Gemini version available ♊︎

The Economist Says What Patent Lawyers and Other Maximalists Prefer Not to Hear About the Patent System

Posted in Patents at 5:47 am by Dr. Roy Schestowitz

The EconomistSummary: Responses to a new batch of complaints from The Economist over what’s increasingly perceived as patents excess (due to maximalists who would have us believe that the more, the merrier)


oo much of a good thing” is a famous term we have recurringly seen mentioned in relation to the USPTO, where patent quality has gone downhill and patent numbers skyrocketed, just like in China.

“Too much of a good thing” is the headline of this recent article from The Economist (very influential publication), which angered many patent lawyers when it said the truth about patents some time ago (less than a year). “The Economist is at it again,” IP Kat wrote some days ago, “when it comes to patents” (it’s sort of a rant, as words like “at it again” serve to insinuate).

“The Economist is at it again,” the author starts with (not just in the headline). “This time the issue is not innovation but the decline in market competiveness and the increase in industry concentration, both as embodied in the stickiness of oversized corporate profits. Companies are making too much money and displaying too little competitive instincts, preferring to consolidate their positions, to the detriment of the economy writ-large.”

When excessive, abundant, wide thickets of patents are everywhere, who benefits? It is interesting to see patent scope (or examination lenience) coming under attack from the Establishment media too, more than once even. What we found more interesting than the response from IP Kat are the comments in response to IP Kat, namely:

The Economist attack on patents mentions a number of legitimate problems with the patent system, including reducing the number of unenforced or weak patents. However, some of the proposed solutions, e.g. reducing patent terms and expanding the options for challenging patents without a full blown court case, seem to be unrealistic.

Reducing patent terms is virtually impossible since nearly every country in the world is a party to the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement, which mandates a 20 year patent term. Amending TRIPS would be far more difficult than amending the US Constitution. Forget it. An alternative solution would be to tinker with maintenance fees payable by patent holders. Before the European Patent Office, maintenance (renewal) fees are payable every year, start the third year after filing an application and reach €2000 by around year 10. If the US adopted a similar system, rather than only charging fees after grant of a patent and making them payable every 4 years, it could have a helpful effect.

As for out-of court options for challenging patents, these may already go too far. Witness the recent activity of Kyle Bass, a well known hedge fund manager, in using Inter Partes Reviews (IPR) before the USPTO to challenge key pharmaceutical patents in order to take advantage of the effects of the challenges on the stock prices of the companies holding the patents. Another way to reduce the number of weak patents would be to raise the quality of examination by making a job as a US Patent Examiner more attractive. This could be achieved by increasing the compensation of Examiners, particularly senior Examiners. The compensation of US Examiners is significantly less than their counterparts at the European Patent Office (EPO). In fact, partners at European law firms have been known to leave their jobs to become Examiners at the EPO. This would be unheard of in the US.

Regrettably, any changes to maintenance fees or significantly impacting the compensation of Examiners would require the most unproductive Congress in history to stir itself from lethargy, which could be an unrealistic proposition.

The part which says “partners at European law firms have been known to leave their jobs to become Examiners at the EPO” (we know about exodus in the opposite direction) triggered this comment: “I have not heard of this at all in recent times.” Neither have we. People don’t want to work for the EPO, which has a serious brain drain problem, as we covered here before.

Here is another (newer) comment that says:

I haven’t read “The Economist” recently, but in points I and II it is absolutely correct, certainly in the fields in which I work. The gaming of the system by big companies is especially egregious. Thankfully the EPO has realised to some extent what’s going on and the Examiners involved (I’ve spoken with some of them) do their limited best to restrict some of the more outrageous cons. However, they are always playing catch-up.

On the far side of the Atlantic, where it sometimes seems that the USPTO selects examiners on the basis of a rather unique blend of incompetence, laziness, stupidity, sheer bloody-mindedness and downright dishonesty, things are often much worse, and these obstructive patents, filed purely for that purpose, block off whole areas of legitimate research and actually impede progress.

