Zachary Hiller Law Prior Art and Patent Law, patent sketch

Some would say that there are areas of patent law that are fundamentally broken. The tech blog, Gizmodo, made the case for this in an article several years back when they pointed to the many tech lawsuits between Apple, HTC, Samsung and Nokia. In the article they noted that in certain sectors patent trolls, of which I have written about before, are making it very difficult for tech start-ups to capitalize on innovative thinking. They offered some interesting solutions to the problem, from reclassifying the way software patents are written to forcing the losing party to pay in a patent suit; one sure fire way to head off superfluous filings. One of the most ridiculous solutions I have seen to date  was ripped off the pages of another Gizmodo article, just this morning. A man by the name of Alexander Reben has created a website called All Prior Art, with the aim of rendering new patents impossible.

Understanding Prior Art; The Concept, Not The Website

Prior Art and Patent Law, patent sketch

Photo Courtesy Wikipedia By K. C. Gillette – US patent 775134, p. 1, Public Domain, /w/index.php?curid=14859097

In a nutshell, prior art is the idea that a new product or invention cannot be patented if that concept was already invented. Anything can be prior art in theory, from a Rube Goldberg-esque mousetrap to a cave painting describing a process that is a thousand years old. It is meant to keep existing inventions, already in the public domain, from being patented and protected as new objects. Alexander Reben is trying to turn that concept on its head.

According to the site, it “is a project attempting to algorithmically create and publicly publish all possible new prior art, thereby making the published concepts not patentable.” Reben claims he is trying to preempt patent trolls from squatting on technology while producing nothing new. By using the entire U.S. Patent Office database, he has created an algorithm that is meant to tweak every existing patent that exists. The goal is to make an almost infinite number of tweaks so that his database will contain every possible permutation for every possible machine that has ever been patented. By making it all publicly known “prior art”, his argument is that no one will ever be able to file a patent ever again since every patent conceivable will already exist on the site.

This solution to the issues in patent law fails to address one of the core tenets that make patent law a necessity, human ingenuity. This algorithm is not designed to create anything new, but simply to pirate what already exists and tweak it slightly. Granted, although some of these minor tweaks may result in improvements to existing technologies, even Reben admits that much of the prior art on his site is completely nonsensical. While this solution could cut patent trolls off at the knees; inhibiting their ability to squat on patents for money. This “democratization” to coin a phrase from Reben, could also have the opposite effect; damaging small inventors and stifling new ideas. The patent world is not, after all, completely comprised of Apples and trolls. It is made up of small businesses and start-ups, looking to make their mark on the market with new ideas. This all prior art concept would prevent them from protecting their intellectual property as well. While it may seem like a big solution to a big problem, it seems as nonsensical as the new inventions that the algorithm is spitting out. This is like setting your house on fire to kill a spider, it’s probably not the best way to tackle flaws in patent law.

For a well balanced approach to patent law, one that doesn’t typically involve fire or spiders, contact Zachary Hiller today. We can help with any and all of your patent, copyright, trademark or corporate law needs.

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