9 ms·

The U.S. Government Has a Secret System for Stalling Patents

196 points by jostmey 12y ago

JoshTriplett 12y ago
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 12y ago
  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 12y ago
    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 12y ago
      Following the law is easy when u can read it.
      - Istof 12y ago
        if you are an attorney in the field, maybe.
        angersock 12y ago
        Well, it's damned difficult to follow laws that aren't written down.
        kbenson 12y ago
        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."
        dnautics 12y ago
        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?
      - 12y ago
  - jemfinch 12y ago
    Except for, you know, the 50 page document described in the article and retrieved via FOIA.
    - jessriedel 12y ago
      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.
      - jessaustin 12y ago
        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.
- honksillet 12y ago
  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.
- Animats 12y ago
  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.
- ScottBurson 12y ago
  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?
olefoo 12y ago
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 12y ago
  Workaround: File for a patent in another country.
deckar01 12y ago
> 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.
- Kliment 12y ago
  We just need to get said hellban applied to every patent and the problem will be solved.
- awjr 12y ago
  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.
venomsnake 12y ago
> 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.
- pm 12y ago
  I would think that by "mundane" Franklin means "not that interesting".
  - venomsnake 12y ago
    A patent should be novel, non obvious, contain inventive step and useful. I think that anything that answers that 4 criteria is that interesting by default.
    - dalke 12y ago
      There are some 570 patents for barbed wire. I'm pretty sure only a very select few would consider each one interesting.
      - Karunamon 12y ago
        That implies that all 570 validly deserve patent protection. Going to go out on a limb here and say that a large chunk of them, if not a majority, should not have been granted. Look at the BS in the software patents world.. it almost certainly extends to other fields.
        dalke 12y ago
        The claim is that "novel, non obvious, contain inventive step and useful" implies "interesting". My counter-claim is that the label "interesting" is only going to be true for a very few people. Perhaps even only the inventor. 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?
A1kmm 12y ago
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.
awjr 12y ago
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.
minthd 12y ago
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
paparush 12y ago
Sounds like the plot of "Influx" by Daniel Suarez.
- phkahler 12y ago
  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.
spiritplumber 12y ago
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...
- pwg 12y ago
  > I'm in the process of getting a provisional patent ... would actually like to have it rejected for being trivial 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 http://www.uspto.gov/patents/resources/types/provapp.jsp > (from link above) provisional applications are not examined.
- ihnorton 12y ago
  > 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
brudgers 12y ago
"All governments lie," - I. F. Stone
protomyth 12y ago
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.
numlocked 12y ago
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 12y ago
  > 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.
arca_vorago 12y ago
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.
DannyBee 12y ago
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 12y ago
  That's cold comfort when your startup has six months of runway left.
  - CamperBob2 12y ago
    If your runway depends on patent grants, you're already dead.
    - tptacek 12y ago
      This is exactly right. I've never even heard of someone getting a patent in under 5 years. The two times I've been issued patents, it took over 7 years and didn't happen until long after I'd left the company that demanded I apply for them. Patents are not operationally meaningful to startups.
      - throwawaykf05 12y ago
        1. Patent pendency times are dropping rapidly these days. The large delays in the early 2000's were allegedly due to an informal internal "reject, reject, reject" policy at the USPTO instituted by the director at the time. 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.
  - Amezarak 12y ago
    I'm not a founder, so maybe that's why I don't understand. How does the status of your patent affect your business?
wtracy 12y ago
I'm curious about the rationale for declaring this process unconstitutional. "Unfair" doesn't automatically mean "unconstitutional".
- jessaustin 12y ago
  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 12y ago
    equal protection only applies to the states, it doesn't apply to the federal government.

196 points by jostmey 12y ago

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 12y ago
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 12y ago
  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 12y ago
    Following the law is easy when u can read it.
    - Istof 12y ago
      if you are an attorney in the field, maybe.
      - angersock 12y ago
        Well, it's damned difficult to follow laws that aren't written down.
        kbenson 12y ago
        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."
        dnautics 12y ago
        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?
    - 12y ago
- jemfinch 12y ago
  Except for, you know, the 50 page document described in the article and retrieved via FOIA.
  - jessriedel 12y ago
    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.
    - jessaustin 12y ago
      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.
honksillet 12y ago
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.
Animats 12y ago
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.
ScottBurson 12y ago
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?

olefoo 12y ago

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 12y ago
Workaround: File for a patent in another country.

deckar01 12y ago

> 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.

Kliment 12y ago
We just need to get said hellban applied to every patent and the problem will be solved.
awjr 12y ago
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.

venomsnake 12y ago

> 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.

pm 12y ago
I would think that by "mundane" Franklin means "not that interesting".
- venomsnake 12y ago
  A patent should be novel, non obvious, contain inventive step and useful. I think that anything that answers that 4 criteria is that interesting by default.
  - dalke 12y ago
    There are some 570 patents for barbed wire. I'm pretty sure only a very select few would consider each one interesting.
    - Karunamon 12y ago
      That implies that all 570 validly deserve patent protection. Going to go out on a limb here and say that a large chunk of them, if not a majority, should not have been granted. Look at the BS in the software patents world.. it almost certainly extends to other fields.
      - dalke 12y ago
        The claim is that "novel, non obvious, contain inventive step and useful" implies "interesting". My counter-claim is that the label "interesting" is only going to be true for a very few people. Perhaps even only the inventor. 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?

A1kmm 12y ago

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.

awjr 12y ago

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.

minthd 12y ago

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

paparush 12y ago

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

phkahler 12y ago
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.

spiritplumber 12y ago

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...

pwg 12y ago
> I'm in the process of getting a provisional patent ... would actually like to have it rejected for being trivial 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 http://www.uspto.gov/patents/resources/types/provapp.jsp > (from link above) provisional applications are not examined.
ihnorton 12y ago
> 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

brudgers 12y ago

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

protomyth 12y ago

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.

numlocked 12y ago

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 12y ago
> 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.

arca_vorago 12y ago

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.

DannyBee 12y ago

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 12y ago
That's cold comfort when your startup has six months of runway left.
- CamperBob2 12y ago
  If your runway depends on patent grants, you're already dead.
  - tptacek 12y ago
    This is exactly right. I've never even heard of someone getting a patent in under 5 years. The two times I've been issued patents, it took over 7 years and didn't happen until long after I'd left the company that demanded I apply for them. Patents are not operationally meaningful to startups.
    - throwawaykf05 12y ago
      1. Patent pendency times are dropping rapidly these days. The large delays in the early 2000's were allegedly due to an informal internal "reject, reject, reject" policy at the USPTO instituted by the director at the time. 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.
- Amezarak 12y ago
  I'm not a founder, so maybe that's why I don't understand. How does the status of your patent affect your business?

wtracy 12y ago

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

jessaustin 12y ago
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 12y ago
  equal protection only applies to the states, it doesn't apply to the federal government.