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."

Comments

Efficiency.

[Seumas]

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.

Guarenteed to produce invalid patents

[techno-vampire]

"Applicants are also responsible for disclosing any prior art."

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?

Re:This is new?

[billyd48359]

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.

Re:Guaranteed to produce invalid patents

[kcbrown]

That seems plenty sufficient a penalty. If there is undisclosed prior art, you lose the patent. Thus if a company wants a strong patent, the burden is on it to write the patent narrowly (to minimize the possible of conflicting claims from prior art) and do a thorough search for prior art. This would reverse the current situation, where companies try to write the *broadest* patent that they can get accepted and the patent office is responsible for showing prior art limiting the claims.

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.