Where the process has become abused is when the Patent Office began taking patent applications that didn't require a manifestation of some sort to "prove" your effort is unique or uniquely yours
The USPTO has never required actual manifestations of inventions. The USPTO has always required "conception" and "reduction to practice", which is evidenced by a written description which is sufficient when it enables one "skilled in the art" to build / create the invention. Only in the rarest occasions (i.e. the Wright Brothers "flying machine") has the USPTO requested actual and physical manifestation of invention. The patent application itself, along with its specification and figures, is the "proof" the the inveniton is novel and non-obvious.
To require actual physical demonstration of inventions before the USPTO would ensure that only the richest and most powerful inventors (i.e. corporations) are able to receive patents, as only the rich and large would be able to afford the cost of sending attorneys (or other agents) for in-person arguments.
On a side note, IMHO all the problems continually articulated here on/. regarding patents can be solved by a better re-examination process. Currently, the fees for ex parte reexamination (where you pay the fee, and the USPTO reexamines someone else's patent) and inter parties reexamination (where you pay the fee and get to argue against the patent owner) are excessive, and thus are not used widely. If the fee for inter-parties examination was less, say a few hundred dollars, i would personally challenge many of the patents, as it would be cost effective. However, the fee is over $1,000 for inter parties reexam, and that doesnt include my time, which is why so many of these patents go unchallenged, and why so many companies simply pay royalties.
While you have a valid point, its not accurate to infer that the title of a patent determines the scope of its claims. Rather, as stated repeatedly around here, the scope of a patent is determined only by its claims. I can (and actually have) write a patent titled COMPUTER PROGRAM, SYSTEM, AND METHOD FOR TRANSFERRING FILES, but it doesnt mean I have a patent on any computer program, system, or method with transferrs files. Again, its the scope of the a patent's claim that determine the patent ability to exclude others.
Bogus patents, like the patent which is the subject of this thread, may be delt with in a variety of ways. Even though the USPTO grants a few bogus patents per 100,000 doesnt mean we are all screwed. Anyone may file a request for inter-parties reexamination, and submit prior art, to defeat a patent. Additionally, its easy to have a patent declared invalid in litigation.
Hopefully the additonal funds the USPTO will receive over the next few years will help the matter. IMHO, they simply need more examiners.
Patents can only be overturned if prior-art is shown to exist. And as mentioned in a recent slashdot story only 151 patents have been overturned since 1988.
Actually, thats not true. Federal courts can invalidate patents for a number of reasons. By far the most common reason is inequitable conduct during prosecution, which can exist for a number of reasons. Federal courts can also invalidate patents for any of the number of other reasons enumerated in 35 USC. Just because the USPTO doesnt take formal procedures to invalidate a patent [which is what yout 151 patents quote applies to], doesnt mean patents arent invalidated on a routine basis by federal courts hearing a patent infringement case.
I think you are a bit naive, here. Hundreds of thousands of dollars barely pays for the costs of a patent, let alone any kind of significant R&D project.
Most patents cost between 10k and 30k in attorney and office fees to prosecute, that includes filing a provisional and nonprovisional application, two amendments, and an appeal brief. I believe the "hundreds of thousands" you speak of are incurred in patent litigation, which is a seperate issue.
You dont have to be a billionare to force the USPTO to reexamine a patent. Its called inter partes re-examination, ANYONE can file for it, and all you need to do is submit prior art (or even just an argument) that says the patent was granted in error. Its not cheap though, it can cost a few thousand dollars depending on the scope of the reexamination, but it is an affordable option for a company faced with litigation by an over-broad patent.
As of yesterday, the USPTO has issued 6,637,033 patents. In the last five years, it has issued one million patents. AIPLA statistics , see http://www.aipla.org, indicate that in this time period, less that one thousand cases have been initiated (filed in federal court) regarding patent infringement. Thats under 1%. Of course there are some patents that issue that never get litigated, but then they dont have any effect on anyone.
