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'."

Comments

Can the exodus be attributed to the deluge?

[ReformedExCon]

I am willing to accept that there are patent applications coming into the USPTO in torrents, but I can't accept the EFF's stance that it is because of this deluge that the patent examiners are leaving. It's probably something much more mundane like bad management or lack of upward mobility in the position that is the root cause of the fleeing.

Remember, this is the government we are talking about. They are under no pressure to approve patents in a timely manner. The applicants will wait for as long as it takes to get their patents.

The EFF is right, of course, in that the patent system needs to be overhauled so that the system can't be used as a weapon anymore. Unfortunately, they seem to make a non-existent connection between that valid point and the other vaporous point that tons of applications is leading to mass quitting at the USPTO. I think they damage their reputation when they try to argue in such a flawed manner.

We need to vote into office people who understand the issues, not those that are in the back pocket of the corporations.

Raise their salary!

[r6144]

I say, d**n it, just hire the best people in each field and train them to be patent examiners. Pay them $100K a year (or whatever is needed) plus fat rewards for every application successfully rejected, and try to raise the various fees so that the applicants bear the extra cost. I don't care if small inventors can no longer afford to apply for a patent---much of the innovation seems to come from megacorps anyway, or from researchers that do not want to patent everything under the sun. If we can't have sensible patent laws we can at least limit its damage.

How to kill software patents?

[Blakflag]

Like most of you, I am disgusted and disheartended by the state of the software industry. I feel as if its not worth trying to create my own product because of the dangers of stepping on someone's latent patent landmines.

But I'm wondering if the idea of dumping software patents can have any traction with the general public? The politicians are in the pockets of the big companies, and they're plenty happy to keep their entrenched positions with their armies of lawyers. Until the GENREAL public cries out for a change, it won't happen.

So far I have not heard anything about this matter outside of the geek community. (even some of my less geeky computer freinds have not heard/thought about this issue)

Here's a thought:

[TripMaster Monkey]

Just fill the post of Patent Examiner with ordinary people chosen at random, like jury selection.

"Sorry, boss...I won't be in this week...got a summons for patent duty."

a friend of mine just became an examiner

[hsmith]

He has finished his first year of law school for IP law, $55K+ and they are paying for the rest of his college

not a bad deal if you have an engineering/science background

Re:Fundamental change is needed...

[It doesn't come easy]

Interesting. Maybe a patent should require a real product available in a reasonable period of time, at a price within the bounds of the general market or the patent holder would lose the patent. Heh, I like that idea.

Re:Some info to go with this...

[frinkster]

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.

You can argue whether it is for the better or for the worse, but the patent office stopped paying for law degrees because as soon as anybody got the degree a DC law firm would hire them away and pay the debt off.

Yes, it wasn't costing the patent office money in that regard, but it was reducing the patent office to being just a feeder source for the law firms. Paying for advanced degrees is done to retain top employees while gaining the advantage of them having advanced education. The patent office was seeing none of this, so they canned it.

Here's the #1 Problem - Fee Diversion

[Compulawyer]

In the interest of full disclosure, I am a patent attorney who primarily does software patents. Every patent attorney in the country knows this fact: Fee Diversion hampers the ability of the PTO to do its job properly.

The USPTO is a profit center for the government. Last December, the amount of that profit was set to DRAMATICALLY increase because of dramatic increases in user fees such as filing fees and examination fees, among others. Instead of letting the PTO keep that money to do its job, Congress "diverts" a large portion for other uses, including Homeland Security, among others.

Contrary to what the parent post said, namely, "Where anything under the sun is patentable, it puts an unbelievable amount of pressure on the patent office," anything under the sun is NOT patentable. Anything under the sun MADE BY MAN has the POTENTIAL to be patentable - so long as it meets the criteria of the Patent Act, namely, novelty, utility, and non-obviousness. Despite the seeming simplicity of these terms, there are very well-defined legal tests behind each one that must be applied properly. Each of those terms has thousands of pages of case law / judicial interpretation behind it.

The PTO's inability, caused by Congress, to keep adequate resources to properly do its job directly results in poorer quality examinations because the Examiners do not have the time, experience and training to rigorously apply the rules in every case. As a patent attorney, I have an ethical duty to provide valuable services to a patent applicant. My services are valuable if I can point out and properly describe my clients' inventions and the legal reasons why those inventions are entitled to patent protection. The way I do that is by keeping current in my technical field (Computer Science) and the law. However, I cannot know every piece of prior art out there. The best I can do is try to know as much as I can and write patent claims (the portion that defines the invention) that do not also describe prior art. Every patent applicant relies to a certain extent on the Examiner who receives their application to perform a good prior art search so that the Applicant can either point out how their invention is different from the prior art or can adjust the claims so that those claims no longer describe the prior art along with the invention. In fact, the Applicant is PAYING for that search.

A claim that describes an invention but also describes the prior art is invalid. I do my best to draft solid claims but the Examiner also has to do a solid search. Some people think that it is in the Applicant's best interest to have very broad claims so that people will have to litigate to prove the claims are invalid. I think that approach, if taken, is foolhardy because of potential legal liability on the part of the patent owner. It is also an abuse of the system. Abuses of the system can be minimized to a certain degree by having higher quality patent searches by well-trained Examiners. The best way to get that is to tell Congress to stop diverting fees.

Re:Here's the #1 Problem - Fee Diversion

[Compulawyer]

The triple damages are awarded against a willful infringer - someone who knows a valid patent exists and yet infringes anyway. The possibility of being liable for triple damages actually ENCOURAGES an accused infringer to do a RIGOROUS prior art search to invalidate the patent. However, that has nothing to do with the examination phase when the patent is in the USPTO. Triple damages can occur after the patent issues and after a trial.

My "argument" about anything under the sun ... is not "bullshit." it is the law. Quote:

"The repetitive use of the expansive term "any" in 101 shows Congress's intent not to place any restrictions on the subject matter for which a patent may be obtained beyond those specifically recited in 101. Indeed, the Supreme Court has acknowledged that Congress intended 101 to extend to "anything under the sun that is made by man." Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980); see also Diamond v. Diehr, 450 U.S. 175, 182 (1981). Thus, it is improper to read limitations into 101 on the subject matter that may be patented where the legislative history indicates that Congress clearly did not intend such limitations. See Chakrabarty, 447 U.S. at 308 ("We have also cautioned that courts 'should not read into the patent laws limitations and conditions which the legislature has not expressed.'" (citations omitted)).

State Street Bank & Trust Co., v. Signature Financial Group, Inc.

Re:Fundamental change is needed...

[tomjen]

You can say goodbye to new prescription drugs, absolutely nobody would invent a new one with no protection against immediately available cheap generics.

Someone calculated that it would be cheaper for the US gov to pay for the development of new drugs than to pay the companies higher fees due to patens.

Makes sence since a company exist to make money.