Wednesday, January 04, 2006

Patent Office: Reform Thyself

On the front page of the USPTO website today a press release appeared, touting a major shift in patent examination policy.
[The US Patent and Trademark Office], in its continuing efforts to make the patent examination process more effective and efficient, is proposing changes that would reduce the amount of rework by the USPTO and reduce the time it takes to issue a patent and the patent review process. Specifically, these initiatives will prioritize the claims reviewed during the examination process and better focus the agency’s examination of patent applications by requiring applicants to identify the most important claims to the invention.
You can find more details about the proposed changes, as well as submit feedback to the USPTO on these modifications, by following the above links.

There are two interesting things to note concerning these proposals. The first is that the USPTO has been under fire of late for the large number of frivilous patents that it grants and the number of high-profile cases involving these patents that have given the whole process a black eye. Reform measures have been floated before legislators [1] [2] [3]. Stinging editorials have been written [1] [2] [3]. Criticism from nearly every corner is rising. The USPTO sees the writing on the wall; if they don't change their ways, someone else will force them to change. This is a smart preemptive move. But does it go far enough?

Which brings us to our second observation. By its own admission, the proposed changes will only be effective if patent applicants facilitate "more effective and efficient patent examination." Indeed, the changes rely 100% on the applicant helping the examiner by highlighting the most important claims and not submitting applications with too many claims. But what incentive does the applicant have? Will the USPTO give applicants a discount for applications it deems to have gold-star form (whether or not the patent is granted)? Or will the USPTO begin to favor granting patents to applicants who submit applications that facilitate "more effective and efficient patent examination" over those that do not? There must be some incentive for applicants to be helpful, but it seems that whatever incentive the USPTO can offer, it is not as large of an incentive as the applicant has to game the system and continue to abuse it in any way that might be advantageous to him.

Nevertheless, we applaud the USPTO for stepping up and trying to improve the process. There is certainly good to come if the patent office can implement some of these changes, and they have a fair chance at slightly improving things while we wait for more sweeping changes to come down the legislative pipe. Do add your voice to those now preparing arguments to submit to the USPTO regarding these proposals. Otherwise, only the parties that benefit most from a broken system (whether they be lawyers, large corporations, or small patent trolls) will be heard. You have until May 3, 2006 to submit written comments.


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