And Now Europe Feels The Need To Catch Up To China And The US In The Self-Destructive Patent Race
from the bad-news-for-innovation dept
Well, you had to know this was coming. When you make the very dangerous mistake of assuming that patents are a proxy for innovation, then you get concerned when other countries/regions are getting more patents than you are. We’ve already covered how China is ramping up their patent approvals in an attempt to create an economic weapon against the West (“sorry, you can’t sell those computers here, they violate the patent of this Shanghai firm…”). And, of course, the US has stupidly fallen into line and started approving patents willy-nilly to keep up. So, over in Europe, overreacting bureaucrats are about to make the same mistake. They’ve declared that the EU is “falling behind” in innovation (really, patents) and are urging a more streamlined patent system that would be European-wide. The idea, of course, is that with a EU-wide patent system, it becomes easier to get patents. Of course, that only helps innovation if patents actually lead to more innovation and, sadly, the evidence suggests otherwise.
Comments on “And Now Europe Feels The Need To Catch Up To China And The US In The Self-Destructive Patent Race”
the US has stupidly fallen into line and started approving patents willy-nilly to keep up.
Oh Mike, you can’t seem to help yourself. We have already shown in that thread that the number of approvals is in line with the trend over the last 20 years, and that the increase in the number of approvals may have only been as a result of previous year applications getting approved in the new year. The difference was a very small number of new patents per examiner (8 or 9 total for the year, less than 1 a month).
I just knew you would like to it and treat it like a fact, when plenty of other plausible explanations have been provided.
The Masnick Effect in full action. Congratulations for having such big “attachments”.
“We must not allow a patent gap!”
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that is funny..
reading through the comments that you claim prove your point, all i see is a lot of baseless “well, maybe everyone just became 30% percent better at their job. it could happen!” and “They probably just filed a whole stack of patents in january, for no apparent reason!”
Never addressing the simple idea that the easiest way to get approximately 30% more work out of the same amount of people is to lower the standards of their work or dramatically improve the systems that support it. Since there has been no sign of the latter, might it be the former?
don’t worry, you can come along and whine “go back to drinking your koolaid freetard!” whenever you like. It makes your type look terribly clever, honest.
Perfectly Simple Fix
The reason why patents are presently such an economic disaster area is simple, the offense of patent infringement allows lawyers to do one of their favorite things, go to court. Hello legal fees. Everybody else gets to wait and wait while lawyers run the meter.
There is a perfectly simple fix — get rid of patent infringement. Strike it off the books. Repeal that part of the legislation. Open source software has shown that plenty of people are very happy to freely share difficult intellectual work. No government-granted monopoly privileges are necessary or desirable.
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Teka, the point is that the number of patents was entirely in line with past performance measured over the 20 year run (increase per year) and the “30% better at the job” is relative to the year before, not the overall trend. In reality, the previous years had been flat showing no increase, which was very much out of line with reality. It would appear that a fairly sizable backlog was released in the year, making the results look bigger than they really were.
More over, the point is that while Mike didn’t prove anything in the other article (except perhaps that he didn’t dig for the truth), he has no problem using it here to support some tin foil “patent race” trip he has been on recently. It’s taking opinion, and stacking it on top of another opinion and trying to pass it off as fact. It fails.
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No you.
One thing assured
So we won’t go to war for nukes, we will go to war over patents.
Mutually Patented Destruction?
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So you didn’t actually read the linked article than. Great.
Here’s an alternative – 5-year patents, with credit going to the inventor if they can build a viable model for the idea. That gives ample opportunity to monetise the invention, while also allowing people to use patents once their monetary potential is used up.
But no, that’s not innovative enough.
Perfectly Simple Fix
–Love your proposal.
–Won’t ever happen.
Here’s another one to lower the cost and likelihood of wasteful lawsuits, but which likely won’t see the light of day in the US.
— The Loser pays everything.
One thing assured
MPD(tm)
Don’t forget seizxures, they probably use seizures too.
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Just knocked up a quick graph of granted patents from the USPTO’s own figures. Let’s see….
around 1980-1983 there’s a small upswing in the trend of patents granted following a blip.
