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USPTO Plans Could Kill Small Business Innovation

Soulskill posted more than 4 years ago | from the method-for-making-things-worse dept.

Patents 175

bizwriter writes "If protecting inventions is at the heart of high tech competitiveness, plans afoot at the US Patent and Trademark Office (USPTO) will critically wound small companies. The agency's notorious 750,000 patent application backlog has long been the subject of heavy criticism. One of the key tools the USPTO wants to use is to raise fees so high as to directly reduce 40 percent of the backlog. That would mean setting filing and maintenance rates so high as to make it economically difficult, if not impossible, for many small companies to adequately protect their innovations, leaving large corporations even more in control of technology than they are now."

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Good. (3, Insightful)

For a Free Internet (1594621) | more than 4 years ago | (#32137996)

One more step on he road to workers power. Capitalism is only producing its own gravediggers. The more giant, centralized the corporate monopolies become, the easier it will be for the Soviets to expropriate them and integrate them into a planned socialist economy. Forward to a workers state!

"Could" is too soft a word (4, Insightful)

Taco Cowboy (5327) | more than 4 years ago | (#32138028)

It isn't "could kill small business", rather, the whole thing has turned into "Designed to kill all innovators that don't have big backers".

It's the system, man.

The elites want total control. The patent system is but a small part of their game plan.

Re:"Could" is too soft a word (1, Insightful)

Jurily (900488) | more than 4 years ago | (#32138090)

The elites want total control. The patent system is but a small part of their game plan.

The more power you have, the less you know about reality: people lie to you to avoid punishment or to gain favors.

There is no plan, just infinite ignorance.

Re:"Could" is too soft a word (1)

Taco Cowboy (5327) | more than 4 years ago | (#32138116)

There is no plan, just infinite ignorance.

How do you know there is no plan?

Re:"Could" is too soft a word (0)

Jurily (900488) | more than 4 years ago | (#32138170)

'"Is," "is." "is" -- the idiocy of the word haunts me. If it were abolished, human thought might begin to make sense. I don't know what anything "is"; I only know how it seems to me at this moment.' -- Robert Anton Wilson

Re:"Could" is too soft a word (0)

Anonymous Coward | more than 4 years ago | (#32138546)

> '"Is," "is." "is" -- the idiocy of the word haunts me. If it were abolished, human thought might begin to make sense. I don't know what anything "is"; I only know how it seems to me at this moment.' -- Robert Anton Wilson

I agree. But we now and then come to the expression "we deem that thing...". For practical uses, in that case, "That thing is..." seems a good substitute.

Maybe you know lojban (I've read it does exactly what you want: no verb "to be")...

http://www.omniglot.com/writing/lojban.htm

http://xkcd.com/191/

Alas, I have my doubts if such a simple tweaking would solve all our misunderstandings. At one time, using a common language (like Esperanto) was hoped to bring peace; sadly, people talking in Esperanto can still fight (but the reasons become more clear, though).

> USPTO Plans Could Kill Small Business Innovation

This is not unintended (I agree with first commenter). We must stop thinking the patent system is what existed 200 years ago.

It's an system to maintain the status quo and increase survival chances of countries and organizations against innovation and change.

If change is deemed good, then patents are (today) evil, by corollary.

Re:"Could" is too soft a word (1)

Hognoxious (631665) | more than 4 years ago | (#32138666)

Esperanto: Latin with all the grammar tooked out.

Or fix it-get rid of software and business patents (5, Insightful)

tomhudson (43916) | more than 4 years ago | (#32138216)

Exactly. doubling the fees won't stop a large business - 10x the fees still won't do anything, since even that represents only a small portion of the cost to them - but to the little guy, it's a knife in the neck.

Easier fix - get rid of software and business method patents. "Oh, but we can't do that - we'd have so little work to do that we'd have to lay off people!"

Re:Or fix it-get rid of software and business pate (3, Informative)

aurispector (530273) | more than 4 years ago | (#32139188)

Considering that small business is the engine of job growth and innovation, this is the dumbest idea to come out of USPTO ever. Imagine the world today if Apple, HP, and Microsoft were all prevented from flourishing. The internet would not exist, mainframes would still be king, silicon valley would not exist. Real innovation almost never comes from existing large companies.

Re:"Could" is too soft a word (4, Insightful)

PopeRatzo (965947) | more than 4 years ago | (#32138254)

It isn't "could kill small business", rather, the whole thing has turned into "Designed to kill all innovators that don't have big backers".

Whoa there, podna,

The current patent fees top out at about $800 with the basic filing fee for small entities being $82 (if you file electronically, which I assume an "innovator" will be able to figure out).

So you're telling me that even if they triple this amount to $246 that it's going to "kill all innovators that don't have big backers"? You're telling me that some "innovator" out there can invent something that's worth protecting but can't scrape together two hundred and fifty bucks? (assuming they triple the fees)

Shit, if all it takes to "kill innovation" or "kill small business" is to set the bar at a couple of hundred dollars, then our system is in bigger trouble than I thought.

Re:"Could" is too soft a word (1)

lastchance_000 (847415) | more than 4 years ago | (#32138536)

If the purpose of the fee hike is to reduce filings, then it stands to reason that they will be too high for someone, otherwise the hikes won't have any effect. And clearly, those affected will be the inventors at the lower end of the economic scale.

Re:"Could" is too soft a word (3, Informative)

DarkKnightRadick (268025) | more than 4 years ago | (#32138550)

The submission clearly states that it wants to raise fees so high as to actually discourage patent applications.

So we're not talking just triple, or quadruple. It could be 10x or even higher.

Re:"Could" is too soft a word (0)

gyrogeerloose (849181) | more than 4 years ago | (#32138584)

You're telling me that some "innovator" out there can invent something that's worth protecting but can't scrape together two hundred and fifty bucks? (assuming they triple the fees)

Whoa, there, cowboy--stop being rational in the face of a great conspiracy theory. You're going to put the tin-foil hat makers out of business.

