Software patents, invalidity, and the new technorati tags
I’ll make a connection between the elements of the title, I promise…
Software patents have received significant attention of late. This is at least partially due to the debate in Europe concerning whether patent protection should even extend to this area of technology. And the media has done a great job of hyping certain ‘silly’ patents as examples of the complete failure of the US system (see, as examples of the hype, this 271 patent blog post on Amazon’s ‘one-click patent’ and this PTP post on Microsoft’s so-called ‘double-click’ patent).
It, I assume, comes as no surprise that I firmly believe that software is properly within the realm of patentable subject matter. My position on the subject can be stated very briefly: if an invention meets the three requirements (novelty, nonobviousness, and utility), it is, and should be, patentable. If it does not meet any one or more of the three, it is not, and should not be, patentable. Generally, I agree with Krajec on the matter, who has done a wonderful job of stating the position (keep fighting the good fight, Russ!).
In arguing against patentability of software, people frequently cite, in general terms, prior art, saying that a particular invention had been known in the art for years. If true, then, under my position on the subject, the invention would not be patentable. Whether or not invalidating prior art exists is quite a different question than whether or not software, in general, should be included in the realm of patentable subject matter.
I believe that the software situation highlights one of the primary problems with the patent examination system — patent Examiners only have access to a limited amount of prior art. If an Examiner had perfect knowledge on a particular subject matter, the question of patentability of a particular invention could be resolved absolutely (at least for novelty; obviousness, by its nature, will always be debatable). But, this state of mind — perfect knowledge — can, of course, never be achieved.
It seems to me, then, that one way the patent system can be improved is to increase the fraction of prior art available to the Examiner. But how? What tool can we use?
Software, of course!
Technorati recently introduced its ‘tag’ system for organizing web content. Technorati, if you’re not familiar with it, is, basically, a search engine for the blogosphere. Using its simple interface, you can determine which bloggers are discussing a particular topic. See, as an example, this search for “‘double-click’ patent.” The tag system allows bloggers to “tag” their posts with category and/or keyword information. Technorati then collects and presents all related information in one location, on “tag pages.” See, as an example, this tag page on ‘legislation.’ Each post listed on the page has been assigned to a ‘legislation’ category by the author — the blogger writing the post.
The beautiful thing about the system is this: its ours to use anyway we want. Tag your posts with any tag you desire. Technorati automatically collects and consolidates all the information on all tags it encounters when crawling the web.
Here’s the connection between the elements in the title: Bloggers could use the tag system to create a centralized collection of art on any patent or published application. If you believe art is relevant to a particular patent or published application, write a post describing the art and tag it with the patent number. If other bloggers do the same for a given patent or published application, the collection of art would grow…and grow…and grow. I would imagine that the more important patents (those for which the greatest motivation to invalidate exists) would receive numerous posts, creating a Technorati tag page for that patent listing several pieces of prior art. If invalidating art does indeed exist, Technorati would catch it.
This system could help everyone: The public would benefit because relevant art could be brought forth sooner. The patentee would benefit because they would get a sense for the validity of the patent (or application) and value it accordingly. The system could even help the Examiners — they might be able to see the art during initial examination (timing would be critical). But, think about reexamination….
A standard tagging system would be helpful. Something like “USPATXXXXXXX” and USPATPUBXXXXXXXXXXX” would probably be sufficient (identifies the tag as a patent or published application, preventing any confusion with other, non-related tags on the number alone).
Comments and/or suggestions? Anyone want to start tagging?
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A Bad Take on the Software Patent Issue
This post on Don Marti’s blog is rather interesting. Mr. Marti, a member of the Silicon Valley Linux Users Group, proposes that all prior art be stored away until someone attempts to enforce a software patent (and spends a bunch…