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Patent Office Proposes Reform 178

leabre writes "The NY Times (subscription required) is running a story about how the Patent and trademark office is trying to reform itself. Among some of the reforms sought, is higher fees for the initial processing fee, higher fees for more than 20 claims, higher fees for the more work the examiners have to due (lower fees for less work and fewer claims), 2000 more examiners, and required continued relevance of the examiner in their field (certification and re-certification). My favorite quote "...Mr. Rogan says excessive claims not only slow patent processing but contribute to poor-quality patents." They are trying to crack down on abundant claims and too-technical jargon which they claim overworks the examiners, reduces the quality of the patent, and other things. Worth a read."
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Patent Office Proposes Reform

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  • by Sunnan ( 466558 ) <sunnan@handgranat.org> on Monday September 30, 2002 @06:29AM (#4358217) Homepage Journal
    Higher fees means more income for them and less work. The major beneficiaries of the patent system is the patent offices themselves.
    • by robburt ( 139183 ) on Monday September 30, 2002 @06:43AM (#4358268)
      The PTO makes no money. It is a government service organization. If you read the article, you'll notice that they are really tied up by the fact that many unwarranted patents are filed every year along with poorly written patent applications.

      Speaking from personal experience (both going through to process and having known employees) they are completely overwhelmed by people who are applying for patents for things that already exist, and primarily by poorly written yet overwhelmingly complex patent applicatons.

      I don't see how charging according to the amount of effort that they have to put in is going to hinder the process. Most large organizations are going to ultimately be the ones paying the most. If an individual wishes to file for a patent, they hold workshops all the time on how to get through effieciently, and ultimately this will mean that you get to pay the least.

      All in all, I think they need some reform, and I really hope this helps. They do provide a good service, when things are working.
      • Thanks for the pointer.

        I guess I was still trapped in a yurop-ean mindset. The European Patent Office does make money from registrations.
      • Huh? (Score:4, Insightful)

        by dachshund ( 300733 ) on Monday September 30, 2002 @09:44AM (#4359274)
        The PTO makes no money. It is a government service organization.

        You may have some bizarre definition of "not making money". From a 4/01 News.com article [216.239.51.100]:

        WASHINGTON, D.C.--Saying the U.S. Patent Office is already functioning poorly, trade groups and companies such as Intel and Hewlett-Packard are fighting a Bush administration plan to divert about 15 percent of patent fees from the office to other government programs.

        The U.S. Patent and Trademark Office is funded entirely by fees companies pay when they apply for patents or trademarks. President George W. Bush seeks to let the agency keep $1.14 billion, a boost of $100 million over last year, out of an anticipated $1.35 billion in fees to be collected in the fiscal year starting Oct. 1. But the fee percentage he's suggested for other programs is the highest ever.

        The companies that pay the fee say it's important that the patent office use all the fees it collects to clear up a backlog of applications; companies now wait more than two years for a decision. Congress has used some of the office's income for other purposes in recent years. The $207 million Bush proposed yesterday is the most ever.

        In other words, the USPTO takes in more money than it spends. The extra goes to other government programs. Now maybe you don't call it "making money", but that's exactly what it is. And the top-level poster is correct that the patent office could be spending more of its revenues checking applications.
        • The PTO is legally prevented from making a profit. Any "excess" is reinvested to make the PTO work better, unless it is stolen^H^H^H^H^H^H^Hborrowed by Congress (it's illegal for Congress to take money from the PTO, so they just borrow it and never pay it back).

          Since most people equate "making money" with "profit", that's probably what the parent meant.

    • That's a completely uninformed and reactionary response.

      Less work means that they are better equipped to handle the work they do receive. As anyone will tell you when you have 3000 things thrown at you at once, you don't always have the time to explore every nuance. Increasing the price will either do one of two things: It will allow them to hire more (and better technically minded) workers, or it will decrease the number of patents being thrown at PO.

      Crappy patents get by because as it is now certain companies are literally shoveling patent applications at them like horse shit and some of it is bound to get through.

      The major beneficiaries of this are people like you and me and various others who end up getting screwed because of bad patents which all of this is an effort to prevent.

      As much as people might bitch about IP it's going to be around for a while. And while reform might not be as tasty a dish as outright dismal of the PO it's a far better treat then to leave things as they are.
      • Didn't see the the other response. This post is redundant. And of course with you thinking of the Euro-PO it definitatly does put a differnt light on the situation. =]

      • I didn't mean to say that less work for them was bad. It's just that some people would have this slanted as if this was some great news for the end consumers -- while the motivation for the reform seems much simpler than that. Less work & more money. Pretty easy, and not inherently good or bad.

        You're right, though, I do want to abolish the patent system completely. I think this is sort of like "those who can afford to pollute/restrict the intellectual sphere with patents can do it". A classical case of rich-gets-richer.

        Now, left-slanted as I may be, I don't have anything against people making it by working hard. What I am opposed is "it takes money to make money"-situations. The old Samuel-Vimes-cheap-boot-dilemma. Patents are harmful in another way as well -- they're about restrictions and enmity, not cooperation.

        As for my position on Intellectual "Property", there's no such thing. I go back and forth on trademarks (long story), I want to see copyrights and trade secrets totally revised, and I want patents to go away.
        • by Ted_Green ( 205549 ) on Monday September 30, 2002 @08:40AM (#4358782)

          "You're right, though, I do want to abolish the patent system completely. I think this is sort of like "those who can afford to pollute/restrict the intellectual sphere with patents can do it". A classical case of rich-gets-richer."


          I don't know. I have met a number of people who could only be called inventors. Were it not for the patent system they would not be making anything because those with money and resources could easily exploit their idea.


          "Now, left-slanted as I may be, I don't have anything against people making it by working hard. What I am opposed is "it takes money to make money"-situations. The old Samuel-Vimes-cheap-boot-dilemma."


          While I do agree with the general premise of "the more you have, the easier it is to hold on to it" I don't think patenets can really be applied in such a manner.
          True, I would agree to such a thing if the price for reviewing patents was at such a level as to put more of a strain on those with less, but I'm not really sure it is (don't get me wrong, I honestly haven't looked into how much the proposed changes will be).
          But I do belive that the PO is more likely to try to charge more to the big compaines. Those who put in a 100 applications a day, many of which are the same kind of application with just a few changed details.
          So in a sense they're trying to raise the playing field rather than raise the bar (again, though I should note this is just mere conjecture on my part. I could be quite wrong.)


