Published on July 14, 2024 9:12 PM GMT
The current patent process has some problems. Here are some of them.
patenting is slow
The US Patent Office tracks pendency of patents. Currently, on average, there's 20 months from filing to the first response, and over 25 months before issuance.
That's a long time. Here's a paper on this issue. It notes:
The USPTO is aware that delays create significant costs to innovators seeking protection. The result? A limiting of the number of hours an examiner spends per patent in order to expedite the process.As such, the average patent gets about nineteen hours before an examiner in total, between researching prior art, drafting rejections and responses, and interfacing with prosecuting attorneys. Plainly, this allotment is insufficient.
A patent application backlog means it takes longer before work is published and other people can potentially build on it. It also means a longer period of companies having uncertainty about whether a new product would be patented.
examiners are inconsistent
Statistical analysis indicates that whether or not your patent is approved depends greatly on which examiner you get. This article notes:
Approximately 35% of patent Examiners allow 60% of all U.S. patents; and approximately 20% of Examiners allow only 5% of all U.S. patents.
Perhaps applicants and examiners should both be allowed to get a second opinion from another examiner on certain claims. But of course, this would require more examiner time in total. This situation might also indicate some problems with the incentive structure examiners have.
patents take effort
A lot of smart people who work on developing new technology spend an enormous amount of effort dealing with the patent system that could be spent on research instead. Even if the monetary costs are small in comparison to the total economy, they're applied in perhaps the worst possible places.
There are many arcane rules about the format of documents for the patent office. Even professional patent lawyers get things wrong about the formatting and wording, and that's their main job. LLMs do quite poorly with that, too. Even I've made mistakes on a patent application.
The US patent office does do most things electronically now. Its website is at least technically functional. Considering that it's a US government agency, I suppose it deserves some praise for that. However, I'd argue that if correctly submitting documents is a major problem and even professionals sometimes get it wrong, that's a sign that the format is badly designed and/or the software used is inadequate. For example, their website could theoretically remind people when required forms in a submission are missing.
Currently, the US patent office is trying to migrate from pdf to docx files. Maybe that's an improvement over using Adobe Acrobat to fill pdf forms, but personally, I think it should accept:
- markdown filesgit pull requests for amendmentspng diagrams that use solid colors instead of monochrome shading
I used to say Powerpoint was bad and maybe companies should ban it, and business-type people explained why that was really dumb, and then Amazon did that and it ultimately worked well for them. The problem Amazon had to solve was that most managers just wouldn't read and understand documents and long emails, so when banning Powerpoint, they had to make everyone silently read memos at the start of meetings, and they lost a lot of managers who couldn't understand things they read. At least the US patent office people have the ability to read long documents, I guess.
international patents are hard
If you get a patent in the US or EU, that's not valid in other countries. Rather, the PCT gives you up to 30 months from your initial application to apply for patents in other countries, and most countries require their own application. Even within the EU, a "unitary patent" still isn't valid in every EU country.
If you read the earlier sections, you might notice that 30 months is not much longer than the average pendancy before approval in the US. For many US patents, the application process in many other countries would have to start before the applicant knows if the patent gets approved in the US or not.
Sure, sovereign countries shouldn't have to automatically respect every patent that one country was willing to approve, but the current process is a lot of effort. The amount of purely bureaucratic work generated probably costs tens of billions of dollars a year. Maybe some treaty could be negotiated such that any patent approved by any 3 of (the USA, the EU, Canada, Australia, China, Japan, South Korea) and not applied for and rejected by any of those countries would automatically be respected by other countries, but it wouldn't be easy.
courts
lawsuits are expensive
What a patent does is give you the right to sue people for infringing it. Doing that requires lawyers, and lawyers are expensive.
lawsuits are slow
Conflicts over patents get resolved with lawsuits, and those lawsuits take a long time to resolve. Much of the time it takes for lawsuits to finish comes from courts having a backlog of cases.
This problem doesn't just apply to patents, of course, but patent cases always go to federal judges, and the US has a lot more state judges than federal ones. The US no longer has enough federal judges for its population. The average federal criminal trial now takes over 2 years to resolve. That's bad.
judges are appointed by politicians
If you want to get good judges, you have to elect good politicians.
Voting is individually irrational, but I'm smarter and better-informed than average, so I sometimes vote as a sort of public service, or maybe just an attempt to understand and participate in society. Whenever I've voted in an election, whether a primary or general election, I've briefly looked into the main candidates online, for every race I voted in, before voting. I've spent a lot of time searching the internet, and I've gotten rather good at it.
And...in significant elections with 2 main candidates, overall, the candidate I voted for has won less than 50% of the time. You might suspect that this is because I have some sort of uncommon ideology, but there's been a wide variety of reasons for that difference in voting between me and the median voter. Most of the time it wasn't because of a value difference, but because of something that most voters didn't know about or understand. From my perspective, I suppose this makes current US elections somewhat worse than a random number generator.
I think people are generally able to accomplish things they try to do better than random chance, or at least equally well. The only explanation I've found is that media has negative information value about politics. I said "significant elections" above - in elections for something "nobody cares about" like a treasurer or surveyor position, the candidate I voted for has been much more likely to win. The difference seems to be the amount of media coverage.
most judges don't understand technology
Patent cases tend to be very technical. Federal judges are specialized in law, not the particular area of science/engineering that a patent case involves. Yes, some judges make a good effort towards learning about whatever their current case involves, but mostly, judges just trust whatever paid expert witnesses say, and those expert witnesses will sometimes just lie. I think having some amount of scientific judicial specialization would make sense.
Again, this obviously isn't only a problem for patent cases, but patent cases are more technical than most court cases.
conclusion
Sometimes I see people talk about "progress studies", saying that even a small increase in overall technological progress is hugely valuable, so society should try harder to make that happen. Usually their recommendation is that the world should do whatever that person wanted to do anyway. What I don't see them do is talk to the people who actually research or implement new technology and listen to what they say their problems are. If they did, they'd hear that the current patent system is a big problem, and not just in simplistic ways like "patent terms are too long" or "patent terms are too short".
Since I have a whole pile of technology I designed (with my blog posts largely being an occasional byproduct of that) a few people have asked me why I haven't patented lots of things. The main answer is, it's usually just not worth it. I also like designing technology more than I like dealing with the patent office.
The US patent office should have more examiners. Its backlog is large and its examiners should spend more time on patents. Doubling the number of US patent examiners might cost an extra $1 billion a year, but that would probably be worth it.
The US should have more federal judges. Politically, that's difficult to accomplish, but it's still true.
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