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FTC to Examine Patent Application Process 307

Armchair Dissident writes "The BBC is running an article that suggests that the FTC is to look into the way that patents are reviewed and issued. If this article is correct it seems that many guesses as to how patents are issued were correct; with 95% of patent applications being approved. They may also address the issue of "patent trolls"."
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FTC to Examine Patent Application Process

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  • by Nuclear Elephant ( 700938 ) on Thursday June 03, 2004 @04:23PM (#9329259) Homepage
    Are you telling me Microsoft didn't really invent the double click?
  • by Trigun ( 685027 ) <<xc.hta.eripmelive> <ta> <live>> on Thursday June 03, 2004 @04:23PM (#9329263)
    Did they patent the first post?
    • It's not like you have any prior art, but you should patent FAILING IT!
    • Re:Patent trolls? (Score:5, Insightful)

      by ichimunki ( 194887 ) on Thursday June 03, 2004 @05:21PM (#9329814)
      I know you're joking, but the patent system is based on a "first post" methodology. That is, if you and I both work on an idea at the same time, yet independently and unaware of the other, then I run down to the patent office to get my patent while you are still in the lab, I get the patent and theoretically have the privilege of excluding you from using your own invention.

      You ask me, that's problem number one that the patent system needs to solve. In the dot-com age it becomes especially important because the rapid pace of invention holds some real potential for destroying the prior art defense (i.e. if you and I both build a 15-click shopping tool for an online store within a very short time of one another, but one of us patents it first, how will the other successfully argue prior art?)
  • by Neophytus ( 642863 ) * on Thursday June 03, 2004 @04:23PM (#9329266)
    Until I read this:
    Top tier executives from Cisco, Intel, Ebay, Symantec, Chiron, Microsoft and Genentech are taking part.


    It's good to know the biggest corps best businessmen are going to decide on the next generation of patent law.
    • by ctr2sprt ( 574731 ) on Thursday June 03, 2004 @04:35PM (#9329382)
      Who else should they ask? They're not just going to pull random people off the street. The mess we've got now is at least partially a result of computer-illiterate politicians setting the rules. At least they're picking execs who probably know more about computers than how to operate the on/off button.

      We sure won't get a great patent system out of these guys, but we may get a better one. After all, most companies don't bother enforcing patents violated by individuals - they enforce those violated by other companies. That means that while MS, eBay, et al. are some of the worst abusers of patent law, they're also the some of the hardest hit by the abuses of others.

      This is a limited case of enlightened self-interest, which is why I'm optimistic we'll see some improvement. Even reducing the number of bad patents by 5% or eliminating some of the worst classes of them would be a big step.

      • 500,000 unemployed engineers and the best we can do is the heads of several multimilion dollar corporations to decide patent law. It's enough to make me loose whatever faith I had left in representative democracy.
        • by onion2k ( 203094 ) on Thursday June 03, 2004 @05:45PM (#9330014) Homepage
          "A scientist looking at a non-science problem is just as dumb as the next guy." Richard Feynman.

          Same goes for engineers. The patent process is a business and legal issue, not an engineering problem.
          • by Waffle Iron ( 339739 ) on Thursday June 03, 2004 @06:27PM (#9330328)
            The patent process is a business and legal issue, not an engineering problem.

            When they started handing out countless thousands of obvious and non-novel patents, it became an engineering problem. As in: A lot of engineers now have a problem getting their jobs done because they can no longer use the most straightforward and obvious approaches to implementing their projects.

            • Interesting? Should be Insightful.

              Anyway, you're exactly correct. The patent system is being abused by large corporations (not all) to stifle innovation. It's telling that Microsoft argues that it needs to be able to innovate, but in reality they really mean that they want to control all innovation. Entirely contradictory to a 'free market'.

      • by JungleBoy ( 7578 ) on Thursday June 03, 2004 @04:45PM (#9329476)
        > Who else should they ask?

        Maybe they should ask Academics who are less invested in and benifited from the current patent process. Find people who are technically savy, but at least a bit removed from the patent process. Granted, many Academics recieve patents and benifit from the patent system, but I'd put money on there being fewer patent trolls amongst academics than amoung corporate executives. At least academics have obligations other than making fat sacks of cash for stock holders.
      • Can it be worse then it is? I hope not.. but it is possible. I do agree, however, that these execs know more about computers, but this does not mean that they know what is best for patents.