Around about 1990 is when more US patents start getting granted to foreigners because while the total patents granted line continues trending upwards the US-sourced patent grants level off until:
Around ’97-’98 the line takes a huge leap upwards. The US-sourced figures mimic this on a much smaller scale. This is also the time of a blip then a large upswing in the number of applications. Clearly some event happened at this time
After this around 2004/2005 it dips significantly for a year back to what would look approx the trend from the pre-’97 phase.
Over the next 2 years it climbs back to the post ’97 trend line, then around ’07 dips to about 1/2 way between the 2 extrapolated trend lines but still trend upwards afterwards in keeping with the average curve.
The final and current figure jumps massively in a way that looks similar to the ’97 jump except larger, suggesting that the “new trend” if/when it levels out to “regular growth” will be signigicantly above the post ’97 levels. This is easier to see on the US-sourced patent grant figures as they have trended significantly less sharply upward until this time.
Now would you like to explain your point again related to these figures?
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Around ’97-’98 the line takes a huge leap upwards. The US-sourced figures mimic this on a much smaller scale. This is also the time of a blip then a large upswing in the number of applications. Clearly some event happened at this time
This is because of the State Street decision that made it clear that a much broader range of software and business methods really were patentable. Suddenly the system was flooded with applications, often for things that people had simply assumed were not patentable earlier.
After this around 2004/2005 it dips significantly for a year back to what would look approx the trend from the pre-’97 phase.
This is about when the Supreme Court started to pushback on massive expansionism of the patent system, with a series of rulings that smacked down CAFC decisions and pushed back on various aspects of patents, including patentability, obviousness, injunctions and other things.
The final and current figure jumps massively in a way that looks similar to the ’97 jump except larger, suggesting that the “new trend” if/when it levels out to “regular growth” will be signigicantly above the post ’97 levels.
Right. Contrary to the assertions by folks above who are somewhat unfamiliar with basic statistics and the details of what’s actually happening, the increase in 2010 was way out of the ordinary, and not at all in light with the past. Unlike the past, there was no such ‘defining’ event. There was the bilski decision mid-year, but that changed nothing of substance.
The idea that patent examiners could magically find time to efficiently and accurately approve “just” 8 or 9 more patents per year is highly misleading as well. Patent examiners ALREADY have very little time to review patents. Squeezing an extra 8 or 9 in per year is a tremendous leap. Anyone who thinks otherwise has no clue how the patent examination process works.
Finally that 8 or 9 is an “average.” What could possibly suddenly make every patent examiner massively more efficient? No one has suggested any viable reason, other than spending less time reviewing patents and simply approving more bad patents.
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This is actually a very significant point. The more aggressive the patent system gets, the more powerful opensource becomes. Open office is widely used now and Linux just keeps getting stronger.
The thing is that all the people that “whine” about piracy and infringement are so focused on how to stop the bleeding that they are missing the growth of an industry.
“But Free doesn’t work.” Tell it to Linux and the consultants that service Linux accounts. Opensource tools are becoming much more widely used and when companies look at free vs licensed, Free is a lot more attractive.
I can’t wait for the Free business model to be patented.
Better solution
I know: I will patent the “streamlining of patent approvals” as a business model and then not allow the patent office to use it.
Curiously I live in Europe and just the other day was talking to people in the know, and the general feeling is that we should have more citizens and entrepreneurs aware of the patent system, BUT, as a EPO examiner said, even if we get a million applications each year, we WILL reject 99.9% of those if they do not meet the requirements… and that’s it.. and we are NOT catching up to anyone… call it European pride, but we see China and the US as bad examples in patenting practices!
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Your claims about the Masnick Effects continue to be contested on Wikipedia.
One thing assured
Weapons of Economic Disaster. WED.
Software Patents
What’s the betting that when the details of the new proposal from the EU commission are revealed they will just happen to “clarify” that software is fully patentable in the EU?
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The order to approve more patents “to stay competitive” will come from the top. These examiners will have to comply or they’ll get the boot, like all other bureaucrats at the bottom of the food chain…
One thing assured
Or destruction. Whatever, I need sleep.
