Undisclosed USPTO Employees Write Report Saying USPTO Does A Great Job Handling Software & Smartphone Patents

from the gee... dept

Two years ago, I actually found it somewhat encouraging that the US Patent and Trademark Office (USPTO) had hired an economist, since so little of the policy debate over patents deals with the economic issues. In fact, that first hire, Stuart Graham, had done some pretty good work highlighting some problems with the system. Since then, however, it wasn’t that clear from the outside that his work was doing very much. So I found it interesting to see, via Wayfinder Digital, that a new paper in the Journal of Economic Perspectives, written by Stuart Graham and Saurabh Vishnubhakat, who worked for Graham at the USPTO, argues that the USPTO actually does a perfectly good job in handling software and smartphone patents.

Principally, the article highlights how the US Patent Office acts responsibly when it engages constructively with principled criticisms and calls for reform, as it has during the passage and now implementation of the landmark Leahy–Smith America Invents Act of 2011.

What was odd, the folks at Wayfinder noted, was that the bio lines for Graham and Vishnubhakat significantly play down their connection to the USPTO:

Stuart J. H. Graham is an Expert Advisor at the US Patent and Trademark Office. He is an Assistant Professor, Scheller College of Business, Georgia Institute of Technology, Atlanta, Georgia, and is an attorney licensed in the State of New York. Saurabh Vishnubhakat is an Expert Advisor at the US Patent and Trademark Office. He is an Adjunct Professor at the Northern Virginia Community College, Alexandria, Virginia, and is an attorney licensed in the state of Illinois.

Notice that they are named as “advisors” to the USPTO, but their full-time roles are not mentioned. In response to the Wayfinder piece, the Journal explained that the roles had changed “at the last minute.” That is, right before publication, they apparently went from being full-time employees to mere advisors:

Ms. Ann Norman Assistant Editor, JEP relayed the following, “Stuart Graham was Chief Economist at USPTO and now is an Expert Advisor. That status changed only at the last minute, apparently, at the last stages of preparing to send this paper for printing…

“So the authors did disclose their potential conflicts of interest to us, and it was/is an editorial decision as to whether these conflicts were significant enough to post online. We can, in-fact still post the full disclosure statements with the paper, though of course it is too late to mention in the paper itself that the online disclosure statement exists.”

From the sound of that, it certainly appears that the paper itself was written while they were still employed by the USPTO. Given that, it seems highly appropriate for the paper to make their former full-time employment clear. While it’s good that Graham and Vishnubhakat disclosed the proper info, it’s unfortunate that the Journal of Economic Perspectives more or less tried to bury this important piece of information.

As for the report itself, it seems rather meaningless: they point out that it appears that patent examiners covering “software patents” (and they work up a definition) more or less treat them similarly to other patents. And the USPTO’s “internal” quality review suggests they mostly get it right. Also, they point to courts generally ruling disputed patents valid as if somehow everything is working just right. Those don’t exactly seem like the right metrics for determining if a patent really is good or bad, or if it’s causing various innovation-killing issues such as in the smartphone wars and in the wider software ecosystem.

In the meantime, if you talk to anyone actually working in these spaces, all you hear are horror story after horror story about how patent trolls with completely bogus patents are effectively killing off businesses every day. So, while it’s great that the USPTO wants to pat its own back, picking self-serving but meaningless metrics hardly helps to convince the world that the patent system is actually working.

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Comments on “Undisclosed USPTO Employees Write Report Saying USPTO Does A Great Job Handling Software & Smartphone Patents”

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34 Comments
Anonymous Coward says:

Re: not surprising

It is undoubtedly a very suspicious time. On the other hand, this report shows that the courts and USPTO are relatively well in sync on the area, proving that the larger problems are externalities: Bad formulation in substantive laws, bad standards, high damages and the software world not working well with the general patent system.

In other words: USPTO is working very well within its restrictions, so if there are problems with software patents it is not because of bad work from USPTO!

If Obama gets to understand that, it should make it clear that, if anything needs to be done, it is to be changing the laws and not USPTO. That these two are particularly biased for USPTO really subtracts from the conclusion though.

Anonymous Coward says:

Re: Re: not surprising

And here I thought one of the USPTO duties was to reject applications which describe the obvious or do not really describe anything at all.
Oh well, I suppose money trumps all – so yeah, they are working well within expectations never mind the fact that software should not be subject to patent protections at all.

out_of_the_blue says:

This isn't "downplaying", college boy who doesn't give own bio:

“Stuart J. H. Graham is an Expert Advisor at the US Patent and Trademark Office. He is an Assistant Professor, Scheller College of Business, Georgia Institute of Technology, Atlanta, Georgia, and is an attorney licensed in the State of New York. Saurabh Vishnubhakat is an Expert Advisor at the US Patent and Trademark Office. He is an Adjunct Professor at the Northern Virginia Community College, Alexandria, Virginia, and is an attorney licensed in the state of Illinois.” — Perfectly normal clear statements. I suppose you need it highlighted as above.

