Patent Office Back To Approving Pretty Much Anything
from the you-get-a-patent!-you-get-a-patent!-you-get-a-patent! dept
In the late '90s and early '00s, the US Patent Office saw a massive jump in patent grants -- including tons of really, really bad patents, that have been tied up in huge, expensive lawsuits for years, wasting tons of judicial time and (more importantly) wasting a ridiculous amount of resources that could have (and should have) been going to actual innovation. Some of the research into what was going on showed that the incentive structure at the patent office was totally screwed up. Basically, the incentive was "when in doubt, approve." Why? Because patent examiners were judged on how efficient they were -- meaning how many patents they were able to complete their analysis of in the short amount of time they had. So here's the problem: if you approve a patent, you're done. If you reject a patent, the inventor (well, the lawyers) get an unlimited number of times to change the examiners mind, resubmitting modified applications. In other words, they can bury patent examiners in paperwork, dragging down their efficiency numbers. This isn't to imply that any patent examiner purposely decides to approve junk patents, but that it's impossible to ignore the incentive problem here.Combine that with some ridiculously bad court rulings, that made things (software, business methods) that people previously considered unpatentable "fair game," along with some insanely large rewards in patent infringement lawsuits, and you had a recipe for disaster. Multiple studies showed that the cost of legal fights over patents greatly outweighed the actual value of those patents. And it was becoming a dangerous snowball: the more bad patents approved, the more bad patent lawsuits, the more bad patents filed, etc. What was interesting was that around 2004, as the debate on this started getting so much attention, the USPTO realized it had a problem and started adjusting things so that incentives were a bit more aligned. And, lo and behold, a lot more patents started getting rejected, and the approval rate went down. Many patent system supporters chided those of us who complained about the incentive structure by saying "see? everything's fine now, since the patent office knows to reject bad patents."
Not so fast.
Last year, the new bosses at the patent office decided that the number one problem was "backlog." No doubt about it, there is a huge backlog and the time it takes to get a patent is very, very long. But rather than realize that the way to decrease the backlog is to reject all bad patents (thus making it less lucrative to file bad patent applications), it appears to have gone back to the old system: implicitly setting up the system so that "when in doubt, approve," is the norm -- just to get through the backlog.
The numbers don't lie, and the always excellent PatentlyO blog has the numbers and the graphs to show that we haven't just increased the rate of patent approvals, we've shot way up, beyond anything seen previously -- making it look like the "correction" from the past few years was just an anomaly. Not only that, but the rate of patent approvals on a monthly basis seems to be increasing, which doesn't bode well for the future either:
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When you say "back to" approving, you mean there was a recent time they weren't doing this?
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Well, that's what supporters of the system (including the other AC in this thread who is, again, defending the USPTO)had said the dip in approvals meant over the past few years.
Funny how he used to use that data to support his arguments, but now says it's meaningless.
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1. I am not "defending" the USPTO. I am noting that the data noted on Patently-O is incomplete.
2. I am defending the examining corps against those who seem want to slam its members as a whole for incompetency. This is simply untrue.
3. I have never used such data to support my comments here. Why you persist in making comments such as this eludes me. You have a deep seated antipathy towards patents and other forms of so-called IP. I understand your reasons. If I happen to make a comment regarding one or more of your reasons, my intent is to try and establish the factual basis for such comments. For example, I have never taken a position on whether or not an issued patent is "new, useful and nonobvious". To say by the waving of hands "Look was the USPTO did. It issued yet another bad, blatantly obvious patent." lacks any substantive basis without having carefully reviewed the facts in evidence.
Yet another example are broad declarations that a patent has essentially locked up the pursuit or research in particular areas of technology. Claims count, and such declarations without having read and understanding the actual scope of such claims is once again the expression of an opinion without any then existing basis in fact.
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He probably has a bunch of patents and since he equates patent acquisition with innovation, by his definition, the answer is yes. By any sensible definition the answer is no.
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"Innovation" as used here seems to mean one's taking an idea of some sort, giving it form of some sort, and then moving it out into the marketplace in the form of goods or services or both. The idea need not be of a character that could at some point in time be sufficiently defined that a patent could eventually be secured for it. E.g., the "Pet Rock", the services provided by companies such as the principals on this site, etc.