Re:"Could" is too soft a word (1)

couchslug (175151) | more than 4 years ago | (#32139328)

""Designed to kill all innovators that don't have big backers"."

Linus Torvalds isn't dead, nor is his work.

Stupid system (3, Interesting)

Anonymous Coward | more than 4 years ago | (#32138002)

Why not keep the basic cost the same but increase it by 20% for every additional patent filed in a year?

Re:Stupid system (1)

D'Sphitz (699604) | more than 4 years ago | (#32138024)

because that would make sense

The system ain't stupid (3, Insightful)

Taco Cowboy (5327) | more than 4 years ago | (#32138190)

... as it is designed so that the not-so-wealthy don't get to patent anything.

That poor guy may end up having to sell his invention to the wealthy elites, and the elites can then patent the thing and rake in much much much more $$$ with it.

And btw, it is happening.

Re:Stupid system (1)

CrazyDuke (529195) | more than 4 years ago | (#32138198)

Shell subsidiary companies are a way around any significant additional fees, a la Hollywood Accounting.

Re:Stupid system (4, Insightful)

TheRaven64 (641858) | more than 4 years ago | (#32138310)

If there's nothing wrong with a small company owning a few patents, there's nothing wrong with a large one owning a lot of them. Why not tackle the real problem though? Lots of patents is not necessarily a bad thing, lots of bad patents is the problem. You don't want to discourage filing innovative patents[1], you want to discourage filing junk. Introduce these rules:
  • If a patent is overturned in court, you pay a statutory $10,000 fine, plus the legal fees of the person who sues you.
  • If you are found to have filed the patent in bad faith (i.e. knowing that there was prior art) then this becomes wilful abuse of the patent system and the fine goes up to $100,000.
  • If a patent is found to be invalid, you must refund all license fees collected on it, plus 50%. This is a statutory penalty and may not be disclaimed by contract.
  • Anyone has standing to sue for an invalid patent, but the loser pays the legal fees of both parties.
  • Companies have a one-year amnesty after these rules are introduced to retract patents that they discover to be invalid as a result of internal auditing. No fines are incurred for patents that are disowned during this period.

Make it dangerous to collect bad patents, and you'll see a big drop-off in patent applications.

[1] Assuming, of course, that you think patents are a good way of encouraging innovation. If you don't, then use abolish the patent office and be done with it.

Re:Stupid system (1)

mx_mx_mx (1625481) | more than 4 years ago | (#32138362)

Same a someone said above, because that would make sense, and they don't have it.

Re:Stupid system (4, Interesting)

Moryath (553296) | more than 4 years ago | (#32138444)

The problem is you're relying on the courts, which take YEARS to properly rule (and get through appeals) on a patent claim.

The secondary problem is that the BIG companies have found a way around the system with what they term "patent slamming"; they file everything they can send, no matter how stupid, 4-5 times apiece, knowing that the overwhelmed USPTO examiners are more likely to mistakenly approve the patents if they don't have the time to properly analyze them for non-obviousness and prior art.

For example, take Wizards of the Coast's patents concerning "trading card games." Nothing in their patent was non-obvious, and every game mechanic they pointed to is predated by a number of prior arts, up to and including the quintessential Hoyle's Rules of Games, first edition published in goddamn 1742. In a reasonable and non-overwhelmed USPTO, there's no way that patent could ever have passed, but not only did it pass, it gave WOTC a virtual monopoly in an area they had no business gaining one.

And getting back to the courts - remember, in order to sue, even if "loser pays", you have to have the money to front to your lawyers to see the lawsuit prevail. Which means you've got to have fucking deep pockets, to pay a lawyer for 4-5 years or more and process all the paperwork slamming and other shyster tactics that the big guys are going to throw at you.

I'd rather see companies completely blocked from patent slamming. Require the companies to be allowed only so many patents per year, make them pick the ones they REALLY want to protect, and that's that.

Re:Stupid system (1)

kanweg (771128) | more than 4 years ago | (#32138478)

"If you are found to have filed the patent in bad faith (i.e. knowing that there was prior art) then this becomes wilful abuse of the patent system and the fine goes up to $100,000."

Prior art = everything known before the date of filing/priority.

Your suggestion is an invitation for applicants not to do a search first before filing. I don't think that results in a reduction of applications.

In my country renewal fees are charged every year. And they are progressive. They force a patentee to consider maintenance of the patent or not every year.

Bert

Re:Stupid system (2, Informative)

DarkKnightRadick (268025) | more than 4 years ago | (#32138722)

Where did you get your definition of prior art? Just like you don't have to know about a patent to be in violation of it, you don't have to know about prior art for it to be prior art. Prior art just has to be proven to exist during a lawsuit, not known to exist when filing the patent.

Re:Stupid system (2, Insightful)

kanweg (771128) | more than 4 years ago | (#32139092)

Sorry for being ambiguous. I didn't mean "known to the applicant", but "publicly known".

Bert

Re:Stupid system (1)

hedwards (940851) | more than 4 years ago | (#32138762)

As far as I know they generally don't do a proper search at present. At least not of patents. Because doing so runs the risk of making it a willful infringement even if at the time it didn't appear that the item in question infringes.

Re:Stupid system (1)

QuestorTapes (663783) | more than 4 years ago | (#32138788)

> If a patent is overturned in court, you pay a statutory $10,000 fine, plus the
> legal fees of the person who sues you.

I'd adjust that to reduce litigation. If the patent is overturned in court, I'd add an additional penalty for the time between the initial suit and the time it's resolved. The additional penalties can be waived if the patent is retracted unconditionally, and the matter is settled out of court. No out of court settlement would allow waiver of the burden of legal fees, no out of court settlements allowed without retracting the patent unconditionally.

