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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."
Why take two years to produce incompetent results when you can be just as incompetent in a few months?
See, I made a post without resorting to the "let's patent... uh.. air!" posts that are about to flood this page.
Nice thought, but that's not going to work. Prior art makes something less patentable, so it's not exactly in the applicant's best interest to report it. It's like expecting politicians to police their own ethics. Oh, wait, isn't that what Congress already does?
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The patent system is broken beyond repair. Throw the thing out.
I'd never start an engineering firm. Be it widgets or lines of code, I'm bound to be sued if I become successful. Patents now actively discourage innovation. Get rid of them!
the original legislation was to require those seeking patents to PROVE UNIQUENESS. therefore, this silliness runs counter to law.
no patent for being able to write on a Big Chief tablet with a jumbo purple crayon, as the pinheads in washington seem to think is how it should work.
and they ought to search prior art. if they can't find it, then maybe the USPTO should just declare a moratorium on new applications until they scan and index all the old stuff, way back to patent #1. to intelligently "expedite" handling applications, they have to be able to intelligently find prior art.
if this is supposed to be a new economy, how come they still want my old fashioned money?
If anything, they need to find ways to SLOW DOWN the process of issuing patents. I mean, seriously, there should be *maybe* 3-4 patents
granted, per year, worldwide, if we actually went by any realistic definitions of novel, innovative, and non-obvious. The world needs
fewer patents being granted, not more.
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Believe me, the US is now emphasizing science/math in the classroom. In fact, the new high school standards are going to see to it that next years 7th graders have no chance of graduation. The problem as I see it in America is not science/math but that the fabric of society (the family) is no longer stable and reliable. From an idealogical point of view, the problem with America is that we have replaced the ideals of Democracy with a quasi capitalistic system. I say quasi, because as more people lose at the game of capitalism, the government is becoming more and more socialist and wealth is once again becoming more and more concentrated.
From a moral and ethical point of view in America, it is more important to win, be cool (tatooed, Razor Cell Phone, designer clothes, drink the right drink, do the right drug, ride the cool car/motorcycle), and be passively addicted to stupidity (Sitcoms, Youtube, MySpace, Text Messaging, professional sports, movies) than it is to be smart, hardworking, moral/Godly, and fair. America has largely become a consumer driven "me first", passive, and non-thinking soceity at a time when we need to be engaged in a moment of clarity about the long range plans for our country, livelihoods, and families.
I apologize to my fellow Americans for being harsh, but we have got to 'kick it up a notch' or we are done.
No elected official is going to support a move to just invalidate every patent ever granted unless their campaign platform is How Much They Hate America(TM)
No one's going to spend the time/effort reviewing existing patents for validity under new guidelines.
The only way to fix the system is to let anyone patent everything and have the system collapse in on itself. A decade of courts being clogged in patent-litigation carnage ought to let a more reasonable standard emerge.
antipop, great post. You are right on the money. By the way, I am a patent attorney and I can tell you that I will never, ever recommend the accelerated examination process to a client. Why you ask? Happy to elaborate at least a few reasons. First, one of the requirements of the new accelerated examination procedure is that applicants (likely through their attorney) must identify not only the best prior art, but must characterized what portions of that prior art are most relevant. Yikes! If the attorney, even innocently, identifies or characterizes a portion of the prior art that turns out, during litigation, to have been something other than the very best or most relevant portion of the prior art, the other side will surely allege inequitable conduct. The result? If inequitable conduct is found the patent will likely be held invalid or unenforceable by a court of law. Thus, all the money spend to secure the patent will be for naught. Second, one of the requirements of the new accelerated examination procedure is that the applicants must perform a patentability or novelty search. Then, when applying for accelerated examination, the applicant must identify the classes and subclasses of patents that were searched. However, only AFTER the applicant files his/her patent application does the patent office assign class/subclass designations. If the applicant fails to correctly guess how the patent office will classify the invention, the request for accelerated examination will be denied. Thus, the request for accelerated examination is nothing but a catch-22. The vast majority of requests for accelerated examination have been denied for this very reason. For these and other reasons, the accelerated examination procedure is fraught with perils. User beware. P.S. Not legal advice. Consult your own patent attorney.