"Invention" is quite another thing. It is taking what is known as a "conception" and then proceeding to the point that the invention is "reduced to practice". It does not involve the subsequent steps of things such as productization, tooling development, manufacturing or other process development, marketing, distribution, etc., steps that are subsequently undertaken if one wants to take an invention from the lab to the marketplace.
These are the general distinctions I draw between the two terms, and comments I may happen to make are with these distinctions in mind.
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Kudos
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Am I a lawyer? Yes. How is it I feel comfortable working in a technical world? My pre-law background includes undergraduate and graduate work in general engineering disciplines, with particular emphasis in aero engineeting, and within the aviation industry. My post-law background includes constant technical liaison with engineers and scientists over a wide spectrum of technical disciplines, including, among others, imaging technologies, semiconductor products, chemical process, aircraft design telecommunications, software development, etc.
Simply put, I consider that I ceased to be an engineer the day I began my pursuit of a law degree, but that I have used my background on a daily basis to effectively communicate and work with those who have continued to work in engineering and scientific disciplines. It is a sad fact of life, but it is my experience that within large, technology driven companies only a very few lawyers can enter into business discussions with a room full of technical personnel and actually know what they are talking about. How can you communicate effectively with the technical side of the house when the most technical word you have in your vocabulary is "widget"?
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Which is exactly why lawyers shouldn't be allowed to destroy technology with patents.
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Unfortunately, it is not a prerequisite for being hired to provide business counsel within a technology-driven company.
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Then why even bother bringing up the data, the same data that you now deem less important, if it's not to support any position?
"I am noting that the data noted on Patently-O is incomplete."
The USPTO is to blame for that, and to the extent that such incomplete data is significant then perhaps the lack of transparency is another flaw in our patent system, one deserving of criticism.
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Yeah, plus rushing through the approval process makes it more likely that duplicate patents will get approved and duplicate patent submissions just add more backlog.
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So the fact that the patent office approves a patent for swinging sideways on a swing, having your pet chase a laser pointer for exercise, or (in Australia) the wheel is meaningless without knowing what patents they rejected?
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The answer is "Of course not."
For some reason many people here are inclined to indict the system, using as one basis the belief that examiners at the USPTO are basically fools. They could not be more wrong. In any large organization there are individuals whose performance is less than stellar/exemplary. The USPTO is no different. However, such individuals make up only a very small minority.
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Anyone with skill and potential in field X will be innovating at a company in field X.
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So, then, are you arguing that those who innovate have no skill or potential? What, is it only the lawyers who have skill and potential? That sounds rather condescending.
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Using just one example, even before Bell Labs made its announcement back around 1948 that it had just come up with a new device that we all now recognize as a "transistor", applications for this new device were already on file and being reviewed by the examining corps at the USPTO.
The point to be made is that one should not dismiss the level of technical expertise of persons within the USPTO just because every now an then some person comes up with a silly invention that for reasons unknown they decide to patent. While these really silly things result in a lot of flack being directed at the USPTO, that flack in large measure is unwarranted when it is generalized and asserted to apply across the board.
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And had already been invented (and published) in Russia many years earlier. Nice example there.
Abolish patents.
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"Bell Lab attorneys soon discovered that Shockley's field effect principle had been anticipated and patented in 1930 by Julius Lilienfeld"
In other words, no one bothered to continue to work on the problem UNTIL after the patent expired. Typical example of how patents only hinder innovation. Those who originally got the patent neglected it and no one else was allowed to work on it until after the original patent expired.
Chances are, if it weren't for the original patent, this thing would have been solved long before as others wouldn't be afraid to work on it in fear of infringement. More examples of why patents need to go away.
http://www.economicexpert.com/a/William:Shockley.html
http://www.techdirt.com/article.ph p?sid=20100107%2F0517167656&threaded=true&sp=1#comments
What patents often end up doing is locking up everyone else from innovating until the patent expires by taking away much of their incentive to innovate being that someone else will simply have a monopoly over the profits.