> If you are found to have filed the patent in bad faith (i.e. knowing
> that there was prior art) then this becomes willful abuse of the patent
> system and the fine goes up to $100,000.

And an additional payment to the person who filed the suit.

> If a patent is found to be invalid, you must refund all license fees
> collected on it, plus 50%. This is a statutory penalty and may not be
> disclaimed by contract.

Agreed if found to be a bad faith patent. Limit to the license fees themselves for invalid patents filed in good faith.

> Anyone has standing to sue for an invalid patent, but the loser
> pays the legal fees of both parties.

Needs work. Big companies would benefit from this, in that they would be encouraged to abuse the system with counter-suits, delaying tactics, etc. Effectively, people suing the big guys would need to have all of the following:

    - absolute certainty they are right
    - massive amounts of time to devote to this case (decades)
    - and massive funds in reserve.

For both the above, a recent twit tv floss program discussed the real story of how ugly and expensive some of these fights can be. And it would be _much_ worse if you were involved in a suit with a big company with very deep pockets.

That's why people settle. The legal system is too expensive for the common man.

> Companies have a one-year amnesty after these rules are introduced
> to retract patents that they discover to be invalid as a result of
> internal auditing. No fines are incurred for patents that are
> disowned during this period.

Why limit it to one year? Unlimited amnesty, but after one year, an upward sliding scale of the percentage of licensing fees that need to be returned. Encourage them to audit soon to avoid repaying years of licensing fees.

Re:Stupid system (0)

Anonymous Coward | more than 4 years ago | (#32138798)

Not any better than whats proposed by the USPTO. If you're a small company and have to face litigation, you pay out in the interim. You lose, and you pay out for the opposing party's lawyers and the fine. 10k is somewhat ruinous for a self-employed sort of person. It is a drop in the bucket for a big corporation. Flat fines (or fees) won't deter everybody. It'll deter poor people. 100k for a bad patent? Thats a few months of sales protected by a bad patent. Completely worth it for a big corp.

Less simple, but more likely to generate desirable outcomes, solution: charge fees or penalties based on the filing entity's income. Information the government, although not necessarily the USPTO, already has. If its really worth 2% of income for a corp to slam the patent office, more power to 'em. Although if the filing fees go that far, slamming the patent office might be a losing strategy, since the extra fees might actually be used to pay for more competent and just more patent examiners. (I know, I know.. I dream. It'll really be funneled into the government's general slush fund. it'll be spent as fast and as productively as a sailor's pay in a foreign port on hookers and beer.)

There are details to work out. For instance.. base on revenues or profits? If profits, do we use SEC filings or IRS filings for publicly held corps? I'm inclined to go with SEC filings, because they're designed to exaggerate profits whereas IRS filings are design to minimize them. Do we permit employment contracts to state that the employee will file for all patents and surrender them to the employing company? If not, on what grounds in contract law do we object to such an agreement?

Any system will be gamed. But at least we can make it so that the game isn't so patently (hah!) regressively discriminatory.

Re:Stupid system (1)

nroets (1463881) | more than 4 years ago | (#32138802)

I guess you proposed your rules in good faith, but it may turn out to be a big money maker for the legal profession. It will also raise the uncertainty for all parties involved (what if that ex-employee suddenly remembers reading about prior art and this information comes out). Legal costs and increased risk are a drain on the economy.

Rather raise the cost of filing to the point were the state can pay qualified persons to quickly assess the applications.

Re:Stupid system (1)

jonsmirl (114798) | more than 4 years ago | (#32138498)

Limit the USPTO to issuing 365 patents a year. It has to choose the best patent each day from the pile of applications.

That would make the patents truly valuable and stop the rest of this nonsense.

Re:Stupid system (0)

Anonymous Coward | more than 4 years ago | (#32138780)

Better yet, half the length of the patents and double the cost at each renewal...sounds good for copyright too.

How about a royalty fee? (1)

davidwr (791652) | more than 4 years ago | (#32138014)

Do any countries tax patent-license-royalties other than as ordinary income, and do they specifically feed that money back into the patent office?

Sure, this won't collect any revenue for patents used exclusively in-house or those licensed at zero-cost, but it would make the owners of the most richly-licensed patents pay a greater share of the cost. Or rather, it would make the licensees of those patents and their customers pay, since of course the cost would be passed down.

Raising Fees is NOT the answer (1)

salesgeek (263995) | more than 4 years ago | (#32138018)

Using modern technology to search for prior art quickly and having a $100 penalty for submitting prior art probably would do more to fix the system than any amount of raising the fees.

Re:Raising Fees is NOT the answer (4, Interesting)

CaptBubba (696284) | more than 4 years ago | (#32138094)

New technology costs $$$, which the USPTO does not have. The Patent Office's budget is pretty much 1:1 based on the fees it collects, except when congress wants to siphon off some cash to spend on something else. Hundreds of millions of dollars were siphoned off in the 90's, leaving the Patent office with a massive backlog at least in part because it couldn't keep enough people or the correct equipment to keep up with the applications.

What would be nice is a tiered system, instead of the current Big/Small entity fee system now in place (small entity fees are 1/2 those of the large companies). Tie fees to the number of applications or patents you have. That way those responsible for the backlog pay more, while the small company with 2 patents doesn't get priced out.

Re:Raising Fees is NOT the answer (3, Insightful)

gbjbaanb (229885) | more than 4 years ago | (#32138336)

Unfortunately, the # of patents idea wouldn;t necessarily work. Big companies have lots of accountants who would just start up a subsidiary company and let them file their first patent. So Microsoft would still have millions of patents, but they'd be held by a thousand sub companies. They'd probably end up paying less than mom n pop innovators inc.

