Wikipedia for Patents

John Funk, an entrepreneur (I’m an investor in John’s newest company – Evergreen IP) and friend has a innovative proposal up concerning changing the rules on the current patent system.  I’ve been on both sides of the patent aisle with John – we like to joke that early on in our relationship John’s company sued one of my companies (and then my company sued John’s company back) for patent infringement (the companies settled several years later for a cross license and $1 – much to the delight of the lawyers who got all the bucks.)  Fortunately we got past all that crap and have developed a nice friendship.

John’s proposal is straightforward – let’s change the rules so patent applications get published after six months and – before the patent is granted – there is an open debate using a Wikipedia (or Digg-like) system that helps surface all the prior art and blow up stupid patents for obviousness and prior art.  This would be a real debate – online and out in the open – that the patentee would be able to engage in.

While I’m sure all the patent lawyers in the world would groan at this, it’s certainly better for them than my proposal, which is to simply do away with software patents altogether.  We certainly have the technology to implement this – say – in 24 hours.  I wonder who will try to patent that?

  • Not only that, I think it would be a great resource to learn about patents in general and identify weaknesses in your patent strategy through the on-going debate.

    Maybe the patentee could then revise his/her application for re-review.

  • Even if we do away w/ software patents wouldn’t such a site (bringing innovators together) be useful for software in addition to all other patented fields?

  • Dave Jilk

    What’s preventing this (WikiPatent) from being done now? The only real change he’s proposing to the rules is that they be published earlier – but right now they’re published well before the patent issues anyway.

    The real problem with this idea of publishing patents early is that it would really chill the use of patents for IP protection – people would instead rely more on trade secrets. The fundamental transaction in a patent is that the inventor discloses the “secret” of how he made it work in exchange for a temporary monopoly. If patents are made public before they get very far along in the process, inventors face the risk that their invention will now be publicly disclosed and then they DON’T end up with patent protection, for whatever reason. In theory this would only happen if the invention wasn’t novel or was obvious, but there is almost certainly a mismatch between what is patentable and what is otherwise proprietary, so this would be a real risk.

  • Daniel – totally agree.

    Dave – there are two parts to the change John is proposing. 1. Publish the application earlier, 2. Have an engaged community effort to respond (rather than a closed PTO process.) I think #2 has the real impact.

    I think it would be awesome if people would stop using patents and shift to trade secrets. I’ve always felt that trade secrets were the appropriate form of IP protection for software – going back to when I did real research on this in the 1980s (to the extent that anything I actually did could be categorized as “real.”) If this was the outcome of this change, it’d have been highly effective!

  • I agree with Brad about trade secrets; it would hardly be possibly to create a whole new industry of Trade Secret Trolls.

    “I don’t mind a parasite, I object to a cut-rate one.”

    Bogey knows patent trolls.

  • Dave Jilk

    Brad – that was the point of my first paragraph: if the benefit comes from the engaged community, what’s wrong with starting that now? If the information is there, and it’s useful, then the patent office could be lobbied to pay attention to it (hmm: you’re an examiner, and there’s all this important information available in one place on exactly the patent you’re reviewing, and you didn’t even look at it?)

    I think trade secret protection has its own set of challenges, namely that it’s really hard to keep anything secret very long with employees who leave for competitors, and it’s very hard to prove that something wasn’t just “knowhow.”

    Nevertheless, I agree that software patents should go away.

  • Got it. However, I don’t think the public comment dynamic will work in any meaningful way UNLESS the PTO incorporates it directly into their process. My understanding (at least until recently) was that PTO is not allowed to even use Google for prior art search. This may be an urban legend and/or something that has changed, but hearing stuff like this makes my toes curl.

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