
Empirical research reveals three big problems with how patents are vetted - BerislavLopac
https://arstechnica.com/tech-policy/2017/12/these-experts-figured-out-why-so-many-bogus-patents-get-approved/
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ScottBurson
Great suggestions in this article:

* eliminate the issuance fee (that is paid when a patent is granted) and raise the application fee to compensate, to eliminate the perverse incentive for the PTO to grant patents

* use renewal fees to rebate application fees for individual and qualified small-business applicants (the amount of the rebate depending on the amount of renewal money coming in)

* only allow an application to be refiled once; the second rejection is final

* allow examiners somewhat more time to examine each patent

All of these would help the situation.

Finally, the article argues against funding the PTO through fees. I can put it
no better than the author: "While a user-funded patent office sounds good in
theory, the reality is that the social costs of bad patents are high — and
they're borne by the general public, not patent holders."

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daxfohl
Seems like it would be better if modeled after the criminal justice system.
You have to prove beyond a reasonable doubt that the invention is novel and
patent worthy. And duration of the patent should be dependent on its scope,
and reviewable in the future. Of course this may be way more expensive, can't
say I've calculated out the economics of it.

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pnw_hazor
Except for variable length patent terms (duration), everything you suggest is
true already.

The applicant has to prove to the examiner that their invention overcomes the
prior art discovered by the examiner (or anyone). Also, inventors (and their
attorneys) have to disclose to the USPTO all relevant public references
(potential prior art) they know of.

Further, during patent prosecution, US examiners are allowed (required) to
broadly interpret claims and prior art. Giving them more latitude than courts
to declare something is prior art for a given invention.

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abecedarius
As coinventor of a now-expired patent, I'm not very impressed by the bar for
novelty.

There has been some truly new stuff patented, like the RSA cryptosystem. It's
not clear to me whether protecting things like that has been a net benefit
even before the cost of also protecting ordinary engineering and worse.

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pnw_hazor
The novelty bar is low by design. An invention needs at most one difference
from prior art to be novel. It can be a small difference. But if a patent
relies on a small difference for novelty it is likely to be a narrow patent or
otherwise easy to design around. Note, non-utility differences, like color or
artistic design elements do not count in utility patents.

Non-obviousness is harder prove because multiple references can be combined
and there is more room for subjective interpretation or argument. Overcoming
obviousness rejections is where patent attorneys earn their money. If the
filed specification is well-done, obviousness rejections can almost always be
overcome at the expense of narrowing the patent claims.

Further, patents encourage innovation in at least two ways:

The classic view is that they reward inventors by granting them a limited term
monopoly in their invention in exchange for public disclosure.

Though I think more innovation is spurred by people designing around existing
patents. For example, Amazon's old one-click patents didn't stop the
e-commerce industry from innovating. Neither did Priceline's patents on
reverse on-line auctions.

Patents protect how someone does something, not what someone does. Two
inventions that do the same thing can be patented, as long as how they do it
is different. RSA patents only mattered because people wanted to use RSA's
crypto. They didn't stop others from making or patenting different kinds of
crypto or getting their own patents on novel extensions to RSA's crypto.

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abecedarius
This is just one more anecdote, but I once read Sun had a cool new patent, the
central idea of which turned out to be three lines of assembly code which had
already been published in the well-known superoptimizer paper by Massalin 15
years before -- I only noticed this because I happened to have been reading it
and had the paper lying around my bedroom. To Massalin it merited one
paragraph in an appendix about interesting snippets discovered by the
superoptimizer. Sun gave it pages of legalese broken out into multiple claims,
ending with the usual boilerplate claiming any further variations not
explicitly listed that would be obvious to one "skilled in the art".

I did nothing about this because the fight would be a drag with nothing in it
for me.

Yes, the classic justification is to encourage invention, but there are
publications arguing that patents aren't a net positive. It's not my field, I
don't know, but I've started doubting.

Added: I don't think Sun did anything especially wrong -- they worked with the
patent system as it is and missed the prior art. What I think is that this
example shows some of what's wrong with that system.

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pnw_hazor
That was just a mistake that slipped through the system. It would be caught
later if the patent was ever asserted against anyone. Sun might have caught it
themselves as part of their evaluation process before asserting the patent.

Now examiners have better access to all types of references. And, it is easier
to search through them. Academic papers, foreign patents, foreign
publications, books, website copy, etc, are all fair game. Though examiners
seem to prefer to use US Patents/Applications if they can. US patents or
published applications make great prior art references because they have a
clearly defined priority date and patent prosecutors tend to draft specs to be
as inclusive as possible.

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abecedarius
It's encouraging to hear the situation may be getting better.

I brought up my example because it shows a friction-to-innovation ratio that
seems way out of proportion and because the missed prior art makes the
comparison unusually clear. The academic paper treated the idea as almost a
throwaway -- I can imagine it as one of the first things to be dropped on
tighter page limits. (By dim memory -- I ran into this over a decade ago.)
More usually when a patent gets argued about, the interested parties make the
matter harder to follow for the rest of us without the attention to spare. I
think most of us, if we're fair-minded, when we read about one of these
disputes should go "That _sounds_ like ordinary junk but the law is
complicated, the patent is complicated, my opinion about this case won't be
worth much unless I spend way more effort than I can justify." Here was a
patent that just by chance I could easily judge, which didn't otherwise look
different from others I've heard about. (Maybe I could dig up the patent
number since I've been harping on it. I'm not sure.)

Having lots of friction from many small inventions helps the big established
companies more. My own patent, it'd never have occurred to me to patent it --
but it was work for a tiny startup that needed a defense in this system. (I
don't think this patent was a bad one as patents go. It got referenced by a
VPRI STEPS paper.)

A patent system could encourage growth, or it could get mired in a rent-
seeking equilibrium. It seems hard to tell which we've got, but I'd bet on the
latter if we knew how to settle this.

There's also a freedom-of-thought cost, in that independent invention happens
all the time, unlike the case with copyright. That is, even an unarguable
finding of welfare benefit wouldn't settle the question if patents are
_right_. It'd have to be a substantial benefit to offset the cost to liberty.

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chrislloyd
If they wanted to get more extreme, they could take the initial filing fee as
a deposit and only refund it with successful applications. That would help
prevent the persistent applications and incentivize the USPTO to reject more.
In the eyes of the examiner, the value of the patent has to be worth more to
them through society than the individual filing fee.

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pnw_hazor
Patent issuance is not based on their worth to society. Utility, Novelty, and
Non-obviousness is all that's required.

Besides, how could an examiner evaluate the importance of a patent that has a
20 year term. How could anyone?

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CM30
Part of me wonders whether a solution may be to do the following:

1\. Subject all patent applications to a two month public appeal period, where
any objections from the general public can be received for the patent 2\.
Then, these objections are reviewed by the patent examiners, with any patent
applications that turn out to already exist in some form being invalidated 3\.
And all rejected patent applications being subjected to a Git style diff
setup, where anything with the same wording is immediately rejected before it
enters the system.

Add this to a requirement to 'have some plan for manufacturing a product based
on the patent (ie, no way to register patents just for licensing or court
battles), and that'd probably go a long way towards making the patent system
more fair and stop bogus patents getting approved.

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pnw_hazor
1 and 2. There are various public appeal periods but because they require
examiner time and force applicants to pay attorneys to answer the objections
they cost a lot of money.

3\. That would be some awesome ML to pull that off. Since by law the patent
applicant is his or her own lexicographer - within reason, they can define the
meaning of the words in their application

Requiring plans for manufacturing will never fly. Universities like to patent
stuff. Also, via R&D an inventor can identify more than one invention but may
have just enough resources to produce one, or they may have "plans" to produce
them later, or license to partners for production, etc.

edit: typo - missed your number 3

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topspin
"objections they cost a lot of money"

The premise being that low cost is optimal.

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pnw_hazor
The person raising the objection (the petitioner), pays the USPTO fees of
$6000 to $18000+ depending on the type of post issuance review requested. The
more expensive and complicated ones are more trial-like and require more back
and forth between the petitioners, the patent owners, and the USPTO. This
requires more attorney time which makes them very expensive to pursue.

edit: to add - still very "cheap" compared to real trials

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jononor
They should up the patent application fee, say by 50%. Then spend this extra
money on reviewing objections from the public (if any). Then the public or
interest groups can actually help find prior art.

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pnw_hazor
Subject to some timing requirements, the USPTO allows for anonymous/third-
party submission of prior art before a patent issues.

I think there is a small per document fee.

[https://www.uspto.gov/web/offices/pac/mpep/s1134.html#d0e121...](https://www.uspto.gov/web/offices/pac/mpep/s1134.html#d0e121728)

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jononor
There should be a financial penalty to the office issuing a wrong patent is
shown to be invalid later on. Right now the incentives are perverse, no reason
to not let bogus or useless patents through.

Probably one would also need to have some of the patents reviewed by 3rd party
within a year or two after approval, to ensure faulty patents are detected
within a timeframe that makes the feedback relevant to the original examiners.
Maybe pay the reviewer office based on number of parents invalidated.

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pnw_hazor
This can't work. Patent law changes and is often retro-actively applied.

Though to your point, AFAIK examiners and their bosses hate to have patents
they allow be overturned. It is noticed. But often, patents are invalidated
based on changes to the law that occur after a patent was allowed.

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jononor
One could exclude those cases? Of course cannot punish based on changes at a
later point.

