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I'd argue that: 1.) There are bad feedback loops between speed / quality / price of patent examination and the amount of ridiculous patents issued. 2.) Increa

I'd argue that: 1.) There are bad feedback loops between speed / quality / price of patent examination and the amount of ridiculous patents issued. 2.) Increasing the budget to improve screening and throughput will lead to an increase in patents submitted - will this increase at a higher / lower rate than their budget? I.e. will new patent submissions bloat the office even more than now? 3.) We could try to increase patent fees to cover costs, but then you'll "hurt the little guy" and fully benefit the IBMs who can afford to blow money like this. 4.) The boundary is quite gray between trolls (IV and others) and institutions with near-troll behavior (IBM's if-it-sticks patent submission methods). 5.) There are higher ratios of bad patents in certain categories: process patents, software, etc. Conclusion: I bet that reducing the scope of what categories are patentable scales very well in reducing bad patents than any method of trying to make a better filter, because better filters will just lead to more patents to fill the void.

redthrowaway 16y ago
I think you really need to re-examine 1 & 2. Increasing the speed and quality of patent review may lead to more patent applications, but would reduce the number of baseless patents granted. As for price, the USPTO was never supposed to be self-sufficient. Doing it properly means the taxpayer picks up the tab. That's just something you have to accept in exchange for living in a highly developed economy. IBM's patents, as well as those of Google and others, are generally defensive. They're meant to provide ammo to protect themselves from patent trolls.
- nickpinkston 16y ago
  It would reduce the ratio of bad/good patents - not number, this is my argument: increasing ease of submitting (speed, etc.) will probably lead to more patent submissions - the relation of these curves says whether the number would decrease. I wasn't arguing for pricing it at true cost - I'm saying that if you're subsidizing an activity and increasing throughput - you tend to get doubly more of it. Defensive patents also restrict innovation - see: "patent thickets". Having IBM patent worthless things is just as bad - probably worse than smaller ones because of their credible threat.
- dhimes 16y ago
  Probably due to the fact that IANAL, I never understood why you need an actual patent to defend yourself. Why doesn't just having prior art suffice? Seems like if it's publicly reachable you should be safe. <sigh>
  - dctoedt 16y ago
    > I never understood why you need an actual patent to defend yourself. Why doesn't just having prior art suffice? Only having an actual patent gives you a weapon for a counterclaim. And it's a weapon only if the company suing you for infringement is itself infringing your patent.
    - dhimes 16y ago
      OK- so you don't need one to protect yourself, only if you want to sue in retaliation. Am I understanding that right? Seems if you can invalidate a patent by showing prior art that would be a powerful deterrent to someone wanting to sue you.
      - dctoedt 16y ago
        > Seems if you can invalidate a patent by showing prior art that would be a powerful deterrent to someone wanting to sue you. Sometimes, yes, but not always. It once worked out that way for one of my clients. The client got a letter from another company's lawyer, saying, "you may be interested in this patent." That's code for a threat to sue. The other company was a legitimate company that actually made stuff; it wasn't a troll, er, non-practicing entity. My client had solid evidence that it had come up with the invention several years before, and that it had not abandoned, suppressed, or concealed the invention. This put the client in a position to make a powerful invalidity argument, one that can be especially persuasive to a jury -- even assuming this invention was patentable, we'd have been the ones entitled to the patent, not them. I sent a letter to the patent owner's lawyer (whom I knew), saying, almost in so many words: I've reviewed some prior art not cited by the patent examiner, and my client is not the least bit interested in discussing your client's patent. The lawyer asked if I'd send him a copy of the prior art. I said, if you file a lawsuit, you'll get the prior art in the ordinary course of discovery. The lawyer evidently got the message - we never heard from them again, at least not on that subject. (As usual, YMMV, and don't rely on this anecdote as a substitute for legal advice. Knowingly infringing a patent without clear and convincing evidence of invalidity could result in being held liable for willful infringement. That in turn could mean having to pay treble damages and the patent owner's attorneys' fees, which will almost always be considerable.)
alex_c 16y ago
Simple solution: change fees on a sliding scale based on number of applications per year. The little guys who might file for one patent in their lifetime won't be affected. The IBMs won't be affected, because they expect an actual return on those patents. The shotgun-approach patent trolls will be affected, especially if frivolous patents are rejected.
jeza 16y ago
Surely eliminating troll patents would reduce the burden on the system, not the other way around.

