Giving Peer Reviewed Patents A Shot

from the testing-it-out dept

Mon, May 8th 2006 10:25pm — Joseph Weisenthal

Though the problems with the patent system are manifold, people on all sides of the debate should agree that it's problematic when patents are issued for obvious things, or in areas with significant prior art. One problem, which again should be uncontroversial, is that the USPTO is often ill equipped to do the necessary legwork to avoid mistakes. That wouldn't be such a problem if it were easy to overturn patents, but as it is, these mistakes can result in long and costly legal battles. One of the ideas that's been floated to solve the patent office's resource crisis is a system of peer reviews, much like that of an academic journal. The idea is that people who are trained in their areas, who care about the health of their field, would do a better job identifying problems with a given application. Also, since patents are only supposed to be granted on ideas "non-obvious to those skilled in the art," it makes sense to actually ask those skilled in the art for their opinions. It appears that the theory is slowly being put into practice, as the patent office is launching a pilot peer-review program, with the first public meeting scheduled for later this week. As Glenn Fleishman asks, could anyone really argue that, "Patent examiners don't have the right to see all prior art that's well known to the scientific, business, or other communities for which this patent is relevant." One potential complaint that some have raised, is that by employing interested parties, there will be a strong incentive to strike applications down for being obvious, either out of jealousy or personal agenda. But this argument states essentially that humans are fallible, a claim that could tarnish any system of human review. Furthermore, there are ways to mitigate this problem (by having a diverse group of peers, and still having examiners review the highlighted issues, for example) while still making the overall system much more robust than the current one. This won't solve all the problems, and certainly doesn't get at the deeper issues of what patents truly accomplish, but any system that could reduce the obvious patent mistakes is one worth trying out.

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Zippy the Pinhead, 8 May 2006 @ 10:16pm

Pretense
"This guy clearly does not define the standard. Last month when I was in DC talking to policy folks about intellectual property issues, there were many lawyers who clearly understood the issues, and were willing to discuss them rationally." This is an example of the problem. These guys are wanna-bes. They think because they visited DC they are authorities. They also don't seem to realize how easy it is to find a lawyer to agree with you (so long as you're not a lawyer). Many of their friends are car salesmen (because they like the way car salesmen make them feel about themselves).
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Zippy's friend, 8 May 2006 @ 10:16pm

If you had a leg to stand on
... you wouldn't be resorting to your little point by point defense. The fact is, as a MacWriter and wanna-be lawyer you can't seem to resist blathering about things you don't understand in a sloppy way using sloppy language. For example, talk about my courtroom performace, here is an example of you trying to prove something: "As for the claim that we haven't given an example of a patent being invalidated... well, that's ridiculous. We've pointed repeatedly to patents that have been invalidated." Oh yes, now I'm convinced... sheesh. You see here would have been a good place to insert references to said patents. But since there are none, there is no reference, imagine that. You know, you've proven yourself to be an angry little attack machine. Attacking a federal judge, attacking an entire federal distict court. The tone of all your articles is sarcastic and antagonistic. Yet strangely, you whine when someone applies the same tone towards you. You're not exactly making friends. I'd worry less about me and more about writing something worthwhile. And since you are woefully ignorant on the topic, I'd stay away from patent issues. Stick to wireless gadets. If you want to write about patent issues and actually convince someone of something try to be more humble about it. Like, "I'm no lawyer, but it seems to me that...." And then, when people who actually know something give you good information, you might actually try to get the lightbulb to come on and say, well, thanks. Otherwise, you come across as pushing some kind of ignorant agenda, kind of like, well, now.
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Dr. Patent, 8 May 2006 @ 10:16pm

The point...
The point is if, as you ignorantly assert, prior art may not be the best indicator of obviousness what is? Hearsay? You prove my point that you are a moron.
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Mike Masnick, 8 May 2006 @ 10:16pm

