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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 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.
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.
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.
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.