Slashdot Mirror
The Real Problem With the US Patent System
Pachooka-san writes "An article in the Washington Post touches on the 'real' patent problem — the quotas that Patent Examiners must meet. They have no effective quality standards, only production standards, so many applications get only cursory review just so the PE can keep up the grueling pace. The USPTO is the only government agency that can and does lay you off if your productivity drops below 85% of the standard for your civil service grade. A Primary PE has to process 5 new and 5 old applications every 2 weeks (that's 8 hours each, folks). The best part — that 28-box application mentioned in the article? — it gets the PE the same credit as the smallest application. How many of those 28 boxes do you think even got opened?"
TFA states: "In the global economy, innovation, technological progress and the protection of intellectual property rights are keys to U.S. competitiveness. Keeping up with the demand for patents is critical to the nation's health."
Yeah, but like so many things that are critical to the nation's health, it's not a hot button issue with the majority of voters, so it gets a little lip service, and wallows in mediocrity, getting enough funding and attention to avoid a near-term embarrassing implosion of the department, but not enough to solve its problems.
No matter. Another decade or two of bad patents being approved and we won't have to worry about the department imploding. Our economy will.
- Greg
Start a happiness pandemic
The main problem with the (US) patent system is that it is a classed, stratified scam. One designed to serve large and/or monied entities, lawyers and their various barnacles.
Without large sums of money, it is difficult to determine if you have a patentable device. Without large sums of money, it is impossible to defend any court action that involves your patent, regardless of if it is brought against you, or by you. So even if, by dint of careful study and diligent application to the system, you manage to get a patent without spending a lot of money, you can't defend it anyway - unless you are well funded.
All this quite aside from the fact that the patent system has mutated enormously from what the founders envisioned; Software patents. Method patents. Patents on the blatantly obvious. Of course, so has most of the rest of our legal system mutated. You know why our system has so mutated? Because our political system, which drives the legal system, is a classed, stratified scam.
And strangely enough, the legal system, which lies between the political system and the patent system, is also a classed, stratified scam. Money talks; justice is the last thing on anyone's list; the question of constitutionality rarely comes up, and when it does, it is likely to be abused and misused right up to and including the supreme court.
I've fallen off your lawn, and I can't get up.
Isn't the solution obvious? Invert the quotas. Pay examiners per application denied. Then only the most nonobvious and innovative stuff will get through the process. The public is best served by preventing as many monopolies on ideas as possible while still rewarding true innovation.
I'm going to patent a a quota system for government offices to use to lay off employees. The details of which will be somewhere in box 8 of 13.
__ Someday, but not this morning, I'll finally learn to use the preview button.
I am surely not alone in thinking that the text of every patent seems to be deliberately obfuscated. Each patent seems to have been translated several times before being turned back into a form that is almost (but not quite) entirely unlike English. Surely it would help matters enormously if patents had to be written in English rather than impenetrable legalese? This would help the patent examiners, and it would also help anyone who wanted to reimplement an invention described by an expired patent - which is, after all, part of the deal! The nature of the invention is supposed to be patently obvious so that others can reuse it after it expires. Why isn't this a requirement?
>north
You're an immobile computer, remember?
Nothing scares me more than 75 year old people approving software patents.
FTA:
Patent officials are looking at hiring back retirees to work on the patent backlog and at revising "duty station" requirements so the agency can expand into a nationwide workforce.
Your sig(k) has been stolen. There is a puff of smoke!
This seems to fall into the trap of signaling one problem as the source of a larger, more complex problem, when in fact there is a composite of multiple problems to deal with. One may also see this in pointing to video games as the problem in school shootings.
Patent examiner quotas may be a big problem and I'm glad it's being pointed out, but companies stocking up on patents as a strategy of Mutually Assured Destruction is a separate problem.
Not a typewriter
ITS BROKEN FIX IT!!!!11ONE
Did you know that you can work around a broken Caps Lock key by holding down either Shift key as you type?
"In the global economy, innovation, technological progress and the protection of intellectual property rights are keys to U.S. competitiveness. Keeping up with the demand for patents is critical to the nation's health."
... and they've stopped publishing the money supply figures...
Really?
Is that why the dollar is in free fall, there's 48 trillion of debt, vast amounts of production shipped off to competing countries, the housing market in meltdown about to take the rest of the world with it
Basically... Bullshit.
LOL. Patents are damned near irrelevant and have fuck all to do with the nations health.
Deleted
The quotas are per patent examined and denied/accepted. So, there is no polarity. In fact, if anything, it is a lot easier to say "X anticipates Y, go away" than to approve a patent.
