USPTO Asking For Ideas To Enhance Patent Quality

dtmos writes "Tired of seeing poor-quality patents issued? Have a great way to solve the problem? Well, here's your chance to be part of the solution. The USPTO has issued a Request for Comments on Enhancement in the Quality of Patents (PDF), seeking public comment on ways to improve 'the process for obtaining the best prior art, preparation of the initial application, and examination and prosecution of the application.' Comments should be sent to patent_quality_comments@uspto.gov by February 8, 2010."

Comments

Bradbury's

[gmuslera]

Farenheit 451 is what patents need by now. Or the civilization, because one will end burning the other to the roots, you choose.

I have a patent

[MrEricSir]

...on issuing low-quality patents. The USPTO owes me millions.

Re:I have a patent

[Arthur Grumbine]

I'm pretty sure they've got prior art.

good book on patents

[starfliz]

I think Innovation and Its Discontents: How Our Broken Patent System is Endangering Innovation and Progress, and What to Do About It is a good book on the patent system and its problems.

Method for paying some goddamn attention.

[lenester]

Hold on, I've got a perfect solution but I need to patent it first.

Re:Right ...

[starfliz]

Next time you complain that something is bad in the world remember that :P Most problems are caused by people wanting quick money without consideration for long term value. I am just this was a joke post, but just pointing the obvious out :D

Re:Mandatory literature review?

[lenester]

Why did this get downmodded?

Re:Stop StifflingReal Innovations

[starfliz]

I don't understand patenting software binaries in your post. Are you basically advocating copy writing? That would make more sense.

As for 2, I don't think that would be good because physical objects could be quite costly and some guy in a basement might have an innovative idea, but not have the resources to produce it. He needs the patent to protect his great idea (reward) while he can sell royalties for production or sell the patent.

I think with 3 you will just end up with company wars. All the companies that care will be the only ones watching for the patent scrutiny period and they will spend lots of money to debunk it while stealing the idea or trying to steal the patent. And the guy in his basement inventing something already pays a lot for a patent. I don't want to add the fear of getting sued to that.

One of the problems is the patent office makes money for the government. That money does not go into making the patent office better. Underpaid patent clerks learnt he system and get hired away for high salaries at companies to make patents which means you have new people at the patent office a lot and the senior people are overworked.

Peer review

[blair1q]

Place all patent applications on the web and ask for comments.

But first, I wish to patent the spam/bullshit/troll/sandbag filter, which you will need to weed the valid comments from the noise.

Re:Peer review

[starfliz]

I think the main people here will be companies clogging the system with more junk to delay and manipulate.

Re:Mandatory literature review?

[blair1q]

Because I wanted to post my own version of it later in the timeline as though this had never appeared.

(That's not just irony, it's comedy.)

Send request for comment to all prior work refs

[baxissimo]

I think it would help a lot if the USPTO would contact authors of the patents and papers listed in the "prior art" section and ask for their input. The problem the patent officers seem to have is that they are clueless as to what is obvious to a practitioner of a specific domain. Well, those prior art links usually give you a set of pointers to some people who are specialists in the area. They're precisely the ones you might want to consult and who might have an interest in patents in that area. Unfortunately, with the broken legal system around patents, no inventor will want to look at patent filings because it would open 'em up to treble damages down the road if the patents go through. Sigh.

Re:Send request for comment to all prior work refs

[starfliz]

that puts to much burden on the public. If someone makes something and its been in common use for 20 years who is responsible for continuously monitoring the requests to make sure it isn't patented later when it makes no sense?

I think all that would really do it give companies a change to cause trouble.. the ones that can afford to anyway. Prior art does need to be researched more but this has more to with patent office having time to deal with stuff than competence.

Re:Send request for comment to all prior work refs

[Dachannien]

One issue with your suggestion is that by asking inventors of prior art about their inventions, we are likely to overestimate the skill of the ordinary artisan. Obviousness is meant to be considered from the perspective of a "person having ordinary skill in the art" - not an expert in the art, not Linus Torvalds, not Steve Wozniak. In some fields, ordinary skill may require a Ph.D., or it may be represented by Mom doing some gardening on the weekend.

We actually are allowed to contact applicants themselves (through, or at least with, their attorney if they have one) if we feel that a discussion of the application will forward prosecution in some way. The Office is actually trying to encourage this to some small degree.

On the other hand, there have been a few times where I've wanted to contact some third party individual to ask them a question about a reference I've found, but we don't do that because of confidentiality rules during the examination of applications.

Shocked silence

[janwedekind]

Or a Slashdot forum with less than 50 postings. That's what you get when you ask such a question.

And while we are at it. We also welcome
* suggestions on how to improve support for proprietary software
* input for the banks on how to increase capital gains
* proposals for improving the safety mechanisms of guided missiles

Examiner

[bug1]

Make the patent examiner personally liable for the mistakes he/she makes.

