How patent quality extremism and money-can-buy-fairness have ruined the U.S. patent system

By Jianqing Wu, Ph.D.
August 7, 2017

Patent reformers argue that too many patents can hurt business, and low-quality patents cause problems. Their lobbying activities have successfully persuaded the Congress to pass the AIA, with the primary purpose to raise patent quality standard. In this article, I will show that a high patent quality is responsible for creating a technological crisis in the U.S. In this series I will discuss adverse impacts of high patent quality standard in four aspects: the constitutional purpose, its impacts on different inventors, its adverse impacts on inventive activity intensity as compared with that in several other nations, and U.S. market monopoly achieved by foreign-owned U.S. patents.

I collected data for U.S. patents granted to U.S. individual inventors (including independent inventors, accidental inventors, and some professional inventors) from 1995 to 2015, as compared with U.S. patents granted to U.S. Corporations and foreign corporations in several foreign nations.

Table 1. The Numbers of U.S. Patents Granted to U.S. Corporations, Foreign Corporations and U.S. Individual Inventors from 1995 to 2015.

Data source: USPTO website.

In the period 1995-2015, the total number of patents granted was tripled.  However, the number of patents granted to U.S. individual inventors has decreased even though the technological landscape has moved to a state in favor of creating more inventions. Similarly, other data [not produced here] shows that the share of patent applications originated from the U.S. has steadily reduced from 76.6% to about 48.9% from 1963 to 2016. As in 2015, applications filed by U.S. entities comprise less than half of all patent applications. I must conclude that most inventing activities reflected in the U.S. patent office applications actually took place in foreign nations. Foreign entities use granted U.S. patents to control the U.S. market for their products and services. Moreover, patents granted to the U.S. corporations are often used to protect products made in foreign nations. While I did not have solid data, my experience tells that many U.S. brands were made in foreign nations. So, I estimate that most patents are used by U.S. corporations to protect their products originated from foreign countries. Those patented inventions are actually for protecting foreign production art, foreign employees’ job skills, and tax revenues for foreign governments. My estimate is that only 25% to 50% of those patents granted to U.S. corporations would further U.S. interest in whole.

The data shows that the number of U.S. patents granted to foreign corporations has steadily and rapidly increased by replacing the number of patents for U.S. individual inventors. This is consistent with the foreign patent application number changes from 1963 to 2016.  U.S. trade deficit also greatly increased from 1976 to 2016, with the 2016 figure being $736.79 billion. Among nations that U.S. has trade deficit, I can roughly divide them into two classes: countries having cheap labor costs (e.g., China, Mexico, Vietnam, India, Malaysia etc.) and countries with strong technologies (e.g., Japan, Germany, and France etc.). Those countries with strong-technologies have a large share of U.S. patents in the U.S.  Even those cheap-labor countries such as China and India, technologies are still an important factor.  They must possess minimum technologies to sell their products and services in the U.S. While the data is not a conclusive proof of trade problems, the U.S. trade loss is clearly correlated to technological improvements in those nations. The number of patents granted to each of Japan, Germany and Korean is more than the total number granted to U.S individual inventors, and the total number of patents granted to foreign corporations is more than that granted to U.S. entities. I have to say that this is an extremely bad technological landscape for the U.S. It is a crisis for which little can be done to change. When a patent is granted to a foreign nation, it will control the U.S. market for the whole term.

The above analysis compels me to conclude that U.S. patent office role is repugnant to the constitutional mission. It is primarily responsible for creating this technological crisis. I attribute this crisis to the patent office’s longstanding policy: even-handed high patent quality standard, patent invalidation procedure, high prosecution fees and maintenance fees (while many newly added rules will make the patent system even worse with time). When the patent office applies its rules and procedures to all applicants and all parties in an evenhanded manner, it actually advances their interests. The even-handed “fairness” notion was originated from common law courts. When King of England and his bench decided cases, anything written for cases was law.  Because King owned the land, the King court’s precedent power was beyond questioning. After, the U.S. Constitution granted lawmaking power to the Congress, the U.S. Supreme Court grabbed the power for making law for judges. While a small number of judges in King’s court could manage case laws well, the high-density precedents created by thousands of judges in the U.S. have endless and confusing conflicts. Moreover, the courts, including the U.S. Supreme Court, made law without conducting basic research and without understanding how their holdings affect the nation. To protect the judicial power, courts have focused on what I call misplaced “horizontal fairness”.

According to this horizontal fairness standard, if a rule is set in Google v. Apple, the same rule must be applied to John Doe in Corp v. John Doe. People in favor of natural justice would think that fairness in a civil case must be weighed between the parties in the dispute. Strangely enough, true fairness, dictated by natural justice, is often or even always ignored. In patent cases, the most critical facts are how inventors used personal resources and spent years to overcome difficulties to make inventions, how their inventions benefit society, and how the government breaches the constitutional promise. Common law courts ignored the most critical fairness facts, but focus on the rulings in a bunch of other cases. Common law judges can justify gross injustice often by using technicalities and precedents. This kind of misplaced fairness has been acceptable for centuries in the U.S., despite extremely poor performance in criminal justice, family cases, and pro se cases. It did not hurt the U.S. in a big way until recently.

When the common law nations and civil code nations compete on international trade battles, the common law nations are often in a losing position. The fairness standard could not help American corporations fare well in civil-code nations. It caused damages to U.S. national interest in a way few people notice. The patent office uses all patent rules in an even-handed manner to all applicants. So, it treats corporate applicants and U.S. individual applicants in the same way: entering frivolous rejections, using one-way bias high patent quality standard, giving the same opportunity to demand inter-party review (by paying $23,000), and affording the same opportunity to defend a challenge to patents (which would consume hundreds of thousands of dollars of attorney fees). Nobody can question those rules.  However, this money-can-buy fairness practices have distorted technological landscape. Frivolous rejections can force individual inventors to abandon their applications, but do not affect giant foreign corporations; outrageous fees and maintenance fees can discourage individual inventors, but will not affect foreign corporations; and the right of harassment can be used by all corporations but not U.S. independent inventors.

