Patent Examiners Don't Scale

from the in-case-you-were-wondering dept

Almost all of the publicly discussed plans for patent reform tend to focus on a few minor changes to the system and then dumping a lot more money into hiring more examiners. Unfortunately, such a solution doesn't work when people don't want to be patent examiners. With the continued growth in patent applications due to the fact that companies feel they need to patent everything just in case, and the layer of complexity in many new patents -- the backlog keeps getting bigger and bigger -- and with it, the pressure on existing patent examiners. In fact, Slashdot is pointing to an article that notes patent examiners are fleeing the Patent Office, as they feel that they're being overworked. They're given impossible quotas by managers who don't seem to understand how much work they need to do. While Jon Dudas, the patent office director, seems to brush off the concern by suggesting this is a minor "management" problem that can be sorted out, it actually seems to be indicative of a much bigger issue: patent examiners don't scale. The method for granting patents is out of date and can't handle the patent system we've set up. If we actually follow Dudas' own reform plan, which would grants patents to those who are "first to file" rather than "first to invent," it will actually make the problem even worse, because it will make companies file as many patents as quickly as possible without doing all of the necessary research. So, Dudas' big plan for patent reform is to get more money to hire more patent examiners just as he has a labor problem on his hands -- and at the same time, overload them even more. Isn't it time we started looking at real solutions for patent reform that recognize the fact that the current system obviously can't scale? This certainly suggests that a system of peer reviewed patents that allowed various experts in the field to weigh in on patents could work better. Other ideas include a more "open source" approach -- where patent applications are published much earlier along with an easy way for anyone in the public to object to the patent and provide prior art. These are solutions that distribute the work outwards and aren't relying on the same patent examiner system that obviously cannot handle the load created by our existing approach to patents.

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  1. identicon
    Jack, 29 Jul 2005 @ 1:42pm

    True, proposed reforms wouldn't help backlog. Why

    If we actually follow Dudas' own reform plan, which would grants patents to those who are "first to file" rather than "first to invent," it will actually make the problem even worse, because it will make companies file as many patents as quickly as possible without doing all of the necessary research.

    Nice article and good point Mike. Perhaps you are wondering why someone would have proposed "reform" makes the backlog even worse. Allow me to offer my answer to that: because the backlog helps the large companies (which don't particularly benefit from patents to begin with). The companies some clame to be behind the so-called reform measures are the large, international tech giants. They have been viewed as pushing this to help them from smaller companies that invent some of the hottest technologies. The longer it takes for patents to get examined, the longer large companies can use the most popular technologies without having to pay for them. Some reform.

    ...plans for patent reform tend to focus on a few minor changes to the system...

    Actually, I think most would say that the proposed reforms are quite drastic, at least as compared to other reforms made over the past century.

    Patent Examiners Don't Scale

    I'd respectfully disagree with you here as well. There are lots of things that don't scale linearly. Engineering dollars spent to net useful technology output, for instance. But examination flow is probably somewhat linear to man-hours spent. So I'd have to disagree here. That people leave the US PTO may simply have more to do with the fact that they can generally make more money writing patents (~$200 / hour) than reviewing them at government wages.

    --Jack


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