The Real Problem With the US Patent System 173
Pachooka-san writes "An article in the Washington Post touches on the 'real' patent problem — the quotas that Patent Examiners must meet. They have no effective quality standards, only production standards, so many applications get only cursory review just so the PE can keep up the grueling pace. The USPTO is the only government agency that can and does lay you off if your productivity drops below 85% of the standard for your civil service grade. A Primary PE has to process 5 new and 5 old applications every 2 weeks (that's 8 hours each, folks). The best part — that 28-box application mentioned in the article? — it gets the PE the same credit as the smallest application. How many of those 28 boxes do you think even got opened?"
You get what you pay for... (Score:3, Insightful)
Yeah, but like so many things that are critical to the nation's health, it's not a hot button issue with the majority of voters, so it gets a little lip service, and wallows in mediocrity, getting enough funding and attention to avoid a near-term embarrassing implosion of the department, but not enough to solve its problems.
No matter. Another decade or two of bad patents being approved and we won't have to worry about the department imploding. Our economy will.
- Greg
WTF? (Score:5, Insightful)
Really?
Is that why the dollar is in free fall, there's 48 trillion of debt, vast amounts of production shipped off to competing countries, the housing market in meltdown about to take the rest of the world with it
Basically... Bullshit.
LOL. Patents are damned near irrelevant and have fuck all to do with the nations health.
Re:WTF? (Score:4, Interesting)
Also funny how, despite your qote that mentions "technological progress", this government slashed the science budget by over $100 million. Guess they needed to pay for a few extra Humvees.
But that's ok. China is coming, and God are they going to run right over the US economy. TWO billion people. I hope they will be nice to us.
"First we feared the wolf, then we danced with the wolf. Now we want to BE the wolf" - A chinese politician.
Not really flamebait. (Score:4, Interesting)
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That's really not true. The 18 month or more time to market advantage that comes from being the inventor is critical in many industries. IT in particular. What would happen is that new technology would be protected as trade secrets and would not be freely published in a lot of cases. Probably that'd be an improvement.
The problem is that there are a few industries where patents really are an important
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A trillion-dollar war that's being paid for on credit? Nope. Health care for sick kids? No way. Global climate change? Are you kidding?
But making sure Microsoft is able to get paid every time someone clicks a hot-key combo or installs a program on a computer - now THAT's "critical t
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The fundamental nature of the US economy has been shifting towards intellectual property; problems in that area has reprocussions across the entire economy. It's like saying "why should we care that poor people can't pay back the money loaned to them by multi-billion dollar corporation
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We forgive debt of third world countries all the time. Now that we are creating our very own domestic third world, why not do the same?
The more things change... (Score:2)
The more things change, the more they stay the same.
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Indeed. After all a Patent on your idea is absolutely VITAL to maintaining your market....NOT!!
See how Coca-Cola protected their formula.
Bureaucrats and lawyers...a winning combination...for bureaucrats and lawyers.
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See how Coca-Cola protected their formula.
Fortunately for Coca-Cola, they were able to dominate the market long before mass spectrometers became popular...
The patent system is not broken.... (Score:2)
Patents are a nice little money spinner for Uncle Sam: get paid for a patent application. If it is a bad one, get paid for a reexamination. A few hours of a patent clerk's time get charged as thousands.
They work fine for patent lawyers too. Lots of money to set up a patent application, but the real pay comes when a bad patent gets contested.
The system does not reward high quality work, so how is it going to come about? The USPTO and
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Did you know that you can work around a broken Caps Lock key by holding down either Shift key as you type?
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The problem? Darned thing is busted, that's what. (Score:5, Insightful)
The main problem with the (US) patent system is that it is a classed, stratified scam. One designed to serve large and/or monied entities, lawyers and their various barnacles.
Without large sums of money, it is difficult to determine if you have a patentable device. Without large sums of money, it is impossible to defend any court action that involves your patent, regardless of if it is brought against you, or by you. So even if, by dint of careful study and diligent application to the system, you manage to get a patent without spending a lot of money, you can't defend it anyway - unless you are well funded.
All this quite aside from the fact that the patent system has mutated enormously from what the founders envisioned; Software patents. Method patents. Patents on the blatantly obvious. Of course, so has most of the rest of our legal system mutated. You know why our system has so mutated? Because our political system, which drives the legal system, is a classed, stratified scam.
