Slashdot Mirror
Patent Office Ramps Up Patent Approvals
An anonymous reader writes "With the somewhat disappointing Bilski ruling behind us, people concerned about overly broad patents should be looking at what's going on at the US Patent Office. Due to various other Supreme Court decisions and lots of bad publicity, the USPTO had gone on a 'quality binge' for a few years, rejecting a lot more patents than usual. However, with new leadership, it appears that the USPTO is back to its old tricks and approving a ton of patents (at an unheard of rate) in a misguided attempt to get through the 'backlog.' Get ready for another round of patent lawsuits on patents that never should have been granted."
You don't have to pick up every rider ---- it's ok to say no, especially when it's in the broader interest to increase the quality and remove the backlog.
I really do hate this, 90% of politicians are lawyers.
They are an unchecked self-appointing cancer.
The government has a defect: it's potentially democratic. Corporations have no defect: they're pure tyrannies. -Chomsky
Ahh nothing like setting potentially devastating precedents at breakneck speeds eh USPTO?
They have been singing the same tune for 4-5 years anyway; Bilski was a distraction. It's won't go away, until someone significant gets burned badly; then it will be a big deal. Give it another 2-3 years.
Scary guy. Not so much evil as purely misguided in his efforts. He thinks that all those 700000 odd patents on backlog represent American jobs that aren't being created, because the patent doesn't exist. At that point, all I can think about is the high-tech patent wars, and how the only people they keep employed are lawyers. I guess, technically he is right: more patents mean more jobs. But only for patent lawyers and patent appraisers. Unfortunately, he didn't seem to get the distinction, and was incredibly enthusiastic about his drive to get more patents approved.
Those who can, do. Those who can't, sue.
Just pay the patent examiners a bonus based on how many patents they successfully manage to reject, including any appeals that might be raised against the rejection by the original submitter. It'll incentivize the patent examiners to get through the backlog, and, if the bonuses are funded by an extra "patent examination fee" that is only refundable in the event of a succesful application, it'll cut down on the frivolous patent submissions at no extra cost to the taxpaper as well.
UNIX? They're not even circumcised! Savages!
In particular, without knowing how many applications were rejected, we don't know whether the USPTO is approving a higher percentage of applications, or whether they have just increased up their processing rates.
And without knowing the number of patent examiners on staff over time, we don't know whether any increase in processing rates was caused by spending less time on each application (less scrutiny), whether they have hired more examiners, or whether they are using technology to process applications more efficiently.
Get all those facts, number of examiners, number of applications rejected, etc., and then you might be able to draw some conclusions.
Most patent stories on Slashdot are about silly patents, but raising standards will not solve our problem. Quality is just too hard to judge with something as abstract as software. A reduction of 50% wouldn't solve the fact that MPEG is covered by dozens of patents, and none of the people complaining about silly patents have proposed a way to raise the standards (not to reduce granting by 50%, and not even to reduce it by 1%). Now, we see that granting is still rising. We'll never get quality standards to catch up. The only way to win, and the only clean solution, is to simply cut software out of the list of things that can be patented.
Expert in software patents or patent law? Contribute to the ESP wiki!
Such is the case with Kino International and Metropolis. With the recent restored version and amendment of previously lost footage, copyrights were apparently restored as well, despite the movie already having been of the public domain.
"So don't get programmed by anybody but yourself" --Bill S. Preston, Esquire
NPR had a story about this:
http://marketplace.publicradio.org/display/web/2010/08/19/pm-patent-applications-jumped-up-during-recession/
Which includes this quote: "Each and every one of them represents an idea that could turn
into a business, a business that could create jobs."
I think that a lot of people think that patents and getting a patent a good things. They don't know our pain. I already gave them my opinion:
http://marketplace.publicradio.org/contact/
Does this mean my patent for being able to see anyone for any damn reason will be granted?
Raising examination standards won't fix much. The series of MPEG video formats is covered by over 1,000 patents. If we raise standards massively, we can hope that it will only be covered by a few hundred patents.
