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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.
Ah yes, now I can finally patent the array!
09 F9 11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C1 bottles of beer on the wall. Take one down, pass it round... Oh, umm...
(looks at calendar...) Nope, four more days until April 1st. Damn.
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?
Good, inexpensive web hosting
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!
Am I the only one who thinks such policy changes are ripe for abuse? Hell, I'll go patent breathing right now! That way, I can charge everybody a fee! Muahahahaha. Seriously now, this is just silly.
...the USPTO outsources reading the applications to outer Mongolia, on the grounds that if they're going to accept them all anyway, what does it matter?
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
nothing.
We all know that the USPTO aren't exactly fantastic at finding prior art and reviewing patent applications particularly well, especially in the software arena. Whatever the reason for this, passing it off onto the applicant isn't going to improve this situation much. Whilst the USPTO might not find any prior art in checking an application, the applicant has no real incentive to find prior art either.
The only way it will make any significant difference is if an applicant doesn't submit an obvious piece of prior art, the USPTO find it in the accelerated review process, and then reject the patent on lack of detail in the application.
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?
They're infringing on my patent for an accelerated patent review system. I filed it just a few minutes ago through their accelerated process!
We really need a comprehensive examination of the effect that patents have on the distribution of resources within large corporations. I suspect it may turn up some interesting results.
We need to keep in mind that every dollar that goes to the lawyers who handle patent-related matters is one less dollar going towards the scientist and engineers responsible for research and development. And as we all know, it's the R&D that really has an impact on the world. It's this R&D that brings us the new products, techniques, practices and knowledge that help improve our lives, as well as better our use of our current resources.
On the other hand, the legal departments of most corporations generates little, if anything, in tangible wealth. They're mostly just a shield against the legal departments of other competing corporations. IP-based lawsuits tend to be nothing more than a cycle of nonproductivity. The engineers and scientists develop practical knowledge, only to have the lawyers fight endlessly over who "owns" this knowledge, all while consuming huge amounts of resources.
If the money that went to fight these pointless IP battles instead went to the R&D department, we'd likely see a great increase in the development of new technology. In the biomedical field, for instance, this could potentially lead to the creation of treatments for a wide variety of ailments. Now compare the benefit of such development to that offered by the lawyers. What we'll find is that the medical developments will offer a real benefit, while the legal developments will be little more than useless boxes full of paper.
Economists often claim that patents are necessary to ensure innovation. But I think these same economists are overlooking the extensive benefit that could arise were resources not wasted on petty legal battles over these patents, but instead directed towards more productive uses.
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>
This disclosure teaches a novel day on which to spring those jokes. By using March 29, a whole new dimension is added to joking.
Add drawing here.
Claims...
Engineering is the art of compromise.
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.
// TODO: Insert Cool Sig
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.
... how do you know the calendar isn't fooling you? ;)
You know, there is a difference between trolling and pointing out the flaws in your reasoning. Just saying.
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.
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
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.
Applicants have a duty to disclose to the USPTO relevant prior art of which they are aware. However, applicants are not required to search for prior art. Under the USPTO's accelerated examination procedure, applicants are required to conduct a search of the prior art, to submit all prior art that is closest to their invention, and explain what the prior art teaches and how their invention is different.
So, if you try to patent bubble sort this way, and get caught not disclosing prior art which you as someone "skilled in the art" (by default, you're applying), you're basically guilty of perjury, or whatever the lawyers would call lying to the goverment.
The feds tend to lock you up for that sort of shit.
No, I think the type of bullshit patents we hate are better filed the old way.
I don't need no instructions to know how to rock!!!!
"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?
this should end well.
Nothing is inexplicable; only unexplained -Tom Baker, Doctor Who
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".
#73401293458323 for a system of representing sounds using glpyhs, which we call an Alphabet(tm) has been granted. By my calculations, the posters in this thread owe a total of $87,043.51 in licensing fees. Please pay by check to: General Patent Enterprises, Inc. Attn: Patent Licensing Dept. 6123 West Covina Blvd, #3432, Newport Beach CA, 90232-1233. If payment is not received prior to June 1st, 2007, you can expect to hear from our legal team.
Or breathing, ehm, I mean: a method to increase the oxygen level of blood while reducing its carbon dioxide level by periodically sucking air into the lungs and then blowing it out again.
Ok, maybe I should make it more general:
Claims:
1. A method of exchange of gases between a gas mixture containing such gases and a liquid transporting those gases, by having a resizeable gas volume, which is periodically expanding and shrinking in order to suck in and blow out the gas mixture, and having the liquid flow along membranes to that gas volume, where the membrane allwos diffusion of those gases into or out of the liquid.
2. Claim 1, where the gas mixture is air.
3. Claim 1, where the exchanged gases are oxygen and carbon dioxide.
4. Claim 1, where the liquid is blood.
5. Claim 1, where the resizeable gas volume is the human lung.
The Tao of math: The numbers you can count are not the real numbers.
This is a little off-topic, but it must be almost impossible for any patent office to attract enough people who are both intelligent enough and educated enough to wade through complex patent applications, particularly related to technology, and have any hope of understanding them to a sufficient degree to make intelligent decisions about them. Given that an organization like the patent office isn't exactly the top priority for a government that is sinking in debt while funding a war and tax cuts, they can't possibly be paying enough to attract a large number of highly skilled professionals with the breadth and depth of knowledge to address these patents. I guess this is why they are leaning towards peer review, but the person at the patent office still has to be sufficiently skilled to know if the "peer" review is accurate or BS. I don't envy the folks at the patent office.
Life needs more saving throws.