Evidence of regulatory capture of patent examiners
papers.nber.org
papers.nber.org
Not sure this is actually true, but the incentive arguments seem like they run in the right direction.
This may not apply to patents as much as other regulatory agencies due to the way patents are argued (Not in court)? Maybe they cover these arguments in the paper... I just read the abstract and didn't pay to get the whole thing.
Kind of like how donating to the political campaigns of the longest-lasting, most honorable, and least corruptible judges in your local area will ensure they'll always recuse themselves in litigation you find yourself involved in.
To appear balanced, patent examiners must feel more than a little pressure to come down hard on the little guy.
The linked paper itself goes into some detail to explore alternative explanations in good faith before confirming something of the opposite.
The idea that a revolving door does not have deep ethical implications with massive conflict of interest can be made in good faith only in an 'idealized' world, in which case everything is moot.
But, I think I have a pretty straightforward incentive to create maximum procedural complexity--that is, to draft and enforce regulations that require lots of administrative effort to comply with, but in the end have little economic effect beyond the legal fees. If I'm really clever, then I might even get whoever thought regulation was needed to perceive the paperwork burden as satisfying that--so the company might not even mind the legal fees, if they get an offsetting PR benefit from the procedurally strict (but substantively meaningless) rules. This is the legal equivalent of a computer programmer's job security through poorly-documented code, just with the creation and maintenance phases split across two different employers.
A lot of what patent attorneys do sure feels like it meets that description. If the regulatory capture mentioned in the paper exists, then I'd guess it works more through that procedural complexity than through substance.
The result is a ratchet effect making patent examiners more and more friendly to patent applicants over time.
1. Anecdotally over my interactions with patent examiners (using both large firms studied in the linked article and small firms), that's how it felt. I never felt the big firms were getting directly special treatment. I often felt they had an oddly perfect understanding of a mostly-arbitrary set of rules not necessarily grounded in any statute or case law that they nonetheless somehow shared with the examiners.
2. The "complexity" effect doesn't require trust. The former examiner genuinely has specialized knowledge that will benefit the new employer, so the employer has an incentive (beyond some vague hope of goodwill from examiners still in government) to keep up the bargain.
A) volume of patents granted by the examiner, and
B) applicant hiring that patent examiner & applicant hiring the same year as the grant of patent.
The parent seems to be an argument that they would expect the data to be otherwise, but it's not. Do I misunderstand?
1. Examiners who want to get hired in private industry go easy on their future employers' applications. That would explain the linked paper's correlations.
2. Examiners who want to get hired in private industry help create a quagmire of complex procedures that they will then be uniquely qualified to help their employer follow. That also would explain the linked paper's correlations.
3. Examiners who want to get hired in private industry go hard on their future employers' applications. That would not explain the linked paper's result, though it could still be true if some confounding variable (e.g., different approval rates for different fields and types of client, as patentatt speculates) explains the correlation.
People worried about the revolving door are usually thinking (1). I suspect that it's actually (2), since that achieves the same effect in a way that superficially seems less corrupt, and that requires less trust between the revolving-door employer and employee.
Like, where do you learn to say "a plurality of" instead of "two or more"? "A first X" and "a second X"? When to express algorithms as flow charts? Those particular examples are well-known, but I presume there's a lot more culture/style like that. That seems as important to me as the formal policy, not necessarily anything substantive but a sign that you're in the club.
That’s most of what this stuff is, you hit the nail on the head. Normal people don’t talk or write in ‘patentese.’ Some of it is just an optimal way to be extremely precise in written English, but a bunch of it is just accumulated cultural nonsense. Good point.
From my amateur point of view, that would seem to cause a decrease, not an increase in granted patents. At best the number would be unchanged and the process would take longer. So how would (2) explain the observation of an increase?
Patents aren't that complex that you can tie them up to make them only processable by the original examiner. UK examiner's have about 1-2 days total processing time per search/examination (less in some fields).
The technical aspects are set by the applicant, as is the language of the claims.
There are definitely some hacks to force through a patent, but it will be of low worth and easily defeated in court (and obviously so to a good patent attorney).
IMHO this fits better with the "deferred compensation" model of regulatory capture than it does with the one you outlined.
[1] https://www.google.com/search?q=George+Osborne+BlackRock
Imagine there was a privacy regulator. Do you think all the folks on HN cringing about GPDR now, would, if they found themselves working at said regulator, act to regulate the tech industry aggressively? Or would they regulate lightly, out of the belief that big-data supported companies are beneficial to the public?
Which raises the other issue: many regulators go work at law firms, who benefit from more regulation, not less. Those positions are generally also more lucrative than positions in the regulated companies themselves. So there is good reason to believe that the incentives are aligned toward overregulation, not underregulation.
Just look at Amazon and their billion dollar federal cloud contracts. Politicians sell themselves cheap, the ROI is fantastic, probably the best growth hack out there.
Logical conclusion is to limit the size and power of the government to limit consolidation of power and thus make corruption less worthwhile/viable. The founding fathers understood this and that's why they essentially limited the federal government to only managing national defense and left the rest to the states, if you didn't like what your state was doing you could vote with your feet.
I can find funding to make it happen, but I can't find a single senior counsel who's interested in advising.
To work, the market created would have to avoid collusion (which is rife now and extremely hard to detect or prosecute) and taxes could not be confiscatory (which would be extremely tempting - it's already the case that the filing fee tax is so high that poor people can't afford to patent their ideas, those ideas are given to the first company to copy the idea, swear it's theirs, and file. This may be the major source of economic inequality in the U.S. now.)