        After the Enron/Worldcom/etc issues, I have a hard time trusting execs from companies to make decisions that could possibly effect smaller businesses. Look at Walmarts business practices. Imagine if they had the ability (other then current political) to change the way the law looks at labor. I have a feeling they would n
      • by cpt kangarooski ( 3773 ) on Thursday June 03, 2004 @05:19PM (#9329803) Homepage
        People who are able to represent the overall public interest: the one that doesn't care what inventors think, so long as it is overall a good system for the public.

        Right now I see the equivalent of getting the movie, book, software, and record industries together to write copyright law. Which in fact, is what has been happening all through the 20th century, and it's consistently fucked over the public.

        No matter how enlightened their self interest is, it's THEIR self interest. The patent system is supposed to satisfy the self interest of the PUBLIC.
      • Who else should they ask?

        How about some respected economists? I think the discussion needs some objectivity. You ask only a small portion of the business world, and they're likely going set themselves up to profit later. Not that there's anything inherently evil about that, but the conflict of interest should be obvious.

        But maybe this is just my kneejerk reaction. It certainly would be helpful to ask a cross-section of the business what things surrounding patents currently hurt them.
    • Wehn , even the geekiest of the geeks here on /., are sometimes confused between a patent, trademark, copy right, IP, Do you belive an average Joe is in the best position to take part in the Next generation patent laws ?

    • That always really bothers me. Those people Should be included, but there should also be some advocates from other groups on there. Why isn't there someone from the EFF on there?

      Everyone from every side has an agenda, so we should have some effort to represent every agenda.

      Hopefully there are some other people taking part other than those listed. The article may have only mentioned them because the writer believes his audience is uninformed or stupid.
    • Do you really think that the likes of Cisco, Intel and Microsoft really like having to fork out millions of dollars to lawyers for patents?

      Yes, these companies file patents that should not be granted. I would suggest that file them knowing that these patents shouldn't be granted. Having a large library of patents means that when they are challenged they have the option of cross-licensing patents they hold to make law-suits go away.

      Unfortunately we are in a situation where bogus patents get granted, and
  • by Anonymous Coward on Thursday June 03, 2004 @04:23PM (#9329268)
    Here's an editorial [osnews.com] discussing and explaining exactly the patent issuing problem in US.
  • Finally! (Score:4, Funny)

    by cmburns69 ( 169686 ) on Thursday June 03, 2004 @04:24PM (#9329271) Homepage Journal
    Can it be that somebody at the FTC actually reads slashdot?

    "Outlook Positive"!]
    • Re:Finally! (Score:5, Interesting)

      by Timesprout ( 579035 ) on Thursday June 03, 2004 @04:29PM (#9329335)
      No, more likely they are looking at covering their own asses in future. The patenting system at the moment is a real threat to companies, particularly smaller ones trying to make a buck. When MS get bitch slapped in court for 500 million over a stupid patent (its under appeal or review I think) you can bet that grabbed a lot of CEO interest adn instilled a desire to 'improve' the system.
    • Well there goes the Patent Offices' investment in 3000 Magic 8-Balls [ofb.net]...
      • Re:Finally! (Score:3, Funny)

        by NTmatter ( 589153 )

        now, IANAL, but I think that this Dissection of a magic 8-ball [ofb.net] may be a violation of the DMCA. The information within has clearly been used to illegally modify [ofb.net] the magic 8-ball to serve a new sinister purpose, which is a clear violation of the Patriot Act (they may be used to carry hidden subversive messages for terrorists). Please turn yourself in to the relevant authorities at once.

        Have a nice day

  • Finally- (Score:5, Insightful)

    by thewldisntenuff ( 778302 ) * on Thursday June 03, 2004 @04:24PM (#9329272) Homepage
    We're working towards a solution...Suprised that MS is on the list of supporters....

    But note the end, which states -

    "The last major changes to patent law were in 1952 and there is no legislation before Congress which means that ideas like a patented method for picking up a box by bending your knees may well continue for some time. "

    So let's not hold our breath, eh?
    • Re:Finally- (Score:5, Funny)

      by NeoThermic ( 732100 ) on Thursday June 03, 2004 @04:26PM (#9329299) Homepage Journal
      >>So let's not hold our breath, eh?

