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
    cowardly lion, 1 Mar 2008 @ 11:56am

    Re: If I were king...

    interesting parallel, copyrights are registered not examined (50 bucks?) and no maintenance fees are required, period. a patent maintence fee over the life of the patent is over 15K in real present dollars. plus there are pesky statutory damages of the kind the riaa and mpaa usually assess in pursuing infringement. they last 75 years? you wanna protect mickey mouse but not inventors, interesting.

    i prefer to protect entrepreneur and inventors and let the lawyers do what they do in every business, re-allocate the wealth

    the patent office is funded by applicants not the public. in fact, through fee diversion the congress has been spending applicant surplus funds since 1999. turnover of examiners is high and institutional knowledge has suffered. so scale of an examiner is half of the problem, making the pto the best determinant of what is patentable is simply lost and quality declines.

    but the pto is the only agency of the us government that makes money (a kind of inefficiency, actually, as applicants, the tax payers, suffer from pendency and a clicking clock). litigation over patents does not involve the pto, it is between private parties. the pto gets involved only in re-exams and no examiner or the office itself is accountable for the prosecution of the patent (getting it successfully issued).

    the enormous pay-outs are mostly a result of the oligopolistic nature and size of the defendants. big companies dominating big segments of the business[es]

    by incentivizing public publication of invention, the public benefits as this is not a "copyright" but the right to exclude a party from practicing what the claims are interpreted (by judge, jury, lawyers, etc.).

    7 years? many patents have been pending that long and the maximum limit for a patent and any continuation is 20 years

    copyright meanwhile is being protected more and patents are under attack by the very same folks who have the most patent filings and benefit the most from the system, interesting dynamic.

    when you're ahead, freeze the game in your favor and outsource the jobs and lengthen litigation to outlast.

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