Pieter Hintjens: The examiners are revolting

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The Patent Office Professionals Association is reporting that "an international coalition of patent examiners' unions — including representatives from the U.S., Europe, Canada, Germany, and Austria — signed and delivered a joint letter … urging serious measures to maintain meaningful protection of intellectual property."

We saw this letter a few days ago, and it's part of a growing cry for help from the patent examiners as the patent system collapses under a flood of junk patent applications.

The law firm of Pinsent Masons, usually a strong pro-software patent advocate, also discusses the open letter, and highlights these gems from the letter:

"… poor-quality patents can become a hindrance to, rather than a stimulus of, innovation and economic growth"
"… unless serious measures are taken, meaningful protection of intellectual property throughout the world may, itself, become history"
"… a build up of outstanding applications and a focus by patent office managers on quantity, not quality, of examinations means that the whole system is in danger of suffering irreparable damage."

All of which should come as no surprise to any objective observer of the system. At the IPSummit in Brussels last year, I said exactly the same thing, and was gently mocked by some patent practitioners.

The patent system will explode for a very simple reason: software patents, combined with the greying of West's industries. The collapse of product-driven innovation makes US and European big industry desperate to turn their temporary lead in some areas into a longer-term hegemony. Ok, so we can't make our own products any more, but we can damn sure tax those Chinese on every product they make for the next twenty years.

Software patents are that tool, and the patent offices have been the compliant partners in hacking the patent system to allow these.

And having opened Pandora's box, there is no way to close it without radical changes. There is no quality filter that will stop the explosion in software patents. "Quality" is a buzzword but it'll become a curse in a year or two, as the backlog of patents continues to grow without respite. it's not just bad-quality patents that are spamming the EPO and other patent offices. Even good software patents (given any conceivable definiton of 'good' that the patent offices can define) are so numerous and complex that they will snarl the system to death.

It now takes 7-8 years to get an EPO patent examined. When the backlog hits the symbolic 10 year mark, things are going to get really crazy.

The only fix to the patent system's woes is a global ban software patents, and if policy makers still need some form of reward for documentation and publication of engineers' secrets, something like the Ethical Patent.

As the Campaign for Ethical Patents put it: Less is more.

Find the letter here: http://www.suepo.org/public/ex07050cl.pdf

The importance of intellectual property is demonstrated by the increase of new patent applications during the last twenty years.

flawed reasoning, analogue: the importance of torture is demonstrated by the increase of new torture cases during the…

Recently, however, many in the intellectual property community have come to realize that an increase in patent applications does not necessarily represent an increase in technological progress.

I would suggest that persons who did "not come to realize that" are not very smart, but it is insightful that this needs to be said.

They now recognize that poor-quality patents can become a hindrance to, rather than a stimulus of, innovation and economic growth. They understand that a strong patent system requires high patent standards and quality examination.

How to measure quality?

Patent offices worldwide continue to focus on their backlogs of applications and ways to increase examiner productivity. Unfortunately, in many patent offices, the pressures on examiners to produce and methods of allocating work have reduced the capacity of examiners to provide the quality of examination the peoples of the world deserve.

The patent system is a market order tool for the industry, not intended for the "peoples of the world".

Quality examination requires skilled, well-trained and motivated examiners, powerful and efficient search and examination tools and, most importantly, the time necessary for examiners to apply those skills, training and tools to the examination of patent applications. The pressure on productivity has greatly reduced the sense of job satisfaction of examiners, who feel unable to take the time to do the job justice. This has damaged the motivation of the examiners with concomitant impact on the operational effectiveness and the quality of output of Patent Offices.

Honestly, Pieter I thought, okay that it your spin. But the examiners write it.

We, therefore, strongly urge you, the leaders of major patent offices around the world, to:
• Increase the quality of examination by providing patent examiners with more time to search and examine patent applications.
• Acknowledge the importance of protecting the intellectual property of inventors while simultaneously protecting the public domain by removing from any reporting, rating or incentive systems any bias with respect to granting or not granting patents.

Refers to the pax system and the political economy of the patent system.

• Guarantee the independence of the examination process so that it is governed solely by the legal framework.

Criticises the interference of Pompidou and ministerial officials.

• Ensure that examiners have the opportunity to maintain their legal and technological competence by providing adequate and continuing legal and technological training.

Examiners usually have these skills. It is no examiner problem.

• Maintain staff skills with search, examination and administrative tools by providing regular update training.
• Recognize the considerable investment patent offices have in their staff by developing and
maintaining collaborative rather than adversarial relations with employees and their representatives.
• Strengthen the world’s patent systems by encouraging your respective governments to provide
standards of patentability that reward innovation while discouraging undeserving patent
applications so as to provide a strong presumption of validity for issued patents.

Interesting!

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