Why Do We Assume Patents Are Valid When Patent Office's Own Numbers Show They Get Things Wrong All The Time?
from the simple-questions dept
One of the bizarre things about the patent system is the "presumption of validity," in which a patent officially has to be presumed valid. Conceptually, this makes very little sense. Patents grant a pretty broad monopoly on "inventions" for an extended period of time... based entirely on approximately 18 hours that a patent examiner has to spend looking over the thing. Do we really think that a patent examiner gets things right most of the time? It seems that even the US Patent Office's own data shows that's simply not true. A friend pointed me to the USPTO's recently released data concerning re-exams (pdf and embedded below), which demonstrates in great detail why patents shouldn't be presumed valid. Basically, the data suggests that an awful lot of patents were handled poorly.The document notes that 92% of re-exam requests are granted -- meaning that nearly all re-examination requests lead to a re-examination by the Patent Office. So, if most patents were well constructed in the first place, you would imagine that most of them would come through the re-examination process unscathed with no changes, right? Only if patent examiners were really bad at their jobs would a large percentage of patents need to be changed or rejected completely on re-exam. Given the "presumption of validity" that grants a monopoly, and the massive dollar amounts that patents sell for and are able to extract in settlements, you'd think that re-examined patents must normally confirm the original diagnosis. Hell, given that information, I'd hope that at least around 95% of patents, having passed the approval process, would be solid enough to survive the re-exam process untouched.
If the number was below 90%, I'd think the system was in trouble and needed some fixing. If it was below 70%, I'd think that we should be declaring the system a failure. If it was below 50%, I'd be questioning the entire basis of the patent system. So what is it?
Would you believe that only 22% of re-examined patents have all claims confirmed? 22%! That means that 78% of all patents that are granted a re-exam had serious problems with their original claims -- and remember, 92% of re-exam requests are granted. All these patents were initially approved and enjoyed the presumption of validity, which would may have cost companies millions (or more). This isn't just a failing grade. This is an epic disaster. It's true that 67% of the re-examined patents still are allowed with "claim changes", and only 11% are completely rejected, but those numbers are little comfort when we're told that we need to presume all of the claims in all patents are perfectly valid.
Now, some might claim that this number is perfectly fine, because only bad patents get re-exam requests. In fact, you could argue that perhaps these numbers show the system is working in that bad patents get re-exam requests and good patents remain valid. But there's little to no evidence to support that. Already, those who dislike patent re-exams are claiming that patent re-exams are abused with too many good patents getting re-examined. So it certainly appears that all sorts of patents get re-examined... and a very large percentage of them appear to turn out to have been mistakenly granted.
This highlights, in pretty stark contrast, just how broken and completely arbitrary the system is. For a system like this to be valid, it should be formalized and repeatable. It needs to be based on objective information, not the random subjective opinions of a particular examiner. Yet the data suggests that's exactly what's happening, meaning that we're handing out hundreds of thousands of monopolies based on the mere whims of patent examiners, who haven't been shown to be even remotely consistent, and who have very little time to actually examine what it is they're granting monopolies over.
How does anyone consider that to be a reasonable system?
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And https://www.techdirt.com/articles/20120818/01171420087/funniestmost-insightful-comments-week-techdir t.shtml#c1210
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And does that 32% in litigation refer to patents currently being used to sue someone?
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This patent -- the paragon of invention and the patent monopoly -- was subsequently ruled invalid on October 8, 1883.
Perhaps the numbers have changed over time, but the failure of the US Patent Office is unremitting.
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Re: Re:
HAHAHAHAHAHAHAAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAH
*takes deep breath*
HAHAAHAHAHAHAHAHAHAHAHAHHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHHA HAHAHAHAHA
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If not, perhaps the lack of such figures is, itself, a criticism of the system. Part of the alleged purpose of patents are about disclosure and disclosing such data is an important tool for the public to better determine the efficiently and effectiveness of the patent system in serving the public interest and to determine what should be done to make it more efficient and effective.
