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USPTO Plans Could Kill Small Business Innovation
bizwriter writes "If protecting inventions is at the heart of high tech competitiveness, plans afoot at the US Patent and Trademark Office (USPTO) will critically wound small companies. The agency's notorious 750,000 patent application backlog has long been the subject of heavy criticism. One of the key tools the USPTO wants to use is to raise fees so high as to directly reduce 40 percent of the backlog. That would mean setting filing and maintenance rates so high as to make it economically difficult, if not impossible, for many small companies to adequately protect their innovations, leaving large corporations even more in control of technology than they are now."
One more step on he road to workers power. Capitalism is only producing its own gravediggers. The more giant, centralized the corporate monopolies become, the easier it will be for the Soviets to expropriate them and integrate them into a planned socialist economy. Forward to a workers state!
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Why not keep the basic cost the same but increase it by 20% for every additional patent filed in a year?
Do any countries tax patent-license-royalties other than as ordinary income, and do they specifically feed that money back into the patent office?
Sure, this won't collect any revenue for patents used exclusively in-house or those licensed at zero-cost, but it would make the owners of the most richly-licensed patents pay a greater share of the cost. Or rather, it would make the licensees of those patents and their customers pay, since of course the cost would be passed down.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
Using modern technology to search for prior art quickly and having a $100 penalty for submitting prior art probably would do more to fix the system than any amount of raising the fees.
-- $G
It isn't "could kill small business", rather, the whole thing has turned into "Designed to kill all innovators that don't have big backers".
It's the system, man.
The elites want total control. The patent system is but a small part of their game plan.
Muchas Gracias, Señor Edward Snowden !
Not if I file a business method patent on the process first!
Still #1 -- Lonely Gay Geek
Small entity inventors already get 50% off most USPTO fees, and USPTO Director Kappos has suggested creating a "micro-entity" inventor class for whom the fees would have an even smaller impact relative to that for large entities.
What's more, the backlog hurts small entity inventors much more than it does large entities. Small entity inventors are much more likely to rely on venture capital funding, and many VC outfits are unwilling to put money down without some patent protection on the table. If a small entity inventor has to wait for 3+ years to get that protection, they may end up folding before the patent issues. On the other hand, a large entity inventor has lots of stuff going on, and relies on its other business to keep things moving while they wait for their patents to issue, so the backlog has a much smaller impact on them.
Solving the backlog problem is ultimately going to require hiring more examiners, and that costs money. For an agency that is entirely fee-funded, being able to set those fees at appropriate levels is necessary to ensure that patents are issued in a timely fashion.
Why not let people choose whether to be protected *with* patents, or to be protected *from* patents.
So big companies can file patents and sue each other; small companies who choose not to file can neither sue, nor be sued.
Well, this should pretty much make sure the defensive patent license doesn't see much use.
I think it's too early to panic. Having practiced before the USPTO for over 20 years, I've seen many times how the small inventor lobby works its magic to protect the small filers. In fact, I was disappointed that the article didn't even mention the two-tier fee system, providing smaller fees for small businesses, that's been in place for many years now. The PTO needs lots of fixes, but I agree that somethings need to change with the fee structure. Large companies can game the system by flooding the system with new applications, re-filing to wear down examiners, and taking frivolous appeals. Wise changes to the fee structures, which take into account these sorts of tactics, as well as increasing maintenance fees to discourage "wait and see" litigation, will be helpful to the small guy. Hopefully the PTO will show some wisdom.
The vast majority of patents, and therefore the vast majority of patent fees, are paid by large entities. I suspect they're the ones most opposed to any increase, because it will hit companies that file 10,000 patents much harder than companies that file 1 patent. But nice job hiding behind concern for small business.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
The fine should be the greater of $10,000 or *two* times whatever profits are incurred by the patent. Having a $100 fine for crappy patents is not enough to encourage *anyone* to not file them.
To the size of the company.
My ism, it's full of beliefs.
... as it is designed so that the not-so-wealthy don't get to patent anything.
That poor guy may end up having to sell his invention to the wealthy elites, and the elites can then patent the thing and rake in much much much more $$$ with it.
And btw, it is happening.
Muchas Gracias, Señor Edward Snowden !
Easier fix - get rid of software and business method patents. "Oh, but we can't do that - we'd have so little work to do that we'd have to lay off people!"
It should cost almost nothing to *file* the patent. All the costs lie in the examination and court challenges.