Once again, discussing something different
I like how you accuse of us "attacking a federal judge, attacking an entire federal district," two things we've never done. You are the one calling us ninnies, morons, idiots, etc. Anyway, you are seriously claiming that the USPTO has NOT rejected many of the patents in the RIM/NTP case? Meanwhile, we weren't claiming to be authorities because we "went to Washington DC." I was asked to go to DC to discuss this with certain policy makers. I wouldn't claim that makes me an expert at all. However, the point was simply that I was talking to people who are in the position to make changes, and many of them are thinking about the issues. That was the entire point of my comment. You can read whatever you want into it -- but please don't suggest I said something I didn't. Also, you keep going back to specific legal nitpicking, which is a silly tactic. As we've pointed out repeatedly (and which you LOVE to ignore), we are looking at this from an economics and business perspective, and looking at ways to make the system work better... and then you respond by nitpicking that we used the wrong term about the current system. That's totally irrelevant. Also, you again ignore the fact that the "peer review" you're talking about and this new effort are different. Once again, you're legally nitpicking rather than discussing the issue. Finally, your point claiming that there can be no other test of obviousness is false. We gave you one and it's not "hearsay." The test as laid out by law is non-obvious to those skilled in the art. So answer the question: why doesn't that involve asking those skilled in the art? So, again, I ask you, can you seriously discuss this without calling us names? Just once?
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Dr. Patent, 8 May 2006 @ 10:16pm

Silly wabbit
"The test as laid out by law is non-obvious to those skilled in the art. So answer the question: why doesn't that involve asking those skilled in the art?" These are the kind of moronic statements/questions that you keep making and they keep sounding idiotic. If you would only tone yourself down a little and acknowledge the rich history of the PTO in dealing with complex issues (better than any other government agency in history) issues that you just now stumbled on, people who could make a difference might listen to what you have to say. See you call it legal nitpicking, I call it "the Law." First of all, the obviousness standard is not about asking people. And its not loosey-goosey or touchy-feely its a LAW (see, e.g. 35 U.S.C. 103). Here's the next thing. There is already a powerful mechanism for third parties (yes that could even be YOU) to submit material they believe to be relvant to the patentability of a published application. A patent or publication is needed to prove the date of the alleged prior disclosure. Under the Rules, only patents or publications (published applications or non-patent literature) can be submitted - other information such as explanations or notes or hearsay or opinions of people you think are skilled in the art are EXPRESSLY PROHIBITED (see, e.g. 37 CFR 1.99) BTW, you did attack a federal judge and you did attack a federal district court.
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Mike Masnick, 8 May 2006 @ 10:16pm

you couldn't do it
Look at that, insulting us again: "silly wabbit... moronic... idiotic." These don't help your argument. Once again, you're focusing on legal nitpicking, rather than the bigger issue of whether or not that MAKES SENSE. That's what we're discussing. Pointing out the problems of the system, and your defense seems to be "but that's how the system works, because that's the law!" That's a tautological argument, and one that does not even touch on the issues we're discussing. As for the "powerful mechanism," you have to be joking. You know as well as everyone else here, that the process is incredibly cumbersome and heavily designed to favor the patent holder. Furthermore, you again simply point to the law as the reason for using prior art as the obviousness test, when we've already explained why that's a problem. Obviousness need not be defined by prior art. So, pointing to a specific law is missing the point again -- we're not discussing what the law is, but how the system SHOULD work in order to serve its Constitutional purpose of promoting progress in science and the useful arts. Again, we never "attacked" anyone. We did point out that some are concerned about things, but that's hardly attacking. Or, are you going to point to a legal definition of attack? For your info, disagreeing with you is not an attack. Throughout this discussion, I have tried to remain civil and accomodating to you. You are the one who keeps calling me names and insulting my intelligence with direct insults. I would think that's much more of an attack than expressing an informed opinion on why something is problematic.
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Dr. Patent, 8 May 2006 @ 10:16pm

"Tautological,"... my what a big word for a moron. As I recall, the use of tautological in a conversation is like growing your first baby tooth. It clearly marks you as pre-pre-law, which is somewhere between neonatal wanna-wanna-be and clueless moron. Contratutlations, you're moving up. And don't flatter yourself, I'm not really arguing with you here... So your defense of your moronic statements is that you're just talking about the "big picture" of how things SHOULD be (nevermind reality or those nitpicky little details of how things really are or the LAW). OK then instead of labeling drivel like this at Legal Commentary, why don't you just label your MacArticles as wistful meanderings rather than passing them off as any kind of useful commentary. As for your blathering about expressing informed opinions or whatever, I guess citing the law to you is too superficial to convince an authority like you.
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Napoleon Dynamite, 8 May 2006 @ 10:16pm