Your ad here. Ask me how!
This is exactly right. Here in the Bay Area, there is currently a feeding frenzy going on, with one IP firm after another popping up to represent one tech company after another in one arcane patent dispute after another.
This is costing ALL OF US a LOT of money. It is making the legal system a LOT of money.
I've been inside a few of these law firms; they hire a phalanx of paralegals to pour through tens-of-thousands of documents, looking for keywords that might have bearing on a case; they create aggressive deposition schedules; they engage in ultra-expensive eDiscovery activities, and so on.
They bring in the best, catered food, day in and day out. They have overnight sleeping rooms, so that paralegals can stop work and not have to take time to commute the next morning. Money flows in, unencumbered by any thought about what it is costingi yuo and me, the American consumer, as all these costs are eventually borne by us in the way of higher prices, or constrained innovation.
The lawyers are walkingi away with big smiles on their faces; it's really sickening to consider the near-fact tthat there is probably more revenue being generated in Silicon Valley via IP litigation than there is from the deployment of new innovation.
Do you think the "legal profession's ethics" (an oxymoron, if I ever heard one) will do anything to stop this money-making juggernaut? Answer: no.
In fact, we are being held hostage by greedy IP law firms, who have a production-line attitude to litigating patent and copyright protection issues.
With new eDiscovery laws coming into place, now we're having to do legal diligence to the 'nth' email. Imagine the wide-eyed, greedy hand-wringing going on with that one.
Recently the ABA created a new "degree", for paralegals. It's called the "Paralegal Certificate". It's a two-year program, with the ABA (American Bar Assn.) mandating that ABA-approved paralegal programs CANNOT be held online. Imagine that. one has to trek off to night school after a long day at work, to listen to someone read notes from a Civil Litigation textbook that you could be reading and being tested for online.
Why this certificate? It permits these IPP (and other) law firms to bill more for paralegals. Now that "paralegal" is an "official" sub-category, law firms can take a $30 per hour paralegal and bill out $120-200 for their time (depending on discipline, and experience). More legal hands in our economy's cookie jar.
I don't know how we're going to change a copyright and patent system that feeds these parasitical attorneys so generously. Think about it; most of the laws are made by people who have been attorneys, and have staffs full of young attorneys. They will legislate in their self-interest.
Are you sure that doing so wouldn't violate a patent?
The Tao of math: The numbers you can count are not the real numbers.
I've already seen several people leave because they can't handle the stress they're put under here either. The standards haven't changed since the 70s even though the pool of prior art is growing exponentially.
Well, back to rejecting software patent applications.
The best part -- that 28-box application mentioned in the article? -- it gets the PE the same credit as the smallest application.
This is the other problem. Why are they allowed to submit this much? When I submit a grant application I have limited amount of space to justify my grant. That way I have to condense things down so only the most important and relevant information is transmitted. Why is there not a similar restriction on patents? It is far simpler to request additional details for the patents that need them rather than sift through thousands of pages.
How many of those 28 boxes do you think even got opened?
The question you should be asking is how many needed to get opened.
You'd never pay a surveyor by the sheer number of lines he draws. You pay him to draw accurate lines. That's what a patent examiner is: a surveyor of property boundaries of a most complex nature. Trouble is, incentivizing correct boundary-line drawing is rather hard.; you'd have to predicate it on lack of future litigation.
The law requires it. The Federal Courts have invented a doctrine known as "inequitable conduct" that requires a patent applicant and its attorney to submit every document they have access to that could potentially be relevant to the application. So, if you are a corporation with a resource library that relates to your products, you have to submit the entire resource library or risk committing inequitable conduct. In every patent infringement trial, the infringer accuses the patent owner of hiding information from the patent office, no matter how much information is submitted. So the natural recourse is to submit everything.
We have, largely at public expense, mapped the human genome. Many drugs are patented that were developed at public expense and licensed to drug companies to be sold for whatever they can get. Scientists are not going to stop being interested in biochemistry because they are less likely to become billionaires.
Too many software patents are trivial. Every now and then somebody comes up with an algorithm that is groundbreaking. IBM, as a joke, patented an algorithm for assigning access to restrooms on a train. Don't even get me started on "business method" patents.
They are paid by the patent denied - patents are generally rejected the first time through, if nothing else to generate more revenue. But it's much easier to just let it slide than to keep searching for good prior art that stops a patent. It's not enough to know it's been done before, you have to cite the prior art, which may be buried in some obscure journal on a different topic. Patents tend to get worded by lawyers, who try hard to obfuscate and make the examiner's job difficult, so they'll give up and allow the patent.