We all know about lazy evaluation in programmerland. It would make sense to delay the examination until there is a challenge, then charge based on the economic impact of the patent, to either the person who infringed it, or to the person that filed an invalid patent.
I have several patents in my name, filed by my employer. With the business climate the way it is (which is to say, globally flat to slightly rising revenue, improving profits and a rise in stock price because of a constant decline in costs), we're being scrutinized on the patents we do file. If the costs go up even more, we'll file for fewer of them. There's already mounting pressure to keep ideas as "trade secrets".
2 year protection = normal price
5 year protection = three times normal price
10 year protection = ten times normal price
20 year protection = fifty times normal price
Please read my Canon EOS tech blog at http://www.everyothershot.com
Companies can still protect themselves to a degree via documenting even if they don't file. If it ever goes to court a small company is at such a disadvantage anyway because of the cost that I think this isn't really that big a deal.
One thing it would change is that small companies with cool IP but no sales look less interesting as acquisition targets.
This actually will hurt the little guys and make sure that only mega corps can own the world.
I think a better way would be to assign the fee AFTER the patten goes through. Basically, if a patent is found to erroneous or false in some way, the fee would be EXTREMELY high. This would be encourage less crap patents and make sure people do a patent search before trying to patent their crap.
Finally, the fees for the approved patents can be based on the company's yearly revenue weighted against the market value of the patent.
I think that would be more fair.
Instead of raising fees to lower the application rate, how about raising the bar for patents to be genuinely useful, innovative and non-obvious.
So there are fewer of these:
http://listverse.com/2009/05/07/10-more-extremely-bizarre-and-pointless-patents/
Wouldn't companies then just patent their inventions in other countries ? Then ACTA would force the US to honour them ?
If they stopped granting software patents then it would free up a huge number of people. They obviously don't know software very well as they keep granting patents that would be the rough equivalent of granting a patent on farting as a solution to reducing inter bowel gas pressure. The same with business processes. Stop it. I will leave one caveat. If you come up with something that truly makes programmers sit back and say wow then maybe an exception could be granted. Let's say a whole new AI based operating system that can be written in 200 lines of code.
Currently, the patent office is required to review prior art submissions from outside parties for 60 days. The
patent is visible in the system for 60 days, and then they can throw your notice of prior art in the garbage.
2 months is not a lot of time. If they want to reduce the backlog, then crowdsource the problem. Open that
duration up. Even create some incentives to get people to read the patent applications. A little education
on what constitues prior art. Maybe even a hall of fame which says, "Hey, this guy helped us out by finding
something we didnt know about", patent denied.
Its much better to stop a patent (and the expensive process) in the beginning, then defend against an established
patent in court. By crowdsourcing the patent prior art review system, everything would work better.
Small businesses might consider defensive publications. It doesn't give you a monopoly, but it does prevent you from being locked out of your own invention.
Regards,
Jason
I'd say that about covers it.
A system designed to protect the small inventor puts itself out of reach of the pocket book of the small inventor.
Being small is being, uh, dis-incentivized.
The positive feedback loop will take care of crushing the small inventor into a thin red paste under the soles of gummint and big corporations.
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Pffftt!
If only the big companies can afford it then that means there will be fewer stupid little patents. It will also make is harder for big companies to file tens of thousands of patents. How is that a bad thing?!
The USPTO could easily double fees without significantly impacting the cost of getting a patent. The majority of the costs (80-90%) are the hourly fees charged by a patent attorney to draft and prosecute the application.
The fees must be too cheap when you have companies (particularly IBM) filing applications that are basically duplicates of patents they already own.
Instead of the hall of fame, offer part of the application fee to the guy that provided the necessary clues to deny the patent.
This could easily create some freelancer patent examiners.
- Abolish (costly and time-consuming) interference procedures by switching to First-to-file instead of (fraud-susceptible) first-to-invent.
- Abolish the possibility to file a continuation (in part?) with added new matter. The only things you are allowed to do is amend based on what is in the application (and add a discussion of prior art).
- Let European examiners train their US counterparts. The problem-solution approach and a healthy dose of Greek logic does wonders for granting patents for inventions and rejecting applications that do not involve an invention.
Bert
Move it back to individuals only and a prohibition of patent transfer, and it seems like you've solved half the problem.
