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Patent Examiners Flee USPTO
john-da-luthrun writes "Soaring numbers of patent applications for software and business processes is not only leading to the ludicrous patents for the likes of Amazon and Microsoft. The stress of dealing with vast numbers of applications is leading to an exodus of patent examiners from the USPTO, reports FCW.com. A US Government Accountability Office report (PDF) says that the USPTO has made progress in hiring examiners, 'but challenges to retention remain'. The IP Kat blog quotes Jason Schulz of the EFF, who comments that 'The incredible surge of patent applications, especially in the software and internet business method arena, is just crushing them, and the management problems are rising to the surface with greater visibility for those reasons. Where anything under the sun is patentable, it puts an unbelievable amount of pressure on the patent office'."
Sorry, Amazon already patented all those ideas. Except for "Naked Fridays", which was nabbed by Microsoft.
Examiners are on a quota system.
Yes...I am a rocket scientist.
I've been dying for someone to "hack" the patent system and using different words patent the same idea twice (or have two people approved for the same idea).
That exact thing happened with the LZW algorithm used in GIF files. Both Unisys and IBM ended up with patents, but only Unisys tried to enforce them.
Javascript + Nintendo DSi = DSiCade
I am a past examiner and I can tell you that every examiner has production quotas. Their bosses (called supervisory patent examiners) get bonuses if all their people do over set amounts (e.g. up to 110% of quota), so some bosses really ratchet up the pressure. The guy that hired me even made me orally agree to do 110% of quota before hiring me.
Additionally, though, the bosses get alot of power. In training we were told to do things one way, but if our bosses wanted the opposite, we were to do that instead. Some bosses are great, to the point that people even have second jobs (maybe not now, but some did when I was there) and goof off at the USPTO, getting their quotas on one or two days work. Other bosses are from hell and get very personal on people, refusing to sign off on their work and requiring them to redo things time and again. There is NO way to meet quota when your boss refuses to sign off on your work, at least until you reach primary examiner status. People in such situations generally had no recourse, especially as the bosses could prevent transfer requests, so the people were forced to leave or be fired. And upper management had a "hands off" policy so no help there.
I literally know of dozens of good examiners who were forced out by recalcitrant bosses, including several primaries.
On the other hand, if you have a good boss and get into a schedule where you can get your work done in less than 40 hours a week, the USPTO can be very difficult to leave.
It is very obvious that the USPTO management doesn't care about examiner attrition. If they did, they would have figured out safeguards against it long ago. But why should they? After all, there are always people wanting jobs there, if not birth Americans, then all the Vietnamese, Indians, and Ethiopians who have gotten their citizenships. And it's not like the companies are going to go away - no matter how long it takes to get a patent, there is only one source for patents. And congress can't do much - the USPTO is self-funded, congress can't force the USPTO to improve beyond what they are doing without more money, and congress isn't about to supply that. So I think the system is stuck without some enlightened new management.
It should probably be pointed out the law degree program has been reinstated (as of this year, I think, or maybe 2006).
Check your facts.
Those who want corruption want stupid patents so they can scare others away from working in their area of technology. They don't care if they sometimes lose a few court cases due to stupidly weak patents. In general, taking something to court is so expensive that the corrupters win just because of the threat.
A major way those who want corruption destroy government effectiveness is by starving the agencies of operating funds. That's what happened to the patent office. The corrupters won't allow hiring of enough people to do the job well.
For a discussion of starving the SEC (U.S. Securities and Exchange Commission, regulates the stock exchange), see this article: Keeping the SEC on a Starvation Diet. The corrupters don't want their stock manipulations discovered. They want more of this: Enron fraud, this: WorldCom fraud and this: Tyco fraud.
They are corrupting the IRS (U.S. Internal Revenue Service, collects taxes), too. The corrupters definitely do NOT want their tax returns to be audited, so they arrange that there is not enough money for audits: Bush Request for IRS Not Enough, Report Says
They are corrupting the courts. Those who want corruption spend huge amounts to get lazy judges elected, and work for the defeat of judges who do a good job.
