Osenga: The PTOs Fast Track Takes Us in the Wrong Direction

Professor Kristen Osenga (Richmond) has written a new essay for the Patently-O Patent Law Journal entitled The Patent Office’s Fast Track Will Not Take Us in the Right Direction, 2010 Patently-O Patent L.J. 89. In a 2005 article, Professor Osenga proposed a multi-tiered approach to patent examination. In her Patently-O essay, Professor Osenga explains why her suggestions are “better than the system proposed by the Patent Office.”

  • Download the Patently-O Patent Law Journal Essay: [File Attachment: Osenga.pdf (32 KB)].
  • Read Osenga’s 2005 Article titled Entrance Ramps, Tolls, and Express Lanes – Proposals for Decreasing Traffic Congestion in the Patent Office [Link].
  • On his blog “Inventive Step”, Patent Attorney Matt Osenga (Prof Osenga’s husband) provides further discussion. [Link]

Other Recent Patently-O Patent Law Journal publications:

111 thoughts on “Osenga: The PTOs Fast Track Takes Us in the Wrong Direction

  1. Sit on your porch and admire the view without paying attention to your needs; search for knowledge,read more, I think that is very meanful for you because today is important.

  2. I don’t believe it!
    There she goes again!
    She’s tidied up, and I can’t find anything!
    All my tubes and wires
    And careful notes
    And antiquated notions

  3. “Lumping “computer science” as a faux science. Hilarious cepts 6 be serious.”

    Says the faux scientist ping.

  4. I pity da fool dat works for 6.

    Lumping “computer science” as a faux science. Hilarious cepts 6 be serious.

  5. “Since when are sciences limited to a “natural world” outside human interaction? ”

    Since the creation of the word? Actually if you look into the history of the word it is relatively recently that it started to be applied to the faux sciences like econ, sociology and “computer science”.

  6. ping, Lionel does have a point though. If economics was predictable, portfolio managers should reliably make money in any market. But we know this is not true. At the same time, guys like Soros know when to call and when to fold. They always seem to make money.

    At best, we should learn from mistakes. We have somewhat of a consensus view on Hoover; not so much on Harding and FDR. But we do know that Harding cut taxes and that FDR did not. We also know that Kennedy believed that tax cuts would “get the economy going again.” Clearly, Kennedy was more in the mold of following Harding than FDR.

    Just a minor point, during a major expansion, Bush I raised taxes and the economy promptly tanked. Bush lost his presidency as a result. The economy did not fully recover until mid 1995, which is just about the time Congress began insisting on balancing the budget. This set off a boom that ended with the .dot com bust.

  7. Since when are sciences limited to a “natural world” outside human interaction? I do believe that humans are a part of the natural world (most humans anyway).

    You create a false distinction in order to support the semantics of your mind. In your view human-created systems are not included in the world of science? Do you recognize what you are postulating?

  8. Ping,

    You are factually incorrect here. Economics was not created to explain the natural world. You don’t believe there is a difference between the natural world (with or without humans) and human-created systems? Economics and actual sciences may both use some of the same scientific techniques, but it does not make economics a science.

  9. Are you serious?

    You have made no discernible distinction as to why economics cannot be a science. It was indeed created to explain the world around us. The fact that there is a plethora of variables only means that the modeling is more difficult, not that it is impossible.

    Come on out of the stone age.

  10. Ping,

    Are you serious? I’m the first to say never say never, but while people can apply and have applied scientific techniques to economic data, it will never be a science simply because too many variables are not subject to quantization.

    Let me put it in simpler terms – saying Economics can be a science is like saying Intelligent Design (Creationism) can be a science.

    Science is the study of the universe around us and why events happen. Economics is a creation of man. It wasn’t created to explain the world around us (although certainly theories developed in economics have been applied in actual scientific fields – however, these have been in descriptive models of natural behavior)

  11. Malcolm, at least we learned something. But it is good to understand why Hoover caused the great depression when he reacted to the crash of ’29 in all the wrong ways.

