FTC Issues Report Critical Of Patent Policy 206
hayek writes "The Federal Trade Commission issued a report yesterday regarding failings in current U.S. patent policy. Among other things, the FTC recommends that the burden of proof on parties challenging patents in court be lowered from the current 'clear and convincing' standard, to the easier 'preponderance of the evidence' standard. Even if you don't think the FTC recommendations go far enough, implementing them would be a good start to solving some of the problems caused by the current system." nolife points out a report at Law.com indicating that, under the current system, "Patent examiners have from 8 to 25 hours to read and understand each application, search for prior art, evaluate patentability, communicate with the applicant, work out necessary revisions, and reach and write up conclusions."
There is an easier solution, and it's FREE (Score:5, Informative)
So there's your patent-free idea database: publications of any sort. This ought to be obvious, because "obvious" is one of the synonyms of "patent"...
Re:"Obvious to an expert in the field" (Score:3, Informative)
Furthermore, I am not aware of a situation where someone's testimony in a patent case was challenged because he possesed more than ordinary skill in the art, but (IANAPL) I could be wrong.
Re:Correction: Patent examiners have.... (Score:1, Informative)
http://www.uspto.gov/web/offices/ac/ahrpa/opa/p
Re: Performance measures. (Score:4, Informative)
As you guessed, examiners are measured by performance. Depending on their level and the field of art they examine in, each examiner has a certain number of "counts" they must make each week (actually, it is measured by biweeks).
Each application has two counts. The first count is granted for the first substantial "office action" on the merits of the case. As a side note, there are sometimes initial things that can/need to be done which do not get the first count as they are not the first action on the merits (such as a restriction of the claims - which is done when two or more inventions are being claimed in the same application). A second count is given when the application is disposed of. Disposal usually happens either by issue, abandonment, or by final rejection (usually this is when a previous office action rejecting at least one claim is repeated because the applicant did not overcome the first office action's rejections).
Note - if an examiner issues the case in the first action, he or she recieves 2 counts (for very little work). In over 4 years at the PTO, I never got to do this, though others did it fairly often.
Most examiners have a pretty stressful time. Their bosses can make life almost unbearable if they so choose. Imagine, searching a full day to get good prior art (when you know you need to do a count every 6 hours or so - so you're already behind), and another hour or two to write up the office action. Then after turning it in, your boss says he doesn't like the prior art and makes you do it over.
Then there are the jumbo cases - applications with 50, 60, even over 100 claims. For those who don't know, the protection a patent gives is defined by claims, which are legal descriptions of the invention. Each claim in a patent sets forth a differnt embodiment of the invention. Each claim must be dealt with in the office action (and rejections of different claims may involve different prior arts). Quite often, after writing up the office action in such a jumbo case, it comes back from the applicant and the examiner realizes one claim was not dealt with properly (happens, examiners are human). Guess what? Another office action, but no count as the office action cannot be made final - a freeby for the applicant.
And something which might not occur to those outside. When someone gets fired or quits, all their cases must be reassigned. If their cases were not properly done, then a freeby office action is required (they already got the first count) to fix the case.
The PTO has a lot of problems. For what it is worth, in my experience, most examiners took pride in their work and tried to do the best they could within the limits of the system and their boss.
Re:public review of claims (Score:2, Informative)
They are...
http://www.uspto.gov/patft/index.html Both issued patents and published applications DBs.