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FTC to Examine Patent Application Process
Armchair Dissident writes "The BBC is running an article that suggests that the FTC is to look into the way that patents are reviewed and issued. If this article is correct it seems that many guesses as to how patents are issued were correct; with 95% of patent applications being approved. They may also address the issue of "patent trolls"."
And did anyone else read the last part as "parent" troll instead of "patent" troll? Or is that just me?
Hmmm.
From the article:
"But we have seen instances where companies use that monopoly in an anti-competitive way"
Doesn't a monopoly imply a lack of competition? This would seem to go without saying.
Unknown host pong.
Any chance this could render some of the more idiotic patents worthless.
Case in point
Microsoft and their double click of death
and
The guy who patented swinging in a swing?
ITS ABOUT TIME THIS WAS REVIEWED
***I GOT NUTHIN***
How about a Slashdot-style modding system on patents? Could we prevent gaming the system?
"A great democracy must be progressive or it will soon cease to be a great democracy." --Theodore Roosevelt
No, more likely they are looking at covering their own asses in future. The patenting system at the moment is a real threat to companies, particularly smaller ones trying to make a buck. When MS get bitch slapped in court for 500 million over a stupid patent (its under appeal or review I think) you can bet that grabbed a lot of CEO interest adn instilled a desire to 'improve' the system.
Do not try to read the dupe, thats impossible. Instead, only try to realize the truth
What truth?
There is no dupe
"the Patent Office ultimately greenlights over 95% of all original applications to issue as a patent.
This compares with 65% in Europe or Japan."
With statistics like that it's obvious that there is something wrong, just wonder why they've left it so long to fix it...
Unless something is done, there will come a time when multi-nationals own everything. Has someone already patented the concept of pointing to a location in code? The act of typing an alpha-numeric character into a web based form? The idea of physically depressing an electro-mechanical mechanism to effect change of state in a physical or electronic system? The act of inhaling air and making an energy exchange with human blood? This is just silly. It has to stop.
"Who are in control, they are not in control of anything - they don't even control themselves!" - Glen Beck
The problem is that the USPTO cannot thoroughly review all applications. Thus too many fall through the cracks.
Belgium has solved this problem. They issue patents as easily as we can register copyrights. Got a dispute? Take it to the courts.
I like that system. Take the power out of the examiners hands altogether and let courts decide these issues. Yes I know courts already decide issues, but with the way courts invalidate patents, what is the point of the USPTO?
Sure someone will say that might favor big companies as they can afford patent litigation, but we know that getting rid of IP legal protection is not going to work.
We are not going to simply eliminate the patent process (although you can, by Congressional action, or by amending the Constitution). Any of you geeks who think this will happen are in fantasy-land. We simply need to take power out of the hands of the USPTO.
Another good effect of this would be that all those patent prosecution attorneys (aka patent scribes) would lose their jobs, quit the practice of law (since they only went to make more money than an engineer), and flood the engineering/ computer programming market. All the while the demand for patent litigators (more of a REAL lawyer than a patent scribe) would skyrocket.
That would at least stop the outsourcing of patent prosecution to India...
The National Academy of Sciences is calling for more funding for the patent office where 3,000 examiners handle 350,000 applications a year with an average of 17 to 25 hours to check on the validity of a patent application.
Businesses claim a lack of due diligence at this stage often results in patents being granted that should not see the light of day.
There you have it, the entire problem in a nutshell. Too much work, and not enough people.
And I have a solution.
Public review for patents. Open source meets patent reform.
Here's how the new system might work. Someone applies for a patent, and it gets posted to a website for public review.
That gives the public the ability to search for prior art. If prior art is found, even after the patent is granted...zap. The patent is invalid. And if the prior art is more than...say 5 years old, the idea is now public domain and no longer patentable.
Also, widen the definition of prior art. Best example of that I can think of off the top of my head is Intel patenting a method to detect overclockers. Measure the cpu clock versus an internal clock. Compare. If they differ by more than a small percentage, shut down. In other words, they managed to patent a binary counter. Bogus. Simply using an established widget in a new way shouldn't be patentable. No more Bezos "with a computer" patents.
And no patent should be granted for more than 5 years or so. This is important, otherwise we could wind up in a technological backwater. Small countries (with no extradition treaties with the US) would be the next Silicon Valley. You think you're being outsourced now? Just wait until you can't program at all in the US due to fear of litigation.
I think that it should be possible to have an idea, patent it, and make your million. But not at the expense of the entire tech sector.
