Killing stupid software patents is really easy, and you can help


It’s Joel Spolsky, not Splosky. (feel free to delete this comment)

Noble but probably Sysiphean. Need stop the flow at the source…

Yes I was going to suggest this sounds like trying to boil the ocean, but that’s a metaphor that may become less apt with time.

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I’ll agree a lot of software patents are shit, but there are a lot of software patents that have valid reasons to exist in terms that are not software. Pretty much anything math based could be a valid software patent, or just patented in and of itself.

Herp derp. Thank you!

Not sure what the impact will be, but I suspect there is a virtuous cycle going on here

  1. Raise the rejection rate on patents (patents become less valuable)
  2. Less patents filed (higher scrutiny per patent)
  3. Goto 1

Also this seems to have changed the costs/incentives. 15 minutes to reject seems much cheaper than the cost to write a patent application.

I hope it works!

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The triple damages rule might be a problem for companies trying to use Ask Patents to mess with competitors (if you are found to be infringing a patent, damages are tripled if they can show that you know about the patent). On the other hand, I suppose a company can hire consultants to attack their competitors’ patents but not report back on any patents they fail to invalidate.

Didn’t someone already call this out as a bad idea, analogous to a half-course of antibiotics?

Submission of prior art at this stage gives the proponent of the patent an opportunity to remedy the application and harden a patent to subsequent attack. Waiting and suing or taking other, more carefully thought out measures are often what’s necessary to invalidate the patent altogether.

Patent law in general is one of those fields where numerous participants aren’t an adequate substitute for competent ones.

Actually, no. Mathematical formulas are considered abstract ideas and are not patentable.

But wouldn’t the actual implementation of a mathematical model be patentable, things like H.264, MP3, AAC? Those are all nothing more than a mathematical representation of raw data. If that’s not the case then why all the issue with HTML5 containing H.264?

All software patents are illegal. Patent law states the algorithms cannot be patented. Alan Turing and John von Neumann proved that all software is algorithms. The US Patent Office broke the law when it issued them. Time to stop this illegal activity.

What does this say about the patent office’s patent evaluation process?

I might be missing something, but isn’t this project more about defending existing patents rather than stopping stupid patents? For instance, why should I care if OKCupid came up with a patent idea before TheRightOne? How does that help the world that we identify OKCupid’s prior art?

I’m probably missing something…

A few reasons. As I understand it, you don’t have to patent something for it to qualify as prior art. So it might remain patent-free. Even if it was patented, it’ll be an older patent, so it’ll expire earlier. Meaning that method will be in the public domain in a shorter amount of time. And maybe the people who came up with whatever the prior art involves won’t be as lawsuit inclined as the people applying for a new patent.

I love Joel Spolsky. I’ve read three of his books and I would read them all over again. It’s essays like this that make me want to have his baby. Unfortunately, being a guy, that’s not going to happen.

Thanks, older patent makes sense…

Is anyone out there clever enough to help automate this process? It would be nice to be able to call up patents and have search engine be able to call up suggestions for likely prior art.

If you could rate selections and automatically track which ones get used, over time, you could refine it and have a pretty legitimate patent-killing machine.

If they’re able to “harden” the patent to the extent that it’s considered valid by the patent office, then they should get a patent. That’s the system. This is about ruling out invalid patents - now, I’m in the camp that thinks all software patents should be invalid and every other patent should have a working prototype and not be purely theoretical. That’d be in line with the old patent system. But we don’t have that, so I guess we completely overhaul the patent system, except that isn’t going to happen, so we have this.

I really like the idea of shutting down stupid software patents by finding prior art for specific ones. At the same time, I can imagine the lawyers who file these things being overjoyed at the prospect of charging more and more hours to re-file patents over and over again. It is no skin off their backs if the patents are rejected, just more billable hours !