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Patents Software

Patent Chief Decries Continued Downward Spiral of Patent Quality 179

Techdirt is reporting that Jon Dudas, head of the US Patent Office, is lamenting the continuing quality drop in patent submissions. Unfortunately, while this problem is finally getting the attention it deserves, the changes being implemented don't seem to be offering the correct solution. "When you set up a system that rewards people for not actually innovating in the market (but just speculating on paper), then of course, you're going to get more of that activity. When you set up a system that rewards those people to massive levels, well out of proportion with their contribution to any product, then of course you're going to get more of that activity. When you set up a system that gives people a full monopoly right that can be used to set up a toll booth on the natural path of innovation, then of course you're going to get more of that activity. When the cost of getting a patent is so much smaller than the potential payoff of suing others with it, then of course you're going to get more of that activity. The fact that Dudas is just noticing this now, while still pushing for changes that will make the problem worse, is a real problem. Patents were only supposed to be used in special cases. The fact that they've become the norm, rather than the exception, is a problem, and it doesn't seem like anyone is seriously looking into fixing that."
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Patent Chief Decries Continued Downward Spiral of Patent Quality

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  • by MisterSquirrel ( 1023517 ) on Monday April 21, 2008 @12:38PM (#23146252)
    Not only is innovation stifled, but it serves to further concentrate wealth, and the power over future wealth, into the hands of fewer and bigger corporations. How about we change it so that only an individual can hold the rights to a patent, without allowing the benefits to accrue to the employer of that individual? And that individual must be the actual creator of the patented idea in question?
  • Patent fees? (Score:2, Interesting)

    by wfstanle ( 1188751 ) on Monday April 21, 2008 @12:40PM (#23146312)
    I think that we might want to look at the fees we are charging for registering a patent. Perhaps we could implement a fee structure where small inventors pay less than large corporations that can afford more. Also we might want the fees to be based on how unique and original the idea is. Granted, this would be a rather subjective way to assess fees but this is an area where we might want to consider.
  • by jeske ( 7383 ) on Monday April 21, 2008 @12:44PM (#23146396) Homepage
    Patent fees have simply not kept pace with the value of IP and innovation. If they put them on a pricing schedule that goes up over time, and start them at $300k today, we'll see a dramatic reduction in frivilous patents.

    Even more radical would be to place limits on the collectible licensing fees based on the original filing fee. This would encourage some companies to pay more for their patents, in order to create a greater enforcement cap, but would cause them to do so only because they believed the patents to be defensible.
  • by Bombula ( 670389 ) on Monday April 21, 2008 @12:52PM (#23146610)
    It's fine to condemn frivolous patent trolling, but one important part of the reality is that it is often enormously expensive to implement a genuinely innovative idea. Innovation therefore only goes into production when huge sums of money support the organization behind it, and this is profoundly stifling of individual invention and creativity. Individuals with good ideas often cannot realize any rewards for their ideas except through patenting and litigation, since it is notoriously difficult for a individual inventor or innovator to secure a licensing agreement with a producer ahead of the fact. In absence of that option, post-facto licensing in the form of patent lawsuits is the only alternative. It sucks, but that's the way it is. If large companies were more willing to honestly license good ideas rather than attempt to circvumvent them or win wars of attrition against individuals through protracted litigation, there would be far less need of patent trolling.
  • Re:No Silver Bullet (Score:5, Interesting)

    by Corpuscavernosa ( 996139 ) on Monday April 21, 2008 @12:53PM (#23146614)
    I agree that there is no silver bullet but the quality of examiner IMHO is the biggest hurdle. You can become an examiner directly out of college. You then become overworked, pressured, and required to turn out a caselaod of applications. The USPTO has horrible turnover with the average being approximately 3 years (I have a few friends who became examiners and they said that was the average). 3 years doesn't allow anyone to become a real subject matter expert.

    You've got kids dealing with really high-level stuff in a lot of cases. Optics, physics, biotech. No wonder it's easier for companies to push shitty applications through.