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(replied from)
that, upon someone clicking, it bounces the screen to the post that the response is a response to. Then, on the parent post there can be a button (1, 2, 3, 4, 5) that, upon clicking, jumps you to those responses.
So one intermediate post can be like this
(reply to this) (link to this) (view in thread) (parent) (children 1, 2, 3, 4, 5)
or (reply to this) (link to this) (view in thread) (parent) (child)
and all of the above are hyperlinks either to the parent or child post/children posts.
This idea is non patentable.
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https://www.patentfreedom.com/research.html
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In other words, suggestions that the USPTO is an "approval rubber stamp" are simply wrong.
Once a patent has issued, this does not mean that the patent will remain in full force throughout the term currently specified as 20 years from the date the application is initially filed. This is due to the fact that over the term of the patent maintenance fees for keeping the patent in force must be paid. These fees are assessed three times based upon a statutory schedule, and the fees escalate with each subsequent assessment. What many persons are seemingly unaware of is that many patents are abandoned when the first fee is due, even more when the second is due, and still more when the third fee is due. By the time the second and third fees roll around most patents are abandoned. As a general rule, only patents of particular interest and importance to a patentee remain in force for the full term.
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There is, unfortunately, no magic bullet by which all prior art is immediately brought to the fore. Those who prosecute applications on behalf of inventor would just as much as anyone else like to have such a bullet. No one wants to work on a project using anything less than the best information available.
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Yet another reason to abolish patents.
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Irrelevant, bad patents are clearly getting approved regardless.
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Unfortunately, there are people / companies out there now that are buying up these bad patents and sending threat letters looking for settlement. The patent thickets required to produce electronics these days are costing us lots of money and lots of lost new products.
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Fixed
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This would mean more money for the patent office to hire more staff and in turn process patents faster.
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Trying to use the USPTO website.
http://img6.imageshack.us/img6/1149/usptocapacityissue.jpg
I don't understand why this is. But something is wrong when a court can prove a patent worth millions of dollars, yet the USPTO administrator can't
1.) Maintain 99.9999% online time
2.) Have the in-house expertise to approve legitimate patents
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I'm trying to use the patent search right and...
(Graphic) http://bit.ly/95HD2N
I don't understand why this is. But something is wrong when a court can prove a patent worth millions or even billions of dollars, yet the USPTO administrators can't:
1.) Maintain at least an 97% data availability and accessibility
2.) Maintain in-house expertise necessary to approve legitimate invention claims,
it can affect confidence in the entire system.
Point being is if a new claim can't be researched to determine it's originality, system issues may be used to call into question the legitimacy of the system as a whole.
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A summary of what such a patent comprises can be found at:
http://en.wikipedia.org/wiki/Submarine_patent
The types of patents you usually read about here are not submarines, but patents that issued previously and just now being asserted against others.
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No, that is not the type of patents I am talking about. Stop making silly assumptions.
see
http://www.techdirt.com/articles/20100625/2351149966.shtml
http://www.techdirt .com/articles/20100617/0149589858.shtml
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http://www.techdirt.com/articles/20090729/1129435699.shtml
and just search submarine patents and all sorts of examples will come up.
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So then you agree that all such patents should be negated because they do nothing to promote the progress. That way if someone else wants to bring it to market they can, especially since that someone else is likely to be unaware that the patent even exists when they want to bring the product to market (because they came across a use) and hence that person will not likely benefit from anyone owning a patent on it and so the patent does nothing to promote the progress. If it doesn't make it to product it's a bad patent. It's a waste of money to acquire (money that can go into innovation) and companies often acquire it simply to have a larger patent portfolio just to patent troll or to prevent competitors from entering the market or for defensive purposes, none of which promote the progress.
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So then you must be psychic because you somehow know the types of patents that I usually discuss. If you meant you as in the plural, that certainly is not true here on techdirt. I've read this blog long enough, I read the comments, what you are saying is not true neither here nor on many other blogs that discuss patents.
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When we discuss submarine patents here on techdirt, it is not the case that we are usually just referring to patents that were previously issued and are just now being asserted. Provide an example.
