I don't think examiners will *ever* have enough time to sufficiently determine obviousness, utility, and search through all possible prior art, not matter how many you hire.
Expediency seems to be the major concern among those interested parties pushing for more examiners. If you speed up the patent process, this is sure to attract more patent applicants. More applicants means you need more examiners. And under the current funding structure, it also means more money for the USPTO. And thus we ever circle towards granting more patents, expanding the scope of what patents can cover, further impeding true innovation by constructing unnavigable patent thickets.
Instead, why can't we just admit that no single person is able to justly and fairly determine patentability, no matter how super genius the examiner might be. It is too large a task, and far too subjective in nature. The utility requirement alone is nearly impossible to determine without examining a working copy of the invention, yet we abandoned submitting working copies many decades ago. Prior art? Are you kidding? Even though I am personally considered an expert in one tiny little sliver of the field of computer security, I can't keep up with every paper or book that is published in that area, and I don't have 15 100-page applications sitting in my inbox waiting for me to 'grant' or 'reject'.
Instead of putting all this burden on the examiner and then sqwaking like banshees when bad patents get through, why don't we just realign incentives to produce the behaviour we desire?
For example, let's make the applicant do the prior art search. Anyone finding invalidating prior art after a patent issues gets a finders fee, which is funded by a fine levied on the applicant (who did an insufficient search before trying to acquire their 20-year monopoly).
For example, let's open up the examination process to those beyond the one PTO employee doing the examination, and let's go ahead and let adversarial forces (competitors, existing players) use their own survival as an incentive to participate. And let's let the poor overworked patent examiner act more as a judge or referee in this activity (instead of adversary, advocate, AND judge).
For example, let's stop funding the PTO with patent applicant and patent-holder dollars. At least let's not fund it exclusively that way, so that the office is accountable to me, the taxpayer, and to my elected officials, instead of just to patentees.
For example, let's make the filing of Statutory Invention Registrations FREE, to give inventors without monopoly interests and incentive to file SIRs (thus making prior art searches much easier, and blocking bad patents from being granted). If we could convince players that SIRs have all the defensive advantages of regular patents, without the negative amassing of patents for 'mutually assured destruction' gaming, this would also reduce the number of bad patents sought by big corporations, etc.
The system is set up to act as it now does. When the incentives are there to encourage entities to abuse them, what did we think would happen? No wonder patent trolling has become not only a well-established practice, but an entire business model -- we set up the rules and incentives for just this result.
Thursday, April 06, 2006
This comes from the comment section of TCS Daily: