Raising examination standards wouldn't fix much
Raising examination standards would reduce the total number of software patents granted, but given that most patent problems involve multiple patents, and given that one patent is enough to block development, a reduction would not solve many problems.
Standards example: MPEG
MPEG LA represents a pool of over 1,000 patents which it claims are essential for an implementation of the H.264 video format. Many of these are duplicates (one for each country), so maybe there are 100 patents (each with around 20 claims).
If the numbers of these patents are reduced by 10%, 50%, or even 95%, it will allow free formats to adopt the features claimed in these patents. But there will still be no change to the fact that implementing the original format requires permission from MPEG LA.
A format like MPEG that is covered by a large number of interlocking patents is a worst case scenario. Some other formats are covered by only one or a few patents, and busting those patents would allow the format to be used freely.
When encouraging the raising of patent examination standards, it's very important that your work is not misunderstood as showing support for "high quality" software patents. Always phrase your support like: "Raising the standards is a step in the right direction, but even 'high quality' software patents are harmful to society. The right thing to do is get rid of software patents entirely".
What effects do the USPTO's 2010 KSR guidelines have?
One disagreement is over whether they have any effect at all. Patently-O's Dennis Crouch comments:
The 18–page guidelines do not have the force of law, but will impact how examiners judge obviousness in practice.
The second disagreement is about what effects they will have. On one hand, there's Intellectual Property Expert Group (ipeg), which published an article about how these guidelines make the obviousness tests easier to pass. On the other hand, there was broad disagreement with this claim when the story was discussed on Slashdot.
Ipeg's article described the change thusly:
According to the 2007 Guidelines, however, in addition to TSM there came into being with KSR six other tests for obviousness. These tests gave the examiners six new ways to reject claims and so help achieve the reduction in the patent allowance rate which was such an important goal for the PTO under its then-Director, Jon Dudas.
In the 2010 Guidelines, however, only two of the new tests for obviousness appear to survive.
The article concludes that these new guidelines are in line with making the tests easier to pass:
This is in line with the general trend of the PTO under Director Kappos to [...] and give applicants greater opportunities to obtain allowance of claims.
Related pages on en.swpat.org
- Duds and non-solutions
- Quality of software patents is particularly bad
- Patent standards here are higher than in the USA - a myth for most countries
- Patent review by the public
- RSA patent
- (USA) The Patent Reform Act
- Applicants paying for patent review
- Patent Reform Is Not Enough, gnu.org
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