Microsoft checks off patent win

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It's not lazy

It's tough. Jim Rogan called the PTO an "agency in crisis." Here are some factors, in the order that I think of them...

1. Civil servants are BAD. Every administration since Nixon has vowed to cut their numbers. Congress likes to cut them too. Patent examiners are civil servants, so Congress severely limits the size of the corps.

2. PTO generates fees in excess of expenses. Congress first sampled the money through a surcharge. Liking the taste of that, Congress went further and started appropriating PTO's budget. The excess becomes available for favorite projects.

3. Examiners are on a quota system, and their income (salary + bonus) is determined by the number of cases they dispose in a quarter. Underperforming examiners can be terminated. The total amount of time alloted per application is (from memory) about seven hours. That includes prior art search, all correspondence, such as denying or splitting claims, initial finding and final determination. Obviously, these seven hours are spread over several months (I think the applicant normally has 60 days to respond to correspondence), so at any time an examiner will have dozens of active applications. It's much quicker and easier to grant than to go through the back-and-forth of denial.

4. Patent law firms are past masters at obscuring the language in the claims so the invention looks completely unique.

5. Although the applicant is required to disclose prior art, patent law firms are also very good at finding and citing innocuous art.

6. POPA (Patent Office Professional Association) is very powerful and has steadfastly refused management's refusal to outsource the search (require the applicant to submit a search conducted by a certified firm). I don't personally know POPA's objection, but it is probably on their web site.

7. The PTO's long-standing out has been to grant whenever possible (therefore obtaining the fee) and let the marketplace sort the bad from the good. A very high percentage of applications are granted, but a much lower fraction of patents are renewed at the first mark (four years). Or as a last resort, let the courts rule when infringement charges are brought up.

8. Non-obviousness is a very tough call. For an examiner in a very well-defined area of art (golf clubs are a highly-patented item), the examiner can become expert enough to be a reasonable judge of what is extant and what might not be obvious. But it's a tough call. In software, it borders on murderous.

9. Software is a particular nightmare. Software patents were shoved down the agency's throat by court decision after years of successfully fending them off. The field changes so fast, and we might call the same thing by different terms, or different things by same terms, that is virtually impossible to become expert. IMHO, almost all software patents are "wrongfully issued;" that is, the advance offered is almost negligible, and wouldbe obvious to one working in that particular area.

The net result is that software patents accomplish exactly the opposite of the intent of our forefathers. The purpose was to provide incentive, in the form of a monopoly of limited duration, for an inventor to expend time and/or money to bring an innovation into the market, thereby accelerating commerce. The new usage is to patent that which would have been developed anyway and prevent others from reaching the same plateau from which further innovation could ensue.

The whole system sucks. But easy solutions are not in view.

just my guess.

Posted by: IT_User   Posted on: 06/08/04 You are currently: a Guest | Members login | Terms of Use

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