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Can crowdsourcing kill the patent troll?

 Crowdsouring away the patent troll

Few governmental processes can rile technology fans quite like the U.S. patent system. And for good reason: As competition for our hard-earned dollars continues to build, giants like Samsung, Apple, Google, Facebook, Yahoo, and Microsoft have taken to fighting each other over patents rather than just over prices, features, and services. Terms like “patent war” and “patent trolls” have become so commonplace that they are now cliché. And for many, the situation has grown so absurd that an increasing number of people have called for an abolishment of the patent system altogether.

Needless to say, that’s just not gonna happen. But the U.S. Patent and Trademark Office (USPTO) is listening, and has come up with a way to allow the enraged public to help clean up the mess. The solution: AskPatents.com, a website launched last month by crowdsourcing Q&A company Stack Exchange, with support from USPTO, that will allow the public to help weed out invalid patent claims through the submission of “prior art” — a key part of the patent approval process that we’ll get more into below.

“By introducing third party input into the examination process for the first time since the inception of our nation’s intellectual property system, we’re able to expand the scope of access to prior art in key areas like software patents,” said Director of the USPTO David Kappos, in a statement. “This will improve the examination process and advance the Administration’s ongoing commitment to transparency and open government.”

While the public may have an emotional stake in the patent system, putting an end to bad patents and patent trolling is more complicated than simply creating an Ask Patents login. Let’s take a look at what this process really entails.

What is prior art?

star-trek-prior-art

In order to help improve the patent system through Ask Patents, the first thing you need to know is the definition of “prior art” — a murky but crucial element in determining the legitimacy of a patent claim.

At its most basic, “prior art” is any publicly available evidence that the idea for an invention is not new, and/or is completely obvious. Prior art can come in many forms, including earlier patents, scientific research papers, newspaper articles, webpages, textbooks, or any other publication or available example of an idea.

Proving that an invention is not new is fairly straightforward: If someone submits a patent application for an idea that they could have come across somewhere else, then their claim is likely invalid. The “not obvious” requirement is a different beast entirely since obviousness is subjective. Fortunately, patent law says that a patent claim is invalid if it is obvious to a “person having ordinary skill in the art,” i.e. someone familiar with the area in which an invention idea resides. Still vague? Absolutely — just not as vague as it could be.

So those are the basics. But as you might expect, the details are far more complicated — we could go on endlessly explaining the ins and outs. So if you want to really understand prior art, we suggest listening to this (hour-long) tutorial on finding good prior art by Dan Ravicher, executive director of PubPat Foundation. Less time-consuming explanations can be found here and here.

What’s an example of a use of prior art?

While there are plenty of examples of prior art being used to invalidate patent applications, most of them don’t make the news. However, prior art percolated to the surface early this summer when Google and Oracle submitted a truck-load of prior art in an attempt to shut down infringement claims from known patent troll Lodsys.

Unfortunately, most of these prior art examples are mind-numbingly boring, so here’s another example — one that didn’t work out quite as planned: During the recent Apple v. Samsung patent battle, Samsung wanted to prove Apple’s ‘381 patent invalid using prior art. Apple patent ‘381 covers the “bounce back” of apps. “Bounce back” is when, using iOS, an app’s screen “bounces” back into place when you scroll past the top or bottom of the screen. One item that Samsung claimed as prior art was an app called LaunchTile, which debuted in 2004 for Microsoft PocketPC devices. Here’s a video of what LaunchTile looks like:

Despite Samsung’s efforts, the jury did not find this or any of its other attempts to claim prior art on Apple’s ‘381 patent valid, and voted that Samsung infringed on this patent with all 21 of its devices in question. (Though some argue that the jury did not fully understand the concept of prior art, thus rendering the decision invalid.)

So where does Ask Patents fit into all this?

As you may have noticed, sorting through the issue of prior art is extremely complicated and time-consuming. Unfortunately, patent application examiners only have 22.5 hours per application to discover prior art [DOC] — not nearly enough time to search “every document published in the entire world in every language,” as Stack Exchange co-founder and CEO Joel Spolsky put it. And that’s why we have patents awarded to people or companies that simply should have never passed USPTO’s muster.

This is where Ask Patents comes in. Through this site, anyone can help the USPTO find prior art — something the public wasn’t able to do until September 16, when a patent reform provision went into effect. Ask Patent users can ask and answer questions about prior art in general, or about specific patents and possible instances of prior art. It’s a community tasked with the specific goal of helping to make sure only valid patent applications get approved.

If you happen to stumble upon some prior art, you may then submit it to the USPTO using its electronic filing system.

Does it work?

At this point, it’s impossible to say for certain. But according to Stack Exchange Chief of Staff Alex Miller, the answer is a resounding “Yes!”

On September 20, the day Ask Patents went live to the public, a user asked the community whether prior art existed for a newly unveiled Microsoft patent application for the functionality of smacking a phone to silence it. As Miller tells it, this question proved the viability of the Ask Patents system in a matter of hours.

“We officially opened [Ask Patents] to the public on September 20, at about 10 a.m. Eastern. And at September 20 at 4 p.m. Eastern — so, you know, six hours after we put this site up to the public — a guy put up piece of prior art that is exactly what Microsoft is trying to patent, and pre-dates Microsoft’s filing by two years,” said Miller in an interview with Digital Trends. “It took six hours for the model to get proven out.”

What next?

The goal, says Miller, is to clean up the patent system to the point where so-called patent trolls — companies who make money by purchasing patents for the purpose of suing, or threatening to sue, other companies for infringement — no longer have any bad patents to use against others.

“Basically, one of the goals of Ask Patents is to cut off [patent trolls’] access to a supply of bad patents,” said Miller. “‘Cause if they don’t have that, they have nothing to sue over.”

What do you think about Ask Patents? Will it have any meaningful effect on the patent system, or are things simply too far gone already? Let us know your thoughts in the comments.

Image via Wth/Shutterstock