How about extending Creative Commons concepts to the invention realm? Instead of simply being able to demonstrate freedom of the idea by publication or otherwise provable prior use, you could free the idea by wantonly releasing it into humanity's commons. Along the way, you could specify similar categories of use, like attribution, not for profit use, etc. and still make money from some applications of the technology. Unless it infringed existing (prior) patents somehow, the publication of the description would invalidate future attempts to patent the idea, thus protecting the inventor and humanity at large from a wasteful fight. Patents mean nothing for a sufficiently valuable invention with sufficiently powerful opposition, so why not just open it up and get away from all the litigation? Just consider the intermittent windshield wiper as an example. Already there is little cause to patent an idea because defending it becomes a serious problem for most mortals. Raising the cost and barriers to what was intended to be a protection for the little guy removes the last vestige of fairness from the law anyway. If one claims an invention by some commons method, it assures safe use unless it already infringes, and companies the world round could share in the wonders of American Innovation. Mr. Lessig, are you listening?
I haven't thought this all the way through yet, so consider this an RFC. But why not make the system more relative: filing fees cover the USPTO's research expense. An ice pick with a new handle design is several hundred dollars for the inventor to file, or less. A patent filing which includes dozens of claims about a flux capacitor that can rearrange DNA on-the-fly in a living organism is perhaps tens of thousands of dollars. This bodes well as more complex inventions often have more financial potential ($).
The immediate issue that comes to mind is how does the inventor know his fees ahead of time as to know whether to proceed? Maybe a low flat fee for the USPTO to determine the true cost of a formal, comprehensive filing of his invention in a particular category?
It would be a shame, no, tragedy, for the "little guy" to be cut out of the US's innovation process. We know how incredibly significant the little guy has been in the technical fields. Tesla was not a rich man.
1. regular patents. put the fees up all you want. make them harder to get.
2. defensive only patents. can only be brought out when you (or a "partner" are being sued for some reason.) low to no fees, fast tracked ahead of regular patents in the grant process, easier to get.
thoughts?
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The USPTO has (decades ago) lost all sense of what patents are even for. They are NOT for recognizing who invented something (first). Instead, they are for granting exclusive rights to an invention, for a period of time, in exchange for having the invention made available in the first place. Patents actually take away the rights of inventors who happen to not be first. This is considered an acceptable tradeoff when the public gets to have (most) inventions that would otherwise have not been available.
The truly innovative invention is statistically unlikely for someone else to invent it anytime soon. Eventually, at some point in the future, lots of people could invent it. But then, it's not innovative, anymore. When it's not innovative, there's no public benefit of patents since the invention would have happened, anyway. Once dozens of inventors could invent something, someone will just do it without patents (and a patent at this point only destroys a competitive business environment).
The USPTO needs to get back to the original idea of patents, which existed even before there was such a thing as a corporation. They need to be rejecting applications for everything that is not innovative, and deny the patent.
For each application, ask the question "Is this something that is likely to be invented by someone else within the next X years who would not bother to apply for a patent on it?" ... where X is half the term of the patent that would be issued. Also ask "Is this invention possibly obvious to at least a few inventors educated or experienced in this field?" And ask "Does issuing a patent for this invention encourage other inventions from OTHER inventors that would otherwise never be invented by anyone were this patent not issued?" If either of the first two is answered YES, or the last is answered NO, then the patent should NOT be granted.
Remember that NOT granting a patent does NOT take away the rights of the inventor. What is different is that not granting a patent also does not take away any rights of any other inventor, either.
The value of a patent SHOULD be in protecting an EXCLUSIVE inventor from copycats would would just take the idea they did not invent, and unfairly compete. And as such, it should only be used where it is clear there likely is just ONE inventor. Things that are obvious, would have more than one inventor (given a short period of time, once the need for it emerges) and no patent is needed for the public to gain from it.
USPTO ... just stop granting patents for junk inventions ... which are the vast majority of your applications ... and the vast majority of your past grants. The applications just keep piling in because you are just summarily granting anything that isn't an obvious duplicate of something previous. Do continue checking for duplicates. But also check for obviousness, and public benefit of the grant. You shouldn't be issuing more than about 2% to 5% of what has been issued in the past. Even better, set a finite quota of 1000 patents per month and issue them only for the best applications (figured according to the questions above).
Slashdotters ... quit jumping on software patents. It's the patent system itself that is broken, regardless of whether implementations can be done in hardware or software. Truly innovative patents (a tiny fraction of what gets granted these days) should be granted, regardless of how they can be invented ... in hardware or software.
now we need to go OSS in diesel cars
Does a rejected patent also cost some fee? (It would be reasonable, because after all, it did cost something to examine it). In that case, a good incentive would be that the first one who finds prior art gets some part of that fee.
The Tao of math: The numbers you can count are not the real numbers.
