PTOEx - If they won't fix theirs, why don't we build our own?

Posted by Douglas Sorocco at August 31, 2005 09:33 PM

An idea:

If FedEx can take on the federal government's role as the mail delivery specialist, why can't a private commercial enterprise take on the role of patent office?

I'll be blogging on this some more over the next couple of weeks - but my first question to y'all out there, why not?

If Congress can't improve the process/quality by allowing the PTO to keep the user fees and use it to improve quality and service, let's innovate around them.

So - how do we create PTOEx?

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Patent Guy Says:

September 1, 2005 10:30 AM

There is a terrible idea - and by terrible what I mean to say is - really awful.

It's a question of motivation Bob: If your customers are paying you for, presumably, a rapid, valid, legal opinion, delivered at say 1/4 cost of the USPTO and you have excellent customer service and are overwhelmingly convenient - it will not matter once you start rejecting applications.

Since reasonable minds can differ on what is obvious or inventive, and since all patents are presumed to be valid, inventors would naturally gravitate toward whichever patent office has the most favorable examinations for inventors.

It's a natural force in capitalism and can not be reasonably mitigated without having that hypothetical free and independent examiner in their ivory tower making patentability determinations based solely on the prior art (and not on whether it's the end of the quarter).

Government offices are imperfect institutions run by temps. We can try to effect change by lobbing congress or the PTO itself, but at the end of the day, the less we expect from them both the happier we all will be.

Nipper Says:

September 1, 2005 12:16 PM

>..inventors would naturally gravitate toward whichever patent office has the most favorable examinations for inventors.

I think you are right "Patent Guy." Who would go for it???

Perhaps an industry group? For instance, one who is sick and tired of dealing with how patent laws impact them, might explore such an option. Of course that raises anti-trust issues and the inevitable issue of how to deal with independent inventors and newcomers to the marketplace.

Interesting concept none the less.

Patent Guy Says:

September 1, 2005 03:16 PM

Thanks Nipper,

It is certainly an interesting concept, and different industries should have myriad options for patent protection.

I came across without equivocating above because of the speed and intensity of an uninformed reaction after a /. link. Computer scientists have been burned by the system so often that they feel patent (office) bashing is a standard and accepted practice.

Sorry to be a kill joy on an interesting concept.

Perhaps if you want to hypothesize... why not forbid amendments, and have the major patent offices worldwide examine each application based on a harmonized standard - then grant worldwide patent rights based on the majority opinion. So if there are 9 major patent offices in this consortium, and 5 of them usually give the most favorable outcome for inventors in, say, plasma physics, you would file in those five countries to get the whole world as a result. This has the same problem as privatization but has the beginnings of a checks and balances.

Or further, break the PTO into 500 tiny patent offices by classification to dial in on really understanding where technology is headed. Let the examiners visit labs and trade shows. Forget ordinary skill, let them become experts in the art. Make getting a patent more difficult than publishing in Nature. Of course, this won't work either for a several independent reasons, but again, it's an interesting hypothetical.

Thanks for stimulating the thought.

buck Says:

September 6, 2005 06:18 PM

This idea could work. Currently, Examiners are required to do art searching and then judge whether claims are allowable in view of their found art. This is like having prosecuters gather evidence against a suspect and then judge whether they are guilty or not.

Have a subcontractor do an art search and, possibly a patentability analysis, and let the Examiner review the art and analysis and make a patentability determination.

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