The patent office policies result in successive replacement of U.S. inventors by foreign corporations for years. The patent office practices have damaged U.S. interest in many ways. The data shows a comparative loss of U.S. individual inventors. When the policy is more favorable to foreign corporations, it would help foreign corporations take more patents to control the U.S. market. U.S. corporations are unable to withstand technological competition. Besides, many U.S. corporations also promote foreign interests. Excessive fees and costs and maintenance fees discourage individual inventors, but do not discourage corporations from all over the world from applying to U.S. patents. When the patent office uses bias patent quality to enter repeated rejections, it cannot deter big corporations from trying, but force individual inventors to give up.  After the AIA enactment, more individual inventors will give up, and therefore more technological spaces will be taken by foreign corporations. When corporations initiate harassment invalidation actions against U.S. individual inventors, they would force U.S. individual inventors to abandon patents, thereby resulting in opening up of the U.S. market once protected by invalided patents. Since the U.S. corporations are unable to maintain trade balance, more of the technological space would be most probably taken by foreign corporations. Even if market shares are taken by both foreign corporations and U.S. corporations, the U.S. still suffer a loss because many U.S. corporations use the new market to further foreign interest. Also, a good number of U.S. independent inventors will abandon their patents after they are unable to license out their inventions or sell their patents. This will also give more free spaces to foreign corporations and increase their patent shares in the U.S. The patent office allows any corporations to challenge patents owned by U.S. inventors, it encourages all corporations from infringing U.S. patents. When a patent owned by foreign corporation and a patent owned by individual inventor collide in their protection scopes, it is certain the patent office will kill the patent owned by the U.S. individual inventor in an interference proceeding. If a business venture requires both foreign-owned patents and patents owned by U.S. individual inventors, the patent office will certainly kill those patents owned by individual inventors. When the common-law philosophy lacks natural fairness, the world figures out how to use it to harm the U.S. interest in every area of law and in every kind of business opportunities. In the technological field, it has reached to a point that no matter what is done, foreign patents share will continue increasing rapidly. This will result in a market protected for foreign corporations.  With each day passing, the technological landscape will become worse and worse for the U.S.

The data shows the patent office does more in helping foreign corporations to control the U.S. market than strengthening U.S. inventive entities. It does more to protect foreign manufacture basis, increase foreign worker skills, and increase tax revenue for foreign governments than do things to further U.S. interest. It does too little to help U.S. inventors in starting up domestic business. The Congress should review the patent office performance in both unwise policies and leadership. Future leaders must understand that when technological system is in such a state, it cannot be changed by using any even-handed measures. It needs to use measures that must be tailored to help the U.S. inventors. The leaders must understand that intentions are real technologies for solving real problems and inventions are things of inventive creation, but not widgets that anyone can make. Inventing and patenting should not be controlled by large sums of money. If the patent office leaders fail understand those basic principles, and manage inventions using methods for managing fungible articles, the U.S. will never be able to arrest the spiral process by which it loses its technological advantages. As long as it runs patent office as a money game, the patent office will always be a corporate extension for furthering illegal purposes such as achieving monopoly. When U.S. market has been locked by a huge number of foreign-own patents, it can do every little to change. The last thing the patent office should do is to eliminate the only a few patents of reminding independent inventors, and give the entire technological spaces to foreign entities and U.S. corporations aligned with foreign interests.

I could not find information to determine whether the patent office has alerted the Congress of the national technological crisis that should be obvious many years ago.  The data should have alerted Congress of the serious consequence of enacting the AIA.  With this crisis, the patent office is still busy with running trials to invalidate patents and writing opinions for denying patents. The Congress should establish its own thinking tanker to conduct complete investigation. Any attempt to further reduce patent number will only add insult to injury. The patent filing data for Japan, South Korean, and China suggests that the U.S. had a huge margin to expand its national invention capacity. The only way to reverse this technological crisis is to include the entire population in the would-be-inventor pool. If U.S. inventors create new grounds for new technologies and drive technologies in multiple new directions, foreign patents will lose controlling force in the U.S. technological market.  That is the only way for the U.S. to regain control over the future technology. The Congress must kill the two biggest enemies: patent quality extremism and money-can-buy privileges.

CLICK to CONTINUE READING… In the next article, I will show how the high patent quality standard has caused the U.S. to quickly lose technological advantages.

The Author

Jianqing Wu, Ph.D.

Jianqing Wu, Ph.D. (John Wu), Ph.D., is a registered patent attorney and an independent inventor having 8 U.S. patents in legal process, file storage security, open public computing systems, and online databases for the consumer market. His research interests touched sciences, engineering, law, and medicine. He earned B.S. in China, and received M.S. and Ph.D. (in Physical Chemistry) from North Carolina State University. He did postdoctoral research in Medicinal Chemistry in University of Illinois at Chicago and the National Institutes of Health. He learned methods and knowledge for characterizing whole complex systems. After he acquired J.D., he systematically studied the performance of the common law model and its adverse impacts on productivity. Being able to access multiple cultures, he conveniently used first-hand data in evaluating trade performance for different production cultures. Recently, he has developed a new interest in preventive medicine with his focuses on methods for preventing heart diseases, stroke and cancer. He was a member of four honorary societies: Phi Lambda Upsilon, Sigma Xi, Phi Tau Sigma, and Gamma Sigma Delta.

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Discuss this

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  1. Edward Heller August 7, 2017 4:41 pm

    Well thought out article.

