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Patent Examiners Flee USPTO
Posted by
Zonk
on Fri Jul 29, 2005 08:30 AM
from the drowning-in-paper dept.
from the drowning-in-paper dept.
john-da-luthrun writes "Soaring numbers of patent applications for software and business processes is not only leading to the ludicrous patents for the likes of Amazon and Microsoft. The stress of dealing with vast numbers of applications is leading to an exodus of patent examiners from the USPTO, reports FCW.com. A US Government Accountability Office report (PDF) says that the USPTO has made progress in hiring examiners, 'but challenges to retention remain'. The IP Kat blog quotes Jason Schulz of the EFF, who comments that 'The incredible surge of patent applications, especially in the software and internet business method arena, is just crushing them, and the management problems are rising to the surface with greater visibility for those reasons. Where anything under the sun is patentable, it puts an unbelievable amount of pressure on the patent office'."
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Fundamental change is needed... (Score:5, Insightful)
Of course, to have a public review of a patent application the applicant would need protection against someone stealing the idea before the patent was issued.
Re:Fundamental change is needed... (Score:3, Interesting)
The submission dates on patents determine who gets to shake-down whom. Also, public review would likely lead to submission of higher-quality patents, since companies may choose to hold onto any possible trade secrets in applications that are unlikely to pass muster.
Trade secrets??? (Score:3, Insightful)
So you can either keep your invention as a secret or you can patent it. But you cannot have both.
Re:Trade secrets??? (Score:4, Informative)
"If the only patent being sought is a United States patent, then the decision to give up trade secrets to obtain a patent is not, at present, an irreversible one. The reason for this is that a U.S. patent application is kept secret by the U.S. Patent Office until such time as a patent issues. At any point prior to payment of the issue fee, an applicant could is permitted to abandon the patent application, in which case it would remain secret thereafter.
One should keep in mind, however, that the U.S. Patent Office has announced its plans to start a program of publishing patent applications 18 months after filing, thus coming into harmony with the majority of countries having patent systems. This change, if implemented, puts the U.S. applicant in the same position as applicants in other countries, having to make a decision whether to seek a patent or rely on trade secret protection.
At such time as the patent issues, it reveals to the public any and all trade secrets that are contained within it.[...]"
So, you are right that once the patent is issued, the trade secret status would be lost. However, it's also true (at least for the moment) that the trade secret status must be preserved until the patent is issued, at least in the US. (this description, by the way, is from 1993, so it may already be out of date.)
Parent
Re:Fundamental change is needed... (Score:5, Insightful)
I believe the entire Patent idea should be reviewed... Too many stupid ideas can be patented and too many Patent are only issued and never used (like the tabaco companies getting patent on making cigarette less addictive...)
I, personnaly, don't want to have to go trough several thousand patents just to see if I can run a computer buiness...
The entire system is on the verge of collape from the sheer volume...
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Re:Fundamental change is needed... (Score:4, Interesting)
Parent
Re:Fundamental change is needed... (Score:3, Insightful)
Re:Fundamental change is needed... (Score:3, Insightful)
We need to be aware that this is the system that is essentially in place now--the patent examiners rubber-stamp bogus submissions and the public sorts it out in court later on. Unfortunately, this current process is very costly to the public reviewers, the industry, and society as a whole.
Re:Fundamental change is needed... (Score:3, Insightful)
Let there be a fixed number of allowed patents - something reasonably small (1000? 10000?), so that the patent database never grows very large (and is easily searchable, and doesn't infringe so much on normal innovation).
Anyone who wants can submit a patent application. As each patent slot is freed up due to expiration (or cancellation after successful litigation due to prio
Re:Fundamental change is needed... (Score:4, Insightful)
Funny however, that the seemingly biggest proponents of said "free market" and "get the governement out of our lives and businesses" tend to overlook this...
Some thoughts about this in respect to Patents on lifeforms [discordia.ch].
Parent
Re:Fundamental change is needed... (Score:3, Interesting)
Business process patents were a stupid idea to begin with. They need to go.