Still, charging for crap patent applications is a good idea - that'd shift the cost burden to 3rd party lawyers who'd charge you to ensure your application wasn't crappy. The patent office could then start to give such pre-verified applications a less rigourous overview (like they do currently with all patents :)

Yes, that's dangerous... Microsoft lawyers inc would pre-verify a patent on glass panes used to provide visibility of operating system function for human interaction.

The only way to proplerly solve the issue is to better define what a patent is. Say "software or software algorithms of any kind are not patentable items" would rip that backlog to shreds. And save business innovation as well, which would be nice.

More than $100 (1)

brunes69 (86786) | more than 4 years ago | (#32138154)

The fine should be the greater of $10,000 or *two* times whatever profits are incurred by the patent. Having a $100 fine for crappy patents is not enough to encourage *anyone* to not file them.

Mod parent up (0)

Anonymous Coward | more than 4 years ago | (#32139364)

If only you could mod up suggestions to the government, then we would have a lot more input and help for the problems we have.

A new patent! (1)

Ironix (165274) | more than 4 years ago | (#32138034)

Not if I file a business method patent on the process first!

Re:A new patent! (1)

urusan (1755332) | more than 4 years ago | (#32138084)

Yeah, but at the current rate they'll never get around to approving it...

-1 Troll (5, Insightful)

Dachannien (617929) | more than 4 years ago | (#32138056)

Small entity inventors already get 50% off most USPTO fees, and USPTO Director Kappos has suggested creating a "micro-entity" inventor class for whom the fees would have an even smaller impact relative to that for large entities.

What's more, the backlog hurts small entity inventors much more than it does large entities. Small entity inventors are much more likely to rely on venture capital funding, and many VC outfits are unwilling to put money down without some patent protection on the table. If a small entity inventor has to wait for 3+ years to get that protection, they may end up folding before the patent issues. On the other hand, a large entity inventor has lots of stuff going on, and relies on its other business to keep things moving while they wait for their patents to issue, so the backlog has a much smaller impact on them.

Solving the backlog problem is ultimately going to require hiring more examiners, and that costs money. For an agency that is entirely fee-funded, being able to set those fees at appropriate levels is necessary to ensure that patents are issued in a timely fashion.

fee-funding (0)

Anonymous Coward | more than 4 years ago | (#32138266)

It should cost almost nothing to *file* the patent. All the costs lie in the examination and court challenges.

We all know about lazy evaluation in programmerland. It would make sense to delay the examination until there is a challenge, then charge based on the economic impact of the patent, to either the person who infringed it, or to the person that filed an invalid patent.

Re:fee-funding (1)

mx_mx_mx (1625481) | more than 4 years ago | (#32138364)

you are a lawyer, aren't you?

Re:fee-funding (1)

Dachannien (617929) | more than 4 years ago | (#32138452)

Part of the reason why patents have the requirements that they do is to inform the public as to what subject matter is covered by the patent. Examination serves to ensure that the public is informed accurately (or, at least, far more accurately than a registration-based system would allow) as to what they can and can't do without licensing the patented subject matter from the patentee.

In other words, if people were allowed to claim whatever the hell they wanted, and it only got sorted out when they started throwing their weight around, then innovation and commerce would come to a grinding halt, because it would be impossible to do anything without having someone breathing down your neck about it.

Re:-1 Troll (2, Informative)

The Hatchet (1766306) | more than 4 years ago | (#32138288)

Great, even worse news for the poor little guy. You think it is bad for small businesses, it is terrible for an independent inventor. Patents are becoming more expensive and harder to get every day, better for big companies that apply for ten thousand-a hundred thousand patents a year, meanwhile I have to construct elaborate contracts with a company before I can even show them what I have, at fear of losing everything. One hell of a messed up system.

Re: -1 Troll (3, Insightful)

Weezul (52464) | more than 4 years ago | (#32138466)

Yes, more patent examiners helps considerably, but so does fewer patentable domains, i.e. eliminate patents on business methods, software, look-and-feel, life forms, etc.

Patent lawyers already cost way more than patent fees. If large entities pay more for their lawyers, why not declare that patent fees should match the cost of the patent lawyers, but leave the minimum fee alone.

Or you might simply make the patent fees progressive in the examiner's time. In particular, if many people contested your patent, the fees will sky rocket.

There should also be an upkeep or property tax on owning all intellectual property with rates that were progressive based upon the number of patents the entity holds.

Give the companies a choice (1)

Richard_J_N (631241) | more than 4 years ago | (#32138062)

Why not let people choose whether to be protected *with* patents, or to be protected *from* patents.
So big companies can file patents and sue each other; small companies who choose not to file can neither sue, nor be sued.

Re:Give the companies a choice (1)

Sponge Bath (413667) | more than 4 years ago | (#32138128)

In other words, you're suggesting the complete elimination of patents. If companies can simply opt out of being sued for patent infringement, then a patent has no value.

Re:Give the companies a choice (3, Insightful)

Stormwatch (703920) | more than 4 years ago | (#32138224)

In other words, you're suggesting the complete elimination of patents.

Which would not be a bad idea at all, mind you...

Re:Give the companies a choice (1)

rattaroaz (1491445) | more than 4 years ago | (#32138712)

Agreed. Any extreme is not good, but the system leads itself to the extreme every time. It sucks, and none of the suggestions I see so far are any good either, nor would fix the problem. Get rid of the crap. Sure, it would not a perfect system then (nothing ever is), but I think it would be better than what we have now. Of course, not if you are a lawyer . . .

Re:Give the companies a choice (1)

bunratty (545641) | more than 4 years ago | (#32139356)

If there were no patents, what would be the incentive for innovation? Why would a company spend millions of dollars on developing a drug, only to have another company that paid nothing for the drug development sell it for a lower price? This is the purpose of patents -- to allow an inventor to recoup the cost of research and development by granting an exclusive license for use of the invention. Eliminating all patents would mean eliminating much invention. Where companies did invent innovative products, they would tend to keep them secret instead of making the idea publicly available.

