USPTO Ramping Up Patent Approvals

from the this-is-not-a-good-thing dept

A bunch of folks sent over a silly and somewhat uninformed article claiming that the US Patent Office was aiming to block small businesses from filing patents by increasing the costs of patent applications so that only large companies could afford it. It's not worth wasting much time on that article, other than to say it's just wrong. The fee plans include an option to let small businesses and individual inventors qualify for cheaper fees -- which is actually something that I think is a problem. And, more importantly, the fee for filing a patent is a tiny fraction of the cost of getting a patent. The argument that the USPTO is looking to make it more difficult for small businesses to file for patents is incredibly uninformed. In fact, lately, the USPTO has been bending over backwards to make things easier for small businesses.

But, the article does mention, correctly, that the USPTO has been on a mission to decrease the amount of time it takes to review a patent. Now, the USPTO has been saying this for quite some time, and usually it's followed by talk of plans to hire more patent examiners. Of course, that's the wrong way to go about things. That's because the patent system doesn't scale, while the rate of innovation actually is scaling. The real way to decrease the time it takes to review a patent is to stop approving bogus patents. Seriously.

Unfortunately, it looks like the new USPTO, under David Kappos, may be going in the opposite direction.

In the late 90s into the early 2000s, the rate of patent approvals was quite high, leading to more patents being filed and more questionable lawsuits. After Lerner and Jaffe published their book Innovation and its Discontents, which highlighted the massive problems of the patent system -- including that examiners had more incentives to approve patents than deny them, the USPTO finally began to shift a little, and it actually began to get more difficult for patent approvals. Add to that a series of miraculously smart Supreme Court rulings on patent issues (with KSR's decision redefining how "obviousness" is measured being a small, but useful, step in the right direction), suddenly patent approval ratings dropped -- dropping from around 70% to around 50% in just a few years.

However, is all that being reversed? Patently-O recently pointed out that the USPTO appears to be approving patents at a much higher rate again, and there's lots of speculation as to why. Many assume that, as was noted in the original link above, Kappos and his boss, Commerce Secretary Gary Locke, are focused on reducing backlog. And so the incentives and pressure within the USPTO is to just approve patents to get them out of the way. If true, this is incredibly short-sighted and will backfire. The end result is that more bad patents get approved, and when bad patents get approved it increases bad lawsuits, followed by bad rulings for huge sums of money... leading more people to file for more bad patents hoping to win the same kind of jackpot.

There is, also, the more cynical argument, which is that since the USPTO is funded by fees, and as it is always looking to increase its budget (what organization doesn't?), it approves more patents to get more applications in, knowing that it can get more money that way. I'd like to hope this isn't the case, but either way, the pace of approvals is troubling.

Filed Under: approvals, backlog, patents

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  1. identicon
    step back, 14 May 2010 @ 4:54am

    Liar liar, Masnik pants a fire

    @ comment 8 Masnik writes:
    "if rejected, you can just keep trying over and over and over again. There is no real "final" rejection in the process. So this actually can clog up the system even more, and the examiners know that, since they have to spend time ..."

    There are multiple deceptions embedded in that response (@8).

    (1) Firstly, the second Office Action is almost always a "Final" rejection.

    (2) Second the clock keeps ticking down on the inventor's 20 year time limit, and trust me, patent examiners know very well how to suck down on what time is left. They automatically get and almost always suck out the first 14 months plus 4 months for every round of response.

    (3) Third, few inventors can be their own patent attorneys or agents. It is very costly to hire an attorney/agent and an inventor's funds are finite. So just running out of money equals a final rejection. All an examiner has to do is cycle an inventor of limited means though a couple of cycles of soak and rinse and the financial consequences equate to a final rejection.

    (4) Masnik would like his readers/followers to believe in the myth of the evil and fabulously rich patent troll who is just sitting there under the bridge with all the time in the world to milk the patent system for all it's worth while contributing nothing in return.

    (5) The reality is often the other way around. The Patent Office is (was?) the troll milking poor inventors out of everything they have while taking their invention disclosures and publishing them for everyone else to freely take of while giving the inventors nothing in return for their efforts. Liar liar. Recant thy misinforming brimstone and fire.

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