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USPTO New Accelerated Review Process
Intron writes "Perhaps you have been lying awake worrying that your software patent on bubble sort might spend too much time being "examined" or "peer reviewed". You will be pleased to know that the US Patent and Trademark Office has launched their accelerated review process. "Applicants' submissions enjoy a presumption of patentability" says the patent office. Applicants are also responsible for disclosing any prior art."
(looks at calendar...) Nope, four more days until April 1st. Damn.
A lot of posters are scoffing at the notion that applicants would do a very good job of finding prior art to submit along with their accelerated application. This is not actually the case, however, and the reason it isn't is why the accelerated patent program hasn't gotten much use yet.
See, imagine that the putative lazy (or evil) attorney doesn't do a very good job of finding prior art and submits an application to patent something otherwise well known in the art. Sure, the PTO may grant the patent on the presumption that the attorney did a thorough search. But if the case gets litigated (which it likely will if the patent is really all that bad), then the other side will easily be able to point out the prior art that the attorney didn't submit. When the patent is invalidated as a result, that attorney is going to get sued into oblivion for malpractice. If the attorney omitted the prior art on purpose in order to get the patent issued, it's even possible that he or she could be censured or disbarred.
That brings us to why the new program isn't getting much use. Because the patent will issue only a few months after filing the application, the attorney only has a very short amount of time to search for and find any relevant prior art the PTO needs in order to determine which claims to allow and which ones not to. Most attorneys don't feel like they can search the many millions of US and overseas patents in that amount of time (to say nothing of the countless other 'printed publications' that may be prior art as well). So the program isn't getting used very much.
<rant>
What would be a good change? Eliminating the presumption of patent validity and making the PTO into a simple time stamping/registration body like the Library of Congress. As it stands now, virtually all patents with any value end up at least being inspected by opposing lawyers if not litigated outright, and a great many of them are found to be worthless or of substantially less worth than they appear at first glance. Eliminating the presumption of validity would get rid of the massive delay and cost of being granted a patent while also pushing the initial burden of proof on to the plaintiff/patentee to show that his or her patent is valid. The loss of this presumption would make a patent less inherently valuable and the number of issued patents would likely actually decrease. Because the cost of initiating patent litigation would go up, the number of suits would go down as well.
</rant>
A pilot program for that idea has already been initiated:0 23220&from=rss
http://yro.slashdot.org/article.pl?sid=06/11/03/0
The patent system in the US was broken back in the nineties when the Clinton administration changed the funding for the Patent Office. Previously the Patent Office was funded out of the budget with application and licensing fees going into General Revenue. In the new "efficient" scheme the office was to be funded directly from the application fees. It would seem obvious to all but the most asinine idiot (ie. those not on Capitol Hill) that this is a recipe for disaster, encouraging the Patent Office to approve any and all applications that come their way and leaving it to the courts to subsequently sort the wheat from the chaff.
(NB. For those who might think this a partisan political attack IANAUSC and regard the US political spectrum as a choice between a bunch of right wing reactionaries and the Republicans.)
Life is a continual education in the triumph of application over ability.
<sarcasm> Yeah, because this approach has worked so very well in other legal venues, like liability. </sarcasm>
A law changing the patentability rules needn't necessarily apply retroactively to existing patents. It's far better to let current patents fall by the wayside over time via patent litigation and expiration while applying a much tougher standard to new patents than it would be to continue the existing system.
Experience has shown that the backlog of the legal system does little to discourage litigation. Worse, the increased demand for patent litigation will make said litigation more expensive, particularly for the defendants, which ultimately drains money from more productive pursuits (like, say, research).
Your approach would kill what little real innovation is left in the U.S. far before the system collapsed in on itself.
Use 'slashdot stuff' in the subject line in any email you send me if you want to get past the spam filter.
IIRC, prior art declared during a patent application cannot be cited by the defense in a patent-infringement suit. A patent applicant who declares prior art will get a leg up in litigation, and that's a non-trivial incentive for an earnest patent applicant to declare as much prior art as he can.
Of course, it only matters if the patent applicant expects that his patent will wind up in court. A patent applicant could bank on the significant cost and anxiety associated with court cases -- i.e. submit an incomplete patent application under the assumption that any prospective competitor/licensee would rather pay for a license than a trial.