Re:Give the companies a choice (1)

Opportunist (166417) | more than 4 years ago | (#32138258)

Given the way patents are currently abused to protect from competition instead of protection of innovation, I doubt the damage would be severe. At the very least in the area of software and software procedures, abandoning patents would certainly spur innovation rather than stiffle it.

Re:Give the companies a choice (0)

Anonymous Coward | more than 4 years ago | (#32138222)

Wouldn't work. Companies would just create additional shell companies. One for patented products and one for those without. It's being done for many reasons already; e.g. tax evasion.

So much for the DPL (1)

e9th (652576) | more than 4 years ago | (#32138070)

Well, this should pretty much make sure the defensive patent license [slashdot.org] doesn't see much use.

Don't Panic (5, Insightful)

dplentini (1334979) | more than 4 years ago | (#32138076)

I think it's too early to panic. Having practiced before the USPTO for over 20 years, I've seen many times how the small inventor lobby works its magic to protect the small filers. In fact, I was disappointed that the article didn't even mention the two-tier fee system, providing smaller fees for small businesses, that's been in place for many years now. The PTO needs lots of fixes, but I agree that somethings need to change with the fee structure. Large companies can game the system by flooding the system with new applications, re-filing to wear down examiners, and taking frivolous appeals. Wise changes to the fee structures, which take into account these sorts of tactics, as well as increasing maintenance fees to discourage "wait and see" litigation, will be helpful to the small guy. Hopefully the PTO will show some wisdom.

Re:Don't Panic (1)

jcaplan (56979) | more than 4 years ago | (#32138296)

One fee structure change that I have seen proposed is a per page charge on patent applications. This would have two effects. First, it would encourage filers to consider less voluminous filings. Second, it would allow the patent office to give examiners the time needed to review longer applications since the longer applications would bring in more money.

Re:Don't Panic (1)

dplentini (1334979) | more than 4 years ago | (#32138378)

The PTO already has a page charge for applications longer than 100 pages. While a more aggressive approach may help, the real problem is the number of applications, not the length of the applications. Indeed, for many inventions more description may be helpful from the standpoint of teaching---the ultimate purpose of the patent system---since some inventions do require a lot of description.

Re:Don't Panic (1)

theskipper (461997) | more than 4 years ago | (#32138456)

Interesting post. Excuse my ignorance; can you expand on what "wait and see litigation" means?

Re:Don't Panic (1)

dplentini (1334979) | more than 4 years ago | (#32139104)

By "wait and see", I mean holding on to your patent and waiting to see if someone else's activity infringes and then seeking license fees or litigating. I think that after a suitable period patents should either be worked by their owners (i.e., make the invention your patent covers) or given up to the public, or if you want to sit on the patent then pay a large fee for the privilege.

Re:Don't Panic (1)

Zordak (123132) | more than 4 years ago | (#32138496)

The thing is, the fee structure would have to change significantly to influence large business tactics. Whether you're small or large, the attorney fees you pay are way bigger than the filing fees. I just don't see this making that big a difference for the huge guys like Microsoft and IBM. But it will hurt universities, where a lot of legitimate innovation takes place, because they tend to be more fee sensitive.

I think the better way to deal with the pendency is to just dispose of applications earlier. Get out of this mindset that it's absolutely mandatory to reject on the first office action. If the examiner thinks he/she has relevant prior art, do something like they're doing on the pilot program where all first office actions result in a phone call (seriously, I know they have phones there---I call examiners all the time). Then attorney and the examiner can try to work out some agreement on the claims instead of going three rounds of paper filings. I mean, I know they get a count for drawing an RCE, but they also get a count for final disposition. So let's agree on something and dispose of the thing. I don't want a second office action any more than you do.

Re:Don't Panic (1)

dplentini (1334979) | more than 4 years ago | (#32139066)

I've spent about half my career managing patent departments. Even the big guys will take notice of fee increases for filing and maintenance, especially the latter. I believe that a fee structure that focuses on big fees for big filers and big maintenance fees for those who sit on their patents will be a help. Many large companies have patent departments that run on quota---the more you file, the bigger your bonus---and the result is just like the old days when IBM paid programmers by lines of code---lots of bloat and little quality. Simply dealing the problem by "disposing earlier", as if we can just waive our hands and make the pendency problem disappear, will only make the situation worse. First, we'll return to the days of the Compton's patent---when the most egregious allowances become litigation burdens on the market. Second, a liberal allowance policy will only encourage big companies to file more and build their portfolios. The patent system has always had a stated policy of encouraging the examiners to work directly with the applicants to find allowable claims. But the workload coupled with a very onerous and arbitrary "quality review" that was initiated by Bush appointee Dudas have crippled that route. So, yes, we indeed need better communication. But that will not fix things by itself.

skeptical this is genuine concern (1)

Trepidity (597) | more than 4 years ago | (#32138080)

The vast majority of patents, and therefore the vast majority of patent fees, are paid by large entities. I suspect they're the ones most opposed to any increase, because it will hit companies that file 10,000 patents much harder than companies that file 1 patent. But nice job hiding behind concern for small business.

Re:skeptical this is genuine concern (1)

0xdeadbeef (28836) | more than 4 years ago | (#32138162)

And the vast majority of cost in filing a patent is not in the filing fee. You are naive.

Re:skeptical this is genuine concern (1)

Trepidity (597) | more than 4 years ago | (#32138194)

Indeed, but that points even strongly towards my conclusion, because for a small business, the filing fee is small compared to the lawyer fees, so they won't much care about an increase in filing fees. But for a large company that already has a lawyer on retainer anyway, an increase filing fees times 10,000 might matter, so I could see why they would want to drum up opposition.

