Patent Office Needs To Be Told To Look Online For Prior Art?

from the oh-great dept

Fri, Apr 21st 2006 4:56pm — Mike Masnick

It's getting increasingly difficult not to post stories about problems with the patent system every day. There are just so many of them. The latest is that a public policy group has put out a report with the brilliant suggestion that maybe (just maybe) the US Patent Office might want to start looking online for prior art when evaluating patents having to do with new technology. The fact that they would need to be told to do so says quite a lot about how the Patent Office currently functions (if you can call it that).

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39 Comments

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Anonymous Coward, 21 Apr 2006 @ 7:23pm

government bureaucracy will be the end of us
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Anonymous Bum, 21 Apr 2006 @ 7:25pm

But who will teach them how...
to search. Most Nincumpoops don't even know how to search correctly.
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Sadistic Freek, 21 Apr 2006 @ 7:37pm

I agree with Anonymous Bum on that point.
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Joe Smith, 21 Apr 2006 @ 7:49pm

None so blind
Would they recognize prior art if it bit them?
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A chicken passeth by, 22 Apr 2006 @ 1:17am

Hmmm.
Perhaps the patent office was populated with unknowledgable people on purpose. This is the only way dumb patents (and patent laws) could be passed without deep scrutiny.

(They could use bribery but it IS less expensive to poison the well.)
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Anonymous of Course, 22 Apr 2006 @ 9:11am

Re: Hmmm.
It can be explained with one word... lawyers
Their stock and trade is deception, not technology.

Fire the politician larva at USPTO and hire a few
engineers.
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Axe, 22 Apr 2006 @ 10:03am

Just wanna throw this in...
There are official reports out there outlining USPTO reform, so I would expect we'll all hear more about this topic.

I'd like to think that all our bitching, moaning and complaining had something to do with it. Keep up the good work!
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uh huh, 22 Apr 2006 @ 10:37am

the problem with that
Not everything on the internet is the truth. The patent is based on who thought of it first, not who made it first.
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anon, 22 Apr 2006 @ 10:38am

Re: Re: Hmmm.
The USPTO ONLY hires engineers. In order to work there you have to have an engineering degree
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angry dude, 22 Apr 2006 @ 12:38pm

internet
In my case the Yahoo search result was included in the first office action - examiner did it by himself.

Needles to say, there was one on-line "article" published by some honest person which contained fraudulent claims of priority.
Fortunately, the examiner saw such crap before and didn't pay much attention

Yeah, every moron can self-publish on-line these days.
Isn't Internet a wonderful place ?
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Grandmaster T, 22 Apr 2006 @ 2:04pm

Perhaps the patent office was populated with unknowledgable people on purpose. This is the only way dumb patents (and patent laws) could be passed without deep scrutiny.

(They could use bribery but it IS less expensive to poison the well.)
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me, myself, and i, 22 Apr 2006 @ 4:16pm

on a completely unrelated subject, i'm an adult in 6 months today!
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just because, 22 Apr 2006 @ 4:32pm

trains
it's really funny that the latest one was about toy train controlers! i mean, the closed software was ANNOUNCED after the open-source product had been released! and then all the attempts at strong arming the guy who made it into paying some random amount of money. if any laws were violated, it would be license law because the closed software can be seen as a "dirivitave work" of the open-source software that was licensed under the GPL! and we all know the rules about those dirivitaves!
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Anonymous of Course, 22 Apr 2006 @ 5:19pm

Re: Re: Re: Hmmm.
USPTO hires only engineers... no experience necessary.
And to be a design patent examiner no engineering
degree is required. None the less I was wrong.

Ok, I stand corrected. I couldn't believe this was true
and asked Google. Thank you.

Now I have NO explanation for why the USPTO would
issue a patent for swinging a swing, yes a child's swing.

