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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."
I really do hate this, 90% of politicians are lawyers.
They are an unchecked self-appointing cancer.
The remedy for this is simple enough. If a patent is found invalid by a court and also should never have been granted according to the USPTO's own rules at that time, then require the federal government to pay the victor all legal expenses incurred + any time off work for court + any travel expenses for court, times three, within 30 days of the official ruling.
I also believe that anyone found "not guilty" in a criminal case, or who has charges dropped, should be compensated the same way.
That introduces an element of apoptosis into the self-appointing cancer.
It is a miracle that curiosity survives formal education. - Einstein
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.
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.
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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.
Most patent applications are rejected at least once already, often they're rejected twice.
Anyway, what you suggest would be a terrible approach. The result would be that examiners would reject everything, gamble that the applicant doesn't want to waste time and money on an appeal (or would lose anyway), and collect their bonus. And it's a good bet that a lot of applicants would simply let the application go rather than appeal: the Board of Patent Appeals and Interferences already has its own 20 month-and-growing backlog, and the cost of an appeal is typically thousands of dollars.
And the PTO isn't stupid. There are performance metrics in place that try to ensure that examiners aren't rubber stamping applications with either 'reject' or 'allow.'
Finally, the PTO doesn't cost taxpayers a dime. It's already fully funded by applicant fees, and in fact Congress often skims off excess fees. In total Congress has taken over $900 million that way. A bill was recently passed to give something like $120 million of that back to the PTO for the purpose of improving its IT systems and hiring more examiners.
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
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.