What experienced inventors and other observers have to say about the challenges facing the patent office.
U.S. Patent Office unable to keep pace with the volume and complexity of the applications it receives. “U.S. Patent and Trademark Office, David Kappos said Monday [May 3, 2010] that he thinks the agency still is stifling millions of potential jobs [following the financial meltdown triggered in 2008] because of its inability to keep pace with the volume and complexity of the applications it receives. While he lacks empirical data on the number of jobs that ‘our country's innovation agency’ impedes because of its inability to keep up, Kappos said his instincts tell him the number runs into the millions. ‘Hundreds of thousands of groundbreaking innovations that are sitting on the shelf literally waiting to be examined - jobs not being created, lifesaving drugs not going to the marketplace, companies not being funded, businesses not being formed - there's really not any good news in any of this,’ Kappos said during a panel discussion at the annual trade show of the Biotechnology Industry Organization. What's more, innovation has become the main driver of economic growth, Kappos said. The agency's backlog impedes economic advancement at a time when China and the rest of Asia are spending unprecedented sums on research and development, challenging the United States in areas of technology innovation where it once reigned supreme, he said.” (John Schmid of the Journal Sentinel, “Backlog of patents still stifling potential jobs, director says,” Milwaukee Journal Sentinel,Milwaukee, Wisconsin, May 3, 2010)
Outdated patent processing and case management system. “To this day, there are still places in the federal government where reams of yellow files in manila envelopes are walked from desk to desk, or boxes of documents are shipped back and forth between offices because files aren't yet online. Believe it or not, in our patent office -- now, this is embarrassing -- this is an institution responsible for protecting and promoting innovation -- our patent office receives more than 80 percent of patent applications electronically, then manually prints them out, scans them, and enters them into an outdated case management system. This is one of the reasons why the average processing time for a patent is roughly three years. Imminently solvable; hasn't been solved yet.” (President Barack Obama, “Remarks by President Obama at Opening Session of the Forum on Modernizing Government,” Forum on Modernizing Government, White House, White House Press Release, whitehouse.gov, Washington, DC, Thursday, January 14, 2010, 17:09)
Patent office incentive system rewards patent examiners for additional paperwork. “[The goal of Secretary of Commerce Gary Locke and David Kappos, director of the U.S. Patent and Trademark Office] is to eventually get the average approval time [for patents] down to one year. It won't be easy. When Kappos arrived, it was hard to find anything that worked. The computers are hopelessly antiquated. The incentive system for patent examiners rewarded additional paperwork. And the method for funding the office was tied to filing fees, making the budget unpredictable each year. To illustrate the depth of dysfunction, consider this little morsel of bureaucratic nuttiness. Kappos said when patent applications come in, the patent office would print them out, take them to another room, and re-scan them into the system. ‘If you told someone in the valley we were doing things like this, they'd say 'You're insane,’’ Kappos said.” (Chris O'Brien, Mercury News Columnist, 415-298-0207 “O'Brien: How Obama's team hopes to fix patent office,” Silicon Valley Mercury News, updated March 3, 2010)
Patent Office has very little manpower to process patent applications (2009). “Patented inventions can ignite the economy by creating demand for products and jobs. However, the U.S. Patent and Trademark Office has very little manpower to examine up to 400,000 applications a year. To stay afloat they rely on [revenues from patent application fees paid by inventors] like George Huggins, who has waited for five years on patents for his trailer alarm system and tailgate loading ramp. ‘I'd like to get my patents before I die," Huggins says. "Everybody says 'how old are you?' I say 'I'm over 80 fellas. I'm a World War Two vet, and I think the government owes me, at least, to get me my patents before I die.’ So how long does it take to get an idea patented? ‘We're telling people anywhere from five to eight years,’ says Douglas Sorocco, a patent attorney with Dunlap Codding.” (Ed Doney, “Inventor frustrated with U.S. patent backlog,” KFOR News Channel 4, Oklahoma City, Oklahoma, 6:20 PM CDT, August 19, 2009)
Patent office will not be able to keep pace with the volume of patent filings even with new hires. “The Patent Office, according to its Web site, plans to hire more than 1,000 patent examiners each year for the next five years to keep up with demand. ‘Even so,’ it says, ‘the volume of applications will continue to outpace the agency's capacity to examine them.’” Patent process troubles. (Theresa Vargas, Washington Post Staff Writer, “Novel Ideas Pass Through Filter at U.S. Patent Office,” Washington Post, Sunday, November 18, 2007)
Patent Office has stopped hiring patent examiners because of the global recession. “The global recession has hit the U.S. Patent and Trademark Office, whose budget depends on fees that are becoming increasingly scarce…. The patent office, which is funded by fees from patent applications and other services [and has a 2009 fiscal year budget of just over $2 billion], is projecting a 2 percent drop in applications if early trends from 2009 persist, said [John Doll, acting director of the U.S. Patent and Trademark Office]. … The budget woes mean that the patent office has stopped recruiting [and hiring] examiners, which it had been doing in an effort to clear a tremendous backlog of patent applications. [Doll estimates that it would take us almost two years to clear out the patent office’s backlog].” Underfunding of patent and trademark office. Patent office cuts. (Diane Bartz, “Patent Office budget hit by financial crisis,” Reuters,Monday, March 16, 2009 1:29pm EDT)
