outrage at one of my ideas being baked, I noticed that we had diverged rather emphatically for secondary usages.   

       So can I get my own patent now ?
FlyingToaster, Sep 16 2011

       It seems like there would be a lot of attempts to game this and this could cause delays in rolling out a product using a new invention. For example why would anyone submit the solution befor the 180 day window. That would ensure that all of their work was wasted.   

       How often is it that the groundbreaking part of an invention is just realizing that there is a problem? Once the problem is noticed, the solution may be obvious. Great inventions can come from inspiration and/or perspiration. This seems to put more reward for perspiration. That may be the right way to go, but it seems worth discussing.
scad mientist, Sep 16 2011

       //Watch the news much?// No. Do I know about the patent reform bill? Yeah, with anger, rage, hopelessness, and futile cursing.   

       //It should be easier to get a patent.// No. Getting a patent should be next to impossible. When it's possible to get a patent on a method of swinging a playground swing, on a method for chewing bubblegum, or on the idea of clicking once on a mouse button - that's not telling me that getting a patent is too hard.   

       Have you followed Oracle v. Google (the Android patent litigation)? Of the Oracle patent claims which have been put up for re-examination, most failed. Over 90% of the independent claims, and almost 80% of the dependent claims were found to be without merit. The really, truly depressing thing is that these rates are NOT extraordinary - they are right on the AVERAGE rates of invalidity found in USPTO re-exam actions.   

       <ok - ok - deep breath, ommmmm...>   

       //why would anyone submit the solution befor the 180 day window//   

       Ok, say I see you've published a problem which I've already solved. If I keep my mouth shut, you could end up with a patent on something I have the solution for - then I'd end up having to pay you for my own know-how. However, by registering my solution to the problem you registered, I can prevent you from getting a patent. (Known as "defensive publication".) And - it lets everyone else know how to solve that problem, which promotes the Progress of Science and useful Arts.
lurch, Sep 16 2011

       I can't believe the cost per country to file for a patent.
Say I do have an idea that is screaming to be patented, *and* I have a couple of tens of thousands of dollars to throw at patenting it, *and* another few hundred thousand to get the concept off the ground... there is abolutely nothing in place to keep someone with deeper pockets than me from doing an end run around the system and squashing me like the bug I am.

       The system sucks shit.   

       pardon my english   

       Establish the idea in the public domain early, also do the old trick where you send your idea to yourself in registered mail, and produce it anyway without patenting it. This works because you can't really afford to enforce your own patent anyway, and it provides you with some protection from someone else. I wouldn't worry about it, however this is in no way legal advice.   

       Also not every invention solves a problem.
rcarty, Sep 16 2011

       Did that.   

       Got me one of them Notary Public certified registered mail never-opened envelopes kicking around somewhere of the sketch and viewing of a prototype of a remote control dragonfly that I built.
I have email corrospondences with the patent search company, the incredibly wide open results of their patent search and the fact that those communications ceased very close to that year-to-file deadline that I knew nothing about when I built the thing.

       ...and then *presto* it was on the market.   

       I'm a daydreamer, not a capitalist.
aka ripe pickins.

       What is the incentive for true innovation if intellectual property becomes just another candy yanked from another baby.   

       Who's Grandpa's thought this crap up then?
...and why ain't it fixable again now?

       I'm not bitte... oh who am I kidding, I'm the teensiest little smidge bitter. I'm over it but that doesn't make it right.
Nothing has changed since then.

       "We're gonna need a bigger boat."   

       My point is that "defensive publication" would always be done in the 14 day window, not during the 180 days before that. Just because someone published the problem doesn't guarantee that they will have the solution ready at the end of the 180 days. If I've had the solution all along, or if I decide for some reason to invest the resources to find the solution, if I publish before the 180 window closes, I guarantee that no one can patent it. If I wait until the 14 day period and someone else publishes during that same 14 days, again no one can patent it, but if the person who filed the problem actually fails to publish the invention during that time, I could get the patent for myself. I don't see any downside in waiting, but lots of potential updside.   

