Patent Office Decides To Rush On Green Tech Patents, Rather Than Give Them Scrutiny They Deserve

from the just-great dept

Jaewon alerts us to the news that the US Patent Office has agreed to fast track "green tech" patents to get them through the process much faster. This is the opposite of what should be done. One of the biggest problems is that examiners don't have nearly enough time to thoroughly examine a patent to make sure that it's really patentworthy (i.e., that it's both new and non-obvious to those skilled in the art). Speeding up the process seems like a recipe for a lot more bad patents -- which doesn't help the green technology space, it'll cause significant harm. We'll end up with more patent thickets, and a huge waste of money on legal battles, rather than actual innovation.

Yet, Commerce Secretary Gary Locke supported the plan by announcing:
"American competitiveness depends on innovation and innovation depends on creative Americans developing new technology," Locke said in a statement. "Every day an important green tech innovation is hindered from coming to market is another day we harm our planet and another day lost in creating green businesses and green jobs."
This statement makes a bunch of assumptions that simply are not supported by any evidence at all. First, innovation isn't just about new technology, but about successfully bringing the technology to market. Second, over and over again, studies have shown no causal effect between more patents and greater innovation. It's amazing that Locke can claim this as if it's fact when there's no evidence to support it. Third, there is no hindrance in job creation from a slower patent approval process. Companies can still bring their products to market and can still hire and grow whether or not they have the patent. There are plenty of "patent pending" products on the market. The idea that fast tracking green tech patents creates more jobs is pure fantasy. Apparently, when it comes to intellectual property, the policy of our federal government is entirely faith-based.


Reader Comments (rss)

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  •  
    identicon
    Anonymous Coward, Dec 9th, 2009 @ 3:37pm

    Oh Cool. So if I almost rebrand a failed patent application as "green" it can now get it approved?

    Oh Gary Locke, since everything is negotiable, can you also double the patent length for me also? Pretty Please?

     

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    Anonymous Coward, Dec 9th, 2009 @ 3:41pm

    I'm going to patent "Breathing Green Air" and "Eating Green Food"

    These two things seem to be major growth industries in the "Green" Economy.

     

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    Evil Genius, Dec 9th, 2009 @ 4:15pm

    When we've patented cow dung...

    Now would be a great time for companies to get into new markets such as food and produce harvesting.

    A company with resources could easily get into new markets to control an entire ecosystem of foodstuffs getting to your table. Think about if you could control the entire vegetable market. Oh, and by the way, I'm taking your land because my patented vegetable methods and wind turbines will only grow on your land. I get to do this under eminent domain because green technology more socially viable.

    Can someone else out there please patent a lab-created fertilizer, because cows will be outlawed in a few years. If you do that, and we can cross-license.

    Thanks!

     

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      identicon
      Anonymous Coward, Dec 9th, 2009 @ 4:46pm

      Re: When we've patented cow dung...

      Food Inc. documentary (I think this was the name)

      Talks exactly about that.

      Bio-engineered crops spill over other crops and the company goes there and sue them to oblivion for patent infringement :)

      Maybe that is why Europe is so against Bio-engineered crops :)

       

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      Monsanto, Dec 9th, 2009 @ 9:06pm

      Re: When we've patented cow dung...

      I think it has already been done - and they are evil

       

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    Richard (profile), Dec 9th, 2009 @ 4:32pm

    It just proves the government doesn't take green issues seriously

    When there is a real emergency that the government understands - eg a real war like WW1 or WW2 - governments basically suspend the patent system for the duration - sometimes with a promise to reward inventors afterwards (as the UK did after WW2).

    In WW1 the American government - faced with a complete lack of serviceable American aircraft as a result of a patent dispute between the Wrights and Curtiss - see http://en.wikipedia.org/wiki/The_Wright_brothers_patent_war

    was forced to bang their heads together and create a patent pool, compelling all the aircraft manufacturers to join.

    If the government took the green issue seriously they would do the same now.

     

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    identicon
    Anonymous1, Dec 9th, 2009 @ 4:39pm

    @Mike Masnick: Did you vote for President Obama?

    ?

