What exactly does a patent office do to determine if something is actually original or not? Like did some clerk look at this and say "Yeah, I'm no computer scientist, but this sounds original to me"?
My understanding is that the patent office checks if the patent is substantially similar to previous patents. A non-novel idea can easily get through if it is phrased in a different way or never appeared in an earlier patent.
I do not feel this is a problem. A patent just provides a legal presumption that you are allowed to file a lawsuit. Some people argue that this enables patent trolls, but patent trolls exist because con artists will always try to ride on the coattails of success. My view is that low standards for patentability provides protection against patent trolls: a company can patent early and often in the years before they hit it big and start attracting con men. Easy patentability also deepens the pool of well-documented prior art, providing more clubs with which to beat up patent trolls.
Filing patents isn't exactly free either, in terms of time or money.
Also, how exactly do you "beat up" patent trolls? They threaten to sue you, and you . . . threaten to spend millions of dollars on court fees to have their patent invalidated? That doesn't work so well unless you have millions of dollars you don't happen to need.
Are you really suggesting that all those small-time devs sued by lodsys over BS patents would have some recourse if only they'd filed a bunch of patents themselves? Or if only their predecessors had somehow flooded the patent office with enough BS patents that the lodsys ones got thrown out as prior art?
The whole "patent everything, let the courts sort it out" philosophy sounds nice in theory, but the whole problem is that it's freakishly expensive to sort those issues out in court, so patent lawsuits end up as shakedowns: you either pay up in licensing, or you pay up in laywer fees. Either way you're paying someone.
More or less nothing. They rely on the applicant to disclose any prior art. Disagreements about patentability are a matter for the courts, in the USPTO's view.
The only solution is to defund them and shut them down.
A: That is not true. Which I know first hand, since I worked with someone who was in a very long dispute with the patent office on the patentability of something.
B: That is the only solution? You can not think of any other possible solution?
So how does something like this patent on multiply-linked lists happen, if the USPTO does even the most cursory prior art search on its own? The rules say one thing, the reality says another.
That is the only solution? You can not think of any other possible solution?
Law is the code we live by. You don't fix code this broken. You rewrite it.
As Daniel_Newby said: "the patent office checks if the patent is substantially similar to previous patents".
They do a check, and a thorough one, just not in the same places you do. Remember that they are not programmers.
> Law is the code we live by. You don't fix code this broken. You rewrite it.
Oh please. A simple solution would be requiring them to hire an expert in each field to double check patents. This would cost too much which is why they don't. But it's a simple solution.
PS. In the real world no one rewrites broken code once it gets used a lot. You fix the broken parts. The only time you rewrite code is before many people use it, or in the new product (which is basically the same thing).
PS. In the real world no one rewrites broken code once it gets used a lot. You fix the broken parts. The only time you rewrite code is before many people use it, or in the new product (which is basically the same thing).
The 2.6 line of the Linux kernel provides an anecdotal counterargument to this. The kernel team managed to gradually rewrite significant portions of the kernel without ever having to enter a development-only phase. If we could find some way of applying the tools that make this possible (diff, git/DVCSes, peer review, integration tests[0], etc.) to the legal system, maybe the world would be a better place.
The closest thing I'm aware the legal world has now, and it's a far, far cry from what we have in software, is having as much as possible be specific to separate, local governments, so if an individual state comes up with a good solution to a problem, it can be applied elsewhere.
[0] Imagine if all prior court cases were automatically tested against any changes to the law, with changes in outcomes flagged for public review.
Actually I would the kernel a confirmation: The fixed the broken parts gradually without ever throwing everything away and starting over.
[0] would be cool, but probably not possible. You get a court case when the law is ambiguous, or the facts are not known. Neither of which can be automatically tested.