      Until they patent breathing through biological devices that exchange oxygen for carbon dioxide...

      NeoThermic
    • Re:Finally- (Score:3, Interesting)

      by stratjakt ( 596332 )
      Why are you surprised MS would be there?

      They just got boned by that Eolas thing where loading a plugin in a browser was patented.

      The only time I've ever head of them using their patents is over the use of FAT in compact flash devices, which seems to me to be a patent describing a specific behaviour of a specific type of filesystem, rather than the vague transparent plugin thing.

      This isn't even about changing patent law, just the application and granting process, which I believe the FTC has direct control
  • The real news (Score:4, Interesting)

    by Mz6 ( 741941 ) * on Thursday June 03, 2004 @04:24PM (#9329273) Journal
    What really happened was that Microsoft tried to collect their royalty payments on all the double-clicking [slashdot.org] going on.

    And did anyone else read the last part as "parent" troll instead of "patent" troll? Or is that just me?

  • by MalaclypseTheYounger ( 726934 ) on Thursday June 03, 2004 @04:24PM (#9329274) Journal
    I just took out a patent on running articles that suggest that the FTC is looking into the ways that patents are reviewed and issued.

    1. Make a Patent.
    2. Enforce the Patent.
    3. Profit!!
    • by molarmass192 ( 608071 ) on Thursday June 03, 2004 @04:28PM (#9329327) Homepage Journal
      You aren't maximizing your profit potential with a 3 step process. It should be like this:Real,
      1. Make a Patent.
      2. Sock patent away in filing cabinet until 1 year prior to expiration and concept is in widespread use.
      3. Enforce the Patent.
      4. Profit!!
      • Or...

        1. Get a bunch of your attorney buddies to make a pseudo-corporation for holding IP.
        2. Convince a large group of penniless patent holders that their IP is worthless, buy patents at bargain prices.
        3. Wait until 11th hour of patent term.
        4. Sue the hell out of everyone directly or indirectly related to the patent.
        (even people that the original patent holder merely said "hello" to).
        5. If you scare up enough out-of-court settlements for a fraction of those cases: Profit!
  • Slashspeak. (Score:3, Insightful)

    by Oliver Defacszio ( 550941 ) on Thursday June 03, 2004 @04:25PM (#9329283)
    They may also address the issue of "patent trolls"."

    In other words, patents owned by anyone you don't like, or agree with. That is what troll means around here, isn't it?

  • hopefully... (Score:5, Insightful)

    by Anonvmous Coward ( 589068 ) on Thursday June 03, 2004 @04:25PM (#9329287)
    ..they'll have people that are 'experts' in given fields. Somebody who knows the difference between a PDA and a general computing device with limited resources. Heh.
    • Patents are written in generic terms to be as broad as possible. If you use a specific term like PDA you could run into the problem that five years in the future when every PDA is built into a cell phone your patent is now worthless because "PDA" is distinct from "cell phone" even if all the cell phones act like PDAs.

      Simply put: being too specific in a patent means that it's easy for a competitor to use your invention simply by changing a minor component or feature.
      • Re:hopefully... (Score:3, Interesting)

        by bit01 ( 644603 )

        And making the patent too general means that the language is ambiguous and meangingless, leading to conflicting understanding and more money for lawyers. For software usually, despite what the patent office likes to say, there is no happy medium, leading to all the problems patents currently cause.

        ---

        It's wrong that an intellectual property creator should not be rewarded for their work.
        It's equally wrong that an IP creator should be rewarded too many times for the one piece of work, for exactly the

  • by FortKnox ( 169099 ) on Thursday June 03, 2004 @04:25PM (#9329290) Homepage Journal
    ... slashdot, check...
    ... patent office, check...
    ... FCC, check...
    ... TV? Well, we have foxnews and soon-to-be AlGores Democratic-fest channel.... check

    So... who's left to troll?
  • A tautology (Score:5, Interesting)

    by k4_pacific ( 736911 ) <k4_pacific@yah[ ]com ['oo.' in gap]> on Thursday June 03, 2004 @04:25PM (#9329292) Homepage Journal
    From the article:

    "But we have seen instances where companies use that monopoly in an anti-competitive way"

    Doesn't a monopoly imply a lack of competition? This would seem to go without saying.
    • Re:A tautology (Score:5, Informative)

      by proj_2501 ( 78149 ) <mkb@ele.uri.edu> on Thursday June 03, 2004 @04:33PM (#9329369) Journal
      It doesn't go without saying.

