Wikipedia:Reference desk/Archives/Humanities/2015 October 18

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October 18

Patent trolling for benefit of the public domain

Every so often I have some idea that I think someone with more money and available legal expertise would try to patent. But for ordinary people, patents are just "a license to get sued"; besides, I don't really believe in intellectual property. So the question is this: if you have a new idea, and you just want to spoil it so that nobody can claim a monopoly over the entire idea (i.e. to prevent a corporation such as a private patent troll from taxing the public for millions or billions of dollars), is there anything you can do to accomplish that? I understand of course that someone could come up with a particular way to accomplish it not previously mentioned that would be patentable - but frequently patent holders end up with control over the entire concept, not just a particular way. (I know ideas aren't supposed to be patentable, but from the cases I read about I often wonder if there is any idea too obvious to patent) In light of common issues like biopiracy, where traditional practices tend to end up as the property of a corporation, it's non-obvious to me how much do you have to say in order to establish "prior art" or some other barrier. So ... how would you go about trying to intentionally spoil any effort to patent something you have thought of? And are there any public organizations or sites where people actually try to do this now? Wnt (talk) 16:23, 18 October 2015 (UTC)

We are rather into legal advice territory here, but anything that's been published to someone who's "free in law and equity" to use it (that is, not under an NDA or similar obligation of confidentiality) forms part of the prior art and can't be patented. HOWEVER, much of the skill of a patent attorney is in drafting the patent so as to distinguish the prior art. Doing this sort of thing without (competent) professional advice, as you point out, is a recipe for financial ruin. Tevildo (talk) 18:04, 18 October 2015 (UTC)

@Tevildo: I fairly doubt that simply publishing novel ideas is going to ruin someone financially. But for example, does the publication have to be in "fixed form" as a printed document to prevent patenting elsewhere? Does it have to be in each country where a patent could be filed? And so forth. I feel like I shouldn't have to reinvent this wheel - hasn't anyone ever tried to prevent a patent from being possible? Wnt (talk) 19:02, 18 October 2015 (UTC)

All the information we can give here is available at prior art, which I assume you've read. Beyond that, we can't go. Sorry. Tevildo (talk) 20:23, 18 October 2015 (UTC)

Hmm I would suggest sources like [1] [2] [3] [4] [5] [6] [7] [8] [9] where people have looked in to and discussed establishing prior art via open source content, generally software but occasionally in other areas, may be of useful to the OP without violating our good prohibition against providing legal advice. It's perhaps worth noting, as do these sources note, one big problem is the need to patent examiners or even filers, acting in good faith, to actually find any prior art. Nil Einne (talk) 03:08, 19 October 2015 (UTC)

It is a common misconception that prior art invalidates a patent. Such misconceptions are frequently promoted by people who are not patent attorneys, and have no expertise advising on what is and is not patentable. If you talk to a patent attorney, one of the things they will probably tell you is not to take patent advice from non-attorneys. (In the spirit of full disclosure: I am not a patent attorney)!

If you talk to a patent attorney, they can advise you on whether a claim is patentable. It is sometimes important to disclose prior art if you did actually know about it. Neither the existence of prior art - nor an inventor's awareness of that art - directly determine whether a claim is valid.

Prior art may be one of the considerations during the Office Action phase of a patent application in the United States. The USPTO may reject a claim: "If the examiner finds that the claimed invention lacks novelty or differs only in an obvious manner from what is found in the prior art, the claims may also be rejected." But that isn't a final decision: an applicant (or an attorney working on behalf of said applicant) may reply with a refutation of the rejection, or with an amended claim that is believed valid.

For a start, at least, have a look at the United States Patent and Trademark Office website, including:

• FAQ: What Can Be Patented?
• The Patent Process Overview

Prepare yourself for a lot of reading. Patent language is verbose, specific, and technical. Many people find such verbosity to be boring and difficult. This is why many skilled inventors pay attorneys to do the patent paperwork for them.

Nimur (talk) 04:26, 21 October 2015 (UTC)