And strangely enough, the legal system, which lies between the political system and the patent system, is also a classed, stratified scam. Money talks; justice is the last thing on anyone's list; the question of constitutionality rarely comes up, and when it does, it is likely to be abused and misused right up to and including the supreme court.
Re:The problem? Darned thing is busted, that's wha (Score:5, Insightful)
This is exactly right. Here in the Bay Area, there is currently a feeding frenzy going on, with one IP firm after another popping up to represent one tech company after another in one arcane patent dispute after another.
This is costing ALL OF US a LOT of money. It is making the legal system a LOT of money.
I've been inside a few of these law firms; they hire a phalanx of paralegals to pour through tens-of-thousands of documents, looking for keywords that might have bearing on a case; they create aggressive deposition schedules; they engage in ultra-expensive eDiscovery activities, and so on.
They bring in the best, catered food, day in and day out. They have overnight sleeping rooms, so that paralegals can stop work and not have to take time to commute the next morning. Money flows in, unencumbered by any thought about what it is costingi yuo and me, the American consumer, as all these costs are eventually borne by us in the way of higher prices, or constrained innovation.
The lawyers are walkingi away with big smiles on their faces; it's really sickening to consider the near-fact tthat there is probably more revenue being generated in Silicon Valley via IP litigation than there is from the deployment of new innovation.
Do you think the "legal profession's ethics" (an oxymoron, if I ever heard one) will do anything to stop this money-making juggernaut? Answer: no.
In fact, we are being held hostage by greedy IP law firms, who have a production-line attitude to litigating patent and copyright protection issues.
With new eDiscovery laws coming into place, now we're having to do legal diligence to the 'nth' email. Imagine the wide-eyed, greedy hand-wringing going on with that one.
Recently the ABA created a new "degree", for paralegals. It's called the "Paralegal Certificate". It's a two-year program, with the ABA (American Bar Assn.) mandating that ABA-approved paralegal programs CANNOT be held online. Imagine that. one has to trek off to night school after a long day at work, to listen to someone read notes from a Civil Litigation textbook that you could be reading and being tested for online.
Why this certificate? It permits these IPP (and other) law firms to bill more for paralegals. Now that "paralegal" is an "official" sub-category, law firms can take a $30 per hour paralegal and bill out $120-200 for their time (depending on discipline, and experience). More legal hands in our economy's cookie jar.
I don't know how we're going to change a copyright and patent system that feeds these parasitical attorneys so generously. Think about it; most of the laws are made by people who have been attorneys, and have staffs full of young attorneys. They will legislate in their self-interest.
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In fact, we are being held hostage by greedy IP law firms
I understand your anger, but you are certainly not being held hostage by a law firm, but by their clients. Or, in other words, lawyers don't sue people, people sue people.
Now that "paralegal" is an "official" sub-category, law firms can take a $30 per hour paralegal and bill out $120-200 for their time (depending on discipline, and experience).
LOL, they've been doing that a long time, they just made it l
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Or, in other words, lawyers don't sue people, people sue people.
Total, unmitigated bullshit. The responsibility is joint and several and lawyers washing their hands of their responsibility is a large part of the problem. Or to put it another way "I was only following orders" went out as an excuse a very long time ago.
Lawyers are the experts in the domain of law and their clients generally follow their advice, including whether or not to sue and whether or not to get patents.
The current bullshit IP r
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In fact, m
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lawyers don't sue people, people sue people.
Yeah, but it looks to me like most of the money goes to corruption in the civil trials where patent trials are tried. Most money goes to discovery and deposition.
Litigants are usually required by to court must spend large amounts of produce large amounts of evidence in response to discovery and deposition orders. At no time is any evidence of malfeasance required for these orders to be issued, and these phases are allowed to last years and years.
Isn't it [centristcoalition.com]
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"The first thing we'll do - we'll kill all the lawyers", Cade
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Not sure I agree, it depends on what you pour through the documents, and whether or not it's flammable as well as inflammatory. The syntax would be correct if you were talking about a few litres of petrol.
