Patent scope, not prior art, is the principal culprit

Summary: The American technology sector is being 'protected' by a cabal of large technology companies, which can very well deal with a breadth and wealth of low-quality patents -- something that small companies cannot as they lack dedicated legal departments and cannot cross-license with a war chest of patents

THE issues associated with patents and patent trolls are well documented. They are generally understood by the public, too. But patent lawyers pretend that the only issue is that there are not enough patents, not enough lawsuits etc. (because they make money from these) and Google became a patent aggressor last year, which means that Google too is part of the problem.

"...Google became a patent aggressor last year, which means that Google too is part of the problem."A few days ago a report emerged under the title "Google throws support behind Prior Art Archive" -- something which isn't really unprecedented. Google should, instead of perpetuating the scale of this maze, put its weight behind abolishing all software patents. Its work with patent offices like the EPO and USPTO (patent databases, patent translations, patent search) merely exacerbates matters. It gives the false impression that issues are being tackled. As WIPR put it:

Google has shown its support for the newly-launched Prior Art Archive by connecting it with its Google Patents database.

Launched yesterday, October 3, the Prior Art Archive was designed to address the problem of low-quality patents which, according to the initiative’s creators, should not have been granted in the first place.

The Prior Art Archive, which was created by the Massachusetts Institute of Technology, the US Patent and Trademark Office (USPTO) and technology company Cisco, will help USPTO examiners identify prior art and obvious technology.

Quoting the original, Ian Wetherbee (Tech Lead/Manager, Google Patents) and Mike Lee (Director, Head of Patents) decided to say: "A healthy patent system requires that patent applicants and examiners be able to find and access the best documentation of state-of-the-art technology."

"Several years ago Google began stockpiling patents -- software patents included -- just like other giants in its domain."That might not help, however, in rejecting applications based on how trivial the claims are.

Several years ago Google began stockpiling patents -- software patents included -- just like other giants in its domain. As we explained on Friday, a Google-centric aggregator of software patents (DPA) known as LOT Network is even being embraced by Microsoft, probably for the sole purpose of marketing a protection racket [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21].

"Google also makes money from patent translations."So it should be generally accepted that Google isn't part of the solution; it's arguably part of the problem. Google also makes money from patent translations.

Lisa Ouellette, in yesterday's post "Language Barriers and Machine Translation," overlooks two key issues: 1) these translations are utterly incomprehensible for most languages, more so in technical domains and 2) one cannot digest millions of patents. Such a system is moot.

To quote this Associate Professor at Stanford Law School:

One of the more expensive parts of acquiring global patent protection is having a patent application translated into the relevant language for local patent offices. This is typically viewed simply as an administrative cost of the patent system, though my survey of how scientists use patents suggested that these translation costs may improve access to information about foreign inventions. As I wrote then, "[t]he idea that patents might be improving access to existing knowledge through mandatory translations and free accessibility is a very different disclosure benefit from the one generally touted for the patent system and seems worthy of further study." E.g., if researchers at a U.S. firm publish their results only in English but seek patent protection in the United States and Japan, then Japanese researchers who don't speak English would be able to read about the work in the Japanese patent.

I've also been interested in the proliferation of machine translation tools for patents—which can make patents even more accessible, but which also might limit this comparative advantage of patents over scientific publications if machine translation of journal articles becomes commonplace.

Meanwhile, another patent scholar and patent maximalist, Dennis Crouch, makes a stunning admission. It has been a slow news week for patents, so he makes public his notes to himself and then mentions some book that's not even about patents. In there he admits that US standard for patentability is low when he tries to justify it as follows: "The US patent system fits this approach in some ways — one reason why we have 10,000,000+ patents is that the standard for patentability is low enough so that many many individuals experience sufficient genius. The problem though is that the hoops, tricks, and costs leave the patent system as an insider game not accessible to the vast majority are locked-out."

"Deep inside Google knows that it can afford to spend a lot of money on tens of thousands of low-quality patents, then cross-license with other giants."This is very wrong. Patents should not be mere trophies; awarding these may mean that they end up in the hands of patent trolls, causing a lot of trouble to real geniuses (which trolls aren't). There's a big difference between finding oneself in the literature (for attribution or credit) and receiving an actual monopoly which costs a lot of money to invalidate/disprove. Google may be trying to make patents (or applications) easier to invalidate/disprove, but it does nothing at all to raise the bar for patents. Deep inside Google knows that it can afford to spend a lot of money on tens of thousands of low-quality patents, then cross-license with other giants. ⬆