I will certainly not contend that the patent in question should not have been granted, but your argument is equally as absurd as the Eolas patent. I remember (from research) the Examiners to U.S. Patent 821,393 said almost the exact thing in regard to its claims, and the '393 patent is probably the most important US patent ever issued. Not all intellectual property is the Eolas flavor, and only someone who is entirely ignorant on the subject would contend as much. The USPTO examiners do a difficult job and are correct 99% of the time, and the remaining 1% errors are corrected in litigation by competent and educated (in science, engineering, or compsci) lawyers.
Slashdot Mirror
The USPTO has never required actual manifestations of inventions. The USPTO has always required "conception" and "reduction to practice", which is evidenced by a written description which is sufficient when it enables one "skilled in the art" to build / create the invention. Only in the rarest occasions (i.e. the Wright Brothers "flying machine") has the USPTO requested actual and physical manifestation of invention. The patent application itself, along with its specification and figures, is the "proof" the the inveniton is novel and non-obvious.
To require actual physical demonstration of inventions before the USPTO would ensure that only the richest and most powerful inventors (i.e. corporations) are able to receive patents, as only the rich and large would be able to afford the cost of sending attorneys (or other agents) for in-person arguments.
On a side note, IMHO all the problems continually articulated here on /. regarding patents can be solved by a better re-examination process. Currently, the fees for ex parte reexamination (where you pay the fee, and the USPTO reexamines someone else's patent) and inter parties reexamination (where you pay the fee and get to argue against the patent owner) are excessive, and thus are not used widely. If the fee for inter-parties examination was less, say a few hundred dollars, i would personally challenge many of the patents, as it would be cost effective. However, the fee is over $1,000 for inter parties reexam, and that doesnt include my time, which is why so many of these patents go unchallenged, and why so many companies simply pay royalties.
While you have a valid point, its not accurate to infer that the title of a patent determines the scope of its claims. Rather, as stated repeatedly around here, the scope of a patent is determined only by its claims. I can (and actually have) write a patent titled COMPUTER PROGRAM, SYSTEM, AND METHOD FOR TRANSFERRING FILES, but it doesnt mean I have a patent on any computer program, system, or method with transferrs files. Again, its the scope of the a patent's claim that determine the patent ability to exclude others.
Bogus patents, like the patent which is the subject of this thread, may be delt with in a variety of ways. Even though the USPTO grants a few bogus patents per 100,000 doesnt mean we are all screwed. Anyone may file a request for inter-parties reexamination, and submit prior art, to defeat a patent. Additionally, its easy to have a patent declared invalid in litigation.
Hopefully the additonal funds the USPTO will receive over the next few years will help the matter. IMHO, they simply need more examiners.
I think you are a bit naive, here. Hundreds of thousands of dollars barely pays for the costs of a patent, let alone any kind of significant R&D project.
Most patents cost between 10k and 30k in attorney and office fees to prosecute, that includes filing a provisional and nonprovisional application, two amendments, and an appeal brief. I believe the "hundreds of thousands" you speak of are incurred in patent litigation, which is a seperate issue.
You dont have to be a billionare to force the USPTO to reexamine a patent. Its called inter partes re-examination, ANYONE can file for it, and all you need to do is submit prior art (or even just an argument) that says the patent was granted in error. Its not cheap though, it can cost a few thousand dollars depending on the scope of the reexamination, but it is an affordable option for a company faced with litigation by an over-broad patent.
As of yesterday, the USPTO has issued 6,637,033 patents. In the last five years, it has issued one million patents. AIPLA statistics , see http://www.aipla.org, indicate that in this time period, less that one thousand cases have been initiated (filed in federal court) regarding patent infringement. Thats under 1%. Of course there are some patents that issue that never get litigated, but then they dont have any effect on anyone.
I will certainly not contend that the patent in question should not have been granted, but your argument is equally as absurd as the Eolas patent. I remember (from research) the Examiners to U.S. Patent 821,393 said almost the exact thing in regard to its claims, and the '393 patent is probably the most important US patent ever issued. Not all intellectual property is the Eolas flavor, and only someone who is entirely ignorant on the subject would contend as much. The USPTO examiners do a difficult job and are correct 99% of the time, and the remaining 1% errors are corrected in litigation by competent and educated (in science, engineering, or compsci) lawyers.