Perhaps it's something in the water.
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Tin Ear, 22 Apr 2006 @ 10:00pm

Re: Re: Re: Hmmm.
Being an engineer does not necessarily imbue intelligence. I have been a welder/fitter/fabricator for the last 28 years, and there have been MANY time that I have had to question something that an ENGINEER put on a blueprint. In many cases that I have done this, it was recognized that it would have been a problem and would have to be changed. Granted, most engineers know what they are doing. Some, on the other hand, I would not trust to take out the trash effectively.
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Walter Borden, 22 Apr 2006 @ 10:08pm

Another boorish rant
I am no fan of the USPTO and yet I find myself almost wanting to side with them as a result of all the self righteous blather on this blog.
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Walter Borden, 22 Apr 2006 @ 10:16pm

Another boorish rant
I am no fan of the USPTO and yet I find myself almost wanting to side with them as a result of all the self righteous blather on this blog.
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satan, 22 Apr 2006 @ 11:48pm

Re: Re: Re: Hmmm.
that explains a lot.
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i agree with uh huh, 23 Apr 2006 @ 5:48am

Re: the problem with that
As commented by uh huh, even if an examiner finds "prior art" through an internet search, it is usually difficult for an examiner to prove when the information was published. Remember, most applications are not examined until *years* after they have been filed. Both those reasons are some of the main reasons why it is best to apply patents/publications (U.S. and foreign) and stronger non-patent literature first, then, if necessary, do an internet search.

Also, in most cases, it is not that the examiner hasn't considered doing an Internet search, but that the time alloted to search the case makes it unfeasible to do.

It's not the Examiner, but the current production system, that's the problem.
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Chris McElroy, 23 Apr 2006 @ 7:44am

Re: the problem with that
Uh, legally that is not always the case. "First Use" beats "first thought" any day of the week.
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Anonymous Coward, 23 Apr 2006 @ 8:35am

Re: None so blind
"Would they recognize prior art if it bit them?"

No, because most things when they bite one's self, bite on the ass. The Patent Office cannot, and will not ever, be able to find its ass with both hands, a map, and a friend.
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Walter Borden, 23 Apr 2006 @ 11:43am

Another boorish rant
I am no fan of the USPTO and yet I find myself almost wanting to side with them as a result of all the self righteous blather on this blog.
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Anonymous Coward, 23 Apr 2006 @ 1:12pm

Re: Another boorish rant
Fight the urge to side with the USPTO. The problem may or may not be at the USPTO itself. The types of problems which are being experienced are seldom the fault of front line staff but are rather the fault of the policy makers who set the rules and allocate the funding.

In this case the guilty policy makers might be in the Courts, in Congress, in the USPTO or all three. I don't blame the examiners at the USPTO, but I do think that the Federal Court of Appeal with their rubber stamp injunctions are a big part of the current problem.

What seems to be beyond doubt is that there is a problem, that the problem is a legitimate topic for public debate and free public debate tends to be a bit raucous.
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angry dude, 23 Apr 2006 @ 6:00pm

Re: Re: Another boorish rant
>Federal Court of Appeal with their rubber stamp injunctions >are a big part of the current problem

You are either a fucking moron or an anonymous corporate stooge...

This whole forum is just fucking clueless about what's really going on...
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Mike (profile), 23 Apr 2006 @ 7:04pm

Re: Re: Re: Another boorish rant
You are either a fucking moron or an anonymous corporate stooge...

This whole forum is just fucking clueless about what's really going on...

Angry dude, once again, put up or shut up. I've asked you about 10 times, and yet for some reason you fail to put up.

Instead of insulting everyone, why don't you enlighten us?

Ah, because you have no case. You won't tell us your amazing magical patent. You won't fill us in on why we're so clueless.

Basically, you've got nothing.

Come on. Show us something so that maybe we can take you seriously.
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Anonymous Coward #2, 23 Apr 2006 @ 7:14pm

Fraudulence
The problem is, of course, that anyone can post on the Net that they invented the Da Vinci Code before Dan Brown and start a lawsuit (taking an example out of my head).
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Anonymous Coward, 23 Apr 2006 @ 7:28pm

Re: Re: Re: Re: Hmmm.
you don't work with civil engineers by chance, do you?

In my dealings that group of people is collectively the most incompetent ever.
if you happen to be a competent CE, I apologize. I am also sure I have not met or dealt with you.
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Joe Smith, 23 Apr 2006 @ 10:32pm

Re: Re: Re: Another boorish rant
You are either a fucking moron or an anonymous corporate stooge...

