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Articles

New Patent Regime Won't Help

August 16, 2010

Articles

New Patent Regime Won't Help

August 16, 2010

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Feigenbaum article

Reprinted with permission from the August 16, 2010 edition of the The National Law Journal© 2010 ALM media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.

In June, the U.S. Patent and Trademark Office raised a trial balloon on a three-tier patent processing regime that would let its richer customers get faster patent reviews by paying more for the privilege. It sounds like a bold move, at first, one that would happily up-end the patent office’s sacrosanct first-come, first served queue. But any thoughtful company that plays the patent-getting game should see that this tactic will not fix the nuts and bolts of a system that makes the process of protecting innovations just plain wasteful.

Shifting cases in the queue will not stem the unnecessary time and money that is now lost in our outdated and breathtakingly inefficient system for prosecuting patent applications. In fact, the three-track proposal looks like a grab for more fees from some applicants, while not fixing the inefficient, imperfect work that many people see as a patent office hallmark. The patent applications will be moved around in the work queue, but will the work be done better or faster? Are the consumers of what the patent office sells supposed to find this inspiring? It’s dumbfounding, when you think about it.

This is another misdirected attempt to solve a flawed century-old work style. The interaction between examiners and lawyers is overly iterative, done on paper, gated by arcane time periods for action and delayed by almost endless deadline extensions. It is all very 19th century — inspirational to Charles Dickens, maybe — but tailored to be unresponsive to modern technology and work styles.

Without changes to the law, there don’t seem to be many ways to fix this mess. Shifting cases around in the queue to make some customers happier while drawing in more fees for the patent office must have looked like one of the only ideas left. While jumping a few cases out of turn, for money, may be a win-win for the patent office and some customers in the short term, it’s a lose-lose for the system, long-term.

CHANGE MUST COME FROM CONGRESS

But the blame should not be laid at the feet of the patent office. It is Congress that should be on the hot seat. It’s shameful that, while its members fiddle around on so-called patent reform — which is about nothing other than tinkering with where money and rights will land post-issuance and in litigation — they refuse to legislate real reform where it is needed most, at the patent office.

What Congress needs to write into the law is proper funding for the patent office, combined with clear instructions to dump the 19th century nonsense (quaint though it may be) and operate like a 21st century business. Pay the examiners well to get on the phone, go back and forth with their customers over very short periods of prosecution, make their decisions and move on.

How long would Verizon survive if it forced its customers through a six-month back-and-forth in formal letters just to open a new account? And then offered to jump some customers ahead if they paid more money? Unlike the patent office, they’d be out of business fast.

The lesson is that the deck chairs on this Titanic are old, uncomfortable, ripped, broken and outdated, because they were built to the 19th century congressional design. It won’t help to move them around the deck, or to move some over near the railing for a better view.

This plan is a sad commentary on a patent system that serves what purports to be the most technologically advanced culture in the free world — and has been left to fail by the Congress that created it.

David L. Feigenbaum is a principal at Fish & Richardson in Boston. He can be reached at feigenbaum@fr.com, and his blog is available at www.patenthink.com.

 

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