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I might be nitpicking, but
"That means that at least 78% of all patents that are granted a re-exam had serious problems with their original claims" (bold text is my edit)
The reasoning is that in the 8% where a reexamining request isn't granted, there's still some who could have false claims. I mean if they fail 4 times out of five, we can't assume the reexamining procedure is always spot on 100% accurate either ...
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R&D
Once I was asked to review one of those documents and it read like a Star Trek requirements doc. written by a 5 year old. The guy had no clue about computers or the technology. But funny enough we were still granted our credit.
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Before you had to show a prototype and hire at least an artist to produce the drawings for the application today you don't need either, you don't need to show some working thing you just need to claim something and it gets approved.
A think the world forgot what monopolies mean to everyone.
The new developing countries will be the ex-developed ones.
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yes, there is, you said so yourself !!!
It's true that 67% of the re-examined patents still are allowed with "claim changes", and only 11% are completely rejected,
so you managed to work out the patent system is like most every other system in the world, it is a multi-iteration process. That results in the vast majority of cases in a successful patent application... you said so yourself..
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It surely can't be contested that a system where patents are more assuredly granted would be better. Patents would be stronger and so legal processes would be shorter.
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11% of 92% of HOW MANY?
He whines about the numbers, but consciously chooses to omit the numbers that would give this piece any perspective.
And God forbid he actually make a real argument about why or why not there should be a presumption of validity.
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that would be the majority of reasons why patents require re-submission. It's because of technical accuracy, and legal correctness.
it is far too simplistic to state that a patent is either "good" or "bad", because of some requirement for it to be formatted and presented in a very specific manner.
you of all people masnick should realise you are doing a major disservice to your readers by prejudging if a patent is "good" or "bad" and making it sould that simplistic.. I mean really !!! is that the level of understanding you wish to convey ?
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Serious problems ???? that is an assumption by you right, there is nothing in the data you presented that indicates that a patent that requires re-examination has SERIOUS PROBLEMS.. so again, why did you say that ?
the evidence does not support that claim.
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No matter how hard you wish them to be good, overall they are indeed bad for us - the people.
Here are just a few of many references:
Business Costs Quadruple on Patent-Owner Claims
http://www.bloomberg.com/news/2012-06-26/business-costs-quadruple-on-patent-owner-claims-bgo v-barometer.html
Why There Are Too Many Patents in America
http://www.theatlantic.com/business/archive/2012/07/why-there-are-too-many-patents-in-ameri ca/259725/
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Here's an idea...
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A Bit of Reality
First, of the 12,258 reexam requests 32% were initiated by the owner of the patent. The reexamination process is a precursor to many licensing agreements as well as enforcement activities. If a patent holder has a patent that is for technology viewed as really seminal or that is essential to the a standard, it is not uncommon to require a reexamination as part of that process to minimize risk.
Reexaminations are not the random subjective opinions of a particular examiner. A reexamination is handled by a team of three senior examiners including a supervisory examiners. Generally these are the best examiners on the subject matter.
The reexaminations initiated by third parties - other members of the public - are a by product of patent litigations. One of the tactics used during litigation is to request a reexamination. Since there are often multiple patents that are part of a suit you are going to see lots of reexam requests. While the report shows that 32% of the reexams were associated with litigations it doesn't reflect reexaminations requested as a precursor to litigation that may be settled outside of the purview of USPTO. Patents involved in law suits are generally the ones someone thinks are high value. Successfully reexamined patents are more valuable.
4.1 million patents issued from 1981-2011. There have probably been over 100,000 issued already this year. In the same period there were 12,258 reexaminations. This means that .002% of all patents being reexamined.
The average US patent has 20 claims that means that last year there were 4.9 million claims. Even if you use 10 claims per patent as the average since 1981 that means that the reexamination impacted roughly 82,000 claims out of 41 million claims.
And finally, every application must include a substantial new question of patentability. It's not like you send a patent number and a check and the examiners are off to the races. the SNQ has to document the justification for a reexamination.
While I'm not always a fan of USPTO, I am missing your point.