Another major way that corruption of the courts is accomplished by not giving the courts enough money to operate. A 2003-06-24 op-ed article by Charles Williamson, then president of the Oregon State Bar, in The Oregonian, the Northwest's largest newspaper, said, "The crippling loss of nearly one-third of their staff have left our courts unable to hear criminal cases such as car theft, shoplifting, prostitution, fraud and identity theft."
The Bush administration has been appointing heads of government agencies who reduce the role of those agencies. After they destroy the effectiveness of the agencies, they go back to running their businesses, and the corruption gives them more profit.
The book Other People's Money discusses corporate corruption. It's excellent. Secrets and Lies: Operation "Iraqi Freedom" and After: A Prelude to the Fall of U.S. Power in the Middle East?, by Dilip Hiro is an excellent book about the corruption that led to the most recent U.S.-Iraq war.
The corruption is extremely widespread. The books mentioned above and the 3 movies and 34 books reviewed in this article are not enough to tell the story: Unprecedented Corruption: A guide to conflict of interest in the U.S. government.
In general, most Americans don't want to know how corrupt their government has become. Most don't read books. The TV news they watch is heavily influenced by the corrupters. For example, GE, one of the largest sellers of weapons, owns NBC, one of the major ways Americans get their news.
Einstein didn't work on the Manhattan project.
However, the OP's suggesting Hans Bethe, Richard Feynman, Enrico Fermi, etc., etc., were not among the best physicists in America is pretty stupid.
Practically anyone of equal or greater talent in America who wasn't working on the Manhattan project was working on radar projects for the U.S. government.
The Manhattan project was an instance of the U.S. goverment getting the smartest people they could, writing them a blank check, and staying the hell out of their way.
That's unfortunately an oversimplification.
Basically the European Patent Convention (EPC) forbids patenting business methods and "software as such". You can't patent a an algorithm. You can patent a computer running the algorithm. (Functionally equivalent). You can't patent a business method, but you can patent a computer network implementing the business method. (So competitors must do business "by hand").
The exact interpretations differ among the member states, which is why we need a harmonizing anti-swpat directive. It's difficult though, what with governments ignoring their parliaments and all. More here
Any sufficiently advanced libertarian utopia is indistinguishable from government.
Why should a patent holder give up his monopoly to the highest bidder? If merck is willing to pay $50M for the patent the new chemical compound I have discovered, but I could license it for $20M a pop to 5 drug manufacturers, you have just taken $50M of my potential money away and given Merck the monopoly. On top of that, if I licensed it to 5 manufacturers which maximized my profit, it would force them to compete which would mean lower prices. Your plan would cost ME money and society as a whole. Sorry. Don't like it.
The problem with my scenerio is that most patent holders are either large corporations that intend to exploit the patents themselves, or are simply going to sell exclusive rights to someone for an upfront lump sum and a percentage of the take. Not all by any stretch of the imagination, but a lot.
"After the first year of training, examiners are on a production quota system in which, depending on grade level and complexity of the technology examined, they are given a certain amount of time to do an average application."
sum.zero
Heh, nothing like learning something new. I've been reading up on it and I think what I've seen in the past is a note in a patent pending where something is not shown because of the trade secret claim. Here is the explanation I found on one site under "Comparing patents and trade secrets":
"If the only patent being sought is a United States patent, then the decision to give up trade secrets to obtain a patent is not, at present, an irreversible one. The reason for this is that a U.S. patent application is kept secret by the U.S. Patent Office until such time as a patent issues. At any point prior to payment of the issue fee, an applicant could is permitted to abandon the patent application, in which case it would remain secret thereafter.
One should keep in mind, however, that the U.S. Patent Office has announced its plans to start a program of publishing patent applications 18 months after filing, thus coming into harmony with the majority of countries having patent systems. This change, if implemented, puts the U.S. applicant in the same position as applicants in other countries, having to make a decision whether to seek a patent or rely on trade secret protection.
At such time as the patent issues, it reveals to the public any and all trade secrets that are contained within it.[...]"
So, you are right that once the patent is issued, the trade secret status would be lost. However, it's also true (at least for the moment) that the trade secret status must be preserved until the patent is issued, at least in the US. (this description, by the way, is from 1993, so it may already be out of date.)
The NSA: The only part of the US government that actually listens.