    If the answer is yes, guess what? You get what you voted for. President Obama's agenda and his supporters agenda,
    is ripe with pure non-sense green propoganda. In this case, the President's propoganda has gone to all levels of government. One of the unfortunate side-effects of ideology over facts, are statements like the one above.
    It makes for a great press release, and really horrible policy.

     

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    6 (profile), Dec 9th, 2009 @ 5:42pm

    Mike, the examination isn't being accelerated, the time until the application is picked up to have the examination started is being shortened by moving them to the front of the line. The exact same amount of time is still spent examining the apps.

    All they're doing is letting apps that pass certain guidelines skip in line.

    6

     

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      Anonymous Coward, Dec 9th, 2009 @ 6:23pm

      Re:

      Are you the "6" who frequents Patently-O?

      As for your observation, you are quite correct. MM (and not "MM" at Patently-O) is so busy bashing the USPTO that he overlooks the fact this "pilot program" is nothing more than an opportunity for some applicants to pursue the equivalent of a Petition to Make Special.

      Candidly, though, it is not at all clear to me what benefits may inure to applicants who avail themselves of the program. About the only one I see is that the first OA arrives earlier. I will be curious to see if this "pilot program" carries along with it its own unique set of fees over and above those applicable to all applications.

       

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      Mike Masnick (profile), Dec 9th, 2009 @ 6:33pm

      Re:

      Mike, the examination isn't being accelerated, the time until the application is picked up to have the examination started is being shortened by moving them to the front of the line. The exact same amount of time is still spent examining the apps.

      Cool. That's good to know -- though doesn't change the rest of the point.

      Also, seems like it's then punishing patentees in other areas. Which, if you believe Locke's statements (which I don't) should harm job creation in all those other areas!

       

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    senshikaze (profile), Dec 9th, 2009 @ 6:13pm

    does the patent office ever give any patent application the time or scrutiny it deserves?

    didn't think so.

     

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    Anonymous Coward, Dec 9th, 2009 @ 6:33pm

    The title of this article is incredibly misleading. You are so busy unnecessarily parsing a general comment by someone at the DOC that you failed to notice all that is happening is that some categories of subject matter will be examined sooner than later. Otherwise, everything else associated with examination remains the same.

     

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    Anonymous Coward, Dec 9th, 2009 @ 11:20pm

    "Patent Office Decides To Rush On Green Tech Patents, Rather Than Give Them Scrutiny They Deserve"

    That's because the patent office doesn't care about the environment.

    What business would implement a patented product and pay huge royalties just for the sake of saving the environment if it's more profitable to implement a less environmental friendly product instead? Most corporations won't, that's for sure. They don't care about the environment, they care about their bottom line.

    I just don't see how patents on environmentally safe products make sense. If someone does develop an environmentally safe product they know they're not going to get monopoly prices on the invention because no business would implement it since it doesn't provide any benefit to them (only to the environment and what do businesses care about the environment).

    and to lobby the EPA to ban competing non - patented products creates a conflict of interest between environmental safety and profits, it creates an interest in ensuring that only products that are best for ones profits margins, PATENTED PRODUCTS, are legal, and I don't think we should live in a world where the environment has to face such conflicts of interest (just look at this whole new climategate scandal. To say that politics doesn't play a role in what's decided to be best for the environment by lawmakers is nonsense, and to put patents in the picture will further distort the science). Studies will likely be manipulated and censored, there will likely be a bias to only publish studies that agree with what's best for the profit margins of the rich, and the environment will likely suffer as a result. Do we really want patents to screw up the environment like they basically screwed up medicine and just about everything else?

     

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    John Doe, Dec 10th, 2009 @ 4:23am

    I think it is great!

    Since global warming/mini-ice age/climate change is a farce anyway, might as well throw the patent system into the mix to slow things down. :)

     

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      Yeah - Ok, Dec 10th, 2009 @ 5:26am

      Re: I think it is great!

      "climate change is a farce anyway"

      and that is why the polar icecaps are melting and glaciers are in retreat

      What was it that someone said - something like: The polar bears will just have to learn to live on land then.

       

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        John Doe, Dec 10th, 2009 @ 5:31am

        Re: Re: I think it is great!

        Let me clarify, man made climate change is a farce. The climate has always been changing, just ask the dinosaurs.

