From: "Nick May" <nick@kyushu.com>
In response to:
> >Please also note that organizations like the USPTO are not
> >there to certify the validity of patents per se, but rather to
> >make sure they pass some basic filing tests.
Nick wrote:
> this is getting off topic, (not keitai related) but...
Since I was chatting about patentability of a keitai
idea just last night at a CODEJ nijikai, I think we're
somewhat within the pale, still...
> surely [patent offices] have to
>
> a) have a policy of what type of things are patentable.
>
> b) make some decent attempt to determine whether prior art exists.
Yes, they have policies about what's patentable, but they
are far from the ultimate enforcers - they are a filter stage,
little more. (Also very much a vanity press - only a tiny
fraction of filed patents really ever get defended. Most
patents are resume-adornment.)
The burden of uncovering prior art is really on the filers.
After all, it is *filers* who are taking the due-diligence
risk, it is *filers* who may have to defend the gizmo they
are writing up.
I have seen search-engine algorithm patents that cited
patents for - I am not making this up - carpet-lamination
techniques. Presumably the filer did some patent searches
on the word "web", and cited the results randomly. You
can call this "intellectual terrorism" (as one patent translator
of my acquaintance does - i.e., using patents, no matter how
lame and hastily prepared, just to scare people off). But I
call it "evolution in action" - if it comes to a defense, these filers
just greased their own skids. I'm sure if I showed the above
patent to USPTO patent officer, he'd just laugh, and dive for
his files, saying, "you think THAT one's funny? Lemme show
you THESE...."
> Their policy in the former and the extent of their competence in the
> latter in part determines whether this or that patent organisation is any
> good. The USPTO are notoriously lax in both areas. The Japanese patent
> office look like they might be going to decline Amazon's one-click.
One country's patent office action on one patent application might
(seemingly) be more sensible than the action of another, but this is still
a far cry from making that office superior in any way. If anything,
JPTO has a staggeringly higher proportion of garbage software
patents on file than USPTO. They've been allowing software patents
here in Japan for decades longer than the U.S. and the ones I've
looked at (albeit in translation only, so far) seem pretty wretched. But
then, Japanese patent practice seems, in general, to be distinctly
inferior to the U.S.
> > Blaming patent
> >offices for all stupid patents is like blaming traffic cops for
> >all stupid drivers.
>
> no - your anaolgy is far from exact. traffic cops do not grant to drivers
> the right to drive, nor set the driving test conditions.
A more precise analogy? OK, here's one: "The people who mark
your written driver's test at the Department of Motor Vehicles
are not responsible for all the stupid-but-nevertheless-licensed
drivers on the road - not even the drivers who seemed conspicuously
deranged, high, or drunk when they passed the test."
A patent on file confers only the right to attempt to use that
filing in a defense. The filer might have the intellectual equivalent
of a surrealist poem on tissue paper in disappearing ink, but
that's the filer's problem, not the patent office's. Which is fine
with me. Let courts and markets handle the Darwinian selection
from there onward.
-m
leap@gol.com
[ Did you check the archives? http://www.appelsiini.net/keitai-l/ ]
Received on Thu May 24 14:04:50 2001