Re:The problem? Darned thing is busted, that's wha (Score:3, Insightful)
Give me a break. REALITY is a scam. REALITY favors the most powerful. The government, courts, and USPTO are all protections against the unbridled exercise of power. The government is easily vot
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Sure, I'll give you a break. Political systems and social systems are designed to buffer reality so that life for the relatively defenseless becomes easier, sometimes even possible. When systems stumble out of control (or are intentionally driven out of control for any reason) they have failed society and they should be adjusted or replaced. We have tried - mind you, just tried - to make this country a haven for everyone, not just t
The darn thing is nonsensical, that's what (Score:2)
I agree that if you contribute something to human civilization, you should be recognized for it, and others trying to take credit for
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There's a term for it in California -- "Unruh's Law" (after the late Jess Unruh):
Reverse the polarity! (Score:5, Insightful)
Re:Reverse the polarity! (Score:4, Insightful)
Just kidding. I'm curious what happened to the idea of wiki-fying the system.
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This is a bad thing? That's the whole point!
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Maybe the just have to management on-board with some new policies
"if it not understandable it's no"
"if its not revolutionary, it's obvious"
"someone skilled in the arts means someone skilled in the art being patented not skilled in the art of being a patent atto
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Let's look at the issue here in all seriousness (yes, I know this is Slashdot). Who benefits from patents the most? The rich and a few independent inventor types. Who pays for patents? Citizens. Now why should citizens support (taxes) a system that costs them money? Seriously.
The patents only apply in our country (yes, there are international treaties but come on, really...) so they're only targeted at our own pe
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The patent office is 100% self sufficient based on application fees and patent maintenance fees. In fact at one time the patent office was a cash cow and the government took extra money from fees from it.
So in fact the patent office either costs the taxpayer nothing or imperceptibly slightly lowers his/her taxes
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I think you're close there. I say abandon government granted patents and return to contract law and NDA. If I invent something, and there's no paper trail showing the company ever revealed their technique/invention to me, nothing they can do. What about things that can be reverse engineered? That takes time & money; most
Re:Reverse the polarity! (Score:5, Informative)
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Because it is unfortunately rather difficult for the government to fire an employee who simply isn't doing a good job, if there isn't a nice, objective standard by which they're doing poorly. They want some way to make sure the examiners are being productive.
Of course there are better ways than what they're currently doing. I'm not trying to defend the current practice, I'm just saying it's an unsurprising result of a government bureaucracy.
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There is no polarity! (Score:3, Informative)
The quotas are per patent examined and denied/accepted. So, there is no polarity. In fact, if anything, it is a lot easier to say "X anticipates Y, go away" than to approve a patent.
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Plus, the longer an examiner can drag a patent application's prosecution out, the more counts they get from Requests for Continued Examination and Continuation applications. Getting counts from those (both first actions and disposals) is a hell of a lot easier than taking up new applications.
Also, the allowance rate at the U
Already reversed (Score:2)
Under the current system, the easiest way for examiners to get quota points is to reject applications, which is exactly what they do. Over 95% of patent applications are initially rejected, which is why the patent process is so expensive. See SSRN [ssrn.com] for a published study that addresses the quota issue in detail.
They are paid by the denial (Score:2, Insightful)
Eureka! (Score:3, Funny)
Patents are very difficult to read (Score:5, Insightful)
Re:Patents are very difficult to read (Score:5, Informative)
Patents are legal documents. That is why they are written in legalese. And patent examiners speak legalese. It actually makes them more efficent as it becomes easier to reject a patent for prior art the fewer ways there are to express an idea.
And legalese, much like medical jargon, is a seperate language where words mean specific things. Unfortunately, while medicine stole from Latin, and is thus obvious, the Law stole from English. So many people think it is merely poor English, when in reality the words being used have very precise meanings.
IANAL
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REM I see your point.
/* In fact I have never understood why programming languages allow you to add comments. */
// Real programmers don't write comments.
-- Real programmers figure out what code is supposed to do just by looking at the syntax.
# Writing comments is a waste of everyone's time, and comments was
Re:Patents are very difficult to read (Score:4, Interesting)
For comparison go read "real" legalize, say almost any of the Public Laws passed by congress. Some of them may be long (mainly those intended to obfuscate the flow of bribery money, er, earmarks). But the laws that are actually suppposed to be the most legal in terms of setting rules for citizens, they are surprising very easy to read and understand in English. In fact the more important the law, usually the easier it is to understand. Look at some of the constitutional ammendments. Most are only a paragraph or two of very plain English prose. See, the congress which wrote those wanted to be sure they were so clear that nobody could ever not understand them or misinterpret them.