    Couple points: the purpose of the United States patent system as authorized by the Constitution is to promote invention in the United States. To the extent that the laws or the procedures followed by the patent office do not promote invention in the United States, but rather retard such, those laws and those procedures are arguably unconstitutional.

    For years, the United States Congress and the PTO have been led down the yellow brick road by a cabal of leadership dedicated to harmonization. The point of this effort is to level the playing field – to strip American inventors of all rights and privileges they enjoyed as American inventors. The effort began in response to GATT trips. It culminated in the AIA.

    Moreover, as anyone can tell you, the patent office is biased against individual inventors because they will assert their patents against big business. The patent office does the bidding of big business through its advisory Council.

  2. Night Writer August 7, 2017 9:58 pm

    Very interesting. I wonder what it would look like if the patent applications were normalized for billions of 1995 dollars of the GDP that is generated by industries that file patents.

    I am pretty sure it would mean that the number of patent applications even for corporation has actually fallen.

  3. John Fetter August 8, 2017 5:39 am

    I am a private inventor. The system has already forced me to spend in the region of $50 thousand. I opted for Track One, encountered numerous frivolous objections, which took the application into a second round and it lost its Track One status. I was told by the examiner during one of the “rounds” that although my invention possessed a new property that I had identified, logic suggested the prior art would also possess this property, therefore my invention was not new. She provided no evidence and objected on that basis. That “round” alone cost me $5,500 in fees. Very frustrating. Very expensive.

  4. Benny August 8, 2017 5:42 am

    “Nobody can question those rules” – but that is what the article appears to be doing.
    “outrageous fees and maintenance fees can discourage individual inventors” – How much is the average cost of obtaining a patent for a micro-entity, and how much of that figure is actually paid to the USPTO ? (my guess is about 12% – so maybe that is not where the discouragement comes from).
    “U.S. corporations are unable to withstand technological competition” – there are many reasons for that, including lack of qualified engineers (partly due to high education costs), high salaries almost unheard of outside the US, labour costs, and market demand – it isn’t all down to patents.
    “a good number of U.S. independent inventors will abandon their patents after they are unable to license out their inventions or sell their patents” – most often due to a lack of interest, lack of commercial viability, or narrowness of claims.
    “successive replacement of U.S. inventors by foreign corporations for years” – driven by a local market demand for imported products, which the US is unable or unwilling to supply. Most of my colleagues in the US drive non-US cars filled with non-US technology. Does that suggest something?
    There is even a slight whiff of xenophobia in the article, but let me suggest something totally outrageous. Perhaps the US is not the world’s number one most inventive and innovative country. So what? (full disclosure – I work for a non US company which files US patent applications and sells products to the US market)

  5. Tesia Thomas August 8, 2017 7:37 am

    “Perhaps the US is not the world’s number one most inventive and innovative country. ”

    Yep.
    I can’t even deal with American cars. GMs are all rust. Ford and Chrysler are known for engine problems as far as their history in my family.

    American innovation is just not what it once was.

  6. Paul F. Morgan August 8, 2017 9:19 am

    Respectfully noting that the main purpose of the AIA [besides a number of minor patent law improvements] was to reduce patent litigation costs by no longer requiring spending millions going through discovery, an entire jury trial, and an appeal, on every possible issue, if patent litigation can be settled on the issue of examiner-missed patent and publication prior art by those being sued. Also, poor quality PTO application examination is not the fault of Congress, it is the result of PTO operations and low PTO prior art search fees and efforts. Especially, prior art search quality not even being a PTO tested quality criteria, and Supreme Court decisions on 101 misapplied by examiners.
    The main reason more U.S. inventors do not have more patents in foreign countries is that in most of them patents are far more expensive than in the U.S., especially for their maintenance fees, and most other countries have smaller markets.
    A very small percentage of patents by individual inventors becoming commercially successful for the inventors has ALWAYS been the case. Even in the days when the amount of prior art was a tiny fraction of what it is now.

  7. Paul F. Morgan August 8, 2017 9:41 am

    Re Tesia Thomas’ observations. Since the 1950’s [after much of the rest of the world had been destroyed by WWII] the number of scientists, engineers, modern economies and quality trained work forces outside the U.S. has greatly exceeded in total those in the U.S. itself. That and the complexity of modern technologies has far more to do with the current patent and economic situation than any lack of U.S. innovation.
    Your desire for things like more rust resistant metals and car engines are not likely to be provided by garage inventions.

  8. Tesia Thomas August 8, 2017 9:49 am

    @Paul F. Morgan
    Actually, I’m a chemist and I plan to have a garage lab one day.

    And, please view http://www.flashbainite.com/products.html

    Oh look! Garage chemistry for better metals!

  9. Benny August 8, 2017 9:49 am

    Perhaps the individual inventor is selling the wrong product. Instead of offering technology for sale, they should sell, to the big corporations, a tool for denying their competitors market access. That is something which will get across the boardroom more easily, and something a corporation can’t obtain by infringing the patent of a destitute lone inventor.

  10. Benny August 8, 2017 9:53 am

    Tesia at 8,
    Please, not in my neighbourhood. The constant fireworks will keep the kids up late, and the toxic spills will lower real estate value.

  11. Tesia Thomas August 8, 2017 9:53 am

    Flash Bainite has tried to sell its proven tech to auto companies.

    What’s the problem you say?

    The companies didn’t come up with it.

  12. Tesia Thomas August 8, 2017 9:57 am

    @Benny,

    HAHA
    A lab is but a climate controlled room with proper ventilation and hazard disposal.
    No fireworks, no spills.

    Has your car or a neighbor’s car ever leaked some fluids? Do you use fertilizer on your grass? Have you ever had sewage back up onto the lawn? Do kids play with firecrackers around July 4th?

    You could even live next door to someone like Walter White (Breaking Bad.)

