2. Article 1 Section 8 Clause 8
"...Promote the progress of Science and
useful Arts by securing for limited times to
Authors and Inventors the exclusive Right
to their respective Writings and Discoveries.
"
6. Role of patent examiner
● Determine whether applications comply with
the basic format, rules and legal
requirements
● Determine the scope of the invention
● Search for prior art
● Issue office actions
Over the life of the application, the patent
examiner spends 20 maximum hours doing all
of the above
Peer To Patent First Pilot: Final Results
7. Challenges the Examiner Faces
After all is said and done, the patent examiner
only gets 7-8 hours to determine whether an
application is worthy of a 20 year monopoly.
Challenges:
● Patent Backlog
● Patent Legalise
● Limited access to non-patent literature
8. Examples of prior art not typically
searched by the patent office
● Scientific Publications
● Technical Reports (universities, companies)
● Conference proceedings (scientific/ non-
scientific)
● Conference talks
● Blog posts
● Mailing list archives
● Usenet posts
● ...
10. Limiting and Removing the Patent
Threat
There are three points in time where we can
interfere:
1. Before a patent claim is submitted by an
entity: Defensive Publication
2. During a patent examination: Pre-Grant
Submissions.
3. Trying to invalidate a patent after it has been
issued: Post issue
11. Innovation Options
1) Patent everything you create
2) Ignore patents and cross your fingers that no
one sues
3) Actively protect your work
12. What is a Defensive Publication?
A publication that serves as explicit prior art
and ensures freedom to operate around your
design.
● They are a powerful way to prevent bad
software patents from getting issued.
● Give the patent examiner insight as to the
state of technology.
13. Healthy Innovation
Defensive Publications allow us to disrupt the
balance of the construct of the patent system
Approach: Patents are awarded if New and Not
Obvious
● If there is no prior art then the patent will be
awarded.
Creating prior art destroys the possibility for the
claimed invention to be patented.
14. How to write a defensive
publication?
Writing a defensive publication is simple:
● Title
● One to two pages of text (at minimum)
describing HOW the idea works:
○ Introduction
○ A description of what is currently available and of
your idea
○ The steps involved
● A figure describing the interaction between
components
Most important is explaining HOW this would
work.
16. Who writes Defensive Publications?
Many entities publish defensive publications:
IBM
The Internet Society (namely the IETF's Requests for Comments)
Cisco
Microsoft
Lenovo
NIST
Motorola
Siemens
Nokia
Sony
Xerox
Individuals
17. When to write a defensive
publication?
● Whenever you come up with an idea that
makes you enthusiastic
● It does not matter if you implemented or not
If you want to blog about it and tell your friends
in the middle of the night about your idea, that
is the right time.
18. How is Linux Defenders Involved?
Submitting defensive publications through
Linux Defenders ensures that the patent
examiner will gain access to these.
Process:
● Submit on linuxdefenders.org
● Each defensive publication gets posted on
IP.com
● IP.com is a digital notary
● Patent examiners use IP.com when
conducting prior art searches.
20. References
RPX Corporation, Tracking Patent Activity: A Post Script to
the DOJ Report (March 2013)
http://www.rpxcorp.com/index.cfm?pageid=14&itemid=29
Peer To Patent, First Pilot: Final Results (2012).
http://dl.dropbox.com/u/2541719/First%20Pilot%20Final%
20Results.pdf