      It is not illegal to have a monopoly. It is illegal to use your monopoly in certain ways to squeeze more money out of your customers or to stop competitors from appearing.
    • Re:A tautology (Score:3, Insightful)

      But from the remainder of that paragraph
      "... sometimes to prevent other products from getting to market, to prevent people from sharing ideas and to prevent the kind of innovation that the patent system is really trying to spur on"

      What they're saying (and I agree with) is that although there isn't anything wrong with having a monopoly, you can't stop competing products from entering the market. In other words, patents are being used as a big stick to threaten those who would enter your (previously monop

    • There's a difference between having no competition and engaging in anti-competitive behavior. the first is a monopoly, the second is generally illegal and refers to (IIRC) business practices that work to reduce/eliminate/prevent competition (such as using a monopoly on OSs to eliminate browser competition).
  • by FyRE666 ( 263011 ) * on Thursday June 03, 2004 @04:26PM (#9329297) Homepage
    I don't understand why the US legal system doesn't adopt one of our better ideas here in the UK: Make these "patent trolls" and other leeches pay the defendant's legal fees if they lose their cases in
    court instead of slithering off to drag someone else in front of a Judge. This would kill an industry built around threatening people
    with huge fees stone dead.

    It would no longer matter if "Shithead inc."
    with their newly acquired patent on "sitting the right way around on a toilet" threatened a shelter for blind puppies with legal action, since Fido and pals could count on a less than gallant army of equally unscrupulous lawfims would work on no-win no-fee no-payout basis to defend them.

    Mom and Pop stump-jumper could simply ignore the SCO's of the World and go about their business as the legal vultures and patent maggots preyed upon each-other.

    Why the hell should any company (even Microsoft) have to pay out to defend themselves against these parasites?
    • That actually does happen fairly often, but the larger company can easily afford the missteps while the harassment of the smaller company may make it go out of buisness. They STILL have to be dragged through the courts and they may go bankrupt before the trial is even over.
    • Loser pays doesn't work because those who don't have money cannot afford the risk of going to court, and the rich can just throw in money until they win.
    • by stratjakt ( 596332 ) on Thursday June 03, 2004 @04:52PM (#9329534) Journal
      Then only the rich companies who could afford to lose a patent fight would be allowed into the system.

      Say I invent something, an actual unique new device. A machine that makes super-fast transistors out of recycled chewing gum or something.

      Then sleaze-co starts using my invention, I try to sue. They bring a barrage of buzzword-spouting techies and slick lawyers to confuse the hell out of the judge and jury.

      Without a billion-dollar war chest, I'd be risking bankruptcy by patenting my invention.

      The legal system is an adversarial one. The best fighter wins, and that person is not necessarily in the right.

      Would you want to sue Microsoft, knowing you were right and they were wrong, but realizing if the judge doesnt see it that way you'd wind up millions of dollars (or pounds) in the hole?
      • How could you sue? (Score:3, Informative)

        by Colin Smith ( 2679 )
        "Then sleaze-co starts using my invention, I try to sue."

        You have to patent something *before it's disclosed to other people*. That's the point. It gives you protection. The way the patent system is *supposed* to work you're also supposed to provide evidence that you've developed said invention, notebooks, diagrams with dates, times etc.

        In this case, you patent invention, Sleaze-Co steals it, you sue and win because you have the patent and Sleaze Co pays your legal bill as well as the damages.
  • by newt_sd ( 443682 ) on Thursday June 03, 2004 @04:27PM (#9329304) Homepage
    Any chance this could render some of the more idiotic patents worthless.

    Case in point
    Microsoft and their double click of death [slashdot.org]

    and

    The guy who patented swinging in a swing? [slashdot.org]

    ITS ABOUT TIME THIS WAS REVIEWED
  • At least until the lobby gets built to make EVERYTHING patentable.
  • by Saeed al-Sahaf ( 665390 ) on Thursday June 03, 2004 @04:33PM (#9329363) Homepage
    Unless something is done, there will come a time when multi-nationals own everything. Has someone already patented the concept of pointing to a location in code? The act of typing an alpha-numeric character into a web based form? The idea of physically depressing an electro-mechanical mechanism to effect change of state in a physical or electronic system? The act of inhaling air and making an energy exchange with human blood? This is just silly. It has to stop.
  • The problem (Score:4, Interesting)

    by pappy97 ( 784268 ) on Thursday June 03, 2004 @04:33PM (#9329364)
    The problem is that the USPTO cannot thoroughly review all applications. Thus too many fall through the cracks.