  13. Tesia Thomas August 8, 2017 10:00 am

    Hazardous chemicals are EVERYWHERE in homes.
    If you buy house paint and leave it near a window and some sun gets on it then the whole thing could catch fire.

    The kitchen especially. A kitchen is basically a chem lab.

    Your oven could easily catch your entire house on fire…and your neighbors…and their neighbors, and so on…

  14. Benny August 8, 2017 10:08 am

    Tesia,
    I admit that my house contains, at any given moment, a significant quantity of what is probably the most corrosive substance in nature. As a chemist, you do2 know what that is?

  15. Tesia Thomas August 8, 2017 10:12 am

    Also, @Paul F. Morgan

    ALL BIG COMPANIES START SMALL.
    And, usually with just a handful of inventors, struggling.

    From Dow to Nike to Boeing to HP.

    ‘Garage’ inventors are just inventors without a ton of funding and/or high tech labs.

  16. Tesia Thomas August 8, 2017 10:22 am

    @Benny,

    Pesticides? Peroxide? Ammonia? Bleach? Chlorine? Lye?

    Dunno.

  17. Benny August 8, 2017 10:25 am

    Tesia,
    I left a giant bulging hint in the form of a typo in my post. Tell me, what causes corrosion ?

  18. Tesia Thomas August 8, 2017 10:32 am

    @Benny

    Lol oxygen.
    I thought we were talking about household products.
    But, ammonia and chlorine gases are more corrosive.

    It’s a good thing we’re not made of metal…

  19. Tesia Thomas August 8, 2017 10:35 am

    @Benny, 9…

    I understand what you’re saying but…
    Yuck.
    Companies need to get over themselves and ‘go gentle into that good night.’

  20. Anon August 8, 2017 11:42 am

    My guess at Benny’s joke is “oxygen.”

  21. Anon August 8, 2017 11:43 am

    Ooops – wish I had hit refresh so I could have avoided duplicating Tesia’s post at 18….

  22. Curious August 8, 2017 11:55 am

    Respectfully noting that the main purpose of the AIA [besides a number of minor patent law improvements] was to reduce patent litigation costs by no longer requiring spending millions going through discovery, an entire jury trial, and an appeal, on every possible issue, if patent litigation can be settled on the issue of examiner-missed patent and publication prior art by those being sued.
    You’ve described how the AIA was sold to Congress. In actuality, it is a giveaway to corporate infringers who can take advantage of (i) a lowered burden of proof (no presumption of validity); (ii) unlimited bites of the apple (both in terms of cited prior art and IPR institutions); (iii) a PTAB that is generally inclined to rule against patentability; (iv) a specialized and still very expensive process that favors sophisticated parties; and (v) a system that all but prevents the Patentee from correcting errors via amendments to the claims. Regardless, the little guys have little hope to win in this kind of regime. Even if the big guy loses the first time around, there is no stopping the number of IPRs that can be filed. Eventually, someone will cobble together a “Frankenstein” 103 rejection that the PTAB will buy into and that leads to an expensive trip to the Federal Circuit.

    Of course, once you get to the Federal Circuit, the standard of review for findings of fact is “substantial evidence,” which is extremely deferential. This means that if you’ve lost at the PTAB on a bad finding of fact, good luck trying to get it overturned at the Federal Circuit.

    Ultimately, if you are a small guy and have a patent that the big infringers want to practice because of its value, that patent will be IPR’d until you eventually lose. Unlike litigation, in which a Patentee can win and actually get something in return for their win — in an IPR, a win by the Patentee merely means that the patent holder is six figures lighter in the pocket and will probably be facing another IPR shortly. It is a NO WIN SITUATION.

  23. Edward Heller August 8, 2017 12:04 pm

    Curious, well said.

    What can be abused, will be abused.

    IPRs are good example of this maxim.

  24. Tesia Thomas August 8, 2017 12:05 pm

    Lol Anon. Good job.
    Though, oxygen is nowhere near the most corrosive substance in nature or households. But, hopefully it is indeed in the highest amount…or everyone living there soon won’t need it…

  25. Tesia Thomas August 8, 2017 12:06 pm

    Lol I commented on the wrong post.

  26. Tesia Thomas August 8, 2017 12:08 pm

    Oh wait. I didn’t. Lol…that refresh thing, Anon. It is a problem xD

  27. John Fetter August 8, 2017 7:12 pm

    A couple of hours of searching through USPTO public PAIR image file wrappers reveals something curious. US patent applications made by foreign applicants generally seem to slip relatively effortlessly through the examination process to grant, whereas US patent applications made by US applicants are surprisingly often being encumbered with two or three Final-Rejections and RCEs before grant.

    One can speculate at length about the reasons for this. Consider the following. Correspondence between the USPTO and applicants’ attorneys, including the full texts of examiners’ comments and applicants’ replies and patent claim amendments, is being posted online in real time plus a few day’s delay – for all the world to read. It would not take long for corporate leaders and decision makers to realize that this represents a mother-lode of reliable information about competitors’ research projects and planned commercial activities.

    Competition is likely to be most intense between similar US corporations. The information is of a kind that can have profound financial implications and, as such, can provide temptations likely to be irresistible – and thereby help to explain why US applicants are finding it significantly more difficult. All it takes to complete the circle are a few whispers to receptive ears. Dishwashers, engineers, shop keepers, teachers, bankers, farmers, scientists, corporate personnel and patent examiners – a percentage of all of humanity can be tempted.

  28. Edward Heller August 8, 2017 7:42 pm

    John@27, Examiners could believe that foreign companies never assert and for this reason a bad examination is not likely to cause harm. In contrast, I have heard the opposite is true when the entity is small. Examiners assume the patent will be asserted and provide tough examination.