Re:Fundamental change is needed... (Score:4, Interesting)
Someone calculated that it would be cheaper for the US gov to pay for the development of new drugs than to pay the companies higher fees due to patens.
Makes sence since a company exist to make money.
Parent
Some suggestions: (Score:5, Funny)
Some suggestions to help ease the tensions over at the USPTO:
Hope this helps.
"Naked Fridays!" (Score:5, Funny)
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Re:Some suggestions: (Score:5, Funny)
I don't know about you. But I'd need a whole lot of rum and ecstacy before I could survive a "Naked Friday" at my office.
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Re:Some suggestions: (Score:5, Funny)
RED PATENT LAWYER NEEDS FOOD BADLY!
Parent
Hah! (Score:3, Funny)
Patent the sun! (Score:3, Funny)
(Yes, I realize you can't patent an instance of an object, especially a celestial object. If you're the type of person constantly pointing out flaws in other people's jokes, I'll bet you don't get invited to a lot of parties.)
Re:Patent the sun! (Score:5, Funny)
Parent
Can the exodus be attributed to the deluge? (Score:5, Interesting)
Remember, this is the government we are talking about. They are under no pressure to approve patents in a timely manner. The applicants will wait for as long as it takes to get their patents.
The EFF is right, of course, in that the patent system needs to be overhauled so that the system can't be used as a weapon anymore. Unfortunately, they seem to make a non-existent connection between that valid point and the other vaporous point that tons of applications is leading to mass quitting at the USPTO. I think they damage their reputation when they try to argue in such a flawed manner.
We need to vote into office people who understand the issues, not those that are in the back pocket of the corporations.
They have quotas. (Score:5, Informative)
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It's Salary, Actually (Score:3, Insightful)
I believe it's purely because of salary. Entry examiners coming in making about $35k or so, and topping out at about $50k after a few years (depending on the type of patents that you're examining - it varies based on the complexity of the topic or technology).
How
Re:Can the exodus be attributed to the deluge? (Score:4, Informative)
Parent
Intelligence factor (Score:5, Insightful)
If you were an employee who had to deal with issues that seem unfair and unreasonable to you, especially if you were 'sensitive' enough as to even blame, in part, your very self for being part of this stupidity, you may have done the very same thing.
John Caramack [wikiquote.org] puts it all in prespective:
"The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying." (on software patents)
ouch! (Score:3, Insightful)
Assuming, of course, that software could use some basic user interface techniques without paying exorbitant patent fees.
Some info to go with this... (Score:5, Insightful)
The guy that used to work there told me that the USPTO recently changed their benefits and no longer pay for their workers to get a law degree, etc., if they stay with the USPTO for a certain amount of time after getting it. This is the main reason he left - he did part time schooling for awhile but now decided to just leave and get it done asap to get his law degree faster.
The other was told, even with a contact inside the USPTO (this was right as the guy above was getting ready to leave), that the USPTO was not hiring and that they received over 5000 applications for the 10 slots they were trying to fill. This was for the biotech/life sciences division of the USPTO.
So, essentially, from what I've observed, there cutting some of their best benefits and getting more then enough applications for new people. I'm assuming this entire thing is primarily a budget issue - as almost everything is down here in D.C.
Re:Some info to go with this... (Score:5, Interesting)
You can argue whether it is for the better or for the worse, but the patent office stopped paying for law degrees because as soon as anybody got the degree a DC law firm would hire them away and pay the debt off.
Yes, it wasn't costing the patent office money in that regard, but it was reducing the patent office to being just a feeder source for the law firms. Paying for advanced degrees is done to retain top employees while gaining the advantage of them having advanced education. The patent office was seeing none of this, so they canned it.
Parent
How lazy can you be? (Score:5, Funny)
Re:How lazy can you be? (Score:3, Funny)
Just pounding the rubber stamp on any piece of paper that comes into your office sounds like the easiest job on the face of the earth.
It's not as simple as that... since the USPTO granted a patent on rubber-stamping daft patent applications.
