Patent Examiners Still Don't Scale
from the rethinking-the-system dept
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.Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
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How long til America crumbles
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The problem is the CAFC not the USPTO
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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Re: The problem is the CAFC not the USPTO
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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Re: Re: The problem is the CAFC not the USPTO
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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Pay is also an issue
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Patent Examiners, IP Attorney's and the Money Trap
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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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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Steve Charles Article
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To Steve Charles
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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And I suppose you just want to acquire a Patent for the good of mankind right?
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