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What could possibly suddenly make every patent examiner massively more efficient?
There is the simple answer: Overlap from the previous year. If there was a major backlog (and it appears that after 2006, things seems to slow down), then it is possible that the backlog cleared out in an 18 month period.
What was most telling is this line from the “source” post:
The increased number of issuances raises some concern that the PTO has lowered its standard for patentability. It is true, that a higher percentage of applications are resulting in issued patents. However, the PTO is also rejecting more applications than ever before
It would suggest that they have changed their work methods to process more applications overall. As there was only a small increase in applications, but significant increases in both approvals AND rejections, you know that they are looking at more documents overall. If they were just in the business of rubber stamping anything, they could have also approved all of those rejected ones as well.
Rodent: Your numbers are correct, but a little misleading. Look at it with a “high, low, and trend” like you would be looking at the stock market. There is a moving average, but there is also a high peak and low peak. If you take the graph from the original post, and draw a straight line from 1984 through to 2004 (which was a very low year), and then draw a second line from 1985 to 2010, you will get a “cone”. All of the data fall inside this cone. You now have your “high” and “low” lines. Add your own trend line in the middle, and you get a better picture of the deal. 2010 looks big by itself, but is in reality right inside the cone (the validity is easy to see, the high line naturally hits each of the peak points along the way, with no need to adjust).
Mike, because you are looking for a reason to slam patents, you are looking at the data and trying to dream up all sorts of evil implications. Example:
http://www.youtube.com/watch?v=GMN67f5KB6A
(nice hand held camera of the TV video… do you think this video is “with permissions”?)
Clearly, if changes were made to focus on substantive issues of the patent application (as opposed to wrote processing without looking at the meat of the application) it would take longer to find reasons to either reject or move forward with the application. That there is an increase in rejections and approvals suggests they have better triage of the income applications, and that they may be working a little better with those applying for patents to “skip to the chase” on things and see where they are landing.
It would appear that a change of methods is key to the change in results, not some horrible nasty plan of world domination (Risk, anyone?) from Obama.
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The idea that patent examiners could magically find time to efficiently and accurately approve “just” 8 or 9 more patents per year is highly misleading as well. Patent examiners ALREADY have very little time to review patents. Squeezing an extra 8 or 9 in per year is a tremendous leap. Anyone who thinks otherwise has no clue how the patent examination process works.
Do you have any clue as to how the patent examination process works? Because I’m not sure that you do.
You seem to be of the mindset that Rejection=Quality. That was the mindset that Directors Dudas and Doll took when they were directors of the USPTO, as their policies involved quality control analysis over notices of allowance but not over rejections. However, that mentality is incorrect, as it encourages the rejection of worthy applications. Bad rejections gum-up the works, as they do not incentivize applicants to concede subject matter during examination. Bad rejections encourage applicants to file requests for continued examination or notices of appeal, which increase the pendency of their respective applications.
If you want to see a truer picture of whether the quality of examination has risen or lowered, I would suggest you look at other sources of explanation, such as rising or falling rates of abandonment, length of time in prosecution from first action to allowance or abandonment, the disposal rate of cases on appeal, and the reasons for such disposals.
Finally that 8 or 9 is an “average.” What could possibly suddenly make every patent examiner massively more efficient? No one has suggested any viable reason, other than spending less time reviewing patents and simply approving more bad patents.
Why does efficiency have to be about examining more applications? Why can’t it be just proper examination, which leads to proper disposal? When patent applications are properly examined and rejected or allowed, it reduces the pendency of such applications, as allowances lead to issued patents, and good rejections encourage applicants to narrow their claims or abandon their applications altogether.
Once again, rejection does not equal quality. If an application lands on an examiner’s desk and meets the requirements for patentability, it should be allowed by the examiner. Examiners should not conjure up reasons to reject the application just to give the impression of quality.
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That all sounds very impressive but I’m not an expert in statistical analysis, which is what you are doing, so lets take a look and perhaps you can explain to me:
The data goes back to 1963. Why did you choose 1984 particularly as a start point? The overall trend appears an increasing curve not a cone which makes more sense if you compare it to the smoother curve with fewer aberations representign the number of applications. If you take a similar approach across all the data then if you use your endpoints a significant part of the curve is outside the cone, if you take a line from the beginning to the high/low points then few of the data points approach the bounds of the cone making it largely irrelevant.