         

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          Hephaestus (profile), Dec 10th, 2009 @ 6:10am

          Re: Re: Re: I think it is great!

          "The climate has always been changing, just ask the dinosaurs."

          Actually it was an asteroid/comet that struck Mexico's Yucatan Peninsula that killed the dinosaurs.

           

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    rebrad (profile), Dec 10th, 2009 @ 5:27am

    In a Hurry

    Any idiot in a hurry would know that these are too important to scrutinize. After all there's lots of green in dem dar hills.

     

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    Anonymous1, Dec 10th, 2009 @ 8:03am

    @Mike Masnick: Are you so gutless you refuse to answer direct questions? You don't have to answer who you voted for of course, this is a technical, not a political site, and anonymity of voting is one of the privileges of living in a democracy. I can also see not wanting to alienate a good portion of your readership of all political affiliations. That being said, the fact that President Obama has made "going green" a key agenda, on all levels of the Federal government, makes my query totally legitimate. If you don't see the connection between that agenda and this announcement, then it's time to remove the blinders.

     

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      nasch (profile), Dec 10th, 2009 @ 8:16am

      Re:

      @Mike Masnick: Are you so gutless you refuse to answer direct questions? You don't have to answer who you voted for of course, this is a technical, not a political site, and anonymity of voting is one of the privileges of living in a democracy.

      In other words, there is no good reason why he should answer your question. Are you hoping to shame him into it by calling him gutless? Good luck with that.

      Secondly, have you actually contradicted anything in this post? I haven't found it. You brought up a basically tangential political rant (regardless of how accurate it is), and expect the blog operator to respond personally?

       

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    nasch (profile), Dec 10th, 2009 @ 8:19am

    The quote

    "American competitiveness depends on innovation and innovation depends on creative Americans developing new technology," Locke said in a statement. "Every day an important green tech innovation is hindered from coming to market is another day we harm our planet and another day lost in creating green businesses and green jobs."

    I read this and see it as a great reason to make sure green patents get extra scrutiny to make sure all these bad things don't happen. Amazing how that "patents = innovation" assumption distorts everything downstream.

     

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    Anonymous1, Dec 10th, 2009 @ 8:53am

    In other words, there is no good reason why he should answer your question.

    @nasch:WRONG.There are plenty of good reasons, including confirming whether he sees a connection or not. He's saying this is bad for reason A, and I'm simply pointing out the actual reason it is occuring, reason B. Answering may put him in a delicate position, but he can still answer the question without answering who he voted for. Having the right to do something, and doing and or not doing it, are two seperate things. BTW, LOL, so now potentially exposing yourself to criticism and showing possible hypocrisy, are reasons not to answer questions? Then he shouldn't be surprised when the corporations he (legitimately most of the time) criticizes don't respond either. If politics bleed into a technical aspect of a story, and can provide insight, then IMHO, it needs to be addressed.

     

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      Grae (profile), Dec 11th, 2009 @ 11:29am

      Re:

      I see one question: "Did you vote for President Obama?" How he could the question without answering who he voted for? What alternate dimension are you posting from that questions can be answered in a quantum manner?

      Additionally, the entire point your comments are to appear clever while bashing the current administration and telling Mike to shut up:
      1) Assert Obama administration policy is bad.
      2) Ask Mike if he voted for Obama.
      3) Mike says "yes", proceed to assert he is part of the problem and as such he's whining about problems he had a part in causing.
      OR
      4) Mike says "no", proceed to whine that Obama administration is ruining everything.
      5) Profit.

      You're breaking my heart, fail-troll.

      P.S.: I don't know if this is true, but I heard a rumor you raped and killed a young girl in 1990. If it's true, and it can provide some insight to your personality, then IMHO, is needs to be addressed.

       

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    identicon
    Al the Patent Agent, Dec 10th, 2009 @ 11:36am

    Fast tracking is not as important as not being afraid to issue patents. Examiners are afraid of Quality Control. QC makes its production by finding any errors in allowed applications and by calling the errors, serious errors. The Examiners have a reason to be afraid. This is the problem with the PTO.

     

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    Gene Cavanaugh, Dec 10th, 2009 @ 12:04pm

    Green patents

    I agree, completely.

