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
    ohwilleke, 3 Mar 2008 @ 2:25pm

    Why not?

    I don't necessarily have a strong opinion on why patent examiners do or do not scale. But, neither this post, nor the posts back linked, suggest why this is the case, only that empirical evidence suggest that it may be true.

    But, if one is going to find a solution (and peer reviewed patents are simply another name for believing that it is possible to hire more patent examiners who are willing to work for free, itself a questionable assumption outside the world of academia where everyone is on salary to start with anyway), one has to know why scaling doesn't work.

    This said, one of the easier ways you could solve the problem would be to emulate the system for copyright or real estate. Rather than determining the merits of a patent application in advance, one would simply file an application to provide definitive proof of time of application. Presumptions of validity would be eliminated and the merits would be decided only in litigated cases.

    Instead of relying on patent examiners, big companies with potentially very valueable patents upon which they needed to reply would turn to opinion letters from private patent lawyers, in much the same way that commercial real estate companies rely upon title insurance companies, and oil and gas firms obtain elaborate title opinions from oil and gas lawyers before drilling.

    Little guy inventors could file and hope, paying only to have an application drawn up, and not invest the money in the prior art/obviousness due diligence until an investor approached the little guy inventor and financed the relevant validity opinion.

    Private lawyers exposing themselves to liability in a validity opinion would likely be more cautious about doing so than patent officers who have immunity from liability if the overlook prior art or obviousness or some other flaw, giving them an incentive to rubber stamp applications if they are overburdened.

    Indeed, if one wanted something close to the current system, one could allow the presumptions of an existing PTO screened patent to apply in cases where a bonded and insured patent bar member has filed a validity opinion upon which that bar member is exposed to liability.

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