Considering that small business is the engine of job growth and innovation, this is the dumbest idea to come out of USPTO ever. Imagine the world today if Apple, HP, and Microsoft were all prevented from flourishing. The internet would not exist, mainframes would still be king, silicon valley would not exist. Real innovation almost never comes from existing large companies.
I have mod points. The reign of terror begins now.
Some headway might be possible by throwing some money at developing a machine-parsable English syntax requirement.
The patent office or perhaps some other department would manage the development of the syntax, ontologies, webservice APIs, etc. that will have a great impact on not just patents but perhaps other areas of government, law, and business.
If you make a fast track for people who file patents using an web application, there will be incentive to do so.
Development of such a system would also entail translating past patents into the language. Due to the type of writing being used in patents, it may be easier than ordinary English for a natural language processing system to understand.
Of course understanding real natural English as written or spoken by humans is tough. Though analysis of written English is extremely good in some areas like extracting pronouns. If a disambiguated, reduced-bandwidth version of English could be introduced, and if the structure of patents can also be made more computer friendly, it seems possible.
At the very least, electronic filing with use of some common terms regarding the subject area and type of patent would probably be useful. There already exist various data services related to patent searching that may hold some of the needed information, however an open, free system needs to be developed. It would be of world importance and likely have a great positive impact on the economy if implemented, thereby justifying that the government invest significant funds to do so.
Funds should also be provided to allow computer scientists to work in the patent office to find ways to improve efficiency up to and including development of a whole new patent process designed to remove the current bottlenecks. Increasing the financial burden of patent submission is not a creative solution.
Luckily, protecting inventions is not at the heart of competitiveness. Patents are, by nature, a short-term monopoly on a technology. They are anti-competitive. Their intent was to spur risky innovation, and we can argue about whether or not that works in a low-barrier-to-entry market like software, but reducing patents can only increase competition.
If only you could mod up suggestions to the government, then we would have a lot more input and help for the problems we have.
Here's what we do:
1. Create a new class of patent examiners who work from home. Vet and enlist a huge number of available experts to examine patents and be paid per examination. The USPTO could send an application right out to ten people conversant with any exotic field and get quick decisions.
2. Make patent applications free. Make renewal of granted patents increasingly more expensive with each passing year, so profitable patents are maintained and unprofitable ones are abandoned.
If Slashdot were chemistry it would look like this:Cadaverine
Tax the products protected by patents to raise the revenue to hire more examiners. Then make patents free, or pay the inventor for them. They serve the public far more than the inventor, after all. Very few produce income for the inventor. And since only large entities can afford to bring new inventions to market, and therefore profit from them, they should pay for the system out of those profits. I have been forced to abandon more than ten patents because of high maintenance fees. I now no longer patent anything, but keep my good ideas to myself in the hope that someday I can develop them. Which is to say that most of those ideas will be lost.
Actually, high enough fees will have an impact on large businesses, but only if they are truly high enough to make it impossible for small businesses. Fortunately, there is a third choice.
A much better pricing scheme would be one that forces companies of all sizes to prioritize their patent filings and only file the ones that matter. I propose that the base filing fee be tiered based on the number of non-expired patents the company holds or has pending:
This would significantly reduce the number of crap patents. Right now, small entities get a lower filing fee, but that doesn't completely solve the problem, either. It just encourages small businesses to file too many patents. What matters is not how big the business is, but rather how many patents the business files.
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Inventors apply for patents, not companies, so this penalizes individual inventors with a series of good ideas, but it doesn't penalize companies that have a stable of patent writers.
Actually, that's very easily worked around. All it takes is a subsidiary, or literally anyone within the company to apply for a patent under the lesser price, and then sell the patent to the holding corporation.
Not that I disagree with the idea. The more you contribute to the queue with fluff, especially if you're planning on leveraging that to harm others instead of benefiting industry. There would need to be some sort of auditing of who holds the patents after after they're granted to properly apply the pressure to the trolls.. err.. businesses that are causing the biggest backlogs.
Obviously something is wrong with me because I'm not new here but I *did* read the article.
From the article: "Put bluntly, the USPTO would raise patent application and maintenance fees to such a level that massive numbers of applications will never be filed in the first place."
There is *nothing* to support this. The USPTO has already implemented a number of measures to shorten the patent approval process. I know of at least two specific programs that are in a variety of beta / roll-out modes. One is a fast track program for patents previously approved in foreign countries and the other is the Accelerated Examination (AE) program for those that are willing to do additional work up front and willing to limit the number of claims. The AE program has had approval rates as high as 80% and require a final disposition within 12 months!
