[Patents] New WIPO drive for unlimited patentability and limits on patent quality

[ramon@jl1.quim.ucm.es (Ram'on Garc'ia Fern'andez)]

On Wed, Apr 18, 2001 at 01:27:48PM +0200, PILCH Hartmut wrote:
> The patent system needs a whole
> bureaucracy, which by itself is already inert and subject to normal
> bureaucratic decay processes. 

> Moreover, if the examination
> system could be scrapped altogether and replaced by a system of public
> claim refutal competition, the bureaucracy would go away and with it most
> of the rules that now need to be "harmonized".

The idea of claim refutal has too many drawbacks. Imagine that two competing
laboratories are researching a medicine.

Furthermore, it is not necessary. Patent offices are very bureaucratic
because their examiners are not quite bright. So in order to get a
"consistent" quality, they give the examiner a precise set of rules.
This is similar to a chef of McDonalds:

   The other secret of Big Macs is that you can have an IQ that hovers
   somewhere between "idiot" and "moron" (to use the technical terms) and
   you'll still be able to produce Big Macs that are exactly as
   unsurprising as all the other Big Macs in the world. That's because
   McDonald's real secret sauce is its huge operations manual, describing
   in stunning detail the exact procedure that every franchisee must
   follow in creating a Big Mac. If a Big Mac hamburger is fried for 37
   seconds in Anchorage, Alaska, it will be fried for 37 seconds in
   Singapore - not 36, not 38. To make a Big Mac you just follow the damn
   rules.

   (Taken from http://joel.editthispage.com/stories/storyReader$287,
    essay "Big Macs vs. The Naked Chef - why it's imposible to scale
    software consulting", by Joel Spolsky. If you read Spolsky's
    essays about software development, you will do yourself a favor).

Lawyers insist in having a precise set of rules; and in interpreting
patents based in that precise set of rules. They forget common
sense. "Non-obvious". Hey, but a 12 year old child could think
it. "Non-obvious", "obvious only in hindsight" they insist. The real
problem is that they do not really understand computer science, but
anyway they want to control it, using their limited understanding and
ideology.

If the examination of a patent of a 3d rendering algorithm were made
by an active researcher that is working with 3d rendering, he would
not need any precise set of rules. His intuition can explain much
better if the invention is relevant. 

This is the method used by scientific journals. When a journal
receives an application for an article, the journal commissions a
researcher in the same field of the article for reviewing it and
deciding if it is relevant. This reviewer is known as "referee".
Although sometimes referees are knit-picking, this method works. You
will not find an irrelevant article inside "Journal of Chemical
Physics".

Hope this helps.

Ramon