Since half this piece of dreck is ad hom by casting vague suspicion, first, to establish your own qualifications to criticize their work, Mike, give your bio, at least indicating all current sources of income. By your own standard, how are we to judge your writing unless that’s known?

Then, you yet again set standards too high: a gov’t agency can’t possibly judge all patents to ensure valid and not overlapping, that’s for courts. (Though if required working physical models, all this software stuff is out.)

But besides that, you blame gov’t employees for what criminal “capitalists” are doing in abusing the process and leveraging with legalities. (Actually “criminal” is redundant.) — That’s what’s wrong with the system, Mike, too many people trying to get rich quick through unearned income.

AND YET AGAIN NO SOLUTIONS OFFERED, JUST MORE WHINING.

Take a loopy tour of Techdirt.com! You always end up at same place!
http://techdirt.com/
Where fanboys assert that multi-billion industries are doing it all wrong!

Ninja (profile) says:

Re: This isn't "downplaying", college boy who doesn't give own bio:

Since half this piece of dreck is ad hom by casting vague suspicion, first, to establish your own qualifications to criticize their work, Mike, give your bio, at least indicating all current sources of income. By your own standard, how are we to judge your writing unless that’s known?

That coming from you is rich. We all know you still think Google is the master of all universes and Mike is their evil minion and that regardless of what is said, shown, disclosed, thrown with factual force in your face you will not accept and you will keep asking the same questions without ever contributing to the discussion. Also, you missed the point as usual.

Then, you yet again set standards too high: a gov’t agency can’t possibly judge all patents to ensure valid and not overlapping, that’s for courts.

That’s one point where the patent system fails. I know you think all developers and start ups have tons of money hiding in their pirate chests (GOLD! ARRRRR) to pay for the legal costs of a patent lawsuit from the trolls that get broad, poorly worded patents and use them to shake everybody else down… But you see, they don’t have such money.

But besides that, you blame gov’t employees for what criminal “capitalists” are doing in abusing the process and leveraging with legalities. (Actually “criminal” is redundant.) — That’s what’s wrong with the system, Mike, too many people trying to get rich quick through unearned income.

The only sane and reasonable part of your comment. I’d guess the other ootb managed to kick in here eh? You know, bipolar disturb is very serious ootb.. You should get treatment.

AND YET AGAIN NO SOLUTIONS OFFERED, JUST MORE WHINING.

New to techdirt? Try reading a few more articles, there are quite a few ideas to help fix the system all over.

Anonymous Coward says:

Re: This isn't "downplaying", college boy who doesn't give own bio:

” a gov’t agency can’t possibly judge all patents to ensure valid and not overlapping, that’s for courts.”

Typical throw it over the wall attitude seen all too often.
Yeah, don’t take any responsibility just grab the money and run, let someone else clean up the mess you caused because after all you got yours – amirite, you bet I am.

This is so pervasive throughout so called civilization that it is enough to make a person puke.

Anonymous Coward says:

Re: This isn't "downplaying", college boy who doesn't give own bio:

“Notice that they are named as “advisors” to the USPTO…”

Uh…”to” and “at” are not at all synonyms, so this TD statement is inaccurate, but not entirely unexpected given numerous articles in the past where purported “conflicts of interest” were examined in excruciating, disingenuous, and out-of-context detail. Mr. Duffy comes to mind for a presentation he made to attorneys, everyone of whom well knew his professional background and associations.

The linked paper authored by the two persons “at” the USPTO’s Office of Chief Economist contains much useful information. Unfortunately, it cuts against the grain of what the principals at TD assert to be the “norm”, i.e., a bunch of hacks lacking in technical expertise and constantly passing to issue completely “obvious” patents. Of course, any challenges to such over the top statements are dismissed out of hand by claiming that persons making such challenges are not to be believed because they stand to benefit from the patent system.

MrWilson says:

Re: This isn't "downplaying", college boy who doesn't give own bio:

As a show of good faith, especially since you’re such a man of high principles, I’m sure you would apply your own standards to yourself and provide us with a bio and proof of all your sources of income.

I mean, you wouldn’t just be whining about Mike without offering any real solutions, right?

Anonymous Coward says:

Re: This isn't "downplaying", college boy who doesn't give own bio:

“Then, you yet again set standards too high: a gov’t agency can’t possibly judge all patents to ensure valid and not overlapping, that’s for courts.”

