That is all true. Patents are a lot weaker than most people think they
are. Essentially, they don't prevent anyone from copying anything.
They only provide a presumption in court if the patent holder sues for
infringement. If someone did get a patent on something in Knuth, in the
suit, smart people like you will testify that there was prior art, and
the patent will presumably be invalidated.
>
You have to have some sympathy for the patent examiner. They can't
possibly be knowledgeable of every development in the field, much less
in all the fields for which they are responsible. So inevitably some
patents that are later declared invalid will get through. That is what
the courts are for.
Computer software patents have always been a mess. For the first two decades of
the computer era, you couldn't patent software because it was considered to be
analogous to a mental process. That changed in the 1970s with the setuid patent,
but it meant there was a vast amount of software prior art never mentioned in a
patent. Prior art searches normally are primarily looking at previous patents,
which is reasonable in other areas but we are unfortunately special. The USPTO
does have books and subscriptions but it's easy to miss something.
A 2012 US law created Inter Partes Review, in which a third party can challenge
a patent at the USPTO by presenting prior art, conducted by the Patent Trial and
Appeal Board. That is much cheaper and somewhat faster than going to court.
--
Regards,
John Levine, johnl@taugh.com, Primary Perpetrator of "The Internet for Dummies",
Please consider the environment before reading this e-mail. https://jl.ly
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