On the other hand, patent lawers and the companies they front actually desire to create as much confusion and obfuscation as possible. Ever wonder why ordinary lawers can do pretty much anything, except patent law?
The sad thing is that the original intent of a patent was to actually make knowledge more available and understandable to the public as a whole. But instead patents are written in some invented cryptographic foreign language; plus the way legal penalties are set up it's in your best interest to actually NOT read patents, so the legal system is actively discouraging the disemination of knowledge, the same way a traffic ticket discourages speeding....the exact opposite of the purpose of patents.
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Only the section with the claims, that exactly defines what type of device or process is covered by the patent, is supposed to be legalese. Most of the bulk of a patent is supposed to be readable for an engineer who deals with similar devices or processes, and that has indeed mostly been my experience with patents in a field that I know well (i.e., laser physics). But someone without an appropriate physics background should not expect t
Re:Patents are very difficult to read (Score:5, Interesting)
Patents are technical documents. They are supposed to describe a solution to a problem in a way that a technician with adequate knowledge can understand the concept and verify that it is not already in use, and that a future product does not infringe upon it. If the designer of the system does not even recognize the patent, then it is not able to do that.
You are correct when you say that legalize has very precise meaning. But patents are intended to be as broad as possible, so the lawyers do what they can do take a single concept and make it as vague as possible. So words that have precise meanings in the original technical document are replaced with vague meanings (hence how single terms become entire paragraphs). I actually saw sentences that spanned whole pages, and paragraph separators were used to indicate that this "word" had been explained inline.
For example:
The ruler must be 12 inches long.
Becomes:
The [entire paragraph explaining what a physical object with measurements might look like, in every possible way you could imagine, regardless of shape, size, or material, without requiring graduation marks or whatever],
must be [complex explanation indicating that some unspecified minimum dimensions may or may not be required].
Not all patents are written this way, but many of them are.
Re:Patents are very difficult to read (Score:4, Insightful)
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Ah, but I discover a way of doing X with a ruler 11.99 or 12.01 inches long. Or a nongraduated 12 inch metal stick. Then I am free to violate it. That's why simple words (Ruler, 12 inches) are replaced by paragraphs covering many possibilities.
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I think you just hit on a major source of problems, not just with the patent system but with our "democratic" government in general. How can the voters understand sources of our various governmental problems when it is all written in a different language? Yes, I understand the need for linguistic precision. I also understand that having a special language for government locks out most everyone not in the aristocratic Ivy League strata. I under
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There is no viable alternative to linguistic precision. Ultimately rules will be interperted in one way as being the "correct" way. Other rules will appeal to those rules as a precident. The system has repeated like that for over two millenia, hence the barrier to entry. However, physics, mathematics, biology and numerous other fields have the same specialization of knowledge. We do not require that mathematicians rework everything from scratch every 20 years to allow newcomers equal access.
In answer
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Yes, "interstate commerce" is a short phrase, and everyone I know with a good high school education is able to understand what it was meant to encompass. The reinterpretation of Consistution into legalese is what allowed such a short,clear phrase to be so exploited.
"physics, mathematics, biology and numerous other fields have the same specialization of know
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Nope - in my experience patents often ARE in fact deliberately obfuscated (beyond the inevitable legalese). The more general the description of the patented article, the better (at least that was the advice I got when pursuing a patent with some colleagues). This often leads to vague wording - the more specifics you give, the easier it is to take that specific, give it a "non-obvious" twist, and suddenly s
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Because:
1. It generates BILLABLE HOURS, that's why. The arcane, precise, obfuscatory language is used by habit and by greed to keep the commoner from defending him/herself.
2. Lawyers don't want to be reduced to mere proof-readers.
3. Courts (judges) don't want labyrinthine segues to get to "justice"; jurors probably would like the entertainment value
4. Court reporters would have to consume more paper and charge for the longer hours.
5. Court dockets would be vastly longer
Unfortu
nothing scares me more (Score:4, Insightful)
FTA:
Patent officials are looking at hiring back retirees to work on the patent backlog and at revising "duty station" requirements so the agency can expand into a nationwide workforce.