          " Patents are harmful in another way as well -- they're about restrictions and enmity, not cooperation. "

          But they're protective too. For example, if I invent the supersnooper and it because really popular, then I'm protected from big boys comming over and taking my tosh.


          As for my position on Intellectual "Property", there's no such thing. I go back and forth on trademarks (long story), I want to see copyrights and trade secrets totally revised, and I want patents to go away.


          I don't know.. Like I said I think that copyrights protect us to a degree. However I do belive that they should be more flexiable. Goverment and Public organizations should be able to make use out of them, and corperations shouldn't be able to sit on patents for years on end until someone else comes up with the idea too and figures a good way to make money with it.

        • A general response to the original thread:


          The Patent Office sees about a fifth of 1 billion dollars in fees that it makes for the government.

          It seems pretty clear to me having (up-until-recently) worked at the Office, that the PTO is marked as a "cash cow" for the new Homeland Security Office. And why wouldn't it be when it makes all that money for the Feds!?!

          I may be a minority on slashdot, but I don't think there is anything wrong with IP in general (whether it be copyrights, patents or trademarks. Yeah, am I definately biased because that is where I make my living. BUT the current system of extending patent and copyright term protection just isn't effective for the fast moving world of computer software and business methods. I think (or maybe, I hope) that over the next several years, the Feds will figure out that software and business methods are essentially without value after a few years on the market and reduce the term protection for those patents to a "reasonble" four or five years (I say "reasonable", because that seems reasonable to me based on what I know).

          Thus, the inventor gets a chance to make his money when the invention has real value and the rest of the tech industry can spend the next five years coming up with a "better virtual moustrap."


          -A
      • > Crappy patents get by because as it is now certain companies are literally shoveling patent applications at them like horse shit and some of it is bound to get through.

        True enough, but please - take back that ugly slur you made against horse shit.

    • patents will become a province of the rich, just as the legal system has become. Yea class war!

      • Re:...and... (Score:1, Interesting)

        by Anonymous Coward
        The PTO side of things is not geared toward the rich.

        It costs relatively little for an individual to file their own patent.

        The PTO also halves the cost on all fees for the little guy.

        I am in agreement with your statement on the legal system, (the infringement side of the patent picture) with infringment lawsuits costing 1-3 million easily.

        Some words from Barney Frank that add perspective toward your "class war" proclamation (although I am not a liberal, I respect these ideas he put forth):

        We have two systems in this country. We have an economic system, capitalism, which is based on inequality. It is inequality which drives that system which has been so productive of wealth and which is so broadly supported. If people are not unequally rewarded for their labor, if people are not unequally rewarded for the wisdom of their investment decisions, if people are not unequally rewarded because they respond to consumer demand, capitalism does not work. So inequality, some of us want to keep it from getting excessive, but it is at the heart of that system.

        We also have a political system, and the heart of that political system is equality. That was the genius of the American Constitution, not fully realized at the time, a goal that we have been striving towards with some success ever since. What we have in our public policy is a tension between an economic system built on inequality where people are unequally rewarded and unequally powerful and a political system in which people are supposed to be equal, in which people's preferences are supposed to count each equally one for one.
    • ...the reforms sought, is higher fees for the initial processing fee, higher fees for more than 20 claims, higher fees for the more work the examiners have to due[sic]...

      These 'reforms' further raise the barriers to entry for the small guy and compound the existing systemic faults in patents. That they are presented as 'reforms', perhaps gives a clue, that patent-opposition is _not_ a forlorn hope even in the US. US Geeks keep the pressure up.

      Also we Europeans cannot sit on our laurels, the European Patent Office are still trying to force the introduce of software patent (http://europa.eu.int/comm/internal_market/en/indp rop/comp/index.htm) through the back door of EU treaty obligations and legislation. The proposals are not dead or without critics. A final push could see victory, (at least for a time). This could be forced given the major issues on table at the moment. So we ALL need to stand up for our rights and complain to our various National and EU representatives.

      If you are in the UK, don't forget Fax Your MP [faxyourmp.com] remember keep it short, simple and professional. Don't be afraid to play up to the political position of the party in power, always claim past support & link future support to this issue, some points to use:

      - Negative competitive pressure on Software sector.
      - Negative economic impact overall.
      - Anti-Competitive.
      - Anti-Freedom.
      - Anti-Democratic, process is at odds with consultation process results.

      I'd also like to propose this Google Bomb, pointing the works Software Patents [ffii.org] to the http://swpat.ffii.org/ [ffii.org] home.

    • by Anonymous Coward
      Increased fees will NOT deter the big-money players in the patent game. It will simply become more difficult for the ordinary person (who often has limited funding) to obtain patents for legitimate inventions.

      We don't usually think of the average person as being an inventor, but most of us probably think of new products we would like to see offered, or new ways to use existing ones to solve some problem we are having. If we can write a description and pay the fee, the award of a patent is almost guaranteed.
  • Google Link... (Score:3, Informative)

    by Captain Large Face ( 559804 ) on Monday September 30, 2002 @06:30AM (#4358220) Homepage

    ... here [nytimes.com].

  • Easy Solution (Score:2, Redundant)

    by cscx ( 541332 )
    Just patent patenting.
    • I think you may find some prior art; i.e. every single patent ever
    • Eliminate software patents, and on all others require a working demonstration and copy to go to the patent office. That should help.
      • require a working demonstration and copy

        What if whatever the person is patenting would cost, say, $10,000,000 to build, and you don't have access to that type of money? (ie, you want to have a patent so you can license this new invention you have to large companies that could actually use it)
          • Nanotechnology
          • Processes involving dangerous chemicals
          • Weapons, i.e. guns and explosives (It's going to get harder still, if Gore wins 2004.)
          • The currently impossible (like using antimatter for something, or nearly every method of weather control.)
          • Multi-million-dollar Business models. (!) (I frankly don't care, as long as it it's not blatantly obvious.)
          • Mathmatical processes (like shortcuts for breaking various math-based encryption schemes. Current schemes (i.e. RSA) are safe because they're simple.)
        • What if I don't have the money to apply for a patent? or to pay an attorney?