     

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    identicon
    Andrew D. Todd, Dec 10th, 2009 @ 12:27pm

    Energy Is Different

    Energy is not like information technology. There is an enormous reservoir of unimplemented invention, which has been all ready to go for many years. More than that, there is an enormous reservoir of inventions which were put into production and sold in a modest way, thirty years ago or more. Unemployed high-tech people are moving into energy, but a lot of them are doing so in inappropriate ways. They want to make something which looks sort of like a computer, because that is what they are familiar with. I expect that most of the patents will be for Rube Goldberg contraptions which may get government funding, but which will not work.

    I had occasion to look up production figures for geothermal heat pumps recently. I found that there are sixteen companies making the things, with a total production of less than a hundred thousand units annually, and virtually no imports. In short, we are talking about something very close to handcraft productions, with the inevitable high costs which go with wholesale use of hand labor. The figures for solar water heaters will be approximately similar.

    Let's construct what an imaginary hypothetical case might look like. In a fictitious small town, somewhere in the Midwest, there is a fictitious company which produces solar water heaters. The company employs about two hundred people, and produces ten thousand solar water heaters a year (forty per working day). These solar water heaters cost two thousand dollars each, so the company has a revenue of twenty million dollars, or a hundred thousand dollars per worker. Let us say that the company started operations in 1974; during the last energy crisis, and achieved a stable, well-functioning design by 1983; and has produced, over its lifespan, 250,000 solar water heaters, of which 150,000 are still in service. Sales are running above historic levels at the moment, for the obvious reasons.

    The design is a conventional and obvious one, of the type which _was_ actually published in Popular Mechanics_ during the late 1970's. It consists essentially of a solar collector; an insulated hot water storage tank with a heat exchanger and an electric resistance element for fallback; and a circulating pump and several thermostats to control everything. There is nothing much in the design which would not have been immediately obvious to a notable nineteenth-century inventor such as Thomas A. Edison. It works. It generates enough hot water, even during a Midwestern winter, and it does not break down very often. The main problem is that this solar water heater has a relatively high price. Given that the fictitious company only produces forty water heaters a day, there is very little scope for automation. The workmen use acetylene torches and pneumatic jackhammers, but otherwise, the plant has a strong family likeness to a nineteenth-century boilermaker's shop.

    The solar water heater competes, if one may use that word, with an electric or gas water heater which one can buy at Sears or J.C. Penney for two hundred dollars, but which consumes several hundred dollars worth of gas or electricity each year. From an economist's point of view, this ought to be a no-brainer, but the man in the street is not an economist.

    The customers for solar water heaters are not very price-sensitive. They are mostly more interested in being "greener than thou," rather than actually saving money. The fictitious company finds that its most successful dealers seem to be located in the more famous college towns, such as Ann Arbor, Michigan; Ames, Iowa; and Madison, Wisconsin. The company does not employ anyone with experience of international business, or anyone who speaks Chinese. The company doesn't even compete with the European market, or the Southern California market, because the climates are so different, and consequently, so are the design criteria. For a variety of reasons, the company has never succeeded in selling to the tract-house builders who account for the vast majority of hot-water-heater installations. There were tentative approaches in 1978, and again in 1993, but these fell through when the actual limits of the Carter and Clinton administrations' power and/or commitment became apparent.
    Your mission, should you choose to accept it, is to deal with ways and means of scaling solar water heater production up from the thousands to the millions. I think you will find that you can get manufacturing costs down to two hundred dollars or so by manufacturing in China, and at that point, installation expenses will become dominant.

    Something similar applies in transportation. The basic fact about transportation is that at a certain point, one has to build roads. Here is a link to a review essay of sorts which I wrote about electric cars:

    http://rowboats-sd-ca.com/adtodd1a/blog_01.htm

    I don't think patent issues will be very important to practical solutions. The Patent Office will grapple with the issue of whether it is obvious to treat an electric car like a cellphone, but of course, this is a dumb idea in the first place.

     

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    mike42 (profile), Dec 10th, 2009 @ 2:22pm

    Thought you'd like to know...

     

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    mike42 (profile), Dec 10th, 2009 @ 2:32pm

    Thought you'd like to know...