The patent system may not be broken, but it is certainly badly distorted and rigged against the little guy.

The part worth emphasising says that “it sometimes seems that the USPTO selects examiners on the basis of a rather unique blend of incompetence, laziness, stupidity, sheer bloody-mindedness and downright dishonesty, things are often much worse, and these obstructive patents, filed purely for that purpose, block off whole areas of legitimate research and actually impede progress.”

Amen to that. “Adding software patents as yet a further mechanism for concentration on top of that makes for a landscape that looks even more worrying,” says a later comment.

Thankfully it’s widely recognised, even in IP Kat circles, that software patents contribute little to competition, economics, innovation and so on. They oughtn’t exist at all.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New

  1. Links 3/12/2021: GNU Poke 1.4 and KDDockWidgets 1.5.0

    Links for the day

  2. IRC Proceedings: Thursday, December 02, 2021

    IRC logs for Thursday, December 02, 2021

  3. Links 3/12/2021: Nitrux 1.7.1 and Xen 4.16 Released

    Links for the day

  4. Links 2/12/2021: OpenSUSE Leap 15.4 Alpha, Qt Creator 6

    Links for the day

  5. The EPO's “Gender Awareness Report”

    There’s a new document with remarks by the EPO’s staff representatives and it concerns opportunities for women at the EPO — a longstanding issue

  6. IRC Proceedings: Wednesday, December 01, 2021

    IRC logs for Wednesday, December 01, 2021

  7. EPO Staff Committee Compares the Tactics of António Campinos to Benoît Battistelli's

    The Central Staff Committee (CSC) of the EPO talks about EPO President António Campinos, arguing that “he seems to subscribe to the Manichean view, introduced by Mr Battistelli…”

  8. Prof. Thomas Jaeger in GRUR: Unified Patent Court (UPC) “Incompatible With EU Law“

    The truth remains unquestionable and the law remains unchanged; Team UPC is living in another universe, unable to accept that what it is scheming will inevitably face high-level legal challenges (shall that become necessary) and it will lose because the facts are all still the same

  9. Links 1/12/2021: LibrePlanet CFS Extended to December 15th and DB Comparer for PostgreSQL Reaches 5.0

    Links for the day

  10. EPO Cannot and Will Not Self-Regulate

    The term financialisation helps describe some of the activities of the EPO in recent years; see Wikipedia on financialisation below

  11. [Meme] Germany's Licence to Break the Law

    Remember that the young Campinos asked dad for his immunity after he had gotten drunk and crashed the car; maybe the EPO should stop giving diplomatic immunity to people, seeing what criminals (e.g. Benoît Battistelli) this attracts; the German government is destroying its image (and the EU’s) by fostering such corruption, wrongly believing that it’s worth it because of Eurozone domination for patents/litigation

  12. EPO Dislikes Science and Scientists

    The EPO's management has become like a corrupt political party with blind faith in money and monopolies (or monopoly money); it has lost sight of its original goals and at this moment it serves to exacerbate an awful pandemic, as the video above explains

  13. Links 1/12/2021: LibreOffice 7.3 Beta, Krita 5.0, Julia 1.7

    Links for the day

  14. Links 1/12/2021: NixOS 21.11 Released

    Links for the day

  15. IRC Proceedings: Tuesday, November 30, 2021

    IRC logs for Tuesday, November 30, 2021

  16. Links 1/12/2021: Tux Paint 0.9.27 and WordPress 5.9 Beta

    Links for the day

  17. [Meme] EPO Administrative Council Believing EPO-Bribed 'Media' (IAM Still Shilling and Lying for Cash)

    IAM continues to do what brings money from EPO management and Team UPC, never mind if it is being disputed by the patent examiners themselves

  18. The EPO's Mythical “Gap” Has Been Found and It's Bonuses for People Who Use Pure Fiction to Steal From Patent Examiners

    The phony president who has the audacity to claim there's a budget gap is issuing millions of euros for his enablers to enjoy; weeks ahead of the next meeting of national delegates the Central Staff Committee (CSC) tells them: "Events show that the delegations’ concerns about functional allowances have materialised. The lack of transparency and inflation of the budget envelope gives rise to the suspicion that high management is pursuing a policy of self-service at the expense of EPO staff, which is difficult to reconcile with the Office’s claimed cost-saving policy, and to the detriment of the whole Organisation."