If someone passes a patent that is overturned, then that person is directly responsible for the damage that invalid patent has caused to society.

Its probably difficult to sue government employees so maybe subcontract it all out under a contract with high penalties and reward for quality.

Re:Examiner

[Dachannien]

So, in essence, you're saying we should be treated like specialist surgeons - get paid $400k a year, but spend most of that on malpractice insurance.

Also, keep in mind that patent examination is an art, not a science. Some things are going to be missed, both in terms of false positives and false negatives. It's about finding what we can in the time allotted (between maybe 6 and 30 hours, depending on our field and our level of experience), applying it against the claims, and allowing the application if we can't find what we need. If someone litigates a patent, the defendant will (or should, if they plan on fighting it) fork over enough big bucks to find the prior art that we weren't able to.

By the way, eventually, we're going to start hiring again. If you really want to make things better, you might try working here for a while to see how the system actually works.

Re:Examiner

[adolf]

Hrm.

I've invented a few things, though I hold no patents on them because I've understood it to be a very expensive process for a simple individual such as myself.

Every now and then, I run across a patent for an idea that I've had, or a project that I've built, filed sometimes years after I've already invented the thing. It's annoying and frustrating, especially for the stuff that I've written about and/or published, since I also understand it to be a very expensive process to litigate a patent.

So. I have a short list of things that I've invented which I'll realistically never be able to monetize, just because someone else patented them first. That prior art existed really does not seem to matter at this stage of the game without deep pockets.

Re:Examiner

[Dachannien]

If you have prior art which presents a "substantial new question of patentability" for an existing enforceable patent (i.e., it's during the patent term and the owner has been paying their maintenance fees), you can file for an ex parte reexamination. The fee is not exactly inexpensive ($2200 or more, considerably more than the fees for actually applying for a patent), and there are some fairly complicated hoops to jump through that might make hiring an attorney a good idea. Still, it's something to consider if there's a particular thing that you're pretty sure you could make money on if the patent weren't in the way. Look at it as an investment - if you can get a good return on that investment, it may be worth filing the reexam request, but it's expensive enough to make it not worth doing it based on principle.

Note that it's harder to get a patent invalidated than it is to reject a patent application, so the prior art that you provide in a reexam request has to be pretty spot-on. Also, the patent owner can amend their claims during reexam to overcome the prior art, so the applicant may still have a patent even after the reexam is concluded. In that case, you should be careful that you don't later infringe on the narrowed claims of the reexamined patent.

No Software patents

[euxneks]

How about you leave the patents to things that are actually patentable, and not processes, or ways of doing things?

Re:No Software patents

[Theaetetus]

How about you leave the patents to things that are actually patentable, and not processes, or ways of doing things?

35 U.S.C. 101 Inventions patentable.

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

You were saying?

Re:No Software patents

[eqisow]

I think he was saying that this needs to change, especially in the area of software. Why do you ask?

Re:No Software patents

[Theaetetus]

I think he was saying that this needs to change, especially in the area of software. Why do you ask?

No, I think he was completely ignorant and said patentable subject matter includes "things that are actually patentable, and not processes."

If he wanted this to change, the arena is not the courts (i.e. the pending Bilski case) or the USPTO (this article), but Congress. You know, those old white guys who write laws.

Re:No Software patents

[Thinboy00]

Bilski says "machine or physical transformation". The word "physical", combined with the ambiguity of the U.S.C. that you quoted, means the courts may indeed be the arena.

Re:No Software patents

[Theaetetus]

Bilski says "machine or physical transformation". The word "physical", combined with the ambiguity of the U.S.C. that you quoted, means the courts may indeed be the arena.

No, Bilski said "tied to a machine, or physical transformation".

See, one reading it your way would say "oh, gosh, patentable material includes:
(a) machines; and
(b) processes that result in a physical transformation."

That's not what Bilski said. Bilski was explicitly dealing with processes and said that patented processes are:
(a) "processes that are tied to a particular machine; and
(b) processes that result in a physical transformation."

What you're trying to do is take the statutory categories of:"
(i) processes,
(ii) machines,
(iii) [items of] manufacture, and
(iv) composition[s] of matter"
and turn them into "
(i) machines,
(ii) more machines, etc."
Sorry, but that's not the law. Want to change that? Go talk to Congress, not the courts.

It doesn't work

[gregor-e]

I tried emailing a suggestion and got: Google tried to deliver your message, but it was rejected by the recipient domain. We recommend contacting the other email provider for further information about the cause of this error. The error that the other server returned was: 550 550 5.1.1 : Recipient address rejected: User unknown in relay recipient table (state 14).