Waste of time
Forget it, this guy Mike is not happy unless he's whining about something being broken... C'mon let's get outta here and play some tetherball.
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Mike Masnick, 8 May 2006 @ 10:16pm

ah, insults again
Funny, the more we focus on the actual arguments, the more you focus on insults. Once again, though, you refuse to address the substance of our argument, falling back on simply insulting us. It's not very convincing. I hope you don't use such methods in court.
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James Quintana Pearce, 8 May 2006 @ 10:16pm

Let it go...
Mike, Dr Patent (if that is his real name) is clearly a forum troll. The best part is that (unlike patent trolls) these trolls tend to go away if you ignore them.
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Dr. Patent, 8 May 2006 @ 10:16pm

Cant argue with morons...
Look, I can't really fix stupid. So I'll just take one of the silly points you raise. "Did you really just say that if an idea has prior art, it still deserves patents?" The above is an example of the obfuscatory gobbeldyspeak that I have to cut through to try to fix the preponderance of stupid found here at Techdirt. What I'm saying is that prior art in general refers to the existing literature ('m trying to dumb this down as much as possible for Mike). Without complicating the general notion of prior art with consideration of relevant dates, prior art can invalidate or obviate a patent claim if it shows the subject matter claimed. Ergo (that's Latin Mike - if you want to be taken seriously as a wanna-be lawyer, you might want to study it), in a field such as, say golf club technology, where there is a preponderance of prior art to various club designs, including materials structures and the like. Getting back to your sloppily worded question, "...if an idea has prior art it deserves a patent" - spoken like a true patent moron. First of all, an idea doesn't "has" prior art. And "it" deserves a patent is vague. The proper way to state your question and hopefully answer it at the same time might be "...you mean even if there is a ton of prior art to golf club technology, you might still deserve a patent claim to a particular golf club technology? Yes." As Matt points out, you can't really talk accurately about things like obviousness unless you are talking about claims. And, Matt is partly right about arguing against obviousness, however it is possible (I do it successfully every day). And this nonsense about OFFICIAL TEST, you sound like the school yard know-it-all. Unfortunately for you, all of your sky-is-falling revelations are nothing new. There is more than an OFFICIAL TEST, its called an established legal standard and prior art is the ONLY recognized indicator of obviouness (and it is a heck of a lot more reliable than the opinions of morons like you). ~~~ (NEWS FLASH #1 TO MIKE: the Patent Office has been doing their job for hundreds of years before you came along) ~~~ Like I said, "...this peer review system" has been around for years, as has software (NEWS FLASH #2 TO MIKE: Computer software has been around for at least 50 or 60 years and the concepts employed by the PTO to address software inventions predate even that - the first ocumented "software" patent was filed before the turn of the century) Not that the guidelines haven't evolved, but the principles of patentability remain the same, just like gravity (something you might want to check into for tethering your sense of righteous indignation).
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James Quintana Pearce, 8 May 2006 @ 10:16pm

Peer Reviewed Patents
It sounds like this guy wants as many patents as possible to get passed because it means more court time. If he is a lawyer he'd like that -- win or lose, he'd still get paid. I think the peer-review thing is a good idea, as long as it's intended to bring issues to the attention of the examiner. The prior art issue is easy. As for "obviousness", that can be pretty easy too. Using a hypothetical example, if someone tried to patent the idea of ordering music from a mobile phone and paying for it by credit card it should fail under the "obviousness" clause because its just transfering a common online PC practice to mobile phones. It's an obvious thing to do. I think the same thing applies to Apple's recent patent (http://www.moconews.net/apple-patents-bookmarking-songs-over-mobile.html), which involves people bookmarking a song on a website from their mobile for later downloading. If that's all there is to the patent it should be rejected (bearing in mind I haven't read the patent so it may have an innovation I'm unaware of).
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Dr. Patent, 8 May 2006 @ 10:16pm

