Because it would be expensive, impractical, and not fix the core problem…


…to answer my own question below, but you’ll come to that soon enough.

Doc Searls just posted on a topic that’s been coming back into my head in recent days, for some odd reason.

My response to the “defensive patent” argument is that a company holding “defensive patents” makes me feel almost exactly as safe as somebody keeping a loaded handgun in a cigar box under their bed for “self defense.” In both cases it’s possible that they know what they’re doing and nothing bad will happen, but the situation just seems like a bad one…somebody’s likely to end up getting shot, and everyone involved is likely to regret that shooting very soon after it happens.

So how about this: why isn’t there a mechanism for registering “prior art” with the USPTO in place of a patent application? Why couldn’t Doc and the folks that have been working on VRM, for example, write up the associated mechanisms and processes and submit them to a sort of “patent examiners look here first when reviewing applications” store that the USPTO maintains?

Rather than having to take out a defensive patent, which (regardless of good intentions) has the potential to be an offensive patent at the drop of a hat, you’re simply registering a statement of the work and thought that has been put into a particular area or idea. Every patent application has to be checked against this USPTO “prior art archive,” and a match means that the application is automatically rejected.

So, why doesn’t this exist? Because it would be expensive, impractical, and not fix the core problem with the US patent system. It’d be a halfhearted, partially effective band-aid applied in an effort to postpone the major overhaul that is so clearly required.

The Congress shall have the power to […] 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.

(Oh, and merry Christmas, everyone…the various kids are starting to pop up from their naps, so I’m going back to the fun.)

  • Good read. I have made a twitter post about this. Hope others find it as interesting as I did.