The Electronic Frontier Foundation, Public Knowledge and Engine have submitted comments [PDF] to the US Patent and Trademark Office explaining how examiners could improve the quality of patents that the USPTO issues by expanding their search for "prior art" (that is, evidence that the thing under discussion has already been invented) by building searchable databases, and by seeing through the common, misleading practices of using synonyms for common words to make obvious things sound new.
As EFF points out in its post on the filing, the real answer for this is action from Congress to reform patents and end patent-trolling, but these are all useful steps for the USPTO to take in the meantime.
Last week, together with Public Knowledge and Engine, EFF submitted written comments urging the PTO to do better at finding the most relevant prior art. We recommend that the office work to create searchable databases of existing software programs. We also urge the PTO to see past the kind of deliberate obfuscation that is too common in software patent applications. Applicants should not be able to get patents simply by inventing new words for old things.
Ultimately, while improved patent examination and fewer bad patents would be a good thing, we need fundamental reform to solve the current crisis. We hope this will include the Supreme Court striking down abstract patents, striking down vague patents, and new legislation from Congress that takes on the patent troll business model. We’ll continue to work on multiple fronts to keep innovation safe from bad software patents.
Why is the Patent Office So Bad At Reviewing Software Patents?
In the age of Internet, discussions about the federal government and its functions are informed by and rely on our unprecedented access to federal documents. Anyone can freely view public records online, such as proposed Congressional legislation and presidential executive orders. Accessing public court documents, however, is a bit trickier. As Katherine Mangu-Ward wrote for the Wall Street Journal in 2011, “no aspect of government remains more locked down than the secretive, hierarchical judicial branch.”
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