Re:It doesn't work

[Thinboy00]

Possibly the /. effect, I'm seeing the same thing (but given the nature of the error, I would if it wasn't, so...).

Re:It doesn't work

[Thinboy00]

I went ahead and RTFA'd (I hate adding apostrophe's like that, but I didn't want to be misinterpreted) and the email address is right.

Re:Mandatory literature review?

[GrantRobertson]

You are already required to list prior art. Anything in the literature (previous to filing) is prior art and thus is already required to be included.

Re:Mandatory literature review?

[Thinboy00]

What if you "forget" something (under the current system)? Now reread what the GP said.

Three a day

[jonsmirl]

Post an ordered queue of all of the pending patents sorted by what the patent office perceives to be the best to worst patents. Pick the top three patents from the queue and only issue three patents a day. Allow everyone to fight over their place in the queue.

This provides a giant incentive for everyone to find prior art that invalidates or damages all of the patents in the queue in front of them. It also creates a giant incentive to provide perfect applications for truly outstanding ideas in order to convince the patent office to move you closer to the front of the queue.

No one is denied the opportunity to file a patent, but it has to be a really good idea in order to get to the front of the queue. If not your patent may sit in the queue indefinitely.

Limiting us to three patents a day would make patents truly valuable again.

Re:Mandatory literature review?

[Tuoqui]

It could all be solved by teaching the patent examiners HOW TO GOOGLE SHIT.

Re:Mandatory literature review?

[GrantRobertson]

So, are you saying that the "GP" was saying that if you forget one thing in your patent application that all your hard work is down the drain? There is actually quite a lengthy process of back and forth (I forget what that is called) where the USPTO asks you to clarify things and allows you to modify the application. However, still I don't think that simply leaving something out, however immaterial, should disqualify a patent.

Simply trying to make it more difficult to get a patent (or easier to invalidate a patent on a simple technicality) will not solve the problem. We need to make the rules for patents more reasonable and fair to all. Not just throw the baby out with the bathwater.

Note: Email address is broken

[192939495969798999]

Sigh. Your tax dollars hard at work.

Delivery to the following recipient failed permanently:

        patent_quality_comments@uspto.gov

Technical details of permanent failure:
Google tried to deliver your message, but it was rejected by the recipient domain. We recommend contacting the other email provider for further information about the cause of this error. The error that the other server returned was: 550 550 5.1.1 : Recipient address rejected: User unknown in relay recipient table (state 14).

But the address doesn't work.

[ResidentSourcerer]

So I downloaded the paper. It gives as the address:

patent_quality_comments@uspto.gov

So I fired up, sent them 6 ideas

A second or so later I get the dreaded:

Delivery to the following recipient failed permanently.

Sigh.

If any others care, this is what I suggested:

0. Establish a web site forum where this whole idea can be discussed.

1. Public Search for prior art.

When an application comes it, the claims and abstract are published and are publicly available. Further, there is an automated email system that users can set up with keyword searches using Google syntax to get weekly notifications in areas of interest.

Each patent is the start of a forum thread where people can point out prior art. An apprentice patent examiner acts as a moderator of the forum. The patent applicant also is a participant.

The moderator awards 'karma' points to participants based on the clarity and insight of their commentary. Writers with higher karma are given greater attention.

In some cases the questions brought up on the forum will cause the applicant to modify the language of his patent.

2. All patents must be backed up with working examples. It is no longer sufficient to patent an idea. However an application can start before the completion of the working example. Initially this is for a year, but perhaps should be extendible on payment of a reasonable fee.

Because of the public review process, however, a person who takes too long after making application may find that someone else beats them to it.

3. There are occasions when there is an idea whose time has come. There may be multiple submissions for what amounts to the same thing. In this case the patent office has the choice of:

* Granting the patent to the best implementation of the idea.
* Granting the patent to the first completed application.
* Granting a joint patent in multiple names.
* Grant a patent to one individual, encumbered with a fee sharing agreement to the other.

This may result in situations where A proposes a patent. During the review period B sees it, and writes an application for the same idea, but demonstrates a better application of that idea. B gets the patent.

4. Elimination of overly broad claims.
If a patent claims results "using a catalyst from the Palladium group of elements" he has to demonstrate that several different elements from that group are effective as catalysts. It's not sufficient just to show that Palladium works. If somone clones a sheep, they can't claim that the method works for all mammals. Once they have demonstrated that the method works for several different mammals, they can broaden their claims.

5. Clarity of application.
The application should be clear enough that a third party equipped only with capability in the prior art can duplicate the results.

6. Pre-licensing
Someone who wishes to license a prospective patent may enter into an agreement with the applicant. License fees are held in excrow until the application is accepted. In the event that an application is turned down, license fees revert. This needs to be carefully thought out to deal with multiple overlapping applications.