          The other poster had some good examples, too. In reality if it's a 10,000,000 project you're likely not going to have too many competitors anyway. And the R&D could be 10,000,000 but it's highly unlikely that simply duplicating a process would run 10,000,000 for materials. And last I saw they weren't patenting the stealth bomber. I guess I should go out and build one in the back yard.
  • by tps12 ( 105590 ) on Monday September 30, 2002 @06:31AM (#4358228) Homepage Journal
    Higher fees are not a solution. They just raise the stakes, so companies will try even harder to win patents. Likewise, or contrastingly, the "little guy" who comes up with a legitimate invention is even less likely to be able to win a patent for it. These "reforms" will serve only to line the bureaucrats' pockets with the blood of the independent inventor.
    • Typical govt answer - 'let's throw more $$ at the problem and see if it will go away.' Of course the $$ comes out of the people. Let's hope they plan on improving the way software patents are issued, or if certain elements of software should be issued at all, before someone patents CTRL-ALT-DEL.
    • dito.

      Higher fees will only make it easier for mega-companys with a break-even somewhere around March to patent something.

      Mr. Smith from down the street who did some really patent-worthy work will be in trouble if the fees are rising.
    • Higher fees are certainly not the solution. Higher fees are there either to pay for the changes or to penalize people who game the system (excessive number of claims). I presume you mean the base rate increase, since charging extra for patents that require an examainer to review thousands of claims seems excessively sane.

      They did not propose raising the patent fee to reduce the number of patents filed; they are raising the fees to get the resources to do their job better. They want to hire more examainers so they have more time to examine patents, better certification and training, and audits. You could argue that these are not the right way to go, but the fee increase is there to give them enough money to make the changes.

      Their goal is to reduce the backlog, improve the review process, and to penalize companies and individuals who are gaming the system ("throw everything at the wall, just to see what will stick").

      And, of course, if the federal government did not charge a ~10% hidden tax on patent fees, the increase would not have to be as great.
    • Higher fees are not a solution. They just raise the stakes, so companies will try even harder to win patents.

      No. Higher fees, by themselves, do not raise the stakes--they simply raise the cost.

      If I increase the price of a front-row seat for a concert, I don't make the seat any better--I just make it harder to get that seat.

      Higher fees mean that companies need to work harder for the same effect--and low-yield nuciance patents will drop off a bit. (Maybe not a lot, but a bit; plus the added patent office $ will help improve the quality of each patent application review.)

      Likewise, or contrastingly, the "little guy" who comes up with a legitimate invention is even less likely to be able to win a patent for it. These "reforms" will serve only to line the bureaucrats' pockets with the blood of the independent inventor.

      When was the last time an "independant inventor" all by himself won out anyway?

      In any case, most patents are applied for and used by businesses who have cash. The solutiuon for the independant inventor is a "private citizen" rate, not to set up the system assuming that everyone's poor.

      (Perpetually deferred fees sound like a good model: if I come up with something new, I can patent it, and I only have to pay the fee if I actually make money out of it.)

    • Higher fees are not a solution. They just raise the stakes, so companies will try even harder to win patents.

      This may be the case if price of a patent application is the biggest cost the company has to pay. You could argue this is the situation software companies face, but how is this anything more than a minor annoyance to say, drug companies, who sometimes have to pay billions of dollars to get their (patented) drugs to market?

      Even if the cost of getting a patent examined is the biggest, another poster (Planesdragon) notes how your logic is flawed - you're confusing payoff (revenue) with price (costs).

      These "reforms" will serve only to line the bureaucrats' pockets with the blood of the independent inventor.

      This might be a valid point - it depends how big the fees are. Looking at the article, they mention $1250. Using words like blood for what seems like a modest amount of money does seem a bit harsh.

      This may come out against independent inventors, as you suggest, but I think the idea of one inventor working alone is a bit of a myth. At some point in time, if the idea is really good, you'd need to start a company to market it. And if you can't raise $1250 for a patent application, you wouldn't be able to pay two employees for a week.
  • A nightmare. The ones already there can't seem to do a reasonable job. Hiring 2000 more of the same will make things better?

    None of this addresses the real issues.
    • you have no idea do you? The main problem facing the office is pendancy, that is, in some technologies it takes 4 years from the date of filing before a new application reaches an examiner because of the increased number of filings. Hiring 2000 examiners will reduce pendancy because there are only so many cases an examiner can do.

      http://www.popa.org is the patent examiners union. Read their critique.
    • Did you read the part about having to re-certify and stay relevant in their fields? Do you think that will weed out a fair amount of examiners who cant do thier job? Why is that not adressing the problem.
  • .. i noticed this while trying Google's news search. If you go here:

    here [google.com]

    You can find the link here:

    here [nytimes.com]

    No registration required.
  • by Wrexen ( 151642 ) on Monday September 30, 2002 @06:34AM (#4358237) Homepage
    A Method For Reforming A Patent Office

    doh!
  • Ummm (Score:5, Funny)

    by Rogerborg ( 306625 ) on Monday September 30, 2002 @06:39AM (#4358253) Homepage
    • "We want to run this place like a business in every single way except one: profit"

    So, it'll be run like a dot com? When's the IPO?

    • The USPTO is legally prevented from making a profit. Every dollar they make (that doesn't get "borrowed" by Congress) has to be reinvested in the USPTO.

  • by N Monkey ( 313423 ) on Monday September 30, 2002 @06:39AM (#4358254)
    Ok, it's a big "IF", but if they spent the money on better prior art searches, perhaps it might improve the system. For example, in my experience with patent submission, the US patent office only appears to search for prior art in its own published patent database, while say, in Europe, the EPO seems to look a bit harder.

    Of course, extending it to looking through well-known journals relating to the particular art would be even better, but just looking at foreign patent databases (relative to the USA) would be a start.

    • From the article:
      The basic filing fee will be lower, to compensate for the transfer of prior-art searches to private companies that will impose their own fees.