Doesn't really solve much, huh?
Expert in software patents or patent law? Contribute to the ESP wiki!
Why can't they just stop accepting patents from the people who would just continually "revise" their patents? Just give it a hard cap. Say 5 revisions to get it right and after that it gets "released" to public domain. Give the people something to worry about or they will waste your time. This has always been the case. If you let people get away with unlimited revisions to bury you in paperwork, then you can expect for it to happen.
Excuse me while I go patent some random future tech... flying cars, teleporters, food replicators, AI.. yanno.
insert funny sig here
I'm going to patent pissing while standing up. Sadly, I'd probably get away with it too ...
FUCK.
First, there's really little evidence that the rejection-equals-quality approach of the prior PTO leadership actually helped improve patent quality. Along those same lines, the higher acceptance rate is not the result of some edict to grant more frivolous or low quality patents. Instead, it's the result of re-aligning the performance metrics for examiners so as not to artificially promote rejections. Now, examiners are encouraged to work with applicants to find or draft allowable claims rather than fighting tooth and nail to reject the entire application.
Second, the scare quotes around 'backlog' are silly. There is a massive backlog at the PTO. Roughly three years worth of applications, in fact. It can take well over a year before an examiner even looks at an application. For a few areas of technology, it can take over three years. This is problematic for several reasons. For one, the longer an application sits in examination, the more technology changes around it. This encourages applicants to try to amend claims to cover technology that they really didn't invent or anticipate. A fast turnaround time forces prevents those kinds of shenanigans.
Another reason it's a problem is that the extreme long pendency coupled with the high turnover rate at the PTO means that it's entirely possible for examination to be completed by a different examiner than it was started under. This is especially true when you consider a broader patent family (e.g., continuations, divisionals, etc).
Yet another reason: the patent term in the US is now 20 years from the date of filing, except that the term will be adjusted in cases of Patent Office delay. It is now routine for issued patents to have a patent term adjustment of several months or even a year or more. If you think the patent term is too long, then the backlog is a problem. (And no, getting rid of term adjustment isn't the answer; it's wrong to penalize applicants because of delays in a bureaucracy that the applicants have no control over).
We can sue them for violating our patent for recording and registering patents.
I already disclosed a prior post of my intention to buy the IP rights to 1984 the movie and then using RIAA and MPAA to sue United States. Christians can sue any company for violating their patents on the Book of Revelation, but they just seem too stupid to ignore the fact that Licenses and Certifications have only been tolerated since 1933 when Christianity has been in decline for another religion known as Apathy.
without prejudice
While it's true that the absolute number of allowances has increased, the number of rejections has also increased, according to Prof. Dennis Crouch of PatentlyO.com, who is a leading figure in empirical patent research. It's not as though examiners have simply started rubber stamping everything that comes through.
Can we please get the reviewers a new stamp that says: "REJECTED: Unintelligable"
When paragraphs are written in legalese and jargon for the express purpose of introducing vagueness they should be rejected.
IMO, if an 8th grader can't read the patent and paraphrase it well enough to explain it to someone in the field, it shouldn't be granted.
-Rick
"Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
The increased issuance rate is probably the result of PTO's money crunch. Unlike most agencies, which supplement funds appropriate by Congress with collected fees, PTO is expected to be entirely self-supporting. Application fees. Continuation fees. Maintenance fees. Service fees. Everything that PTO does has a dollar sign attached to it (here's the fee schedule). Sometimes they don't even get to keep is all. Congress raided PTO's surplus several times during the boom to prop up the General Treasury. When rainy days came, companies started filing for fewer patents and some - gasp - even let patents lapse rather than paying their maintenance fees. As a result, PTO was forced to cut benefits dramatically. For awhile, overtime was off the table. The agency stopped paying tuition for examiners attending night law programs. Retention bonuses went away. Bad time to be an examiner.
The issuance boost means more continuations, re-applications, etc. along the way to approval = more revenue immediately. More importantly, PTO's got to issue nearly five patents to receive as much by way of maintenance fees in 3-4 years as they WOULD have received from an 11 year old patent that's been allowed to lapse.
