Dear Group: Richard has done a good job on the Times article.

I echo that the use of a first-to-invent system fits our Republic's ideals.
The efforts involved in "interferences" where determinations are made as to
who is first are a very minor part of the process.

Left off entirely is the issue of the bonus system used in the PTO that
appears to reward not issuing patents. Issued patents have gone from about
65% of applicants to about 40%, and much more telling is a reported six fold
increase in the number of applications waiting for judgment in the appeal
process. I now tell potential patent applicants that they must expect to
use the appeal process as that may be the only way their application is
evaluated by judges who are not influenced by the bonus system.
Applications take too many years and have become very expensive. Once the
US patent system was the least expensive and was fast.

It is unreasonable to expect things like the Times to understand anything
that is a bit complicated.

73, Mac N8TT
--
J. McLaughlin; Michigan, USA
Home:
"Richard Clark" wrote in message
...
On Mon, 16 Nov 2009 22:01:41 -0800, David Ryeburn
wrote:

With that said, I'd enjoy reading comments on the NY Times article
"Inventing a Better Patent System", which you can see at
http://www.nytimes.com/2009/11/17/opinion/17pozen.html?hp.

Hi David,

I have patents, and yes the system is broken - but not in the ways
this author describes (but, oddly, is separate from his fixes).

The author comes up with some rather odd objections which are like
moving deck chairs on the Titanic. Some of it is quite naive:
"Yes, it makes renting movies a snap,
but was it really a breakthrough
deserving patent protection?"

The patent examiner is specifically prohibited from denials based on
hindsight. The patent must disclose prior art, and if that art
anticipates the use (as something within the art of the practioner)
then there is a basis of denial, but the examiner cannot make that
leap without this paper trail. One legal tenet a patent lawyer told
me last week was that "Only God can create, man assembles all
invention from other existing ideas."

The following quote is an outright wet-dream:
"One root of the problem is that patent examiners,
many of whom are young or lack practical
experience, are not qualified to evaluate
whether complex claims in biotech or
physics meet the most critical tests."
This is patently absurd from an historical basis. Examiners have
always been young and lacking experience - the office is the first
rung in a ladder of their career as patent lawyers. How any NYT
scribbler would expect the economic model to suddenly invert
(practiced lawyers becoming examiners for far less pay) is misty eyed
in the extreme.

This also brings us to the second glaring error in that quote which I
repeat in part he
" to evaluate
whether complex claims in biotech or
physics meet the most critical tests."
This speaks to the validation of science which is NOT part of the
examiner's job. This is confusing the specification (the description
written in what should be clear English) with the claim (the list of
relationships and associations). Examiners deny a patent on the basis
of the claims made which do not rely on "this proves Einstein was
wrong and I have invented of something that Gauss forgot."

There are very few criteria to be met: is it novel? Is it marketable?
Neither of which demand scientific proof. Someone might demand that
novel requires proof, but this is on the basis of claims alone. Does
your invention's claims appear somewhere else? The examiner is paid
to wade through the 6 million patents to ascertain that.

Now, let's move on to those suggestions.
"To help fix this, Congress should pass an
amendment allowing experts in the field to
submit explanatory or critical comments on
patent applications."
This doesn't go to the matter of claims of prior art. I've spent
enough ink on that.

Next:
"Next, Congress should require that all
applications be made public 18 months
after they are filed."
I would argue 18 months is arbitrary (who is this scribbler working
for?). Why not next week? The proposed solution is to combat what is
called Submarine Patents. Basically, this was responded to in 1995. I
had a patent that was underwater for 4 years. This wasn't out of some
business ploy, but simply because the brief was so huge (several
hundred pages) that it fell behind one of the filing cabinets and was
lost for years.

Next:
"Congress should eliminate the 'could have raised clause.'"
Reasonable.

Next:
"Fourth, Congress should provide limited
new immunity to all inventors who choose
to protect their innovations as trade secrets
rather than patents."
Trade secrets are a risk that should be borne by the one who wishes to
protect their IP through their own devices. This goes into estoppel
and laches - law that has a long history. If you cannot keep your cat
in the bag - so be it. Whatever is being spoken to here in this
author's suggestion does not have to be cloaked in the mantle of
Patent reform.

Last:
"Congress should adopt a first to file rule
for awarding patents between competing parties.
America is the only major country that tries to
ascertain who was the first applicant to invent the
product or procedure."
The second sentence is not true, but when did facts ever matter?
Indeed, the first to invent versus the first to file has been
contentious since Alexander Graham Bell and the telephone (and many
others through the decades). Invention is a populist notion in a
populist nation. Europeans see things as law, not popularity. This,
too, was a topic that has been answered in 1995 and is now being crow
barred to fit globally. We have learned to cope with it over the
centuries and Europe doesn't have a dog in this fight, unless a
foreigner needs coverage here.

Going beyond as there are some interesting things about Patent law to
add to this. You can be sued for practicing your patent! This
usually stuns non-lawyers so an illustration needs to be illustrated:

The LED is patented. As far as the patent examiner can tell, nothing
within the patent identifies any anticipated product outside of its
claims (the inventors didn't elaborate beyond the general notion that
light could be emitted from a semiconductor).

You invent the Red LED. The patent examiner reviews prior art, and
sure enough the LED inventors never anticipated a single wavelength
application. BINGO! Your patent is issued.

You go out, build a plant, produce a bajillion Red LEDs and are
immediately served a cease and desist order for infringement! The LED
patent blocks your patent. The only thing you have gained is a way to
keep the original LED patent holders (and everyone else too) from
making Red LEDs - if it matters to them.

There's a bajillion other oddities, but time has come to close here.

73's
Richard Clark, KB7QHC