I know enough law and have read enough about current cases to know that the Court of Appeal's approach to injunctions in patent cases is seriously out of step with the general law of injunctions and that companies (like NTP) are using those rules to extort money they don't deserve.

It always amazes me Mr. Angry Dude that you are so strongly in support of everything about the current system while at the same time claiming that the system is not working for you.

Maybe you should get with the program and start proposing ways in which the system could be changed so that the patent system works properly and improves the condition of society.

By the way, your choice of language shows that you are either profoundly immature or deeply disturbed. Professional help would probably be a good idea before you injure yourself or someone else. Someone who walks around with as much rage as you have is dangerous - both to others and to yourself. That sort of rage is going to take a toll on your physical health.
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angry dude, 23 Apr 2006 @ 11:59pm

Re: Re: Re: Re: Another boorish rant
"By the way, your choice of language shows that you are either profoundly immature or deeply disturbed. Professional help would probably be a good idea before you injure yourself or someone else. Someone who walks around with as much rage as you have is dangerous - both to others and to yourself. That sort of rage is going to take a toll on your physical health."

Don't jump to conclusions without sufficient info (about patent system too...)

I am a perfectly normal 40-year old male with 2 M.S. degrees and a Ph.D., making enough money to afford middle-class life in this country (and even some extra to play my own patent game...)
It is only when people start speaking about patents without knowing a shit I become very angry indeed.
Know your subject before you speak: automatic injunctions in patent cases are the only way to keep those big corporate infringers in check.
It is very simple: no automatic injunctions = uncontrolled theft of IP by big corporate crooks from small entities like myself.

And BTW, NTP is NOT a patent troll. They perhaps didn't deserve so much money, but it was RIM's decision to ignore their more than reasonable initial licensing proposals (a few mils) to eventually pay 612 mil.
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Mike (profile), 24 Apr 2006 @ 12:04am

Re: Re: Re: Re: Re: Another boorish rant
Don't jump to conclusions without sufficient info (about patent system too...)

And yet, you have no problem whatsoever in jumping to conclusions about our knowledge of the patent system. Funny how that works...

It is only when people start speaking about patents without knowing a shit I become very angry indeed.

So, again, please actually put up and tell us what we don't understand. Because every time we ask, you disappear...

automatic injunctions in patent cases are the only way to keep those big corporate infringers in check.

We've already explained this isn't true. Automatic injunctions are *one* way, but hardly the only way. And the downsides to automatic injunctions -- including taking truly innovative, successful products off the market -- have very large downsides as well. Your failure to even admit that obvious fact harms your credibility to a large degree.

And BTW, NTP is NOT a patent troll. They perhaps didn't deserve so much money, but it was RIM's decision to ignore their more than reasonable initial licensing proposals (a few mils) to eventually pay 612 mil.

And yet, the USPTO keeps showing that they're going to reject the patents as invalid. So, it seems like RIM was doing exactly the right thing in ignoring the licensing proposals because they were RIGHT in assuming the patents weren't valid.

I'm sorry, but your reasoning simply doesn't add up at all.
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Anonymous Coward, 24 Apr 2006 @ 1:14am

Re: Re: Re: Re: Re: Another boorish rant
I am a perfectly normal 40-year old male with 2 M.S. degrees and a Ph.D., making enough money to afford middle-class life in this country...

A perfectly normal 40 year old male does not start a conversation by calling someone a "fucking moron".
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angry dude, 24 Apr 2006 @ 6:32am

Re: Re: Re: Re: Re: Re: Another boorish rant
"I am a perfectly normal 40-year old male with 2 M.S. degrees and a Ph.D., making enough money to afford middle-class life in this country...

A perfectly normal 40 year old male does not start a conversation by calling someone a "fucking moron".
"

I suggest you try to work on some very hard problem, spend 5 years working late nights without being paid a dime (while keeping your full-time day job to make your ends meet), spend your hard-earned money on equipment and materials (depends on the field of invention), eventually come up with your breakthrough solution to the problem, drop 20-30 thousand bucks on patent attorneys and PTO fees only to see you invention used without your permission by the entire industry, and then, when you attempt to collect some money on your invention, read how people of techdirt call you names like "patent troll" etc.
I think you might start conversation about patents the same way...
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angry dude, 24 Apr 2006 @ 6:33am

Re: Re: Re: Re: Re: Re: Another boorish rant
"I am a perfectly normal 40-year old male with 2 M.S. degrees and a Ph.D., making enough money to afford middle-class life in this country...