Now if you'll excuse me, I'm off to go double click something. ;^)
Weaselmancer
Weaselmancer
rediculous.
because a great deal of work needs to be done in reviewing the market to ensure that a potential patent has not already been patented or is in use already, people seeking patents often perform a great deal of their own research to save themselves in legal fees.
if, in the process of preparing the background for a patent application, you find that there IS previous work, what percentage do you think actually file the application?
My guess is around 5%....
Robo-Blogs of the world: UNITE!
for the last time people, I am "frodo from middle eaRTH", not "middle eaST".
That actually does happen fairly often, but the larger company can easily afford the missteps while the harassment of the smaller company may make it go out of buisness. They STILL have to be dragged through the courts and they may go bankrupt before the trial is even over.
Contrary to popular belief, coding is not all free blow-jobs and beer. Those things cost MONEY!
Why are you surprised MS would be there?
They just got boned by that Eolas thing where loading a plugin in a browser was patented.
The only time I've ever head of them using their patents is over the use of FAT in compact flash devices, which seems to me to be a patent describing a specific behaviour of a specific type of filesystem, rather than the vague transparent plugin thing.
This isn't even about changing patent law, just the application and granting process, which I believe the FTC has direct control over. That is, they can give the order "no more rubber stamping" or "take these steps to search for prior art", etc. No new laws are needed to at least improve the current situation.
I don't need no instructions to know how to rock!!!!
Tell them that the system needs to be fixed, not thrown out. Mine is Goodlatte (R-VA, 6th) and my suggestion to him is to use funds from the axed TSA to hire qualified laid off IT workers to act as screeners since they, unlike typical patent screeners, worked in the industry.
The push should be to limit software patents to 2-3 years so that we don't sound like anti-business commies. Follow it up with hiring good patent examiners and you're suggesting a good solution that moderate congressmen can safely support.
Click here or a puppy gets stomped!
Does the patent process currently have a public comment phase? That is, are patent applications publicly available, and do (or should) assessors take those comments into account?
"The evil of the world is made possible by nothing but the sanction you give it." -- Ayn Rand
Here's a comment I posted earlier today where I mention the patent reexamination process and suggest a modification. I'll re-print a summary of the data here
It is currently possible to request that a patent be reviewed by the USPTO. This does not require a lawsuit (or technically even a lawyer, though there is a need for a properly-formatted request).
There are two types of re-examination. They differ in several respects. One, inter partes, allows you to basically provide rebuttals to the filer's explanations, and the other ex parte, does not.
My thanks to Thalia for locating the associated fees on the USPTO website: inter partes costs $8800 and ex parte $2500. Both of these costs do not include legal fees, which Thalia estimated (for inter partes) at about $12,000.
The problem is that getting a patent runs about $1,000 (again, not including any legal fees). This tends to slant things towards people acquiring patents, as it is still more expensive to get a patent revoked.
The modification that I'd like to see made would involve *patent owners* having to pay ex parte or inter partes fees if it is determined that their patent was improperly approved. This means that groups like the EFF (and, with some work to make the process particularly easy, perhaps anyone) can initate re-examination requests while supplying prior art examples.
Such a change would encourage patent filers to ensure that their patents really are legitimate when filing (reducing the number of bogus patents), and would not financially penalize someone who knows of prior art and wants to fix the USPTO database (if anything, I'd like to see someone who successfully brings up an example of prior art and gets a patent revoked *paid* a small fee by the patent filer for their time).
This change would involve minimal changes to the system, and not much cost. There might be the issue of collecting from the patent owner, who might be unwilling to pay. I think that an eight-thousand dollar deposit per patent would probably be too weighty, so I'm not sure how to approach that detail yet. However, even if the USPTO needs additional funding to help cover costs of employees needing to review patents where the USPTO cannot collect from the patent filer, I think that we woudl be better off (furthermore, that individual could be barred from being issued future patents until they have paid off their existing dues).
Problem: this change would *have* to grandfather old patents, as companies and individuals would otherwise be liable for masses of money for bogus patents. Irritating as it is that those people were able to get away with such behavior, the system permitted bogus patents, and charging them fees for said patents now is not reasonable (nor would it be acceptable to many people).
I think that this is the only feasible approach to the problem. Trying to ensure that the USPTO never grants invalid patents would require that they maintain a huge staff of PhDs that are up on the bleeding edge in every area of research (and honestly, woudl be better off doing research instead of reviewing patents).
Thoughts?
May we never see th
Opening up the opportunity to submit prior art more easily might be a good idea. There may be problems with that approach, but I'm not sure what they would be right now.
As for your other suggestions, for the most part, they are already the law. Simply using an established widget in a new way is not patentable, unless it's novel and nonobvious.