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rubber stamp? (Score:2)
Think about it for a second, it means that perhaps your patent claims weren't broad enough and you are in fact entitled to more coverage, hence why reissue's are around. On the otherhand, it can also help establish the metes and bounds of what is out there.
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FTA:
Patent officials are looking at hiring back retirees to work on the patent backlog and at revising "duty station" requirements so the agency can expand into a nationwide workforce.
I would assume that patent officers get to retire after 20 years with half pension like most government employees.
"One Problem" Trap (Score:4, Insightful)
This seems to fall into the trap of signaling one problem as the source of a larger, more complex problem, when in fact there is a composite of multiple problems to deal with. One may also see this in pointing to video games as the problem in school shootings.
Patent examiner quotas may be a big problem and I'm glad it's being pointed out, but companies stocking up on patents as a strategy of Mutually Assured Destruction is a separate problem.
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Simple fix (Score:2)
Nope the real problem is that it exist (Score:2)
The only goal is to scam off money from people that like to have the permission to make other peoples live miserable.
Patents should be forbidden in all field, they are not useful anymore.
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On the otherhand, since they used to only be publicly disclosed upon being issued, now almost all patent applications are published.
I don't really want to live in a world of trade secrets, with corporate espionage even more rampant. Sure you can reverse engineer all you want, but do you want to see a return to guilds guarding their secrets?
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Trade secrets with what ammounts to proof of concepts would be less damageable than the current system.
And guilds did actually share secrets within the guild (much like the open source people do among themselves)
Patents where useful when a typical end product had one or two patents involved, now it has hundr
As Ron Paul says (Score:2)
I wonder what his views on the patent problem is. Or a libertarian's views in general - Private "Property" vs. Free Market.
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In Article I, section 8, the U.S. Constitution:
Congress shall have power . . . To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writi
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1) Under the Constitution Congress has the authority to grant copyrights and patents, not a responsibility to do so. If so inclined, Ron Paul could push for the elimination of copyrights and patents without encountering any Constitutional barriers. (Political ones, for sure, but not Constitutional.)
2) Perhaps you were only referring to members of the U.S. Libertarian Party, who tend to be strict Constitutionalists, but idolizing the Constitution is hardly a basic libertarian trait. Even ignoring the sizab
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productivity still too high (Score:2)
85%? (Score:5, Insightful)
I've already seen several people leave because they can't handle the stress they're put under here either. The standards haven't changed since the 70s even though the pool of prior art is growing exponentially.
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How do you like it so far? I am finishing law school in May and was thinking about dropping an application with you guys.
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Not the only problem... (Score:3, Insightful)
This is the other problem. Why are they allowed to submit this much? When I submit a grant application I have limited amount of space to justify my grant. That way I have to condense things down so only the most important and relevant information is transmitted. Why is there not a similar restriction on patents? It is far simpler to request additional details for the patents that need them rather than sift through thousands of pages.
How many of those 28 boxes do you think even got opened?
The question you should be asking is how many needed to get opened.
Because the law requires it (Score:4, Informative)
The law requires it. The Federal Courts have invented a doctrine known as "inequitable conduct" that requires a patent applicant and its attorney to submit every document they have access to that could potentially be relevant to the application. So, if you are a corporation with a resource library that relates to your products, you have to submit the entire resource library or risk committing inequitable conduct. In every patent infringement trial, the infringer accuses the patent owner of hiding information from the patent office, no matter how much information is submitted. So the natural recourse is to submit everything.
Bass Ackwards (Score:4, Insightful)
It doesn't help to consider patents for .... (Score:2)
http://abstractionphysics.net/pmwiki/index.php [abstractionphysics.net]
Removing the foolishness of software patents would go a long way at reducing the patent system over running workload.
The system needs rethinking (Score:3, Interesting)
We have, largely at public expense, mapped the human genome. Many drugs are patented that were developed at public expense and licensed to drug companies to be sold for whatever they can get. Scientists are not going to stop being interested in biochemistry because they are less likely to become billionaires.
Too many software patents are trivial. Every now and then somebody comes up with an algorithm that is groundbreaking. IBM, as a joke, patented an algorithm for assigning access to restrooms on a train. Don't even get me started on "business method" patents.
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Orphan drugs (Score:2)
Don't worry though, Pharma is busy developing better drugs to treat male erectile insecurity.