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IOW, this is a false statement. I read this blog long enough to know, this is not the case. Not usually, hardly ever. Find me an example where techdirt (and I don't mean some comment) ever does this.
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If Nathan Myhrvold's suggesting creation of a patent-backed security...
In the conversation Nathan was suggesting that companies look to expanding their patent portfolio. Basically, he seemed to be suggesting creation of a new US financial bubble based on securitization of a patent portfolio.
Considering how things panned out with Real Property and mortgage-backed securities, I am worried about securities and bonds backed by Intellectual Property. The USPTO would seriously have to to re-evaluate it's role in such a business climate.
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Re: If Nathan Myhrvold's suggesting creation of a patent-backed security...
Well, at this time, there are massive volumes of bogus/redundant patents being amassed in Asia, presumably, based on the infallible tolling model established by those firms... These portfolio companies will likely come out of China, and they're intent is to use the TRIPS agreement, IP Alliance AKA: "Import Banning" via the (WIPO) to extort huge money out of innovative Businesses. Unlike other companies here in the US they have no incentive to not sue... so that should be interesting. The same lobbies that ordered up international IP enforcement, suddenly find themselves on the receiving end. That'll be that.
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A hidden jem
Maybe that invention from the 1990s doesn't really count.
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Re: A hidden jem
This could be a patent application for app-based network selection. It would probably be used in a non-network neutral environment and run counter of a wireless network neutrality strategy because it varies network selection, and data pricing on a per-application basis.
Interesting.
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This is not a set up, but just a question made out of curiosity. The tendency is to pounce on many applications and patents by saying "How could this be? It's so obvious." Many times, however, upon closer reading details start to emerge that were not fully appreciated at the outset.
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No, this is hardly ever the case.
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Also, when you say
"Many times, however, upon closer reading details start to emerge that were not fully appreciated at the outset"
That maybe true in your experience whereby details that you previously did not fully appreciate from the outset start to emerge but that maybe not true for others. The fact that some detail pops up that you were personally unaware of that in your personal opinion makes the patent more valid does not in any way make the patent anymore valid.
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http://www.google.com/patents/about?id=PV8nAAAAEBAJ&dq=Holsztynski
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Read the data. Note the read value. Read it again. Note the read value. Read it a third time. Note the read value. If two times are consistent and the third time is different assume the two consistent times is the value.
So if you read 1 twice and 0 the third time, assume it's a 1.
Or you can read it 100 times and take a statistic.
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Which as you point out works to the advantage of the patent examiners as well.
Basically you have a vicious cycle where the patent filers are awarded increasingly ludicrous patents which causes them to file even more while at the same time you have patent examiniers with their "when in doubt, approve" mentality getting awarded for granting increasingly ludicrous patents. They are feeding each other and leaving consumers and actual innovators to pick up the check.
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Brains
The "brains" aren't the ones running the place. They're actually looked down upon by the politico bureaucrats who decide these things.
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Consider this...
Far too often, examiners reject an application quickly, for no apparent reason. Presumably the huge workload and the incentive system give them an incentive to make a quick decision, whether it's right or wrong, approve or reject. And then they typically stick to their decision, regardless of the facts.
Limiting applicants' ability to appeal bad rejections won't help anything.
I'm an engineer, innovator and inventor, with lots of patent activity. I speak from that experience.
If you want to fix the system, find a good way to give inventors an incentive NOT to file frivolous applications, including a way to make sure that the judgment of frivolous or good is itself a robust judgment.
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Cancer Treatment duplicate patents
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Re: Cancer Treatment duplicate patents
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Patent Abuse
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Re: Patent Abuse
They came up with "copyright" for that.
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Masnik can you stop ?
Please shut up all of you for Christ sake
No more comments pleeeeeeeeazzzzze
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Patents
What would you do? Try to get fired? Quit? How long would it take before someone in that position started doing destructive things (and the present system IS destructive, no doubt about it!)?
The real problem is two problems:
1. Making a public service self-funding, and
2. The "board" (Congress) belonging to big business.
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USPTO tougher than you think
http://ipwatchdog.com/2010/08/16/reducing-patent-backlog-prosecution-costs-using-pair-data/id=12 108/
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