The Patent System Does Not Scale

from the bad-patents,-bad dept

For the past five years, one of the points we’ve raised repeatedly in discussing the problems with the patent system is the simple fact that patent examiners don’t scale. The system we have today where every invention needs to be reviewed and approved by examiners at the Patent Office is inherently unsustainable given the general pace of innovation, which increases rapidly. And for a patent office to actually handle that kind of thing, it would need to keep increasing its staffing levels, while hiring the absolute top of the top. That’s simply impossible. Honestly, the very idea that you would have a group of people “certifying” every invention is pretty absurd when you think about it — and it’s a point we’ve brought up a few more times over the years, because it’s important, and doesn’t get much attention.

So, it’s great to see others are starting to make this point as well. Red Monk analyst Stephen O’Grady has a great post explaining that it’s because of that scalability issue, that he’s against software patents (he limits it to software given that being his own experience area):

The reason I am against software patents is, by contrast, very simple. It’s not rooted in philosophy, it doesn’t involve theories of good or evil; it’s not even about debating what is likely to spur more or less innovation.

I am against software patents because it is not reasonable to expect that the current patent system, nor even one designed to improve or replace it, will ever be able to accurately determine what might be considered legitimately patentable from the overwhelming volume of innovations in software. Even the most trivial of software applications involves hundreds, potentially thousands of design decisions which might be considered by those aggressively seeking patents as potentially protectable inventions. If even the most basic elements of these are patentable, as they are currently, the patent system will be fundamentally unable to scale to meet that demand. As it is today.

In addition to questions of volume are issues of expertise; for some of the proposed inventions, there may only be a handful of people in the world qualified to actually make a judgment on whether a development is sufficiently innovative so as to justify a patent. None of those people, presumably, will be employed by the patent office. Nor are the incentives for fact witnesses remotely sufficient. Nor will two developers always come to the same conclusions as to the degree to which a given invention is unique….

If we acknowledge that this is the case, which I believe one must if the available evidence is considered, then it is no longer possible — whatever your philosophical viewpoint — to be in favor of software patents.

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Comments on “The Patent System Does Not Scale”

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Anonymous Coward says:

“And for a patent office to actually handle that kind of thing, it would need to keep increasing its staffing levels, “

Which takes away from resources that could be better spent on innovation, not to mention it’s a burden to our economy. Even if these staff wouldn’t otherwise be direct innovators themselves their presence in the patent office takes away from “lower level” economic needs elsewhere and those economic needs will then have to be filled by the rest of society which would ultimately mean that those who do innovate will be spending more time doing lower level work instead of higher level innovation.

“while hiring the absolute top of the top.”

So instead of the top of the top actually innovating they will be involved in the patent office. Not good.

McBeese says:


Agree 100% with O’Grady’s perspective. Software is not patentable.

Copyright for a functional application – yes. Patent – no. Even copyright protection won’t really apply because with software it is so easy to implement the same capability with a slightly different twist. Copyright is useful to protect against the cloners, not against the rest of the software development community.

Lynne W (profile) says:

Ad-hoc hive minds to the rescue

Perhaps having swarms of people with relevant experience review incoming patent applications would be helpful, at least in terms of prior art. Make the patent system more like Wikipedia, in other words.

Examiners retain their skills and usefulness, but now have large numbers of people available for add’l brain mass. Part of their job would now involve guiding, editing, and otherwise overseeing the function of the patent-review swarm. As with Wikipedia, I would expect to see groupings consisting of “the usual suspects” for a given topic.

I can see lots of flaws in this model, but I also think that it wouldn’t be any worse, and offers the potential to keep patents unique and the system functioning at top speed.

Anonymous Coward says:

Re: Ad-hoc hive minds to the rescue

“Examiners retain their skills and usefulness”

One problem is that it’s very difficult to force people to stay at the same job forever. On average people change jobs very frequently, you’ll be hard pressed to keep someone as a patent examiner forever. Not to mention I would rather those useful skills be used to innovate instead of grant patents and the same goes with the skills of all the people required to administer this monstrosity (and the cost, which is more resources being taken away from innovation).

TesserId (profile) says:

Real Innovation Doesn't Advance That Quickly

All this rapid growth is really the product of ideas feeding off each other, so it isn’t real innovation–it’s just throwing existing technologies together.

Real innovation requires much more effort then what we see today. Unfortunately, the patent office is too swamped to take the time to reflect on what constitutes real innovation.

Anonymous Coward says:

Re: Re:

We are going to start experiencing quite the exponential growth as far as innovation goes. But a few more pencil pushers will do?

I asked the smartest kid I know what they wanted to be when they grow up and they didn’t say, “I want to review patents!”

I believe they want to actually make things. So if the brightest aren’t willing, who is?

staff (profile) says:


“Honestly, the very idea that you would have a group of people “certifying” every invention is pretty absurd when you think about it…”

Well, that’s how the PTO has operated for about 200 years, and up til recently historically successfully when you look at how the US has led the world. Maybe it’s your brain that doesn’t scale?

Stuart Fox (profile) says:

Patent System Does Not Scale

The Australian patent system – – has an optional ‘Innovation Patent’ which is “granted” automatically without full examination within 3 months of application and lasting 8 years.

If a patentee wishes to commence infringement action then the Patent must first be examined and certified as complying with the lesser requirements of an Innovation Patent. Third parties may also request the examination.

Since most patents are never infringed and the shorter period will satisfy many applicants, the Innovation Patent with its swift handling and much lower costs is suiting many applicants.

Stuart Fox

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