Patent Examiners Still Don't Scale

from the rethinking-the-system dept

Tue, Jan 30th 2007 7:17pm — Mike Masnick

For years, many people (especially supporters of the current patent system) have claimed that really all the system needs is to hire a bunch more patent examiners to help deal with the "backlog" of patent applications. They insist that having more patent examiners will help them get through applications more quickly -- but also more thoroughly. It's not at all clear how they go about doing this, but the number of patent examiners is really hiding a bigger issue that we've been trying to highlight for quite some time: patent examiners don't scale. Due to changes in the patent system over the last three decades or so, the system now encourages companies to file as many patent applications as possible, and to overload the system -- and the problem is only going to get worse if politicians succeed in turning our system into a "first to file" program, rather than a "first to invent" one. That's why it's depressing to see the Patent Office still trotting out the same lame claim that all they need to do is hire thousands more patent examiners and everything will be just dandy. The Patent Office wouldn't need to hire so many examiners if they actually put some more serious hurdles (a true obviousness test would be a great start) to obtaining patents, while the courts didn't fall over backwards to give patent holders their every wish in patent infringement suits. The number of patent applications would fall if the system acted as it was supposed to, rather than the joke it's become, where the important thing is to stockpile as many patents as possible in the hopes they might be able to force others to license it, or at least as a defensive mechanism for someone else's bogus patent threats.

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11 Comments

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Shane, 30 Jan 2007 @ 9:01pm

How long til America crumbles
Its obvious the system is breaking down, the courts are bending over backwards because there is Money to be made. Corruption Corruption Corruption
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Joe Smith, 30 Jan 2007 @ 9:38pm

The problem is the CAFC not the USPTO
The root problem is the Court of Appeal for the Federal Circuit which has drifted so far away from any grounding in reality that: their TSM doctrine was characterized by a Supreme Court judge as goobledygook during argument in the KSR Teleflex hearing in November; they have resorted to whining that they have been misunderstood (if Judges on a court of appeal cannot express themselves clearly enough to be understood they should be encourged to pursue other career opportunities better suited to their talents).

The best hope for patent reform is that the Supreme Court administers a good swift kick to the CAFC in the pending KSR v. Teleflex decision.
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- Mike (profile), 30 Jan 2007 @ 10:54pm
  
  Re: The problem is the CAFC not the USPTO
  Joe,
  
  It's true that CAFC is a huge part of the problem, and Teleflex is only one small example of that problem, but CAFC is not the only problem. Hopefully (as we've stated here repeatedly), the SC will knock them back a bit, but that's hardly enough.
  
  There's a fundamental misunderstanding of the purpose of the patent system these days, and it goes well beyond CAFC.
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  - Anonymous Coward, 31 Jan 2007 @ 9:18am
    
    Re: Re: The problem is the CAFC not the USPTO
    There's a fundamental misunderstanding of the purpose of the patent system these days, and it goes well beyond CAFC.
    
    I agree but that misunderstanding is based in large measure on what the CAFC has said about the patent system. A half dozen good decisions at the CAFC could turn the system right around.
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Chris, 31 Jan 2007 @ 5:29am

Pay is also an issue
As a Computer Science graduate, I was offered a job with the USPTO, but the pay was only around $30,000 per year. If I had earned a Master's degree, the pay would have gone up to around $40,000 per year. A PhD would have seen the pay skyrocket to approximately $60,000 per year. In the Washington, D.C. area, $30,000 a year is basically poverty level. You wouldn't even be able to rent a decent home/apartment and pay the rest of your bills with income that low. That was in 2005, but a recent check of the pay scales shows that they are getting a bit more desperate: http://usptocareers.gov/benefits.asp#ri Salaries have been bumped by about $15,000 and they are now offering bonuses, but the pay for a degreed examiner is still far below the average pay of an engineering position. Private sector competition will always win.
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Thomason, 31 Jan 2007 @ 7:33am

I doubt that the retention rate is that high at the USPTO, since it's a stepping-stone sort of job. So, why is it so bad for them to hire more examiners? I don't see a hiring notice as evidence of a conspiracy to issue more bad patents - that's a stretch. In fact, Congress won't authorize money to pay for an adequate examination corps. If I have a super, pioneering invention, why should I have to wait 24 months for an initial exam - when that wait is due in large part to too few examiners?
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Steve Charles, 31 Jul 2008 @ 8:02am

