Why The Government Should Focus on Fixing The Patent Process Instead of Expediting It
Earlier this month Entrepreneur.com did an article called, “The Future Is…Later – A backlog of applications at the U.S. Patent Office has innovation in a stranglehold.” In it, David Port discussed the backlog and length of time it takes for a patent to go through the USPTO. Here are some of the numbers David threw out:
- On average, it takes more than 25 months to get first action on a patent application and 32 months to get one approved.
- The number of applications filed with the USPTO totaled almost 497,000 in fiscal 2008, up 31% from fiscal 2004
- During that five-year span, the total number of applications pending at the agency has increased 60 percent, from around 756,000 to more than 1.2 million
- It all adds up to increased application pendency: from 27.6 months in 2004 to 32.2 months in 2008
Please note that this is the average. The patent for one of my software applications took over seven years to go through.
The government and Secretary of Commerce Gary Locke would like to reduce the average period for first action to be 10 months with the goal of helping small businesses in America grow. While I applaud the goal, I’m not a fan of the plan.
I know I’m not alone when I say the patent process is broken and it needs to be fixed before it’s expedited if we really want to see any benefit to business. Speaking for software patents alone, too many patents for non-unique or far too general ideas/processes are granted by the USPTO. In addition, patent trolls and the Eastern District of Texas take a harder toll on startups then the patent process. Many small businesses end up impeaded at best or out of business at worse due to this. For more on that I suggest reading Jason Mendelson’s 2007 “Patent Rant” post (oldy but goody) and Fred Wilson’s “How Patent Trolls Are A Tax On Innovation” post from earlier this year.
In the patent I mentioned above, I was not a fan at all of applying for it. Originally, my employer knew the product was a hit and wanted to get a patent for it because they felt everyone else was getting patents and we could license it out for additional revenue. Myself and the company lawyer tried to explain that at best, it would serve as a defensive mechanism to fight off patent trolls and others being that we were a bank and viewed to have deep pockets. (BTW- Anyone licensing software or a patent from a bank truly needs help.)
I am a huge fan of the “Use it or lose it.” method proposed for patents which makes it similar to trademarks and easier to draw a line. While I don’t think it will solve all problems, it will definitely cut down on abuse by patent trolls and others that have no intentions of ever using the patent they own to build a business, hire employees, make a difference in the market, or anything other then sue others for a cut of profits.
I also believe employing more “obvious or open” standards would drastically decrease the amount of patents in the process. Those that try to patent “clicking a button that then takes an action and can be used on any and all media” and other BS applications on actions that are already in the market or are considered obvious actions should not only be immediately declined but they should be fined the amount of money it took the USPTO to process them.
While I don’t have all of the answers and I know that there will be debate, expediting the current patent process will not only NOT help small business in the US but it will result in more BS patents being approved and abused as the USPTO tries to meet the new timelines instead of improving the quality. That will end up hurting the country’s entrepreneurs more then ever.
(Photo of “Fix It!” Guy from Saturday Night Live)