  19. Video: Making the Internet a Better Place for People, Not Megacorporations

    Following that earlier list of suggested improvements for a freedom-respecting Internet, here's a video and outline

  20. Links 30/11/2021: KDE Plasma 5.23.4, 4MLinux 38.0, Long GitHub Downtime, and Microsoft's CEO Selling Away Shares

    Links for the day

  21. A Concise Manifesto For Freedom-Respecting Internet

    An informal list of considerations to make when reshaping the Internet to better serve people, not a few corporations that are mostly military contractors subsidised by the American taxpayers

  22. Freenode.net Becomes a 'Reddit Clone' and Freenode IRC is Back to Old Configurations After Flushing Down Decades' Worth of User/Channel Data and Locking/Shutting Out Longtime Users

    Freenode is having another go; after “chits” and “jobs” (among many other ideas) have clearly failed, and following the change of daemon (resulting in massive loss of data and even security issues associated with impersonation) as well as pointless rebrand as “Joseon”, the domain Freenode.net becomes something completely different and the IRC network reopens to all

  23. Jack Dorsey's Decision is a Wake-up Call: Social Control Media is Just a Toxic Bubble

    The state of the World Wide Web (reliability, preservation, accessibility, compatibility etc.) was worsened a lot more than a decade ago; with social control media that’s nowadays just a pile of JavaScript programs we’re basically seeing the Web gradually turning into another Adobe Flash (but this time they tell us it’s a “standard”), exacerbating an already-oversized ‘bubble economy’ where companies operate at a loss while claiming to be worth hundreds of billions (USD) and generally serve imperialistic objectives by means of manipulation like surveillance, selective curation, and censorship

  24. IRC Proceedings: Monday, November 29, 2021

    IRC logs for Monday, November 29, 2021

  25. Links 29/11/2021: NuTyX 21.10.5 and CrossOver 21.1.0

    Links for the day

  26. This Apt Has Super Dumbass Powers. Linus Sebastian and Pop_OS!

    Guest post by Ryan, reprinted with permission

  27. [Meme] Trying to Appease Provocateurs and Borderline Trolls

    GNU/Linux isn’t just a clone of Microsoft Windows and it oughtn’t be a clone of Microsoft Windows, either; some people set themselves up for failure, maybe by intention

  28. Centralised Git Hosting Has a Business Model Which is Hostile Towards Developers' Interests (in Microsoft's Case, It's an Attack on Reciprocal Licensing and Persistent Manipulation)

    Spying, censoring, and abusing projects/developers/users are among the perks Microsoft found in GitHub; the E.E.E.-styled takeover is being misused for perception manipulation and even racism, so projects really need to take control of their hosting (outsourcing is risky and very expensive in the long run)

  29. Links 29/11/2021: FWUPD's 'Best Known Configuration' and Glimpse at OpenZFS 3.0

    Links for the day

  30. President Biden Wants to Put Microsofter in Charge of the Patent Office, Soon to Penalise Patent Applicants Who Don't Use Microsoft's Proprietary Formats

    The tradition of GAFAM or GIAFAM inside the USPTO carries on (e.g. Kappos and Lee; Kappos lobbies for Microsoft and IBM, whereas Lee now works for Amazon/Bezos after a career at Google); it's hard to believe anymore that the USPTO exists to serve innovators rather than aggressive monopolists, shielding their territory by patent threats (lawsuits or worse aggression) and cross-licensing that's akin to a cartel

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts