Patent Examiners Flee USPTO 387
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'."
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.
Re:Fundamental change is needed... (Score:2, Interesting)
I already suggested that [slashdot.org] and it was shot down by slashdotters.
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.
Raise their salary! (Score:5, Interesting)
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)
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
Re:Fundamental change is needed... (Score:4, Interesting)
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.
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:Fundamental change is needed... (Score:3, Interesting)
Business process patents were a stupid idea to begin with. They need to go.
CSPAN Debate (Score:3, Interesting)
I was channel surfing last night, waiting for water to boil, and came across a hearing on patent reform. Dean Kaymen, inventor of the uber-hyped Segway, explained the need for massive patent reform. There was some disagreement among the panel of experts about what needed to be done. The corporate IP lawyers argued that they were unable to defend against frivolous lawsuits from what are known as patent squatters and therefore damages needed to be capped. The small inventors argued that damages should not be capped simply because the government wasn't doing its job. Considering the importance of this hearing for the future of capitalism I was surprised to find only two articles covering it. Kaymen argued in favor of the little guys but didn't mention trends. The Longtail/Democratization of Innovation trend could have been used to argue that the small guys will increasingly need protection as they become the main producers of intellectual property. The big guys have an ulterior motive with their push for damage caps. If the big corps do accidentally violate a patent they can't be held fully acountable because of the government's inability to decide which patent suits are frivolous. I don't think anybody bought the argument. Everybody seemed to agree that the patent office is underfunded and that judges aren't fairly handling cases. It was kind of nice to watch these inventors that I've read about actually teaching our legislators a thing or two about the realities of doing business. And the legislators were eagerly listening! I'm generally disenfranchised with what the government has devolved into but moments like this rekindle that weird sense of patriotism that sometimes rears its bald head. There's a good overview on Patently-O.
Two corrections (Score:3, Interesting)
Actually, examiners are under very high pressure to process applications quickly. That can mean approve or reject.
Patents are meant to be a legal weapon for the inventor. For example, Tensor stole Walter Raczynski's invention of a desk lamp after he showed it to them. Since he had a patent, he was able to use it as a weapon to get compensation from Tensor.
Re:Now We Know! (Score:3, Interesting)
Wired News article on this topic... (Score:2, Interesting)
Former Patent Head spoke here last month... (Score:3, Interesting)
- Over half of all patents being applied for now are in the areas of electronics and related technologies, so they are trying like mad to hire electrical engineers and train them as patent reviewers. This takes 4-5 years of training unless the reviewer has a legal background already. (Personally, I can't imagine what about the patent process could take 4+ years to learn when most medical residencies aren't even that long).
- "Prior art" is not limited to just prior patent filings, but can include a variety of publicly available pieces of information. However, finding those items outside the PTO's own database can be impossible for someone who doesn't know the field (I think this implies that a public review step might be necessary in the future).
- The growth in patent applications, especially those coming from foreign entities, is over 30% a year, and the approval rate has been declining (but not as fast as the submission rate growth, so we're still seeing more patents per annum approved).
Anyway, I thought it was interesting. Clearly, his job was more political (fighting for resources/funding from Congress, etc.) than operational, which seems to be where most of the PTO's problems are now.
Re:Fundamental change is needed... (Score:3, Interesting)
Reasonable time is can be defined easily. Make it the lifetime of the patent. And if a patent applies to more than one product, *all* said products must still be available by the time the patent expires. Oh, and said product must still be supported until the patent expires.
Reasonable price is much harder to define, but can be narrowed down by the amount of R&D work that went into the patent divided by the quantity of whatever is patented is expected to sell, plus some healthy margin (say 75% - most places will kill to be able to have 75% of a product's cost be pure profit). If said product sells more, the reasonable price scales down as costs are recouped (to keep people from declaring "we only will sell one"). The upper bounds shouldn't be too limiting, since normal market forces typically dictate that the price falls *much* faster. R&D costs can be easily determined by examining things like worker cost, the stuff they used in making said product, etc (after all, they *do* keep journals for that very reason!).
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.
The Basic Problem With Intellectual Property (Score:2, Interesting)
By definition, everybody wants to own everything.
IP makes it possible, unlike REAL property. IP is merely an attempt to extend contract behavior and law over basic property principles and law and do it using government coercion instead of contracts or the market.
IP is an oxymoron and ultimately unworkable.
Dump all IP laws and the economy will adjust to the new situation within a few years (although undoubtedly the lawyers will make a killing on ridiculous nuisance lawsuits for a while). There will NO impact on the rate of new inventions or anything else, supposedly the justification for this nonsense. And a lot of wasted money (both in legal fights and pointless "inventions" that can't survive in the marketplace) will get re-invested, hopefully in something more useful.
Studies have show that the cost of government regulation far exceeds the benefits - to the point where, if regulations didn't exist, everything in the US would cost ten percent of what the item costs with it. Undoubtedly, an economic study of the costs of IP laws will show they far outweigh the supposed benefits, or at the very least, skew those benefits to the few instead of the many.