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Failure of your logic,... Re: A Bit of Reality
Easily, 90% of patents do not result in a successfully marketed product. That takes down the numbers right there... Nobody starting a reexamination in order to prove to potential licensees that the patent is valid... Secondly, the law of large numbers dictates that the reexamination process is simply just a representative sample of the issued patents. That means that the reexamination process does not reveal that only 0.002% of patents are invalid, but that the representative percentages of failure may safely be applied to the entire block of issued patents...
Your argument is a slight of hand /smoke and mirrors argument. You are trying to misinterpret what that statistical data proves, in order to perpetuate a logical fiction.
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Re: Failure of your logic,... Re: A Bit of Reality
Mike Masnick in a nutshell. Bravo.
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Why do we assume all DMCA notices are valid when a variety of numbers show copyright holders get things wrong all the time?
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Demagoguery at its best, as always, Mike.
he document notes that 92% of re-exam requests are granted -- meaning that nearly all re-examination requests lead to a re-examination by the Patent Office.
And what percentage of all the patents issued have requests put in for their reexamination? Why don't you tell us that number so we can put this into perspective?
It's quite possible that 99.99999999999999999% of all patents never have a reexamination request and are perfectly constructed. I'm not saying that is the case, I'm only saying that that is possible, given the information (or lack thereof) that you have provided.
That 92% number, and all of your other numbers, are meaningless without some context. If there's millions of valid patents, and only a handful of ones that are requested to be reexamined, and only a handful of those are actually invalid, then this might be a situation where you're pointing to a 0.0000000000000000000000000001 error rate and whining about it.
I bet you have the numbers that would put this into perspective, but consciously chose not to mention them so as to give your patent FUD piece more gravitas. Am I right? God forbid you were *ever* honest about anything.
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Also, it states that 32% were initiated by the patent owner. That means 32% were by people who thought that their patent was too narrow and wanted broader claims for more protection - it's likely that more of the rejections derive from these cases.
The writer here is either incapable of processing simple numbers or using the worst kind of arguments (like that anti-abortion GOP rep who claimed women don't get pregnant from "legitimate" rape).
Patents have their issues but this article is just pure fail in a bottle.
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I don't believe you understand the power of that small sampling and how damaging it is patent claims, if 99% of all patents where good the chances of finding bad patents should be minimal as in 1% or less, instead you get from a 0.3% a rate of more than half of all re-exam applications accepted because of they are bad in some way, that is not good at all.
The accuser(you) are probably the one that can't parse numbers correctly.
The article correctly points out of the absurd high number of bad patents found in a sample size that should contain none.
If what you said was true, finding bad patents should be like finding oil or gold, difficult, instead apparently if you strike anywhere in the patents accepted you can find 50% or more bad patents.
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http://www.uspto.gov/patents/stats/EP_quarterly_report_June_30_2012.pdf
I invite you to come with those numbers to counter what Mike said. We'll gladly discuss with you about your numbers. And please avoid ad homs, you won't be taken seriously if you use them ;)
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First, patents issue on the basis of the "evidence" presented during the prosecution of the original application. If after issue a previously unknown written reference comes to the attention of either the patentee or a third party, a reexamination can be requested to determine if the new reference is, in fact, relevant and pertinent to the subject matter set forth in one or more claims of the patent.
Requests for reexamination are in large measure granted merely out of an abundance of caution. Just because a reexamination request is granted does not mean that there is a defect in one or more of the claims. It only means that another look as the claims appears at first blush to be warranted.
Now, much is being made of the large percentage of reexamination proceedings where claims are changed. To the uninitiated this may suggest that many, if not all, of the claims were defective and had to be changed. This is not at all true in many instances. Sometimes only a single claim is involved, and if the reference is in fact relevant the claim may need to be amended to address the newly discovered evidence. To throw 92% around without making note of this is terribly misleading.
Clearly, Mr. Masnick is using these figures to craft an argument that the initial examination process is broken. If he hopes to succeed in crafting such an argument, then it beehoves him to drill down into the numbers before an honest and complete assessment can be made. Experience informs me that what seems to be the case based upon raw numbers does not stand up to a truly detailed analysis.
