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A Look at the US Patent System
cheesedog writes "The LA Times published an interesting editorial on the current state of our patent system. From the article: 'on many levels, the U.S. patent system is profoundly flawed. Too many patents are issued for 'innovations' that are obvious, vague or already in wide use.' Online reaction has been mixed, with PatentHawk striking out in defense of the patent system, and Right to Create providing some support for the LA Times editorial."
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I Am My Own Worst Enemy
It's nice to see decent media starting to report what most people are thinking and saying.
Patenting is really a boring issue unless your directly involved with its consequences but im happy the issue is starting to come up in mainstream media.
I agree. It has becomming horrible... where I worked up until last summer, we were actually paid a bonus of approximately $1000 to file for obvious patents for the sole purpose of hoping that our competitors will accidentally use this idea in their products. Though those were stupid, I would have to say that the record goes to this: http://patft.uspto.gov/netacgi/nph-Parser?patentnu mber=4,022,227
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To the poster:
I have previously patented the right to complain about patents, specifically U.S. patents: I should further inform you that I have already actively started placing patents in other countries as well, regarding this issue.
As you did not pay me to post this message, I do request that you either pull this post or pay me 60% of all profit. If you are not making profit from this post: I will allow you to continue this post, provided you seek monetary compensation and that I get 60% of it, otherwise it must be removed immediately or face legal action.
You have 100 comments in order to respond,
Thank you.
Well here is just a question for my fellow techies who probably recognize that making a startup and selling it would be a better life than that of a salary man. How is our perception of the patent system affecting our plans for possible startups? Does the state of the patent system frighten you away from entrepreneurial ventures, or do you just plan to keep things closed source and ignore patent laws? Or would you try to stay out of the radar and get acquired before anyone with a patent portfolio came for a shakedown?
The late 90s were really fun, I'd like to see that entrepreneurial vibrance happen again, especially because it was fun for the nerds and irksome for the old guard, but I'm worried that perhaps the legal overhead is discouraging a lot of creative and competent people.
I've got about 40 patents in the system right now, some issued, some pending.
My impressions of the process that the patent office uses to evaluate whether an invention is novel is that it is fundamentally and deeply flawed.
1. The patent examiner has extremely little time to evaluate a patent. Practically speaking they have just a few hours to spend on each patent. Many of my disclosures have been 40 pages or more in length. How the hell is somebody supposed to read through 40 pages of technical material on a topic they have little knowledge of in 3 or 4 hours?
2. Patent examiners have totally insufficient background in technical areas to evaluate them. They're not stupid people, not by any means, but we're talking about bachelors and masters degrees in the sciences with no research experience evaluating cutting-edge technology done by research phds. The fundamental problem is that the examiner is not up to date with what constitutes prior knowledge in a field. If you get a masters degree in computer science that's all very well, but it hardly brings you up to speed on the latest research, which is what is being patented.
3. The standard for what is an invention is something non-obvious to someone with "ordinary skill in the art". Well, that's a bad standard, because in many fields all product research and design is done by people with beyond ordinary skill in the art. So what _would_ be obvious to ordinary inventors in a field is completely non-obvious to one with ordinary skill. It's like asking asking a casual jogger to evaluate whether a sprinter is really fast.
4. Given the very little time patent examiners have to evaluate a disclosure, they basically perform keyword search on words from the disclosure against previous patents and the web. If they find some other sentences with about the same words, they issue a preliminary rejection. That lets them quickly reply and meet their hour requirements. So your disclosure says "A method for calculating maximum travel windows for freight" and they cite against you a patent on "A method for calculating the maximum size of windows on freight trains".
5. But despite the patent office's initial rejection of almost everything, if you spend more money, which resets the examiner's clock and lets them spend more hours on you, they're perfectly willing to grant you almost anything in the end. In fact that's their job: the patent examiners job description includes trying to help everybody get a patent.
These aren't insights. Almost everybody who has interacted with the patent office has experienced this. And its not going to change, because the patent office is a profit center for the government and they love the system of letting companies get whatever patents they want so long as they pay a lot of money to the patent office to go through the process.
Many of the problems with the current patent system go to the fact that you can now patent things that can't be represented as physical devices. Reinstating the requirement that all patents are accompanied by a detailed description of a physical device would remove all the absurd business concept patents, as well as many unreasonable types of software patents.
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Before you scream that novel and non-trivial algorithms wouldn't be patenable (like, for example, a new algorithm for encoding images etc), all algorithms can be represented by specifically designed analog or digital electronics (example of a non-trivial algorithm that can also be represented by a physical device: http://patft.uspto.gov/netacgi/nph-Parser?u=/neta
Things that require code, like hyper-links, one click web ordering, and other patents that most people consider ridiculous would still be protected by copyright on the code... and last time I checked MS, Oracle, Sun, IBM, Apple etc.. didn't have all that much trouble protecting their intellectual property as start-ups without software patents.
Rolling back the clock to require a description of a physical device would both make patents a lot less vague as well as making the obvious harder to obsfucate, without requiring a massive paradigm change for what patents are supposed to protect (this isn't to say that I'm not in favor a more rational system for challenging a patent, especially for prior art issues, but reform tends to move in baby-steps)
Hence, it's just like our good-ol politicians leaving service for some dinky, high-paying lobby job and then exploiting the system since they've worked both sides. It's sad that you'll only see 10% progress from 100% effort, where 90% goes in the pocket of the ex-govvy. What a racket.
I've been in the brand spanking new complex. It's nice, looks like lots of money when into those buildings, though the commissary is crap (then again, old town's a step away for nice $$ lunches). Aside from serving political agendas set by politicians, they have one goal: make money and lots of it--sort of like the rest of government nowadays. Where do those profits go? Now that's what the tax payer should be asking!
Agencies that run this way always remind me that we are currently under another form of government than your ideological democracy
So much for serving the public good.
1. Create a dictionary of all words used in applying for a patent.
See MPEP 2111.01. In applying for a patent, you may define "giraffe" to mean "flashlight". There are at present few (if any) reasons for doing so, but if you're going to "computerize" the patent prior art search as you have described, there is suddenly an extremely good reason to say "giraffe" when you mean "flashlight".
2. A second dictionary of terms which are equal to each other.
See above. As an aside, maybe a better solution would be a classification system that categorizes patents and patent applications according to the technology involved, regardless of the vocabulary invoked? Such a classification could be performed by humans - maybe even get patent examiners involved. If a certain group gets too large, further subdivide it. Try to keep the groups to about 250 patents if possible. (I've described the system that's been in use for at least 100 years, but seriously, this super-thesaurus idea sounds promising. Except useless because of MPEP 2111.01.)
3b. All entries should be listed (just like with Google) in a descending order of revelance.
This has been available to examiners for years.
4. All applied for patents should be kept on file so they too can be checked against.
This was a great idea when Thomas Jefferson first thought of it.
People may say we can't do this.
Yes, but Thomas Jefferson was a great man, and when the computer technology of 1987 implemented the rest of what you're talking about, those people looked like idiots.
As for graphical pictures showing how something works - it depends.
The entire collection of patents (except the X series that burned) are available in image format to the examiners.
You need the bad patents in there as a way to say "Hey! Here are examples of why you can't have a patent!"
I'm not sure how you define a "bad patent" - that is not an invitation to explain - but regardless, this is an absurdly bad idea. As an alternative, investigate what an SIR is at MPEP 1111
Just my $0.02 worth.
Is there a rebate?
Other responses suggest your whole post is plagarized. If so, I imagine it was -extremely- relavant 15 years ago. I really wish Slashdot had a "What Made You Think You Were Qualified To Post?" moderation.