      Far from investing the additional money in better prior art searchs - they are admitting defeat and giving up on them altogether. You will have to go hire a private firm to do the prior art search.

      Which could be a good plan - instead of the ineptitude of the USPTO, we'll have the lack of ethics of private business (I'm not suggesting that capitalist enterprises should or should not be ethical - merely observing that they are not).
  • by Kr3m3Puff ( 413047 ) <me@kit[ ]kelly.com ['son' in gap]> on Monday September 30, 2002 @06:40AM (#4358256) Homepage Journal
    Simply make it bigger and more expensive and that will make it better.

    Notice how there is no mention of changing the process for "business process" patents, like the Bezos "One-Click" and now infamous "eBay" patents.

    Raising the fees only help big corporations, which of course want to patent everything under the Sun, probablly including the Sun, just like BT's frivilous patent on "links".

    There needs to be some sort of improvement in prior art review. How come a couple thousand of us /.ers can find prior art, but the USPTO can't even use Google?????

    Patents we devised to be accesible to the small guy and were designed to help increase innovation. Now they are used as ways for big corporation to squash people from even thinking, and the DCMA only adds to that.

    • by Anonymous Coward
      BT's frivilous patent on "links".

      BT's patent itself was valid (Filled back in the 70's). However, it was BT's attempted enforcment of the patent that was frivilous.

      Of course I could be snide and point out that in the rest of the world, the patent had expired. It was only in the U.S, where patent terms are much longer, did BT even have a chance of claiming infringment. So in a way, it was your own damn fault for allowing your politicians to rape the commons with "IP" laws.

      Maybe the reforms could be extended to cover patent and copyright terms? Oh, who am I kidding! Another Copyright Extension act for all!
  • by countach ( 534280 ) on Monday September 30, 2002 @06:46AM (#4358277)
    Bigger fees means nothing to corporations but is very hurtful to individuals. This is not a step forward for the rights of individuals, just another leg up for corporations that will do little for the quality of patents. It might stop the 1% most absurd, that's all.
    • I agree. The best thing to do would be to charge a filing fee (approved or not approved) and to not approve obvious patents (ya know, like the law says).

      So companies that file a thousand goofball patents hoping to have IP rights to the hyperlink (or soemthing silly like that) will effectively be paying more. While Joe Inventor who files a real patent from his garage will only have to pay that fee once.

      --t

  • Reform (Score:3, Funny)

    by Ryan Hemage ( 472215 ) on Monday September 30, 2002 @06:48AM (#4358281)
    The PO's reforms seem to consist of just charging higher fees. Have they been reading from the Microsoft Guide to Innovation?
    • by ProfBooty ( 172603 ) on Monday September 30, 2002 @08:05AM (#4358603)
      WRONG, you didnt read the whole thing didin't you!

      There would be a major change in the examination process. Examiners would no longer search for prior art, it would all be submitted by the applicant and the search would be preformed by a private search firm. The examiner then would then determine patentablility via that search.

      There are several problems with this:
      1. Patent examiners know what prior art is out there because they deal solely in a specific technology area (and are intimatly familiar with those sets of patents of record). What happens if the examiner knows of prior art not listed by the applicant? (This has yet to be addressed.)

      2. There is a conflict of interest by the private search firm. They are being paid to find prior art that the applicant really doesn't want them to find.

      3. You are removing a function of government by eliminating searching.

      for more info, http://www.popa.org
      thats the examiners union, im not a member by the way.
  • THis only benefits those who us epatents as revune generating source lik eIBM, it weeds out their competitors namely the rest of poor slobs who have an unique idea..

    THIS SUCKS!
  • by Rogerborg ( 306625 ) on Monday September 30, 2002 @06:53AM (#4358295) Homepage

    But he's not going far enough. Simply charging more for more patent filings isn't going to stop the companies that exist to do nothing other than file patents. They'll just factor it into their business models and pass the costs on to licencees.

    What the PTO needs to do is to charge punitive fees when they reject patents. Yes, you heard me. Currently, they get their income from granting patents, so there's absolutely no, zero, zilch, nada incentive to reject, and so there's no disincentive to file.

    Let's turn that on its head. Patents should be granted grudgingly. Examiners should be looking for excuses to reject them.

    I'd quite seriously propose a deposit of $10,000 for each patent filing, most of which would be refundable on granting. I want filers to be sure that they're actually filing genuine inventions, and I want the PTO examiner (and/or subcontractor) to be eyeing that $10,000 as her reward for finding prior art that you've missed or "forgotten" to mention.

    If $10,000 looks like a lot, then consider how many genuinely novel inventions you're likely to have during your working life, and compare that to the number of cars you might buy over that same period. If you still think that's too much for basement inventors, then consider that they can always sell their idea to one of the patent swallowing companies, and we can go back to business as usual.

    • So how many of them would he have paid $10000 for?

      http://history1900s.about.com/gi/dynamic/offsite .h tm?site=http%253A%252F%252Fedison.rutgers.edu%252F patents.htm
    • ....at least some claims of evey patent are initially rejected. Then after some arguing, either modifications are made, or the rejected claims are cancelled by the applicant.



      What the applicant would do to avoid complete rejection (and avoid paying your added rejection fee) is just to modify the claims so as to avoid all prior art...


      The problem with your scheme is that it chills potential innovation, which is what the original patent idea was all about--grant a monopoly for a few years in return for disclosure of good stuff, heretofore unknown.


      What the /. crowd objects to is that some patents make claims on prior art and thereby stifle use of those techniques by the little guy, which is what all ./ers are, or aspire to be.



      THe reason that the USPTO does not search google is b/c most of the USPTO examiners who work on s/w patents are EE's, who may not know enuf background on s/w stuff to be effective at searching google for some patent on web design....so what the uspto needs is more comp sci oriented examiners, but the uspto hiring process is slanted towards engineers....

      • "The problem with your scheme is that it chills potential innovation"

        In what way? You can't prove a link between patents and innovation. In fact, based on history, I could argue that patents have a chilling effect on innovation.

        Real innovation comes about through the free exchange of ideas, not through cross-licensing of patents from major corporations.
        • In what way? You can't prove a link between patents and innovation. In fact, based on history, I could argue that patents have a chilling effect on innovation.

          Patents give innovation a reward in and of itself. Without patents, the reward for innovation is only in the competitive edge that the innovation itself gives--which may only be useful for a very short time, until an invention is copied.

          Patents are more than just rewarding inventors, too--they're a record of invention. When someone is granted a patent, they have a few years to profit from it--and then EVERYONE has access to how their invention works.

          Patents give corporations that have a high-turnaround and no espionage cover a reason to bother spending money to innovate. If not for a legal guarantee of a patentable idea's uniqueness (and thus profitability) corporations would likely not have research departments--and those that did would be smaller, and as focused on stealing the other guy's ideas as real innovation.

          Real innovation comes about through the free exchange of ideas, not through cross-licensing of patents from major corporations.

          The so-called "free exchange of ideas" often leads to mob mentalities that are hard to shake up but easy to abuse. A few exceptions and caveats allow open dialgue of important matters to be more than just social functions. One of these is a check against stealing someone else's work, and patents do that.
          • There's no proof that patents are acting in the way you describe. Common sense tells you that what you're saying is true. But I think we're seeing evidence ("one click buying", for example) that patents primary use is to preempt ideas from competitors rather than protect implementations.

            So, I'll ask you. What evidence do you have that patents are working in the manner you describe?
          • 1) The airplane.

            fortunately for WWI, the government stepped in. Without patent protection, the airplane industry innovated like NO OTHER industry in history within a span of 10 years.

            2) The revolver

            Colt's patent completely killed all pistol innovation for the period of his patent. All improvements to his design were squashed. The revolver remained unchanged until the patent expired

            If you care to look, history is very clear on this. Patents may cause a single spurt of innovation, but ALL innovation on a given invention ceases from the time the patent is given until the time it expires. This is an intentional side effect of patent law.
    • by Anonymous Coward
      >What the PTO needs to do is to charge punitive fees when they reject patents. Yes, you heard me. Currently, they get their income from granting patents, so there's absolutely no, zero, zilch, nada incentive to reject, and so there's no disincentive to file.

      The PTO itself isn't rejecting the application, it's the examiners who examine the patents that reject it, and they don't see a cent of the money charged for maintenance. To say that examiners have no motivation to reject just for rejection's sake is asinine. Examiners don't grant or reject based on the PTO's ability to earn money from fees. They do it based on the fact that it's their job.

      Furthermore, your idea is flawed. The examination process is there so that prior art can be found. To penalize an inventor just for having thought of something that he/she didn't know already existed is a horrible idea. The patent system exists as a pecuniary motivator for innovative people to innovate. To then slap a penalty on those same innovators just for attempting to innovate is just a bad idea.
      • To say that examiners have no motivation to
        reject just for rejection's sake is asinine. Examiners don't grant or reject based on the PTO's ability to earn money from fees. They do it based on the fact that it's their job.


        Unless what I have read from slashdot is wrong, for many years, patent examiners were rewarded based on the numbers of patents they granted. So the above poster is trying to correct for this. But your idea, of going back to the original state of affairs, may also work. But I suspect that even if individual examiners weren't rewarded, the entire PTO itself may be rewarded for merely rubberstamping applications, so it still wouldn't work.


        The point of the penalization, is to make the applicants think hard about how much the patent
        is really worth. To the swamping of the office
        by obvious and silly patents.

      • I replied to the parent more extensively, so I'll actually try some brevity here.

        You are quite correct that examiners are not motivated by fees; most are cynical about the various fee plans; when multiple dependent claims were introduced most examiners groaned because they were worried that applicants would screw up the provisions, creating Byzentine heirarchies of claims, hard to understand, and also encouraging applicants adding scores of stupid, tedious ependtent claims, given them the opportunity to argue every damn permutation of features; the examiner risked being reversed on a lot of such dip-shit claims if the case went to appeal, meaning lots of tidme and effort to fend off crapola.

        That leads to what the motivation really is: meeting the production goals, acting on amended cases withing two months, and all kinds of "process" metrics. There was a "quality" metric, but you basically got a pass on it as a default; Getting an oustanding rating or an unsatisfactory required lots of documentation by the supervisor, so that was rare; The process stuff was automatic and self documenting.

        You guess where quality went.
    • Better yet. Patents that are accepted get in for free, and patents that are rejected are charged a larger fee. This way the patent process won't be limited to only those with large amounts of money.
    • You should be testifying before Congress. Your solution appears to be the only reasonable proposition so far.

    • by mavenguy ( 126559 ) on Monday September 30, 2002 @08:25AM (#4358691)
      Finally, a patent thread that hasn't been beaten to death when I get to it!

      Your idea for a "deposit" is interesting, but I think it is a bit too harsh. Like many other posters have mentioned it will just raise the risk to entities (companies and individuals). Often, applications get prosecuted past the final rejection where the applicant wants to persue it, and has to file a "continuing" application, complete with a new filing fee. Heaping on another deposit (the original having been forfeit by that application becoming abandoned) just multiplies the risk, unneccessarily IMHO.

      More importantly, your comment about patents being allowed "grudgingly" is the way it used to be, say, over 30 years ago. The applicant had to work get some claims allowed. Also, it was existing law that business processes and, after the invention of programmable computers, programs were just not patentable subject matter. So, what changed?

      Two main factors, driven by the Patent Bar (Thats the community of Patent Attorneys for those of you thinking free as in beer):
      1) patent applications were taking lots and lots of time to prosecute. The response: "Compact Prosecution"; Only three months to respond to Office Actions rather than the Statutory six (Statue permitted period to be shortened to as little as 30 days); second action is made final (limited ability to respond/amend). Also, examiners were required to produce so many first actions and disposals (abandonments and allowances) against a quota. non-final second and subsequent non-allowances didn't count toward the goal. So, the incentive was to get out work as fast as possible, and a terrible incentive to just issue the application on the first action ("first action issue", two "counts") was really tempting, especially if you were behind and getting nagged by your supervisor for "low production" every two weeks. Whil the "old school" examiners took a very jaundiced eye toward such actions (they were trained NEVER to allow on the first action) a new generation, trained by the "new management" (what became our PHBs)it was not scandalous UNLESS it led to some embarassment. High production was a visible, and easy to validate metric; high quality was invisible, hard to measure, and, thus, paid lip service.

      2) The expanding into business method and software patents was driven by the court system by patent applicants, not the PTO. The PTO rejected several cases over the years and, in brief, got shot down by the Court of Customs Appeals, it's sucessor, the Court of Appeals for the Federal Circuit, and, ultimately, the Supreme Court. This done, the matter has been settled, so the PTO must examine them on the limits; they have no authority to create rules to countermand that; when you appeal an issue and you lose, that's it, from a legal perspective; only action by Congress can change this (similarly to the "Disney Protection Act" for Copyrights). As to the question of, given the fact of business method and software patents being patentable subject areas (35 USC 101), that such applications are not having the proper application of Novelty (35 USC 102) or Non-obviousness (35 USC 103)is a whole other issue I won't discuss here.

      So, in a nutshell, the one-two punch of a PHB production/process oriented management and a court system that has pretty much decided that "anything under the sun" is properly submittable in a patent application have lead us to where we are today.

    • Let's turn that on its head. Patents should be granted grudgingly. Examiners should be looking for excuses to reject them.

      This is how they should be working in the first place :)

      I'd quite seriously propose a deposit of $10,000 for each patent filing, most of which would be refundable on granting. I want filers to be sure that they're actually filing genuine inventions, and I want the PTO examiner (and/or subcontractor) to be eyeing that $10,000 as her reward for finding prior art that you've missed or "forgotten" to mention.

      The problem here is whilst big corporates can consider this a small amount of money the "lone inventor" could easily find this a very difficult amount of money to raise.
    • I like this idea a lot. But as others have pointed out, $10K is nothing to a large corporation, and a very big deal to the basement inventor.

      The application deposit should be a fixed percentage of the financial "size" of the entity (market cap for corp, last year's declared income for individual). For a typical lone inventor it would cost maybe $2K, where it might cost hundreds of millions for a big corporation. Shareholders would dump the stock of any big corp that sought lots of frivolous patents.

      There would be a thriving legal business in appealing rejections, so there would need to be a way to make those variably expensive too.

  • This guy hardly touches the real problems of the system (obvious patents, business models, algorithms etc.) while wanting to make it harder on small inventors. Unless he's going to introduce near exponential charges (say 1 patent=$100, 10 = $10m) the extra cost won't even phase an Amazon or IBM so what's the point?

    Why is it so hard for them to fix what's actually wrong with the system?

    TWW

  • by Anonymous Coward
    Patents are supposed to be non-obvious to people with skills in the given field. I'm not sure it's possible for any large bureacracy to hire and maintain the right people to keep up with the state-of-the-art in technology.

    IMHO, the entire scope of patents needs to be dramatically restated and restricted from what it is today.
  • 1. Hire more patent officers, raise patent fees
    2. ???
    3. Patent reform!!
    • You are a comedy genius ! What about this one ?

      In AD 2002 war was beginning
      -somebody set up us the 1-click shopping
      -we get signal
      -main screen turn on
      BEZOS : all your patent are belong to us!!!
      -it's you
      BEZOS : you have no chance to license make your time
      -what you say
      -move claim. For great justice.

      Anyway, I can't believe you and I are so funny !
  • Wait a minute... (Score:2, Interesting)

    Isn't one of the reasons that large companies are able to get patents out faster and more often is the high fees in the first place? Way to squash the little guy.
  • by dpbsmith ( 263124 ) on Monday September 30, 2002 @07:01AM (#4358320) Homepage
    And exactly how would all this have prevented the sideways swinging patent #6368227? [uspto.gov] How much expertise and certification to you need to spot the prior art in THAT one?
  • Too late. (Score:5, Funny)

    by realgone ( 147744 ) on Monday September 30, 2002 @07:08AM (#4358341)
    Among some of the reforms sought, is higher fees for the initial processing fee, higher fees for more than 20 claims, higher fees for the more work the examiners have to do (lower fees for less work and fewer claims), 2000 more examiners, and required continued relevance of the examiner in their field (certification and re-certification)
    Sorry fellas -- I've already pre-emptively patented all those reforms. Try again.
  • Nothing new (Score:5, Insightful)

    by dilute ( 74234 ) on Monday September 30, 2002 @07:09AM (#4358343)
    The Patent & Trademark Office seems to have spent most of its time over the past decade trying to reform itself. With "customer" satisfaction surveys running in the 50 - 60% range, they know they have a problem.

    For example, about a year back, they came out with software for electronic submission. Codes things in XML. Nice concept, but the software was virtually unusable. God knows how much money they spent on that. Their flawed electronic search system is another example of ineffective, grossly expensive automation projects.

    Another very basic issue is that they seem to lose half the papers people send to them, and then commit significant resources to reviewing and ruling on the proof that the submitter actually sent the papers. This is routine. The most important part of any submission to their office, regretably, is the proof of mailing.

    Then there's the touchy issue of quality. Some of the people who work there are highly competent and dedicated. But a lot of them are really inexperienced. Adding 2000 more will just make this worse.

    The commissioners (who have been rotating with considerable frequency of late) always say they want to run the office "like a business." Well guess what? It ain't a "business" and it never will be.

    They keep talking about their mission to serve "customers," i.e. the people who file patent applications. This is infuriating. They seem totally to forget that the key part of their mission to to represent the PUBLIC. At one point, a past commissioner actually wanted to privatize the office (and make himself the CEO). They should start thinking about what serving the public actually means, and just lose the part about trying to be a "business." At this point, that would be the most useful "reform," in my opinion.
  • by scott1853 ( 194884 ) on Monday September 30, 2002 @07:21AM (#4358394)

    Well, they're off to a bad start on reform if they going to try and take away the technical jargon. That will simply make the process too vague and would allow it to apply to much more than it should be.