    Belgium has solved this problem. They issue patents as easily as we can register copyrights. Got a dispute? Take it to the courts.

    I like that system. Take the power out of the examiners hands altogether and let courts decide these issues. Yes I know courts already decide issues, but with the way courts invalidate patents, what is the point of the USPTO?

    Sure someone will say that might favor big companies as they can afford patent litigation, but we know that getting rid of IP legal protection is not going to work.

    We are not going to simply eliminate the patent process (although you can, by Congressional action, or by amending the Constitution). Any of you geeks who think this will happen are in fantasy-land. We simply need to take power out of the hands of the USPTO.

    Another good effect of this would be that all those patent prosecution attorneys (aka patent scribes) would lose their jobs, quit the practice of law (since they only went to make more money than an engineer), and flood the engineering/ computer programming market. All the while the demand for patent litigators (more of a REAL lawyer than a patent scribe) would skyrocket.

    That would at least stop the outsourcing of patent prosecution to India...
    • Re:The problem (Score:3, Interesting)

      Uh...

      Well that is pretty much exactly what is happening in the US and it is NOT working.

      And yes, though patents can protect the little guy, the little guy usually has no way to defend himself in court.

      The BETTER way is to make the process work as it is supposed too. With patents being granted based on being unique, after proper investigation, and then easily overturned later if prior art is shown, without a lenghtly and costly cour battle, but merely by filing a petition and having the USPO do it's own i
      • Well that is pretty much exactly what is happening in the US and it is NOT working.

        Can you please provide evidence that it is not working?

        Yes, we have overly broad patents being issued. But if that is the way it's supposed to work it obviously can't be evidence of "NOT working."

        We do have occasional lawsuits like BT patenting the internet or SBC patenting left frame navigation. It is my understanding that those have been quickly and thoroughly smacked down.

        If there is lots of evidence out there I wou
        • Re:The problem (Score:5, Informative)

          by Halo1 ( 136547 ) on Thursday June 03, 2004 @05:08PM (#9329677)
          Taken from another post [slashdot.org] of mine in a previous story:
          • Study [ftc.gov] by the Federal Trade Commission from October 2003 (extracts [ffii.org.uk] with the software patent related stuff from that report). Conclusions: many indications that software patents hamper innovation because of, among others, patent thickets.
          • Empirical study [researchoninnovation.org] by Bessen&Hunt on the effects of software patents in the US. Conclusion: software patents have resulted in a transfer of R&D money to patent departments and has not resulted in increased R&D. Because of the incremental nature of software development, patents hinder instead of encourage innovation.
          • Study [eu.int] ordered by the European Commission in preparation of the European software patents directive. It did not suit their goals however, so they avoid referring to it. Quote: "Unless this fundamental lack of knowledge is addressed in a more structured manner, any proposal to optimise the patent system in respect of software-related inventions is based on nothing more than wild guesses or wishful thinking."
          • Re:The problem (Score:3, Interesting)

            by jkabbe ( 631234 )
            Thanks for the link.

            Sorry, I was thinking in terms of the big patent picture (ie. the process) and not just with reference to software patents (ie. what can be patented) even though I know it is near and dear to the hearts of many here :).

            I agree with the FTC that something needs to be done to restrict the field of software patents.
      • I should learn to read the whole post before responding :)

        The BETTER way is to make the process work as it is supposed too. With patents being granted based on being unique, after proper investigation, and then easily overturned later if prior art is shown, without a lenghtly and costly cour battle, but merely by filing a petition and having the USPO do it's own investigation.

        This is already the way the system works - just not to the desired degree. If you think that a patent is invalid you can file an
    • Belgium has solved this problem. They issue patents as easily as we can register copyrights. Got a dispute? Take it to the courts.

      That's basically what the US patent system does now. Remember, the USPTO makes no guarantee that the patent they issue is valid. They are doing an initial check for form and to weed out obviously invalid patents. They just don't have the resources to do any more.
  • patent trolls (Score:5, Insightful)

    by nanojath ( 265940 ) on Thursday June 03, 2004 @04:34PM (#9329378) Homepage Journal
    funny responses all used up (darn) so here's the informative one...

    "patent troll (PAT.unt trohl) n. A company that purchases a patent, often from a bankrupt firm, and then sues another company by claiming that one of its products infringes on the purchased patent.. --adj."

    Via The Word Spy http://www.wordspy.com/words/patenttroll.asp
  • I already patented a "method for reviewing the process by which patents are reviewed and issued"

    ha! I'll have my lawyers contact your lawyers.
  • I wanted to patent, a process by which grants are made by a governing entity that confers upon the creator of an invention the sole right to make, use, and sell that invention for a set period of time.

    And yet, Rambus, Amazon, SCO and others can patent stuff like dirt, and get away with it.
  • Heh... (Score:3, Funny)

    by SeaDour ( 704727 ) on Thursday June 03, 2004 @04:38PM (#9329404) Homepage
    If trolls are a problem with the patent office, the solution seems simple: start giving citizens patent moderator points.
  • by Weaselmancer ( 533834 ) on Thursday June 03, 2004 @04:38PM (#9329406)

    The National Academy of Sciences is calling for more funding for the patent office where 3,000 examiners handle 350,000 applications a year with an average of 17 to 25 hours to check on the validity of a patent application.

    Businesses claim a lack of due diligence at this stage often results in patents being granted that should not see the light of day.

    There you have it, the entire problem in a nutshell. Too much work, and not enough people.

    And I have a solution.

    Public review for patents. Open source meets patent reform.

    Here's how the new system might work. Someone applies for a patent, and it gets posted to a website for public review.

    That gives the public the ability to search for prior art. If prior art is found, even after the patent is granted...zap. The patent is invalid. And if the prior art is more than...say 5 years old, the idea is now public domain and no longer patentable.

    Also, widen the definition of prior art. Best example of that I can think of off the top of my head is Intel patenting a method to detect overclockers. Measure the cpu clock versus an internal clock. Compare. If they differ by more than a small percentage, shut down. In other words, they managed to patent a binary counter. Bogus. Simply using an established widget in a new way shouldn't be patentable. No more Bezos "with a computer" patents.

    And no patent should be granted for more than 5 years or so. This is important, otherwise we could wind up in a technological backwater. Small countries (with no extradition treaties with the US) would be the next Silicon Valley. You think you're being outsourced now? Just wait until you can't program at all in the US due to fear of litigation.

    I think that it should be possible to have an idea, patent it, and make your million. But not at the expense of the entire tech sector.

    Now if you'll excuse me, I'm off to go double click something. ;^)

    Weaselmancer

    • by Anonymous Coward
      guess what, after 18 months patents applications are published and are used as prior art.

      See the american inventors protection act of 1999
      • by Weaselmancer ( 533834 ) on Thursday June 03, 2004 @04:52PM (#9329532)

        Thank you AC! Didn't know such a thing existed.

        But after a quick read [bereskinparr.com], I found this:

        All utility patent applications filed in the United States Patent and Trademark Office after November 29, 2000 will be published if an applicant does not expressly request on filing that the application not be published. An applicant may make a request for non-publication if (1) the applicant has not filed the application in any other country that publishes applications; and, (2) the applicant does not intend to file the application in any country that publishes applications.

        So, it's a little bit better, but not by a whole lot. You can still hide your applications, and it doesn't take into account things already "in the system."

        I still say that serious reform needs to take place. But it's nice to know that the law already sees it, AC.

        Weaselmancer

    • Patents themselves are held in secret until granted. That's the whole "protecting good ideas from being ripped off" spirit of the process.
    • Hi,

      > with an average of 17 to 25 hours to check on the validity of a patent application

      Wow, this seems off. They have 2-3 business days per patent? With that, there wouldn't be a problem-- anyone who has done a research project knows you can become a mini-expert on anything in 2 days.

      But 3000 workers, 360,000 patents/year, that's 116 patents/year per person... at 24 wks/year 5 working days/wk (note the 2 weeks off for vacation), that's about 1 patent a day.

      1/day is a lot different than 3 days per.
      • It's really nowhere near enough time. Patents are extremely complex, and are often written in a somewhat obfuscated manner to the degree that that's possible.

