The project allows patent applications to be publicly peer reviewed before the applications are passed to patent examiners in hopes of providing the examiner with more complete information about potential prior art.

A small company like ours would be royally stuffed if a patent lawyer came after us.

That might be a reasonable position if the patent system was merely a system for rewarding inventors with prizes, incapable of harm. However, it is not – far from it – and such a position is economically (and ethically) naive (to put it mildly). It is also extremely naive to believe that because some software inventions are just like some other inventions in some respects, they should be patentable.

The larger problem comes from the fact litigation diluted the inventive step threshold over the years.

The “flash of genius” standard from the 1940′s

http://en.wikipedia.org/wiki/Flash_of_genius

is entirely gone.

As for software patents, the truth is that almost nothing algorithmic takes the level of R&D investment that some industrial processes take. You claim that you know of new algorithm patents that took years to develop but if you actually tabulate the money that was invested, you will find that it is a piddling amount. I think that the overall case for patents of any kind is pretty weak, even when you consider the xerox copier or other famous cases of manufacturing patents. When you overextend the patent system to areas it was never designed for, like software or pharmaceuticals, it breaks down completely.

Using chemical process patents to illustrate the point helps, because it is less contentious. Suppose I patent a chemical process for synthesizing chemical B from chemical A by some new pathway P. I am not patenting the production of chemical B, I am patenting the novel algorithm P that allows me to synthesize chemical B from chemical A. This process P can then be reduced to practice in a diverse set of ways which are protected by copyright. The kinds of so-called “software patents” that seem to cause the problems are not those that present a novel algorithm P, but those that frame a reduction to practice of an existing abstract algorithm as a patentable entity. In the case of many business process patents, one could very much argue that they are patenting a reduction to practice which has traditionally been protected by copyright. The old “do X on the Internet” patent model is clearly nothing more than a particular reduction to practice of well-known ideas.

Where a lot of people get it wrong is that there are many algorithm patents that are not merely trivial reductions to practice of existing algorithms. Algorithms that are genuinely new in the sense that literature has never described the abstract process in any context, never mind a reduction to practice, should be as patentable as any other chemical process result if we are going to have patents at all. Patenting genuinely new abstract algorithms/processes/mechanisms has relatively few downsides in that novel but stupid ones do not matter and the ones that represent a technological improvement are at least nominally fulfilling the intention of patents. The problem is that a lot of patents granted by the USPTO in all areas are trivial reductions to practice of already understood ideas and therefore obnoxious.

I appreciate the point as a theory, but the issues do not seem so clean cut in practice.

Consider the Verizon patents in question.

http://scratchpad.wikia.com/wiki/Vonage

There is no working prototype.

What is the bright line distinction between a series of ambiguous ideas that do not clearly move from A to B and a innovative algorithm?

Verizon’s name translation patents are the equivalent of patenting the idea of there should be a “door” on a house.

I like your idea as it gets at existing patents whereas building the prior art database will addresses future patents.

I think it might be hard to get those companies that benefit from winning a payout in the patent lawsuit lottery to come on board. At some point, the greater good has to be the deciding factor, and businesses aren’t usually in business to do good, but to make money. Plain as that.

Anthony Kuhn

1. Should software be patentable? I would argue that copyright is the correct form of intellectual property protection for software. The use of the patent system for software is a misapplication of law, in my view. More on my blog at http://ikeelliott.typepad.com/telecosm/2007/12/licensing-the-b.html

2. The patent office is currently drowning in patent applications and is suffering from a backlog from which it may never recover. Reforming what is patentable has to be part of the solution…it is just good government. More here: http://ikeelliott.typepad.com/telecosm/2008/01/how-the-patent.html

3. An “open source” approach to creating a prior art database sounds useful, and could help in the meantime, while patent reform hopefully winds it way through the system. I may be overly optimistic about the chances for patent reform, but I think it is the right route.