Also, why the end points? 2010 is obviously both the high point and the final value, but 2004 isnt the “low point” (actually I’m assuming you mean 2005 since 2004 is only about 1/3 the way down that particular fall)- it’s one dip on the line. You could equally argue 1988, 2007 or perhaps even the ’97/’98 elbow are the “low point”
In the absence of a reason for extrapolating these particular points, the dates seem arbitarily chosen to make the cone fit around an arbitary chunk of the available data.
No in fact they don’t. Most gets close, but at the lower end up to 1997 a significant number of the data points are slightly below the lower bound you suggest.
No idea how to crunch the numbers on this one nor the desire to spend that much time finding out, but visual observation appears there is significantly more area above the supposed “mid line” than below scewed towards the later part. What would you say is the relevance of that? To me it suggests a curve relationship more than a line or cone.
Only within the apparantly arbitary start and end values set. If you choose almost any other values the relationship gets far more murky. So what is the relevance of those dates or values chosen as fixed points that validates your theorum?
No, the line is consistantly increasing to 2008 when it levels off but does not drop significantly. Do you have any data to support the 18-month figure for “backlog clearance”? Faintly possible according to that theory but that would mean the improved turnover came in the latter 6 months of 2010.
There are no values in the data I referred to of either rejection count or number of patents processed in a year. What is your source of data for the increased number of rejections? Without any specific evidence of changes to process or significant changes in staffing levels or data of what year the approved applications come from, there is nothing to support the theorum that the number of rejections also went up.
In the absence of analysis of where statistics come from I subscribe to the Douglas Adams theory of statistics; “Statistics don’t tell you anything you didn’t already know except that everyone in the galaxy has 2.4 legs and owns a hyena”. Or the less obscure “93.41% of statistics are made up on the spot”.
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The data goes back to 1963. Why did you choose 1984 particularly as a start point?
I was working from the graphic provided. I shy away from the first couple of years on it, because there was no clear trend. The real increases in patent activity appear to have happened in the mid 80s
No, the line is consistantly increasing to 2008 when it levels off but does not drop significantly. Do you have any data to support the 18-month figure for “backlog clearance”? Faintly possible according to that theory but that would mean the improved turnover came in the latter 6 months of 2010.
The key answer is that more patents have been approved, but also more have been rejected. The new administrator for the USPTO appears (by his own words) to have change some of the methods that were used to review patents. At the same time, it is reported that patent applications have only increased slightly. From the original article:
The dramatic rise in issuance rate is not tied directly to an increase in filings (although there has been a small increase in new application filings). Rather, the increase appears to be the result of administrative changes instituted by USPTO Director David Kappos who took office mid-year 2009 after being nominated by President Barack Obama.
What is your source of data for the increased number of rejections?
The same base article that Mike Masnick worked from:
It is true, that a higher percentage of applications are resulting in issued patents. However, the PTO is also rejecting more applications than ever before.
In the absence of a reason for extrapolating these particular points, the dates seem arbitarily chosen to make the cone fit around an arbitary chunk of the available data.
I looked for the low points (drops) and I looked for high points (peaks). 96/97 area is still increasing, so not a drop off. 2004 (or 05, I don’t love the graph) is a significant drop. Connection the biggest drop years together and connecting the higher peaks together gives a space of operation. The end idea isn’t to be exact (some data may fall a hairs width outside, but rather to show the overall patterns, which are clear: The 2010 peak isn’t really out of pattern.
More importantly, if the new director and the new review methods has been in place longer in 2009, the increase in 2010 would have likely been lower, as 2009 likely would have had more patents approved.
The main point out of all of this is that Mike Masnick is attributing to malice what can be much more easily explained by improved methods, a fair backlog of applications:
http://www.patentlyo.com/patent/2010/07/patently-o-bits-and-bytes-uspto-ppac-morning-report.html
In January 2009, PTO had about 765k unexamined utility patent applications. That number is now down to about 735k. The PTO is pushing a 699k campaign to drive the number of unexamined cases under 700,000 this year.
