Patent examiners on software prior art, at crowdsourcing site

The White House recently announced the US PTO’s launch of “Ask Patents” (a forum at the “Stack Exchange”) as a crowdsourcing platform to identify prior art.

Right now, the forum seems to mostly have general questions and answers. There are several interesting Q&As, in which patent examiners explain that they do not consider software itself (e.g. open source) when searching prior art. See http://patents.stackexchange.com/questions/401/do-uspto-examiners-search-open-source-codebases/1885#1885 and http://patents.stackexchange.com/questions/4491/does-a-software-implementation-count-as-prior-art.

One examiner explains, “It’s very tough to map a plain-english statement to a block of code in a way that will convince the attorney/applicant that it’s truly invalidating.”

That is what source-code examiners and experts do every day in software patent litigation. But with current systems, there isn’t time for examiners at the PTO to do this type of search. This is in part because, “First, the search tools that we examiners have are tuned for searching natural language, not source code, so it’s far easier to find natural-language prior art than source code prior art.”

That a rigorous code/claim comparison would take too much time during patent examination is consistent with Lemley’s theory of “rational ignorance at the patent office”: most patents will not be exercised, so defer the tough validity examination until litigation.

But one of these posts at the crowdsourcing site also states that many PTO software-patent examiners lack the skills or training to do this sort of code vs. claims comparison: “it’s far easier to find natural-language prior art than source code prior art. And your question assumes that most patent examiners who handle software-related applications are proficient at reading source code. Most of us are not….”

Further, “Even if I am absolutely sure that a certain program has implemented a procedure that’s being claimed, and even if I have access to the source code of that program, and even if I am able to establish a clear prior art date of that source code, and even if that source code is written in a programming language I am comfortable reading, I still am very unlikely to cite that source code as prior art. The people that we write for (attorneys and other patent examiners) rarely have experience reading source code, so it takes even longer to explain the code than just cite a source that explains it in natural language; a better document is something like an API reference or software documentation.”

There are several possible answers. One might be using an auto-documentation system such as Doxygen to create more-readily citable references from open source.

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