Slashdot Mirror
Study Suggests Patent Office Lowered Standards To Cope With Backlog
An anonymous reader points out a story at Ars about how the "significant reduction" in the backlog of pending patent applications may not be all that it seems. "...a new study suggests another explanation for the declining backlog: the patent office may have lowered its standards, approving many patents that would have been (and in some cases, had been) rejected under the administration of George W. Bush. The authors—Chris Cotropia and Cecil Quillen of the University of Richmond and independent researcher Ogden Webster—used Freedom of Information Act requests to obtain detailed data about the fate of patent applications considered by the USPTO since 1996.
They found that the "allowance rate," the fraction of applications approved by the patent office, declined steadily from 2001 and 2009. But in the last four years there's been a sharp reversal, with a 2012 allowance rate about 20 percent higher than it was in 2009."
Dumber, faster, patent trolling. I love it.
There's another perfectly reasonable explanation for this.
1. Allowance rate declines from 2001-2009 as standards increase.
2. Fewer marginal patent applications submitted due to increased standards.
3. Allowance rate increases as average quality of patent applications increases.
1. Take money, grant patent.
2. There is no step two.
3. Profi... oh wait, already covered in 1.
Is it possible there is just more innovation in the past 4 years? I would argue 'progress' is exponential, not linear. Regardless, patents such as this probably fall in the lower standard category, yet is was patented in the 90s.
Some people die at 25 and aren't buried until 75. -Benjamin Franklin
Those bastards!
They just gave me a patent on clearing backlogs by relaxing standards, and they're not paying me to use it!
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.
the more likely they will be successful. Chaos expressed as a spiral. I'm patenting that.
Does this really surprise anyone?
If you absolutely HAVE to hamstring the march of human knowledge to the point of any new tech not being freely available for me to copy/use in my lifetime, for the sake of making a quick buck, then AT LEAST do a proper job managing said abomination!
It is sickening in the extreme to think that it's possible to deny other people access to information, simply because you thought of it first. Given the amount of research done every day around the world, it is not inconceivable that 2 people would happen upon the same idea independent from each other. Then what? You're not entitled to accreditation of your creation even though you didn't copy it?
It might imply something positive about the Bush administration, and that is not permissable.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
More likely this is a function of the internet, and the ability to search for prior art in a matter of minutes.
In the past a party looking to get a patent would go back and forth with the patent examiner at the USPTO a number of times, because the USPTO had a vast library of prior art that your average person doesn't have access to. Every time the examiner came up with prior art the patent would have to be rewritten to shrink it claims.
Now with the internet, anybody can search just about any database, this means the first draft patent will include more examples of prior art, a patent with less broad claims, and less for the patent examiner to object to.
A better measure of whether the USPTO is lowering its standards is the number of broad claims versus narrow claims in a patent. As well as the number of prior art examples cited in the patent, by definition if the prior art describes an aspect of the patent, that aspect is not patented, it is cited as a reference to what the patent DOES NOT cover.
Like...below zero? Hey, wait a minute! I need to patent that!
Please do not read this sig. Thank you.
First, the incorrect or misleading:
But in the last four years there's been a sharp reversal, with a 2012 allowance rate about 20 percent higher than it was in 2009.
It can also be looked at as 12% higher, since it went from about 58% to about 70% in that time. "20 percent higher" is misleading. "120 percent of the 2009 rate" would be correct.
Calculating the real allowance rate is tricky because inventors can submit the same application multiple times. "From the perspective of the patent office, a 'final rejection' doesn't get rid of an application," Quillen told Ars in a December phone interview. If an application is rejected, the inventor can make minor changes to the application and file it again. "The only way you can reduce your numbers and get rid of somebody is to allow the case," Quillen said.
There are a number of different ways to re-file applications, with names like File Wrapper Continuations, Continued Prosecution Applications, Requests for Continued Examination and Continuation-In-Part Applications. But in all cases, the upshot is the same: the applicant gets another shot at convincing examiners to grant him a patent.
These are talking about two different things, mainly because the journalist doesn't understand the distinction:
1) An application can be "finally rejected" by the USPTO (meaning that it was rejected on specific grounds, the applicant replied, and the Examiner wasn't persuaded and "finally" rejected the application on those grounds), and the Applicant can amend to narrow the claims and file a request for continued examination or a continued prosecution application (the same thing, but for design patents).
For example, say you were Toyota and were patenting the Prius, and you originally had a claim of "1. A car, comprising: four wheels, an engine, and a battery" and the Examiner comes back and says "duh, that's every car." If you tried to argue that you meant a battery running the engine, but the Examiner wasn't persuaded since that distinction isn't in your claims (and there's other prior art with electric engines), they'd finally reject it. If you then amended your claims to recite your novel planetary engine dual-powered transmission, you'd have to file a request for continued examination so that it could be considered.
It's not really "submitting the same application multiple times" but several iterations of narrowing the application and arguing that as narrowed, it's patentable, until it finally is narrow enough to be allowed.