Re:skeptical this is genuine concern (1)

The Hatchet (1766306) | more than 4 years ago | (#32138338)

Meanwhile anyone with a good idea that doesn't have some sort of million dollar backer or corporate account on hand, just the money in their pocket and a feeble bank account is totally out of the patent market now, not to mention after any increase.

What they should do is create an 3rd tier for companies that submit more than 1000 patents a year, and increase the rates by 10000x. There would be less patents on things like "the little rib between this part of the case and that part of the case of product from that other patent"

The filing fee is only like 150 bucks for a small entity, the real cost is in basically anything in the patent, any pager after x number of pages, and all the hundreds of fees to get it finished. Might cost an indepentent inventor navigating the system a good 10k to get a patent, more with a lawyer. Your average joe doesn't have that kind of money to play with, meanwhile big companies like GE that file something like 100k a year pay a lot less than they should have to.

Re:skeptical this is genuine concern (1)

0xdeadbeef (28836) | more than 4 years ago | (#32139024)

Because making filing a patent cost as much as as house is really going help the independent inventor.

Re:skeptical this is genuine concern (1)

Khashishi (775369) | more than 4 years ago | (#32138238)

But it will be after this change. Who knows how much patent fees need to increase to stifle patent application by 40%? Increase by 100%? 200%?

Re:skeptical this is genuine concern (1)

0xdeadbeef (28836) | more than 4 years ago | (#32138994)

It would take more than that to make a huge multinational blink, but I'm sure they'd love a reduction in the patent arms race. Patent attorneys are expensive, most patents don't generate any licensing revenue. Do you think they're going to cry when filing becomes cost prohibitive for their smaller competitors?

Re:skeptical this is genuine concern (1)

Dachannien (617929) | more than 4 years ago | (#32138526)

Most large entities are filing enough applications that an increase in filing fees (if it really makes a dent in their IP expenses compared to attorney-related expenses) will simply result in filing fewer "crapplications". Large entities that manage large IP portfolios tend to file patent applications on every little thing they do, and lots of those things are pretty much worthless as patents.

Proportional Fees (1)

MrKaos (858439) | more than 4 years ago | (#32138188)

To the size of the company.

Re:Proportional Fees (2, Informative)

Xuranova (160813) | more than 4 years ago | (#32138490)

Can you say "wholly owned subsidiary"?

Re:Proportional Fees (1)

jtmerch (1807234) | more than 4 years ago | (#32138618)

Exactly, I agree with proportions, but these large companies can be smart and slimy. What's to keep them from forming, acquiring, or partnering a smaller entity just to keep from paying less. If a small guy gets a call from Apple saying "Hey we want to partner with you and will share a percentage of revenues if the patent is approved" - that small guy will be inclined to indepedent file the patent for the partnership between his firm and Apple - and if the fees are proportioned he won't pay much. Proportioning is also my favorite idea but there has to be a way to seal the loopholes because large firms will try to find a way around it.

Re:Proportional Fees (1)

Fuzzzy (967665) | more than 4 years ago | (#32138906)

A better idea: to the number of patents and patent applications of the company.

This will have a big impact (1)

chrysrobyn (106763) | more than 4 years ago | (#32138276)

I have several patents in my name, filed by my employer. With the business climate the way it is (which is to say, globally flat to slightly rising revenue, improving profits and a rise in stock price because of a constant decline in costs), we're being scrutinized on the patents we do file. If the costs go up even more, we'll file for fewer of them. There's already mounting pressure to keep ideas as "trade secrets".

Why not charge per year (5, Interesting)

jolyonr (560227) | more than 4 years ago | (#32138286)

2 year protection = normal price
5 year protection = three times normal price
10 year protection = ten times normal price
20 year protection = fifty times normal price

Re:Why not charge per year (1)

maxwell demon (590494) | more than 4 years ago | (#32139120)

Or simply $100*2^n for n years of protection.
Protecting for one year would be cheap, $200. Almost everyone can afford that.
Protecting for 10 years would be quite expensive, $102,400. Only reasonable if you can make lots of money from the invention.
Protecting for 20 years would be prohibitively expensive, $104,857,600. No sane company would pay that much.

Wouldn't Change That Much (1)

SwashbucklingCowboy (727629) | more than 4 years ago | (#32138342)

Companies can still protect themselves to a degree via documenting even if they don't file. If it ever goes to court a small company is at such a disadvantage anyway because of the cost that I think this isn't really that big a deal.

One thing it would change is that small companies with cool IP but no sales look less interesting as acquisition targets.

Terrible Approach! (1)

pablo_max (626328) | more than 4 years ago | (#32138416)

This actually will hurt the little guys and make sure that only mega corps can own the world.
I think a better way would be to assign the fee AFTER the patten goes through. Basically, if a patent is found to erroneous or false in some way, the fee would be EXTREMELY high. This would be encourage less crap patents and make sure people do a patent search before trying to patent their crap.
Finally, the fees for the approved patents can be based on the company's yearly revenue weighted against the market value of the patent.
I think that would be more fair.

Re:Terrible Approach! (1)

sqlrob (173498) | more than 4 years ago | (#32138512)

There's a problem with the after fees, but in the other way. If the PTO makes money off of calling something bad, why would they ever call something good?

Other counties (0)

Anonymous Coward | more than 4 years ago | (#32138500)

Wouldn't companies then just patent their inventions in other countries ? Then ACTA would force the US to honour them ?

Stop granting patents on software (1)

EmperorOfCanada (1332175) | more than 4 years ago | (#32138574)

If they stopped granting software patents then it would free up a huge number of people. They obviously don't know software very well as they keep granting patents that would be the rough equivalent of granting a patent on farting as a solution to reducing inter bowel gas pressure. The same with business processes. Stop it. I will leave one caveat. If you come up with something that truly makes programmers sit back and say wow then maybe an exception could be granted. Let's say a whole new AI based operating system that can be written in 200 lines of code.

