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."

Comments

Stupid system

[Anonymous Coward]

Why not keep the basic cost the same but increase it by 20% for every additional patent filed in a year?

Re:Stupid system

[Moryath]

The problem is you're relying on the courts, which take YEARS to properly rule (and get through appeals) on a patent claim.

The secondary problem is that the BIG companies have found a way around the system with what they term "patent slamming"; they file everything they can send, no matter how stupid, 4-5 times apiece, knowing that the overwhelmed USPTO examiners are more likely to mistakenly approve the patents if they don't have the time to properly analyze them for non-obviousness and prior art.

For example, take Wizards of the Coast's patents concerning "trading card games." Nothing in their patent was non-obvious, and every game mechanic they pointed to is predated by a number of prior arts, up to and including the quintessential Hoyle's Rules of Games, first edition published in goddamn 1742. In a reasonable and non-overwhelmed USPTO, there's no way that patent could ever have passed, but not only did it pass, it gave WOTC a virtual monopoly in an area they had no business gaining one.

And getting back to the courts - remember, in order to sue, even if "loser pays", you have to have the money to front to your lawyers to see the lawsuit prevail. Which means you've got to have fucking deep pockets, to pay a lawyer for 4-5 years or more and process all the paperwork slamming and other shyster tactics that the big guys are going to throw at you.

I'd rather see companies completely blocked from patent slamming. Require the companies to be allowed only so many patents per year, make them pick the ones they REALLY want to protect, and that's that.

Re:Raising Fees is NOT the answer

[CaptBubba]

New technology costs $$$, which the USPTO does not have. The Patent Office's budget is pretty much 1:1 based on the fees it collects, except when congress wants to siphon off some cash to spend on something else. Hundreds of millions of dollars were siphoned off in the 90's, leaving the Patent office with a massive backlog at least in part because it couldn't keep enough people or the correct equipment to keep up with the applications.

What would be nice is a tiered system, instead of the current Big/Small entity fee system now in place (small entity fees are 1/2 those of the large companies). Tie fees to the number of applications or patents you have. That way those responsible for the backlog pay more, while the small company with 2 patents doesn't get priced out.

Why not charge per year

[jolyonr]

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

Re:Or fix it-get rid of software and business pate

[dgatwood]

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:

• 0-9 patents: $10 per filing.
• 10-49 patents: $100 per filing.
• 50-99 patents: $500 per filing. This is almost double the current fee.
• 100-499 patents: $1,000 per filing.
• 500-999 patents: $5,000 per filing.
• 1,000-9,999 patents: $10,000 per filing.
• 10,000 patents or more: $100,000 per filing.

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.