=institutions =patents =research
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 files
- git pull requests for
amendments
- png 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.