Re:Stop granting patents on software (1)

Skapare (16644) | more than 4 years ago | (#32139156)

Being in software is irrelevant. They are granting patents for junk inventions of all kinds, which just encourages more applications to pile up. Of course, software does cloud the issue and makes it harder to determine if something be applied for is truly innovative. Statistically, it's likely not innovative (since most patents aren't). While software will have an even higher probability of being not innovative, that does not rule out true innovation that can be, or should be, implemented in software.

Lengthen 3rd party prior art submission duration (1)

Marrow (195242) | more than 4 years ago | (#32138586)

Currently, the patent office is required to review prior art submissions from outside parties for 60 days. The
patent is visible in the system for 60 days, and then they can throw your notice of prior art in the garbage.

2 months is not a lot of time. If they want to reduce the backlog, then crowdsource the problem. Open that
duration up. Even create some incentives to get people to read the patent applications. A little education
on what constitues prior art. Maybe even a hall of fame which says, "Hey, this guy helped us out by finding
something we didnt know about", patent denied.

Its much better to stop a patent (and the expensive process) in the beginning, then defend against an established
patent in court. By crowdsourcing the patent prior art review system, everything would work better.

Re:Lengthen 3rd party prior art submission duratio (0)

Anonymous Coward | more than 4 years ago | (#32138840)

Instead of the hall of fame, offer part of the application fee to the guy that provided the necessary clues to deny the patent.

This could easily create some freelancer patent examiners.

Re:Lengthen 3rd party prior art submission duratio (1)

maxwell demon (590494) | more than 4 years ago | (#32139172)

Does a rejected patent also cost some fee? (It would be reasonable, because after all, it did cost something to examine it). In that case, a good incentive would be that the first one who finds prior art gets some part of that fee.

Defensive Publications (0)

Anonymous Coward | more than 4 years ago | (#32138602)

Small businesses might consider defensive publications. It doesn't give you a monopoly, but it does prevent you from being locked out of your own invention.

Regards,
Jason

Systems that oppose their own function... (1)

crovira (10242) | more than 4 years ago | (#32138644)

I'd say that about covers it.

A system designed to protect the small inventor puts itself out of reach of the pocket book of the small inventor.

Being small is being, uh, dis-incentivized.

The positive feedback loop will take care of crushing the small inventor into a thin red paste under the soles of gummint and big corporations.

It figures.... (1)

stoicio (710327) | more than 4 years ago | (#32138694)

Pffftt!

fewer patents is a good thing (1)

Cyko_01 (1092499) | more than 4 years ago | (#32138774)

If only the big companies can afford it then that means there will be fewer stupid little patents. It will also make is harder for big companies to file tens of thousands of patents. How is that a bad thing?!

USPTO fees largely irrelevant (0)

Anonymous Coward | more than 4 years ago | (#32138828)

The USPTO could easily double fees without significantly impacting the cost of getting a patent. The majority of the costs (80-90%) are the hourly fees charged by a patent attorney to draft and prosecute the application.

The fees must be too cheap when you have companies (particularly IBM) filing applications that are basically duplicates of patents they already own.

Re:USPTO fees largely irrelevant (1)

Skapare (16644) | more than 4 years ago | (#32139186)

The level that fees would need to be to stop the large corporation patent application mills from churning out junk would be so drastically high that they would completely lock out the small inventor entirely.

OTOH, raise them to the point where the excess taken in from patent applications could entirely and continuously fund free universal health care for everyone in the country, and I could be encouraged to look away.

3 easy to implement suggestions (1)

kanweg (771128) | more than 4 years ago | (#32138854)

- Abolish (costly and time-consuming) interference procedures by switching to First-to-file instead of (fraud-susceptible) first-to-invent.
- Abolish the possibility to file a continuation (in part?) with added new matter. The only things you are allowed to do is amend based on what is in the application (and add a discussion of prior art).
- Let European examiners train their US counterparts. The problem-solution approach and a healthy dose of Greek logic does wonders for granting patents for inventions and rejecting applications that do not involve an invention.

Bert

change who can own a Patent (1)

sloth jr (88200) | more than 4 years ago | (#32138882)

Move it back to individuals only and a prohibition of patent transfer, and it seems like you've solved half the problem.

Re:change who can own a Patent (1)

Improv (2467) | more than 4 years ago | (#32138940)

I like this idea. Ideally we'd also have it be noninheritable, last 20 years, revert to public domain 5 years after death, and have royalties paid to the patent office (or general us government) during those 5 years.

I dislike that patents exist at all, but this might be a reasonable comprimise.

How about extending Creative Commons licensing? (1)

Aging_Newbie (16932) | more than 4 years ago | (#32138924)

How about extending Creative Commons concepts to the invention realm? Instead of simply being able to demonstrate freedom of the idea by publication or otherwise provable prior use, you could free the idea by wantonly releasing it into humanity's commons. Along the way, you could specify similar categories of use, like attribution, not for profit use, etc. and still make money from some applications of the technology. Unless it infringed existing (prior) patents somehow, the publication of the description would invalidate future attempts to patent the idea, thus protecting the inventor and humanity at large from a wasteful fight. Patents mean nothing for a sufficiently valuable invention with sufficiently powerful opposition, so why not just open it up and get away from all the litigation? Just consider the intermittent windshield wiper [wikipedia.org] as an example. Already there is little cause to patent an idea because defending it becomes a serious problem for most mortals. Raising the cost and barriers to what was intended to be a protection for the little guy removes the last vestige of fairness from the law anyway. If one claims an invention by some commons method, it assures safe use unless it already infringes, and companies the world round could share in the wonders of American Innovation. Mr. Lessig [wikipedia.org] , are you listening?