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Techdirt is just mindless IP bashing from the biggest IP whiner on the planet. And whatever you do, don't expect him to come into the comments to acknowledge your points. He's busy writing the next baseless attack on IP. It's all he knows. To say that a piece Mike wrote about IP is lacking in substance is equivalent to noting that the sky is blue.
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Just 78% of the time, apparently.
It only means that another look as the claims appears at first blush to be warranted.
Apparently 92% of the time, a second look is warranted at first blush. If that's not problematic to you, you don't know what the word problematic means.
Now, much is being made of the large percentage of reexamination proceedings where claims are changed. To the uninitiated this may suggest that many, if not all, of the claims were defective and had to be changed.
No, because I quite clearly stated that only 11% had all claims defective.
Sometimes only a single claim is involved, and if the reference is in fact relevant the claim may need to be amended to address the newly discovered evidence.
Yes, but as I pointed out, thanks to the presumption of validity, even that one falsely granted claim can be used to destroy businesses. Having just one falsely granted claim can wreak havoc. That seems like a problem.
To throw 92% around without making note of this is terribly misleading.
I did make note of it.
Do you ever tire of being wrong around here? Of course not, because every time I point it out, you fail to admit and apologize. It's kind of shameful how often you seem to attack me based on your misreading of what was written. Have you discovered that Bret Easton Ellis has fans yet?
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"..falsely granted claims..."
Please excuse me, but patents are issued based upon "evidence". If previously unknown "evidence" comes to the fore, then a re-look at the patent may be appropriate. To say a claim was falsely granted demands support from you far more detailed that the mere discovery of previously unknown evidence that may or may not prove relevant.
As for your constant refrain about being "wrong", I can only respond by saying that even when proof traversing your assertion is provided your keyboard suddenly goes into "sleep mode".
Once and for all, I commented that it is difficult to see screen writers as having a fan base. This is not the same as saying they do not. You, on the other hand, made the comment that they have a somewhat rabid fan base. My comment was not a firm and definitive statement of fact. Yours was, which, of course, may or may not be correct since I do not have factual data in hand by which to measure its accuracy.
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I wouldn't know, but I will properly assume that the reference you are stating here refers to yourself.
Please excuse me, but patents are issued based upon "evidence". If previously unknown "evidence" comes to the fore, then a re-look at the patent may be appropriate. To say a claim was falsely granted demands support from you far more detailed that the mere discovery of previously unknown evidence that may or may not prove relevant.
If the claims are changed or rejected, and were previously assumed valid, then they were falsely granted -- giving a monopoly to a party that does not deserve one, and allowing them to wreak havoc on innovation.
If you cared about innovation, rather than your paycheck, you'd recognize this. But since you're a patent lawyer, we know which one you care about.
As for your constant refrain about being "wrong", I can only respond by saying that even when proof traversing your assertion is provided your keyboard suddenly goes into "sleep mode".
You made multiple significant factually incorrect statements and have done so for a while. I will note, amusingly, that you fail to respond to the factual errors I brought up in this thread.
Once and for all, I commented that it is difficult to see screen writers as having a fan base. This is not the same as saying they do not. You, on the other hand, made the comment that they have a somewhat rabid fan base. My comment was not a firm and definitive statement of fact. Yours was, which, of course, may or may not be correct since I do not have factual data in hand by which to measure its accuracy.
Yes, let's be clear. On a post about Bret Easton Ellis raising a shit ton of money on Kickstarter, you directly claimed that you did not see how he could have fans. In response, we pointed out that he has a TON of fans, and asked you to admit that you were speaking out of ignorance (see the top of this comment). Then you started doing a head fake where you refused to admit that on a post about Bret Easton Ellis raising money that you said that you didn't believe someone like him could have fans. You then doubled down and insisted that the project would likely fail because we didn't know what an executive producer was. Then we pointed out that the project does have an experience exec producer... and you again pretended to have said something entirely different.
You keep making factually incorrect statements because you speak from ignorance and a weird dislike of me personally. It's sad.
