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Patentably idiotic

Posted by arnold on October 7, 2004 at 11:59 AM PDT

The Kodak v. Sun suit has gone against Sun. This is hard evidence
that the software patent system is deeply broken. I know this isn't
news; you probably already knew.

One approach is to think that software patents are just plain
wrong. Maybe so, but this isn't obvious to me. Patents have
protected other technologies, and they might be able to handle
software. Software patents as currently done are broken,
dangerous, and frankly f'ing insanse, but maybe it's fixable. Or
at least we can lower the temperature of this hot tub in Hell.

Any mitigation must start with the basic problem of knowledge:
Almost nobody with actual authority in software patents is competent
to understand software. Patent examiners (I'm sorry to say) are
not our best and brightest. The Patent Office doesn't pay enough
to attract or keep top level folks. Juries (like the one in this
case) are picked from the normal jury pool. Imagine trying to
explain the difference between (say) virtual memory with paging vs.
an on-chip CPU cache to mother. And then remember that your
mother is smart enough to avoid jury duty. Not to mention that the
judge is a lawyer, most of whom have only the most basic scientific
training.

In short, everybody who has the power to make judgements is
almost certainly unqualified to do so.

My favorite solution would be to fire all the examiners and
replace them with 25 actual experts, and let them grant (say) 30
patents a year (with maybe a unanimous vote for adding more).

But we could also require that the "jury of peers" be peers of
computer people. Those of us who are computer folks could join
that jury pool and be exempt from other jury duty. Then maybe the
jury deciding this kind of stuff might have a chance at having a
clue. This would be especially good because patents are only supposed
to cover thing not obvious to your average pracitioner in the field.
Who better to judge besides a jury practiioners in the field?

We could also make software patent grants provisional for 6
months. They get published and the outside world has a chance to
throw prior art at it to see if it sticks. A lot of companies would
be highly motivated to try knocking patents down before they cause
any damage. It would be a way of drafting highly competent technical
folks from these companies into the process of weeding out the
idiocies.

These are just some ideas, but it's a pretty depressing situation
and we oughta do something...

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