Monday, June 21, 2004

How To Write A Ridiculously Long Title To Reduce The Effectiveness Of Whatever It Is You Are Writing About And What To Do About It

A recent article about the poorly titled book How Our Broken Patent System Is Endangering Innovation and Progress And What To Do about It (from the Financial Times, which I found from a good patent law resource, Patently Obvious).

The premise of this book, according to the article, is that the Patent Office is approving patent applications too easily so that people are getting patents they shouldn't, and that this is, as the title indicates, endangering innovation and progress.

Without having read the book, I can't speak too much to their theories, but my guess is that they probably wrong, or at least partly wrong. Here's my reasons of why I believe this.
1) Having successfully gotten at least half a dozen patent applications through the patent office for our clients1, I can say that it is anything but easy to get a patent application through the patent office... or at least a patent application that is broad enough to cover the patentee's actual invention, and competitors' attempts at getting around the patent.

2) The authors contend (according to the article) that the patent office is letting a higher percentage of patents through then it used to by stating that more and more applications are those that have been "previously rejected and have been refiled"2 in an attempt to get the patent through (effectively saying that for many applications, there are two or three filings for the patent that gets through... making it look like a 33% allowance rate, when it is really 100%).

First, at least about 90% (and probably more like 99% or more) of all patent applications are rejected by the patent office at least once, so being rejected and then allowed is not a new phenomenon. Second, a RCE application (see footnote) is not "refiling," so the statistics of the patent office (which say that the percent of applications allowed is approximately the same now as it was in 1983) do not support the authors arguments of an inflated approval rate. And third, if an application is rejected a lot then the patent will not be very strong anyway. The trend of patent case law right now is not in favor of someone who makes a lot of attempts at a application while trying to get the patent. So assuming that it is true that more applications are getting through, the additional applications are weaker and will not have much of an effect, positive or negative, on innovation.

3) The authors say that "patent examiners have more of an incentive to approve patents than to disapprove them since their bonuses and promotions are based on how productive they are.... Rejected patents take more time to process." While it is true that rejected patents take more time to process, and examiners are evaluated by their productivity... as far as I know, examiners are not evaluated on their productivity of how many applications they allow... but almost exactly the reverse. They are evaluated by how many "office actions" they can turn around, and rejections are preferred because the patent office can collect more fees if you have to file an RCE without having to do much work.

4) Although not really mentioned in the article, but emphasized in the book title, is the age old argument that patents stifle innovation. This is just pure crap... and it is pure crap that has been around for years. Although counter-intuitive, patents encourage innovation. The whole point of a patent is for the patentee to publicly announce his invention to the world, and explain how it works so that the public will be in possession of the invention. In return, the patentee is giving a temporary right to exclude others from "making, using, or selling" the invention. On it's face, I can see how this appears to hurt innovation... but to really see how patents help strengthen innovation, you have to take it a step further. Because it is required that you publicly (in the form of the published application) described the invention, it gives competitors a chance to "pick apart" the invention and figure out (one might even say "innovate") their own solutions to the same problem.

If there were no patents, there would be no incentive for anyone to make their invention public... so there would be less knowledge out there. Instead they would do everything they can to hide the invention from their competitors... the same competitors who would have invented new solutions. In particular, small inventors would be screwed, because they would have no way of marketing their inventions without some huge corporation unscrupulously stealing the idea and selling it cheaper and better than the little guy.

Anyway, those are my thoughts on the premise of this book. It could be that they have done impeccable research to back up their claims, in which case all of my critique would probably be wrong... but I doubt it3. These same patent "problems" have been around forever, but they aren't really problems, they're just the natural expansion of technology and business. However, I do look forward to reading the book when it comes out this fall.

1 With a lot of help and guidance from my boss/mentor
2 Called a Request for Continued Examination (RCE) or sometimes a Continuation application, unless it is filed with new material, called "new matter," then it is a Continuation-In-Part application.
3 On the impeccable research... not that I could be wrong, that is still entirely possible, maybe even likely

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