Patent Law

Lazy Man Insults His Customers

By Gary Odom and Jordan Kuhn

The USPTO is storing up trouble. PTO honcho Jon Dudas said Wednesday that patent applications are "skyrocketing," but quality is suffering "as corporations and individuals increasingly seek to turn intellectual property into a legal asset rather than a means to technology innovation."

Dudas, who is not a patent attorney, apparently holds an ersatz concept of intellectual property.

It has been estimated the intellectual property now accounts for roughly 70% of corporate assets in this country, contrasted to around 30% a decade ago. For example, in 1995, Microsoft held a portfolio of only 115 patents. Between 1996 and 2007, inclusive, Microsoft has filed over 12,000 patent applications.

Referring to the falling allowance rate, an artificially generated statistic from inept examination, Dudas proclaimed "we've seen a problem with quality," though he wasn't indicating the real problem, just an imaginary one.

The quality of examination has dropped precipitously in the past few years. To evade work, examiners regularly place restriction requirements in contravention of MPEP, the examination guidelines. PTO management has a statistical goal orientation, and the patent examiner corps has responded by furiously and spuriously rejecting allowable claims. The agency beefed up the appeals board a couple of years ago in anticipation of this.

Disingenuous Dudas instead attributes the allowance rate drop from 72% to 42% to "better examiners," as well as pointing a finger at patent prosecutors becoming increasingly incompetent nationwide, stating that the current system is "making it too easy for people who want to file poor applications." This was an oblique reference to the PTO's failed illegal attempt to staunch continuation applications, as a means to limit application inflow.

The USPTO has hired over 2,400 examiners over the last two years, but the examiner corps is growing much more slowly, as attrition continues to be atrocious because of bad management.

As more and more applications are unjustly rejected, and divisionals abound, prosecutors persist with ever more filings and appeals. This makes the dropping allowance rate a harbinger of even greater pendency and a rising flood of backlogged applications on top of new applications.

The Dudas PTO management regime has been backfire in action, continuing episodes of myopic self-interest at the expense of protecting invention assets.

Full post as published by The Patent Prospector on April 17, 2008 (boomark / email).