Reminder: Patent Examiners Still Don't Scale

from the nor-will-they dept

It’s a pretty common refrain from folks who are against patent reform that all the problems of the patent system could be easily solved by hiring some more patent examiners. Even some people who do support patent reform think that hiring more examiners would help deal with the problems of the systems. Last week, the GAO, who we often agree with in its analysis, came out with a report also suggesting that hiring more patent examiners, and now existing patent examiners are agreeing with the analysis. The problem, though, is that this hides the real issue. The patent office isn’t inundated with such a huge backlog of patents because it doesn’t have enough patent examiners — but because the system is fundamentally broken. As the courts have continually expanded the reach (and value) of patents, it’s simply encouraged more and more applications to be filed, no matter how ridiculous. Hiring more patent examiners doesn’t solve that. The real trick to solving the problems the patent office is facing is in realizing that patent examiners don’t scale. You don’t just hire more as more patents are being filed — you figure out why more patents are being filed and if there’s a better way to do things. That means looking at the fundamental nature of the patent system and realizing how far the current patent system has drifted from those ideals — and then solving those problems. If they did that, they’d realize that they probably don’t need more patent examiners — they just need a better patent system.

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Comments on “Reminder: Patent Examiners Still Don't Scale”

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Oliver Wendell Jones (profile) says:

How about if they hire a panel of “patent screeners” with a variety of backgrounds and as each new application is submitted it is very briefly reviewed by a group of 3, or so, screeners and they give it a thumbs up or thumbs down on whether or not it’s a legitimate patent application for an idea that is really patentable.

If 2 of the 3 say ‘no’, then it is immediately rejected, otherwise it then moves on to “real” examiners who can do a more thorough job of reviewing.

Does that sound reasonable to anyone?

boomhauer (profile) says:

on that note

i recently found a patent (i think i reff’ed it here once, cant find the linke now), that was issued as recently as a year ago…for a perpetual motion machine. honest-to-gawd motor spinning a generator and use the “excess” energy to power your stuff. seriously i think this one patent sums up just how bad it is. hell the patent office even has a short list of ( i think) 2 things that cannot be patented, and one of them is perpetual motion. friggin amazing

Anonymous Coward says:

It's like spam

This is why hiring more examiners will solve the problem. Right now, the reason that so many patent applications are being filed is there are a small number of patents that are allowed that are “bad.” This allowance of “bad” patents is largely due to examiners not having sufficient time and resources to examine patent applications effectively. So, by adding more patent examiners and giving them the time to do their jobs, the “bad” patents aren’t issued, and that removes the motivation to file questionable applications.

It’s just like spam: if no one buys the product you’re spamming people about, the spam will stop, because it’s not profitable any more. If no “bad” patents issue from the “spammy” applications, it will stop being profitable, and people will either stop filing those types of applications, or, at worst, will get no financial benefit from filing them. Even if all the currently-proposed patent reform is passed, there will still be some value to “bad” patents, and there will therefore still be a motivation to try to obtain them. What will happen is that since the value of each “bad” patent will be reduced, it will be like spam, and applications will end up increasing, because more “bad” patents are needed to keep the same revenue stream. So, in essence, patent reform (as currently proposed) will probably end up making the problem worse, not better.

The basic problem with reform efforts is that they punish everyone, not just the people who file applications for “bad” patents. By marginalizing the value of all patents, it provides a disincentive to spend money on R&D when a company knows their product will just be copied, because the patent they received is very difficult to enforce. That’s why more examiners and giving them more time will solve the problem: it cuts it at its source. Patent reform is sort of like chemotherapy: it harms both legitimate inventors and people trying to game the system (the tumor). On the other hand, hiring more examiners and giving them more time just removes the cause of the problem, the tumor, without hurting the rest of the system.

People like to trot out examples of ridiculous patents (like the one for the perpetual motion machine, or exercising a cat with a laser pointer) as evidence that the system’s broken. When you think about it though, what harm is there in the patent for a perpetual motion machine? Engineers agree that it’s impossible to build one, so therefore no one could ever infringe it. Same thing with the cat laser pointer patent: who is actually going to enforce that patent (even assuming the person who got the patent was actually the first person ever to do that with their cat)? No one, because there would be no appreciable monetary gain. The real problem patents are not these, but the ones that get through with vague language, making it difficult to know exactly what they cover. And that’s the kind of thing that an examiner with more time can correct.

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