redthrowaway 16y ago

I think you really need to re-examine 1 & 2. Increasing the speed and quality of patent review may lead to more patent applications, but would reduce the number of baseless patents granted. As for price, the USPTO was never supposed to be self-sufficient. Doing it properly means the taxpayer picks up the tab. That's just something you have to accept in exchange for living in a highly developed economy. IBM's patents, as well as those of Google and others, are generally defensive. They're meant to provide ammo to protect themselves from patent trolls.

nickpinkston 16y ago
It would reduce the ratio of bad/good patents - not number, this is my argument: increasing ease of submitting (speed, etc.) will probably lead to more patent submissions - the relation of these curves says whether the number would decrease. I wasn't arguing for pricing it at true cost - I'm saying that if you're subsidizing an activity and increasing throughput - you tend to get doubly more of it. Defensive patents also restrict innovation - see: "patent thickets". Having IBM patent worthless things is just as bad - probably worse than smaller ones because of their credible threat.
dhimes 16y ago
Probably due to the fact that IANAL, I never understood why you need an actual patent to defend yourself. Why doesn't just having prior art suffice? Seems like if it's publicly reachable you should be safe. <sigh>
- dctoedt 16y ago
  > I never understood why you need an actual patent to defend yourself. Why doesn't just having prior art suffice? Only having an actual patent gives you a weapon for a counterclaim. And it's a weapon only if the company suing you for infringement is itself infringing your patent.
  - dhimes 16y ago
    OK- so you don't need one to protect yourself, only if you want to sue in retaliation. Am I understanding that right? Seems if you can invalidate a patent by showing prior art that would be a powerful deterrent to someone wanting to sue you.
    - dctoedt 16y ago
      > Seems if you can invalidate a patent by showing prior art that would be a powerful deterrent to someone wanting to sue you. Sometimes, yes, but not always. It once worked out that way for one of my clients. The client got a letter from another company's lawyer, saying, "you may be interested in this patent." That's code for a threat to sue. The other company was a legitimate company that actually made stuff; it wasn't a troll, er, non-practicing entity. My client had solid evidence that it had come up with the invention several years before, and that it had not abandoned, suppressed, or concealed the invention. This put the client in a position to make a powerful invalidity argument, one that can be especially persuasive to a jury -- even assuming this invention was patentable, we'd have been the ones entitled to the patent, not them. I sent a letter to the patent owner's lawyer (whom I knew), saying, almost in so many words: I've reviewed some prior art not cited by the patent examiner, and my client is not the least bit interested in discussing your client's patent. The lawyer asked if I'd send him a copy of the prior art. I said, if you file a lawsuit, you'll get the prior art in the ordinary course of discovery. The lawyer evidently got the message - we never heard from them again, at least not on that subject. (As usual, YMMV, and don't rely on this anecdote as a substitute for legal advice. Knowingly infringing a patent without clear and convincing evidence of invalidity could result in being held liable for willful infringement. That in turn could mean having to pay treble damages and the patent owner's attorneys' fees, which will almost always be considerable.)

alex_c 16y ago

Simple solution: change fees on a sliding scale based on number of applications per year. The little guys who might file for one patent in their lifetime won't be affected. The IBMs won't be affected, because they expect an actual return on those patents. The shotgun-approach patent trolls will be affected, especially if frivolous patents are rejected.

jeza 16y ago

Surely eliminating troll patents would reduce the burden on the system, not the other way around.