by Mike Masnick

Filed Under:
patents, studies, uspto

Undisclosed USPTO Employees Write Report Saying USPTO Does A Great Job Handling Software & Smartphone Patents

from the gee... dept

Two years ago, I actually found it somewhat encouraging that the US Patent and Trademark Office (USPTO) had hired an economist, since so little of the policy debate over patents deals with the economic issues. In fact, that first hire, Stuart Graham, had done some pretty good work highlighting some problems with the system. Since then, however, it wasn't that clear from the outside that his work was doing very much. So I found it interesting to see, via Wayfinder Digital, that a new paper in the Journal of Economic Perspectives, written by Stuart Graham and Saurabh Vishnubhakat, who worked for Graham at the USPTO, argues that the USPTO actually does a perfectly good job in handling software and smartphone patents.
Principally, the article highlights how the US Patent Office acts responsibly when it engages constructively with principled criticisms and calls for reform, as it has during the passage and now implementation of the landmark Leahy–Smith America Invents Act of 2011.
What was odd, the folks at Wayfinder noted, was that the bio lines for Graham and Vishnubhakat significantly play down their connection to the USPTO:
Stuart J. H. Graham is an Expert Advisor at the US Patent and Trademark Office. He is an Assistant Professor, Scheller College of Business, Georgia Institute of Technology, Atlanta, Georgia, and is an attorney licensed in the State of New York. Saurabh Vishnubhakat is an Expert Advisor at the US Patent and Trademark Office. He is an Adjunct Professor at the Northern Virginia Community College, Alexandria, Virginia, and is an attorney licensed in the state of Illinois.
Notice that they are named as "advisors" to the USPTO, but their full-time roles are not mentioned. In response to the Wayfinder piece, the Journal explained that the roles had changed "at the last minute." That is, right before publication, they apparently went from being full-time employees to mere advisors:
Ms. Ann Norman Assistant Editor, JEP relayed the following, "Stuart Graham was Chief Economist at USPTO and now is an Expert Advisor. That status changed only at the last minute, apparently, at the last stages of preparing to send this paper for printing…

"So the authors did disclose their potential conflicts of interest to us, and it was/is an editorial decision as to whether these conflicts were significant enough to post online. We can, in-fact still post the full disclosure statements with the paper, though of course it is too late to mention in the paper itself that the online disclosure statement exists."
From the sound of that, it certainly appears that the paper itself was written while they were still employed by the USPTO. Given that, it seems highly appropriate for the paper to make their former full-time employment clear. While it's good that Graham and Vishnubhakat disclosed the proper info, it's unfortunate that the Journal of Economic Perspectives more or less tried to bury this important piece of information.

As for the report itself, it seems rather meaningless: they point out that it appears that patent examiners covering "software patents" (and they work up a definition) more or less treat them similarly to other patents. And the USPTO's "internal" quality review suggests they mostly get it right. Also, they point to courts generally ruling disputed patents valid as if somehow everything is working just right. Those don't exactly seem like the right metrics for determining if a patent really is good or bad, or if it's causing various innovation-killing issues such as in the smartphone wars and in the wider software ecosystem.

In the meantime, if you talk to anyone actually working in these spaces, all you hear are horror story after horror story about how patent trolls with completely bogus patents are effectively killing off businesses every day. So, while it's great that the USPTO wants to pat its own back, picking self-serving but meaningless metrics hardly helps to convince the world that the patent system is actually working.

Reader Comments

Subscribe: RSS

View by: Time | Thread

  1. icon
    Ninja (profile), 21 Feb 2013 @ 3:38am

    Re: not surprising

    Also, Iran has the most advanced battle jets in the world, according to themselves. And proven with very reliable evidence.

    Nothing suspicious here, citizen. Move along.

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Shop Now: Copying Is Not Theft
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Report this ad  |  Hide Techdirt ads
Recent Stories
Report this ad  |  Hide Techdirt ads


Email This

This feature is only available to registered users. Register or sign in to use it.