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.

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  1. identicon
    staff, 24 Feb 2013 @ 8:24am

    lies and damned lies

    from the 'we know nothing about patents' department

    Mere dissembling by thieves! It is not innovation that patents hinder, but the theft of.

    “Patent troll”

    infringers and their paid puppets’ definition of ‘patent troll’:

    anyone who has the nerve to sue us for stealing their invention

    Call it what you will...patent hoarder, patent troll, non-practicing entity, shell company, etc. It all means one thing: “we’re using your invention and we’re not going to stop or pay”. This is just dissembling by large invention thieves and their paid puppets to kill any inventor support system. It is purely about legalizing theft. The fact is, many of the large multinationals and their puppets who defame inventors in this way themselves make no products in the US or create any American jobs and it is their continued blatant theft which makes it impossible for the true creators to do so. To them the only patents that are legitimate are their own -if they have any.

    It’s about property rights. They should not only be for the rich and powerful. Show me a country with weak or ineffective property rights and I’ll show you a weak economy with high unemployment. Does that remind you of any present day country?

    Prior to eBay v Mercexchange, small entities had a viable chance at commercializing their inventions. If the defendant was found guilty, an injunction was most always issued. Then the inventor small entity could enjoy the exclusive use of his invention in commercializing it. Unfortunately, injunctions are often no longer available to small entity inventors because of the Supreme Court decision so we have no fair chance to compete with much larger entities who are now free to use our inventions. Essentially, large infringers now have your gun and all the bullets. Worse yet, inability to commercialize means those same small entities will not be hiring new employees to roll out their products and services. And now those same parties who killed injunctions for small entities and thus blocked their chance at commercializing now complain that small entity inventors are not commercializing. They created the problem and now they want to blame small entities for it. What dissembling! If you don’t like this state of affairs (your unemployment is running out), tell your Congress member. Then maybe we can get some sense back into the patent system with injunctions fully enforceable on all infringers by all patentees, large and small.

    Those wishing to help fight big business giveaways should contact us as below and join the fight as we are building a network of inventors and other stakeholders to lobby Congress to restore property rights for all patent owners -large and small.

    For the truth about trolls, please see

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