    I have dabbled in paying the 4 grand for expedited examination. To say the least, such examinations have been “thorough” to the point of excruciating, with actions 50-60 pages long.

    What is the phrase: the peg that rises is hammered?

  29. Benny August 9, 2017 4:29 am

    John @27,
    sounds like a crackpot conspiracy theory to me. How about this? Foreign applicants often file first outside the US. The US examiner can look up the foreign application opinion, copy-paste it into their office action, and go home early.
    That one cuts both ways, though. File first in the US, then foreign, and the non-US examiner is going to cut-and-paste the USPTO’s rejection. I’ve had that one handed to me on a plate.

  30. John Fetter August 9, 2017 5:09 am

    Patents can range in value between a few tens of thousands of dollars and hundreds of millions of dollars. The likelihood of a whisper in a receptive ear concerning an application potentially worth many millions can therefore never be ruled out. There are people who are content to work from nine to five, and there are people for whom an opportunity to make more money speaks louder than than an opportunity to earn another pat on the back. It requires the least convoluted reasoning to help to explain why a surprising number of US patent applications made by US corporations keep hitting brick walls.

  31. Benny August 9, 2017 5:22 am

    John,
    If you are suggesting that government employees in the USPTO are acting beyond the bounds of the law, that is a serious allegation, and I would assume you have convincing evidence to back it up. If you haven’t, it is nothing more than the effects of an excess of sugar in your diet on your imagination.
    I don’t think the moderators of this site should tolerate unsupported attacks on public servants.

  32. John Fetter August 9, 2017 6:12 am

    The Inspector General of the United States Department of Commerce reported that for the 15-month period of August 10, 2014 through November 28, 2015, patent examiners submitted 288,479 hours that could not be supported or verified as being worked, which equated to $18.3 million in over payments. In the light of that official admission, I would suggest that convincing evidence has already been submitted demonstrating that there are people for whom an opportunity to make more money speaks louder than than an opportunity to earn another pat on the back.

  33. Benny August 9, 2017 7:02 am

    John,
    Poor work ethics at the USPTO can be amply demonstrated in the office actions and time stamps on the search reports, but accepting bribes is criminal behaviour, and you can’t just go slinging that kind of mud at public servants (though you can sling it at elected officials – at least that is the law where I live).
    Whichever way the truth lieth, you come across as a conspiracy theorist.

  34. Anon August 9, 2017 9:38 am

    Benny,

    I would rather not dismiss out of hand something that John Fetter professes to have found in objective data.

    Further, he provided an objective rebuttal to your counter point of “unsupported attack,” for which (likewise) you seek to merely dismiss out of hand.

    The improper billing is not mere “poor work ethic.” It is theft as it is a claiming and taking of money NOT earned. It is also directly in line with the type of additional “take money” related to John’s point.

    Further, as John is not impugning any particular public servant, there is not the need for the heightened level of “proof” that you demand.

    I find it loathsome that you would seek to quiet what amounts the raising of a red flag, first under the ad hominem of “conspiracy nut case” or “too much sugar,” and then as some unscrupulous attack on public servants.

  35. Benny August 9, 2017 10:07 am

    Anon,
    That line about the sugar was a joke (not something you appear to be overly familiar with).
    John is apparently accusing USPTO examiners of accepting bribes – though not in so many words. When you throw out an accusation as serious as that, I would expect to see it backed up with some form of evidence, whether it be investigative journalism or first hand from an examiner. You can’t just throw accusations about and expect everyone to believe you, and then , when truth outs, to cry “fake news”. (Well, you can if you are POTUS ). If John knows of an examiner who accepted a bribe, let him name and shame. If it is mere conjecture on his part, well, should I take him at his word? Would you?

  36. John Fetter August 9, 2017 10:10 am

    Benny – I have made no allegations. I have made suggestions in the hope of discussing and thereby discovering. The manner in which you have chosen to express yourself is saying to me that you very likely work for a US corporation that relies on patents, and that it is in this context that my comments are impinging on a raw nerve.

  37. Benny August 9, 2017 10:18 am

    John,
    It is all I can do to get budget approval for a new laptop, you think they would approve the budget for a bribe?
    Do you think we could risk the corporation on the chance of getting sniffed out by a John Fetter?
    Wouldn’t happen.
    I can see Phillip Morris trying that on for size, but they don’t have a reputation for integrity to lose.
    It looked like an accusation to me, but if you are downgrading it to a suggestion, then case closed.

  38. Name withheld to protect the innocent August 9, 2017 10:45 am

    If you are suggesting that government employees in the USPTO are acting beyond the bounds of the law, that is a serious allegation, and I would assume you have convincing evidence to back it up.
    LOL … just randomly browse a couple dozen PTAB ex parte decisions and then look up the case law cited by the PTAB. Off the top of my head, I can name at least a half-a-dozen (not counting the 101 decisions) Federal Circuit cases whose law the Board frequently misrepresents (hence, acting beyond the bounds of the law).

  39. John Fetter August 9, 2017 10:53 am

    Benny – Judging from your comments, you are an unhappy person, likely due to a missed opportunity or an injustice that is gnawing at you. I suspect you were at the receiving end. I simply want to find out why there is an imbalance between foreign and domestic patent applications.

  40. Benny August 9, 2017 11:07 am

    John,
    One – I’m happy. Missed nothing. Injustice at the USPTO is something we all suffer from.
    Two – haven’t noticed any difference between foreign and domestic filings.
    Three – haven’t noticed any consistency of quality of work from the same examiner when applied to filings from the same source.