The PTO has made 62 new ?experienced? hires this FY.
Increasing staff, better methods in processing the applications… it all adds up. Mike tries to paint it as some evil world politics game, but really the USPTO is far in the weeds, they have enough applications on hand that it would take 3 or 4 years at the current rate to clear them if they were not getting 8000+ new applications a week (damn, innovation still happens in the US!).
It kicks the soap box out from under him completely on this issue.
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That doesn’t actually answer the question – it still sounds like you’ve chosen a point to fit your theory. Move the graph a year or 2 either way and your clear answer isn’t so clear. “First couple of years?” I’m looking at almost 20 years of data before your start-point you have discounted.
Looking back to 1963, which is when the patent office’s data starts from, the patents applied line for line is a very clear curve with a couple of blips. The patents granted line very roughly follows this, though in a much more “blippy” fashion. It’s also trends slightly down from about ’73 to ’79 where it dips sharply before the upward trend starts. So why didn’t you choose ’80 as the start point? ’85 only makes sense as a start date if you can point to a specific event or set of events that might have started the trend you suggest.
Except the USPTO report (PDF) suggests only a 0.3 month average improvement over 2009 in patent pendency against a 25%+ increase in patents granted over 2009 and according to you a similar increase in rejections. It also suggests the average patent pendency is over 35 months suggesting that the “backlog” is likely far from cleared as dramatic increases in applications have only stopped 2 years ago.
[citation needed] Unless I’m missing it there’s no source for rejections data cited in the article either.
Extrapolating that, it would mean that by approx 2020 a variation year on year of over 100,000 patents approved (approx 30% of “maximum” total approved) would be perfectly acceptable and within the pattern. Does that sound right?
The report linked before goes back to 2006 and shows an increase in pendency rates over that time except for the last year.
I’m sorry it’s increasingly looking like you have pulled your numbers largely out of thin air or perhaps somewhere lower, darker and more personal.
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I used the graphic in Mike’s orignal story:
http://i.imgur.com/fErsO.jpg
it starts in 1980. I didn’t use 1980 or 1981 because on the graph, there is no say if they are up or down from the previous years. Longer term data samples may show different results, but 1980 is truly the start of the “modern age of patent” in the US, which sharp increases in applications and approvals.
Except the USPTO report (PDF) suggests only a 0.3 month average improvement over 2009 in patent pendency against a 25%+ increase in patents granted over 2009 and according to you a similar increase in rejections. It also suggests the average patent pendency is over 35 months suggesting that the “backlog” is likely far from cleared as dramatic increases in applications have only stopped 2 years ago
The new administrator only took over in late 2009 and worked to put new practices in place. There is an increase in 2009, and again in 2010. I do wish you would quote from that PDF, because it is an awfully long document to read to try to determine your point. However, this is key:
Productivity was up by 3.6 percent over the same time last year. The year?s total production units were 522,407 versus 504,481 production units in FY 2009. Allowances have increased from 189,120 last year to 240,438 this year. Final rejections ended the year with 258,436 final rejections, compared to 238,497 for the same period in FY 2009.
While they processing time may have only dropped slightly, the number of “units” transacted were up 3.5%, with increases in both approvals and rejections (which denies the idea of a rubber stamp policy).
The report linked before goes back to 2006 and shows an increase in pendency rates over that time except for the last year.
Yes it does. The number of applications being made it going up, and the last few years the Patent office appears to have been getting bogged down. Pendency is a trailing indicator (as it takes a long time to build up and a long time to go back down, regardless of actions). With 700,000+ pending “units” and 400,000+ added each year, the delay times won’t show any drop until 2011 or even 2012, as that backlog number drops. The number is finally solidly below 2 years of submissions, which should help to move that number back down under 24 months.
I’m sorry it’s increasingly looking like you have pulled your numbers largely out of thin air or perhaps somewhere lower, darker and more personal.
