The Real Problem With the US Patent System

Pachooka-san writes "An article in the Washington Post touches on the 'real' patent problem — the quotas that Patent Examiners must meet. They have no effective quality standards, only production standards, so many applications get only cursory review just so the PE can keep up the grueling pace. The USPTO is the only government agency that can and does lay you off if your productivity drops below 85% of the standard for your civil service grade. A Primary PE has to process 5 new and 5 old applications every 2 weeks (that's 8 hours each, folks). The best part — that 28-box application mentioned in the article? — it gets the PE the same credit as the smallest application. How many of those 28 boxes do you think even got opened?"

Re:Patents are very difficult to read

[Actually, I do RTFA]

Surely it would help matters enormously if patents had to be written in English rather than impenetrable legalese?

Patents are legal documents. That is why they are written in legalese. And patent examiners speak legalese. It actually makes them more efficent as it becomes easier to reject a patent for prior art the fewer ways there are to express an idea.

And legalese, much like medical jargon, is a seperate language where words mean specific things. Unfortunately, while medicine stole from Latin, and is thus obvious, the Law stole from English. So many people think it is merely poor English, when in reality the words being used have very precise meanings.

IANAL

Re:Reverse the polarity!

[droe42]

The system already rewards examiners for denying an application. (They get a count regardless how they dispose of the application.) Come Nov. 1st the rules for patenting are going to change dramatically. A lot of the complaints out there are getting addressed (for better or worse) by the rule changes. Everyone wants to see "obvious" patents rejected, unless you are the guy who came up with them. This is the *clarification* of the rule changes: http://www.uspto.gov/web/offices/pac/dapp/opla/preognotice/clmcontclarification.pdf [uspto.gov] If only I had patented the spreadsheet....

There is no polarity!

[Actually, I do RTFA]

The quotas are per patent examined and denied/accepted. So, there is no polarity. In fact, if anything, it is a lot easier to say "X anticipates Y, go away" than to approve a patent.

Because the law requires it

[kansas1051]

This is the other problem. Why are they allowed to submit this much?

The law requires it. The Federal Courts have invented a doctrine known as "inequitable conduct" that requires a patent applicant and its attorney to submit every document they have access to that could potentially be relevant to the application. So, if you are a corporation with a resource library that relates to your products, you have to submit the entire resource library or risk committing inequitable conduct. In every patent infringement trial, the infringer accuses the patent owner of hiding information from the patent office, no matter how much information is submitted. So the natural recourse is to submit everything.

Both Type I and Type II errors are occurring

[dtmos]

I have more than 35 issued US patents, with at least 15 applications presently on file with the USPTO -- no software or business-method patents, thank you very much! -- and the biggest problem I experience is the opposite from that most frequently mentioned here. While examiners do allow worthless patent applications (hopefully none of mine qualify...), my biggest headache is that they also reject patent applications for technically incorrect reasons, usually based on an incomplete understanding of either the present application or the prior art.

The root cause of this, however, is the same -- lack of time available to read the relevant material in depth. Not only can the present examiner not read my application carefully, but the fact that his predecessor had the same problem led him to quit, so the reviewer of my application today has less experience than he might otherwise -- a two-fold impact. The fact that I have to respond to the incorrect rejection, often to the point of entering the formal patent appeals process, only adds workload to an already-overworked system.

My point is that the examination process is a decision point and that rushed, inexperienced examiners can err in both directions. Yes, they can allow applications that should be rejected, but they can also reject applications that should be allowed. And while the former gets a lot of press (we've all seen the patent for the child's swing), the latter is just as bad for innovation: If a patent troll can take an inadvisedly-issued patent and take down an industry, an improperly-rejected patent can delay or deny funding to the startup trying to build an industry in the first place.