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EFF, PubPat Each Seeking Some Patent Sanity
AbstracTus writes "According to Wired, The Electronic Frontier Foundation is trying to get the U.S. Patent and Trademark Office to re-examine 10 patents that were selected from public submissions. We slashdotters often curse patents that should have been rejected, but are not. Do you think that the EFF can have any influence on the U.S. Patent Office? Are there other actions that are more likely to work?" And sharkb8 writes "The Public Patent Foundation is searching for
people with experience in all technical fields to help examine patents. This is the perfect chance for attorneys, law students, and geeks in general to do some pro bono work. PubPat is the group that recently
challenged one of Microsoft's FAT patents."
The problems with the US patent office are two-fold: /.'ers want to see "reject" as the default position).
1. Patent examiners are EXTREMELY over-worked. My future brother-in-law is a patent examiner, and he's often told me of a draconian quota system that rewards being quick and sloppy.
2. The US government is pro-business (as it should be, IMHO). However, this translates into the default standing order at the USPTO being "accept", and not "reject" (whereas most
The USPTO recently underwent some changes (new computer system, IIRC) that should allow patent examiners to be a little bit more effective in the future. But it's obvious to me the USPTO has problems - and they are management issues, not really idiot patent examiners.
-Erwos
Plausible conjecture should not be misrepresented as proof positive.
Apart from the obvious reasons to patent things (others might get there first), there's no good reason not to. The fee to apply is very low, and there is no penalty for being denied or overturned. At the same time, the examiners (AFAIHH) get bonuses based on how many patents they pass. The way to go currently, especially if you're a big company, is to try patenting everything you can, you might not get all, but the drop-out doesn't hurt you.
One way to change this would be to institute some penalty for filing dodgy patents. Both for the examiner who passed it and for whoever got it. A fine at least and repayment of any license fees garnered on the patent. Covering of expenses for the challenger, perhaps? A system of extra checking of patents from companies/persons that have had patents overturned previously? Repeat offenders? Three strikes and you're out? The possibilities are endless, but frivolous patenting should be as serious an offense as infringing on a patent.
-Lars
As dumb as the swinging-sideways patent may be, it hasn't actually caused any real harm, other than to undermine the credibility of the patent office. If people on swings were getting C&D notices, then maybe it would have been more appropriate for inclusion in this project.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
As an ex-Examiner and law student, I have some observations on this.
First, Congress and the PTO are somewhat isolated. The way Congress and divisions of the government make law, as a topic, is called administrative law. This works by Congress making general federal statutes (Title 15 in the case of patents) and the right to make regulations to implement the goals of the federal statues fall to the governmental division concerned (with patents, the USPTO).
So, to influence patent policy, the first level is to influence the USPTO Commissioner. He could likely get the regulations governing how patents are actually examined, as well as the infrastructure withing the PTO, changed to improve the system. Most new Commissioners make changes anyway. As the Commissioner is appointed by the President, he ultimately has a lot of control as well. I'm not sure, but I expect that the Senate has to approve any appointment to the USPTO Commissioner, so in that instance, so contacting the President and your Senators at appropriate times may be influential, but this only occurs every so many years.
The higher level is to influence Congress to pass a bill to amend Title 35 (that part of federal statutes which deals with patents). Here you are up against all the big corporations who benefit from the present situation (IBM, MS, etc.). Still, lobbying is a tool and keeping up pressure effectively (i.e. not calling your representative every week, but applying pressure in lobbying-savvy ways, as by the guidance of an experienced Washingtonian lobbyist).
I would think that setting out goals for change, then adequately supporting them with evidence would be a good tool. Remember that the Constitution states that Congress is to "promote" science and the useful arts. The idea is to prove that some aspect of the current policy does not promote the development of technology, but retards it in some way, then Congress might be open to changing the statutes. I believe this happened with the so-called "submarine patents" - the patent applications that were in the PTO for decades and would get issued allowing the inventor to sue users of mature industries and, basically, extort vast amounts of money. (If this topic intrests you, search for the name Lemelson" - he built a multimillion dollar industry off of this tactic). As I recall, though, Congress modified the patent statutes to discourage submarine patents during the phase to harmonize US patent law with European practice, so the retarding nature of submarine patents may not have been such a big motivation for change.
If you really want to change patent law, the more effective way is as follows. Get elected President with a Congress stacked in your favor. Then do the following:
1) Pressure Congress to amend the Patent Act according to your tastes.
2) Use your treaty making ability to enter into treaties as a run around of Congress for any changes thet don't get implemented. This requires Senate approval but avoids the House.
3) Appoint a PTO Commissioner who will implement your changes in a way you like.
So, will the EFF be effective? What else can be done? Doing something (being heard) is better than not doing anything. Can the average /.er do something as well? Of course. The best thing might be to follow patent issues and contact the appropriate party (President, Congress, PTO Commissioner) at the appropriate time (just before action is taken). It would be nice if there was a companion website to /. that would encourage action on issues of importance to /.ers. I.e. allow postings of example letters, addresses for contacting, discussion of the issues. Sometimes this is done in /. itself - people sometimes post example letters or addresses of the concerned politicians. Maybe we can encourage a new