Nice try
You can act like you're winning something if you want, your act doesn't change the facts. I hope you can do a better job right here in your own forum discussing issues. There's a problem though. You don't have any idea what you're talking about. At least "Mr. Pearce" has the good sense to offer a disclaimer e.g. "bearing in mind I haven't read the patent." Techdirt never does that. They pretend like they know something. They dont. And whether one or twenty less patents issues is not of great concernt to me. But what I'm trying to get across to the anti-property rights morons here at Techdirt who talk a great game about something they know nothing about (a big problem with the MacWriters you find here), and even to you Mr Pearce (if that is your real name), is that there are already mechanisms in place to do just the kind of thing the "author" is blathering about. There is already a longstanding peer review system, there is already a provision for art to be filed with the patent office for defensive purposes and there is third party re-exam (and a handful of other mechanisms). Now its time for the ninnies to stop whining. Unfortunately for the deconstructionists and the anarchists here at Techdirt acknowledging the existance of these mechanisms would take away the opportunity to patent-bash, whine, and pretend like they know something. They'd also have to admit what morons they are. I'm not holding my breath.
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Mike Masnick, 8 May 2006 @ 10:16pm

What obviousness test?
There is a legal test for obviousness that is performed with EVERY patent application.
Oh really? Even the USPTO has said that the only test they conduct for obviousness is in looking at prior art. Prior art may not necessarily be the best indicator of obviousness. Since the OFFICIAL TEST is supposed to be non-obvious to those skilled in th art, I can't believe you're actually suggesting it's a BAD idea to ask those skilled in the art. That's the test they're SUPPOSED to use.
The mere existence of prior art does not, in itself, suggest that more patents shouldn't be granted in this area. Quite the contrary. Its almost a foregone conclusion that if many patents (prior art) exist in an area, then there must be signficant interests at stake in that area. Interests that require patent protection.
You practice patent law, right? Did you really just say that if an idea has prior art, it still deserves patents?
And you make quite a statement that because an area has interest it "requires" patent protection. If you knew your history and your economics, you'd know that's false. Absolutely false.
WHAT MISTAKES? Techdirt characterizes a "mistake" as any patent that is litigated (particularly against its corporate favorite)
This is false. We do not say that any patent that is litigated is a mistake. However, we do point out patent mistakes when we see them. And, considering that many of the mistakes we've pointed out are later invalidated by the USPTO, it certainly seems like there's a basis for those claims. If even the USPTO is admitting they made mistakes, are we really so dumb for pointing out why those patents are invalid.
Or do you believe that the USPTO is infallible? Even when they admit they're wrong?
Duh, the PTO has been doing "peer review" for years. But thanks for the great ideas Techdirt.
Not like this they haven't. If you bothered to read, rather than react in a kneejerk fashion, you'd notice that this is different. Once again, we come back to your reading comprehension.
Despite what you claim, we're not just coming up with what we say out of nowhere. It has a real basis in economics. And, when we point out to you where you're absolutely wrong, you turn and run. Last time we pointed out where you were wrong, your response was "blah, blah, blah."
Obviousness is not some opinion as to what is obvious, its an objective legal test based on dates of filing and dates of the so-called art.
Ah, again. It goes back to the "art." But, that's a problem. If multiple people are developing the same idea at once, then innovation gets stagnated by giving a monopoly to only the first to come up with the idea (there's plenty of research to back this up). An obviousness standard is supposed to be based on the views of those skilled in the art. The appropriate test should involve those skilled in the art.
The examiner has AN OBLIGATION to find the best available art.
Yes, and as we've seen repeatedly, patent examiners are unable to find important prior art -- especially in new areas like software. Just because they have an obligation, doesn't mean it's happening. And, that's what this peer review system is designed to facilitate.
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Dr. Patent, 8 May 2006 @ 10:16pm

Hyperbole
"And, considering that many of the mistakes we've pointed out are later invalidated by the USPTO..." This is pure delusion. The "many of the mistakes" are patents you WISH were invalidated. You haven't given one example of a patent that the PTO has invalidated. All you have done is talk about how you THINK the NTP patents SHOULD be invalidated because you are cranky about their application against your client - RIM.
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Dr. Patent, 8 May 2006 @ 10:16pm