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But you should know that patents where only granted not so long ago to people able to prove that they were making something, they had to submit a prototype of some kind demonstrating how it worked, that is gone now and that is probably why so many bad patents pass through.
The vagaries of any written language are no substitute for the physical embodiment of something that could be compared and validated against the language used to describe it.
That was not the only change that made the quality of patent applications go down and the number of bad ones soar.
Patents are a joke, if you doubt you can just search for "funny patents" and see it for yourself.
Cross USB drive
United States Patent # D533179
http://marc-apotd.blogspot.com/2012/05/patenting-and-creative-freedom.html
Patent Acquisition and Assertion by a (Non-Inventor) First Party Against a Second Party (aka patent trolling patent)
United States Patent Application 20080270152
http://www.freepatentsonline.com/y2008/0270152.html
Animal Toy - United States Patent #6360693
http://www.ipwatchdog.com/2010/10/06/animal-toy-patent/id=12711/
The guy patented a stick. Now that is novel right?
There are more crazy ones.
http://www.freepatentsonline.com/crazy.html
The patent office is becoming a place of joy, for the people looking for laughs.
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Monopolies are deadly to trade, do these people don't take commerce seriously?
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There go search the patents granted this month and see for yourself, just doing a little quick search you can spot the probable candidates for funny patents of the month and every month is the same.
Most likely to be BS patents this month.
8222152 Method for fabricating hole pattern
8221217 Gaming system and method of gaming
8225305 Delivering software product updates via a response file
8225323 Control device and control method for reduced power consumption in network device
8221244 Table with sensors and smart card holder for automated gaming system and gaming cards
8225355 Program search apparatus and program search method for same (Somebody patented Google again)
8224025 Group tracking in motion capture
8221297 Storage system for tool holders
8221370 Personal care article with substrate surface topography for evoking a neurosensory skin response
8224161 After-recording apparatus
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I'm staggered by the big miss from everyone
the number of patents filed and the number actually issued.
Millions filed and millions issued. This is a demonstration of the true ridiculousness of the patent system. If the patent system was truly working well, a reasonable number issued over decades for truly outstanding insight into new functionality would be in the low thousands per decade.
If we were issuing for outstanding insight in the millions, my personal expectation is that we should be out amongst the stars colonizing new worlds, we should have no hunger and no disease anywhere on the planet, we should have total control over the climate, we should have completely restored the ecological balance to the planet.
Otherwise, the reality would be that the patents issued are for unimaginative additions to our knowledge and are a farce. Oh hang on, that what is happening under the auspices of the legal profession writing these patent applications. Instead of advancing knowledge for all, we are just contributing to the retirement funds of that class of people.
regards to all
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Re: I'm staggered by the big miss from everyone
Like Mush-mind-nik and many others a patent is confused with its full implementation. That has never been true.
Under the latest law America Invents Act with first to file even less so.
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Numbers
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Why is the patent office granting a patent for a ring?
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For the substarte surface topography for evoking a neurosensory skin response, that is fancy language to describe tactile sensation that can be produced by any object you touch is it not?
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How is that patentable?
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It's not really a presumption
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You mentioned the other day that you have been in Florida several times. Perhaps next time you come over this way you can give me a call so we can finally meet and have a substantive discussion versus back and forth comments using a keyboard. My home is about 5 miles as the crow flies north of the Disney property.
I have always found the former to be much more constructive and less likely to lead to misunderstandings.
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wow
And Anon Coward, you are also a moron. A patent # that starts with a "D" is a design patent, not a utility patent. That is not a patent for a ring, but for a design of a ring. If you don't think patents should be granted for designs, take it up with the Supreme Court.
Here's a typical validity scenario. A patent was granted, after four years of prosecution. A year after it was granted, someone found a Master's Thesis written in the UK in the 1970s as prior art. A competitor really wanted the patent to be invalid, and spent a lot of money looking for prior art. In the end, the patent was determined to be valid.
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Re: wow
Close. Mike starts with the conclusion, that patents are the devil and should be exorcised, and then tries to spin the data to fit the conclusion. Hence his incredibly noob article. It's just more backwards thinking from the master demagogue.
