It seems nearly every day brings news of some new software patent that is pretty damn obvious and for which there should be easily locatable prior art. Today it's browser cookies, a few days ago it was web advertising. It's so common that Slashdot has a whole category for it !
As someone who, as a youth, applied for a patent with a friend (for a non-software idea), I can sort of relate to patents, but as a software developer I'm just plain scared and annoyed by most (all) software patents. The thought that every bit of code I write, or every system/file-format that I need to interoperate with, is patent encumbered is quite alarming.
As Dave Winer points out:
We should have a place to note new inventions, or things that occurred to plain old users, as defenses against patents in the future. I say that the idea of an adaptive search engine, one that learns about the person using it over time is just plain obvious. I'm registering that thought now with Google, whose crawlers index this site regularly. Later on, when they patent it, as they are sure to, let's be sure we can smack them hard with proof that it was a pretty obvious idea.
A quick search for “antipatents” lead me to Rebecca and Carl Malamud's excellent Transparent Patents essay. They make the point that the US Patent Office needs to be more transparent; information needs to flow more freely both in and out. They go on:
But, the process needs to go beyond the Patent Office. Specifically, we propose two mechanisms that will go a long way towards reducing this “industrial pollution in cyberspace:”
Antipatents. A database that systematically documents non-patented inventions with the aim of preventing some corporation from later claiming the idea.
A Clueless Patent Database. A DMOZ-style community effort to build pointers between obvious or unoriginal patents and the prior art that documents the invalidity of those patents. This effort centers around a series of editors, each responsible for a class or subclass of patents.
I like the idea of a searchable space for antipatents, but a couple of points remain for me:
Distributed or centralized. Is Dave's distributed, “let Google keep the data” scheme, the solution?
I like the idea of that; it scales well. But, one problem I can see with that is that Google only keeps indexes of current pages – if you put your idea on your own site and then let your site die, what's happened to the proof of your prior art. One partial answer to that is something like the Internet Archive keeping cached copies of your site, although the sceptic in me points out that archive.org is funded by a patentor of some notoriety.
I also like the idea of a central place I can go to look for “open” prior art. The problem I see with that is that it requires someone with the determination to set it up, get it well known, and keep it going. Lawrence Lessig and O'Reilly seem to have done a good job getting Creative Commons going and publicized, so it is doable.
The downside to putting your ideas “out there”. The nervous nelly in me worries that if I put my “open” ideas in a public space that's identifiable as patent-specific, some patent sharks will cream the ideas off the top and patent them!
My worry is that, unless the idea is written up in a detailed patent-like way, someone could easily take the nub of the idea and re-word it such that it still ends up getting through the patent process. What's more, maybe these same people will turn around and sue me for infringing “their” patent!
If it has to be written up in a highly detailed way to make it water-tight, the average guy or girl with an idea isn't going to want to take too much time out of their busy life to get it “out there”. The process has to be pretty easy to make it happen on a big scale.
In the meantime, maybe we should all just be putting those ideas out there, marking them clearly as possible prior art, and getting over our (OK, my) worries.
Oh, and my 20 year-old patent; that was for the idea of using the stroboscopic effect from existing lighting and special markings, to help keep drivers in tunnels, or on highways at night, driving at a constant speed.