;-)
Raise their salary! (Score:5, Interesting)
Re:Raise their salary! (Score:3, Informative)
However, the OP's suggesting Hans Bethe, Richard Feynman, Enrico Fermi, etc., etc., were not among the best physicists in America is pretty stupid.
Practically anyone of equal or greater talent in America who wasn't working on the Manhattan project was working on radar projects for the U.S. government.
The Manhattan project was an instance of the U.S. goverment getting the smartest people they could, writing them a blank check, and staying the hell out of their wa
The solution! (Score:4, Funny)
2. Ship all the applications to India
3. Stamp Away!
Also,
I've been dying for someone to "hack" the patent system and using different words patent the same idea twice (or have two people approved for the same idea).
Re:The solution! (Score:5, Informative)
That exact thing happened with the LZW algorithm used in GIF [wikipedia.org] files. Both Unisys and IBM ended up with patents, but only Unisys tried to enforce them.
Parent
How to kill software patents? (Score:3, Interesting)
But I'm wondering if the idea of dumping software patents can have any traction with the general public? The politicians are in the pockets of the big companies, and they're plenty happy to keep their entrenched positions with their armies of lawyers. Until the GENREAL public cries out for a change, it won't happen.
So far I have not heard anything about this matter outside of the geek community. (even some of my less geeky computer freinds have not heard/thought about this issue)
I say this tongue in cheek (Score:3, Insightful)
Here's a thought: (Score:5, Interesting)
Just fill the post of Patent Examiner with ordinary people chosen at random, like jury selection.
"Sorry, boss...I won't be in this week...got a summons for patent duty."
a friend of mine just became an examiner (Score:4, Interesting)
not a bad deal if you have an engineering/science background
No Big Deal (Score:4, Funny)
Unemployed Software Engineers (Score:3, Funny)
Solution (Score:4, Insightful)
It's almost like the solution suggests itself...
Why are software patents NOT harmful to society? (Score:3, Insightful)
Dear Patent Lawyers,
Could you please justify by reply in moderate detail the supposed net benefit to society (rather than just to corporations) of software patents explaining why you think that extending the patent system to cover software is not harmful both to society and to freedom of expression given the case of an open-source software developer who, as a result of
is threatened with a patent lawsuit by a corporation demanding he/she removes the allegedly infringing software from the project's website, leaving the impoverished developer with no real choice but to comply with the demand and close the project?
One recent unresolved case, which is not unique, is that of the German mathematician and open-source software developer Helmut Dersch who had no financial choice but to remove his software from his project website. He had no money to pay for a patent application at the time of his own inventions, which pre-date the patent application of the IPX company , to to pay for a lawyer to challenge the company which threatened him with the prospect of a lawsuit.
Here [ffii.org] [ffii.org] is a summary of the case history.
I hope you will take the time to reply at moderate length for the sake of explaining to the open-source developer community why software patents are not a threat to completely unfunded open-source projects.
Thank you for reading this. If you are a patent lawyer, please mention that fact in your reply here.
When a similar comment was last posted here [slashdot.org] it got a brief reply from one of the patent lawyers who read slashdot.
Please copy and re-post this message in all available forums until some patent lawyers have the courtesy to write a thorough reply.
And the simple solution is.... (Score:3, Insightful)
This won't change (Score:5, Informative)
I am a past examiner and I can tell you that every examiner has production quotas. Their bosses (called supervisory patent examiners) get bonuses if all their people do over set amounts (e.g. up to 110% of quota), so some bosses really ratchet up the pressure. The guy that hired me even made me orally agree to do 110% of quota before hiring me.
Additionally, though, the bosses get alot of power. In training we were told to do things one way, but if our bosses wanted the opposite, we were to do that instead. Some bosses are great, to the point that people even have second jobs (maybe not now, but some did when I was there) and goof off at the USPTO, getting their quotas on one or two days work. Other bosses are from hell and get very personal on people, refusing to sign off on their work and requiring them to redo things time and again. There is NO way to meet quota when your boss refuses to sign off on your work, at least until you reach primary examiner status. People in such situations generally had no recourse, especially as the bosses could prevent transfer requests, so the people were forced to leave or be fired. And upper management had a "hands off" policy so no help there.