I tremble for my country when I reflect that God is just. --Thomas Jefferson
That is not what is wrong with the US Patent System. That's only a SYMPTOM of what is wrong. The real wrong is that the patent system is completely and totally disoriented away from it's original mission, which is to encourage the kinds of innovative inventions that we would not otherwise have without patents.
Patents actually take away rights. Two inventors inventing the same thing in isolation from each other will end up with one of them the loser, losing all his rights to what he created, just because the other one files the patent application first. In theory, this is not what we want to be doing. In practice, such things have to happen in a process that is going to grant exclusive rights for some term. We justify this taking away of rights for the greater good of all not just in getting the benefits of that invention the two inventors made (we'd get that benefit anyway, even if they had to share the rights), but also the benefit of the process itself to encourage the innovation.
Where the problem lies is that so many patents issued these days are for things that would have been invented, either just as soon, or at least by the time it is really needed, anyway. Thus we end up taking rights away from parallel inventors for something for which there is no gain (we'd have that invention without any patent system).
We need to do a better job of evaluating an invention to determine if it is something that is truly innovative, and that such a thing would not have been invented just in time for a need without a patent system. If the invention itself does not justify a patent system, then a patent should not be issued for it.
I believe fewer than 1% of patents issued these days justify the patent system.
There are also a lot of other things wrong, such as those overly broad claims. What is there to discourage such claims? Nothing. There needs to be a penalty for overly broad claims. Maybe invalidation of the whole patent might do.
The abuses of the patent system today are actually harming innovation and the economy. The nature of technology today is that almost all new ideas build upon other ideas. But why even try if there is a risk that what you could do could be taken away from you because something else is similar, or even just builds on the same thing your idea did.
We still do need a patent system for things that take a lot of time and money to come up with. And nearly divine inspiration needs to be rewarded as well. Almost all patents these days do not fit those descriptions.
And this has nothing to do with the matter of software patents. It's just that software patents, far more than others, tend to fall into the "there's no real innovation here that someone else would not have done when it's needed" category.
now we need to go OSS in diesel cars
The previous post is questioning why the patent system is "critical to the nation's health." I think it's a fair question, not flamebait. As with many things the answer is not a clear yes or no. Here at Slashdot there are frequent observations about how parts of the current patent system stifle innovation and progress. Of course with no patent system at all the R&D budgets would vanish in almost every field. But what percentage of patents are actual "innovation [and] technological progress"? Is a "Method of creating an anti-gravity illusion" (patent #5255452) really innovation or just a neat trick? Is it critical to our nation's health? How about patent 4773863, an "Amusement Device for a Toilet Bowl"? Critical or superfluous? What about those extra vague idea patents? Perhaps there should be an additional pre-filter for the patent system where things are quickly reviewed and voted as either an important innovation, or a non-critical neat idea. Non-critical neat ideas (for which even something as big as the iPod would qualify) may well be deserving of some short term protection, but the long term protection of every mildly original thought has lead us to a patent logjam that hurts our nation's economic health.
We are all just people.
The main problem with the (US) patent system is that it is a classed, stratified scam. One designed to serve large and/or monied entities, lawyers and their various barnacles...our political system, which drives the legal system, is a classed, stratified scam...the legal system [...] is a classed, stratified scam.
Give me a break. REALITY is a scam. REALITY favors the most powerful. The government, courts, and USPTO are all protections against the unbridled exercise of power. The government is easily voted out, courts are determined by *juries* (which is predicated on an educated populous, so we really have ourselves to blame there), and the USPTO doesn't write patents on its own.
Now I'm not saying that the process is flawless, but I *am* saying that any process without rigid guidelines (and most of those with rigid guidelines) will be open to some amount of abuse and/or gaming by those with more resources to better play the system. The alternative is a society without powerful entities outside of the government, which is pretty much the goal of communism.
Clearly the process itself needs tweaking, but that's a far cry from the conspiratorial claims of a scam that "the man" is using to keep us all down. Perhaps with less of a reward for patents, such as shorter terms of, say, 5-10 years, there would be less incentive for companies to file every patent imaginable. Nonetheless, you're blatantly disregarding two extremely relevant facts:
1) Patents are not diamonds. That is, they're not forever. The more ideas that are patented today, the more that will be freely available n years from now. If you want to ensure the more open use of patentable ideas tomorrow, patent them today. If you can't afford it, establish a thinktank, collect donations, and do it that way, then freely license them if you want. A lack of motivation on your part is not a flaw in the process, or the opposition; rather it is indicative of your own true level of concern.
