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USPTO begins publishing patent applications

By mbrubeck in News
Sat Mar 17, 2001 at 10:34:59 AM EST
Tags: Politics (all tags)

March 15 - A US Patent and Trademark Office press release today announced the first 47 patent applications published under new regulations, which require a "vast majority" of new applications to be made available to the public while they are pending approval. The patent applications are available online at the USPTO Web Patent Databases. This is the biggest change to the US patent system in years, and is specifically designed to address issues often discussed in this forum.

Under the new rules, a patent application is published eighteen months after it is first filed. The USPTO web site contains a detailed description of the publication rules. Previously, applications remained secret until they were approved, though the press release notes that "other major patent offices around the world have a history of publishing patent application."

The new regulations are intended to facilitate peer review of new patents. Hopefully this will decrease the number of patents issued on obvious or unoriginal inventions, especially in the software industry. Not everyone is happy with the change, however. Several years ago, when the legislation was still being argued in congress, a PatentCafe editorial argued that small companies and independent inventors need the traditional "pendency" period to protect their work from more powerful corparations. The author writes, "Imagine if NEC, Japan had the ability to study the details of the (Kilby/Norris) Texas Instrument patent application for the integrated circuit when Texas Instruments was just another small company with a vision." He claims that the changes will weaken the rights of US inventors, especially with respect to overseas competitors.

Certainly public access to pending patents will make them more vulnerable to infringement, but its important to note that the regulatory changes also contain clauses to enhance inventor rights. For example, patent holders may retroactively seek royalties for infringements that happened before their patent was granted but after the application was made public.

Palmer & Dodge LLP (a law firm) has published an analysis of the publication requirement, as well as an informative article on the AIPA, the legislation that introduced application publication along with several other important changes to the US patent system. I recommend reading these analyses if you want concrete information on the new rules' contents and consequences.


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Related Links
o press release
o USPTO Web Patent Databases
o detailed description of the publication rules
o PatentCafe editorial
o analysis of the publication requirement
o article on the AIPA
o Also by mbrubeck

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USPTO begins publishing patent applications | 10 comments (6 topical, 4 editorial, 0 hidden)
What would you do ? - An ethical dilemma ? (3.25 / 4) (#5)
by mami on Sat Mar 17, 2001 at 11:52:36 AM EST

I can't access right now all the links given, but I like, if you don't mind, ask a question here, to which I can't find a reasonable answer. It's a bit off-topic. If you want, flame me down.

Let's say you were an open software developer and you were in the position to prove prior art to a software-based business method patent.

You know you could provide the prior art evidence, because you had set up an implementation of the software-based business method as a consultant, customizing your own open source software package for a client of yours. The contract you had with your client would restrict you, the open source developer, from disclosing that for that particular site your own open software was used.

Let's further say, that the site, which would be proof of prior art, is meanwhile only avaiable in an updated or in another format or not existent anymore on the web, but you had backups from the original site's implementation, which could prove that prior art had existed in the correct time frame.

In addition, let's say, not only would you, the developer and consultant to your client, be restricted in disclosing your work for that customer to the public, but you yourself would not be particularly interested in disclosing your work either, because your customer is a provider for "those especially nice" sites...You as a developer had an interest in working for this client, because his sites gave you the opportunity to test out your software under extreme high traffic conditions etc. , dream conditions to challenge and tweak your software's performance, so to speak.

Let's say the patent in question is highly debated in public and in also in court. You, the developer, are also deeply convinced, that the patent is unreasonable and not defendable. In addition, you, the developer, know that in theory a public fight and discussion over this issue, would potentially harm thousands of other users of your software, who meanwhile can implement the patented software-based business method within ten minutes, as the routine is so obvious to set up. Were the patent not invalidated in court, all those users would (theoretically) be infringing the patent.

What would you do, if you were the developer ? Is there a szenario where you, the developer, could be forced to testify ? Is there a possibility to provide evidence anonymously to the PTO or the court ? Would you think it's worth fighting the patent or would you shut up, if you were the developer ?

Depends on the patent (none / 0) (#7)
by Eloquence on Sat Mar 17, 2001 at 03:35:58 PM EST

It's similar to the $cientology thing. The developer should ask himself, is it worth fighting for? What can be gained by doing so? If the patent in question seriously harms software development in many important areas, the developer should consider going through it. If it's just one of the many, many lame-ass patents out there that's incredibly stupid but practically does little harm, let it be.
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[ Parent ]
hard to tell (none / 0) (#8)
by mami on Sat Mar 17, 2001 at 06:43:38 PM EST

hmm, let's say, some people who are considered important to the free software and open software movement, seem to think that it is an important patent, others might argue, it's not a big deal. It's in general believed that if thousands of people can infringe it that easily, infringements couldn't and wouldn't be enforced. So on practical terms, ordinary people might tend to let it be.

What's ironic about it under the "let it be" assumption is, that if on the one hand it's considered a big deal by many and on the other hand it's not, one can get confused who is the hypocrit in the whole story. What should poor aunt Ruth think about the morality of it all ? And who knows what future will tell ? May be for some stupid reason not foreseeable right now, it might have been a more important patent than what meets the eye today.

As almost all software business method patents can be counted to the lame-"behind" patents, I ask myself, what's the whole hot air all about ? Another case of sweeping some dirt under the carpet instead of cleaning it up, or what ? No wonder that there are so many cases of allergies around.

[ Parent ]
Clarifying a bit (5.00 / 1) (#6)
by Vesuve on Sat Mar 17, 2001 at 02:59:25 PM EST

The new regulations effectively bring the US Patent process closer to those applying to rest of the world.

When someone in the US files for a foreign application (PCT or WO), the patent application is always published 18 months after the earliest filing date (i.e. the filing date, or the date of the provisional filing, etc.) The new process makes this the same for domestic patents, but, if I recall, only if there is a stated intent to file foreign patents.

I wouldn't call this a drastic change at all, as it really only changes the 18-month stopwatch from being controlled by the PCT to the USPTO. The patents would have been published after 18 months regardless. You can often get copies from Delphion (formerly the IBM Patent Database). Your attorney can also get copies a little faster.

There are a lot of specifics about this, which anyone with a patent strategy should at least discuss with their patent attorneys. But this really isn't the big deal people are making it out to be.

[I'm not a lawyer, but an inventor]

nice for big corporations but... (none / 0) (#9)
by koala on Mon Mar 26, 2001 at 07:16:36 PM EST


The previous system gave time to the small inventor who could produce a product and label it "patent pending". Predatory manufacturers could not be certain what aspects of the device might be protected, nor what claims might apply. This strongly discouraged attempts to bypass the patent for fear of obvious infringement and lawsuits. The inventor often had time to establish the product in the marketplace before the predator could circumvent the patent with a similar product.

This precious few months in which the product could be marketed and competitors were discouraged were the only hope for the small inventor to establish his new and unique product before the eyes of the buying public.

Now these predators will know what the claims are and they can look for loopholes before the inventor even gets a patent and long before the market is established. They will be able to market a competing product before the inventor can begin production.

The backyard inventor might as well give up. The awesome cost of researching & obtaining a useful patent is now overwhelmed by the millions it will cost to protect it from these predators.

Omphaloskepsis Often! .
Not true (none / 0) (#10)
by Taral on Tue Mar 27, 2001 at 05:31:05 PM EST

18 months is a long time to get your product out, during which you can still claim "Patent Pending" and no-one can see the patent.

[ Parent ]
USPTO begins publishing patent applications | 10 comments (6 topical, 4 editorial, 0 hidden)
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