Fake Poll
Also, you might want to disclose to your readers that you voted 396 times that the patent system needs a major overhaul. Oh wait, they can probably tell that for themselves based on your baseless hostility to property rights...
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Mike Masnick, 8 May 2006 @ 10:16pm

ok, let's try this again
While you continue to talk down to me, I continue to try to debate this issue you with you seriously. I really wish you'd do the same. As I've pointed out repeatedly, and which you always seem to ignore, we are discussing this from a business and economics perspective, and your legal nitpicking is silly and irrelevant in most cases. So, let's get to the details. Your point about prior art is hilarious, because you blame us for being obfuscatory, and then you go on to totally ignore the actual point. The issue is if there is prior art for the claims put forth in the patent. That's what we're discussing in the first place, and then you, instead, try to focus on prior art *around* the claims -- which isn't what anyone was discussing at all. So, your whole argument has nothing to do with what we're discussing, but you use it score a point... on an issue that wasn't even being debated. I hope you do a better job in court. After that, you go on to support exactly what I said by claiming "prior art is the ONLY recognized indicator of obviouness." That's exactly the problem -- because prior art may not be the best indicator of obviousness. Furthermore, if you really believe that prior art is the only indicator of obviousness (a HUGE if) then I can't see why you would not like this peer review system. After all, all it's designed to do is bring to light prior art that the examiner may have missed. But, going back to the point, prior art need not be the only indicator of obviousness. In fact, the law is clear. The test is supposed to be "obvious to those skilled in the art." That's a pretty clear test (along the lines of "reasonable person" or other such tests -- which are ambiguous on the face, but which can be established by courts). So, clearly, prior art need NOT be the only test of obviousness. As for your childish "NEWS FLASH" it's funny that you keep bringing up the past, when you've made it clear to us repeatedly that you are almost entirely unfamiliar with the history of patents. You also seem to be entirely unfamiliar with how the patent system has changed in the last twenty-five years, and how new problems have been introduced. The issue of software patents is again misleading (do you actually get away with these types of arguments in court?). You know as well as I do that the type of software patents we're talking about are new, and there has been a huge increase in them recently. As for the claim that we haven't given an example of a patent being invalidated... well, that's ridiculous. We've pointed repeatedly to patents that have been invalidated. As for the claim that RIM is a client of ours, that's 100% false. I ask you to back up your claim. RIM has never been a client of ours and you claiming they are is an outright falsification. Finally, your claim that I voted "396 times" that the patent needs an overhaul in our poll is also 100% false. Why would I even bother to do that? So far, all we've seen from you are: (a) insults (b) misleading arguments that have nothing to do with the issue at hand (c) outright lies Yet, when we point each of these out, you never respond to the actual charges. Once again, I have made it clear to you that I am more than willing to discuss the actual issues with you in an adult manner. You are the one who has resorted to fake names, name calling, and lies. I'll say it again. I'm willing to discuss the actual issues. Please focus on them, rather than the name calling and lies.
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Derek Kerton (profile), 8 May 2006 @ 10:16pm

Your Honor...
Your honor, may we approach? Does this guy use wacky logic, insults, etc. like this in court? I shudder to think if this is one of the legal minds that defines the standard for professional arguers. Anyway, on the RIM thing, is he saying RIM is a Techdirt client because I disclosed a couple of months ago that I owned a Blackberry and RIM stock around 1999-2001? That's probably what he's talking about, since it's consistent with his normal re-interpretation of reality. The disclosure was on this post: http://news.techdirt.com/news/wireless/article/6471
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Mike Masnick, 8 May 2006 @ 10:16pm

luckily no
This guy clearly does not define the standard. Last month when I was in DC talking to policy folks about intellectual property issues, there were many lawyers who clearly understood the issues, and were willing to discuss them rationally. As for RIM, I've already stated that they're not and have never been a customer of ours. I've also never owned a Blackberry or any RIM stock. RIM has neither taken any of my money or given me any money. Ever.
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Dr. Patent, 8 May 2006 @ 10:16pm