2) No amount of patent trolling or shotgun patenting will ever supplant or prohibit a truly novel idea, and individuals with new ideas have just as much opportunity to patent those ideas as ever. If it's already covered by an existing patent, then it's not new, and we've lost nothing. If it *is* new, and that person profits from their idea, then that's a fairly strong indication that the "classed, stratified scam" is really not.
https://www.eff.org/https-everywhere
Or, in other words, lawyers don't sue people, people sue people.
Total, unmitigated bullshit. The responsibility is joint and several and lawyers washing their hands of their responsibility is a large part of the problem. Or to put it another way "I was only following orders" went out as an excuse a very long time ago.
Lawyers are the experts in the domain of law and their clients generally follow their advice, including whether or not to sue and whether or not to get patents.
The current bullshit IP rush is driven almost entirely by and for lawyers, aided and abetted by the lawyers in congress who create the self-serving IP laws in the first place. A not very surprising consequence of the amorality of many lawyers and the quantity of lawyers in this country. A gigantic and extremely harmful game of real life nomic.
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It's wrong that an intellectual property creator should not be rewarded for their work.
It's equally wrong that an IP creator should be rewarded too many times for the one piece of work, for exactly the same reasons.
Reform IP law and stop the M$/RIAA abuse.
I applied for a patent in 1999. It was awarded this year. The delay involved a dispute with the patent examiner. He finally saw the light, but it took years. After reading this article, maybe the problem was that he didn't have time to understand it.
My university will pay for the lawyer fees to file the patent, and collect that first if any money is generated -- sounds reasonable. My first patent was sold for about $25K, but I got nothing -- the lawyers got it all.
By the way, both were nanoscale devices -- not software patents.
That doesn't sound like much time. Yet I am reminded of all the stupid things that have been approved for patent, that are then posted as stories on Slashdot, and then a bunch of people post prior art they found after 10 minutes of Google searching.
I left the European Patent Office 10 years ago (blablabla) ... ... and in those days we had around 2 days per application.
.. blablabla .. it was not dismissal that threatened us. It was the other end: promotion depended on high production. Quality was almost no concern. Though, honestly, our quality then (at least) was one class above the USPTO. No, not because I happened to be one of the 2000 examiners, rather to the contrary.
It would be good to compare with the current required production numbers of the Japanese, Korean etc. offices before drawing conclusions.
Anyone in here ? EPO anyone ? (I recently read the EPO was similarly down to around 1 day ?)
In those days
I have more than 35 issued US patents, with at least 15 applications presently on file with the USPTO -- no software or business-method patents, thank you very much! -- and the biggest problem I experience is the opposite from that most frequently mentioned here. While examiners do allow worthless patent applications (hopefully none of mine qualify...), my biggest headache is that they also reject patent applications for technically incorrect reasons, usually based on an incomplete understanding of either the present application or the prior art.
The root cause of this, however, is the same -- lack of time available to read the relevant material in depth. Not only can the present examiner not read my application carefully, but the fact that his predecessor had the same problem led him to quit, so the reviewer of my application today has less experience than he might otherwise -- a two-fold impact. The fact that I have to respond to the incorrect rejection, often to the point of entering the formal patent appeals process, only adds workload to an already-overworked system.
My point is that the examination process is a decision point and that rushed, inexperienced examiners can err in both directions. Yes, they can allow applications that should be rejected, but they can also reject applications that should be allowed. And while the former gets a lot of press (we've all seen the patent for the child's swing), the latter is just as bad for innovation: If a patent troll can take an inadvisedly-issued patent and take down an industry, an improperly-rejected patent can delay or deny funding to the startup trying to build an industry in the first place.
lawyers don't sue people, people sue people.
Yeah, but it looks to me like most of the money goes to corruption in the civil trials where patent trials are tried. Most money goes to discovery and deposition.
Litigants are usually required by to court must spend large amounts of produce large amounts of evidence in response to discovery and deposition orders. At no time is any evidence of malfeasance required for these orders to be issued, and these phases are allowed to last years and years.
Isn't it slavery to require unpaid labor from litigants who haven't been found guilty? Almost as bad, because there's no time limit, civil trials often last well until after products are obolete (e.g., the Microsoft case). There is no constraint to keep big companies from milking cases to drive small, innovative companies out of business. In short, it's as corrupt as the original slavery.
I've read a defense that deposition and discovery can bring out facts of bad behavior we otherwise wouldn't see. But I'm at a loss to see how that's good when the trial ends a decade later. None of this helped Netscape. And it certainly does bring slavery and corruption.
Why do judges and lawyers let this happen? This would seem to be major moral failing of theirs. Certainly, they do make vastly more money.