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Re: wow
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Re: wow
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Not to mention that he also misunderstands what the purpose of the first examination is.
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The first examination is for what then?
If you are going to grant a monopoly to someone something that is called a "necessary evil" people should make sure it is valid and if they have any doubts should not grant it at all.
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Nobody ever told you this Mike. You are merely told that the claims will enjoy, in a legal setting, a presumption of validity. That presumption can be overcome by clear and convincing evidence under 102/103 or good reasoning (and evidence sometimes) under 101/112.
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Any exclusion mechanism should be used with great care, but in this case all the assumptions made are to make it easy to exclude others not to protect others from exclusion which should be the priority.
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Mike learns what the power of an examiner is. Muahahahahahah.
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An answer
The patent system is necessarily one based on human judgement, and therefore will always be imperfect, and never reproducible.
Other comments:
The number of reexamined patents that have claims rejected is not necessarily evidence of poor initial examination. Rather, it could be due to people picking accurately which patents to make requests on. However, in the case of the reexaminations requested by the patent owners, they presumably want their patents to be valid and think they are valid, so these numbers are more troubling.
The above discussion of the 0.3% number misses the fact that it is not a randomly selected set. (Except, possibly arguably in the owner-requester set as I just mentioned.) It costs money (if I'm not mistaken) and takes time to request a reexamination. So in general it doesn't say much about the general distribution of "bad" patents in the whole.
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Math
According to the document listed as a source on that article, only 12,258 re-examination requests were filed by the USPTO between January 1, 1981 and June 30th of this year. For convenience, I'm going to pretend that these were all during the period described above.
(It should be noted that nearly a third of these requests were made by the owner of the patent, meaning they thought the patent was too weak. However, I'm going to pretend that they were all from third parties.)
Of those requests, 92% were granted, for a total of 10,755 (some have not had a decision made yet.)
Of those, 78% were adjusted. 11% were complete cancellation of the claims, 67% were merely changes.
That 78% makes up 7,090 patents. Pretending these all were completely reversed, were all utility patents and all took place from 1981-2010, this is 0.1844% of all patents. I'd bet that number drops by at least a factor of 100 when you correct for my laziness.
Based on these statistics, I'm much more confident in the USPTO. Thank you for posting this.
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Re: Math
The only issue I have with your commentary is the statement that the owner of the patent thought the patent was too weak. My experience is that the owners request a reexamination as part of a licensing program and a litigation readiness exercise. When you are getting ready to enforce your patent and you can say hey, I'm confident enough in my invention that I had it examined TWICE and both times I got me some good claims. And at least 4 patent examiners evaluated my invention, it's game on.
Others may have a different experience.
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Re: Math
That assumes, completely incorrectly, that any patent not challenged by a re-exam must be good. That's simply false as anyone who actually deals with this stuff would know. Most patents don't ever get used for anything, so there's no issue and they never get asked to be re-examined. But the data we have, on patents that do get looked at a second time, suggests that in a very, very high percentage of cases, original claims were granted in error.
That should scare the living daylights out of you, unless you abuse the system to make money.
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http://www.reddit.com/r/law/comments/yj38o/patent_law_question_why_are_all_patents/
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Presumed Valid or Die
It better help you get those who have decided to copy your idea to pay for the right to license it. The patent better help you in court establish the validity of your new field of endeavor.
Finally if there are to be no patents or patents only for the wealthy (where we are headed) let's get there as soon as possible so we can look for other solutions.
Yes there are other ways to protect "software" ideas, new concepts and other things. One obvious one is to find a country that cares about small inventors and creators and go there.
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more dissembling by Masnick
Have you ever filed, or prosecuted a patent application? Have you ever invented anything, or had to fight off large infringers who ripped you off and thumbed their noses at you saying "so sue us"? All you know about patents is you don't have any.
It’s about property rights. They should not only be for the rich and powerful. Show me a country with weak or ineffective property rights and I’ll show you a weak economy and high unemployment.
Please see http://truereform.piausa.org/default.html for a different/opposing view on patents.
http://docs.piausa.org/
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