I literally know of dozens of good examiners who were forced out by recalcitrant bosses, including several primaries.
On the other hand, if you have a good boss and get into a schedule where you can get your work done in less than 40 hours a week, the USPTO can be very difficult to leave.
It is very obvious that the USPTO management doesn't care about examiner attrition. If they did, they would have figured out safeguards against it long ago. But why should they? After all, there are always people wanting jobs there, if not birth Americans, then all the Vietnamese, Indians, and Ethiopians who have gotten their citizenships. And it's not like the companies are going to go away - no matter how long it takes to get a patent, there is only one source for patents. And congress can't do much - the USPTO is self-funded, congress can't force the USPTO to improve beyond what they are doing without more money, and congress isn't about to supply that. So I think the system is stuck without some enlightened new management.
Re:This won't change (Score:3, Insightful)
Part of the problem is that Congress routinely siphons off a chunk of the money. The USPTO could fix most of the problems that are susceptible to throw-money-at-it (e.g. the overworked/underpaid/lousy morale treadmill) if Congress kepts its fingers out of the till.
Here's the #1 Problem - Fee Diversion (Score:5, Interesting)
The USPTO is a profit center for the government. Last December, the amount of that profit was set to DRAMATICALLY increase because of dramatic increases in user fees such as filing fees and examination fees, among others. Instead of letting the PTO keep that money to do its job, Congress "diverts" a large portion for other uses, including Homeland Security, among others.
Contrary to what the parent post said, namely, "Where anything under the sun is patentable, it puts an unbelievable amount of pressure on the patent office," anything under the sun is NOT patentable. Anything under the sun MADE BY MAN has the POTENTIAL to be patentable - so long as it meets the criteria of the Patent Act, namely, novelty, utility, and non-obviousness. Despite the seeming simplicity of these terms, there are very well-defined legal tests behind each one that must be applied properly. Each of those terms has thousands of pages of case law / judicial interpretation behind it.
The PTO's inability, caused by Congress, to keep adequate resources to properly do its job directly results in poorer quality examinations because the Examiners do not have the time, experience and training to rigorously apply the rules in every case. As a patent attorney, I have an ethical duty to provide valuable services to a patent applicant. My services are valuable if I can point out and properly describe my clients' inventions and the legal reasons why those inventions are entitled to patent protection. The way I do that is by keeping current in my technical field (Computer Science) and the law. However, I cannot know every piece of prior art out there. The best I can do is try to know as much as I can and write patent claims (the portion that defines the invention) that do not also describe prior art. Every patent applicant relies to a certain extent on the Examiner who receives their application to perform a good prior art search so that the Applicant can either point out how their invention is different from the prior art or can adjust the claims so that those claims no longer describe the prior art along with the invention. In fact, the Applicant is PAYING for that search.
A claim that describes an invention but also describes the prior art is invalid. I do my best to draft solid claims but the Examiner also has to do a solid search. Some people think that it is in the Applicant's best interest to have very broad claims so that people will have to litigate to prove the claims are invalid. I think that approach, if taken, is foolhardy because of potential legal liability on the part of the patent owner. It is also an abuse of the system. Abuses of the system can be minimized to a certain degree by having higher quality patent searches by well-trained Examiners. The best way to get that is to tell Congress to stop diverting fees.
Re:Here's the #1 Problem - Fee Diversion (Score:5, Interesting)
My "argument" about anything under the sun ... is not "bullshit." it is the law. Quote:
"The repetitive use of the expansive term "any" in 101 shows Congress's intent not to place any restrictions on the subject matter for which a patent may be obtained beyond those specifically recited in 101. Indeed, the Supreme Court has acknowledged that Congress intended 101 to extend to "anything under the sun that is made by man." Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980); see also Diamond v. Diehr, 450 U.S. 175, 182 (1981). Thus, it is improper to read limitations into 101 on the subject matter that may be patented where the legislative history indicates that Congress clearly did not intend such limitations. See Chakrabarty, 447 U.S. at 308 ("We have also cautioned that courts 'should not read into the patent laws limitations and conditions which the legislature has not expressed.'" (citations omitted)).