Personally, I would like to see the patent office move from being an evaluator of applications to being an arbiter between plaintiff and defendant in patent infringement claims. If they accepted every patent application and only evaluated the claims when disputed, that would be a fundamentally easier job. Then the defendant would be responsible for discovering the prior art rather than the patent office. This is a stronger model, because the defendant is also the own who would suffer damages (and is presumably someone who has knowledge in the field). One of the weaknesses of the current model is that the patent office is not the one that suffers when weak or overly broad patents get through.
that's also why US businesses fail versus their Asian counterparts... the focus in 90% of US businesses is on Financial/sales growth not on actually making the product the customers BUY.
"the government is becoming more and more socialist"
I think the word you are looking for is fascist, I also think the behaviour is restricted to a powerfull minority that has fallen out of favour with the US public in the last year or so. We have seen similar political mood changes here in Australia.
And did you exchange a walk on part in the war for a lead role in a cage? - Pink Floyd.
In short, you think that the way things are right now should be sufficient penalty (hint: if prior art is found and accepted by either the patent office or the courts, the patent is invalidated). Sorry, but reality has already proven you wrong on that.
The problem right now is that even with a weak patent, a company can strongarm others into paying up because the costs of defending a patent infringement suit are high and the probability of doing so successfully is low, thanks to the idiotic assumption of the courts that a patent is automatically valid if approved by the USPTO. In other words, the courts assume that the USPTO is actually doing its job, when the fact of that matter is that it's not.
So the consequences of undisclosed prior art need to be much more severe.
In my opinion, a finding of prior art against a patent should not only invalidate that patent, but should prevent all those who were involved in filing the patent from filing further patents for a relatively long period of time (say, 5 years), just like the grandparent suggests.
Without such strong disincentives, the free-for-all that we've been seeing will continue unabated.
Use 'slashdot stuff' in the subject line in any email you send me if you want to get past the spam filter.
Except that once again, people would be worried about going to court against a big corporation for a patent they own, even if they had the upper hand.
Because even if you had a good enough patent, without a good lawyer there isn't much use defending it. And corporations can spend enormous amounts of money and time until you buckle under.
Which is precisely the reason why your idea is a horrible one. If anything, it places even more power in the hands of lawyers.
At least right now, there is some degree of protection.
One of the big problems with the "software" or "computerized business process" patents granted at USPTO is that many of them are very obvious to "a skilled practitioner in the field". This is the major factor that brings the whole area of law into disrepute.
You know, maybe I couldn't have thought up the RSA algorithm on the spur of the moment after a moment's pondering of the topic,
but for many of the US software or biz process patents these days, the inherent structure of the problem domain, analyzed with
standard requirements analysis techniques, suggests to any competent analyst the form of the computerized solution, and
standardized design principles and patterns supply the rest of the solution. But lo and behold, it's still patented at USPTO.
You see, clicking on a link to purchase something, or downloading and running a software program in a browser,
or tracking who is clicking on hyperlinks by including a personal code in the url... or making a doubly linked list...
I could go on and on... These are all "moment's thought" obvious to a computer science graduate, or else were the
subject of second-year lectures on algorithms, thus known widely in computer science for decades.
Here's an idea. Why doesn't the USPTO have the software tech community and the computer science academic community
elect a board of 20 truly leading innovators (software engineering gods) and truly leading academics in the field, who
are willing to serve as a software or computerized business process review board. If ninety percent of this board finds
a given patent application non-obvious by their standards, then heck, maybe there's a (still weak) case for patentability.
But otherwise, leave us the hell alone to think and design and code as we see fit and are more than capable of doing easily
for the vast majority of these ridiculous patents, without bothering to look at how the patenter did it.
Where are we going and why are we in a handbasket?
The patent office makes more than its operating costs from patent fees. Instead of lowering fees or hiring new examiners, the excess goes into the general fund. This announcement amplifies their existing position of taking no responsibility for the results of their examination. It is also an artifice to justify raising fees for accelerated processing, where "accelerated" is a euphemism for "more hasty and slipshod".
And now imagine a higher power which could simply destroy all the weapons (both yours and those of all other countries) and make it impossible to build new ones. Wouldn't the world be a better place if it did? Now, in the case of patents, there's indeed such a higher power: The government. If the government one day declared that no patents are allowed, patents would simply stop to exist.
The Tao of math: The numbers you can count are not the real numbers.