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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"."
Are you telling me Microsoft didn't really invent the double click?
Did they patent the first post?
It's good to know the biggest corps best businessmen are going to decide on the next generation of patent law.
Here's an editorial discussing and explaining exactly the patent issuing problem in US.
Can it be that somebody at the FTC actually reads slashdot?
"Outlook Positive"!]
Online Starcraft RPG? At
Dietary fiber is like asynchronous IO-- Non-blocking!
We're working towards a solution...Suprised that MS is on the list of supporters....
But note the end, which states -
"The last major changes to patent law were in 1952 and there is no legislation before Congress which means that ideas like a patented method for picking up a box by bending your knees may well continue for some time. "
So let's not hold our breath, eh?
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And did anyone else read the last part as "parent" troll instead of "patent" troll? Or is that just me?
Hmmm.
I just took out a patent on running articles that suggest that the FTC is looking into the ways that patents are reviewed and issued.
1. Make a Patent.
2. Enforce the Patent.
3. Profit!!
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In other words, patents owned by anyone you don't like, or agree with. That is what troll means around here, isn't it?
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Inventor of the term 'pardon my French'.
..they'll have people that are 'experts' in given fields. Somebody who knows the difference between a PDA and a general computing device with limited resources. Heh.
... slashdot, check...
... patent office, check...
... FCC, check...
... TV? Well, we have foxnews and soon-to-be AlGores Democratic-fest channel.... check
So... who's left to troll?
Good quote, too many chars. Seriously, the slashdot 120 char limit sucks!
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.
I don't understand why the US legal system doesn't adopt one of our better ideas here in the UK: Make these "patent trolls" and other leeches pay the defendant's legal fees if they lose their cases in
court instead of slithering off to drag someone else in front of a Judge. This would kill an industry built around threatening people
with huge fees stone dead.
It would no longer matter if "Shithead inc."
with their newly acquired patent on "sitting the right way around on a toilet" threatened a shelter for blind puppies with legal action, since Fido and pals could count on a less than gallant army of equally unscrupulous lawfims would work on no-win no-fee no-payout basis to defend them.
Mom and Pop stump-jumper could simply ignore the SCO's of the World and go about their business as the legal vultures and patent maggots preyed upon each-other.
Why the hell should any company (even Microsoft) have to pay out to defend themselves against these parasites?
Code, Hardware, stuff like that.
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
Well.. logically the next patent in line is the Ctrl-Alt-Del one. It was probably used more than their double-click.
Hmmm.
At least until the lobby gets built to make EVERYTHING patentable.
SJW: a person who perceives an injustice, and while correcting it, commits a greater injustice.
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...
funny responses all used up (darn) so here's the informative one...
"patent troll (PAT.unt trohl) n. A company that purchases a patent, often from a bankrupt firm, and then sues another company by claiming that one of its products infringes on the purchased patent.. --adj."
Via The Word Spy http://www.wordspy.com/words/patenttroll.asp
It Is the Nature of Information to Transgress Artificial Boundaries
If trolls are a problem with the patent office, the solution seems simple: start giving citizens patent moderator points.
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!
The notion that pointless patents are somehow new is simply false. It would be nice if we could screen these out better so that examiners weren't wasting valuable time doing work on swingset process applications when they should be working on important business patents.
It's nice to see some optimism that expanding the examiner force should alleviate some of the problem.
And here's a suggestion for eliminating trolls:
Currently a large percentage of patents that go to trial (I remember reading 40-50%) are declared invalid. Why not, in those cases where a patent is declared invalid, require that the plaintiff cover legal fees of the defendant? If that were the case you had really better be sure that your patent was valid. Kind of a specialized "loser pays."
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!
guess what, after 18 months patents applications are published and are used as prior art.
See the american inventors protection act of 1999
As long as we're allowed to patent business practices and most patents are granted without proper examination, there's a neat way to eliminate the problem: simply patent the business practice of patenting something that doesn't deserve one then suing everybody that's already using your idea.
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Thank you AC! Didn't know such a thing existed.
But after a quick read, I found this:
All utility patent applications filed in the United States Patent and Trademark Office after November 29, 2000 will be published if an applicant does not expressly request on filing that the application not be published. An applicant may make a request for non-publication if (1) the applicant has not filed the application in any other country that publishes applications; and, (2) the applicant does not intend to file the application in any country that publishes applications.