Issuance rate won't (and from PTO's perspective, can't) go down unless or until Congress changes PTO's funding model or the economy turns around. Even if the economy gets better, it's going to take a few years for revenues to start increasing as the patents from the current glut start bringing in large maintenance fees and the issuance rate can go down without forcing staff cuts.
--- "DNA helicase kicks more ass than a barrel of highly trained ninja monkeys. Never forget that." - N. Howard
It seems to me that if we could sue the incompetent clods at the Patent Office they would be more conscientious.
"The mind works quicker than you think!"
...software patents, then consider how you will do so.
http://answers.yahoo.com/question/index?qid=20100426131935AAA3l4u
I'm just saying, you're not the only Anon feelin' the pain. :-/
I have a feeling that the millions spent professional argument will help society neither monetarily nor in technological advancement.
The faster patents are approved, the faster their ridiculous nature will be exposed. Let there be so many patents that it becomes impossible for anyone to do anything. On that day corporations themselves will probably want an end to all the bullshit.
The patent office should do it like the insurance companies do it. Reject every single application on first submission. Find some detail that is just cause for rejecting it, and stamp a big red X through it.
The ones that come back modified with more details are the ones that get a serious review.
The patent office should do it like the insurance companies do it. Reject every single application on first submission. Find some detail that is just cause for rejecting it, and stamp a big red X through it.
They already do. It's termed a "non-final rejection" and occurs at least once for many applications. Sometimes the rejection is merely for non-compliance with some formality. However, it is often because the examiner found prior art which appears relevant. The applicant is thus required to provide a response, pointing out how it differs from the prior art, and possibly with amendments to the claims to delimit them appropriately.
Of my 15 granted US patents, I think only 3 or 4 went through without at least one non-final rejection. In a few cases, the examiner turned up quite relevant art and there was a significant revision needed for the claims. In a few others, the examiner had conflated different meanings of a particular word, and it was merely necessary to point out that my application used it in a very different sense to the art cited by the examiner (example: spectrum meaning a set of colors or wavelengths simultaneously present in a beam of radiance vs spectrum meaning frequency content over a finite time interval of a time series or signal). FWIW, my patents all involve hardware.
Those who can make you believe absurdities can make you commit atrocities. - Voltaire
It would also help to know how applicants have been behaving over the last year. Have they been abandoning patent applications with claims that are too difficult to get through? If so, that would have meant that patent examiners have had stronger applications on their desks, and it would make sense that more patents applications would be allowed. 2009 saw an increase in application abandonments (perhaps budgets for intellectual property protection underwent greater scrutiny because of the economic downturn). Were weaker applications abandoned more often than stronger applications? Maybe.
It is worth nothing that the article contained a bit of misinformation in saying that "Because patent examiners were judged on how efficient they were -- meaning how many patents they were able to complete their analysis of in the short amount of time they had. So here's the problem: if you approve a patent, you're done. If you reject a patent, the inventor (well, the lawyers) get an unlimited number of times to change the examiners mind, resubmitting modified applications." This information isn't complete. An examiner receive credit when a patent application is allowed and when a patent application is abandoned. This includes when a patent applicant files a Request for Continued Examination (RCE). The amount of credit an examiner receives for multiple RCEs has diminished, but an applicant who continues to make weak arguments could see an application rejected over-and-over again without ever receiving a patent.
Why base conclusions on facts when it so much more fun to jump to them instead?
The number of patent examiners has decreased slightly in 2010. The amount of time given to the examiner for each application was increased by 1-2 hours. The technology used has remained basically the same for the past 3 years.
1. Patent the act of patenting
2. Sue the patent bureaus for patenting
3. Profit
Excuse me while I go patent some random future tech... flying cars, teleporters, food replicators, AI.. yanno.
This is the stuff that's actually pretty easy to reject. We're not going to find prior art on it, but we can generally make rejections for the application lacking an enabling disclosure (if the invention is ostensibly possible, as with flying cars), or we can reject it for a lack of credible utility (as with teleporters).