        Plus, of course, the examiner has to be qualified in the field the patent is being applied for; you don't put civil engineer examiners in charge of applications for biotechnology inventions. So there are likely some even more overburdened examiners, since the load cannot be evenly distributed.

        You also don't realize that this isn't a matter of looking
    • Public review for patents. Open source meets patent reform.

      Unless a request is made when a patent application is filed, an application will be published 18 months from its effective application date.

      At this point members of the public have 2 months to submit publications for review. Perhaps the period should be extended to 4 or 6 months? That would allow more time for the word to spread throughout the industry about a particular application.
    • There you have it, the entire problem in a nutshell. Too much work, and not enough people.

      And I have a solution.

      Public review for patents. Open source meets patent reform


      Yes, but that is not as far from reality as you might think. After the patent is issued it becomes publicly available. And if you can dig up any prior art that the stressed examiner missed, then the patent (or parts of it) will be rendered invalid.

      This happens all the time. In particular when someone gets sued by the patent hold
    • Opening up the opportunity to submit prior art more easily might be a good idea. There may be problems with that approach, but I'm not sure what they would be right now.

      As for your other suggestions, for the most part, they are already the law. Simply using an established widget in a new way is not patentable, unless it's novel and nonobvious.

      Do you know that almost every single patent application is rejected the first time? Most of them are rejected a number of times. Then the applicants attempt to d
  • expensive law (Score:3, Interesting)

    by feelyoda ( 622366 ) on Thursday June 03, 2004 @04:39PM (#9329419) Homepage
    because a great deal of work needs to be done in reviewing the market to ensure that a potential patent has not already been patented or is in use already, people seeking patents often perform a great deal of their own research to save themselves in legal fees.

    if, in the process of preparing the background for a patent application, you find that there IS previous work, what percentage do you think actually file the application?

    My guess is around 5%....
    • Among the honest filers, sure, it could be 5%.

      If I understand things correctly, the patent review process isn't public. I don't even think there's an external review board. (Correct me if I am wrong.) So an applicant who finds prior art could obfuscate the claims in the application to circumvent a too-cursory review process.

  • by jkabbe ( 631234 ) on Thursday June 03, 2004 @04:43PM (#9329458)
    The notion that pointless patents are somehow new is simply false. It would be nice if we could screen these out better so that examiners weren't wasting valuable time doing work on swingset process applications when they should be working on important business patents.

    It's nice to see some optimism that expanding the examiner force should alleviate some of the problem.

    And here's a suggestion for eliminating trolls:

    Currently a large percentage of patents that go to trial (I remember reading 40-50%) are declared invalid. Why not, in those cases where a patent is declared invalid, require that the plaintiff cover legal fees of the defendant? If that were the case you had really better be sure that your patent was valid. Kind of a specialized "loser pays."
  • by ShatteredDream ( 636520 ) on Thursday June 03, 2004 @04:44PM (#9329467) Homepage
    Tell them that the system needs to be fixed, not thrown out. Mine is Goodlatte (R-VA, 6th) and my suggestion to him is to use funds from the axed TSA to hire qualified laid off IT workers to act as screeners since they, unlike typical patent screeners, worked in the industry.

    The push should be to limit software patents to 2-3 years so that we don't sound like anti-business commies. Follow it up with hiring good patent examiners and you're suggesting a good solution that moderate congressmen can safely support.
  • by techno-vampire ( 666512 ) on Thursday June 03, 2004 @04:49PM (#9329503) Homepage
    As long as we're allowed to patent business practices and most patents are granted without proper examination, there's a neat way to eliminate the problem: simply patent the business practice of patenting something that doesn't deserve one then suing everybody that's already using your idea.
  • Is that where someone faxes the goatse ascii art to the patent office???
    • Is that where someone faxes the goatse ascii art to the patent office???

      I think it's more along the lines of:

      "... a method of expansion of the extremities of the lower intestine via a procedure comprised of first elevating the upper torso in such a manner that the torso and legs are perpendicular, followed by pressure applied by the first and second digits of the left and right hands to the area adjacent to the opening..."
  • Public Comments? (Score:4, Interesting)

    by clonebarkins ( 470547 ) on Thursday June 03, 2004 @05:08PM (#9329685)
    Does the patent process currently have a public comment phase? That is, are patent applications publicly available, and do (or should) assessors take those comments into account?
  • by 0x0d0a ( 568518 ) on Thursday June 03, 2004 @05:15PM (#9329751) Journal
    Here's [slashdot.org] a comment I posted earlier today where I mention the patent reexamination process and suggest a modification. I'll re-print a summary of the data here

    It is currently possible to request that a patent be reviewed by the USPTO. This does not require a lawsuit (or technically even a lawyer, though there is a need for a properly-formatted request).

