Psst! Patent Examiners Do Not Scale

from the repeat-after-me dept

It's a refrain we've been repeating year after year: patent examiners don't scale. While some patent system supporters continue to insist the only problem with the patent system is not enough examiners, that's simply incorrect. Thanks to the way the patent system has changed over the years, combined with the ever-increasing rate of technological change and advancement, the number of patent applications are only going to increase at a rather rapid rate -- far exceeding any attempt to hire out of the backlog. The Government Accountability Office has basically said as much, admitting that even if the USPTO could hire 1,200 new examiners each year over the next five years, the patent backlog would continue to increase.

The answer is clearly not to focus on hiring more patent examiners. The way the system is currently designed, this is not a problem you solve by hiring more people. You only solve this problem by reducing the number of patent applications. And, the only way to do that is to completely revamp the patent system itself. Don't think the current attempt at patent reform is the answer, either. While there are some good things in there, the proposal to switch from a "first to invent" system to a "first to file" system will make this problem worse. By using a "first to file" system, the incentive is to file as quickly as possible for any idea possible, to make sure you beat anyone else. A first to invent system at least gives the person some leeway to make sure that it's worth filing.

In the meantime, let's repeat it once more: patent examiners don't scale. If you design the patent system to expand at a rapid rate (which, thanks to the USPTO, the courts and Congress, we have...), then it's only natural that it will scale well beyond the reach of a system that requires humans to analyze each and every patent. The end result is that a lot of bad applications get approved, which only increases the problem, since more people try to patent bad concepts, knowing that they have a decent chance of getting it through the system.
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Filed Under: patent examiners, patent reform, patents


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  1. identicon
    Andrew D. Todd, 29 Feb 2008 @ 9:14pm

    Why Not Virtual Working Models?

    Re: #8, utility is important by Chronno S. Trigger on Feb 29th, 2008 @ 1:43pm

    Better still, require computer models or simulations, as a (partial) fulfilment of the working model requirement, and require these to be incorporated in the text of the patent. Even binaries can be printed in "4-bytes-for-3-bytes" notation (eg. UUEncode, MIME encoding, etc). At this stage, we have software systems, such as CAD/CAM, which model virtually all areas of technology. A CAD/CAM file is effectively a kind of computer program. Such a requirement would not be a significant burden to the legitimate inventor, since he would be creating such files anyway. The nature of a programming language would force the patent applicant to state exactly what he meant, otherwise the program would not compile. Additionally, it would force him to use the same kind of language customarily used for prior art. In the case of personal computer software, that is generally the C programming language. One could probably construct a search engine which would go looking for syntactic similarities in open-source codebases. Because the working model was published, it would be comparatively easy for third parties, free of the patent office's atmosphere of corruption, to construct search queries which would locate similarities.

    The physical model requirement should be reserved for purported inventions which claim to challenge generally accepted physical laws, eg. perpetual motion machines, faster-than-light starships, etc.

    There are of course details to be worked out, such as what file formats or programming languages would be acceptable.

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