The basis of the patent system is a reliance by the public on the strength of issued patents. Every group and advocate has complained of this one issue in one way or another. In some cases, such as in Europe, there is a move afoot to abolish at least a portion of the patent system which may or may not cover most of the inventions in the last 10 years. In other cases, groups like EFF have started a publicized ‘patent-busting’ campaign.
The people with a vested interest, the patent holders themselves, also want their patent to be respected and honored without having to resort to costly litigation.
What can be done about it? I think everybody should take some responsibility for the solution. There are basically two groups involved, the patent practitioners and the PTO.
Both groups suffer from the same nemesis: ‘productivity.’ Patent prosecution and examination are businesses, both with clients who don’t want to pay any more than they must to get a ‘sufficient’ product. Pushing product out the door is the only way to make money.
Worse yet, there is a big competitive force that is making people cut corners even more. Back in the day, a big law firm would have a steady stream of business from a client. Now, the client has frequent ‘beauty contests’ and ‘bake-offs’ to interview new firms. Similarly, whispers about outsourcing searching at the PTO has got to make the examiner corps worry if their careers are in jeopardy.
I wonder if this is a symptom of the pendulum swinging too far. In the case of the lawyer/client relationship, it could be that the lawyers killed the golden goose by becoming too greedy and too fat. I am almost always in favor of letting the market churn allowing the cream rise to the top, because it tends to make the most important factors stand out. In sum, their value must be greater than or equal to their cost. This is simple free market economics.
On the PTO side, I have a hard time thinking of a more economically influential position in government than a patent examiner. In a short 14 hours or whatever they get to examine a case, literally millions of dollars of assets may change hands based on their knowledge, intellectual abilities, and their eventual decisions. If you value the pure economic influence this group has, it is astounding. Then, when you figure that these people are paid a paltry government salary, it does not add up. The value is much, much higher than the cost.
Many examiners look at their jobs as a stopping point before or during law school where they can learn some of the most difficult skills in the legal universe. And who can blame them in today’s culture? The relentless push for productivity has changed society to the point where we are all temporary employees and nobody talks about a ‘career’ with one employer.
One way to accomplish this is to simultaneously raise the standards for examiners, but also raise their pay, and to do so substantially and without regret.