More than a 3-year backlog in processing patent applications. “Intellectual property (IP) remained one of the fastest growing legal disciplines in 2006, spurred by continual innovations in the software and biotech industries. But patent applications are backlogged more than three years, and Congress again delayed legislation designed to break the logjam at the U.S. Patent Trademark Office (PTO).” (Sean Meyers, “Hiring an IP lawyer is more complex than one thinks,” New Mexico Business Weekly, February 23, 2007)
Not enough patent examiners (2002). “There are a lot of ideas out there, enough to overwhelm the staff of the Patent and Trademark Office, which is working to keep its promise to cut down on the length of time it takes to process a patent application, now about 24 months on average. The problem is not enough examiners. They can't keep up with the huge leap in the number of patent applications during the 1990s.” How long does it take for a patent decision? Why does it take so long for a patent decision? Length of time for patent approval. (Ira Flatow, “Analysis: Inventors, inventing and the process of obtaining patents,” Talk of the Nation, Science Friday, NPR, January 4, 2002) Discover the many fascinating inventing books by Ira Flatow
Patent examiners take short cuts on prior art analyses. "We know we're taking shortcuts. The less work you do, the more credit you get. If you find nothing [in prior art], you're considered the most efficient of all." (Ron Stern, president of the Patent Office Professional Association, the union for patent examiners quoted in Megan Barnett, “Patents pending”, U.S. News & World Report, June 10, 2002)
One-third of patents are functionally redundant. “David Martin, founder of a data management firm called M-CAM, calls them "thesaurus patents" and says he is stunned by the number of them he finds for his clients. ‘About one third of the time we find patents that are functionally redundant,’ he says. Other experts think Martin's estimates are overstated, but since any piece of prior art missed by the examiner can be used in court by a company to invalidate a competitor's patent, the stakes are high. Patent lawsuits typically cost each party $1 million, and suits costing $4 million to $10 million are not unheard of.” Patent litigation. (Megan Barnett, “Patents pending”, U.S. News & World Report, June 10, 2002)
Patent office issues thousands of weak, vague patents. “The problem is especially acute in the U.S. patent system, as it applies to biotech. Compared with Europe and Japan, the American system allows patents on a wider range of subject matter, for relatively less significant discoveries, and with lower standards for patent grants. The result: the U.S. Patent and Trademark Office issues hundreds of thousands of weak, vague patents and has a multiyear backlog of applications. If you are a U.S. innovator, there is no way even to figure out who owns rights relevant to your proposed new drug. Usually we think the sheer number of U.S. patents is a sign of superior innovative talent and competitive strength. Not so, when innovation requires assembly. … Imagine a drug developer walking into an auditorium filled with dozens of owners of DNA patents needed for a particular medical breakthrough. Unless he can strike a deal with everyone in the room, there's no way forward.” Patent office criticism. (Michael Heller, “Innovation Gridlock,” Newsweek, February 2, 2009)
Prolonged wait for patents caused by misplaced patent files. “[Sacramento inventor Eric Teng’s] journey through the patent maze took years because his application was misplaced several times. He eventually sought a lawyer.” (Thuy-Doan Le, “Entrepreneurial spirit starts to pay off for Sacramento, Calif.-area inventor,” The Sacramento Bee, December 12, 2004) Take a look at the successful outcome and read customer reviews of inventor Eric Teng's Garlic Twist invention.
Misplaced patent files. "’I've had files misplaced, but they found it later,’ said Bob DeMatteis, author of From Patent to Profit. ‘We get over two million pieces of mail each year, and once in a while, we can have a mislaid paper,’ said [U.S. Patent and Trademark Office] spokeswoman Brigid Quinn. To help eliminate the problem, she said, all the department's 4,000 examiners trained on the electronic patent system last summer.” (Thuy-Doan Le, “Entrepreneurial spirit starts to pay off for Sacramento, Calif.-area inventor,” Sacramento Bee, December 12, 2004)
Perceptions of being antagonistic to inventors. "I came to believe their sole purpose in life is to beat you down.” (Bryce Ecklein, Seattle inventor and amateur winemaker commenting on his experience with U.S. patent office reviewers of his wine aging invention patent that was eventually approved quoted in Doug Cooley, “A bent to invent,” Puget Sound Business Journal, July 26, 2002)
Patent decisions take a long time. "You have to be in good health to be in the patent process. You can get old." (Eric Teng, inventor of the Garlic Twist quoted in Thuy-Doan Le,, “Entrepreneurial spirit starts to pay off for Sacramento, Calif.-area inventor,” Sacramento Bee, December 12, 2004) Take a look at the successful outcome of inventor Eric Teng's Garlic Twist invention.
Over 30% of patents make duplicate claims. “A study by M-CAM [434-979-7240], an intellectual-property consultancy, found that over 30% of patents make duplicate claims, raising questions about their validity. America's PTO dismisses the criticism as anecdotal.” (“The Cost of Ideas: Intellectual”, The Economist, November 13, 2004)
Embarrassing work. "It's an embarrassment… …Sometimes examiners get so myopic on the rules of the game they don't step back and use their common sense." (Longtime patent attorney quoted in Megan Barnett, “Patents pending”, U.S. News & World Report, June 10, 2002)
Absurd patent awards. “Efficiency, however, can easily cross into absurdity. Take Patent No. 6,368,227, awarded to 7-year-old Steven Olson of St. Paul, Minn., on April 9. The boy's invention, which the patent office deemed new and unique, is a method for swinging sideways on a swing suspended by two chains from a horizontal tree branch. Or Patent No. 6,360,693, awarded on March 26. The patent's claims describe an animal toy that sounds suspiciously like a stick (the apparatus "includes a main section with at least one protrusion . . . that resembles a branch in appearance"). (Megan Barnett, “Patents pending”, U.S. News & World Report, June 10, 2002)