More direct? (0)

Anonymous Coward | more than 4 years ago | (#32138988)

I haven't thought this all the way through yet, so consider this an RFC. But why not make the system more relative: filing fees cover the USPTO's research expense. An ice pick with a new handle design is several hundred dollars for the inventor to file, or less. A patent filing which includes dozens of claims about a flux capacitor that can rearrange DNA on-the-fly in a living organism is perhaps tens of thousands of dollars. This bodes well as more complex inventions often have more financial potential ($).

The immediate issue that comes to mind is how does the inventor know his fees ahead of time as to know whether to proceed? Maybe a low flat fee for the USPTO to determine the true cost of a formal, comprehensive filing of his invention in a particular category?

It would be a shame, no, tragedy, for the "little guy" to be cut out of the US's innovation process. We know how incredibly significant the little guy has been in the technical fields. Tesla was not a rich man.

Change to two types of patents. (1)

zotz (3951) | more than 4 years ago | (#32139064)

1. regular patents. put the fees up all you want. make them harder to get.
2. defensive only patents. can only be brought out when you (or a "partner" are being sued for some reason.) low to no fees, fast tracked ahead of regular patents in the grant process, easier to get.

thoughts?

Entirely wrong approach (1)

Skapare (16644) | more than 4 years ago | (#32139110)

The USPTO has (decades ago) lost all sense of what patents are even for. They are NOT for recognizing who invented something (first). Instead, they are for granting exclusive rights to an invention, for a period of time, in exchange for having the invention made available in the first place. Patents actually take away the rights of inventors who happen to not be first. This is considered an acceptable tradeoff when the public gets to have (most) inventions that would otherwise have not been available.

The truly innovative invention is statistically unlikely for someone else to invent it anytime soon. Eventually, at some point in the future, lots of people could invent it. But then, it's not innovative, anymore. When it's not innovative, there's no public benefit of patents since the invention would have happened, anyway. Once dozens of inventors could invent something, someone will just do it without patents (and a patent at this point only destroys a competitive business environment).

The USPTO needs to get back to the original idea of patents, which existed even before there was such a thing as a corporation. They need to be rejecting applications for everything that is not innovative, and deny the patent.

For each application, ask the question "Is this something that is likely to be invented by someone else within the next X years who would not bother to apply for a patent on it?" ... where X is half the term of the patent that would be issued. Also ask "Is this invention possibly obvious to at least a few inventors educated or experienced in this field?" And ask "Does issuing a patent for this invention encourage other inventions from OTHER inventors that would otherwise never be invented by anyone were this patent not issued?" If either of the first two is answered YES, or the last is answered NO, then the patent should NOT be granted.

Remember that NOT granting a patent does NOT take away the rights of the inventor. What is different is that not granting a patent also does not take away any rights of any other inventor, either.

The value of a patent SHOULD be in protecting an EXCLUSIVE inventor from copycats would would just take the idea they did not invent, and unfairly compete. And as such, it should only be used where it is clear there likely is just ONE inventor. Things that are obvious, would have more than one inventor (given a short period of time, once the need for it emerges) and no patent is needed for the public to gain from it.

USPTO ... just stop granting patents for junk inventions ... which are the vast majority of your applications ... and the vast majority of your past grants. The applications just keep piling in because you are just summarily granting anything that isn't an obvious duplicate of something previous. Do continue checking for duplicates. But also check for obviousness, and public benefit of the grant. You shouldn't be issuing more than about 2% to 5% of what has been issued in the past. Even better, set a finite quota of 1000 patents per month and issue them only for the best applications (figured according to the questions above).

Slashdotters ... quit jumping on software patents. It's the patent system itself that is broken, regardless of whether implementations can be done in hardware or software. Truly innovative patents (a tiny fraction of what gets granted these days) should be granted, regardless of how they can be invented ... in hardware or software.

How about going digital? (0)

Anonymous Coward | more than 4 years ago | (#32139190)

Some headway might be possible by throwing some money at developing a machine-parsable English syntax requirement.

The patent office or perhaps some other department would manage the development of the syntax, ontologies, webservice APIs, etc. that will have a great impact on not just patents but perhaps other areas of government, law, and business.

If you make a fast track for people who file patents using an web application, there will be incentive to do so.
Development of such a system would also entail translating past patents into the language. Due to the type of writing being used in patents, it may be easier than ordinary English for a natural language processing system to understand.

Of course understanding real natural English as written or spoken by humans is tough. Though analysis of written English is extremely good in some areas like extracting pronouns. If a disambiguated, reduced-bandwidth version of English could be introduced, and if the structure of patents can also be made more computer friendly, it seems possible.

At the very least, electronic filing with use of some common terms regarding the subject area and type of patent would probably be useful. There already exist various data services related to patent searching that may hold some of the needed information, however an open, free system needs to be developed. It would be of world importance and likely have a great positive impact on the economy if implemented, thereby justifying that the government invest significant funds to do so.

Funds should also be provided to allow computer scientists to work in the patent office to find ways to improve efficiency up to and including development of a whole new patent process designed to remove the current bottlenecks. Increasing the financial burden of patent submission is not a creative solution.

I think we're okay then (1)

Jay L (74152) | more than 4 years ago | (#32139294)

If protecting inventions is at the heart of high tech competitiveness, plans underfoot at the US Patent and Trademark Office (USPTO) will critically wound small companies.

Luckily, protecting inventions is not at the heart of competitiveness. Patents are, by nature, a short-term monopoly on a technology. They are anti-competitive. Their intent was to spur risky innovation, and we can argue about whether or not that works in a low-barrier-to-entry market like software, but reducing patents can only increase competition.

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