Do you know that almost every single patent application is rejected the first time? Most of them are rejected a number of times. Then the applicants attempt to distinguish their inventions from the prior art found, or draft their claims more narrowly, in order to get the patent issued. So there aren't that many cases where no prior art is found...
At any rate, I thought you guys would be interested in what the Patent Commissioner had to say at a talk he gave last week for the DC Bar.
He mentioned quite a few things, but most interesting was that since, I think it was April this year, ALL applications coming into the PTO are immediately scanned, and everything is done electronically from then on. New papers to go into the file are also scanned when they come in and added to the database. There is one office left that's being phased out of the paper files, but they're apparently on schedule.
There was an incredible amount if inefficiency when these files were being passed around between different buildings to different examiners, and someone had to find the file to insert new correspondence.
They are also working on improving access to most of the file over the web, and developing a new system for electronic filing. (They have one now that apparently is horrible -- I don't know much about it other than that everyone hates it and it's not helpful.)
The other main issue he discussed was the fee bill pending before the Senate. It was passed by the House, and will likely be passed in the Senate now. This will end fee diversion from PTO revenues to other government programs, a major step in the right direction for them. It's been a long haul getting this bill through, since it's obviously not high on the agenda vis-a-vis terrorism, but they seem to have succeeded. This bill contains a compromise requiring any unused fees to be rebated to applicants rather than spent by the PTO, but they don't expect to leave anything around to rebate if they can help it.
I think these changes, and others, are really going in the right direction. The problem, as with all things in the government, is that it's very slow. I'm definitely encouraged by the way things are going though.
straightened out! EFF = Electronic Freedom Foundation and Pubpat = the Public Patent Foundation. They are just getting started at working toward getting this patent mess brought under closer scrutiny. Somebody has to do it.
"Do the Right Thing. It will gratify some people and astound the rest." - Mark Twain
"Do the Right Thing. It will gratify some people and astound the rest." - Mark Twain
Perhaps if we treated our businesses and laws more like an engineering problem, then we wouldn't have so many people left out and willing to become terrorists.
SJW: a person who perceives an injustice, and while correcting it, commits a greater injustice.
Which is one of many reasons why the best answer would be the removal of the patent system. Or at least the removal of all amendments to it made since around 1860.
The modifications made to the patent system to adjust it to assembly line production were totally wrong-headed, and additions made on top of that have merely made things worse.
I think we've pushed this "anyone can grow up to be president" thing too far.
And making the patent too general means that the language is ambiguous and meangingless, leading to conflicting understanding and more money for lawyers. For software usually, despite what the patent office likes to say, there is no happy medium, leading to all the problems patents currently cause.
---
It's wrong that an intellectual property creator should not be rewarded for their work.
It's equally wrong that an IP creator should be rewarded too many times for the one piece of work, for exactly the same reasons.
Reform IP law and stop the M$/RIAA abuse.
Tim
Anyway, you're exactly correct. The patent system is being abused by large corporations (not all) to stifle innovation. It's telling that Microsoft argues that it needs to be able to innovate, but in reality they really mean that they want to control all innovation. Entirely contradictory to a 'free market'.
You are being MICROattacked, from various angles, in a SOFT manner.
A friend of mine tried to start an IT union here in town. It was like herding cats. Problem with unions is that they don't work when there are broad ranges of people that all fall under the same umbrella. IT is a very large label.
/. and I'm sure you're aware of the kind of love fest this place is.
Under the banner of IT you have, hardware techs, IT managers, Database administrators, Windows Administrators, Unix administrators, Web designers, 20 kinds of programmers that are currently marketable, 10 kinds of programmers that aren't, and anyone else who considers themselves to be "knowledge worker." To borrow a term from Gates.
And the best part... each one of them has their own cyber religion that conflicts with the next. It's never a good idea to get that many kinds of IT people in a room, let alone working together for their common interests.
Might cause the Universe to implode.
The closest thing we have to a general techies union is
This signature has Super Cow Powers
The first point is not very easy to tackle, a lot of costs are put in the 'discovery' of every lawsuit. A US (patent attorney) colleague of mine said that that will not go away in the near future.
By means of example: a patent lawsuit in the Netherlands will cost you kEUR 20-50. At most. Germany, where you may have a little more quality, think about a factor 2-4 higher.
The second point should be easy to implement. Just copy the European Patent Convention, German Patent Law, Japanese patent law (based on the German patent law) or something alike. This system means you can kill the patent after granting with prior art. In an inter partes proceeding, which means you, as a person, will be a pary in the proceedings.