  • by SlickNic ( 1097097 ) on Monday April 21, 2008 @12:58PM (#23146712)
    I agree with the above although there should be an exception to allow an individual to gain a patent relatively inexpensively but it can't be used by a company without paying the full patent price and being subject to licensing fees if they want to keep the patent beyond a set number of years (say 3 years). There also needs to be a stipulation requiring someone that has created a patent to have a product within a set amount of time. If someone creates the actual product before the person with the original patent there should be a limit on royalties (say less than 1% of net profit) and they are both given full rights to sell the devices.
  • by dtmos ( 447842 ) * on Monday April 21, 2008 @01:00PM (#23146758)
    As we have discussed before [slashdot.org], there is an equally significant problem with patent applications that are improperly rejected [eetimes.com]. Since issued patents enable one to obtain funding to bring new technology to market, this is as least as serious a problem for our society as the more well-known "junk patent" problem.
  • by Anonymous Coward on Monday April 21, 2008 @01:10PM (#23146920)
    By limiting patents to individuals it doesn't necessarily follow that society benefits. Even with non-transferrable patents individuals could still file specious, absurd and obvious patents on things like software and mathematical formulas under that system.

    It would also simply concentrate patents into the hands of wealthy individuals. As someone who's reasonably well educated and creative I have happened upon at least three or four ideas in my life that are worth a patent. Not silly stuff, I mean solid ideas with practical industrial benefit. Of course I cannot afford the $10,000+ to patent such ideas, and since publishing is no longer a protection against having these ideas misappropriated by persons in the USA I choose to keep them to myself. Those ideas will probably be thought of by someone else soon enough, I am nothing special, but for the time being they stay in my mind and may die with me. I have no desire to make money from them, but I cannot publish if I want the legitimate currency of recognition, nor can I patent them because it's not affordable. Does this sound like a system that is working to the benefit of mankind in promoting the arts and sciences?

    After 10 or 15 years of following this subject I have reached the conclusion that patents are profoundly anti-science, beyond reform and there is no course of action left but their complete abolition. The same is possibly true of intellectual property generally, but there are certain aspects that might still be rescued and turned to the benefit of humanity.

    If things carry on the way the are there will be a de facto abolition of patents anyway. WIPO will cease to be legitimately recognised as it loses credibility backing an unconsciable and broken process. The world will fragment (more than it is already) into camps which do not recognise one anothers intellectual property claims and trade agreements will collapse. We already have the situation where US and European companies cannot trade in each others respective territories. Like the RIAA/MPAA many IP organisations are unwilling to adapt, they are playing for broke and will ultimately lose the farm. Ultimately internet publication with verifiable timestamped accountability brought about by extensive traffic logging will replace all IP claims and the old institutions, but for those of us with ideas who are caught in this transition period it's not a happy state of affairs and I suspect many valuable ideas are simply being lost or held back.
  • by Anonymous Coward on Monday April 21, 2008 @01:10PM (#23146922)
    I like your idea. It seems as though engineers get zero to little for patenting an idea while their company accrues all of the benefits of the patent. (e.g., here is $200 dollars for the rights to your patent!) However, companies do take on the risk that the patent will be worthless and pay for the patent prosecution costs -- they also provide much of the resources for the engineers to be able to come up with the ideas. Also, patents are a form of property and it would not be good for individual inventors to not be able to sell patents to companies ... who would buy and in most cases enforce them? Perhaps the ultimate (but perhaps very rare) best solution would be a corporate policy that allows their engineers to negotiate a percentage of any future revenue generated with the patent ... although this may lead to issues with determining the value of the patent especially when placed in a massive portfolio (e.g., IBM -- is any single patent of theirs worth anything -- or is it the entire portfolio of patents that is worth something as a whole ...)

    However, in the United States, the inventor must be listed on the patent as the inventor. If they are not, or if someone else is listed on the patent as an inventor (and they are not an inventor) then the patent is invalid.

    [Aside: There is case law on what constitutes an inventor -- the basic concept is someone who actually came up with the patentable portions of the idea ... not someone who simply implemented the idea.]
  • by Danse ( 1026 ) on Monday April 21, 2008 @01:23PM (#23147216)

    If the poor guy can't bring the idea to market, he shouldn't be in a position to prevent others.
    If he comes up with the idea, he should still be able to patent it, and then he could sell it to someone that can implement it. Pricing him out of being able to patent it just ensure that he won't bother even publishing the idea in the first place, or even telling anyone about it since they'll probably just screw him over on it. Now I do think that if you own a patent, then you should have to bring a working implementation to market within a reasonable amount of time in order to keep that patent. If not, you're just obstructing progress.
  • by Steve1952 ( 651150 ) on Monday April 21, 2008 @01:25PM (#23147268)
    If you like the DMCA (and all the RIAA abuses) then you will love Jon Dudas. According to his official USPTO biography:

    "He guided enactment of major patent, trademark, and copyright policy, including the 1999 American Inventors Protection Act and the Digital Millennium Copyright Act."

