U.S. Patent Operations May Shut Down in Second Week of February | Hacker News Reader

U.S. Patent Operations May Shut Down in Second Week of February

bloomberg.com

92 pointspseudolus36 comments

Notwithstanding the antipathy towards patents on Hacker News, this is potentially problematic especially if the suspension extends to the actual filing of patents, which is primarily electronic. The US is now a first to file jurisdiction so if the USPTO does not actually accept applications then inventors will not be able to obtain a filing date and establish their priority over other applications - including those filed overseas in operating patent offices in countries that adhere to the Patent Cooperation Treaty.

If the shutdown gets this far the court system backing this will already (at least civil to start) be shut down. This means that patent shakedowns can continue with no ability to defend yourself or obtain injunctive relief or challenge bad patents.

Presumably if the shutdown spreads to Federal courts it would affect both plaintiffs and defendants. The net effect would probably be neutral and perhaps even favour those who are the target of patent holders as any threat to file suit would be meaningless if the courts were prioritizing urgent matters such as criminal trials.

From the article:

"The agency said it would keep a “small staff” to receive new applications and filings, to receive payments and maintain the information technology infrastructure."

Something always slips between the cracks. A sensible solution, given that the USPTO is self-funding, would be, at the very least, for the Executive and Legislative branches to simply approve the spending for all agencies that are self-funding. To do otherwise is simply vindictive.

In case the "small staff" thing doesn't work out...

A patent agent I know recommended this in case the electronic filing system shuts down: Send in your filing via USPS Priority Mail Express with tracking, and retain all copies and receipts. According to him, the date you postmark the letter becomes your filing date. Also, this apparently does not apply to private shipping services like UPS and DHL.

Used to do this exclusively. Now it requires a $200+ fee.

Beats nothing, if you’re up against a deadline. Unregistered filing saved me last week.

Great to know. Thanks!

Hmm, wonder what would happen if USPS lose your application? Sure, you have the tracking number, but no way to prove what was sent.

Just send it again when you realize it was lost?

Not an expert, but I think the point of having the receipt of postmark gives you a paper trail that says you filed on that day. Whether or not it made it to the USPTO.

I assume this means you would have to ship from the post office directly or your tracking at least gets an update beyond "label created." Typically, the first tracking step I get is for my city's distribution center.

I'm just curious: is your patent agent friend still working?

Yes, I am currently working on a provisional with him. To be clear, he does not work for the USPTO. He helps companies file patents and has taken a test to prove that he is capable of doing so.

Yeah, I know someone exactly like this. I was asking because I was wondering if this person I know was still working during the shutdown, or if things had possibly gotten so backed up that they couldn't do any more work until the government re-opened and they were furloughed by their employer.

> especially if the suspension extends to the actual filing of patents,

This was addressed somewhat deeper into the article:

"The agency said it would keep a “small staff” to receive new applications and filings, to receive payments and maintain the information technology infrastructure."

Could we shut it down for a whole year to see what happens without it?

Might work out, might be a patent explosion of valuable things after it opens up again from companies refraining from patenting during the shutdown.

As others have pointed out, the US has so successfully exported its patent system that patents filed in other countries will count too, so basically the multinationals would get a free year of snatching whatever unprotected IP they can think of from US only companies... or until Trump uses some executive order to break up the international IP system

Why wouldn't US companies just file abroad?

Patent, unlike copyright, requires explicit filing in a particular market to get protection.

I'm responding to this:

> the US has so successfully exported its patent system that patents filed in other countries will count too

That is the best thing that happened to innovation in a long time. Shutdown the patent office get free competition.

No more patent trolls or bullying by large corps lawyers.

surely if the trolls already have patents it will continue with those.

It’s great as long as you don’t invent something innovative that you would like to make public, while at the same time protecting your right to a protected period where you get first-dibs on exploiting it.

Just because the current system can be abused doesn’t mean the idea is a bad one.

Oh please. Your patents are worthless without the backing of a large corporation with heavy legal firepower.

Individuals and small businesses are terribly underserved by the current regime. If money is what buys you protection, then the current patent system is the mob.

That seems to be contradicted by the existence of the 'patent troll', somebody who owns a basket of patents, doesn't use them, yet files nuisance suits and gets paid off. Win for the little guy!

Patent trolls predominantly go after small businesses that often do not have the legal team or the funds to mount a credible challenge. It’s a system where whoever has more money (or access to more legal time) wins. Patent trolls are usually run by lawyers who have copious access to their own legal time. In short, your statement is reinforcing my point.

Except the guy with the patent wins? Which is kind of the opposite

It’s more like the guy who runs out of money first loses.

There are a number of household name corporations that also act as patent trolls in their respective industries. Somewhat like the Luxottica/Oakley story, they put smaller companies in weak positions, forcing them to sell at a low valuation or go out of business.

If you are a lawyer the cost of hiring yourself is significant lower than the cost of a small company that need hire a lawyer to defend themselves.

This is, ahem, patently untrue. My uncle has invented a new type of sprinkler head (think bearded guy tweaking in his garage for years), patented it and made a decent chunk of money out of it. The factory that bought the license inventing something like this would've required a lot of time and possibly they doesn't have the talent anyways. It is almost obvious that he himself to enter the sprinkler head manufacturing market would've been extraordinarily difficult and much more risky. The system works. It is abused, yes, but it does work.

You forget that the US is not the only country in the world. Now patents filed in other countries who adhere to the same standards will get precedence, making US companies unable to protect their own inventions.

Sounds good to me. We're getting the government we deserve. If we're so incompetent we can't even choose a government that can keep the lights on, then we don't deserve to be able to compete with companies in other nations.

> No more patent trolls or bullying by large corps lawyers.

The existing trolls, with existing patents, will be able to continue as long as the courts are funded and operating.

All a USPTO shutdown would mean is no new patents being issued for some period of time. So a troll would not be able to add a newly issued patent to their warchest for a while, but everything they already have in there remains just as useful as always (as long as the courts are operating).

> 640,000 patent applications were filed in fiscal 2018 > The agency had 12,579 employees -- including 8,185 patent examiners and 579 trademark examining lawyers

The number of patents filed is kind of mindboggling. I suppose that's still only 78 patents per examiner per year which doesn't sound so bad. But I can see why they're so backed up.

Perhaps it is time for someone to step up and declare himself as president of United States since no side is helping to end the shutdown.

Pretty sure a lot of countries are going to support it immediately.

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