09.24.18

USPTO FEES ACT Makes the US Patent Office a Money-Making Machine That Systematically Disregards Patent Quality

Posted in America, Law, Patents at 4:04 am by Dr. Roy Schestowitz

Taken for a ride by large corporations and their lawyers

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Summary: The lingering issues with patent assessment at the US patent office, which unlike US courts isn’t quite so impartial an actor (it benefits more from granting than from rejecting)

THE PATENTS being granted by the USPTO are sometimes worrying for ethical reasons, not just economic/business/innovation reasons. Consider this new article. Companies now compete over who can best figure out what’s inside your mind based on photos you take (or are taken in, even without your consent). Suffice to say, from our point of view a big issue with this patent is that it’s a software patent. Why do examiners still grants these? As if 35 U.S.C. § 101 does not exist and as if the Patent Trial and Appeal Board (PTAB) — assuming an inter partes review (IPR) got filed — would not invalidate it with the Federal Circuit‘s approval?

“They reject abstract things for not being patentable, for being mere thoughts, not “revolutionary”.”These patents are not at all “innovative”; the underlying ideas, moreover, are implementations in code, not innovation. Watchtroll’s David Wanetick wrote the other day that US “[p]atent examiners deem inventions to be “abstract” if they are too revolutionary” (Watchtroll actually wrote that nonsensical sentence last week!). What an utter lie. What lunacy. They reject abstract things for not being patentable, for being mere thoughts, not “revolutionary”. Here’s the full paragraph for more context:

Patent examiners deem inventions to be “abstract” if they are too revolutionary or “obvious” if the invention is less than revolutionary. Those patent applications that survive such prosecutorial rejections are likely to be clipped if they become subject to inter partes review challenges. For example, in Ex parte Hiroyuki Itagaki, the Patent Trial and Appeal Board ruled that a magnetic resonance imaging (MRI) machine is an abstract idea and thus patent ineligible.

No, that wasn’t what actually happened. MRI machines are very old (I should know; I worked with these); the writer alludes to the claims by the wrong ‘wholesale’ description. And so something that somehow relates to MRI machines got rejected (as patent ineligible).

“There should never be patents on mathematics.”Yes, so? So what? This is generally the sort of “intellectual dishonesty” we’ve seen Watchtroll accused of online. Watchtroll now celebrates software patents (i.e. bogus, invalid patents) in “A Look at RSA Cryptography and the Seminal Patent that Landed the Inventors in the Hall of Fame,” but we don’t suppose the writer knows (or cares) that these algorithms are not inventions but implementations or applied mathematics. There should never be patents on mathematics. Few would attempt to dispute that.

It has meanwhile been noted by Dennis Crouch (a patent maximalist, albeit more moderate than Watchtroll) that the USPTO maintains the financial incentive to just grant and grant and grant. Giving large corporations monopolies and making a lot of money in the process (creating money out of a mere concept!) or in his own words:

S. 3416 An Act to amend the Leahy-Smith America Invents Act to extend the period during which the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office may set or adjust certain fees.

Mr. Grassley (for himself, Mrs. Feinstein, Mr. Coons, and Mr. Hatch) recently introduced the USPTO FEES Act – Funds for Efficient and Effective Services Act. The primary clause in the provision would extend the USPTO feemaking authority for an additional eight years.

Why should the USPTO get to decide how much money it makes unless it is a private, pro-profit corporation? Going back to Watchtroll, yesterday it carried on pushing for legislation that would worsen patent quality. They said, “let us go on the record to say that we support: The TROL Act, R.6370; The STRONGER Patents Act, R.5340; The Restoring America’s Leadership in Innovation Act, H.R. 6264, sometimes referred to as the Massie-Kaptur Act…”

“…what we have at the moment is a system that puts profit before public interest and therefore grants like mad.”All of these are awful and that last one we wrote about several times in summer [1, 2, 3].

What’s needed in the US is a patent system that prioritises public interest. Instead, what we have at the moment is a system that puts profit before public interest and therefore grants like mad. There’s also a profound issue with corruption.

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