Comment by JoshTriplett | Hacker News Reader

Comment by JoshTriplett | Hacker News Reader

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So, the USPTO flags questionable patent applications, particularly those relating to '"broad" or "pioneering scope," "seemingly frivolous or silly subject matter," or those "dealing with inventions, which, if issued, would potentially generate unwanted media coverage (i.e., news, blogs, forums)."', as well as patents related to specific 'areas of technology' such as 'smartphones' 'Internet-enabled systems,' and 'processes and apparatuses involving Education.'. And those patents get scrutiny from a larger panel rather than getting rubber-stamped.

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 think the important bit is that none of this process is documented

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.

Not documenting it makes it harder to escape the scrutiny by rewriting your patent applications. It is far easier to game such a system if you know precisely how it works.

So why don't we keep all laws hidden? One could expand your argument at any and all laws. Why write down the laws for "money laundering" as it would <s> only allow people to skirt the laws </s>. If you don't right down the law and keep its enforcement procedurally, the laws are often misapplied to constrict those that are undesirable by the state (either through political resistance, the politically unconnected, or disrupters)

Following the law is easy when u can read it.

The thing we're discussing isn't a law, it's an internal agency procedure. It might or might not be a good idea but it's nothing anyone outside the agency has to follow.

Very few governmental systems should operate in secret. Agency procedure _is_ defacto law.

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?

Internal agency procedure should be 100% transparent. "This is how we do things in this department" isn't a valid excuse for anything.

So the IRS should document (for public consumption) the exact algorithm it uses to decide which filings get extra scrutiny? Doesn't that open the door to quite a bit of abuse? (i.e. tax fraudsters being able to match just the precise set of conditions to not be audited).

Yes, the IRS should. The fraudsters (and rich people with expensive accountants) already have this info, for example by hiring former IRS examiners and executives. Making the algorithms public at least puts everyone on equal footing.

if you are an attorney in the field, maybe.

Well, it's damned difficult to follow laws that aren't written down.

I think it's important to distinguish what we are talking about here. We aren't talking about a hidden law, we are talking about internal procedures that attempt to make sure the law is following by identifying patents likely to cause problems and looking at them closer. The same published laws apply, they just look closer to make sure it in line with them.

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."

just because that's it's stated purpose doesn't mean it's magically achieving it. You can't take that the patent system promotes the progress of science and useful arts as axiomatic gospel. How do you judge how successful it is if there isn't at the very least retrospective transparency and a way to hold the system accountable for its procedures?

Except for, you know, the 50 page document described in the article and retrieved via FOIA.

There have been plenty of misdeeds within the government that were hidden until revealed with a FOIA request. That's hardly a good reason to say their being hidden is OK. It takes resources, time, and especially knowledge of what to ask for to get something useful out of the FOIA request.

You're right, but filing a patent is not the same as getting license plates for your car. Any time you're dealing with government action/inaction and its consequences, and it's worth it to hire a lawyer, it's probably also worth it to fire up the FOIA machine. I just got a CD-R from a state agency that I need to start perusing in my spare time, and I'm not even a lawyer. If patent attorneys really didn't know about this procedure (and let me say that I don't actually believe that), then they were providing their clients with very poor service.

While I agree that certain patents should be scrutinized at a higher level, this must be done 100% transparently. Every time. That doesn't seem to be the case here.

The issue is that the PTO did this secretly, and did it by stalling. If the PTO put a transaction in the history saying "Referred to SAWS for more detailed review per MPEP section X.XX", then it would be legitimate. The applicant could then argue with the SAWS team via the usual procedures.

Now that this has become known, the PTO will probably have to do that.

Triage is fine, but it seems that the extra scrutiny, for those patents selected to receive it, is taking much too long. That program needs more resources.

Strongly agree with your last paragraph. They don't get it yet, do they?

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