So, it's a little bit better, but not by a whole lot. You can still hide your applications, and it doesn't take into account things already "in the system."
I still say that serious reform needs to take place. But it's nice to know that the law already sees it, AC.
Weaselmancer
Weaselmancer
rediculous.
Hi,
> with an average of 17 to 25 hours to check on the validity of a patent application
Wow, this seems off. They have 2-3 business days per patent? With that, there wouldn't be a problem-- anyone who has done a research project knows you can become a mini-expert on anything in 2 days.
But 3000 workers, 360,000 patents/year, that's 116 patents/year per person... at 24 wks/year 5 working days/wk (note the 2 weeks off for vacation), that's about 1 patent a day.
1/day is a lot different than 3 days per. Plus they likely have meetings, interruptions, etc. Worse, that's an average.
Still, 1 day to a) check patent database for priors, b) google, c) encyclopedia, d) quick call to Encyclopedia Brown or the Baker Street Irregulars or Buckaroo Banzai, then write it up and *poof*
It should work. I suspect the numbers given aren't the full picture, as one patent/day is something a trained person should be able to do a better job.
I think the patent office culture (when it doubt, pass it and let the courts decide) is at fault. And funding won't help that.
A.
Is that where someone faxes the goatse ascii art to the patent office???
Wh47 d1d j00 541, 31337 15n't t3h r0xor5 ne m0r3???
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
Excellent! Out of curiosity, who pays for the 15 years of concept-to-market research required to create new medicines? Because without that short-term monopoly on manufacturing new creations, no company will be stupid enough to invest hundreds of millions of dollars on a cure for cancer when their competitors will be able to make it themselves the day after it's announced.
Of course, medical technology has been stagnant for decades, and noone still makes new drugs - we already have all of the medicines we're destined to ever have.
Great idea, haplo21112. Let's take the profit motive out of invention once and for all!
Dewey, what part of this looks like authorities should be involved?
"Then sleaze-co starts using my invention, I try to sue."
You have to patent something *before it's disclosed to other people*. That's the point. It gives you protection. The way the patent system is *supposed* to work you're also supposed to provide evidence that you've developed said invention, notebooks, diagrams with dates, times etc.
In this case, you patent invention, Sleaze-Co steals it, you sue and win because you have the patent and Sleaze Co pays your legal bill as well as the damages.
Deleted
Old news too.
FTC already looked into this.
FTC spent months last year looking at patents and innovation.
Their final report came out in Oct 2003.
FTC will probably make recomendations to congress which may or may not make changes to law.
If you read some of the reports, you will notice that the recomendations are not anti-patent as a whole but most are merely concerned with patent quality.
Old news, misquoted into another typical slashdot misleading headline.
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
You are correct. Most US patents get an initial rejection - a list of prior patents with similar-sounding words in the titles. Then your high-priced patent attorney answers each objection with why your patent is bigger, faster and cleaner. Then it gets accepted. The PTO makes no search of the literature in the field, trade magazines, or current practice, only prior patents.
How could this be fixed? Only hire experts in the field as examiners? Search google for each patent and trust the information that you get off the internet? Keep a big pile of old Scientific Americans, and Popular Science lying around at the PTO?
It's really nowhere near enough time. Patents are extremely complex, and are often written in a somewhat obfuscated manner to the degree that that's possible.
Plus, of course, the examiner has to be qualified in the field the patent is being applied for; you don't put civil engineer examiners in charge of applications for biotechnology inventions. So there are likely some even more overburdened examiners, since the load cannot be evenly distributed.
You also don't realize that this isn't a matter of looking at one patent all day. Examiners also have to hold meetings to discuss any remediable defects with the applicant, read through revisions of the application, etc. So it's less than you'd think; prosecution of a patent takes on average 18 months to 3 years, IIRC, in part because there is a back and forth with the applicant. It's hard to know an invention thoroughly that you've only looked at for a few hours over a couple years.
AND you cannot blame the PTO for allowing some of the patents we've seen in recent years. They're obligated by law to grant patents unless there's a good reason not to. And worse yet, once granted, it's actually really hard to find inventions unpatentable.
What's needed is more money for the PTO so they can hire more examiners, increased publication requirements, permanent best mode disclosures by damn near everyone, and reduced burdens for challenges to patents (such as using the preponderance of the evidence standard, and being able to reexamine PTO prior art).