I'm not a lawyer but am considering becoming a patent attorney and am currently finishing my second year of law school. There may be many points of contention with USPTO actions but I don't believe that they will be raising fees to the extent imagined by the doom-n-gloom author of the linked article. Frankly, if that somehow *did* occur it would likely be held to be invalid as a due process issue under the Constitution.
For those who may not be aware: the USPTO is largely self-funding and is one of the few (the only?) government bodies that has historically been able to run without additional funding. In fact since 1991 they have had $700 million diverted from their coffers. This is likely the reason behind their request to have greater control over the fees that they receive; by being able to retain surplus funds it gives them the flexibility to do things like increase hiring when the rest of the government is in a hiring freeze.
JAGga.me ----> Producing video games addressing emotional health and wellness issues affecting teens.
plans are afoot, plans are under way, plans are not underfoot.
THL phish sticks
The sale hole is very easily plugged: require all patent transfers to be registered, and another tiered fee paid by the buyer. No refunds on the original fee. In other words, the fee is charged every time a patent changes ownership, including the first time when it previously had no owner.
Once the system gets rolling and gets a lot of participation (think an independent patentpedia.org project), I think there would be a snowball effect. So many patent applications would be quickly invalidated (after the applicant pays hefty fees and lawyer bills of course) without much effort on the part of the patent office, that fewer patent applications would be submitted. When fewer patent applications are submitted, then those people at patentpedia trying to help rid the world of bad patents will have more time to address each application, which will result in still fewer bad patents. Whenever equilibrium is reached, the percentage of bad patents being issued will most likely be a small fraction of today's percentage.
In effect, in addition to throwing out patents for non-obviousness, this would also extend the period allowed for "prior art" to some time after the patent application was filed, because, realistically, a competing proposed solution could rely on any prior art then in existence. Some will cry foul on this, but if the goal is truly to grant limited monopoly rights in exchange for educating the public, shouldn't that monopoly only be granted if, in fact, some previously undisclosed new invention is disclosed as part of the bargain?
How about a short 'safe harbor' period whereby a patent holder is notified of a problem patent and then has an opportunity to withdraw it. they could be subject to the refund of point 3 but not the 50% fine. Otherwise what your proposing sounds interesting. A
I dont do meaning of life questions.
The USPTO like the rest of the government is out if control.
Protecting inventors is NOT the issue. Controlling inventions and the inventors is.
Any idea that wrests power and money from the "established" power/ money structure is to be disuaded at any and all costs. This is the reason Nikola Tesla's inventions were shelved and classified. Tesla's inventions were so profound that only after control was ceded to the banksters and utility magnates that it flourished. Not for the benefit of the end users, but to the benefit utility companies and their financial backers.
I know you will say, "The reason for business is to make profit." You're right, however, there is profit and there is outright theft.
Case in point; the phone company, way back when it was a monopoly, rented the phone lines to its customers for years and decades. Long after the cost of installation and maintenance was paid, the money kept rolling in.
Since the advent of cellular technology, wires to a degree have become obsolete, yet services fees constantly increase with the increase in user-ship. India and China have more cell phone users combined than the total population of the US. Yet, there is no marked drop in pricing worldwide.
Then there is the case of Stan Meyer, he invented an engine that ran on water. The powers that be tried to buy him out(he refused), threatened him,(he still wouldn't budge), then they had him killed, Oh, excuse me, he died of food poisoning(?). End result, his invention was seized by the government and classified for national security.
National security meaning, the oil companies and their financial backers would lose hold of the oil monopoly.
No one will know the enormity of the situation for a long time, if ever. The adage still applies, Time wounds all heels, therefore, it is possible that the information will be brought out.
The mind conceives, the body achieves, the spirit manifests.
A potential $100,000 fine just for filing a bad patent would stop most small businesses or independent inventors from filing at all, even if the patent was valid -- it's way too much risk. I certainly don't have $100,000 lying around.
Ultimately, it's the patent offices' job to determine if patents are valid or not. The applicant ought to do due diligence to check if their idea is original, but realistically it's not possible to know every invention that has ever been thought of in the whole history of the human race. Also, infringement is fairly subjective -- it isn't always possible to predict which way the courts are going to rule.
