I do not see how a no-examination system would ever be viable. You say that “far under 2% of all active patents are actually involved in litigation” but I contend that this has nothing (or very little) to do with the quality of patents that are out there. Not all patents in litigation are bad and not all bad patents go into litigation. In fact, very few patents go into litigation, good or bad, because litigation is so expensive.

The truth is that “bad patents” do not just create litigation. “Bad patents” keep inventors from exploring legitimate fields of innovation; are used to threaten innovators into shutting down operations or paying unneeded license fees; can keep potential investors from investing in a person’s company or product; and yes, are also used to embroil parties in litigation for money, competitive advantage and other reasons.

All no-examination would do is to remove the burden of determining whether an invention qualifies for patent protection (is not obvious, is patentable subject matter, etc.) from the USPTO, and move it to…where? To the courts, where it is very expensive and inefficient to educate the judge and jury, where decisions are unpredictable and you have to be able to afford hundreds of thousands of dollars in attorney’s fees just to get through the summary judgment phase? It is more efficient in all areas to *avoid* litigation whenever possible, this instead would just ensure that almost every useful patent would end up in litigation, probably multiple times, just so we could figure out if it’s valid or not.

The system only works when you can trust the patents out there, which is impossible under a no-examination system. Even if the USPTO does a lousy job of weeding out bad patents, what it turns away is even worse. As an example, a while back an attorney was trying to patent movie scripts. Those things would have gone through under a no-examination system, and then we would have seen big lawsuit every time a studio tried to produce “Romantic Comedy” or “Action Movie 2″, until the patents were finally, hopefully invalidated (juries can be unpredictable). How would a system like that ever be viable, or even more efficient than if the USPTO were to just do its job?

There have been several articles written regarding your statement of “The long and short of this is that it is almost impossible to make the judicial process for invalidating these “bad patents” any more efficient, less costly or more likely to come up with the correct answer, because the system was designed under the assumption that the USPTO would not consistently be producing complete crap, which it unfortunately is” which actually holds the opposite of your view. There is a certain cost effectiveness of a lowered examination rigor. This is actually borne out by the fact that far under 2% of all active patents are actually involved in litigation (and the percent of these that are outright bogus is an order of magnitude less than that).

In fact, some of these articles point to the possibility of a no-examination, registration only system as a potentially viable option. I know that we at one time in our past had a registration system and that did not work out too well, but times have changed, communication capabilities have vastly changed, and if the Office spent one-tenth of its budget on a pure identification/tracking and information display system for purely registered patents, an argument (colorable in my mind) could be made to revisiting the concept.

Having just survived the AIA though, I do not think we have the political will for such a change.

We name all software patents wrong/bad/unconstitutional, and there are still those who will not even acknowledge our voice.

If its SO EASY to discover independently solutions in software, then what is PURPOSE of patent in software?

Its not property as its GRANTED by gov. and can be REVOCKED by gov. solely to fulfill specific purpose. SPREAD OF KNOWLEGE.

So if spread is so easy, and its lack do not harm substantially industry and society as whole. WHY do we need patents?

Software industry NOT INNOVATIVE enough?

Come one. EU based companies are as innovative as US based And EU do not have software patents.
So nobody can claim innovation == patents in software industry.

So we STILL get whole segment of patents that should not be granted as their purpose IS ALREADY achieved without them. While their NEGATIVE effects are still affecting.

Straw man warning. Citation required that anyone has said either of those things – comparing patents to candy or dimes. They are both obviously untrue. but so what?

That means probably 6 hours of searching, that might take 2 years to get to, so I prefer doing my own searches to prevent unfortunate surprises. If the search misses something, I might stand to lose perhaps a $10,000 investment, toward a patent that is so narrow that it will not be attractive to others, or maybe rendered worthless because I misread the trends and guessed wrong.

Accidental happens though, as Anon mentioned a few posts back. Serendipity, if you will. The original Slinky toy was actually a left-over from a gyroscopic compass mount, that needed a soft suspension system for Naval vessels during WWII.

One of the engineers discovered that it would *walk* down steps if started properly. Their attempts weren’t up to snuff though, so they ended up using a hydraulic system instead. I inherited an Inertial Guidance Compass from a latter day WWII Destroyer that I found at a wrecking yard, (about ten bucks) which was totally amazing. It took me several days to figure out how it worked and what it actually did. The *boats* could roll a full 360 degrees, and the *compass* wouldn’t even care at all. Superior technology, made obsolete by GPS and software fairly lately.