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Of course, you could make the process less costly - just eliminate the FDA and liability law. Who cares about the next thalidomide, as long as it's cheap?
synergistic mixtures of drugs
If you thought clearing one drug through the FDA was difficult and costly, try clearing a mixture. Even if it passes that phase, then you still get nailed in the courts if you've accidently whipped up Fen-Phen 2.
I can't think of any industry in the world with an entry barrier as high as in pharmaceuticals, and it's not all due to greedy "capitalist fascists". Some things are inherently expensive. If you remove the profit motive from them, people will stop doing them.
I for one like modern medicine, and I want it to continue to improve. If you don't, more power to ya.
Dewey, what part of this looks like authorities should be involved?
That's related to the 'loser pays' ideas floating around. The problem is that patents are intended to protect small individual inventors, as the big companies are already able to defend themselves. Loser pays systems tend to discourage small inventors.
.. with whatever legal word means "an earlier claim takes precedence."
The solution is really simple:
1. Make it easier to get patents. Right now, patents are reviewed and issued as if the US PTO was the final arbiter of all truth in the universe. This is of course absurd. A patent should be nothing more than a claim that an idea was developed at a certain date.
2. Make it easier to cancel patents. Patent office arbitration and the legal system are fine for determining the legitimacy of a claim.
If a patent is invalidated by an earlier claim, then the patent is stamped
When a patent expires, it's stamped "public property."
All patents (current and expired) are held forever in an absurdly large database that helps inventors and investigators determine the value of future patents.
Patent officers would no longer be pressed for time; they'd simply comb through the database looking for bad patents, and through their favorite field of study looking for ideas that should not be patentable.
Not that this wasn't entirely predictable.
.... IT union = zero political power. Always voting for a democrat or republican = zero political power.
No political power = zero economic power.
Zero economic power = modern technofeudalistic serfdom for the producers,and getting worse daily.
I am constantly amazed how so many really *quite smart* people haven't bingoed to this yet.
Did anyone notice this little sidebar?
Did anyone notice that it was never clarified, not even in the article?
Patents have nothing to do with keeping anything secret. That's what Trade Secrets are for. What patents are about is the exact opposite of keeping innovations secret. They are about publishing innovation so that the whole world (or at least country) may benefit. Patents are an insentive to publish the details of newly developed technology. In exchange you get a temporary exclusive rights to the technology that you developed.
This is basic information for anyone that knows anything about Intelectual Property laws. However, it seems that a few people at the BBC either don't have a clear grasp of this, or maybe forgot to clarify this. Consider that the BBC is a lot more thorough than most of the mainstream media here in the states, and how few Americans are likely to pay attention to our own mainstream let alone foreign media like the BBC. It's no wonder that most people are clueless as to how out of control things are getting with to abuses in Intelectual Property Law, and therefore, why so many people are getting away with it.
Heck, a lot of people doing the abusing don't even realize that what they are doing is an abuse of the system, or at least they act like it.
Howdy Doodly Doo!
Anybody want some Toast?
Actually, a big shakeup in pharmaceutical patents might be a good idea.
It's clear to me that the current system is not working well. It has many gross inefficiencies. Very few truly new treatments are being created. The ability of simple chemicals to fix things in a complex mechanism like the human body is vastly overrated, causing much pain and waste (do you fix most problems in your car with a pill in the gas tank?). Modern pharmaceutical companies sometimes bear more than a passing resemblance to the money making quacks of previous centuries, including scientific pseudo-babble to justify their existance.
Look at AIDS. For some strange reason the big pharmaceutical companies have come up with dozens of treatments for AIDS. You know, where the patient is a revenue stream for the company for the rest of their lives, but no one-shot cures for AIDS have been created.
Another example is short sightedness. It's been known for years that myopia is caused almost entirely by too much reading and near vision during childhood development (The Inuit went from close to 0% myopia to the 30% of the wider population in one generation, the generation that reading was introduced) but do you see the vision industry pushing prevention? Not on your life!
I don't attribute this to maliciousness. Mostly it is (no pun intended) tunnel vision; companies/industries so highly optimised to make money that they lose sight of more important social issues. Changing the law to encourage more entrepreneurship and niches for more inefficient, socially oriented companies may be just what is needed.
---
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.
Is it an indicator of system problems when a British government-sponsored news organization is providing good coverage of American federal trade overseers examining an IP service organization?
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.