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Empirical Research Reveals Three Big Problems With How Patents Are Vetted (arstechnica.com)
An anonymous reader quotes a report from Ars Technica: If you've read our coverage of the Electronic Frontier Foundation's "Stupid Patent of the Month" series, you know America has a patent quality problem. People apply for patents on ideas that are obvious, vague, or were invented years earlier. Too often, applications get approved and low-quality patents fall into the hands of patent trolls, creating headaches for real innovators. Why don't more low-quality patents get rejected? A recent paper published by the Brookings Institution offers fascinating insights into this question. Written by legal scholars Michael Frakes and Melissa Wasserman, the paper identifies three ways the patent process encourages approval of low-quality patents:
-The United States Patent and Trademark Office (USPTO) is funded by fees -- and the agency gets more fees if it approves an application.
-Unlimited opportunities to refile rejected applications means sometimes granting a patent is the only way to get rid of a persistent applicant.
-Patent examiners are given less time to review patent applications as they gain seniority, leading to less thorough reviews.
None of these observations is entirely new. But what sets Frakes and Wasserman's work apart is that they have convincing empirical evidence for all three theories. They have data showing that these features of the patent system systematically bias it in the direction of granting more patents. Which means that if we reformed the patent process in the ways they advocate, we'd likely wind up with fewer bogus patents floating around.
-The United States Patent and Trademark Office (USPTO) is funded by fees -- and the agency gets more fees if it approves an application.
-Unlimited opportunities to refile rejected applications means sometimes granting a patent is the only way to get rid of a persistent applicant.
-Patent examiners are given less time to review patent applications as they gain seniority, leading to less thorough reviews.
None of these observations is entirely new. But what sets Frakes and Wasserman's work apart is that they have convincing empirical evidence for all three theories. They have data showing that these features of the patent system systematically bias it in the direction of granting more patents. Which means that if we reformed the patent process in the ways they advocate, we'd likely wind up with fewer bogus patents floating around.
Eliminate patents and copyrights. Get rid of them altogether. This also has the benefit that IBM can no longer bully open source opponents with patent litigation, plus onerous licenses like the GPL are invalidated. No more low quality patents, plus many other issues get fixed.
The reviewers are incompetent. The whole requirement of a patent being novel and non-obvious has gone by the wayside. Reviewers either fail to associate prior art because of an unfamiliarity with the field and grant the patent. Or they do the opposite and incorrectly associate prior art and reject it.
Wasn't that obvious?
I remember in the 1990's (I think) the patent office changed its policies so that examiners were rewarded based on the number of patents they granted. This led to them granting marginal patents.
The legal theory at the time was "if there's a problem, let the courts work it out". This, of course, is highly inefficient because it puts an enormous burden and expense on everyone who disputes the patent, loads down the court system, and generally halts innovation.
It was obvious then and it's obvious now. There's a great deal of social expense surrounding bogus patents, infringement, and patent trolls.
It's too bad the lawmakers, on both sides of the aisle, don't have the best interests of the people at heart.
They might otherwise be moved to fix the problems.
99% of all software patents are obvious solutions to trivial problems that have already been invented. I'd call that a problem.
I...wait.
Only THREE??
Software was not patentable until about 2000. But there was huge innovation before that.
Bill Gates said something like " If software was patented when the fundamental priniciples of computer science were developed, the industry would be at a standstill today".
Software patents reduce innovation. They add unknowable technical risk to any innvovative project.
-The United States Patent and Trademark Office (USPTO) is funded by fees -- and the agency gets more fees if it approves an application.
-Unlimited opportunities to refile rejected applications means sometimes granting a patent is the only way to get rid of a persistent applicant.
Contrary to point #1, and as shown in point #2, the agency gets more fees if they reject an application and allow applicants to refile the rejected applications - really, not so much "refiling", but filing a "request for continued examination" and a fee. Specifically, the issue fee paid when a patent application is granted is currently $960. But if an application is rejected and "refiled", then the request for continued examination fee is $1200 for the first RCE and $1700 for each one after that. Plus the agency will still get the issue fee, if the application is eventually granted.
Point 2 is also misleading (or ignorant, hence their use of "refile rejected applications" rather than "pay a fee to continue examining the same application"). The rejected application isn't simply being refiled over and over - the applicant makes amendments, narrowing the claims. Like, maybe originally, it was a patent on "a car", and then they amend to "a car, comprising an electric engine," and then "a car, comprising an electric engine, a gas engine, a drivetrain, and a three-axis planetary gear wherein a first axis of the gear is driven by the electric engine, a second axis of the gear is driven by the gas engine, and a third axis of the gear is connected to the drivetrain," etc. Since the applicant has to pay those high fees every single time, the only person they're harming is themselves.
-Patent examiners are given less time to review patent applications as they gain seniority, leading to less thorough reviews.
This is the one point that's actually correct. There's some efficiency gained through experience, but that may mean going from 20 hours to examine an application to 15. Not 20 down to 5.
I work in this field. Seeing a lot of bad information here. Consolidating several replies to save space:
Yes. There are empirical studios by economists that correlate a country's patent laws with increased investment in technology. Can't remember cites offhand but Dr. Schankerman at LSE is a good place to start searching.
Examples from before the late 20th century are a bad comparison. It was much easier to keep information secret back then. Nowadays all it takes is one person to figure out what you're doing and post it online.
Yes you can free ride for awhile. Eventually it catches up to you.
Only in a very narrow set of industries. While that's common in software, it's not universally true. Mechanical, chemical, and medical industries rely on patents a lot more. Pharmaceuticals in particular cost billions to develop. No company is investing that without patent protection.
I'm not saying patents don't have problems. There are things that should change. But on the whole, patents are a necessary tool for protecting R&D investments. Looking at them only through the lens of software is shortsighted.
Democracy is two wolves and a sheep voting on lunch.
The "war on drugs" was a "common sense" policy
No it wasn't, and still isn't. It has been demonstrated that it is immensely more cost-effective to address the problem on the buy side; the cost to get a single user clean is a lot lower than the cost of disrupting the production and distribution pipeline for the amount of drugs that the drug user would have consumed.
Economically it doesn't make sense to focus on the sell side because every seizure or disruption leads to a price adjustment. Either that or the production costs are lowered, which means the small guy who's been told he has to grow the coca or poppy has to grow more for less. In the end it never solves the problem.
The only reason the burden is shifted on the sell side is politics.
lucm, indeed.
Because, believe it or not, legal monopolies like patents actually HURT competition, which is where innovation actually comes from. One clue might be that the word MONOPOLY is a descriptor, and is the literally the opposite of competition.
no this is a fallacy. The competition is free to come up with a better product, not to steal the design of the existing one. Apple didn't steal Blackberry's design when they came up with the iPhone and yet they won the market (at the time). George Lucas didn't steal the plot from Logan's Run and yet Star Wars has been a success.
Patents and copyright can be abused, but they do serve a purpose.
lucm, indeed.