Let's Fix It

Wishful thinking

I obviously can't go into the garage and solder up a device to fix this mess. Or portal myself into a dimension where innovation is rewarded instead of stolen.^† All I can do is offer my suggestions. It's wishful thinking on my part, but maybe someone reading this will step up and draft a law.

Not a complete solution

I don't have all the answers. But the first step in a recovery is admitting you have a problem. I hope you'll agree the system has serious systemic problems, and with that we can hopefully start the road to recovery.

† A Rick & Morty reference. ↩

What I'd change

Demand a full and thorough disclosure — § 112

I'd beef up § 112. I'd make that a mandatory point of discussion in any examination. You'll say it already is, but show me where that was considered in this examination.

This is the fundamental patent bargain. Inventors should be held to it.

• If you can't disclose the details of the invention because you don't grasp how it works (i.e. you copied it), you shouldn't get a patent.
• If you don't want to disclose the details of the invention because less is more, you've weaseled out of your part of the bargain.

The disclosure is the whole purpose of the patent system. After the time window, we all get the technology. That's hard when the disclosures are crafted to disclose the absolute minimum. Society is getting the short end of that stick.

I don't know how to enforce that, or how to create a threshold bar for the thoroughness of the disclosure. § 112 is supposed to handle that, but we saw in Dispatch No. 24 how easy that is to sidestep.

This might be a place for public comment. It could be handled similarly to the third-party submission process. A member of the public could ask "hey, how does that sinusoidal-type waveform get processed into a direction change?" That'd be weird because who'd ask that? I'd have asked it sarcastically hoping the examiner would see the § 112, but someone might ask it for the sake of knowledge.

Compounding examination burden

If you get a patent, that's great, but the truth is as soon as the file closes, you're done. Someone wants to paint it orange? You're stuck with that static set of claims. So what everyone does is file continuations to keep the file open. That way you can go back and add claims as you find out how people are going to steal (err, work around) your technology.

This creates a compounding burden on examination. And also compounding fees, which I suppose is the point. There are 2 problems with this (actually a lot more problems, but I'll list 2):

1. A push for examiners to quickly process examination, which leads to the flaws I pointed out throughout this site.
2. A devaluing of the patent itself. After your initial disclosure the significant innovation should be out there. Subsequent continuations/divisionals aren't adding to the value of society. There are obvious exceptions, but the vast majority are prosecuted solely for maintaining the protections that the original patent should have secured.

We're in a state of quantity over quality in the US patent system, and that's not innovation. That's how we lose the global innovation race.

Give third-party submissions real weight

If someone goes to the trouble of putting prior art in front of the examiner, it should get more attention, not less (See Dispatch No. 4). I get not wanting the public to drag down the examination process. That's already overburdened as it is. But there needs to be a way to ensure relevant prior art is actually applied... not just "considered" (See Dispatch No. 6). I can't adequately explain my frustrations watching my third-party submission being ignored. I don't know how else to phrase it. There was so much detail in there that just never entered the record.

Let the other side speak before issuance

Some path for the silenced party to be heard (See Dispatch No. 10). That thing called a "Protest" that is totally useless in practice would be a great place to start. If there's a bad patent being prosecuted, the public should be able to flag it. Maybe raise it to a more experienced examiner? Maybe flag it for secondary review? Maybe allow the public to suggest examiners that actually understand the technology? That's probably too far, but I still don't know why there are 3 patents on the same fundamental technology examined by 3 different examiners in 3 different art units. That just seems inefficient and inconsistent.

Reward thorough examination

Incentives that make a thorough examination the default, not the exception. The RCE is great. Keep extracting those fees. If the patent is worth examining, pay for the time it takes to do a thorough job. The effort put forth in the Notice of Allowance feels (at least in my opinion) like the examiner just wanted to be done with this examination... to make that production quota. That's not fair to me, or to society in general (remember you all lose out in the long term too).

Side note: I'd suggest renaming the "Final rejection" to something more appropriate.

The PTAB and IPR

Too expensive, too damaging to the inventor. Until recently the PTAB had the well-earned moniker of the "Patent Death Squad" with an 84% rate of invalidating patents. The only thing that stopped or slowed this is a policy change under the current Director. This is a positive development for inventors, but this is too easily undone.

Let's reflect on that 84% rate of invalidating patents. That pretty much proves my point about inadequate examination.

Let's also reflect on the irony of the PTAB. Up until a year or 2 ago it was my worst nightmare — the thing that revokes patents almost as fast as the USPTO hands them out.

Now, when I want to use the PTAB and the Post Grant Review for its true and intended purpose, it is unattainable to me on a pure cost burden. That's a problem. If the examiner just did the job from the start, this would be unnecessary.

I am the perfect example of how the Post Grant Review should reinforce the system. How it should be the safety valve to protect the integrity of innovation. But, since it resolves nothing of value, it becomes a useless but incredibly expensive tool. This shows it's a cudgel and not a safety valve.

Registration instead of examination

I don't know how I feel about this option. It's been offered as an alternative. Instead of issuing patents out of the gate, you'd file your application and disclosure. Then when things get real, you'd go through the examination process. We won't admit it, but that's basically how the system works already. My story is a perfect illustration of this.

More thoughts

This isn't a complete list of solutions but I hope it will start a discussion. I am happy to include a guest post proposing other solutions. I'm even happy to include a guest post that argues the existing system is fine.

I hope to post more on the potential fixes, so feel free to let me know what you think.

Related dispatches

• Dispatch No. 4 — The first time this idea was good enough to copy — the earlier time this idea was good enough to copy.
• Dispatch No. 6 — The Third-Party Preissuance Submission — the submission process this dispatch argues should carry real weight.
• Dispatch No. 10 — Post-Allowance, Preissuance — What could I do? — the silenced-party problem the "let the other side speak" fix addresses.
• Dispatch No. 24 — § 112 — They Never Said How — the disclosure failure behind the § 112 fix proposed here.
• Dispatch No. 25 — TL;DR; §§ 101, 102, 103, and 112 — the recap of the legal grounds this closing dispatch follows.
• Dispatch No. 26 — TL;DR; All the system failures — the recap of the system failures these fixes respond to.
• Dispatch No. 27 — TL;DR; They were too long, so I didn't read them — the full recap this one responds to.
• Dispatch No. 29 — Independence Day — the closing reflection that follows these fixes.