Assumptions are flawed on so many levels
The most important being the notion that the PTO is not already doing what is being suggested. "...it's problematic when patents are issued for obvious things" There is a legal test for obviousness that is performed with EVERY patent application. By "obvious things" the narcissists here at Techdirt really mean anything THEY think is "obvious" after the fact (forgetting of course that patents are filed years before they issue or are published and that just because Techdirt thinks the technology is "obvious" by the time they get wind of it, the technology may very well NOT be obvious as of the time it was filed) -the naive rant continues... "..., or in areas with significant prior art" Since when should the amount of prior art be a test? The mere existence of prior art does not, in itself, suggest that more patents shouldn't be granted in this area. Quite the contrary. Its almost a foregone conclusion that if many patents (prior art) exist in an area, then there must be signficant interests at stake in that area. Interests that require patent protection. Once again Techdirt gets it exactly wrong. "...these mistakes can result in long and costly legal battles" WHAT MISTAKES? Techdirt characterizes a "mistake" as any patent that is litigated (particularly against its corporate favorite) "...One of the ideas that's been floated to solve the patent office's resource crisis is a system of peer reviews" Duh, the PTO has been doing "peer review" for years. But thanks for the great ideas Techdirt. ...But wait, it gets even more bizarre "...Also, since patents are only supposed to be granted on ideas "non-obvious to those skilled in the art," it makes sense to actually ask those skilled in the art for their opinions" Opinions? Techdirt is in favor of eliminating an objective legal test of obviousness based on evidence in the form of published documents for "opinion" evidence. How cute. The above absolutely silly and childish notion kind of gets at the heart of Techdirt's main problem. They think obviousness means or should mean anything they think they could have thought of (after the fact). Their ex post wisdom is flawless (hindsight is 20/20). In every case Techdirt comments and advises on (without a license), you can always find a breathless condemnation of a patented technology based on some armchair take on what they think was "obvious." What they fail to realize or dont want to realize is that obviousness is a legal determination based on objective tests and evidence. Obviousness is established based on dates associated with the filing of an application usually occuring years before the patent gets any public visibility. Obviousness is not some opinion as to what is obvious, its an objective legal test based on dates of filing and dates of the so-called art. "One potential complaint...blah blah blah..." There is no need for all the hubbub. Its not a question of whether patent examiners "have a right" to see all the prior art. This is an example of the kind of ignorant and naive statement that makes one wonder from what perspective these people are coming from. The examiner has AN OBLIGATION to find the best available art. If an article is published ANYWHERE IN THE WORLD, it will be available for review and potential application as "prior art." Again there are objective legal standards that contol what can be submitted as prior art (pretty much anything with a provable date). Why get a bunch of ninnies like the guys who comment on patent issues here at Techdirt involved to complicate the process?
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matt, 8 May 2006 @ 10:16pm

Arguing non-obviousness harder than it sounds
To show that an invention claim is not NOVEL, the examiner need only find a specific prior example. But in my experience, few patent examiners evaluate OBVIOUSNESS using "a legal determination based on objective tests and evidence". The objections we see are often much fuzzier -- boiling down to the examiner's opinion that inventors of related systems *would have* come up with the claimed invention if they had explored the specific problem being addressed (even if they never did). Contrary to common wisdom in the popular press, it is pretty hard for inventors to make counter arguments to that "would have" fuzzy logic. At the same time, the popular press frequently confuses a patent's title (or a phrase from the abstract) with the patent's legal claims. Just because a patent's title or abstract uses a phrase such as "mousetrap with a hinge" does NOT mean the inventor is claiming their invention covers any-and-all mousetraps with a hinge. The patent's claims might only cover a specific, novel, non-obvious type of mousetrap that happens to include a hinge. (That won't keep bloggers from ridiculing the patent of course. After all, it's easy to find prior examples of hinged mousetraps.) Before declaring that a patent sounds obvious, smart reporters will read the patent claims -- not just the title and abstract. (It wouldn't hurt if inventors and their attorneys used more descriptive titles, and highlighted novel, non-obvious elements in the abstracts.)
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yossi, 8 May 2006 @ 10:51pm

A problem
If I come up with an origional idea, and some "reviewer" strikes it down, for whatever reason, what is stoping him from stealing MY idea?
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Mike (profile), 8 May 2006 @ 11:47pm

Re: A problem
If I come up with an origional idea, and some "reviewer" strikes it down, for whatever reason, what is stoping him from stealing MY idea?

It's not a "blackball" situation where as soon as one person notes a problem with the patent, the patent gets rejected. Instead, this allows a number of experts to weigh in, and then the examiner can determine from that information whether or not the patent is valid.
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mthorn, 9 May 2006 @ 4:59am

I think they should make it more annoymous. Instead of showing the reviewers the patent, they should ask them how to do what the patent says it does without going into detail. If many of the reviewers respond with the same answer as the patent, then it is an obvoius, probably industry standard way of doing it. If no one answers the same as the patent, then it is innovative. I think I'll patent my method for making patents.
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angry dude, 9 May 2006 @ 7:05am