You are completely wrong. I am a patent examiner. Patent examiners are under continual pressure to approve patents. We all have quotas, set by our payscale and by the area in which we work, and failure to meet the quotas results in being fired. Also, failing to respond to an amendment in time can result in being fired, even if you have been 30% over quota up till now and then three amendments land on your desk in one week that are all due because they were delayed somewhere else along the way. There is no lack of upward mobility - patent examiners can move up all the way to GS-13, I believe, without any competition.
Patent law is LAW. We can't just say, "I think this is obvious." We have to point to a specific sentence of the law and show how it applies to a specific patent application. First, the law says that it must be obvious to one of /average/ skill in the art, not to someone with a brain in their head. But, more importantly, it's very difficult to reject a patent application, under the current laws, unless a) each of the elements in the application has been used before (perhaps separately), and b) someone has suggested combining them, or they are all modifications of the same process.
For example, one of the training examples used for new patent examiners is an application for a bookmark that has a cartoon figure drawn on it. I said, in class, that this should be obvious, because a bookmark is a flat thing, and it's obvious that you can decorate flat things by drawing anything, including cartoon figures, on it. The instructor said we could not deny the patent unless we found that someone had specifically drawn characters on bookmarks before. I was shown cases where people
had drawn characters on the tops of bookmarks, but because nobody had drawn characters on the bottoms of bookmarks, it appeared that would be allowable as a patent.
Usually, this approach doesn't cause problems. It's a special problem with software, because as soon as someone invents a new concept - say, a new security authentication protocol - then every possible combination of that protocol with previously-existing network applications becomes patentable. Also, because approaches are often obsolete by the time the patent expires, it isn't like in other fields, where the damage to society caused by a wrongly-approved patent is only 20 years out of many decades or centuries of usage.
Finally, patent officers are intelligent, but often not familiar with the tasks they were assigned to perform. Because of the need for many new examiners, very few new hires have been placed in their fields of expertise, although they are in generally related areas. For example, my studies were in artificial intelligence, but I'm reviewing patent applications for three-dimensional animation.
I don't speak for the USPTO. Everything I said could be wrong.
Mandate that lawyers are only paid on a successful patent application. This creates an inital check in the processess. People don't like to work for free.
Sorry, I cannot agree with this one. Every inventor is entitled to a patent (yes, entitled - the law says a patent shall issue) if the conditions are met. It is impossible for me to know all the art in the field and as I am only human, I may make a mistake lookfor the art even if I had a perfect search system. If an examiner comes up with a piece of killer prior art, the application will be abandoned and no patent will issue from that application. Why should 60+ hours of my work be for nothing?
That said, there are patent lawyers who will work on a contingent fee basis. No fee unless a patent issues. However, there is a danger there. If you add enough requirements to a claim, you can get virtually any application to issue as a patent. However, the patent is worthless because it will be so difficult to infringe that no one will. It will also be easy to design around the patent claims. Ethically, I am supposed to be able to render a valuable service to my clients. Contingent fees can, in some circumstances, conflict with that duty. Not always, but sometimes.
Require federal and state governments to keep funding and revenue within the departments they are generated in.
As for state Gov'ts, there are Constitutional problems with the Feds trying to dictate how States run their finances. As for the Fed Govt., I believe the IRS and the USPTO are the only profit centers. If both those departments have to keep all the revenue they generate, how do the other departments get operating capital? You'd end up with a nightmarish web of fee upon fee upon fee...
For example, say you lost your job. You'd have to pay a fee to make an unemployment claim. Then you'd have to pay a processing fee for that claim. Then an investigation fee for the same claim. Then an approval fee once it was approved. Then a check fee every time you collected a check. And don't forget to pay the report fees when you report that you are actively looking for a job. And my no means should you forget to pay taxes on the compensation - then the IRS will be at your door.
Structure the patent review process similar to jury duty. Last phase of the patent application is a jury review.
I have to disagree with that idea as well. In fact, the trend is to take issues away from juries in patent litigation because of the uncertainty. One of the leading suggestions in the area is to create specialized patent juries who are experts in the art fields and have them be professional jurors. Examiners are generally competent - the PTO just needs more of them and needs to keep the ones it has.
Laws affecting technology will always be bad until enough techies become lawyers.