  41. angry dude August 9, 2017 12:05 pm

    Benny @9

    Dude, please STFU

    I tried to do just that – a blocking patent on fundamental algo (think RSA or FFT-like, no less)
    In a normal world a corp would buy or exclusively license it and shut down all competition (other solutions exist but are much inferior)

    In this world they just gang up on me and infringe all they can with full tacit approval from scotus, potus, cafc, congress, districts courts, you name it

    thanks but no thanks

    to hell with such “patent system”

  42. Tesia Thomas August 9, 2017 12:13 pm

    @41, angry dude

    That’s what I face.
    As with ll fundamental changes, everyone wants to use it and everyone wants to make money on it.

  43. angry dude August 9, 2017 12:21 pm

    Tesia Thomas@42

    The difference between mechanical design and computer algorithm is that the former can’t be hidden while the latter can be hidden very well
    Even just obfuscating and compiling to binary exe would impose 7 figure expense on infringers trying to reverse engineer it
    would be cheaper to buy it … unless of course an idiot like myself puts all the underlying theory and working source code in patent application to be seen by the entire world
    To hell with such system

  44. Tesia Thomas August 9, 2017 12:29 pm

    @angry dude

    Well, yeah. Definitely.
    But, what I was saying is that your algo is a fundamental component in software. Likewise, my zipper is a fundamental component of hardwares.

    Everyone wants it. And, they all wish they had come up with it.
    Next best thing is to have no one own it which means taking it from the inventor.

  45. John Fetter August 9, 2017 1:21 pm

    Benny – I checked very carefully. Foreign corporations rarely encounter any problems. US corporations are usually given the runaround for years and years. There is definitely something going on.

    You asked, “If you are suggesting that government employees in the USPTO are acting beyond the bounds of the law, that is a serious allegation…..”

    You later commented, “Injustice at the USPTO is something we all suffer from…..”

    And you also suggested, “I don’t think the moderators of this site should tolerate unsupported attacks on public servants…..”

    You might have inadvertently let a beam of light through.

  46. angry dude August 9, 2017 1:26 pm

    Tesia Thomas @44

    Those things are usually implemented in either software (e.g. code to run on “general purpose computer” or maybe some specialized DSP) or hardware (FPGA or ASIC) based on practical considerations such as ease of modification, volume, cost of development, cost to manufacture etc etc
    Hardware algorithm implementation works much better for me – trying to reverse engineer a particular algo out of integrated ASIC chip is next to impossible (talking major major 8 figure expense)
    But alas, too late – its already published and stolen zillion times

  47. Benny August 9, 2017 1:51 pm

    John @ 45, I am a foreign applicant (couldn’t you guess from my accent ?) and I get the runaround at the patent office.

  48. John Fetter August 9, 2017 6:54 pm

    Benny – You and I were posting comments on August 9 during normal working hours GMT, corresponding to rather inconvenient hours with respect to the US. The manner in which you expressed yourself came across as “I am right, you are wrong, now let’s discuss, in the style of Jeremy Clarkson”. So how could I not have worked that one out?

  49. John Fetter August 9, 2017 7:50 pm

    I suspect that an application perceived as threatening by vested interests is treated differently to an application perceived as non-threatening, and that therein may lie the answer to the foreign-domestic imbalance.

  50. Poesito August 10, 2017 12:03 am

    @John Fetter: It could be that examiners are just milking the system in other ways than those already mentioned on this site. They know that applicants with deep pockets are able to tolerate more hoops and runarounds.

  51. Marcus August 10, 2017 12:27 am

    I think John may be on to something. So let’s work through his premise.

    Corporation K (“K”) is a Korean corporation. K files an application in the US for a patent to memory. So far so good.
    Now, according to John, Corporation A (“A”) is an American domestic corporation and files a similar patent.

    So we now have K and A applications in the system. The following must occur for John’s premise about K bribing examiners to be true:

    -K’s application must be docketed to a primary examiner (a junior examiner would require work to be signed off on meaning that K would have to bribe TWO examiners, and two mouths are more difficult to keep quiet than one. It can be done, but that’s twice the expense).
    -K’s application must not go to RCE
    -K’s application must not get pulled for quality review (remember, the premise is that K’s application shouldn’t have been allowed immediately)

    A’s application must have multiple RCEs based on poor references
    A’s application must be docketed to a primary whose SPE does not take attorney phone calls (one would presume that A’s attorney would call if there were multiple dubious rejections being made final)
    A’s application is deserving of a patent immediately (ie. there are no 102/103s out there)
    A simply refuses to appeal the rejection

    Ok, so the stars are aligned, all of this occurs. What next?

    Well, the foreign Corporation K would need to assess whether it’s easier to bribe the Examiner, open itself up to criminal prosecution and lose this “hundreds of millions of dollar patent”, or whether it’s easier to pay the couple grand to file an appeal/RCE.

    The examiner must assess whether the amount of money that K will pay them – less than the amount of money filing an appeal would cost – is worth it. (It’s not, especially considering that the Examiner working OT would make that amount in short order).

    On the flip side, if Corporation K wants to bribe the Examiner who is examining Corporation A’s application because K happened to run across a “threatening technology”. Corporation K would have to find out the examiner who is examining A’s case (fairly easy to do).

    Make contact with the examiner (an outside party contacting an examiner about another applicant’s case usually gets a raised eyebrow). If A has filed multiple similar applications (companies always do), then this will have to be done for each examiner (see above)

    Offer the examiner an acceptable bribe.

    But, and this is the important part that John’s entire premise of foreign corporations bribing Examiners to block domestic corporation’s patents misses – the bribe gets the foreign corporation NOTHING because the domestic corporation will simply 1) file an RCE (yeah, it costs money, but remember, this is a “hundred million dollar patent”, I think the corp would spring the 2400$), 2) complain to the SPE/Director (unless these are also on the foreign corporation’s payroll. Hey, it IS a “hundred million dollar patent”)., or 3) simply appeal (yeah, it costs money, but remember, this is a “hundred million dollar patent”….UNLESS the three judges at the PTAB are ALSO on the foreign corporation’s payroll as well as the SPE and the TQAS, for EACH of the similar patents A has filed….Hey, it IS a “hundred million dollar patent”).

