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 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
"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
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.
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.
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.
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.
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.