    Most patent attorneys consider him unqualified because he had no previous patent experience prior to becoming head of the USPTO.

  • Re:No Silver Bullet (Score:2, Interesting)

    by FurtiveGlancer ( 1274746 ) <.AdHocTechGuy. .at. .aol.com.> on Monday April 21, 2008 @01:28PM (#23147306) Journal
    I understand that corporations tend to submit overwhelmingly large applications that require two lawyers and a forklift to process (the lwayers are dunnage for the pallet, of course).

    I've experienced a similar phenomenon in contracting relationships where documentation is dumped in large quantities at the last minute with the intent of overwhelming the reviewing system. Apparently it works at the USPTO as well.

  • by jedidiah ( 1196 ) on Monday April 21, 2008 @01:30PM (#23147360) Homepage
    So in order to avoid a highly unlikely boundary condition, you want to screw every
    thing up for the typical case. It's thinking like this that creates such f*cked up
    laws and policies in general. People fixate on some "important" boundary condition,
    rush off to mutilate policies in order to address that and then end up hit in the
    face with heinous unintended consequences.

    It's probably well worth the risk and the likely consquences of ignoring the oddball
    possibility like this to ensure that the system in general isn't tragically broken.
  • by Danse ( 1026 ) on Monday April 21, 2008 @01:40PM (#23147510)

    It's probably well worth the risk and the likely consquences of ignoring the oddball
    possibility like this to ensure that the system in general isn't tragically broken.
    What "oddball possibility" are you referring to? The possibility that someone other than a multinational corporation might have a good idea? The possibility that a corporation would screw someone over and take their unpatented idea? What exactly are you saying?
  • by Speare ( 84249 ) on Monday April 21, 2008 @01:45PM (#23147592) Homepage Journal
    How about charging proportionally to the full liquid (salary) and equity (stock) income of the CEO, when the patent is to be held by the corporation? Any time the patent is transferred to a new holder, the full fee should be calculated and paid again. I think this stone could kill a few birds. Outrageous executive pay would be penalized, and many small companies and individuals could hold onto more patents.
  • This only screws the little guy over and ensures that bigger corporations will keep patenting. 300k to a Microsoft, IBM or pharmaceutical company is small fries. To a small business owner or full-time dreamer like me, it breaks the bank.

    Should we even care about small time dreamers anymore? Should the entire process of patent reform have to grind to a halt in order to allow "Joe Inventor", if he exists or indeed ever existed, to still play the patent lottery game? $300,000 dollars per patent seems just fine by me.

    Better yet, simply implement a patent tax. It's intellectual "property" after all, so why not tax it?
  • by TheRealMindChild ( 743925 ) on Monday April 21, 2008 @02:00PM (#23147830) Homepage Journal
    What he is saying is typical elitism disguised in a red cape. Imagine you had one of these guys in your IT department, and tired of the spam, he comes up with a ingenious way of filtering out a lot of the crap... a perl script that uses regex to validate that the email address in the from field before being delivered. His logic being "If the script rejects it, they must be shady anyway, so I don't even care". But an intelligent person can pick out the fallacy a mile away. If the script is makes wrong assumptions, or flat out wrong, you get perfectly legitimate people getting rejected, all because someone put up an artificial boundary that ultimately serves no functional purpose, because you aren't even addressing the problem... only a possible symptom.

    That is what the guy is saying. Make the cost of a patent really high, because if people were able enough to come up with a patentable idea, they should already be successful enough to be ale to afford the cost.

    Brilliant...
  • by theantipop ( 803016 ) on Monday April 21, 2008 @02:04PM (#23147894)
    This eetimes editorial is humorous on a couple of accounts. First, the my patent is being rejected but of course it's not my fault act is cute, but I thought I stopped playing that routine when I got to grade school. Second, it is impossible to take someone's word on something like this when you are boiling down subject matter to legal terms in the claims of an application. You can have the most ground-breaking invention, but if your claims are so broad that you would be infringing on a toaster a good examiner isn't going to have it.
  • In principle, yes (Score:3, Interesting)

    by Lonewolf666 ( 259450 ) on Monday April 21, 2008 @02:12PM (#23148032)
    But the bar needs to be raised a bit more than "a bit".

