Tuesday 21 August 2012

Patents 2.0

Imagine looking up patents this way?
Google has now spoken out about how software patents are unhelpful and the tech press is buzzing about the futility of it all. Perhaps it's time for us all to think about how to actually improve the process and provide a new framework - Patent 2.0 to use a slightly out of fashion style of name.

Before launching into that I think it's worth reminding people that until recently software could not be patented. Indeed many patent offices still do not accept software patents. The reason being that there had to be a system, production method or device being protected, not a business method or process.

It is also worth looking to two other sources of ideas. The first is the academic review process where research only counts if it has been peer reviewed and published. The ease with which people can publish material on the web has perhaps pushed that a little of sight, but the concepts are still very valid. A little bit of effort should be required before claims can be asserted. Otherwise we descend directly into politics, which is what is effectively happening in the Apple vs Samsung vs Microsoft vs Motorola vs Nokia battles.

The other is the Open Source movement, where anybody can post any piece of code they have knocked up, but only the good ones are propagated as the community will not adopt anything else.

These are both very similar - the only real difference is that the academic process is formalised and anointed by professional bodies like the IEEE and professorial status.

So how can we get Patent 2.0 working? First of all the convoluted existing system is way too complex to fix overnight. And it probably works fine for other industries - I have no idea if there are a group of pharmaceutical engineers having a similar debate - so perhaps we just need to revert to the original status of not permitted software.

Next step is to make a new, global registration service for soft concepts: software, design and perhaps other things that may come into play like music and sounds although they may be adequately covered by copyright.

This global service would be peer reviewed to ensure that prior art and really obvious stuff isn't accepted. Of course this needs some definitions. What's obvious to you and me might be rocket science to someone else so we need some objective definitions. Here are some criteria that I think help define obvious:

  • Moving something (action, method, system) from one domain to another. As example, watching a video on a portable device is not an innovation from watching it on a static device.
  • Incremental changes to something else that make no new contribution. As example Apple's lawyers claiming that rotating pinch zoom by 45ยบ makes it new.
  • Something that is really well known and taught in basic CS class, for example doubly-linked lists. (Thanks to Crawford Currie for the link.)
  • Claims are challenged at point of registry by the peers, not "lazy evaluated" at the litigation stage, which is the current process, eliminating the vast majority of the basics.
I've been trying to come up with some kind of minimum intellectual value concept but so far not found one. Besides which I tend to feel that market competition will determine which one wins and that's probably better anyway. In a non-commercial framework this seems to work well, with many open source packages offering the same facilities but some becoming industry standards due to their quality while others fade away.

What else could we add to Patent 2.0 to make it work better than the present system?

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