The U.S. Government Has a Secret System for Stalling Patents
yahoo.com
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And a law firm whose job is to get things patented thinks this is a Constitutional issue, because all applications don't get that level of scrutiny.
Sure, it'd be nice if all patent applications got the same level of scrutiny, but in the absence of that, triage makes sense: "hey, this one looks hairy, we're going to need to look at it more closely".
The only thing I'm mildly disappointed by is that one of the categories is effectively "stuff that will make the news"; granted, those are likely to be patents that shouldn't be issued in the first place, but focusing on the PR aspect rather than the sanity-checking aspect seems wrong.
I agree that in practice it might not be so bad but the very fact it is kept hidden (with examiners saying "I shouldn't tell you this but..."), that is the big issue for me.
If they have a non-documented system for stalling, sidelining or giving greater scrutiny to patents yet have a 1500 page operations manual doesn't that strike you as odd?
It's important to remember that the patent system is for the benefit of society. It achieves this benefit by incentivizing the individual. We must be sure to make sure when we apply the rules for the patent system we aren't capricious and discriminatory, but we need to be very aware that the benefits provided to the individual by a patent are not the purpose of the patent system, but simply the method used to a achieve it's true purpose. That purpose is very clear in the constitution as "To promote the progress of science and useful arts."
Now that this has become known, the PTO will probably have to do that.
Strongly agree with your last paragraph. They don't get it yet, do they?
This is yet another example of the rot that is infecting the legitimacy of our government. There is no excuse for this, the patent office could plausibly suppress some patents on the grounds of national security but on the grounds that they might "draw public attention"; come on. Tell us again how this system betters us all and doesn't just exist to keep todays winners on top tomorrow?
I'm in the process of getting a provisional patent for something fairly trivial, simply to make sure that the Principal Investigator for the project on this project doesn't take credit for it (before I get downvoted: the PI told me "I need a way to do this thing, and I have no idea how to do it" and I did all the R&D, paid for the prototyping, and I am volunteering my contributions in the first place).
I'm noticing that it is extremely unlikely that an actual human being will read my application, and would actually like to have it rejected for being trivial, because it'd mean some checking is going on.
I feel this is a mild abuse of the provisional patent system, but what can I do?
I wonder if anyone tried to patent the old Signetics write-only-memory, if it would go through? Someone patented the wheel in Australia a while ago...
Think about that a bit with a longer view. If it is "fairly trivial" as you mention, the PI could have brought in anybody and had them build it, and had they not brought in you, you would not know anything about this thing you're patenting.
I get that you feel like you have "done all the work", and I think that may be true, but at a minimum I would suggest you put both you and the PI on the patent if it is not something you would have done on your own. It sounds like the "combination" was what got the patent done, not just your own work.
The second thing is that when this patent issues or comes back, if it has only your name on it and not that of the PI, it is going to really piss off the PI. And if the PI has any sort of professional network, they are going to complain loudly about how you "ripped them off" and that story will follow you around and dampen your employment prospects for years. (After all, who wants to hire someone who will sneakily take credit for all the work?). And as the system is set up to allow additional inventors to be added later the PI will probably get themselves added anyway.
The bottom line is this, don't let your emotions push you into making a choice that you may later regret.
Really any traceable, public disclosure should do - filing a patent just to have the record seems like overkill (except in the case where you actually want to file the patent, but it sounds like not). Actually, if it is just for date priority purposes, getting your research records notarized would probably be sufficient (not a lawyer and all that).
There is a service [1] for registered public discloure that is also a "mandatory to search" resource with the WIPO. It costs $120/page, which is steep, but surely cheaper than patent prosecution. There are other "mandatory search" archives [2] under the Patent Cooperation Treaty "Minimum Documentation" rules, many of which are academic journals. These are not the only means of "public disclosure" but my (very limited) understanding is that the patent office is guaranteed to look at the sources on that list.
If you are feeling adventurous, you could even use some block chain-based registration service [3].
[1] http://www.researchdisclosure.com/publishing-disclosures [2] http://www.wipo.int/standards/en/part_04.html [3] https://news.ycombinator.com/item?id=6809929
First to file is not implicated unless dueling patent applications are involved. It doesn't affect how prior art is treated.
First to file would actually prevent someone else from later coming along and claiming that despite your publishing of the technology, they were the first to have the idea so should get a patent anyway.
Note that provisional patent applications are not examined, so if indeed you are applying for a provisional, it will never be "rejected".
Source: http://www.uspto.gov/patents/resources/types/provapp.jsp
> (from link above) provisional applications are not examined.
But be aware that the provisional will not do what you want... if I understand correctly, unless you follow up with a non-provisional patent, your provisional will not count as prior art. Or proof that you should be credited. In fact, it may as well not exist. That is because it is never published. IANAPatentAttorney/Examiner so some confirmation from one would be good.
