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

Some suggestions:

[TripMaster Monkey]

Some suggestions to help ease the tensions over at the USPTO:

• Every day is Casual Day.
  
• Liberal supply of rum in company coffee.
  
• Liberal supply of ecstacy in company sugar.
  
• Doughnuts, bagels, and "special" brownies supplied every morning, courtesy of management.
  
• Naked Fridays!
  
• Patent infringement issues now decided by Trial By Combat.
  
• Applicants whose patent application is judged to be spurious goes through the Spanking Machine.
  
• All patent applications must be submitted in person, after running the Gauntlet (involving rotating knives, enraged badgers, and of course, lots and lots of lava).
  
• After running the Gauntlet, all applicants for the day must take part in a Royal Rumble Cage Match...last one standing gets to submit application.
  
• All employees are granted ringside seats at Royal Rumble...popcorn and beer is complimentary.
  
• All employees now required to surf porn.
  
• Employee of the Month earns use of jacuzzi-office for the month.
  

Hope this helps.

"Naked Fridays!"

[Tikicult]

Careful what you ask for. Look around at the people you work with... Do you really want Naked Fridays? - Tiki

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.

Intelligence factor

[markpapadakis]

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)

Some info to go with this...

[Necromancyr]

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.

How lazy can you be?

[Anonymous Coward]

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.

They have quotas.

[Bill Barth]

Examiners are on a quota system.

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.