Stan~

After reading Stan’s comment and then re-reading yours, I realize (I think) that you are arguing that the courts should consider validity before all else. I agree, and many courts already address the validity of a patent at the summary judgment stage, rather than later in trial. The problem is that even a determination at this stage is quite costly, as many standards that speak to validity, such as obviousness are completely subjective and therefore require the analysis and testimony of extremely expensive expert witnesses.

Furthermore, courts are required to start with the presumption that a patent issued by the USPTO is valid, which can only be overcome by “clear and convincing” evidence to the contrary. Gene Quinn has even previously argued that the court should not be allowed to overturn the USPTO’s decision unless there is a finding that the USPTO abused its discretion, a much higher threshold. This, coupled with the fact that the decision maker in a court (judge or jury) will almost certainly not have the prerequisite knowledge to even understand what the patent is about, makes it much harder and less certain to overturn even patents that very obviously never should have been issued.

The long and short of this is that it is almost impossible to make the judicial process for invalidating these “bad patents” any more efficient, less costly or more likely to come up with the correct answer, because the system was designed under the assumption that the USPTO would not consistently be producing complete crap, which it unfortunately is.

Why do you say that the problem you describe is a major problem of the judicial system? It seems to me that if a patent is invalidated “only after millions of dollars must be spent in discovery and other legal expenses” then that is a problem caused by the USPTO!

Look at Apple’s dubious “rubber-band” patent, filed in 2007 and granted in 2008, the patent was challenged in 2010 and Apple sued Samsung (and a myriad of other companies) over it (and other patants) in 2011. The patent was invalidated by the USPTO this year, only after Apple had already won a $1 billion verdict against Samsung, and received who-knows-how-much money for licensing it to other companies.

So the USPTO had about three years directly with this patent before it was able to come up with the correct decision that the patent was obvious and lacked novelty when it was filed. If the USPTO had done its job and come up with the correct decision in the first place then Apple, Samsung and the Judicial Branch all would have saved a hell of a lot of time and money from the get-go. I would note also that this time frame is an aberration, as the USPTO normally takes around three years to issue the original “bad patent,” rather than the one year it took in this case.

This situation also belies the argument that these so-called “bad patents” are simply a “legacy” USPTO issue. The only difference I see between the USPTO now and the “legacy” USPTO is that now it takes the office three times longer to issue the same poor-quality patents.

Very good point about the judicial system being so slow. Just the delay can be a huge problem for independents, especially, let alone the cost. As Chief Judge Michel (retired) pointed out very clearly in an article he wrote that appeared right here on IP WatchDog, we need to have about 3 times as many judges than we currently have. I can’t recall which month, but perhaps someone else might know? It was an excellent article that he wrote himself for Gene. Vote IP WatchDog for IP blog of the year!

Stan~

Howwever, a major problem is with our judicial system, not our patent system. Patent invalidity issues are rarely even considered, much less decided, in patent litigation until a full jury trial, which is usually only after millions of dollars must be spent in discovery and other legal expenses. Hence, most defendants pay off trolls just to escape litigation costs and burdens, irrespective of patent validity. [Most prior reexaminations have been too slowly run to help.] That is the main reason for the growth of the troll business.

I am not arguing with the idea of doing your own search. As I said, that is a “best practice.”

And I did not miss out on the nuance of “If I don’t know what others have done before, how could I possibly improve it in any really significant or efficient manner” either. That runs along the same line of thought.

What you seem to miss is my nuance that neither of these are legal requirements. Not a “best practice” is world’s apart from not a legal requirement. And there is a very good reason for having the system so.

The function of the quid pro quo is still met even with a non-pre-searched application, and a “naked” approach may yield some pretty unconventional wisdom. I would rather err on allowing a system that has to deal with some chaff in order to gather that unconventional wisdom. Significance is not always a “planned against the known” or even an efficient thing, and there are many classic inventions that were actually mistakes, and thus likely to be thrown away if one is too focused on plans and efficiency.

Best regards,
Stan~

I would rather make very sure that I am not wasting my time and money for all of my efforts that eventually lead to a valid invention. No invention, no donut. A guy needs to be a little careful about that, in my considered opinion. You either get the trend, or you will be left behind.

Cheers,
Stan~

Stan, I hope you realize that while this may be a “best-practice,” there is no legal requirement for any type of prior art search, right?