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That's only a SYMPTOM of what is wrong (Score:5, Insightful)
That is not what is wrong with the US Patent System. That's only a SYMPTOM of what is wrong. The real wrong is that the patent system is completely and totally disoriented away from it's original mission, which is to encourage the kinds of innovative inventions that we would not otherwise have without patents.
Patents actually take away rights. Two inventors inventing the same thing in isolation from each other will end up with one of them the loser, losing all his rights to what he created, just because the other one files the patent application first. In theory, this is not what we want to be doing. In practice, such things have to happen in a process that is going to grant exclusive rights for some term. We justify this taking away of rights for the greater good of all not just in getting the benefits of that invention the two inventors made (we'd get that benefit anyway, even if they had to share the rights), but also the benefit of the process itself to encourage the innovation.
Where the problem lies is that so many patents issued these days are for things that would have been invented, either just as soon, or at least by the time it is really needed, anyway. Thus we end up taking rights away from parallel inventors for something for which there is no gain (we'd have that invention without any patent system).
We need to do a better job of evaluating an invention to determine if it is something that is truly innovative, and that such a thing would not have been invented just in time for a need without a patent system. If the invention itself does not justify a patent system, then a patent should not be issued for it.
I believe fewer than 1% of patents issued these days justify the patent system.
There are also a lot of other things wrong, such as those overly broad claims. What is there to discourage such claims? Nothing. There needs to be a penalty for overly broad claims. Maybe invalidation of the whole patent might do.
The abuses of the patent system today are actually harming innovation and the economy. The nature of technology today is that almost all new ideas build upon other ideas. But why even try if there is a risk that what you could do could be taken away from you because something else is similar, or even just builds on the same thing your idea did.
We still do need a patent system for things that take a lot of time and money to come up with. And nearly divine inspiration needs to be rewarded as well. Almost all patents these days do not fit those descriptions.
And this has nothing to do with the matter of software patents. It's just that software patents, far more than others, tend to fall into the "there's no real innovation here that someone else would not have done when it's needed" category.
Here is an idea. (Score:2)
my patent took eight years (Score:3, Insightful)
My university will pay for the lawyer fees to file the patent, and collect that first if any money is generated -- sounds reasonable. My first patent was sold for about $25K, but I got nothing -- the lawyers got it all.
By the way, both were nanoscale devices -- not software patents.
Easy patents are equally easy to reject. (Score:3, Insightful)
That doesn't sound like much time. Yet I am reminded of all the stupid things that have been approved for patent, that are then posted as stories on Slashdot, and then a bunch of people post prior art they found after 10 minutes of Google searching.
Comparison - other worldwide offices ? (Score:3, Interesting)
It would be good to compare with the current required production numbers of the Japanese, Korean etc. offices before drawing conclusions.
Anyone in here ? EPO anyone ? (I recently read the EPO was similarly down to around 1 day ?)
In those days
One of my standard browsers (Score:2)
Both Type I and Type II errors are occurring (Score:4, Informative)
The root cause of this, however, is the same -- lack of time available to read the relevant material in depth. Not only can the present examiner not read my application carefully, but the fact that his predecessor had the same problem led him to quit, so the reviewer of my application today has less experience than he might otherwise -- a two-fold impact. The fact that I have to respond to the incorrect rejection, often to the point of entering the formal patent appeals process, only adds workload to an already-overworked system.
My point is that the examination process is a decision point and that rushed, inexperienced examiners can err in both directions. Yes, they can allow applications that should be rejected, but they can also reject applications that should be allowed. And while the former gets a lot of press (we've all seen the patent for the child's swing), the latter is just as bad for innovation: If a patent troll can take an inadvisedly-issued patent and take down an industry, an improperly-rejected patent can delay or deny funding to the startup trying to build an industry in the first place.
Sunrise period with peer review for new patents (Score:2)
But now to the article and the patent system:
Problem i) The patent officers are overwhelmed by patent applications. So the review is not as good as it should be.
Problem ii) If a patent is granted, it's extremly complicated, expensive and costs a lot of money to invalidate it (just look at the One-Click patent from Amazon if you need an example).
A possible solution would be a sunrise period (e.g. 6 months) for n
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Hah, jokes on you. I wire my lights to push buttons!
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Not to mention building codes, UL guidelines, fire codes, common sense, etc.