State Street Bank & Trust Co., v. Signature Financial Group, Inc. [georgetown.edu]
Parent
There is corruption in other areas, too. (Score:4, Informative)
Those who want corruption want stupid patents so they can scare others away from working in their area of technology. They don't care if they sometimes lose a few court cases due to stupidly weak patents. In general, taking something to court is so expensive that the corrupters win just because of the threat.
A major way those who want corruption destroy government effectiveness is by starving the agencies of operating funds. That's what happened to the patent office. The corrupters won't allow hiring of enough people to do the job well.
For a discussion of starving the SEC (U.S. Securities and Exchange Commission, regulates the stock exchange), see this article: Keeping the SEC on a Starvation Diet [scu.edu]. The corrupters don't want their stock manipulations discovered. They want more of this: Enron fraud [enronfraud.com], this: WorldCom fraud [worldcomstockfraud.com] and this: Tyco fraud [edgarsnyder.com].
They are corrupting the IRS (U.S. Internal Revenue Service, collects taxes), too. The corrupters definitely do NOT want their tax returns to be audited, so they arrange that there is not enough money for audits: Bush Request for IRS Not Enough, Report Says [washingtonpost.com]
They are corrupting the courts. Those who want corruption spend huge amounts to get lazy judges elected, and work for the defeat of judges who do a good job.
Another major way that corruption of the courts is accomplished by not giving the courts enough money to operate. A 2003-06-24 op-ed article by Charles Williamson, then president of the Oregon State Bar, in The Oregonian, the Northwest's largest newspaper, said, "The crippling loss of nearly one-third of their staff have left our courts unable to hear criminal cases such as car theft, shoplifting, prostitution, fraud and identity theft."
The Bush administration has been appointing heads of government agencies who reduce the role of those agencies. After they destroy the effectiveness of the agencies, they go back to running their businesses, and the corruption gives them more profit.
The book Other People's Money [fetchbook.info] discusses corporate corruption. It's excellent. Secrets and Lies: Operation "Iraqi Freedom" and After: A Prelude to the Fall of U.S. Power in the Middle East? [amazon.com], by Dilip Hiro is an excellent book about the corruption that led to the most recent U.S.-Iraq war.
The corruption is extremely widespread. The books mentioned above and the 3 movies and 34 books reviewed in this article are not enough to tell the story: Unprecedented Corruption: A guide to conflict of interest in the U.S. government [futurepower.org].
In general, most Americans don't want to know how corrupt their government has become. Most don't read books. The TV news they watch is heavily influenced by the corrupters. For example, GE, one of the largest sellers of weapons, owns NBC [cbsnews.com], one of the major ways Americans get their news.
Re:Current system is unworkable (Score:5, Insightful)
PEs are leaving since they know they are under pressure to rubber-stamp applications without regard to proper examination (and more to the point, REJECTION on the basis of prior art and obviousness). Probably, the PEs who try to properly examine a patent app cross their bosses time and time again, leading to a wholesale drop in morale.
This exodus is only going to lead to an even easier rubber-stamping process. The American public had better fucking wake up. The USPTO has been completely subverted by ONE customer -- the patent applicants (uniformly, corporations). The USPTO has no regard whatsoever for the OTHER customer: the American citizen, who requires patents to be innovative and not obvious, in order to qualify for the process of exchanging monopolization for disclosure.
Unfortunately, the chances of getting such an organization fixed in this hypercorporate political environment is essentially ZERO.
Parent
Re:This Just In (Score:3, Funny)
And this would stop/slow down Microsoft how?
Re:Take a page out of the EU's book (Score:3, Informative)
That's unfortunately an oversimplification.
Basically the European Patent Convention (EPC) forbids patenting business methods and "software as such". You can't patent a an algorithm. You can patent a computer running the algorithm. (Functionally equivalent). You can't patent a business method, but you can patent a computer network implementing the business method. (So competitors must do business "by hand").
The exact interpretation