    The answer is not to dumb things down, it's to hire people that can understand the technical jargon in the first place.
  • Interestingly... (Score:3, Informative)

    by jebell ( 567579 ) on Monday September 30, 2002 @07:28AM (#4358429) Journal
    I recently applied to become a patent examiner. I met one of the supervisors who encouraged me to apply, after hearing about my background. Several months later, I learn they're not hiring unless Congress gives them a bigger budget.
  • Reject Gobbledigook (Score:2, Interesting)

    by clickety6 ( 141178 )

    If the patent is written in a way to make it obscure and not understandable (by suitable reviewes), then it should be rejected and the filing fee kept. This should stop comanies trying to "innovate by obscuration" and should also lighten the load on the patent office.
  • Hemos has thrown a bone to the open source Luddite crowd. Given the pronounced lack of original and innovative software coming from open source, that's ironic.

    Typically, some advocate abolition of the patent system entirely, a comfortable way to avoid dealing with a real problem by campaigning for the untenable. Still, I guess, it gets them street cred around here.

    How about going after legislation that loosens the corporate grip on employees' inventions? How about going after legislation that would compel real reform of the Patent Office? How about going after legislation that resolves the issue of software patents?

    Given that open source is increasingly confronting broader political issues sparked by attempts to apply open source doctrine beyond the software development model, why the lack of serious political lobbying and organized effort?
    • The Consumer Project on Technology [cptech.org] does a lot of work around patents, particularly business methods patents and patents that restrict access to medicine. They aren't well funded.

      Public Knowledge [publicknowledge.org] is a new group that does work in the IP area. They are more focused on copyright at the moment but work on patent issues as well. They are better funded and more focused on IP issues.
  • for more info read the patent plan and the response via the examiners union.

    http://www.uspto.gov/web/offices/com/strat2001/i nd ex.htm
    http://www.popa.org

    Here are a few of the changes.

    There would be a major change in the examination process. Examiners would no longer search for prior art, it would all be submitted by the applicant and the search would be preformed by a private search firm. The examiner then would then determine patentablility via that search.

    There are several problems with this:
    1. Patent examiners know what prior art is out there because they deal solely in a specific technology area (and are intimatly familiar with those sets of patents of record). What happens if the examiner knows of prior art not listed by the applicant? (This has yet to be addressed.)

    2. There is a conflict of interest by the private search firm. They are being paid to find prior art that the applicant really doesn't want them to find.

    3. You are removing a function of government by eliminating searching.

    • by Anonymous Coward
      1. Patent examiners know what prior art is out there because they deal solely in a specific technology area (and are intimatly familiar with those sets of patents of record). What happens if the examiner knows of prior art not listed by the applicant? (This has yet to be addressed.)

      The examiner can use whatever knowledge in his possession in order to invalidate a patent (whether derived from a 3rd party or not)

      2. There is a conflict of interest by the private search firm. They are being paid to find prior art that the applicant really doesn't want them to find.

      They are being employed directly by the PTO. If they do not catch enough prior art, then they will lose their contract. So where is the conflict of interest?

      3. You are removing a function of government by eliminating searching.

      Searching for prior art is a function that can be performed effectively by any organization, government or not. So why specifically are you identifying it as a "function of government".

      The function of government (judicial branch and/or PTO) is to rule on the "art" in the patent based upon the content of the "found" prior art.

      • 1. Patent examiners know what prior art is out there because they deal solely in a specific technology area (and are intimatly familiar with those sets of patents of record). What happens if the examiner knows of prior art not listed by the applicant? (This has yet to be addressed.) The examiner can use whatever knowledge in his possession in order to invalidate a patent (whether derived from a 3rd party or not) Yes, that is true as it currently stands, but the new patent plan is ambigious on this. 2. There is a conflict of interest by the private search firm. They are being paid to find prior art that the applicant really doesn't want them to find. They are being employed directly by the PTO. If they do not catch enough prior art, then they will lose their contract. So where is the conflict of interest? The search firms would be paid by the applicant, notby the PTO. 3. You are removing a function of government by eliminating searching. Searching for prior art is a function that can be performed effectively by any organization, government or not. So why specifically are you identifying it as a "function of government". The function of government (judicial branch and/or PTO) is to rule on the "art" in the patent based upon the content of the "found" prior art. Searching is part of the examination process, the government has no conflict of interest as it doesn't recieve ownership of the patent (but does get issue and renewal fees). A fair and impartial search is a sovergin function. On a side note, in europe, the examination and search functions are done by two different people within the EPO, they are switching over to the US system.
  • What about higher fees depending on the size of the company/coorperation? and idea?
  • Humpf! (Score:2, Interesting)

    I submitted this story some 3 or 4 weeks ago with a link to an actual USPTO proposal document.

    Anyway, this is not something to get too excited about. Every time the USPTO thinks it needs money it makes these proposals. The complaints are always similar - too many claims, too difficult, yada yada yada. I even once ran across a newspaper story from the 1930s which complained of the same things (interestingly, back then, USPTO examiners were required to know a second language).
  • Reforms (Score:4, Informative)

    by Artagel ( 114272 ) on Monday September 30, 2002 @09:09AM (#4358990) Homepage
    What Rogan does not explain is why the fees for claims should increase exponentially with the number of fees. If your linear relationship is off, reset the slope dammit! It isn't right to punish an inventor because his invention is complicated.

    Fees should probably be higher, the USPTO should be allowed to keep all its fee income and pay the examiners accordingly or supplement the research resources the examiners have. The fee probably should be higher for longer patent applications. (Yes, it is the same fee for 10 pages of description and 1000 pages of description now.)

    Patents are granted unless the PTO can find a reason not to. ("A person shall be entitled to a patent unless --" 35 U.S.C. 102) Shorting the examiners of time and resources necessarily leads to bad patents getting out.

    Part of the reason that patent application fees are low is that the U.S. Patent system is a "winners pay" system. After the patent is allowed you still have to pay a publication fee, an issue fee, and then maintenance fees at 3, 7, and 11 years. That way, small inventors can take their shot but not bear the full cost unless they get a patent.

    What Rogan won't confront, is that the darn points system, which basically is a system where you require the hamsters to run a little faster each year, is not the right management tool (at least in a vacuum). The only thing that supplements it now are "customer satisfaction surveys". Mind you, having the USPTO be polite and responsive is ok, but please notice that QUALITY OF ISSUED PATENTS just does not enter the picture. Please, FIX THE METRICS. If it takes money, which is must, then raise fees. Don't just raise fees to hand money over to Congress though.
  • Reject any patent application with the words "but with a computer".
  • by ZorroXXX ( 610877 ) <hlovdal.gmail@com> on Monday September 30, 2002 @09:26AM (#4359110)
    The only way to get rid of ridiculous patents is to require a minimum of (documented) effort spendt on inventing (in my opinion minimum 12 months of work).

