Patent Examiners Don't Scale
from the in-case-you-were-wondering dept
Almost all of the publicly discussed plans for patent reform tend to focus on a few minor changes to the system and then dumping a lot more money into hiring more examiners. Unfortunately, such a solution doesn't work when people don't want to be patent examiners. With the continued growth in patent applications due to the fact that companies feel they need to patent everything just in case, and the layer of complexity in many new patents -- the backlog keeps getting bigger and bigger -- and with it, the pressure on existing patent examiners. In fact, Slashdot is pointing to an article that notes patent examiners are fleeing the Patent Office, as they feel that they're being overworked. They're given impossible quotas by managers who don't seem to understand how much work they need to do. While Jon Dudas, the patent office director, seems to brush off the concern by suggesting this is a minor "management" problem that can be sorted out, it actually seems to be indicative of a much bigger issue: patent examiners don't scale. The method for granting patents is out of date and can't handle the patent system we've set up. If we actually follow Dudas' own reform plan, which would grants patents to those who are "first to file" rather than "first to invent," it will actually make the problem even worse, because it will make companies file as many patents as quickly as possible without doing all of the necessary research. So, Dudas' big plan for patent reform is to get more money to hire more patent examiners just as he has a labor problem on his hands -- and at the same time, overload them even more. Isn't it time we started looking at real solutions for patent reform that recognize the fact that the current system obviously can't scale? This certainly suggests that a system of peer reviewed patents that allowed various experts in the field to weigh in on patents could work better. Other ideas include a more "open source" approach -- where patent applications are published much earlier along with an easy way for anyone in the public to object to the patent and provide prior art. These are solutions that distribute the work outwards and aren't relying on the same patent examiner system that obviously cannot handle the load created by our existing approach to patents.
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True, proposed reforms wouldn't help backlog. Why
Nice article and good point Mike. Perhaps you are wondering why someone would have proposed "reform" makes the backlog even worse. Allow me to offer my answer to that: because the backlog helps the large companies (which don't particularly benefit from patents to begin with). The companies some clame to be behind the so-called reform measures are the large, international tech giants. They have been viewed as pushing this to help them from smaller companies that invent some of the hottest technologies. The longer it takes for patents to get examined, the longer large companies can use the most popular technologies without having to pay for them. Some reform.
...plans for patent reform tend to focus on a few minor changes to the system...
Actually, I think most would say that the proposed reforms are quite drastic, at least as compared to other reforms made over the past century.
Patent Examiners Don't Scale
I'd respectfully disagree with you here as well. There are lots of things that don't scale linearly. Engineering dollars spent to net useful technology output, for instance. But examination flow is probably somewhat linear to man-hours spent. So I'd have to disagree here. That people leave the US PTO may simply have more to do with the fact that they can generally make more money writing patents (~$200 / hour) than reviewing them at government wages.
--Jack
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Patent reform
So let's say when you file for your first patent, you pay a $100 fee. Patent #2 -- if submitted in the same calendar year -- would cost you $200, and #3 would be $400. By the time a company files its tenth patent in a single year, it would be paying $25,600 for the privilege. Two more patents would push it past the $100,000 barrier.
Companies still abusing the privilege? Increase the initial cost (which will then be doubled and redoubled again). Repeat until two things happen: a) companies stop trying to patent ideas that have been widespread since the dawn of time, and b) the patent office has enough money to hire the entire population of Bangladesh as examiners, if that's what it takes to catch up with the backlog and do some proper research.
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Re: Patent reform
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How about a deposit system.
2) If the patent is accepted for (say) 3 years they get the money back
3) If someone else manages to get the patent cancelled, they get the money instead.
Small inventors with a good record will be able to borrow the money cheaply. And there will be slightly more of a financial balance between the big companies proposing bad patents and the individuals working to overturn them.
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Deposit system -- lenders sometimes would have to
On the good side, some lenders mght develop an expertise in judging patents themselves and deciding which will probably stand up. The lenders might be able to judge which patents are good risks and which are bad risks, and could loan money cheaply or expensively accordingly.
Various kinds of preliminary screeners might even spring up to facilitate the inventors and lenders getting together (or staying apart if the patent is clearly a bad risk.)
The result might be a sort of competitive free-market patent examination system.
It's so crazy that it just might work! :-)
On the bad side, there might be even more scam artists saying 'pay us thousands of dollars to examine your invention and we might help you become rich' than there are already.
One problem I still see is that if a fight over an issued patent goes to litigation, patent litigation can easily cost a lot *more* than $50K
Anyone else have any (reasoned, please!) thoughts about how it might turn out?
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What... and put all those lawyers out of work?
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Remark from a Patent Examiner
I just would like to say a few things. I used to be a software engineer of a major defense company out west. I applied for the patent examiner job just for the heck of it thinking it would be less stress than my other job. Its horrible actually. I studied electrical engineering in college and have hardware experience and they put me in computer networking with routers where I have absolutely no experience. I think some of the problem is they have terrible mismatching as with my case. Then I have a horrific boss that doesn't have a clue about this technology or doing searches, he's from chemical engineering. I think the PTO is on drugs. When I asked if I could possibly change they bluntly said no. That they had to fill vacancies. This guy actually became a primary examiner. I feel like I made a horrible career move. I'm planning on going to law school in 2 years because the PTO will pay for it just to get the hell out of here. Another thing they put you in training now for 8 months and its grueling training. You have to sit through lectures for 5 hours then take an online test and pass over 70%. Its ridiculous. Then we have to take a patent bar exam after the 8 months and pass 70% or better or we're out of a job.
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Re: Remark from a Patent Examiner
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