    The only way John’s premise is even close to being true is if the patents land where they need to be, the foreign corporation has multiple people on their payroll at multiple levels of power within the USPTO (junior examiners to PTAB judges) who are ALL conveniently positioned to block a domestic corporation’s application and who all would accept a bribe to further a goal that is entirely contingent upon every.single.one of them acting in exactly the same way. If one of them falters or asks for more, the foreign corporation will have just wasted money because A’s presumed valid patent would get allowed. 

    It’d be easier and cheaper to simply legally lobby members of the political establishment into passing a law that does basically the same thing and make the USPTO follow it.

    Oh…wait…

    Also a “couple hours” looking through Public Pair file wrappers is dispositive of precisely zero when the dataset includes multiple millions of applications and patents. You’d have to control for far more than “your gut feeling”

  52. John Fetter August 10, 2017 3:02 am

    Government employees constitute a problem the world over. Their working habits were expertly described by British author Cyril Northcote Parkinson in his 1950s best-seller “Parkinson’s Law”. Work expands so as to fill the time available for its completion. Politicians and taxpayers have assumed that a rising total in the number of public servants must reflect a growing volume of work to be done.

    Cynics, in questioning this belief, have imagined that the multiplication of officials must have left some of them idle or all of them able to work for shorter hours. But this is definitely not so. The fact is that the number of the officials and the quantity of the work are not related to each other at all. The rise in the total of those employed would be much the same whether the volume of the work were to increase or decrease.

    Most foreign patent applications are translated into English, therefore it would not be surprising for their claims to be rendered less effective through the translation process. Yet less effectively worded claims appear to be encountering significantly fewer objections during examination than more effectively worded claims. It is almost as if these patents are being perceived as easy to invalidate, hence are innocuous and therefore good to go.

    This kind of background would seem to suggest that US corporations competing in strongly contested lines of business appear somehow to have found a way of gainfully harnessing the idle energies of public servants and are thereby seemingly able to cut each others’ patents to pieces prior to being issued.

  53. angry dude August 10, 2017 9:24 am

    John Fetter@51

    I am one of those critters sucking up on taxpayers tits – after that very same government I work for now ruined patent system and consequently my tech startup BEFORE I could even start
    Eat it now, US taxpayer lemmings
    more government, less work, less inventions and ultimately an economic decline (don’t be fooled by current Dow Jones index – patent cycles are very long)

    But… because patent trolls – hapless public cheers

    what a travesty

  54. John Wu August 10, 2017 11:11 am

    “Money-can-buy privileges” does not mean bribe: it concerns special treatments that can be bought by paying fees: priority examinations, IPR (23,000), and repeated rejections. If the PTO rejects an application five times, the typical inventor would have to spend a great of sums of money and attorney fees for getting a patent. Privileges mean things on book, should be interpreted as bribes.

  55. Anon August 10, 2017 11:37 am

    angry dude at 52,

    Your comment reminds me of the adage “bread and circuses”

  56. John Fetter August 10, 2017 7:58 pm

    My comment of August 10, 2017 3:02 am was number 51. It was made in response to “Poesito” August 10, 2017 12:03 am. There was a reply to my comment by “angry dude” on August 10, 2017 9:24 am, who referred my comment as John Fetter@51. Then, a number of hours later, my comment was pushed down to number 52 and replaced by a comment by “Marcus” with date and time August 10, 2017 12:27 am, and identified as number 51. “Marcus” conjured up imaginary people engaging in clumsy and irregular activities. Reversal of the order of two postings is likely to create the misleading impression that my comment was made in response to the comment made by “Marcus”.

  57. angry dude August 10, 2017 8:34 pm

    John Fetter

    Yes, your comment was number 51 and I replied to it.
    I am so sick and tired of watching government at work every f^%&*# day
    A few years ago they had a furlough due to budget crisis
    guess what ?
    no one outside even noticed that 2/3 of government workers were out…
    yes, it is this bad in most government agencies like DoT, FAA etc etc etc
    The swamp is deeper than ever

  58. John Fetter August 10, 2017 8:53 pm

    “There is no more neutrality in the world. You either have to be part of the solution, or you’re going to be part of the problem.” – Eldridge Cleaver.

  59. John Fetter August 11, 2017 4:57 am

    Angry dude @ 57, it is saddening to read about your difficulties. I was running a litmus test. I apologize. I expected my suggestions to be challenged, but not quite in this way. It would seem that there are many more irons in the fire than what a casual, though reasonably informed observer might have expected.

  60. Anon August 11, 2017 8:03 am

    John at 56,

    The number of a comment may in fact “float.” This is an artifact of the blogging software, and while it does make for some “broken links” in comments that seek to respond to specific earlier comments, I think most readers can discern the intended chain.

    As a meme that I have seen states:

    There are two types of people in the world, those that can intelligibly infer results.

  61. Anon August 11, 2017 8:15 am

    As to Marcus, his comment strikes me as an attempt (a little more developed***) much like the attempt by Benny to “pshaw” even the notion that something untoward may be happening.

    I do not know if something untoward is happening. But it IS something to consider if the data you present (and recognizing that the data you present may not be sustained with a deeper investigation) DOES show a disparity that should not exist.

    ***a little more developed does not mean that his logic is sound. For example, it is not necessary to bribe multiple examiners, or even the lower on the food chain small fry examiner. “Sh_t flows downhill” as they say, and a higher-up can enforce a view that will NOT be reflected on any individual application written record (no need for smoking gun memos). His “stars aligned” comments do not support his assertion either, as those need not be present, as he supposes. Making contact does NOT raise enough eyebrows (witness the unprecedented – and undocumented number of high level Google visits to the patent office).