    Rationale: If something is so easy to invent that it only takes a week there is absolutely no reason to grant an exclusive worldwide monopoly for that.

    Bonus benefit: a single inventor will have little problem documenting all his/her spendings and effort while big multinational companies will probably have some degree of undocumented effort.
  • Small inventorrrss (Score:2, Interesting)

    by Mabidex ( 204038 )
    Small inventors are the losers here, but at the expense of quality (or at least a step in the right direction)

    I still think other countries would benefit from this document avalanche in the US.

    How?

    Have a small nation like Haiti (or other nation that owes $$ to the US) create there own patent offices, with certified specialists, (probably from the US) then have a UN agreement accepting the mini-patents as art for all prior art cases, with the possibility of full patent rights after 5 years. The mini pats can only be filed by the average citizen, and can only fit on one sheet of paper, with a fontsize of 8 as the minimum font size. One extra sheet can be added for Graphics, or pics, and the price would be $50, of which the US gets paid $40-$45 from the country in question. Of course... the small country would accept applications from acceptable countries all over the world, this would bring in money from other countries, and not just recycle american money.

    This will lower the cost of patents for the small time inventor, help other nations pay us back some of there debts, and have a system of recording prior art.

    Maybe you guys at /. can cut out some of these ideas and plug them into your own, and make this idea stream a bit better?

    Mabidex
  • by Weaselmancer ( 533834 ) on Monday September 30, 2002 @10:19AM (#4359528)

    ...from an earlier post of mine:

    I know how to do away with all of this patent nonsense from here on out.

    I'll make a machine that will approve or reject patents, and store them on microfilm. I'd like it to look like something Terry Gilliam would animate. A huge throw switch for accept/reject. An elephant on a treadmill for a source of power. Two rubber stamps, one for approved and one for rejected. A huge bellows to dry the ink. A massive series of lenses, mirrors and candles to reduce the image down to microfilm size.

    Then, I'll patent it. If it gets rejected, I'll keep changing components until it passes. Replace the bellows with a cage of pigeons and a box of popcorn and resubmit.

    Once I get my shiny new patent, I'll wait one week. Then I'll tack on the words "with a computer" and resubmit. We all know that the magic phrase "with a computer" makes a new patent. Ask Jeff Bezos - he'll tell ya.

    Now - it'll be illegal to use a computer to store or approve patents. It's my idea now. The entire process will have to be done by hand. If you want a patent search...well the patents number around the 4,700,000 range. If it takes a minute to read a patent, then it'll take about 20 man years to prove it's original. By then it won't matter.

    And just in case the government gets any funny ideas about "prior art" - well we know those lawsuits aren't ever won. Look at Wizards of the Coast. They managed to patent card games for chrissakes. Even though prior art of all kinds exists *cough cough* Steve Jackson *cough*.

    But, I'm a reasonable guy. If they press their case strongly enough I'd be willing to settle out of court. Just pay me a nickel royalty for every patent in your database and I'll be okay with that.

    Weaselmancer

  • My manager push certain "patent pending" communication protocol spec, so I could implement the ideas on it to solve the particular problem we were dealing with. After careful examination I concluded that the patent application was bogus; there was nothing original about it, plus, it did not satisfy its own claims (recognized later, in private, by the author). It took me a week or so (I have 10+ years of experience on the field) to go through the documentation due to the redundant, hyped and pompous language used to describe the "invention". I am absolutely sure that the patent office is not going to notice anything abnormal in this application; the author will receive the appropriate incentives and recognition, the company will add one more patent to its intellectual property list and at the end of the year you may be able to see countless reports, wired infoporn included, with inflated "innovation indexes". The real, objective value added: 0. Welcome to the innovation machine.
  • No mention that I could see is made about how to kill the trivial patents. It's not enough that something is new, it also has to be non-trivial to invent; you should never be able to patent something which would take a few engineers an hour or two to come up with, if they are asked how they would solve a certain problem.

    Killing the trivial patents is the most important reform the patent office has to make.
  • Proof positive... (Score:2, Insightful)

    by jkirby ( 97838 )
    ...that the patent office is run by a bunch of idiots. Do they not understand that it is the people with all the money who are screwing the pooch? Most of us can not afford to get a patent because it costs too much in legal fees, research, etc...

    Oh well...

  • by BitGeek ( 19506 ) on Monday September 30, 2002 @12:06PM (#4360622) Homepage

    When the government is found to be doing a poor job at something (as it always is, due to its nature) the standard response is to charge more for it-- obviously it must be lack of money that is the problem. So they raise fees.

    This is how we have the situation where the average single person pays over %50 of their income in taxes, and still doesn't get adequate fire coverage, adequate roads, adequate health care.

    Any REAL patent reform would require taking it out of governments hands and putting it into an entity that has an incentive to provide a good job. For thats is why government sucks-- it has no incentive to do an adequate job, and so it doesn't.

    Structure an entity such a way that it makes more money with good patents and its unprofitable to issue bad patents and you'll then have a good patent office.

    Until then, the patent office will continue to give the socialists among us an excuse to complain about how "All property is theft".

  • I know a guy who just got a patent on air filters for computer fans. . . .

    freaky.
  • Does this mean that Microsoft will finally lose the trademark on such obsurdly common words as, "office" and "windows" etc?

    If not, then I hereby request trademarks for my new products: A(r), An(r), and The(r).

  • Among some of the reforms sought, is higher fees for the initial processing fee, higher fees for more than 20 claims, higher fees for the more work
    Charging more money and telling us it's good, because it helps reduce bad patents... uhhhhnnn, ya.

    They are trying to crack down on abundant claims and too-technical jargon which they claim overworks the examiners, reduces the quality of the patent, and other things

    Better idea, rather than charge the general public more, why not have a contractual counter/penalty charge implicit for those who try to copyright things that are already existant, very obvious, or in use, by crouching them in so much technical crapspeak that they pass simply because nobody can understand them.

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