As for do-overs, yes, applicants can keep paying us to continue examining their applications. They get two bites at the apple each time (with some caveats attached if the examiner makes a bad rejection), and then they are stuck filing an RCE (which costs money but buys them another two bites), appealing to the Board of Patent Appeals and Interferences (which costs a lot of money, mostly to the attorney), or they can give up and let the application go abandoned.
There was a recent change in docketing procedure to examiners that prevents RCEs from "burying us in paperwork". It used to be that RCEs were docketed right along with regular amendments, and we had to work on every one of those within four biweeks of the date it was forwarded to the examiner. Now, it gets docketed on a separate queue, and we only have to pick up one RCE every month. When it comes to doing more work than that, we get to choose whether we'd rather do more first actions (new cases) or more RCEs. The Office is focusing on getting new applications in the pipeline, so we're being encouraged to do more first actions and let the RCEs sit there for a little while longer.
Clearly, the USPTO will never get rid of that 700000 backlog satisfactorily. Their archaic approach can never succeed. Software types just don't have the same tradition of publishing their ideas the way that other fields do. Therefore, they don't create the paper trail that patent examiners rely on to make their decisions.
The most promising solution to this problem I've heard is to make it a kind of wiki. Online users could contribute to the wiki evidence of prior art. In this case, crowd sourcing seems like the right thing to do.
On the other hand a patent wiki might just bring out the worst from many people. Snark, misinformation, and partisan sniping might dominate. Even without that, the volume of work needed to properly research 700000+ applications is huge, maybe much more than the total effort spent to create Wikipedia. Appreciation and rewards for that hard work would be even less than Wikipedia because the contributors don't see their work posted prominently.
Other than a wiki, the only other systemic solution I can imagine would be legislation to sharply curtail the kinds of things that are patentable; thus invalidating 90% or more of the backlog with a wave of the pen.
What do slashdotters think?
The USPO is effetively executing a law, but is clearly not able to do so. So the US government should deny the USPO their license to execute that law. This is nothing new. This happened in the Netherlands, for example, with an organization that oversaw the small private aircraft manufacturing.
US patent law is already the joke of the day world-wide, and it is long past due to start doing something about it. But that should be done.
Nae king! Nae laird! Nae yurrupiean pressedent! We willna be fooled again!
I think the most humorous thing here is the number of people who comment on the operations of the USPTO, yet have no clue as to how the office is run, how the examiner's do their jobs, the metrics and constraints they are under, and the other issues that affect the quality and speed at which a patent is granted. It is not all Kappos, or the examiners, or the managers...but in part a system set up over many years that is a lot more intricate than one realizes, where actions are governed by laws created by congress, poor management of the past has left IT systems everyone uses on the skids, and attorney's contribute to the problem by doing what attorney's are trained to do: make things as vague and broad as they can for their client and then waste time and money arguing over a single word (and creating their own forms instead of using USPTO forms and thus creating issues, etc).
Is the system broken? No. What needs to happen are direct and succinct changes: fees need to go up, a priority on IT systems maintained until the examiners have tools they can really use efficiently and effectively, applicant's should be expected to use the specific forms created by the office and follow an application procedure with no deviation, the MPEP re-written in clean and clear language so people can find the answers they need, and no more pandering to the lobbying of corporate IP attorneys. This would be a great start. Until then the examiners will continue to do the best job they can under the circumstances placed on them.
"This technology stuff is just plum crazy!"
Dude,
You should really only post as anon on here. The Office doesn't like examiners posting to tech boards. They especially don't like examiners posting to anti patent boards.
Examiner 1700
Thank you for this interesting post.
Just curious, have you ever had a chance to approve or reject a software patent? Did it present any special difficulties with regard to researching it? In particular, how did you find out whether there was prior art, and whether the claimed invention was actually non-obvious to a domain expert?