I'll bet it's pretty easy for two companies to make a deal to pay bonuses to each other's employees when patents are granted.
Edit: For the record, I don't think any of my friends are corrupt. In fact, they're the most ethical people I know and take the job very seriously.
I'm just saying it could happen if the examiner were already inclined to corruption.
It's very common for experienced engineers to review patents for private companies (to help them judge whether they infringe, assess the commercial value of a portfolio they might buy, etc.). I've never heard of a part-time patent examiner, and I'm interested to learn more--the conflicts of interest would seem extraordinary.
What the OP /sounds/ like they may be referring to, given this statement in their reply:
> They are experts in their fields that get tapped to review patents. Usually they get the job because they have filed a bunch of patents.
Is one of either they get selected to be expert witnesses in either a court case over an issued patent, or they get selected by lawfirms/applicants to provide "expert witness" type material for use by the applicant in rebutting the USPTO examiner's rejections of that applicant's application.
It is also possible that what the OP is referencing might be some form of 'internal review' at large corps where 'experts' in given areas provide a first review of potential patent applications from others in the corp. before the corp. goes to the trouble of actually filing a full application with the USPTO. In this case these individuals would be "reviewing patent applications" but they would not be "examining" patent applications which is the term that would be used were these folks to be truly working for the USPTO.
With regard to the moonlighting patent examiners, I'm fairly certain this is illegal. See MPEP 309 and MPEP 1702.
https://www.uspto.gov/web/offices/pac/mpep/s309.html#d0e1919... https://www.uspto.gov/web/offices/pac/mpep/s1702.html
https://www.ipethicslaw.com/pto-suspends-ptab-atty-who-filed...
1) Granting a patent doesn’t necessarily mean that the examiner is more lenient or that the applicant got something good. There are good patents and bad ones, strong ones and weak ones. A high allowance rate may be an indication of very narrow patents which pad corporate quarterly numbers, but don’t have very much significance as patents.
2) This high volume, low value patent prosecution strategy is often seen in large corporate files, the same ones who hire patent attorneys.
3)Examiners deal with an attorney who is usually employed by some independent law firm. The underlying client is often not in direct contact with the patent office at all.
4) those large corporate filers are often in a technology niche. Particular pharma drugs, certain high tech niches like display tech or semiconductor fab, etc. The point is, these are small worlds, and if someone has the background to examine that kind of patent, they are probably in a very small group of people qualified to work on that technology. If they then get a law degree and go into private practice, there’s a good chance they cross paths with an entity that they examined patents of. In some of these tech areas there may be only a few dozen people in total (notionwide) who are qualified in the tech and are in the patent law field, it’s a small world.
5) All the same goes for law firms, there just aren’t that many people in this business, it’s not unlikely to cross paths.
6) bad patents aren’t good. Let me explain. If you’re a patent prosecutor worth your salt, you want a thorough examination. The last thing you want is to have a portfolio of patents which fall apart in IPR. It makes you look really really bad to your clients. hypothetically bribing an examiner is a fools errand, not just in a moral sense, but it’s literally a bad position to be in to get a bunch of bogus patents. Nobody wants that, it’s actually bad.
7) measuring patent quality in terms of citation is a red herring. First, some patents may have a different ‘lifespan’ to when they’re relevant. Some may be immediately cited a bunch, others may linger for a few years before being suddenly relevant due to some other development. But most of all, remember that patents cited on the front page of a patent are largely from the applicant themselves, cited in an IDS. So if a large portfolio starts citing a certain document, it might get cited in 10’s or 100’s of other cases that are somewhat related. And if you’re going to use it as a measure of low quality, that just bolsters my original argument that these would mostly be very narrow patents, a type of low quality but not the type that the public should care about. Shareholders, yes, as it’s a waste of corporate resources. Not anyone else.
What is an alternate hypothesis for a strong correlation between A) volume of patents granted by the examiner, and B) applicant hiring that patent examiner & applicant hiring the same year as the grant of patent?
I proposed an alternative mechanism for the effect elsewhere on this page at https://news.ycombinator.com/item?id=17175983
1) Patents are the way they are, because it's a finely honed machine.
2) You're an ignorant rube.
Perhaps that's true. On the other hand, what patents say often seems to contradict common sense. It makes me wonder if the whole field isn't ideologically subsumed.
Are there any laws restricting companies from "lobbying" regulators or engaging in quid pro quo?
On the downside - restrict employment opportunities for X years after being in a specific position.
Clearly both have issues, but regulatory capture is a problem worth solving.
Also, as far as time bars, the PTO does something like this. Former examiners are not allowed to apply for a patent for a term after they leave. Doesn’t really solve the problem, but it’s something.
It would be interesting to see research on various solutions around the world. One obvious solution is paying people market rates for their work; then they don't have an incentive to work in industry. One way government has done that is by providing job security and regular hours as a perk to compensate for lower pay.
In the U.S., the Republican Party (I'm not saying it to be partisan; it's just fact) had been trying to cut pay, cut job security, and also cut personnel, which increases the workload. It's not hard to see where that might lead.
The best solution to that is simply to regulate as little as necessary, and leave as much up to the market as possible. A good example is infrastructure and utility deregulation in the U.S. and western Europe in the 1980s-1990s. There was a time when government regulators would set, e.g. prices for electricity. Today, electric markets are mostly deregulated, with only distribution utilities remaining as regulated monopolies.