Slashdot Mirror
Patent Office Proposes Reform
leabre writes "The NY Times (subscription required) is running a story about how the Patent and trademark office is trying to reform itself. Among some of the reforms sought, is higher fees for the initial processing fee, higher fees for more than 20 claims, higher fees for the more work the examiners have to due (lower fees for less work and fewer claims), 2000 more examiners, and required continued relevance of the examiner in their field (certification and re-certification). My favorite quote "...Mr. Rogan says excessive claims not only slow patent processing but contribute to poor-quality patents." They are trying to crack down on abundant claims and too-technical jargon which they claim overworks the examiners, reduces the quality of the patent, and other things. Worth a read."
Higher fees means more income for them and less work. The major beneficiaries of the patent system is the patent offices themselves.
Higher fees are not a solution. They just raise the stakes, so companies will try even harder to win patents. Likewise, or contrastingly, the "little guy" who comes up with a legitimate invention is even less likely to be able to win a patent for it. These "reforms" will serve only to line the bureaucrats' pockets with the blood of the independent inventor.
Karma: Good (despite my invention of the Karma: sig)
Ok, it's a big "IF", but if they spent the money on better prior art searches, perhaps it might improve the system. For example, in my experience with patent submission, the US patent office only appears to search for prior art in its own published patent database, while say, in Europe, the EPO seems to look a bit harder.
Of course, extending it to looking through well-known journals relating to the particular art would be even better, but just looking at foreign patent databases (relative to the USA) would be a start.
Notice how there is no mention of changing the process for "business process" patents, like the Bezos "One-Click" and now infamous "eBay" patents.
Raising the fees only help big corporations, which of course want to patent everything under the Sun, probablly including the Sun, just like BT's frivilous patent on "links".
There needs to be some sort of improvement in prior art review. How come a couple thousand of us /.ers can find prior art, but the USPTO can't even use Google?????
Patents we devised to be accesible to the small guy and were designed to help increase innovation. Now they are used as ways for big corporation to squash people from even thinking, and the DCMA only adds to that.
D.O.U.O.S.V.A.V.V.M.
Patents are supposed to be non-obvious to people with skills in the given field. I'm not sure it's possible for any large bureacracy to hire and maintain the right people to keep up with the state-of-the-art in technology.
IMHO, the entire scope of patents needs to be dramatically restated and restricted from what it is today.
The Patent & Trademark Office seems to have spent most of its time over the past decade trying to reform itself. With "customer" satisfaction surveys running in the 50 - 60% range, they know they have a problem.
For example, about a year back, they came out with software for electronic submission. Codes things in XML. Nice concept, but the software was virtually unusable. God knows how much money they spent on that. Their flawed electronic search system is another example of ineffective, grossly expensive automation projects.
Another very basic issue is that they seem to lose half the papers people send to them, and then commit significant resources to reviewing and ruling on the proof that the submitter actually sent the papers. This is routine. The most important part of any submission to their office, regretably, is the proof of mailing.
Then there's the touchy issue of quality. Some of the people who work there are highly competent and dedicated. But a lot of them are really inexperienced. Adding 2000 more will just make this worse.
The commissioners (who have been rotating with considerable frequency of late) always say they want to run the office "like a business." Well guess what? It ain't a "business" and it never will be.
They keep talking about their mission to serve "customers," i.e. the people who file patent applications. This is infuriating. They seem totally to forget that the key part of their mission to to represent the PUBLIC. At one point, a past commissioner actually wanted to privatize the office (and make himself the CEO). They should start thinking about what serving the public actually means, and just lose the part about trying to be a "business." At this point, that would be the most useful "reform," in my opinion.
What the applicant would do to avoid complete rejection (and avoid paying your added rejection fee) is just to modify the claims so as to avoid all prior art...
The problem with your scheme is that it chills potential innovation, which is what the original patent idea was all about--grant a monopoly for a few years in return for disclosure of good stuff, heretofore unknown.
What the
THe reason that the USPTO does not search google is b/c most of the USPTO examiners who work on s/w patents are EE's, who may not know enuf background on s/w stuff to be effective at searching google for some patent on web design....so what the uspto needs is more comp sci oriented examiners, but the uspto hiring process is slanted towards engineers....
Sig:
Navy nuke sub lifestyle?
Well, they're off to a bad start on reform if they going to try and take away the technical jargon. That will simply make the process too vague and would allow it to apply to much more than it should be.
The answer is not to dumb things down, it's to hire people that can understand the technical jargon in the first place.
>What the PTO needs to do is to charge punitive fees when they reject patents. Yes, you heard me. Currently, they get their income from granting patents, so there's absolutely no, zero, zilch, nada incentive to reject, and so there's no disincentive to file.
The PTO itself isn't rejecting the application, it's the examiners who examine the patents that reject it, and they don't see a cent of the money charged for maintenance. To say that examiners have no motivation to reject just for rejection's sake is asinine. Examiners don't grant or reject based on the PTO's ability to earn money from fees. They do it based on the fact that it's their job.
Furthermore, your idea is flawed. The examination process is there so that prior art can be found. To penalize an inventor just for having thought of something that he/she didn't know already existed is a horrible idea. The patent system exists as a pecuniary motivator for innovative people to innovate. To then slap a penalty on those same innovators just for attempting to innovate is just a bad idea.
where do you find published prior art for that? you don't. can you name one place that shows that? I can't.
What the examiner should have done was gotten an affidavit which said that a 3rd party had swung sideways as a child. that would have been valid prior art.
Bring back the old version of slashdot.
you have no idea do you? The main problem facing the office is pendancy, that is, in some technologies it takes 4 years from the date of filing before a new application reaches an examiner because of the increased number of filings. Hiring 2000 examiners will reduce pendancy because there are only so many cases an examiner can do.
http://www.popa.org is the patent examiners union. Read their critique.
Bring back the old version of slashdot.
Finally, a patent thread that hasn't been beaten to death when I get to it!
Your idea for a "deposit" is interesting, but I think it is a bit too harsh. Like many other posters have mentioned it will just raise the risk to entities (companies and individuals). Often, applications get prosecuted past the final rejection where the applicant wants to persue it, and has to file a "continuing" application, complete with a new filing fee. Heaping on another deposit (the original having been forfeit by that application becoming abandoned) just multiplies the risk, unneccessarily IMHO.
More importantly, your comment about patents being allowed "grudgingly" is the way it used to be, say, over 30 years ago. The applicant had to work get some claims allowed. Also, it was existing law that business processes and, after the invention of programmable computers, programs were just not patentable subject matter. So, what changed?
Two main factors, driven by the Patent Bar (Thats the community of Patent Attorneys for those of you thinking free as in beer):
1) patent applications were taking lots and lots of time to prosecute. The response: "Compact Prosecution"; Only three months to respond to Office Actions rather than the Statutory six (Statue permitted period to be shortened to as little as 30 days); second action is made final (limited ability to respond/amend). Also, examiners were required to produce so many first actions and disposals (abandonments and allowances) against a quota. non-final second and subsequent non-allowances didn't count toward the goal. So, the incentive was to get out work as fast as possible, and a terrible incentive to just issue the application on the first action ("first action issue", two "counts") was really tempting, especially if you were behind and getting nagged by your supervisor for "low production" every two weeks. Whil the "old school" examiners took a very jaundiced eye toward such actions (they were trained NEVER to allow on the first action) a new generation, trained by the "new management" (what became our PHBs)it was not scandalous UNLESS it led to some embarassment. High production was a visible, and easy to validate metric; high quality was invisible, hard to measure, and, thus, paid lip service.
2) The expanding into business method and software patents was driven by the court system by patent applicants, not the PTO. The PTO rejected several cases over the years and, in brief, got shot down by the Court of Customs Appeals, it's sucessor, the Court of Appeals for the Federal Circuit, and, ultimately, the Supreme Court. This done, the matter has been settled, so the PTO must examine them on the limits; they have no authority to create rules to countermand that; when you appeal an issue and you lose, that's it, from a legal perspective; only action by Congress can change this (similarly to the "Disney Protection Act" for Copyrights). As to the question of, given the fact of business method and software patents being patentable subject areas (35 USC 101), that such applications are not having the proper application of Novelty (35 USC 102) or Non-obviousness (35 USC 103)is a whole other issue I won't discuss here.
So, in a nutshell, the one-two punch of a PHB production/process oriented management and a court system that has pretty much decided that "anything under the sun" is properly submittable in a patent application have lead us to where we are today.
