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New Patent Legislation Makes Some Headway
dreamchaser writes "EETimes has an article discussing new legislation that will stop Congress from siphoning off money from the Patent Office. The hope is that increased money in the coffers will allow the hiring of more highly skilled engineers to look at technical patents, as well as speed up the sometimes ponderous process of securing a patent. The bill has passed the house with a resounding 379-28 vote, and now goes to the Senate. Given all the discussions about how so many bad patents are being granted, could this be a good thing?"
Smith, who chairs of the House Judiciary Committee's IP panel, said his bill, H.R. 1561, could result in 140,000 more patents being issued in the next five years. "That's 140,000 more economic opportunities for the American people," Smith said.
from the article
There have been many people in groups interested in limiting what types of "discoveries" for which inventors can obtain the exclusive right via the constitutional provision of a patent. Many who are concerned about the high cost of medicine would like to see limitations on the availability of patents for pharmaceuticals and methods of performing surgery. And of course, many of those who care about the future of free software (and I certainly do, basing my practice IT setup on Gentoo Linux), would like to see the availability of patents to software limited or eliminated.
What all of these people and interest groups fail to recognize is that the patent system was not set up or even envisioned to cover only a specific type of discovery. The founders could never have conceived of software, yet they in their wisdom left the constitutional authorization wide open to discoveries of all types. The very nature of a patent -- a legally sanctioned granting of exclusivity to one party -- naturally creates groups of people who opposed the existence of particular patents because that existence means that they might have to pay a lot of money or stop doing what they're doing.
A point that is widely missed in the hysterics about software patents is that, pursuant to 35 U.S.C. 102, an inventor, say at Microsoft, can't patent something unless it is novel. The inventor is blocked from apply for a patent if (among other things):
Open-source software, as the name implies, has its workings exposed and publicly accessible to all. There is a lot of prior art in widely publicized and searchable CVS repositories, IMHO, that can be used as "printed publications" against patents that are ever asserted against OSS projects. (The key is availability by interested members of the public with reasonably diligent research, not "printing" on some physical media.) And the more detailed and more "suggestive" your comments in that publicly accessible code, the better a weapon the code becomes against patents others might try to obtain for the concepts it employs!
Ed Suominen * Registered Patent AgentWeb Site: http://www.eepatents.com
+ Nothing above to be construed as legal advice
+ or the opinion of my firm or any client.
being a patent examiner is essentially an entry-level position. Patent examiners tend to be young law-school graduates with technical undergraduate degrees.
I agree with the statements, but the emphasis may be wrong. Patent Examiner may not be the final goal of someone's career, but it should not be entry level. Patents have too much effect to be controlled by people with no experience.
Patent examiners need to:
1. Check if prior art exists.
2. Decide if it is obvious.
3. Make certain the patent is specific enough to be applicable.
4. Make certain the patent is written in legalese so normal people will not know if they are violating it.
Lawyer types have the research ability needed for #1, but so do most information scientists (librarians). Good computer applications would help.
#2 seems to be skipped completely in the current process.
#3 is the responsibility of the applicant's IP lawyer. That is why applying for a patent without your own lawyer is usually a waste of money. The patent office could offer service to assist with this, but not until they have the resources to handle it.
#4 is the part the lawyers enjoy. When they are done editing a patent, even a see-saw can seem to be innovative. ("A manual device for vertical transportation using a lever to create equilibrium between the masses." IANAL. This is still too lucid for a patent.) That is the only part where legal training is essential.
Does the patent office have recognized experts to assist with #1 and #2? It should help the resume of an electronics engineer to have a few years of patent research. Maybe there should be an organization of (amateur) patent examiners. Anybody can assist, but pay only starts (and is a very small annual award) if the peers vote you to the level of "Master", either within the organization or by other professioanl organizations. Each year they award the rank to 30 people, 10 voted in by the community, 3 appointed by the IEEE-USA, others for the skills that are required for the current patent applications. (Add a rule that you cannot be active if you have a patent being processed.)
A public forum could help with this, especially #2, if the patent office had the time to read the responses, but it would have to be done very carefully. Post the issue the patent is claiming to solve. Then read the responses to see how many match the patent. They could even "sell themselves" by suggesting to contributors of unique solutions that they apply for a patent. The responses would also help limit the patent by specifying what is not being patentable.
I spend my life entertaining my brain.