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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!
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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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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.
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.
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.
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