    In the end, Marcus comes around with all of his “made convoluted” view of bribery as merely a decoy to what he advances as an easier way to capture the system.

    What Marcus forgets is that Big Corp can (and does) employ multiple avenues of attack. It is not a one-or-the-other-only-the-easiest-is-taken scenario.

  62. angry dude August 11, 2017 9:37 am

    Anon @61

    Those undocumented visits by corp CEOs to PTO started long time ago
    as far as I remember Research in Motion’s co-CEO was there when their (foreign) corporation was sued for infringement by domestic NPE
    As far as the law is concerned I believe such undocumented and not fully recorded visits should be criminalized and those people on both sides should go to jail for that
    this is not just s swamp – it is mafia eating this country inside out

  63. John Fetter August 11, 2017 10:23 am

    Anon @ 61 – I searched through the public pair image file wrappers in a specific area of technology that I understand well and that I know for certain is being hotly contested internationally. I realized I was definitely onto something after I had read about 20 file wrappers. I continued and stopped at 50. I continued searching elsewhere.

    I searched for information about the examiners. I looked at their work records and at the rate at which they were processing applications. I looked at their salaries and I looked for their home addresses, and I was able to find a few of their homes on Google Earth. Some seemed to live rather well. I saw some excellent homes. But I saw nothing that looked seriously suspicious.

    People will accept information that endorses their long held beliefs and will reject information that poses a threat to the stability of their comfort zones. The truth will always be subordinate in their evaluation process. I have long become used to being told what is wrong with my ideas. My attitude? Take it or leave it.

  64. Anon August 11, 2017 1:58 pm

    Thanks John,

    For what it is worth, I find your efforts of interest and of note. While you may not have the level of detail for a “solid” statistical case, much less an indictment, such is simply not required to achieve what I saw as your intent: a waiving of a flag that indicates that a more detailed investigation would be worthy of undertaking.

    It is the fact that even your “minimal” (even for argument’s sake, let’s label it as such) is drawing the derision and attempts to hush you as they did, that I find disturbing.

    Fold into that THAT such are coming (at least in Benny’s case) from someone routinely deeply in sync with the sentiments of Efficient Infringers (the very people who WOULD want to hush you up), and my interest, rather than being quieted is increased.

    I think your views have a solid start for some academic to pursue (if academics were interested in such things).

    angry dude,

    I agree with your sentiments.

  65. Marcus August 12, 2017 1:02 am

    @61 Anon

    None of what you said is out of sync with my concluding remark about lobbying Congress and potential dark policy at the USPTO. That is very different than Fetter’s laughable assertion that USPTO staff are on the take. It’s simply far easier and effective to do what has already been done – lobbying for legislation and installing a preferred director.

    Your verbose broadcasting of your opinion of yourself is noted as well.

  66. John Fetter August 12, 2017 5:21 am

    A percentage of all of humanity can be tempted. It stands to reason that in a government organization numbering, for example, ten thousand, there will always be a few who are tempted. Inevitably, over time, a percentage of the tempted will be detected. If very few or none are detected over an extended period of time – while pleasing responsibility-evading career politicians – to people who understand people, it emphasizes the existence of a serious problem.

    Are US patent applications made by foreign applicants being allowed to slip through the examination process to grant and US patent applications made by US applicants being encumbered with two or three Final-Rejections and RCEs before grant? Naysayers have had more than three days since my post, to find out for themselves if there is something going on. None have come back with information from public PAIR file wrappers to suggest that I have been spouting a load of nonsense.

  67. Anon August 12, 2017 9:25 am

    Marcus @ 65,

    What you accuse me of is reflected in your own words (about yourself).

    First, I DO make note that your twist is different – and I further make note of how you treat John’s work as a platform to get to your different twist.

    That you do not like what I have to say, and thus resort to baseless ad hominem in reply is what you should note. I note as well that you actually address none of the counter points I present.

    Chew on this: What Marcus forgets is that Big Corp can (and does) employ multiple avenues of attack. It is not a one-or-the-other-only-the-easiest-is-taken scenario.

    Maybe start there instead of the attack on what opinion of myself that you THINK that you know.

  68. Marcus August 12, 2017 11:14 am

    Anon @67 – worry less about what you think I know, and more about what you don’t. Yes, you may, immaturely, flip that around in a “I know you are but what am I?” 4th grade fashion, but the actual fact of the matter is that Fetter did not make the same point you did – that foreign/big corps employee multiple avenues.

    I called him on his singular implication – the USPTO takes bribes to stifle American inventors. Further, he explicitly mentioned “American Corporations” which kinda cuts against your allegation that I “mischaracterized” his argument.

    Sorry, no dice. I emphasize, once again, that you and I are literally saying the same thing, but I question why it is that you have to do so by puffing your chest out and beating it in some ape like attempt to assert dominance in a comment section.

    Grow up

  69. John Fetter August 12, 2017 12:33 pm

    I suggested that there are people who are content to work from nine to five, and suggested that there are people for whom an opportunity to make more money speaks louder than than an opportunity to earn another pat on the back. I suggested that US corporations competing in strongly contested lines of business appear somehow to have found a way of gainfully harnessing the idle energies of public servants and are thereby seemingly able to cut each others’ patents to pieces prior to being issued. I did not say that individuals are taking bribes.

  70. Anon August 12, 2017 12:52 pm

    Marcus at 68.

    It is not I playing the childish “I know you are but what am I” games.

    You are the one taking unsupported ad hominem shots while leaving the direct points unremarked upon.

    Worry less? I am not worried at all. And certainly, I am not “puffing your chest out and beating it.” – your “feelings” quite aside.

    Grow up you say – as you are the one desperately needing to follow that advice.

    “The lady doth protest too much, methinks.”

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