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FTC Issues Report Critical Of Patent Policy
hayek writes "The Federal Trade Commission issued a report yesterday regarding failings in current U.S. patent policy. Among other things, the FTC recommends that the burden of proof on parties challenging patents in court be lowered from the current 'clear and convincing' standard, to the easier 'preponderance of the evidence' standard. Even if you don't think the FTC recommendations go far enough, implementing them would be a good start to solving some of the problems caused by the current system." nolife points out a report at Law.com indicating that, under the current system, "Patent examiners have from 8 to 25 hours to read and understand each application, search for prior art, evaluate patentability, communicate with the applicant, work out necessary revisions, and reach and write up conclusions."
When Amazon can patent simple online sales methods, you know there's a problem with the process.
...oh, I'd say somewhere from ZERO to 25 hours to read a patent.
It's an oldie but a goodie.
First Post (TM). Patent pending... damn. I see evidence of prior art.
Luckily the government is doing something that isnt for corporate interests and Bush campaign donors. I wonder which public servant is going to be asked for a resignation tommorrow? "Only one thing is impossible for God: to find any sense in any copyright law on the planet . . . Whenever a copyright law is to be made or altered, then the idiots assemble." -- Mark Twain
The Slant
"Patent examiners have from 8 to 25 hours to read and understand each application, search for prior art, evaluate patentability, communicate with the applicant, work out necessary revisions, and reach and write up conclusions."
These are government workers people. You forget that they get coffee every 2 hours, a smoke break every hour, a pastry diversion every 3 hours, and spend 1 out of every 5 minutes keeping the perpetual-motion machine running.
Force a rather large deposit. If the patent is found to clearly be invalid, don't return the deposit for wasting the examiner's time. To keep this from hurting small inventors, make it only apply to organizations applying for more than 3 in a year.
Is there a reason why patent claims aren't posted on the www for public comment before they're approved? I can't think of any.
Now that Microsoft lost a patent lawsuit it's time to fix the system! Sorry to be so cynical, but it looks to me like the Eolas (sp?) case was a godsend.
Among other things, the FTC recommends that the burden of proof on parties challenging patents in court be lowered from the current 'clear and convincing' standard, to the easier 'preponderance of the evidence' standard.
Given the exceptional nature of patents--extending a government enforced monopoly on ideas and entire markets for decades--one should perhaps even demand that the person defending a patent should provide "clear and convincing evidence" that the patent is valid.
However, just changing the standard to "preponderance of the evidence" sounds like a good change and something that is long overdue.
I had a thought that USPTO should also accept proposal for patent-free ideas. In this, people should be allowed to submit idea that USPTO should certify that it is free of patent. If USPTO is competent enough to grant patent by saying, this hasn't been done before; they should be able to certify that this doesn't violate any patent. Once it is granted, people should feel free using this idea. In case someone wants to file a patent lawsuit on this patent-free idea, then the burden of proof should be on plaintiff. By default the idea should be considered patent free.
.gif, .jpg, eolas etc patents.
This would be a tremendous boost to standard organization. We no more will get surprise
The cost of such patent-free filing should be at par with patent filing.
So there's your patent-free idea database: publications of any sort. This ought to be obvious, because "obvious" is one of the synonyms of "patent"...
Time is Nature's way of keeping everything from happening at once... the bitch.
As helpful as this is, there are better changes that could be made that would further improve the system:
First, when the USPTO screws up in awarding the patent, the USPTO should cover the cost of fixing it. As it stands, if I have prior art for a patent, I have to pay them to fix what they screwed up. It should be modified so that overturning a patent is free. (Really, they should dock the commission of the person who signed the patent). They could request that you post a bond for the fees until they have decided (with it to remain in bond if you appeal). Furthermore, this process should be made as simple as possible, and not require legal assistance.
Second, the hobbyist exemption should be expanded and clarified with respect to Free software. While an outright exemption would lead to much rejoicing, a more realistic exemption would be for cases where 1: no money is accepted for the software and 2: the patent holder does not have a competing product on the market. This protects Free Software from submarine patenters who produce nothing but lawsuits, while still appeasing companies who feel threatened by open source by protecting them from direct competition.
If I have been able to see further than others, it is because I bought a pair of binoculars.
Not only are patents presumed valid when they are challenged in court, they are presumed valid even before granting, to the extent that the burden is on the patent officer to establish why it should not be granted. That is utterly ridiculous. When someone applies for a patent, they are making a blatant and sweeping claim against the whole human race; essentially, they are saying that no one else in the history of the earth has built something like it.