Lets see…. a 2013 application for “a system for accepting payments through a website”. Hmmm never heard of that before, lots of techno babble and code I don’t understand, good good they hired a lawyer to turn a 1 paragraph description into 3 pages of hogwash. APPROVED!

Mike Masnick (profile) says:

Re: Advisor is full time

Advisor is generally a full time position in the government. It can be part time, but it always denotes employment. Get the facts.

Anyone reading this would note that both people are named as professors and would reasonably conclude that they are, in fact, full time professors, and that the advisory role is part time.

special interesting says:

The USPTO hired Stuart Graham for an unassuming economics review about software patents does not seem like independent review. It seems like a cigarette argument to me. Even if the USPTO does the enforcement well that does not imply that whatever laws or regulations were good for us in the first place. (note that this little rant is only about software patents not whatever else the USPTO does)

what is a ?cigarette argument?? bear with me, Its a bit of an explanation such that it deserves the phraseology.

For those who don’t remember cigarettes were extremely popular for the last 100 or so years and medical awareness (want to say technology but you could be a caveman and still recognize the dangers) was primitive at best. So cigarette companies would advertise in the usual whatever way it took to popularize their brands. That means they would say or do anything to sell themselves to the public at large especially targeting kids. They did not stop selling them when they knew it was bad to smoke cigarettes and even covered up their awareness of such knowledge and still yet supported research that denied that it was hazardous at all. They fought so hard and so well that the public at large took 20 years to catch on. (and sue them for billions) Thus when you sell something bad to someone it even when you know it is bad for the user that could be called a ?cigarette argument?.

A cigarette argument is what the Grim Reaper Shinigami Inc. would use to sell its services to you. Everyone including the Grim Reaper him/herself knows that death is at hand and someone will die whenever one is near. Imagine an advertisement or a spokesperson talking to you: ?It’ll feel good.?, ?You’ll like it for sure.?, ?Give it a try.?, ?Its cool and will impress you friends.?, ?We use only the best scythes and you’d be impressed.? or the like. So its basically buyer beware. Just because some made a product or service (or government regulation or law) does not mean its either good, safe or healthy for you and in any case it will surely cost you. (money? Freedom? your ideas?) I am sure that Grim Reaper Shinigami Inc. does their job well but do I want such a service? No.

So. Do you have some software to patent? You might as well patent mathematics too while your at it. A software patent is like patenting a novel or biology book. Its… foolish

Anonymous Coward says:

Anyone reading this would note that both people are named as *professors* and would reasonably conclude that they are, in fact, full time professors, and that the advisory role is part time.”

Change the words in bold to “some” and “could” and the statement would be more accurate. As it now reads, anyone who concludes otherwise is simply being unreasonable.

staff (user link) says:

lies and damned lies

from the ‘we know nothing about patents’ department

Mere dissembling by thieves! It is not innovation that patents hinder, but the theft of.

?Patent troll?

infringers and their paid puppets? definition of ?patent troll?:

anyone who has the nerve to sue us for stealing their invention

Call it what you will…patent hoarder, patent troll, non-practicing entity, shell company, etc. It all means one thing: ?we?re using your invention and we?re not going to stop or pay?. This is just dissembling by large invention thieves and their paid puppets to kill any inventor support system. It is purely about legalizing theft. The fact is, many of the large multinationals and their puppets who defame inventors in this way themselves make no products in the US or create any American jobs and it is their continued blatant theft which makes it impossible for the true creators to do so. To them the only patents that are legitimate are their own -if they have any.

It?s about property rights. They should not only be for the rich and powerful. Show me a country with weak or ineffective property rights and I?ll show you a weak economy with high unemployment. Does that remind you of any present day country?

Prior to eBay v Mercexchange, small entities had a viable chance at commercializing their inventions. If the defendant was found guilty, an injunction was most always issued. Then the inventor small entity could enjoy the exclusive use of his invention in commercializing it. Unfortunately, injunctions are often no longer available to small entity inventors because of the Supreme Court decision so we have no fair chance to compete with much larger entities who are now free to use our inventions. Essentially, large infringers now have your gun and all the bullets. Worse yet, inability to commercialize means those same small entities will not be hiring new employees to roll out their products and services. And now those same parties who killed injunctions for small entities and thus blocked their chance at commercializing now complain that small entity inventors are not commercializing. They created the problem and now they want to blame small entities for it. What dissembling! If you don?t like this state of affairs (your unemployment is running out), tell your Congress member. Then maybe we can get some sense back into the patent system with injunctions fully enforceable on all infringers by all patentees, large and small.

Those wishing to help fight big business giveaways should contact us as below and join the fight as we are building a network of inventors and other stakeholders to lobby Congress to restore property rights for all patent owners -large and small.

For the truth about trolls, please see http://truereform.piausa.org/default.html#pt.

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