Your options now are to either publish it somewhere it counts, or file a non-provisional and then abandon it. (Edit: or see it through; either way it's gonna cost something. Also remember, patent laws are such that if you only implemented it but did not conceptualize it, the PI may be the true inventor. Also, TINLA.)
Also, the "wheel" patent in Australia is something along similar lines. It's a placeholder patent that is never examined, so you can file one for whatever you want. It's only when you want to enforce it that it must be examined and proven valid.
Did you consider asking your father to get in touch with these two?
Charnes is identified as "a partner at the firm" and, presumably, Gaudry is as well, but it could only help their article's credibility to have input from a third-party.
So if they delay examination 10 years,
1. You still get back damages from everyone in the world
2. Your patent will last 10 years longer when it finally does issue.
See 35 USC 154(b)
Patents are not operationally meaningful to startups.
2. Patents may not be important to startups, but having patent applications certainly is. They help a lot in securing VC financing. There are multiple studies and surveys showing this. One less obvious reason why VCs may be interested in patents is studies also show a strong correlation between having patents and making successful exits.
> For instance, three years ago, Franklin submitted an application for a startup that needed to secure crucial patents before it filed for public offering. It was being sued by a large company in the same space, and so it paid the Patent Office an extra fee to fast-track the application.
Reading between the lines a little, it looks like a small company with tech that challenged a big company was being hassled by the big company and needed the patents to put them on a favorable-enough legal footing to not interfere with their IPO.
The article (and a sibling comment) also mentions investor reasons ("If it’s a startup trying to get traction against an established player, they may not get funding because they don’t get the patent in place,") but I don't understand why that's the case unless it goes back to some kind of signaling that you won't be an easy legal target. I'd think all a patent would show is that you have an idea, which investors would already know and is true regardless of whether the patent is pending or approved.
Is it just the bigger company will hold off because you now have "ammunition" to also sue them for infringement in a kind of MAD standoff?
For example, Yahoo sued Google for patent infringement over Ads right before Google's IPO.
It then sued Facebook for patent infringement right before Facebook's IPO
etc
This is just so wrong. A patent for mundane tech should be flat out denied.
The patent has always been a trade off of disclosure vs exclusivity. You make something innovative tell the public how you do it, you can monetize it for a couple of years - that is your reward for disclosing how stuff works.
But if I can see in a glance what the improvement is and can reproduce it without the need of your disclosure, than it should not be patentable.
Right now we are given the right to patent the outcome, not the road to get there.
Of course with your previous background you could crush me with legal information why the law is the way it is and how everything is legal. And I would not even bother to double check you - you will be right.
But for me the system is broken horribly now.
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries
We have lost the limited times clause. Copyright is virtually infinite right now. Nothing written by the time we were kids will enter public domain before the time we die. And with clever patent extensions for drugs ... this is going in a bad direction.
I am not constitutional scholar, but for me this clause strongly implies that patent and copyright are for the progress of society and not the authors. So if we are in point where they stifle innovation and progress - the system must be reformed.
I know! We could call it a "market."
I think that anything that answers that 4 criteria is that interesting by default.
Look at the BS in the software patents world.. it almost certainly extends to other fields.
Even if only 100 of them "deserve" patent protection, how do you conclude that all of them will be interesting? And how many people do you think need to find it interesting?
My underlying point is that patents are nothing to be in awe of. Just because it's patented doesn't mean it's interesting. I get the feeling that you want "interesting" to be a requirement of the patent office. If so, how do you define it?
It looks like the intent is not to delay them forever, just to make sure that they don't look silly for allowing any more patents that don't make sense (e.g. perpetual motion machines) through by putting them through more review.
I think they should heavily scrutinise all patents, and so ideally shouldn't need a process like this, but at least putting the patents which are most likely to be bad is better than not scrutinising any patents thoroughly.
To be able to take a patent in your case load and place it into SAWS just by looking at the area it is in (or appears overly broad) seems be eminently sensible. In effect you are requesting that the patent be reviewed by between 3 and 9 other inspectors.
This seems extremely sensible.
They created a secret rule that gives individuals within the USPTO the power to hellban patents at their discretion. There is too much potential for abuse in this system.
And after the author has done work on the UAV mentioned in [2], there's nothing heard about this tech for civilian uses.
So it's interesting to think what other technologies are hiding out there.
[1]http://www.bdti.com/InsideDSP/2013/10/23/SingularComputing
I think the most dangerous thing in the USA is the bureaucracy making up its own rules.
EDIT: Thanks for the correction; time for the Google! TIL that some would invoke the Fifth Amendment's Due Process Clause for this situation, while others would expect the court to just throw out the case.