Senators offer sweeping patent system changes

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Patent system- don't complicate, simplify

The main items in this bill send the problem in the wrong direction.
The patent system, in its present form, is one of those things that
sound good on paper, but it doesn't work in the real world. The
basic incorrect assumption is that the examiners, covering a wide
range of topics, will be able to not only understand the inventions,
but then make a judgement about obviousness. This is unrealistic.

In reality, the validity of a patent is often (always?) addressed
again at any litigation that may happen. So in adding this
"postgrant opposition system" layer of review, we will now have two
unneeded layers of bureaucracy. The claimed purpose for this addition
is to "stave off excessive litigation," but general torte reform,
affecting all litigation, is the right way to address this problem, not
another band-aid increasing complication of an already overcomplicated
system. Frivolous law suits need to be addressed for all types of
litigation, not just this type.

The one area of patent system the current patent office would be
successful in is recording the patents. It is realistic to believe
the patent office could be successful in publishing specifications
on the format for invention publishing. They are also good at
making sure the disclosures have met the specifications. Finally,
The have shown adeptness in maintaining a data base of all disclosed
inventions.

Moving to "first to file" from "first to invent" apparently to match
what those in other countries do, sounds like some think this whole
patent thing is just some sort of game. If the purpose of the
system is to help protect inventions from IP theft, then there is
no reason to make such a move. If an inventor is working hard on
fixing a problem, why should he be penalized for not making paying
homage to a government entity his first priority? Clearly the
filing date of an invention is much easier to prove than when the
inventor first privately documented an invention, so the filing
date will always carry more credence in court.

It appears the advantages in converting the U.S. patent system (USPTO) into
an invention recording system (USPTOr) far outweigh the disadvantages. For
clarity the undesirable side-effects are:

1. Attorneys points of engagement would be reduced to one. Now I understand
that many people would consider this an advantage, not a disadvantage,
but since attorneys would consider this a disadvantage because of reduced
case load, I have included it here. To clarify, an inventor typically
engages an attorney once for patent application, then again for any
litigation. In the Hatch/Leahy bill, there may be three points: application,
postgrant opposition system, and litigation. The simplified system (USPTOr)
would only engage the attorney at litigation. Good for us, bad for
the attorney.

2. The USPTOr idea would be best implemented coincident with overall torte
reform. Currently, there is little penalty for an attorney to file a frivolous
law suit. If he goes for the megabuck law suit and loses, then he
is only out some time and some administrative costs. The laws need
to be changed so that there are real consequences for such law suits.
There are many ways to implement this type of torte reform, but the
bottom line is that the plaintiff needs to have confidence in their stand
before filing a law suit. This type of reform will not only have a
favorable effect on IP issues, but areas of medicine and business will
also have a similar effect.

3. Possible reduction in recognition of the inventor. Currently when
an inventor has a patent granted, he receives some level of recognition.
This is true whether it is from the company they work for, or just the
knowledge that the invention has been reviewed by an examiner and declared
original. If the system was changed to simply a recording system, an element
of the recognition would be removed. However, it may be argued that the
most appropriate time for such recognition is not when a government
entity declares an invention unique, but when the invention is used
in a real product.

So the real question is, do we want to take the typical direction of the
government by increasing complication of a system to "fix" it while
being careful not to step on any toes, or do we want a real fix?

Posted by: jsqurd@...   Posted on: 08/08/06 You are currently: a Guest | Members login | Terms of Use

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