If you want there to be fewer bad patents, there is an easier solution: simply make it cheaper and easier to challenge an existing patent. When you file a patent, the patent office is effectively saying "this patent represents a unique idea significantly different from anything that has been invented before". This is the claim they make after you pay them a couple hundred dollars. It should be even simpler to ask them, "does such-and-such invention infringe on such-and-such patent?", and they should be able to come up with an answer for a cost that is similar to filing a patent. As far as I understand it, such a simple determination currently requires a very expensive lawsuit.
Why not just have a system where publishing the description of an invention automatically patents it? If there's any dispute, let the civil courts handle it.
This way, we don't need a massive and slow bureaucracy -- the government only gets involved when there is a claim of infringement. It seems to work OK for copyright (and by OK, I mean it's a total clusterfuck, but at least you don't need to convince some "copyright clerk" at the copyright office that your work is original before you publish it). Of course there would need to be some guidelines about how and where to publish the description of the invention, but this reinforces the original intent of patent law, which was to encourage people to share information by publishing their inventions.
-- 77IM
Student: Is it true that the foundation of the universe is paradox?
Master: Well, yes and no.
The PTO should be punished for issuing bad patents. Say, if a patent is invalidated by court, PTO returns the patent fee to the owner, and PTO must pay the plaintiff's attorney. Make it expensive enough for them that it hurts more than doing the job proper to begin with.
It is all about incentives, not the price of patents. Someone will always have enough to buy their ridiculous ways.
big companies would just spawn little puppet companies to file 9 patents at a time.
New Zealand examines Patent Applications within 15 days and I am very impressed by the quality of the NZ examinations. Also note that Australian patent attorneys are often also New Zealand Patent Attorneys.
Also filing via an Australian Patent Attorney enables you to get the examination done in NZ and then using the Australian - USA "Patent Prosecution Highway" (PPH) program ( http://bit.ly/d8H9Lq ) you can have your complete standard application examined successfully before its undergoes examination of your corresponding application in the USA since:
1) this will fast track the examination of the corresponding USA application; and
2) this should significantly reduce the time in potentially securing patent protection in the USA, due to the USPTO taking into account work done by IP Australia (which can utilise the NZ examination) in examining their Australian complete standard application.
In other words, the examination process in the US will leverage patent examination procedures in Australia/NZ to obtain corresponding patents faster and more efficiently. See http://1p.com.au
There is a simple solution.
Make a bounty system for submitting prior art.
Everyone should be allowed to submit prior art, but it should cost 100$ to submit a piece of prior art. (To avoid spamming.)
If the piece of prior art submitted invalidate the patent,
then the submitter receives the bounty.
The bounty is stepwise increased.
The first month the bounty is 1000$, the next month 2000$ then 3000$, until 12000$ the 12. month.
If the patent application survives the 12 month period then the patent is granted.
All the submitted prior art should become public available as it is submitted.
To complete they should add subscription fees and a facility whereby inventors who do not wish to patent their inventions can for a very cheap fee file their "prior art" (without any kind of inspection).
Very quickly you only have patents being filed that people genuinely and seriously plan to exploit and require protection. Nobody would file any old crap because it might just enable them to sue a competitor for unwittingly copying their "invention" by basically having implemented the natural solution to a task. There would not be a huge proportion of patents sitting there preventing society putting the idea to use, when the patent holder has decided not to exploit it but there is no reason for them to invalidate it. Patent trolling would start requiring serious investment.
The first thing to ask if why society offers patent protection. Is society really benefiting by protecting things so unimportant that the author would not ask for that protection if it cost just $164 more?
And further, a corporation can't apply for a patent, period. The sale hole is already plugged by current patent law; the fees charged to anyone who has an obligation to assign the patent to a corporation pays fees based on that corporation. That's already how it works for the small business fee. It would take a catastrophically inept wording by the patent office for that not to be the case for a tiered scheme as I suggested. :-)
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Actually, current patent law would forbid that. A shell company that is required to assign patents to the parent company would be charged fees like the parent company. A shell company that is not required to assign patents would mean the parent company cannot usefully use those patents offensively or defensively.
Also, I rather like the idea suggested by TimboJones in which every patent assignment is charged as though it were a new patent.
Check out my sci-fi/humor trilogy at PatriotsBooks.
