Re: The patent process [Was Re: Sharing the Family PC is Patent-Pending]

[AES/newspost]

In article <Xns94E6741B54989elektrosmdonet@130.133.1.4>,
 Alun <elektros@yahoo.com> wrote:

> > 2. The patent examiners aren't software professionals,
> >    and the patent verbiage makes it very difficult
> >    for software professionals to understand the purported
> >    invention. As a result, almost anything can be 
> >    patented.
> 
> I don't think the conclusions follow from the premises in that. I think 
> most of us who are patent professionals agree that the reason that bad 
> software patents issue is that the examiners mostly look at existing 
> patents for prior art. Since software wasn't always patentable, it is a 
> given that most really basic ideas won't be found in their search, and so 
> they are then compelled to allow the patent.

Agreed.  And in addition unless one is a professional practitioner 
*already actively practicing* in a particular field or subfield, one is 
not likely to know about, or have already heard about or seen, much of 
the directly relevant prior art in the field; and this makes it much 
harder to dig out the prior art in the field and/or much less likely to 
find it.

I say this from the experience of someone who is a long-time active 
practioner (and journal reader, and technical meeting attender) in a 
couple of fields of art, and who is frequently called on to referee 
technical journal submissions in those areas for novelty, significance, 
and adequate recognition of prior art.  Even with my own deep, long term 
and up to date knowledge of these fields, much of it also in journals 
and files immediately at hand beside my desk, as well as online 
reference sources, it can take a long time to do an adequate review, and 
then to adequately document the resulting judgement.  

With no criticism of patent examiners intended, given their experience 
and resources available I don't believe they can do the analogous job 
adequately for many patents, within a reasonable time, or even possibly 
with near unlimited time.