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]
Re:Fundamental change is needed... (Score:3, Interesting)
Re:Here's the #1 Problem - Fee Diversion (Score:3, Interesting)
Correct me if I am mistaken, but the Supreme Court's consistant position and most recent ruling relating to software patents was that any possible software algorithms was treated as a familiar part of prior art (a direct failure of both 102 and 103), and that insignifigant post solution will not transform an unpatentable principle into a patentable process (a process for transforming or reducing an article to a different state or thing). To hold otherwise would allow a competent draftsman to evade the recognized limitations on the type of subject matter eligible for patent protection. (Which is exactly what has happened.)
I am referring of course to Diamond v Deihr. It's funny how DvD is cited as supposedly being a pro-software patent ruling. First of all it was a 5-4 decision, with 4 judges wanting to throw the patent right out. Secondly, the other 5 judges juled that a claim to an industiral rubber manufactuing process passes 101 muster, and they explicitly stated that it was still subject to 102 and 103 invalidation, and they closed with that EXPLICIT WARNING that their ruling should not be appled in the way the minority feared it would be applied and the way is has been missapplied. That competent draftsman should not be allowed to circumvent the limits of patentability, that patent laws were designed to protect processes for transforming or reducing an article to a different state or thing.
It seems to me that State Street Bank is a direct violation of Supreme Court law. Producing a solution that is simply read as a dollar value HARDLY constitutes "signifigant post solution activity". The current patent mess entirely hangs off of that single lower court case.
The Supreme Court were facing an inductrial rubber manufacturing process and the majority still deliberately included disclaimers and limitations and warnings. I doubt any of the majority intended to allow the current regime of issuing pure softare patents. Hell, it would merely take ONE of that majority to say that the current patent system has exceeded the limitations on patentability to establish a majority invalidating the entire mess of software and business method patents we have today.
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Re:They have quotas. (Score:2, Interesting)
They can fire people if they don't examine enough patents, but for a non-probationary employee they have to give you a warning and then something like 6 months.
Re:Fundamental change is needed... (Score:2, Interesting)
Who would want to invest a lot of time and money to develop something requiring research only to have competitors strip it down, analyze how it works and build their own product to sell much cheaper?
The public would do it, and the government should do it. What kind of drugs are we talking about? Cancer? Let's talk cancer. My brother was diagnosed with a curable cancer not so long ago. He was prescribed a dozen or so $1500 shots. AFAIK, if he wasn't covered by our parents' insurance, he would be screwed. Fscked.
It is a fact that cancer is a very common kind of illness. Not many people above 30 can say that none of their friends or relations ever suffered from cancer. Because of that, there is a real possibility for funding some of the research by voluntary donations.
Also, as crazy as it may sound, US government could for a change give us our taxes back by pouring some cash into the pharmaceutical R&D! I just find it unfair on a very fundamental level that people without health insurance are unable to get the best treatment because they cannot afford non-generic drugs. Is access to the healthcare a human right or not? How can it be illegal for me to heal myself in the most efficient manner known to humankind?
A mind experiment for you: in the near future nearly all food is manufactured by corporations. All sources of food are genetically engineered and patented. I cannot afford either to buy food or to license it out. Growing my own food would be illegal and bad for economy. After all, if genetic engineering R&D is not protected by patents, who would be stupid enough to do it? Who would bring us new, better sources of food?
Since I cannot afford food, I will do a favour to the society by starving myself to death. Resorting to growing my own food illegally would be highly egoistical and would certainly destroy the society as we know it.
Re:Fundamental change is needed... (Score:3, Interesting)
I'm proposing a _replacement_ for the existing patent system. Auction-participants would be bidding on the chance to MAKE something a patent, not on things which are already patents. Of course, once somebody has won the rights for a patent, then they could do the typical things with it like any patent holder, including licensing it to other companies or selling it completely (if they think they can get a better deal than the amount they paid to win the auction).
Or a consortium of companies could get together to outbid Merck & own the resultant patent collectively.
Frankly, though, your counterexample really applies only a fairly well-off patent holder. There aren't many "small" patent holders who could hit 5 big companies for $20mil each (much less a single company for $50mil), at least not without major legal muscle to fight the teams of lawyers that those companies can muster to ignore or invalidate any of your attempts to enforce your little patent.
With my scheme, 1) the total # of patents is kept to a manageable level so that frivolous patents don't unnecessarily retard innovation in the society, 2) you don't have to depend on the availability of expert patent examiners to attach an accurate valuation to each patent, 3) people with bright ideas but no resources don't have to compete with the legal resources of huge companies plus they get a rapid potentially-substantial payoff in direct proportion to the perceived value of their idea, 4) the good ideas are immediately available to agents who do and can have the resources to take full advantage of them.
Your thought scenario is interesting, but I do not think it completely invalidates the advantages of my scheme. Certainly I believe that my scheme would be much better for society than the current patent system.