Hi, Problem today is that certain organizations and people (Microsoft and SCO for example) hoard patents, then stifle innovation by blocking new ideas and innovation when someone releases a product. For example, Microsoft has a patent regarding the use of the human blood stream as a local area network media. Patents are intended to protect intellectual property and discoveries that presumably are valuable. One solution, if you don't use a patent you own in 1 year, then you forfeit it to the public domain, thereby being unable to be patented again. This would solve virtually all of the patent lawsuits to date and really really reduce the patent office time issues, as it wold not be prudent of a company to patent some thing it did not intend to use just to keep it off the market as it would compete with existing technology of for some other reason. This would REALLY tick off patent lawyers. Jim
"Any sufficiently advanced technology is indistinguishable from magic." - Arthur C. Clarke
The situation is worse than described. I have had a patent application pending for nearly two years without even a first action. I now must decide whether to allow the PTO to publish the application or else I will have to withdraw the application. Obviously, this decision would be far easier to make if I had even a hint of what the patent examiner has found. Not that the first action is particularly informative; the dance usually goes like this: 1. File application. (Countdown to patent expiration begins.) 2. 16 month wait. 3. First action: rejection based on an automated survey of the Japanese patent office files indicating that about ten filings have been made in Japan on technology that is filed under the same category. 4. Notice of action is received several weeks later with warning that response must be received within 60 days of initial rejection. 5. Procure and get translations of cited interferences; pay large fee to get 30-day extension on response time. 6. File response showing that cited interferences are irrelevent and suggest that examiner actually read application. 7. About 90 days later, get "final rejection of all claims" notice, with new interferences cited. 8. Application gets published - competitors are now given a roadmap to still unprotected invention. 9. Detailed response letter is sent showing why cited prior art is not applicable. Revised patent specification is submitted if needed. 10. Divisional application is filed to cover claims still not accepted by PTO. 11. Patent office finally agrees to approve patent application about 3 years after initial application. 12. Patent fees paid and patent is issued. 13. Wrangling over claims in divisional application continues for 12 to 18 months. 14. Patent office agrees to approve second (divisional) patent and additional fees are paid. 15. Substantial patent maintenence fees are paid several times to keep patent in force. These fees increase each time. 16. Both patents expire 20 years after first application is made. I've done this 6 times and it has only become worse in the past 15 years.
What about a shell company that is not required to transfer them, but has a policy of transferring them?
The European Patent Office is currently discovering that raising fees and making patents harder to get has not discouraged patent filings at all.
I bet disallowing all software and business method “patents” kills off 90% of the patents in the blink of an eye.
I’d also retroactively void all such “patents” that already “exist”.
There. Done.
Any sufficiently advanced intelligence is indistinguishable from stupidity.
Exactly - !!! 10x or 100x or 1000x or .... doesn't mean anything for big companies, they can afford anything (really, but that's another story!) - the question is about control. It's more and more like bullies in kindergarten or school or work or whatever - they really don't care because even the caretakers, teachers, managers, etc are afraid of them. The patent system works a lot the same way - politicians are "supposed" to make it good (for everyone?), not a private moneymaking machine - are they afarid about something, losing something personally? I wonder why they are against that - no, not really, I'm not a little pit amazed why they want to make it nice and easy for anyone who already has lots and lots of money, impossible otherwise. I'm a little amazed why the public allows / votes for that?
First, the original: "The agency's notorious 750,000 patent application backlog..."
Your statement: "For those who may not be aware: the USPTO is largely self-funding and is one of the few (the only?) government bodies that has historically been able to run without additional funding. In fact since 1991 they have had $700 million diverted from their coffers."
So you are saying that a backlog of three quarters of a million patent applications along with a loosing $700 million in funding is a system that works. Most people, and even more Slashdot readers, would define this as abject failure, and a basic impediment to technical and financial growth in the US. Whether you support or oppose the current system, I think the vast majority see that this kind of backlog as being really really disfunctional.
However, you are planning on becoming a lawyer, so I guess that means you think it is OK.
Why is Snark Required?
If your going down that line your might as well go with the whole user pays principle. A tax on all patent licence fees, say 5 percent or more of all patent revenues goes back to the patent office. The patent office provides validation and protection for those patents, so those patents can generate an income, so patent holders should pay the full cost of protecting those patents.
This would really be fair, especially for those people who want to protect ideas for 'free' use and distribution, they are making no money on licence fees, as such they should not pay any patent fees as the taxpaying public saves money by not having to pay patent fees on those products. So low public cost patents pay low patent fees and high cost extortionate patents pay high patent fees.
So reduce the backlog by expanding the size of the patent office with the additional functioning so that they are more readily able to process all those applications. In patent cross licensing schemes, those patents can be accessed for the value by the say the IRS for their value so that the appropriate tax fees can be charged.
End result, hopefully a lot more open patents (free to make use of and add too as long as you don't charge licence fees for your part) would become available and save everyone a lot of money, it is far wiser to save money than create artificial profitability for the few at the expense of the many.
