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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.
Some suggestions to help ease the tensions over at the USPTO:
Hope this helps.
____
~ |rip/\/\aster /\/\onkey
My friend just took a job there. Priceless!
(Yes, I realize you can't patent an instance of an object, especially a celestial object. If you're the type of person constantly pointing out flaws in other people's jokes, I'll bet you don't get invited to a lot of parties.)
"Live as if you'll die tomorrow." Ridiculous. You could die later today.
Careful what you ask for. Look around at the people you work with... Do you really want Naked Fridays? - Tiki
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.
Jesus saved me from my past. He can save you as well.
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.
Just pounding the rubber stamp on any piece of paper that comes into your office sounds like the easiest job on the face of the earth.
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.
1. Send one million rubber stamps maked "approved" to India
2. Ship all the applications to India
3. Stamp Away!
Also,
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).
meh
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)
*** DRINK MORE COFFEE ***
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."
____
~ |rip/\/\aster /\/\onkey
Examiners are on a quota system.
Yes...I am a rocket scientist.
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
The USPTO management is not concerned about the loss of human examiners. Trials of their new Pitney Bowes Stampmaster 5000-EX have shown that a fully automated application processing machine can rubber-stamp applications at a rate exceeding that of 1800 human examiners using old-fashioned hand stamps and inkpads. Current plans call for phasing out the examiners completely over the coming months.
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.
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.
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.
Laws affecting technology will always be bad until enough techies become lawyers.
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.]
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.
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)
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.