
The U.S. Government Has a Secret System for Stalling Patents - jostmey
https://www.yahoo.com/tech/the-u-s-government-has-a-secret-system-for-104249688314.html
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JoshTriplett
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.

~~~
rurounijones
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.

~~~
sgift
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.

~~~
sitkack
Following the law is easy when u can read it.

~~~
Symmetry
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.

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

~~~
peeters
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).

~~~
caboteria
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.

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olefoo
So there is a secretive process by which the patent office can delay possibly
to the point of irrelevance patent applications that are disruptive to the
established order? Not a surprise.

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?

~~~
tormeh
Workaround: File for a patent in another country.

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spiritplumber
I'm okay with this.

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...

~~~
ihnorton
> I feel this is a mild abuse of the provisional patent system, but what can I
> do?

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](http://www.researchdisclosure.com/publishing-disclosures) [2]
[http://www.wipo.int/standards/en/part_04.html](http://www.wipo.int/standards/en/part_04.html)
[3]
[https://news.ycombinator.com/item?id=6809929](https://news.ycombinator.com/item?id=6809929)

~~~
thirsteh
I wonder if this is still true after the switch from first-to-invent to first-
to-file.

~~~
noonespecial
It absolutely is. Once recorded, it becomes prior art. The disclosure _would
be_ the "first to file" event in this case.

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.

~~~
thirsteh
Interesting.

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numlocked
This actually happened to my father, who personally filed a patent for a
business he and his wife were starting. The patent got flagged and placed into
SAWS and it took nearly 10 years (!) to drive it to resolution (it got
issued). He is actually a patent attorney (though not in software) and was
only able to find out what happened by back-channeling through some contacts
at the patent office. He's been a patent attorney for 35 years and expressed
complete shock when he learned about the program.

~~~
jlgaddis
_> Charnes and his colleague Kate Gaudry plan to publish an article for
Law360, an online journal, in hopes of informing the public about this
program, which they say most companies are wholly unaware of._

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.

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DannyBee
A lot of folks miss an important point here. It does not matter if they delay.
If the PTO delays your app, you get extra time added to your expiration date.

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)

~~~
wtracy
That's cold comfort when your startup has six months of runway left.

~~~
Amezarak
I'm not a founder, so maybe that's why I don't understand. How does the status
of your patent affect your business?

~~~
caboteria
The article gives an example:

> 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.

~~~
Amezarak
Sure, but I don't get how this helps. 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?

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.

~~~
wtracy

      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?
    

That's exactly it.

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venomsnake
> To this day, the patent — which Franklin says is for fairly mundane
> technology

This is just so wrong. A patent for mundane tech should be flat out denied.

~~~
rayiner
Like 95% of engineering R&D is on things that most people would consider
pretty mundane. There's armies of people working on degreasers and coagulants
and emulsifiers and all sorts of things that aren't per se interesting, but
represent the yeoman's work that makes the world go around.

~~~
CamperBob2
If only there were a way to compensate people for R&D that most people would
consider pretty mundane but that nevertheless makes the world go around.

I know! We could call it a "market."

~~~
rayiner
The whole point of creating a property right in the fruits of R&D is enabling
the market to compensate people for producing R&D. Markets don't work if
people can use what you produce without having to pay for it.

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A1kmm
I'm not sure the document released actually reflects the claims in the
articles.

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.

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awjr
The USPTO has pretty much got egg on its face when it comes to some of the
patents it has issued in the past. When a performance target is the number of
patents approved then this is what happens.

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.

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deckar01
> Patent applications can be placed in the SAWS program for an extensive
> number of reasons, which Franklin and his associates call “astonishingly
> vague.” This includes applications of “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).”

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.

~~~
awjr
Well yes and no, as an inspector you are asking for a peer review of the
patent. You start abusing SAWS and it will get noticed. I would assume however
that software patents feature quite heavily in this pool of 'bad' patents.

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minthd
Just to make the matter more concrete, here's an interesting technology which
looks like has been stalled[1](not sure if by SAWS or not), which is basically
an arithmetic-logic unit that is less precise than current systems, but still
useful, for example for vision in UAV's[2], and offers an amazing improvement
in of 6400x in speed/power, which could be really disruptive in some computing
areas, maybe even AI.

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](http://www.bdti.com/InsideDSP/2013/10/23/SingularComputing)

[2][https://www.cra.com/publications/2013eaton1.asp](https://www.cra.com/publications/2013eaton1.asp)

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arca_vorago
Don't forget there is also a process for secretly declaring any patent that is
too novel or related to anything the government doesn't want out as "Top
Secret" and frozen forever. At least with the process being described here,
the patent still has a chance of approval. The ones declared off-limits get no
compensation and are barred from speaking about their inventions, though I
have heard of rare instances where they have sued, but they usually lose.

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protomyth
Is there a law that authorizes this program? Was the rule making advertised in
the Federal Register? Is there judicial oversight?

I think the most dangerous thing in the USA is the bureaucracy making up its
own rules.

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wtracy
I'm curious about the rationale for declaring this process unconstitutional.
"Unfair" doesn't automatically mean "unconstitutional".

~~~
jessaustin
I would imagine the claim is related to the equal protection clause.

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.

~~~
dnautics
equal protection only applies to the states, it doesn't apply to the federal
government.

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paparush
Sounds like the plot of "Influx" by Daniel Suarez.

~~~
phkahler
Had not heard of that one. The notion of a shadow organization trying to
control the course of humanity is very old. Asimov gave it a shot with "The
End of Eternity" which has an amazing final chapter IMHO. But of course the
concept is much older than that too.

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brudgers
"All governments lie," \- I. F. Stone