       I guess I could see publishing before the 90 day window expires if I could meet the criteria for a "workable solution", but don't have the resources to get a working solution before I could allow the patent to go to someone else.   

       Oh, I meant to say that I like a lot of the principles of this idea, but the applicaiton could use a lot of tweaking. On re-reading, my first comment does seem mostly negative...
scad mientist, Sep 17 2011

       What if my solution is superior to yours? Problem: bug infection. My solution: antibugicide. You step up and declare that your Lurch Oil solution is already available for this problem and this week is available at a 10% discount. No patent to me even though antibugicide will grow hair on an egg and increase IQ by a factor of 3, and your stuff is not exactly snake oil, but is some sort of oil, possibly snake oil depending on the market.
bungston, Sep 17 2011

       [bungston] - register a problem that your formula will solve/cure which mine won't. Mine's not a solution, so it's out of the running.   

       And notice - if you had registered the more difficult problem earlier, then your formula could have prevented my inferior one from ever getting a patent.
lurch, Sep 17 2011

       The main difficulty I have with this idea is the onus being put on the public to invalidate the patents. There are hundreds of thousands of patent applications every year. To expect that the public will even attempt to solve a significant fraction of the posed problems is unreasonable. There are also questions of efficiency - you might get 200 people to attempt to solve one problem, and no-one to solve another.   

       The patent office, at least in theory, is a relatively efficient means for filtering patent applications and issuing the valid patents.   

       It would be better to simply encourage people to 'defensively publish' *everything*. Publishing, thanks to the internet, is free. Every time you think of a nifty solution, or even a mediocre solution, to a problem - publish it. This way, there is more prior art to limit the scope of the patent claims.   

       Also, I'm not convinced that the rules on obviousness are causing all the invalid patent being granted. For example, the rules may already be stringent enough yet are not being applied correctly. Alternatively, the patents may be being found invalid upon re-examination for other reasons e.g. novelty, full disclosure, inventorship etc.   

       My idea for increasing the quality of patents is to give an incentive to patent applicants to a) perform their own prior art search and b) then reveal the closest prior art to their invention, since the applicant is usually the most knowledgeable person in their field of invention.
xaviergisz, Sep 18 2011

       I'm skeptical that any innovation is "stopped" by counter claims. To be sure "dancing elephants" tangle with each other from time to time, but I don't see any evidence that this "slows down" things in any way.   

       After all, when I'm building a product, whether it's brick and mortar or online, I'm not exactly checking against a patent library.   

       The current most visible struggle -- the mobile industry -- is a good case in point.   

       If the iPhone had never shipped, due to the numerous counter claims, your concern would have meaningful weight. But that is not in fact the case. Whereas the various post product struggles between Apple and Samsung are just jockeying for market position, and longer term, increase the value of individual inventions, thus making being an inventor more valuable.
theircompetitor, Sep 18 2011

       The most obvious solutions to the problem are often the best ones. If one were pressed to make an original iteration of the handheld potato peeler, or the pencil, they would be doing so by moving away from the most straightforward design, and they would do this to the detriment of society.
bob, Sep 18 2011

       //the problem itself - is checked for obviousness. In fact, the problem is published.//   

       No no no. For some patents, the problem is obvious and lots of people are working on it, so publishing the problem doesn't do anything ("cure colon cancer"; "find a way to sequence DNA faster and cheaper").   

       For other patents, realizing that a problem or need _exists_ is a creative step, and often the solution is simple ("find a way to removably stick short, written notes on items"; "devise a hand- held device to allow users to point to items on a computer screen").   

       There's plenty wrong with the current patent system (cost is a biggie; over-broad claims are another), but this isn't the solution.
MaxwellBuchanan, Sep 25 2011

       // The system sucks shit. //
I have a friend who had a similar experience to yours, [2 fries].

       It does.
pertinax, Sep 27 2011


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