from the it's-not-quite-that-weak dept
I'd argue that Mims is seeing symptoms of the broken patent system, and suggesting that they are the problems, and I think he underestimates how some of the proposals may fix the "problems" he sees. First, on the question of an understaffed patent office, that's clearly a symptom, not the cause. The real problem is that the patent office has been issuing a ton of ridiculous patents: patents that are broad and covering obvious things. Furthermore, the courts have been awarding huge sums in litigation on those patents. The end result: more people applying for more patents, hoping to get their own lottery ticket. If you take away the broad patents and you make it easier to invalidate bad patents that already exist, combined with potential fees for suing over bad patents, you diminish (greatly) the value of the lottery ticket. End result? Fewer patent applications, less backlog, and no need to focus on hiring. The whole "patent office is understaffed!" claim is a red herring. It's the result of a patent system that has been encouraging a growth in patents, rather than a growth in innovation.
As for the software patent issue, I know that lots of people are sympathetic to this claim, but as we've argued for years, it's not that easy. If you outlaw "software patents," patent lawyers will rewrite those patents to look like they're not "software patents." And that's because there is no real definition of "software patents." Mims dismisses the stuff about rejecting functional claiming by saying that it's just some vague notion of stopping "broad" claims. But that's not true. He should read Mark Lemley's paper on functional claims. If the USPTO was properly recognizing and rejecting functional claims, it would have the impact of basically getting rid of many of the worst kinds of software patents, because they're really about functional claims. That's the real problem with most software patents. Get rid of functional claims and much of the "software patents" problem is dealt with.
Furthermore, it also has the benefit of stopping similar problems in hardware patents. Because while there's been a lot of focus on software patents, there's been a growing problem on the hardware side as well, and it's only going to get worse as we enter a new era of hardware startups and disruption. And, of course, getting rid of functional claims also, means fewer bogus patent applications as the lottery ticket aspect dies down as well... and, once again, that solves the "problem" of not enough patent examiners.
So, no, the proposals from the White House aren't perfect and don't solve everything. But, I wouldn't dismiss the suggestions out of hand either. If the USPTO actually did its job and rejected functional claims, the potential impact could be huge.