     

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    identicon
    staff, Dec 10th, 2009 @ 2:58pm

    Roseanna Danna

    "Jaewon alerts us to the news that the US Patent Office has agreed to fast track "green tech" patents to get them through the process much faster. This is the opposite of what should be done. One of the biggest problems is that examiners don't have nearly enough time to thoroughly examine a patent to make sure that it's really patentworthy..."

    Heh, Roseanna Danna...all that means is they are examined ahead of other patent applications.

    Mr Fader

     

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    identicon
    Doug Tetrault, Dec 10th, 2009 @ 6:03pm

    Moving Forward

    I agree that we can’t count on fast-track patents to assist the green economy. There is already a huge amount of information out there about the new green collar economy and the many companies who are taking advantage of this unique opportunity and very few are being hindered by the patent laws in place. The website http://www.greencollareconomy.com has a directory of thousands of businesses who have embraced this new market and are bringing these products – and jobs – to regions throughout the country, at record speed. If we are to remain a global commerce leader, we must educate ourselves about and act upon the vast potential before us. At www.greencollareconomy.com there are also a number of white papers that demonstrate the opportunity we have to create a green economy and examples of those who are already moving toward this market in full force. I encourage readers to take a look and learn more about the green collar economy.

     

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    identicon
    Anonymous Coward, Dec 11th, 2009 @ 1:54am

    First off, you need to know that this Locke guy is in place of Bill Richardson. Locke shows what he is: a person who can be bought off.

    This is why Bill Richardson would have been a better choice for everyone, and why he could execute better.

    So far, Obama has pulled back on every thing he was elected on.

    So, Good job.

     

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    Peter Pappas, Dec 12th, 2009 @ 7:57am

    A few corrections...

    Your criticism of the USPTO's recently announced green tech pilot program based on a fundamental misundersting of how the program works. Scientific American subsequently reported Tech Dirt's mischaracterization of the program in its own coverage, so we would like to set the record straight on our green tech pilot.

    The program allows a qualifying green tech applicant to file a petition to have the application made "special" to the Office of Petitions (not to the examiner). If the petition makes the case that the pending application will materially enhance the quality of the environment, contribute to the development or conservation of energy resources, or contribute to greenhouse gas reductaion, the application will be moved up in the queue of applications awating examination, and we estimate that the total processing time of these applications will be reduced by about a year.

    Patent examiners are not being given any less time to review green tech applications. To the contrary, the USPTO recently reengineered the patent examiner count system, in order to give examiners more time to examine applications and to ensure better quality review. Green tech applications are subject to the same criteria as any other appications and are subject to the same patentability standard as applications in other technologies. So, contrary to what has been reported here, this program in no way reduces examination time or patent quality. What it does do is speed up the process for qualifying applications, and thereby speed the deployment of critical green technologies to market, spurring the creation of green businesses and green jobs.

    Peter Pappas
    Chief Comminications Officer
    USPTO

     

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      Mike Masnick (profile), Dec 12th, 2009 @ 8:13am

      Re: A few corrections...

      Peter,

      Thanks for the clarification, though we had discussed most of this higher up in the comments.

      I am wondering if you can explain the following statement, however:

      What it does do is speed up the process for qualifying applications, and thereby speed the deployment of critical green technologies to market, spurring the creation of green businesses and green jobs.

      How do you figure? There is no reason to wait for a patent before bringing technologies to market. In fact, that's quite rare. So this doesn't speed the time to market in any way.

      And it also should have no impact on jobs, either, for that same reason.

      If anything, by granting more patents faster, what you end up doing is leading to greater delays in bringing products to market, because you speed up the process of innovation slowing lawsuits.

      So can you please explain how this speeds products to market or increases jobs? Pretty much everything about it suggests the opposite.

       

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    identicon
    Gena777, Dec 13th, 2009 @ 5:43pm

    Politics

    There's little question that "green" technology is increasingly critical to the economy and preservation of the environment. However, the decision also appears to be politically motivated, especially considering the timing of this move. It's certainly nothing new for politics and patent law to be intertwined. Still, one hopes that Kappos et al. have paid heed not only to the political points scored for this decision, but have also thoroughly considered other potential consequences (both positive and negative) of this preferential treatment. It will be interesting to see how all this unfolds.

     

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