How The Patent Office Outsourced Its Job To Non-Expert Jurors

from the this-is-sad dept

I already wrote about Larry Downes blog post suggesting that Paul Allen's patent lawsuits might actually be an attempt to expose problems with the patent system, but I wanted to discuss a different point Downes raised earlier in the post, in discussing the problems of the patent system. Obviously, we've discussed many ways in which the patent system today fails to do what it's supposed to do, and a big part of the problem is the fact that the USPTO seems to approve a ton of crappy patents. This isn't because the examiners aren't trying hard, but just because the very nature of the system, and its inherent lack of scalability, mean the incentives are always going to lead to approvals of bad patents.

But what does this mean in practice? Downes highlights the problem this causes in a very simple way: it's the USPTO outsourcing the patent review process to unskilled juries:
The result has been the creation of a shadow patent examination process through litigation. The grant of a patent is no longer the final step, in other words. The de facto examination really takes place when the holder tries to enforce the patent against an alleged infringer, and the defendant claims invalidity of the patent as a defense. When such cases go to trial, which they rarely do, a jury of laymen are then tasked with doing the work avoided by the patent examiner.

In effect, the patent office has outsourced its job to the judiciary and in particular to a jury of non-experts. If nothing else, that is a feature of the modern system that absolutely no one is happy with, or in any event that no one can justify.
This is a pretty big problem when you think about it. Already, there are concerns that the supposed patent examiner "experts" often don't have enough expertise to judge the non-obviousness of certain inventions. To then shift the burden to inherently unskilled non-experts to make that decision, even with advocates for both sides fighting it out in front of them, seems to go against the very idea that patents are supposed to only be allowed if they are non-obvious to those of ordinary skill in the art. Asking those not skilled in the art to make that judgment seems like a mistake.

Filed Under: experts, juries, obviousness, patents


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  1. icon
    sehlat (profile), 1 Sep 2010 @ 4:19pm

    Re: Re: Actually, you CAN justify it.

    Actually, a hunting season for lawyers has been proposed, subject to some strict rules to make the hunt "fair" for some value of fair.

    NEW REGULATIONS FOR THE HUNTING OF LAWYERS

    Government Department of Fish and "WildLife" Sec. 1200

    1. Any person with a valid hunting license may harvest attorneys.
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    6. It shall be unlawful to hunt attorneys within 100 yards of BMW dealerships.
    7. It shall be unlawful to hunt attorneys within 200 yards of courtrooms, law libraries, whorehouses, health spas, gay bars, ambulances, or hospitals.
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    9. Stuffed or mounted attorneys must have a state health department inspection for rabies, and vermin.
    10. It shall be illegal for a hunter to disguise himself as a reporter, drugdealer, pimp, female legal clerk, sheep, accident victim, bookie, or taxaccountant for the purpose of hunting attorneys.
    BAG LIMITS (Maximum number of catches allowed per hunting season)
    1. Yellow Bellied Sidewinder... (2)
    2. Two-faced Tort Feasor... (1)
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    6. Honest Attorney... (0) (On the Endangered Species List) (Illegal to hunt)
    7. Cut-throat... (2)
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    9. Brown-nosed Judge Kisser... (2)
    10. Silver-tongued Drug Defender... ($100 BOUNTY)

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