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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'."
A fundamental change will be required to deal with the ever increasing volume of patent applications. I would suggest some form of first level open community review is needed for a first round of patent research and possible elimination based on prior art (you know, as in the Bazaar part of The Cathedral and the Bazaar)...that, and of course outlaw patents on ideas implemented purely by software.
Of course, to have a public review of a patent application the applicant would need protection against someone stealing the idea before the patent was issued.
The NSA: The only part of the US government that actually listens.
If we assume those patent officers are intelligent and familiar with the tasks they were assigned to perform, they must be able to see that so many of those patents either don't make sense, or fall into the 'common sense' category.
If you were an employee who had to deal with issues that seem unfair and unreasonable to you, especially if you were 'sensitive' enough as to even blame, in part, your very self for being part of this stupidity, you may have done the very same thing.
John Caramack puts it all in prespective:
"The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying." (on software patents)
Technology ramblings : Simple is Beautiful
I have a friend that used to work at the USPTO and one that just got his PhD and tried to get a job there.
The guy that used to work there told me that the USPTO recently changed their benefits and no longer pay for their workers to get a law degree, etc., if they stay with the USPTO for a certain amount of time after getting it. This is the main reason he left - he did part time schooling for awhile but now decided to just leave and get it done asap to get his law degree faster.
The other was told, even with a contact inside the USPTO (this was right as the guy above was getting ready to leave), that the USPTO was not hiring and that they received over 5000 applications for the 10 slots they were trying to fill. This was for the biotech/life sciences division of the USPTO.
So, essentially, from what I've observed, there cutting some of their best benefits and getting more then enough applications for new people. I'm assuming this entire thing is primarily a budget issue - as almost everything is down here in D.C.
surge of patent applications, especially in the software and internet business method arena
It's almost like the solution suggests itself...
Whence? Hence. Whither? Thither.
Dear Patent Lawyers,
Could you please justify by reply in moderate detail the supposed net benefit to society (rather than just to corporations) of software patents explaining why you think that extending the patent system to cover software is not harmful both to society and to freedom of expression given the case of an open-source software developer who, as a result of
is threatened with a patent lawsuit by a corporation demanding he/she removes the allegedly infringing software from the project's website, leaving the impoverished developer with no real choice but to comply with the demand and close the project?
One recent unresolved case, which is not unique, is that of the German mathematician and open-source software developer Helmut Dersch who had no financial choice but to remove his software from his project website. He had no money to pay for a patent application at the time of his own inventions, which pre-date the patent application of the IPX company , to to pay for a lawyer to challenge the company which threatened him with the prospect of a lawsuit.
Here [ffii.org] is a summary of the case history.
I hope you will take the time to reply at moderate length for the sake of explaining to the open-source developer community why software patents are not a threat to completely unfunded open-source projects.
Thank you for reading this. If you are a patent lawyer, please mention that fact in your reply here.
When a similar comment was last posted here it got a brief reply from one of the patent lawyers who read slashdot.
Please copy and re-post this message in all available forums until some patent lawyers have the courtesy to write a thorough reply.
Of course it is. Gee, I wonder why PEs are leaving the USPTO? Maybe because like in EVERY DYSFUNCTIONAL COMPANY, the difference between theory and practice is EXTREME? Duh.
PEs are leaving since they know they are under pressure to rubber-stamp applications without regard to proper examination (and more to the point, REJECTION on the basis of prior art and obviousness). Probably, the PEs who try to properly examine a patent app cross their bosses time and time again, leading to a wholesale drop in morale.
This exodus is only going to lead to an even easier rubber-stamping process. The American public had better fucking wake up. The USPTO has been completely subverted by ONE customer -- the patent applicants (uniformly, corporations). The USPTO has no regard whatsoever for the OTHER customer: the American citizen, who requires patents to be innovative and not obvious, in order to qualify for the process of exchanging monopolization for disclosure.
Unfortunately, the chances of getting such an organization fixed in this hypercorporate political environment is essentially ZERO.
[You have a stable society when some nut guns down a schoolyard and the law doesn't change.]
I agree with the parent on the premise that there's probably another reason than simply quantity of patents coming in that examiners are leaving. However, it's not because of management or similar (government jobs tend to be pretty lax, actually).
I believe it's purely because of salary. Entry examiners coming in making about $35k or so, and topping out at about $50k after a few years (depending on the type of patents that you're examining - it varies based on the complexity of the topic or technology).
However, in the private sector, patent lawyers typically make twice as much as these patent examiners, and often have less work required of them, since it's often better *not* to research of a patent has been issued for a given thing, because knowingly infringing a patent automatically triples (yes, triples) the restitution that must be paid to the patent owner.
Less money and more work, or more money and less work? You tell me which you'd prefer.
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First, I can't read the article you linked to because the link doesn't work.
Second, the net benefit to society is workarounds. If this guy can't do X because someone has a patent on it, then he has to come up with another way of doing X. Maybe he does it a different way, maybe he adds or changes a step, whatever. The net effect is that he increases the possible ways of solving a problem because he has to design around their patent. For example, say you have a patent on the combustion engine that uses spark plugs. To get around your patent, I would have to come up with an engine that doesn't use spark plugs. People make a distinction between software and hardware when thinking about patents and there really isn't any. People hate software patents because it is so easy for one person to build a sophisticated system. You are no less likely when building a car engine to infringe on someone's patents than you are when building a software system. In fact, because software is so easy to create by one person, that's probably why there are so many applications; you have many more people working on solving various problems and the lone individual can put up a fence for himself when he finds one.
Third, if this guy is in Germany and the company doesn't have a German patent, granted by the German patent office, US courts have no jurisdiction over him so they can send him all the nasty-grams they want, it won't make a lick of difference.
Fourth, one of the big problems is not the patents themselves, it is their use. There are a number of patent trolls out there that buy up a dying company's patents and then starts using them abusively. The patents are not inherintly evil, just the way they are being used by a new owner. I wish I had an answer for how to fix that (and anyone claiming patent shouldn't be assignable has no concept of how bad preventing the alienation of property would be for society)
Lastly, if his published code was published over a year before they filed in the US (or even a day for most internationally-filed patents), he blows them out of the water. Their patent is invalid under 102(b).
The story sounds like it sucks (again, can't read it), and it's a shame if an OSS developer was forced to take down his code because he was threatened. But the reality is he probably had other options like pro-bono or free consultation. Did he contact the EFF lawyers? They probably could have at least laid out what I just said for free. The worst part that I've realized lately is that nasty-grams are 75% puffery and 25% substance. They are meant to scare and people, not having dealt with lawyers and not able to pay for a lawsuit, cave. What makes no sense to me is why a company went after one lowly developer. You always go after the deepest pockets becuase really, what are you goign to gain besides an injunction from suing one measely developer? (with the exception of the RIAA which really just wants to scare people away from downloading and has the money to fund scare-suits)