Patent Examiners, IP Attorney's and the Money Trap
As a solo inventor that entered into the patent environment in 2004/2005, I have really learned the game that is played. It's the fact that the only thing that concerns both the IP law firm (to name names-Harness& Dickey, Ryan Massey), and the PTO is money.
First you apply for the patent (after the search of course). Because of the backlog, it takes forever(2 1/2 years in my case). Then comes the the reply back from the examiner. Everything is rejected. According to my attorney and the information I read up on told me that this is normal!!?? The "money pit" pattern starts right from here. Now you have to pay more money because the examiner blew through your patent claims so fast that he pulls the old standard 35 USC SS 103 excuse on you. For the amount of patents they have to go through, they cannot interpret the functionality of your invention, let alone try to compare it to anything remotely close to your idea!
In fact,the examiner used a patent that was 21 years old to compare to mine. I'm not stupid. That was a red flag and that this is just a money game to them. The comparison patent is now "public domain", so he cannot use it for comparison (nice try Andrew).
Now comes the 1st action write up. My attorney wrote, described, and changed things so well that a 3rd grader could interpret and understand my invention, as well as see the uniqueness of it. I think my examiner (Andrew Sutton,I'd really like to dig dirt up on this guy!) might be in 2nd grade, because he reiterated the 35usc code again, as well as the things that were reworded in order to make him understand, he completely ignored them and kept reusing the same terminology from the application write up. I told my attorney that he should be a man, and take offense to the examiners knee jerk reaction to his 1st action write up because it was well written.
I insisted that my attorney contact this patent examiners supervisor (Gary Welch) and have him (Andrew Sutton)dismissed off the case, especially about the examiner using an expired patent as a reference, and I did not want to hear from him until the matter is taken care of. I would abandon the patent before I would pay for a final action because of the serious mistakes on the examiners part. Hell I can buld the thing anyways, I just wanted more insurance!
It's unfortunate that all these silly little games have to be played, but the bottom line is you as the inventor, you're the one in control of your own destiny in this situation. Every action requires a reaction and you have to stick to your guns and believe in what is right for yourself. The patent process is a dismal letdown. These well educated know-it-alls do not have the street sense to comprehend things at a laymens level. Its a disgrace to our american heritage! Thomas Edison would be rolling in his grave if he knew how bad the PTO is being run!
I would like feed back on your experiences as well, so please don't hesitate to email me on this issue.
Thanks for for your time!

Steve Charles
Owner
"Innovative Patent & Product Design"
Email: zz6pxl@aol.com
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Mike, 16 Sep 2008 @ 12:40pm

Talk about making stuff up... Where'd you get the idea that a public domain patent can't be used as prior art? Did you actually READ the law (i.e. 35 USC 103(a) AND all 35 USC 102(a, b, and e))?

Anything that has been done before you is prior art for purposes of both 102 (anticipation, i.e. identical disclosure) and 103 (obviousness). What, you think since Edison's lightbulb patent is expired you can re-patent it yourself?
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hank, 13 Apr 2009 @ 5:47pm

Steve Charles Article
I think that Steve's story is very compelling and deserves kudos for saying it like it is.Don't worry about Mikes comments,he's been soaking in dumb-ass sauce for a little too long. The PTO as a whole sucks. They are nothing but a bunch of corporate rapists with no agenda except their own.
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Rob S, 8 May 2009 @ 1:42pm

To Steve Charles
No offense, but as Mike said, you might want to read up on 35USC. The fact is that the reference is fine as Prior Art under any of those mentioned (with the exception of 102e IF your application and the one used as prior art have ALL the same inventors). At the time that Prior Art was published it became public knowledge and from that date forward precludes anyone from attaining a patent on it's disclosure.

By your reasoning (saying that as soon as Patent Protection ends it is fair game), then what about something that wasn't patented? I mean there can be literature on a device tracing back to the 50s, and you are saying that just because noone felt like filing and paying for the application then it's free to grab. You might also want to check something called Non Patent Literature (NPL). As I said before, things are considered public knowledge from the date they are available to the public. So articles, papers, journals, anything from as far back as an Examiner can find is FAIR GAME. All he has to do is show that it was known (or an obvious variation of what was known) before the filing date (or priority date) of your application.

As Mike said, maybe you should try to patent the light bulb. It seems like you could make a lot of money that way. I mean we all use them.

Rob S
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Rob S, 8 May 2009 @ 4:24pm

"It's the fact that the only thing that concerns both the IP law firm and the PTO is money."

And I suppose you just want to acquire a Patent for the good of mankind right?
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