1. Patent examiners know what prior art is out there because they deal solely in a specific technology area (and are intimatly familiar with those sets of patents of record). What happens if the examiner knows of prior art not listed by the applicant? (This has yet to be addressed.)
The examiner can use whatever knowledge in his possession in order to invalidate a patent (whether derived from a 3rd party or not)
2. There is a conflict of interest by the private search firm. They are being paid to find prior art that the applicant really doesn't want them to find.
They are being employed directly by the PTO. If they do not catch enough prior art, then they will lose their contract. So where is the conflict of interest?
3. You are removing a function of government by eliminating searching.
Searching for prior art is a function that can be performed effectively by any organization, government or not. So why specifically are you identifying it as a "function of government".
The function of government (judicial branch and/or PTO) is to rule on the "art" in the patent based upon the content of the "found" prior art.
Did you read the part about having to re-certify and stay relevant in their fields? Do you think that will weed out a fair amount of examiners who cant do thier job? Why is that not adressing the problem.
A general response to the original thread:
The Patent Office sees about a fifth of 1 billion dollars in fees that it makes for the government.
It seems pretty clear to me having (up-until-recently) worked at the Office, that the PTO is marked as a "cash cow" for the new Homeland Security Office. And why wouldn't it be when it makes all that money for the Feds!?!
I may be a minority on slashdot, but I don't think there is anything wrong with IP in general (whether it be copyrights, patents or trademarks. Yeah, am I definately biased because that is where I make my living. BUT the current system of extending patent and copyright term protection just isn't effective for the fast moving world of computer software and business methods. I think (or maybe, I hope) that over the next several years, the Feds will figure out that software and business methods are essentially without value after a few years on the market and reduce the term protection for those patents to a "reasonble" four or five years (I say "reasonable", because that seems reasonable to me based on what I know).
Thus, the inventor gets a chance to make his money when the invention has real value and the rest of the tech industry can spend the next five years coming up with a "better virtual moustrap."
-A
The only way to get rid of ridiculous patents is to require a minimum of (documented) effort spendt on inventing (in my opinion minimum 12 months of work).
Rationale: If something is so easy to invent that it only takes a week there is absolutely no reason to grant an exclusive worldwide monopoly for that.
Bonus benefit: a single inventor will have little problem documenting all his/her spendings and effort while big multinational companies will probably have some degree of undocumented effort.
When you are sure of something, you probably are wrong (search for "Unskilled and Unaware of It").
You may have some bizarre definition of "not making money". From a 4/01 News.com article:
In other words, the USPTO takes in more money than it spends. The extra goes to other government programs. Now maybe you don't call it "making money", but that's exactly what it is. And the top-level poster is correct that the patent office could be spending more of its revenues checking applications....that the patent office is run by a bunch of idiots. Do they not understand that it is the people with all the money who are screwing the pooch? Most of us can not afford to get a patent because it costs too much in legal fees, research, etc...
Oh well...
Jamey Kirby
When the government is found to be doing a poor job at something (as it always is, due to its nature) the standard response is to charge more for it-- obviously it must be lack of money that is the problem. So they raise fees.
This is how we have the situation where the average single person pays over %50 of their income in taxes, and still doesn't get adequate fire coverage, adequate roads, adequate health care.
Any REAL patent reform would require taking it out of governments hands and putting it into an entity that has an incentive to provide a good job. For thats is why government sucks-- it has no incentive to do an adequate job, and so it doesn't.
Structure an entity such a way that it makes more money with good patents and its unprofitable to issue bad patents and you'll then have a good patent office.
Until then, the patent office will continue to give the socialists among us an excuse to complain about how "All property is theft".
Yeah, and you guys panned the ipod too: http://apple.slashdot.org/article.pl?sid=01/10/23
1) The airplane.
fortunately for WWI, the government stepped in. Without patent protection, the airplane industry innovated like NO OTHER industry in history within a span of 10 years.
2) The revolver
Colt's patent completely killed all pistol innovation for the period of his patent. All improvements to his design were squashed. The revolver remained unchanged until the patent expired
If you care to look, history is very clear on this. Patents may cause a single spurt of innovation, but ALL innovation on a given invention ceases from the time the patent is given until the time it expires. This is an intentional side effect of patent law.