No, I am taking them from the same sources that Mike Masnick used. My feeling is that if you want to find something sinister in the numbers, you can find them. I am just offering an alternate explanation that isn’t very sinister, and certainly appears to be just as plausible as those provided by the anti-patent tin foil hat brigade.
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That’s utility patents not patents over all. Are they processed by different people? Try this, which I posted in a previous article for you and where I’m getting my stats from. Also that still doesn’t have any reference to rejections. Where are you getting the rejection data from?
No it doesn’t. To do that it would require evidence of an improved methodology, (which ought to have followed some established process improvement framework – CMM is popular with the US government – and should certainly have it’s own associated metrics). Or a significant increase in the number of examiners or some other more concrete reason than “We did better”.
Without such evidence in fact it would tend to suggest “rubber stamping” as you put it rather than refute it.
I wasn’t suggesting anything sinisiter in the numbers I was suggesting politely that it looked like you’d pulled yours out of your backside. In fact I wasn’t particularly suggesting anything in the numbers, merely quoteing specific numbers and using them to challenge the assertations you had made without quoting any supporting evidence.
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Where are you getting the rejection data from
The rejection data is from the very PDF you directed me to.
I understand that you are pointing at different numbers. I am working for the original post that Mike made on the subject, which included the graphic I pointed to. I am working with the data he provided. Are you suggesting that he misread the data or forgot to mention something about it?
When you seperate out utility patents from design patents, it might even explain the increase in patents reviewed overall. Clearly, a utility patent is a little more straight forward, and much easier to handle. It would appear they put a lot of emphasis on this area, as the increase is all there (design patent approval actually drops). Since those can be handled faster than a design patent, the potential in the large increase is all about focus.
I wasn’t suggesting anything sinisiter in the numbers
Actually, the “you” was that general you referencing to the actions of Mike in this instance. The supporting evidence I used to start with all came from the items in Mike’s original post. Your added information (the stuff he decided we didn’t need to know) makes his point of view look even less likely, and gives great credibility to the idea of a more efficient process, as promised by the new boss.
The rubber stamp issue is a non-starter. If they want to just speed things up without consideration, they wouldn’t even both to read the applications, and would just approve them. That more patents were refused than approved (by a long shot, applications were more than twice the approved rate, even if you offset the applications by 2 years). Clearly they aren’t just passing anything.
So Mike suggesting they are approving new patents “willy-nilly” is just plain wrong, not supported by what he links to, and destroyed by what you added to the discussion.
Thanks 🙂
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That’s misleading. Rubber stamping” doesn’t have to mean random selection as you suggest and it would be ridiculous if that were the case. If you put a focus on handling more patents, which they did, it can work one of 2 ways. Process improvement can produce results without sacrificing quality or your new process can simply speed up the process without improving it.
“Proper” process improvement and change usually reduces speed for some period while new process is tested and implemented and people are not familiar with it. That might be supported by the dip ’07-’08, but you suggest this is before the “new boss” started process improvement.
Speed on the other hand is easier to acheive – a “nip” here a “tuck” there in existing process and voila. The problem with that is that with the focus on speeding up the process it can miss qulity.
Take for example UK road safety policy. In the ’90’s the government started focussing on speeding as the key aspect, presumably because it’s efficient to enforce and easy to metric – speeding conviction rates have since gone up hugely, sucess right? The government certainly say so Except over the same period the number of road deaths has drifted up off the trend line of it’s steady deline – road deaths are still falling but not as much as before. It’s not necessarily (or ven likely) malicious on the part of the UK government, just misguided.
For my part it was this kind of “rubber stamping” I assumed Mike meant rather than something sinister like the govermnet deliberately throwing out the patent process – that would be ridiculous.
So to say the data proves your point (though your point seems to have changed somewhat through the thread) that a patently ridiculous claim that as far as I can see no-one ever made is hardly justified.
Really?
Convenient Excuse
The EU doesn’t need a reason a to “streamline” (i.e. gain control of) anything – they jumped on these handy headlines to accelerate plans they already had.
Patent Wars - Just showcase of power
I guess these patent wars are just the showcase of powers for the companies. They are ideally blocking the company to find new things after they files a patent for something which is new to the market.