We spent over a million dollars defending ourselves against a patent whose claims were so ridiculous we didn't even take it seriously. The problem was the patent troll got the patents through, then signed up 15 companies who were only peripherally involved with our space. With the 15 contracts in hand the troll came after us and another major player in our space. Total spent on prosecution and defense was over $7M, and all the claims were ultimately found to be obvious or prior art at a jury trial.
The problem is there is no interim step between a troll's stupid patent and a multi-million dollar lawsuit. There should be some way that an independent technical panel can evaluate the validity of a patent before huge sums are spent on legal fees. Wait, I just answered my own question.
I hate being bipolar; it's awesome!
The original intent of the patent was to give the lone inventor a monopoly over his invention in order to spur innovation. And it may have served that purpose once. But today, patents have taken on a completely different use -- the leverage for big deep-pocket corporations to beat up on other corporations and obliterate any possible competition from "the little guy", who could not possibly afford patent litigation.
So, it is my view that patents no longer serve it original intended purpose, and thus should be eliminated. Monsanto patents organisms and genes and uses that to force small farmers to buy their GMO seeds; Microsoft may use patents to beat down startups they deem as a threat, and so on.
Today, people will innovate whether or not patents exist. And most innovations don't ever see a patent, I think. It's just too expensive to procure a patent -- $5,000 to $10,000 -- and if ever someone -- even another little guy -- violated your patent "rights", you could not afford the litigation, anyway.
So let's abolish all patents and close down the USPTO!
Ruby Neural Evolution of Augmenting Topologies
Abolish the whole patent system?
I've nothing against that suggestion. It would certainly achieve the aim of getting rid of our software patent problems. But, abolishing the whole system isn't my goal.
Software is different in that it's an activity in which individuals and communities participate, and even when it's done within a company it's often done with a direct financial motive (the software can be a side effect of getting the real work done).
This means that regulations on software development/distribution translate to social problems (what can people do to help themselves and each other?) as well as economic problems (will we produce enough of X at a sufficient quality and a reasonable price?).
Patents on the manufacturing of cars are only an industrial regulation (mass production of cars is exclusively done by medium- to large companies). So there are only the economic problems to consider.
For production of cars, I don't know if patents create or solve economic problems. For software, I've studied the issue and I know that the problems (social and economic) are atrocious. So if you want to get rid of the whole system, you'll get no resistance from me, but for how I use my own time and resources, I'll focus them on abolishing *software* patents.
Expert in software patents or patent law? Contribute to the ESP wiki!
Patents, like copyright, can be manipulated. When a patent is owned by a corporation, who does it benefit? We can make the jobs argument, but how many new jobs were created by re-branding Prilosec as Nexium? How about Amazon's "Click to Buy" patent? No, the truth is, patents are as much about strategy as they are about protecting an individual investor. I say it's time for a Patent law overhaul.
1. Keep the protection for the individual, eliminate or reduce the protection for corporations.
2. Allow patents to follow a crowd-source model. If I can offer improvements based on an existing patent, and these improvements constitute a new product, should I be allowed my own derivative patent? I say yes.
3. Set up patent types. For example, medicine should available as generic derivatives after three years. Re-branding is a no-no.
If a company charges too much during the patent period, the coming government health care oligarchy will protect profits. Limiting the time period will limit the governmental corporate welfare.
4. Software and software-based items should never earn a patent. Inventions are physical items. Software is intellectual property.
Finally, this should be a Constitutional Amendment. As we've seen with financial regulation, mine safety, and oil drilling, the government is easily manipulated. An Amendment is far harder to modify in the name of the economy.
Though the patent law system certainly has seen problems with junk patents in the past, I don't think it's quite fair to say that the recent spike in patent grants necessarily means more junk patents. New USPTO Director David Kappos has made great strides in improving efficiency at the office, which also recently hired more examiners and won the right to keep more of its revenue (which had previously been siphoned off by Congress). This influx of money and talent has unquestionably contributed to the increase in the patent grant rate. Kappos has also voiced a commitment to improving patent quality. Let's hope he follows through.