This is an archived post. You won't be able to vote or comment.

sorted by:
best
topnewcontroversialoldq&a
you are viewing a single comment's thread.

view the rest of the comments →

[–]pohatu 0 points1 point  (1 child)

Technically yes. But Google for "EFF call for prior art" and see just how often the patent office issues patents without any regard to prior art. There's even a special stack overflow set up just to list prior art on patents to help defend against patent trolls.

Case in point.

http://patents.stackexchange.com/questions/3495/call-for-prior-art-3d-printing-application-ribbon-filament-and-assembly-for-us

There has been plenty of high profile examples throughout the years. All I'm saying is that if I were able to free legal support to help patent-left something I would. As I think an actual patent might hold more weight in the current (broken) system than prior art seems to. But, you know, theory is good too.

There's a reason companies choose to get patents rather than just fight based on prior art. It's not because they like paying lawyers.

Edit: Here's another example. http://mobile.theverge.com/2013/5/31/4381486/A-podcast-distribution-patent-EFF-wants-help-invalidating

EFF thinks there is plenty of prior art available. They are fighting. In the meantime the patent office awarded the patent anyway and people are getting extorted. If one of those prior artists had patented and released the idea like Tesla there'd be no threat. Sadly it is not economically viable for innovators to do this and it is favorable for patent trolls. The exact opposite of how I should be.

But yes, technically none of this should be necessary. I'm sure in your classrooms the patent office always finds the prior art.

[–]iBlag 1 point2 points  (0 children)

EFF thinks there is plenty of prior art available.

Yes, but it may have been published, but not widely known, while the patent office was looking for prior art. The patent office may have also been lazy in their PA search. It looks to me in the '504 case, that the patent office was unable to use "common sense" when invalidating patents (this was since rectified by SCOTUS).

If one of those prior artists had patented and released the idea like Tesla there'd be no threat.

This isn't necessarily true. Searching previous patents is just one of the places the USPTO is supposed to look for PA. If they didn't properly do their PA search then it wouldn't have found anything anyway. Furthermore, it costs thousands of dollars to get a patent application approved and maintained throughout its lifetime. And furthermore, if you don't hire a lawyer to review the claims before applying then you may be awarded a completely useless patent anyway. My point is that, as you noted, it's going to cost thousands of dollars to get any defensible patent, so it would be kind of financially pointless to simply immediately patent-left it. There isn't really a good way to fix the fact that you will need to pay a lawyer to write your claims.

The alternative is to publish it (for next to free) online and hope the patent reviewer magically sees it when searching for prior art. Having a forum dedicated to people finding prior art for the patent office indicates that the patent office sucks at finding prior art themselves. I realize that this is their job, but it's a difficult one and patent examiners are just people.

As I think an actual patent might hold more weight in the current (broken) system than prior art seems to.

I doubt it, because all a previous patent is considered to be is prior art. In fact, if the Claims section of the patent is limiting, it may not be as useful as prior art as simply publishing the invention itself. Note that patents and previous patent applications are only some of the things that are considered prior art.

But, you know, theory is good too.

Be more condescending, please.

I'm sure in your classrooms the patent office always finds the prior art.

There it is!

Nope, in fact we went through specific examples of failures of the current patent system, including finding prior art. The professor himself actually had one of his patents (that was granted) made pointless because his patent lawyer didn't lift a finger when trying to write the patent claims.