    I think patents are far too easy to get, for far too little technical contribution in return. Some prerequisites that need to be (re-)introduced:

    -Patent must significantly improve the state of the art. Must also be non-obvious (on the latter, the US Supreme court shows some encouraging tendencies - more of that please))

    -Patent applications must contain instructions on how to build the item, at a level where an average engineer can do it.

    -No patents for things that lack a technical contribution. In particular, no patents on business methods.

    Now if Congress fails to fix the above items, I think the USA would be better off completely without a patent system.
  • by Z34107 ( 925136 ) on Monday April 21, 2008 @02:16PM (#23148098)

    I understand that you're trying to be bitterly dark and sarcastic, maybe even a little but humorous, but the "express" purpose of our government is spelled out in that little Constitution thing we like to bandy about during election years.

    You can argue that for the purpose of practical discussion we've fallen to a plutocracy; however, it is unfair to say that "fewer and bigger corporation own" the government - corporate lobbyists are a minority on K street. You're forgetting unions (AFL-CIO), old people (AARP), minorities (NAACP), bored lawyers (ACLU), etc.

    Money greases the cogs of governance, to be sure. But, more people than ever have money nowadays. Maybe political scientists can recognize the new breed of "democracy" we've formed in the Washingtonian super collider of... bad metaphors. You get my point.

  • by ShieldW0lf ( 601553 ) on Monday April 21, 2008 @02:37PM (#23148490) Journal
    Money greases the cogs of governance, to be sure. But, more people than ever have money nowadays. Maybe political scientists can recognize the new breed of "democracy" we've formed in the Washingtonian super collider of... bad metaphors. You get my point.

    That is a problem for sure. Can't have too many people owning too much money or everything gets screwed up. But there is a solution. The solution is to have the Federal Reserve print off a whole bunch more, then dole it out through the old boys network. Inside a couple of years, you have something like what happened to Russia, where the plutocrats own everything and the cash a person slaved their life away for goes into a wheelbarrow to buy bread with. So, don't fret. The solution is being implemented this very moment.
  • Re:Patent fees? (Score:4, Interesting)

    by Belial6 ( 794905 ) on Monday April 21, 2008 @03:43PM (#23149522)
    Actually, they should have the sliding scale based on the number of patents you have. Huge corporations would get increasingly more expensive patents. They could mitigate this cost by releasing older, less valuable patents into the public domain. The small inventor would be able to afford the very low cost initial patents. If any of their patents paid off, they could then afford more. If they don't pay off, they could release them into the public domain, and not have to worry that some corporation will patent it behind them, and cut off their idea from the rest of the world.
  • by Anonymous Coward on Monday April 21, 2008 @04:19PM (#23150048)
    Tell that to the people who patented the Law of Gravity [slashdot.org]...
  • by Danse ( 1026 ) on Monday April 21, 2008 @04:32PM (#23150302)
    I'm inclined to agree with the prototype requirement. That's the way it used to be, and I don't think it would be terrible to return to that state. If that would also involve the banning of "business method" patents, all the better. I think that software patents should probably also be done away with, as they can be covered by copyright, and the PTO has shown a complete lack of competence in determining what is novel in reviewing such patents.
  • by xenocide2 ( 231786 ) on Monday April 21, 2008 @05:55PM (#23151444) Homepage
    I listened to a lecture given by Eben Moglen on the subject of Patents, with emphasis on software. When he came to the subject of undoing the current system, he mentioned what I thought to be an interesting market approach. Professional engineers are currently expected to develop patents on their creations, and are rewarded for their efforts with bonuses, promotions, etc. The suggestion is to ask companies to reward engineers for every patent they overturn in the process of bringing a product to market. With that, there's now equal market incentive to overturn patents as there is to create new ones, and a company is forced to recognize that the patent system that gives them IP is as a whole a barrier to their future.

    I'm sure there's holes in that simple proposal, but I'd be interested to see if that idea can be made workable.

It's a naive, domestic operating system without any breeding, but I think you'll be amused by its presumption.

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