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Actually, I don't know that I have a beef with the trademark side of the USPTO, but the idea's title would have been too long if it were "Privatize the U.S. Patent Office."
As boris2 points out, and PeterSealy reaffirms in the "computer patents supervision agency" idea, patent examiners often allow
patents that can easily be defeated by someone with knowledge of current and prior practices in the given industry. And sometimes they refuse patents because they don't understand the technology well enough to see the novelty, though this is rarer. Problem is, to defeat a patent that covers something obvious or previously invented, one needs large bundles of cash for a court fight, and the time required to resolve the issue can be longer than the commercial lifetime of the technology.
The current patent system is *supposed* to provide patent examiners who prevent these problems, but examiners are evidently overburdened now. Turnaround time on an application is about 12-18 months, so giving more time is not a good option. Hiring more examiners would require new taxes (any votes for that?) or higher fees, which would favor corporations over independent inventors. And even if more funds were provided, is a government agency likely to use them as efficiently as one with competition?
So what if the government auctioned off two, three, or four franchises for examining and issuing patents to private companies?
Competition among the franchised agencies would optimize most of the performance criteria desirable from a patent office, such as responsiveness (i.e., quick turnaround from application to ruling), accuracy (knowing what is and isn't novel, and what is and isn't prior art or obvious, relevant to current trends in the given industry), and cost-effectiveness.
An agency that tried to sell its services based on easy acceptance of ludicrous claims would soon become known as a "whore" agency, as its excessive "overturn" rate became known. This reputation would invite challenges to its other patents, and would probably even increase the chances for its patents being overturned in court. Perhaps the franchised agencies could also be made partially liable for rulings overturning their patents where negligence on the part of the issuing agency could be demonstrated.
Similarly, an agency that tried to avoid any such liability would soon become known as a "rejection machine," and would lose business.
To ensure independence, the government would have to maintain a small corps of auditors/investigators to ensure the independence of each private patent agency. The agency's franchise would be subject to suspension upon being charged with impropriety and to revocation upon conviction.
Competition would also ensure better cost-effectiveness, but I'm not 100% sure that would mean lower fees. So this *might* result in reduced access for the independent inventor.
I haven't given this a lot of thought, yet, but wanted to submit it as a partner to boris2's idea. So what do you think? Are there serious problems or solutions I've missed?
boris2's idea
http://www.halfbake...upervision_20agency
[beauxeault, Mar 08 2001, last modified Oct 05 2004]
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I guess I don't see how this would help. The current problem -- that the patent office grants patents for things that are not novel-and-nonobvious -- means that the USPTO should already be regarded as a "whore agency". Does this mean that people flock to court to overturn patents? No, it's still far too expensive to challenge a patent for it to be worthwhile to most companies. Most challenges don't even make it to court; a threatening letter from the patent-holder will do. So I'm not convinced that having multiple examining agencies will change things at all. |
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Besides, I'm *really* uncomfortable with having private, profit-motivated agencies in charge of deciding who gets to have a monopoly on what. |
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wiml, as I thought more about this last night, I had a similar concern to yours about the cost of settling accuracy issues in court. I now think the concept of holding the agency liable for negligence would be a much more effective means to ensure improvement over the status quo. |
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Still, even without this liability, when a government-issued patent is overturned for prior art, the USPTO does not suffer, so there is no motivation to avoid repeating the error. In fact, it costs them less to continue in error. A private agency would suffer lost business = reduced profit = reduced viability. Even so I'd still lean more heavily on liability for negligence. It's a bigger stick, and is just. Either way, I still believe that privatization would be an improvement. |
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(response split in the hopes of avoiding an unnecessarily long, narrow column) |
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The possibility for undue influence (I assume this is the concern underlying your last paragraph?) is real, and this is why I included a government oversight body to ensure fairness. If an agency got caught playing favorites, they'd be out of business not when proven guilty, but from the day they're charged (preventing eternal delaying tactics in the courts). Due process? What due process? The franchisee forfeits his right to "innocent until proven guilty" as a condition of being granted the franchise. And if he knows he's innocent, he does have the right to prove it in court, and is motivated to do so quickly. If this is not a big enough deterrent to prevent abuse, I believe shutting an agency down and selling its franchise to someone else would prevent a repeat by the surviving agencies. And even when such punitive actions are required, the government still retains the right to void the impugned patent(s), so the damage done is not totally irreversible. |
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Keep in mind, too, that government examiners are not exempt from bribery, extortion, political influence, etc., though I admit I've never heard of such a case. But if it does occur in the USPTO, and *if* it can be prosecuted, perhaps an individual goes to jail, but the USPTO does not go out of business. So there is less institutional motivation to prevent undue influence than there would be in a private agency with government oversight. |
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I think that the way to make privatization work is to make the penalty for the patent being overturned a shared cost between the company holding the patent and the company providing the patent. In this way the "patent office" has a stake in making sure that patents don't get created that won't stand up in court. I further think that "awards" should be offered to folks who can find prior art and overturn patents (say cost of all the legal fees plus 10% or something.) I believe that companies and the patent office would reconsider applying for a patent if they knew that "junk patents" would just attract a crowd of patent lawyers trying to be the first to get the overturn prize. Of course with the US government funding the USPTO, this isn't as realistic since it's penalizing the public for the idiots in the patent office not doing their job. |
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While doing some patent research recently, I found a patent, issued in 2002, for the concept of using velcro to affix insignia to a uniform. Can anyone explain to me how that is such an original (and recent) idea to be worthy of a patent? |
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