Peer review for patents? Ha-Ha-Ha............
OK, as somebody with a Ph.D. in physics, 10 publications in scientific journals and conference proceedings and one issued patent, I can only say that traditional peer review system DOES NOT work today even for scientific publications and will certainly not work for patents, especially the obviousness part of it.
Einstein was extremely lucky to live in the beginning of the last century - he would not be able to publish his relativity theory in the Annalen der Physik - it would be shot down by anonimous peer reviewers.
Anything more or less original and coming from some unknown person without affiliation with some established institution get rejected by scientific "peer review"
I know it all too well from my own experience with publishing my own ideas in technical journals - ideas which form the basis of my patent and which are currently utilized across the entire industry (without asking me for a license, of course...)

Certainly, anonimous "prior art" submission to facilitate patent examination isn't a bad idea by itself, it's just the examiner might be buried under the pile of submitted "prior art" not having any relevance to the patent in question.
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Anonymous Coward, 9 May 2006 @ 7:27am

Re:
Annoymus reviewers is a horrible idea. We all know how people act when they're annoymus on the internet. They act total jackasses. See, this post proves it.
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EdB, 9 May 2006 @ 7:40am

Re: Peer review for patents? Ha-Ha-Ha............
dweeb.
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smart dude, 9 May 2006 @ 11:38am

Rating system
Create an electronic system. People regisiter to be able to critique patent applications. As people provide valuable input, they will be given more credibility (although never absolute credibility). So, if you do give piles of "prior art" that isn't relevant, then you will be recogined as being irrelevant and your claims will be skimmed rather than really studied and investigated if you continually provided valuable input.

Additionally, your regisration could "authenticate" you and allow you to not be able to essentially fillabuster a patent if it would be competing with a company that you had claims/holdings with.

I see this as having great potential, however the implementation will determine its viability. Also, it may take several iterations to find the "sweet spot"
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Dr. Patent, 10 May 2006 @ 12:56pm

Interesting to see that the real thread of posts has been side stepped by an embarassed author
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Dr. Patent, 10 May 2006 @ 12:57pm

Already been done
As extensively commented on in a parallel site, this is a ridiculous concept. And there is already peer review going on at the PTO (for years). CFR 1.99 allows third parties to submit art. As with all Techdirt's legal blather, its all been done before (and done better)
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Zippy the Pinhead, 10 May 2006 @ 12:58pm

Re: Re: Peer review for patents? Ha-Ha-Ha.........
I agree. Dweeb
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Dr. Patent, 10 May 2006 @ 1:00pm

Wrong on so many levels
The most important being the notion that the PTO is not already doing what is being suggested.

"...it's problematic when patents are issued for obvious things"

There is a legal test for obviousness that is performed with EVERY patent application. By "obvious things" the narcissists here at Techdirt really mean anything THEY think is "obvious" after the fact (forgetting of course that patents are filed years before they issue or are published and that just because Techdirt thinks the technology is "obvious" by the time they get wind of it, the technology may very well NOT be obvious as of the time it was filed)

-the naive rant continues...

"..., or in areas with significant prior art"

Since when should the amount of prior art be a test? The mere existence of prior art does not, in itself, suggest that more patents shouldn't be granted in this area. Quite the contrary. Its almost a foregone conclusion that if many patents (prior art) exist in an area, then there must be signficant interests at stake in that area. Interests that require patent protection.

Once again Techdirt gets it exactly wrong.

"...these mistakes can result in long and costly legal battles"

WHAT MISTAKES? Techdirt characterizes a "mistake" as any patent that is litigated (particularly against its corporate favorite)

"...One of the ideas that's been floated to solve the patent office's resource crisis is a system of peer reviews"

Duh, the PTO has been doing "peer review" for years. But thanks for the great ideas Techdirt.

...But wait, it gets even more bizarre

"...Also, since patents are only supposed to be granted on ideas "non-obvious to those skilled in the art," it makes sense to actually ask those skilled in the art for their opinions"

Opinions? Techdirt is in favor of eliminating an objective legal test of obviousness based on evidence in the form of published documents for "opinion" evidence. How cute.

The above absolutely silly and childish notion kind of gets at the heart of Techdirt's main problem. They think obviousness means or should mean anything they think they could have thought of (after the fact). Their ex post wisdom is flawless (hindsight is 20/20). In every case Techdirt comments and advises on (without a license), you can always find a breathless condemnation of a patented technology based on some armchair take on what they think was "obvious." What they fail to realize or dont want to realize is that obviousness is a legal determination based on objective tests and evidence. Obviousness is established based on dates associated with the filing of an application usually occuring years before the patent gets any public visibility. Obviousness is not some opinion as to what is obvious, its an objective legal test based on dates of filing and dates of the so-called art.

"One potential complaint...blah blah blah..."

There is no need for all the hubbub. Its not a question of whether patent examiners "have a right" to see all the prior art. This is an example of the kind of ignorant and naive statement that makes one wonder from what perspective these people are coming from. The examiner has AN OBLIGATION to find the best available art. If an article is published ANYWHERE IN THE WORLD, it will be available for review and potential application as "prior art." Again there are objective legal standards that contol what can be submitted as prior art (pretty much anything with a provable date). Why get a bunch of ninnies like the guys who comment on patent issues here at Techdirt involved to complicate the process?
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Dr. Patent, 10 May 2006 @ 1:02pm

Re: Peer review for patents? Ha-Ha-Ha............
Third parties can submit prior art already...
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Observer, 10 May 2006 @ 1:19pm

Survey says:
Judging from the preponderance of the evidence and a show of hands, Mike is a moron...
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Mike (profile), 10 May 2006 @ 5:47pm

Re: Wrong on so many levels
"Dr. Patent" already posted this comment on Techdirt Wireless. You can read the entire thread here where we refute many of his claims and point out where he is wrong. You will note that in response, he resorts to simply insulting us.

"Dr. Patent" is actually a patent lawyer on the East Coast, who does this repeatedly. He is also the same poster as "Zippy the Pinhead."

I have offered repeatedly to debate these issues with him, and his response is always to insult me, accuse anyone who disagrees with him of being me, and then ignore the actual issues in favor of legal nitpicking.

Again, I am more than willing to debate the issues. If he insists, however, on resorting to calling me "a moron" "an idiot" or "a ninny" there's really not much to say.

If he laid out a real argument, I'd be more than willing to point out where he is wrong -- as we've done before. However, what always happens is the same. We point out where he's wrong, and he responds with lies (he once said we were funded by the NY Times, and he has said that RIM pays us -- both are absolutely false), insults or misleading statements.

He also seems to like to post repeatedly under many different names, whether zippy the pinhead, dr. patent or napoleon dynamite. He used to post under his real name, but apparently he realized that it probably would hurt his career as a lawyer if people saw the type of lies and insults he uses in his arguments.
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Zippy the Pinhead, 12 May 2006 @ 8:21am

Mike does not want to debate anything. He has been repeatedly presented with the facts and fails to adress them in any reasonable manner. All he cares about is pushing a useless patent bashing agenda and proving everone wrong. He has no respect for anyone's arguments.
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Mike (profile), 12 May 2006 @ 10:25am

Re:
Mike does not want to debate anything. He has been repeatedly presented with the facts and fails to adress them in any reasonable manner. All he cares about is pushing a useless patent bashing agenda and proving everone wrong. He has no respect for anyone's arguments.

This is false. What is most amusing here, is that this comment comes after Rob Scott (who is using the Zippy the Pinhead pseudonym) accused us of deleting this post (he says, because we realized it was wrong -- which it is not). Obviously, by commenting here, he has shown (again) that he was proven wrong on the facts.

Any time Rob has presented us with facts (which is rare) we have responded to them. In the case above, we linked to where we refuted each of his points earlier, and where instead of responding civilly, he resorted to lies and name calling.

His claim that I don't respect anyone's arguments is also false. If that were the case, why would I respond in detail to each one, focusing on the issues, even when he resorts to lies and name calling? I have plenty of respect for anyone's arguments, as long as they're focused on the issues. My willingness to debate them shows this.

It is also entirely false that my "agenda" is to bash patents. I find it odd that instead of just admitting that we disagree, I must have an "agenda." I am merely trying to use the facts to show where I believe his argument is wrong. Our "agenda" if there is one, is to increase innovation and help grow the economy -- which we believe are noble causes, which I would think you would support. I support my arguments with facts and economic studies. Rob has responded with name calling and lies.

If he wants to point out some facts, I'm more than willing to discuss them. However, you will note, that once again, he has not.
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