A perfectly normal 40 year old male does not start a conversation by calling someone a "fucking moron".
"

I suggest you try to work on some very hard problem, spend 5 years working late nights without being paid a dime (while keeping your full-time day job to make your ends meet), spend your hard-earned money on equipment and materials (depends on the field of invention), eventually come up with your breakthrough solution to the problem, drop 20-30 thousand bucks on patent attorneys and PTO fees only to see you invention used without your permission by the entire industry, and then, when you attempt to collect some money on your invention, read how people of techdirt call you names like "patent troll" etc.
I think you might start conversation about patents the same way...
[ link to this | view in thread ]
angry dude, 24 Apr 2006 @ 6:33am

Re: Re: Re: Re: Re: Re: Another boorish rant
"I am a perfectly normal 40-year old male with 2 M.S. degrees and a Ph.D., making enough money to afford middle-class life in this country...

A perfectly normal 40 year old male does not start a conversation by calling someone a "fucking moron".
"

I suggest you try to work on some very hard problem, spend 5 years working late nights without being paid a dime (while keeping your full-time day job to make your ends meet), spend your hard-earned money on equipment and materials (depends on the field of invention), eventually come up with your breakthrough solution to the problem, drop 20-30 thousand bucks on patent attorneys and PTO fees only to see you invention used without your permission by the entire industry, and then, when you attempt to collect some money on your invention, read how people of techdirt call you names like "patent troll" etc.
I think you might start conversation about patents the same way...
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Joe Smith, 24 Apr 2006 @ 9:15am

when you attempt to collect some money on your invention, read how people of techdirt call you names like "patent troll

I've never called you a patent troll and I don't think anyone else has either. You may or may not be a patent troll. It will depend on what your "invention" is. So far as working late nights and investing your money in a project - that is hardly unique. Most entrepreneurs do that and not all of them are successful.
If you really did invent something worthwhile and patentable then you should go make a deal with NTP or its lawyers. Afterall, 30% of something is better than 100% of nothing.
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Anonymous of Course, 24 Apr 2006 @ 10:14am

Re: Re: Re: Re: Re: Re: Re: Another boorish rant
What, you think you're unique? That's a joke.
Been there, done that. Several times in fact.
Never made a cent from all that work. Boo-hoo!
The only one that made money was the attorney.

Several of my friends are in the same position.
Some have taken second mortgages on their
houses in pursuit of their invention.

Yes, it sucks but that's typical. Most of the time
it doesn't pay. Do it because you like it. Hitting
the jackpot is gravy- and we all like gravy.

Even the people that DO hit it big may spend
the rest of their lives and much of their money
looking for the next big idea.

Corporations have paid me to understand and
avoid patent infringement. I'm not an expert
on patent law but I'm not clueless either.

What I'm saying is- only five years? Grow up
nimrod. Come back when you've paid your dues.
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angry dude, 24 Apr 2006 @ 10:45am

Re: Re: Re: Re: Re: Re: Re: Re: Another boorish ra
"Yes, it sucks but that's typical. Most of the time
it doesn't pay. Do it because you like it."

"It" doesn't pay ?
*Big corporations* don't want to pay a small patent holder for a valuable IP they stole - this would be the right statement.

Now, you seem to be happy with this ? Good for you.
Just don't expect every other independent inventor to be happy with this situation.

Inventors (the real ones) want to see some real hard cash for their very real inventions.
It's just a shame that they often have to spend rest of their lifes in a court room defending their rights.
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Mike (profile), 24 Apr 2006 @ 9:51pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Another booris
Inventors (the real ones) want to see some real hard cash for their very real inventions.
It's just a shame that they often have to spend rest of their lifes in a court room defending their rights.

Then, uh, why don't you go build a real business and sell real products to real customers? Then, not only do you get your real hard cash, but you make the world a better place to boot.

What a concept...
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Anonymous Coward, 22 May 2006 @ 5:42pm

Re: But who will teach them how...
Why don't you come on down to the PTO and Examine a few Patent Applications?
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