Strong statements like that should be backed up with extremely solid evidence. While it is not possible for an applicant to conclusively prove a negative, the burden of proof should still lie on the applicant's shoulders, forcing them to impress the patent examiners and convince them that there is a strong likelihood that they are the first one on earth to put the alleged invention together.
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There is inferior bacteria on the interior of your posterior.
"Patent examiners have from 8 to 25 hours to read and understand each application, search for prior art, evaluate patentability, communicate with the applicant, work out necessary revisions, and reach and write up conclusions."
I suggest that business method patents be eliminated by statute to reduce the workload on the patent examiners to improve the amount of time to devote to each patent application.
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Correction: The Obviousness (35 USC 103) requirement for patentability is to be judged by a hypothetical "person of **ordinary** skill in the art" In practice this means they are typical people working in the art to which the invention pertains.
Furthermore, I am not aware of a situation where someone's testimony in a patent case was challenged because he possesed more than ordinary skill in the art, but (IANAPL) I could be wrong.
"Most ideas will seem obvious when you hear them, but that is not the test that is used to decide whether a patent is granted or not."
There is a difference between sounding obvious after I only hear the the goal the item accomplishes, vs. sounding obvious after seeing all the details of the solution. If a simple phrase that describes the concept of the alleged invention is sufficient for a practitioner in the art to build a working implementation in a short time without seeing any of the details, then yes, it is bloody obvious and not worth of the high standard that patents should be (but aren't) held up to.
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There is inferior bacteria on the interior of your posterior.
As you guessed, examiners are measured by performance. Depending on their level and the field of art they examine in, each examiner has a certain number of "counts" they must make each week (actually, it is measured by biweeks).
Each application has two counts. The first count is granted for the first substantial "office action" on the merits of the case. As a side note, there are sometimes initial things that can/need to be done which do not get the first count as they are not the first action on the merits (such as a restriction of the claims - which is done when two or more inventions are being claimed in the same application). A second count is given when the application is disposed of. Disposal usually happens either by issue, abandonment, or by final rejection (usually this is when a previous office action rejecting at least one claim is repeated because the applicant did not overcome the first office action's rejections).
Note - if an examiner issues the case in the first action, he or she recieves 2 counts (for very little work). In over 4 years at the PTO, I never got to do this, though others did it fairly often.
Most examiners have a pretty stressful time. Their bosses can make life almost unbearable if they so choose. Imagine, searching a full day to get good prior art (when you know you need to do a count every 6 hours or so - so you're already behind), and another hour or two to write up the office action. Then after turning it in, your boss says he doesn't like the prior art and makes you do it over.
Then there are the jumbo cases - applications with 50, 60, even over 100 claims. For those who don't know, the protection a patent gives is defined by claims, which are legal descriptions of the invention. Each claim in a patent sets forth a differnt embodiment of the invention. Each claim must be dealt with in the office action (and rejections of different claims may involve different prior arts). Quite often, after writing up the office action in such a jumbo case, it comes back from the applicant and the examiner realizes one claim was not dealt with properly (happens, examiners are human). Guess what? Another office action, but no count as the office action cannot be made final - a freeby for the applicant.
And something which might not occur to those outside. When someone gets fired or quits, all their cases must be reassigned. If their cases were not properly done, then a freeby office action is required (they already got the first count) to fix the case.
The PTO has a lot of problems. For what it is worth, in my experience, most examiners took pride in their work and tried to do the best they could within the limits of the system and their boss.
The only thing for certain is that people reading and posting to slashdot generally lack the slightest clue on the inner workings of the US Patent System. I believe that Slashdot needs to have some sort of informational session teaching readers how the system works. Until then, posts regarding failure of the US Patent system should be halted.
Contrary to the parent, it's the opposite of "generally lack the slightest clue" that is certain. You only have to read the posts to see that posters come from a vast range. The range certainly includes at least a few lawyers and PTO examiners and their equivalents outside the USA, as well as folk with a wide range of business experiences of patents, and yes, many folk with none, too.
To me, this breadth of points-of-view seems like a wonderful plus in any discussion. One of the things that can come out of it is some balance, sorely needed in an area where opposite interests really should be balanced out together. The USPTO experts/examiners alone can't produce balance. Most of them really don't know what is done/misdone with the patents they issue.
Saying "posts regarding failure of the US Patent system should be halted" (until everyone has learned from the USPTO people about their part of the system, which will be never) is like saying we should stop trying to learn from mistakes. Sheesh!
One of the pluses, to me, of the FTC recommendations is that they look like a move in the right direction to reduce current imbalances.