Chaos - everything, everywhere, everywhen
Patents already cost a good deal more than a filing fee of $300, which your post implies is close to the current cost. Lawyer's charges and other expenses get the price over $2000, and that was 20 years ago. No business seriously involved in inovation is going to consider a few thousand dollars an impediment to filing a patent; it takes many expensive hours to draw up the documents and go through the steps involved in filing, defending against an initial rejection, etc..
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Let's see... lower standards so that almost all existing applications are passed without adequate examination. This will cause what to happen? A flood of new applications for marginal and bogus ideas, most of which will be granted to clear the newly expanded backlog, which will encourage more applications, and so on ad infinitum. Meanwhile, inovation and existing products are sued out of existence by new patentholders.
The short term winners: lawyers and trolls. The short term losers: everyone else. Long term, everyone loses.
The proper approach is to make patent standards more difficult, and to reject certain patent application categories (software, business methods, for example) entirely. To protect the U.S. from foreign companies that have patents for categories the U.S. rejects, such patents should not be recognized.
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Perhaps it's just me but I think the real problem facing the USPTO is the quality of the patent applications they're receiving and, apparently, mostly rubber-stamping. Leave it to these guys to misidentify the real problem within their organization. On the other hand, their situation isn't much different than a group of programmers face when they're told that their performance will be evaluated based on the number of lines of code they produce.
The USPTO's solution is somewhat analgous to what happened back when I was in grad school back in the '80s/'90s. The state (which will remain nameless though there may be some who recall this incident and will figure it out) legislature decided that it had to do something about the large number of applicants to the state schools. Their entrance requirements were such that they pretty much had to accept anybody (or should I say "and warm body"?) that applied and the percentage that actually completed the four years was dropping like a stone. Low graduation rates do not look very good in the recruiting brochures so schools were looking for incoming students with better academic credentials. What they wanted to do was make it easier to find higher quality students that had a better chance of completing their degrees. The legislature, decided that, rather than raise the standards for ACT or SAT scores, the solution to this problem was to move the deadline for application earlier. Now high school guidance counselors aren't stupid. They just told all of their students to submit earlier; not just the ones that had the best chances of completing a bachelor's degree. In the end, that "solution" had no effect on the percentage of incoming students that actually made it through all four years and got their degree. That worked just about as well as I am expecting the USPTO's new plan will wind up increasing the quality of patents. (Of course, everyone here knows that's probably not high on their list of desired outcomes.)
All the new USPTO plan will really do is increase the revenues generated by patents. Large corporations will still submit as many patent applications as they are now and the USPTO will rake in even more cash than they do now. (Large corporations are addicted to the power they get from patents and I'd submit that a lot of people in those corporations receive bonuses from the number of patent submissions they create.) The drop-off in submissions by small businesses -- and the loss of application fee revenue -- will hardly be noticed. But... Congress will see the increase in revenues and conclude that the plan was a raging success.
Who was it that said that for every complicated problem there is a simple solution that is wrong? I'm thinking that the USPTO has just identified another one of those kinds of solutions.
CUR ALLOC 20195.....5804M
Instead of raising fees for applications, they should be charging penalty fees for the barrage of bogus patent attempts they receive constantly. If companies had to pay a penalty for a rejection, they would be more careful what they apply for. Additionally, huge penalties should be imposed for obvious attempts at abuse (such as the Microsoft IF NOT attempt).
Additionally, process (idea) patents need to be made illegal. This in itself would be a huge benefit to small businesses and create an atmosphere where competition and real progress could be made.
Of course we know where the obvious answers will go.. especially since the lobbyists are ensuring that the big players stay on top..
-The wise argue that there are few absolutes, the fool argues that there are no probabilities.
They would abolish the patent system, it is a failed experiment that has been shown to be counterproductive and stifle innovation and progress by turning the process of invention and technological improvement into a bureaucratic race to the bottom.
"When in doubt, use brute force." Ken Thompson
I assume it's just a typo, but a very eyesore one right in YOU'RE first sentence.
Inside of six months interesting ideas could be promoted to full application if an agreement with someone with bucks and the inventor could agree on terms. At that point a full patent search could be done and if appropriate granted.
This transition would be visible and would open a "friends of the patent office" comment board where additional prior art by interested parties could be presented. from the status change the 'open' ide
Truth is stranger than fiction, but it is because Fiction is obliged to stick to possibilities; Truth isn't. Mark Twain.