2) New applications can be filed as continuation applications or continuation-in-part applications, but they're not the "same application" by definition. Continuations and continued prosecution applications have the same specification, but different claims. Like, say, to save money, you wrote a patent application that described two separate, but related inventions. Like say, a new machine for more efficiently turning horses into glue, and a new offset gearing system for use in that machine or others that has increased torque with reduced tension. You could file a single application describing both, but only claiming the horse part. Later, you could file a continuation application using the same specification and claiming the gearing system part.
This helps small inventors by not requiring them to file dozens of applications on day one, when they might be short of cash, but file one big one, then later file additional continuations as they're able to raise capital. Importantly, all of the applications have the same effective priority date for prior art, and any patents coming from the applications expire on the same d
From the viewpoint of an Examiner here's what happened:
1 - The allowance rate was artificially low in the Bush years because the appointed director implemented a "quality" system where all allowances were subject to stricter scrutiny, but rejections were not. When you can get written up and indeed fired because someone who doesn't actually Examine your technology glances at something and says "oh that's obvious" then you have to spend a few hours (which you have to make up in production later) explaining why it is not and how combining things in the way they say to just straight up wouldn't work and still wouldn't meet the claimed limitations, yet writing a shitty rejection will just get the a Request for Continued Examination filed which actually helps you out on your quota... yeah you can see why the Allowance rate plunged.
2 - Applicants amend more readily. The reasons vary: Some just took some time coming to grips with what KSR v. Teleflex actually meant; some decided after the markets went kaput and patents became less valuable due to changes to injunctions to stop paying for endlessly filing for continued examination; and some just wanted a patent quickly on their new product.
3 - Newly hired Examiners have gotten better at searching, so things don't go in circles as much. This probably leads back into #2
90% of it is #1. It is a pretty textbook case of focusing on some random arbitrary metric while ignoring the real effect it has.
Its generally accepted that we're in an IP economy backed by patents. As Americans and American companies file and win weak patents that enforced internationally that would never be issued in other countries, there will be a major backlash from these countries like China, India, Russia and Europe in general, who are generating valid and strong ip. When this happens these countries are not receiving the economic benefit of the IP of their companies and citizens as the money flows back to the US via issued but weak patents.
These are the things wars are started over.
Not so long ago:
http://yro.slashdot.org/story/12/11/20/1838248/uspto-head-current-patent-litigation-is-reasonable
Where does that leave my patent of exchanging oxygen and carbon dioxide across a thin, moist barrier in a rhythmic process?
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
The article made it sound like this more about the patent office being faster at responding to applications (even when rejecting them). And, faster rejections mean there's less likelihood of the filer abandoning their project. There was some dispute, but the counterargument in the article didn't wash w/ me.
I swear to God...I swear to God! That is NOT how you treat your human!
with broader claims. now you CAN have the salad dressing that is also a shampoo! and a lift bridge! and a three-finger-salute sidewipe!
if this is supposed to be a new economy, how come they still want my old fashioned money?
The patent office has been hiring 1,000-1,500+ examiners a year for the past few years. While an increased allowance rate is one factor, when the Office has trippled in size since 2001, its hard to ignore the effects of more examiners.
Bring back the old version of slashdot.
Reject all software patents.
Working for an organization where filing patents is core business, I have to say that I am ashamed of what we file and how we file it.Just write something and hope it gets through the office. Patents make money ! Yeah right. We think we can sell patents, but forget that with everything we do we already violate a million """patents""". So anyone who wants access to our patents can simply sue us.
What everyone was wondering was not why the backlog declined; we were wondering why the standards fell.
In the late1990s I worked in the research division of $large_corporation. Said corporation filed for a lot of patents, a few of which the researchers even considered patent-worthy (we had lots of lawyers who insisted on patenting everything). One day we got a chance to talk to an ex-USPTO staffer, and asked him about some should-never-have-issued patents in the area we worked in ("should never have issued" meant that they were patents on existing technology, for example one was on something that was at the time present in virtually every PC, laptop, and whatever other computing devices were around at the time). He looked a bit sheepish and said "Yeah, that was one of mine. We couldn't keep up any more so we just started rubberstamping patents until we'd caught up". Luckily this particular one was a defensive patent and the company who filed it (another $large-corporation) wasn't interested in enforcing it, but in just that one case it was only one of hundreds of patents that went through without any appraisal.
A bigger problem is that the examiners are rewarded based on how many patents they process. The "ideal" examiner is one who checks the name and date on the filing, verifies that the filing fee has cleared, and then approves the patent. They're likely to get the employee-of-the-year award for their high productivity.
..is that there is a fundamental interest for US companies in general and the US government to grant patents to those companies as much and as easy as possible.
Foreign companies have also found that the courts in US in patent cases doesn't seems to be impartial to the fact that one part is of US origin and the other not.
There is maybe no difference in this to many other country's patent offices but as US legal and economical muscles is so strong they have such an advantage that they have no reason to change it.
This is yet another story about the attraction of protectionism.
Mundus Vult Decipi