    There are two types of re-examination. They differ [findlaw.com] in several respects. One, inter partes, allows you to basically provide rebuttals to the filer's explanations, and the other ex parte, does not.

    My thanks to Thalia [slashdot.org] for locating [uspto.gov] the associated fees on the USPTO website: inter partes costs $8800 and ex parte $2500. Both of these costs do not include legal fees, which Thalia estimated (for inter partes) at about $12,000.

    The problem is that getting a patent runs about $1,000 (again, not including any legal fees). This tends to slant things towards people acquiring patents, as it is still more expensive to get a patent revoked.

    The modification that I'd like to see made would involve *patent owners* having to pay ex parte or inter partes fees if it is determined that their patent was improperly approved. This means that groups like the EFF (and, with some work to make the process particularly easy, perhaps anyone) can initate re-examination requests while supplying prior art examples.

    Such a change would encourage patent filers to ensure that their patents really are legitimate when filing (reducing the number of bogus patents), and would not financially penalize someone who knows of prior art and wants to fix the USPTO database (if anything, I'd like to see someone who successfully brings up an example of prior art and gets a patent revoked *paid* a small fee by the patent filer for their time).

    This change would involve minimal changes to the system, and not much cost. There might be the issue of collecting from the patent owner, who might be unwilling to pay. I think that an eight-thousand dollar deposit per patent would probably be too weighty, so I'm not sure how to approach that detail yet. However, even if the USPTO needs additional funding to help cover costs of employees needing to review patents where the USPTO cannot collect from the patent filer, I think that we woudl be better off (furthermore, that individual could be barred from being issued future patents until they have paid off their existing dues).

    Problem: this change would *have* to grandfather old patents, as companies and individuals would otherwise be liable for masses of money for bogus patents. Irritating as it is that those people were able to get away with such behavior, the system permitted bogus patents, and charging them fees for said patents now is not reasonable (nor would it be acceptable to many people).

    I think that this is the only feasible approach to the problem. Trying to ensure that the USPTO never grants invalid patents would require that they maintain a huge staff of PhDs that are up on the bleeding edge in every area of research (and honestly, woudl be better off doing research instead of reviewing patents).

    Thoughts?
    • That's related to the 'loser pays' ideas floating around. The problem is that patents are intended to protect small individual inventors, as the big companies are already able to defend themselves. Loser pays systems tend to discourage small inventors.

      The solution is really simple:

      1. Make it easier to get patents. Right now, patents are reviewed and issued as if the US PTO was the final arbiter of all truth in the universe. This is of course absurd. A patent should be nothing more than a claim that a
  • by the_rajah ( 749499 ) * on Thursday June 03, 2004 @05:24PM (#9329850) Homepage
    straightened out! EFF [eff.org] = Electronic Freedom Foundation and Pubpat [pubpat.org] = the Public Patent Foundation. They are just getting started at working toward getting this patent mess brought under closer scrutiny. Somebody has to do it.

    "Do the Right Thing. It will gratify some people and astound the rest." - Mark Twain
  • by Groote Ka ( 574299 ) on Friday June 04, 2004 @06:51AM (#9333286)
    One of the big issues here as well is the high cost of legislation in the US and the lack of a decent opposition system like it is available with the European Patent Office.

    The first point is not very easy to tackle, a lot of costs are put in the 'discovery' of every lawsuit. A US (patent attorney) colleague of mine said that that will not go away in the near future.

    By means of example: a patent lawsuit in the Netherlands will cost you kEUR 20-50. At most. Germany, where you may have a little more quality, think about a factor 2-4 higher.

    The second point should be easy to implement. Just copy the European Patent Convention, German Patent Law, Japanese patent law (based on the German patent law) or something alike. This system means you can kill the patent after granting with prior art. In an inter partes proceeding, which means you, as a person, will be a pary in the proceedings.

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