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May 1, 2013
EFF Challenges Bad Patent Filings - But There's a Bigger Issue
Boingboing pointed to the EFF's Julie Samuels posting about their ongoing efforts to stop half a dozen bad 3D printing patent applications from being granted. This is great, but it's like putting a band-aid on an arterial wound. If, as the column notes, the EFF found relevant prior art that wasn't previously found that means two upstream failures have already occurred.
First, the patent office (examiner) should be finding this prior art. Why that's not happening is complex, but a first approximation would be that the examiner isn't well enough trained, doesn't have enough time to examine each application thoroughly, and doesn't have enough or adequate tools at hand. All three of these causes have been discussed on various boards and blogs frequented by examiners. The solutions are pretty obvious, and any attempt at patent reform that doesn't discuss examiner training, production quotas, and available search tools is defective from the start.
Second, the patent applicant is supposed to conduct an adequate prior art review themselves and should be liable for submitting patent applications without such reviews. In fact, the way the law is set up rewards deliberate blindness. Since you have to disclose any prior art you know about, it's safer not to know about any prior art. The result is a raft of idiotic submissions made with completely inadequate prior art information. We know this to be the case because a reasonably competent person with access to Google, Medlib, or the Science Citation Index can often find something not disclosed on the patent application.
This problem is less straightforward to fix. Increasing penalties for bad prior art disclosures only reinforces the willful ignorance problem. I've suggested before that any application with zero non-patent prior art citations should be rejected out of hand by the USPTO. That would cut out a large chunk of the obvious crap but doesn't encourage the positive behavior we all want, which is inventors doing good thorough searches before applications. My social-software nerd brain thinks we ought to let the USPTO develop some kind of reputation system, and allow applicants with good reputations to get priority examinations, but it would take a fair bit of work to design a fair reputation system that was resistant to gaming by people both outside and inside the Patent Office.
Maybe I could get a patent on such a system...
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