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Comment by amelius | Hacker News Reader

The patent system was broken from the start. The incentives are all wrong, as USPTO officers get paid more, the more patents they approve. It's like paying fishermen for the fish they didn't catch.

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The are paid on the GS salary scale. Examiners have a quota of "counts" where each count corresponds to some action they take during examination.

It doesn't make any difference to them if they allow or reject patents. The more rounds of prosecution it takes means more counts for the examiner. Each round after the first requires additional fees from the applicant.

Each additional round only requires additional fees if the examiner’s actions were proper. If the applicant can argue they weren’t, then they don’t pay.

This isn't how it works in the UK (or elsewhere AFAIK), so do you consider it's only the USPTO that's broken?

If it were differently administered would you be fine with it?

If the UKIPO is granting invalid patents the checks are that anyone can petition the comptroller to check the validity of a patent, anyone can submit prior art for the examiner's consideration. Then, a patent that's invalid should be useless in court and just accrue the holder their own, and the defendants costs.

In practice companies go for invalid patents because they can lawyer their way out, but that's the court system that's broken then.

> paying fishermen for the fish they didn't catch.

TBH that doesn't sound like an awful bad idea.

What do you mean? Why?

The parent might be refering to the overfishing that happens in many parts of the world. That leads to destruction of the local ecosystem, and also the future livelihoods of the fishermen themselves.

The US government already does something similar for corn. Farmers are paid to not plant it to control market price.

Okay, it makes sense to say we should prevent overfishing. That doesn’t mean it makes any sense to pay fishermen for the fish they don’t catch. That’s a gibberish sentence. Why should a professional fisherman get paid for the fish he doesn’t catch? Shouldn’t I also get paid for all the fish I don’t catch (which is every fish that has ever existed)? And who is doing the paying?

Ocean fish are a well-known example of the tragedy of the commons, where too many independent fishermen will wipe out the local fish population, leading to less fish for everybody. This is traditionally dealt with by

(1) Informal norms among the fishermen as to how much fishing you should do. This system is not resilient to immigrants, who don't know the local norms (and may, not unreasonably, feel that the local norms already allot all of the fish to established fishermen), so fishing communities are often fiercely resistant to newcomers.

(2) Legal limits on how much fish you can catch. The idea is that an authority will determine the total quantity of fish to be harvested, and then allot rights to harvest smaller quantities than that piecemeal. Under this system, taking fish without an appropriate license is a crime.

You could move to a system more like our agricultural subsidies (paying people for the pigs they didn't raise), by giving money to anyone who owns a fishing trawler but didn't bring in any fish. But that seems obviously insane compared to the permitting system.

Interesting, but this whole digression is patently off-topic.

"Informal" cultural norms operate as laws on a small scale, maybe a pre-industrial community and a lake (or grazing commons, like various feudal Europe examples). Any scale that implies depleting oceanic fish is a way to big for this. I would be surprised if any modern era conventions applied to ocean fishing for migrants to have any influence at all.

The ocean is all connected, but fish don't magically equalize their distribution by the law of fish gravity. If you double the number of ocean fishermen working out of Galveston, the supply of fish near Galveston will suffer.

Cultural norms generally operate on a small group of people. In the modern day, it doesn't take very many people to catch a ridiculous number of fish. So depleting ocean fish is better handled by cultural norms now than it was 500 years ago, when catching a lot of fish meant fielding a lot of boats.

> If you double the number of ocean fishermen working out of Galveston, the supply of fish near Galveston will suffer.

That greatly depends on the type of fish and is not generally true. Many species of fish spend different parts of their lives at different locations. Tuna, salmon and many other pelagic fish travel pretty big distances.

That’s not true. Examiners are in a GS scale, with overtime pay and a small bonus, none of which are based on how many patents they approve.

True, but whether the examiners or the USPTO get that money is totally beside the point.

Incentives to make yourself more money are much stronger than incentives to make the government more money. And as others have mentioned, USPTO gets more money the more filings they require.

Incentives for employee (examiner) and employer (USPTO) are mostly aligned. I see no point in arguing against that.

Well, to be fair they also get paid for each patent they reject... so like a fisherman who gets paid each time he casts a line, they get paid for office actions.

Of course there are complexities to both the approvals and rejections (office actions), which have to be justified and potential reviews by other examiners. So it may be broken, but not the way you imply.

After a patent is approved, there will be more fees down the line, such as for amending or maintaining the patent. Therefore, the USPTO will make more money from an approved patent than a rejected patent.

But the examiner doesn’t get that money, like you implied.

Post issuance maintenance fees are a good thing.

They encourage patent owners to abandon patents earlier than their maximum term (20 years after filing) if they don't want them any more.

But that doesn't change the fact that the original incentives for the USPTO are wrong.

1- Why?

2- Isn’t having to pay troll deterrent?

3- How would you fix it?

Do you have a source for what the incentives are and how patent examiners are being paid? Do you know for a fact that it's per-approval, rather than per-application, or salaried with small commissions, or plain salaried?

Assuming you're right, how would you fix the incentives?

Not even close to how it works.

Thanks, that’s kinda what I figured.

That’s not even close to true.

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