  12. But he kept wages high, dividends high, interest rates high, and taxes and tariffs even higher. He massively increased costs at a time when we needed to reduce costs.

    Hoover should have been removed from office by impeachment. Today, anyone who follows Hoover’s polices and not Hardings is going to cause us a lot of harm.

    You can take it easy, Ned, because interest rates are very low and so are taxes and the gap between inflation and wages is as worse as its been in 20 years.

    link to seekingalpha.com

  13. Gena if getting a patent doesn’t “turn you on,” and you don’t like what a patent has to offer, go get something else… like a massage.

  14. “The traditional one-size-fits-all approach doesn’t meet the needs of today’s environment”

    Says who?

  15. Professor Osenga is not the only one urging a multi-tiered approach to patent examination. The traditional one-size-fits-all approach doesn’t meet the needs of today’s environment. If Congress ever actually passes a patent reform bill with teeth, then maybe we’ll see significant change for the better in patent law someday.

  16. IANAE, yeah, and yet another bubble — caused by insufficient skin in the game — exactly what cause the 1929 and the .dot com stock market bubbles. All three burst and brought the economy down with it.

    Seems like we do not learn from history.

    I understand the Obama admin is asking for more skin and less risk. This is a move in the right direction.

  17. Then the market rebounded and economy recovered.

    That was when all those people started buying all those houses, right?

    Yup, nothing like low interest rates and increased consumer confidence to boost an economy.

  18. You know ping, what surprised me about economists like Greenspan is that he was surprised about the deflationary effects of a stock market collapse of the kind we had both in ’29 and ’00. Greenspan caused the recession of ’01-’03 by bursting the dot com bubble and then by not reacting until it was too late.

    To anyone with a brain, stocks are just like money because they have a ready market. The more money people had (in stock value) the more they spent – on cars, houses, everything. Once their portfolios collapsed, ditto their spending.

    But Greenspan kept interest rates high too long. We continued with such high taxes that we ran a short-term surplus when the economy was tanking. We needed to act, but we did not — at least until 2003 when the Bush tax cuts went into effect.

    Then the market rebounded and economy recovered.

    Had Hoover reacted as did Harding his predecessor, we would not have had a depression at all. But he kept wages high, dividends high, interest rates high, and taxes and tariffs even higher. He massively increased costs at a time when we needed to reduce costs.

    Hoover should have been removed from office by impeachment. Today, anyone who follows Hoover’s polices and not Hardings is going to cause us a lot of harm.

  19. Lionel, Keynes has to be interpreted. He advocated reducing interest rates. That lowered costs to businesses, certainly. But, in a deflationary environment, even zero interests rates can be exorbitantly expensive. So, it is not the entire solution.

    He advocated increasing government spending. This helps — provided it is entirely financed by debt. Government spending provides direct demand. However, this stimulus is more than offset with tax increases that are intended to balance the budget.

    The problem with Hoover/FDR is that they raised taxes to balance the budget. This more than offset the stimulus effect of any increased government spending.

    The objective is to get expand the money supply, simply taxing and spending does not do that.

    What is needed is to maintain or increase government spending but to, at the same time, massively reduce taxes.

    Ditto everything else that raises costs to businesses such as the cost of benefits and wages, environmental laws, etc., etc. These need to be addressed as well. There are a lot of things that contribute to a depression; each represents an opportunity to end the depression sooner.

    Again, Keynes has to be understood in context. Expanding the amount of money in the economy by reducing costs, primarily taxes, while maintaining government spending is what he really advocated.

  20. “If we had still been practicing keynesian economics, we would not be in the mess we are today”

    LOL

    Keynesian == state controlled capitalism == communism (or, at best, socialism)

  21. Ned writes:We need to cut taxes, reduce union wages, cut the minimum wage and reduce health care expenses. But what we seem to have done is the opposite

    You are correct sir. I commend to you the book entitled “National Suicide: How Washington Is Destroying the American Dream from A to Z” Martin L. Gross

    link to amazon.com

  22. please talk to an actual economist

    Better yet, talk to three and get three different answers. Even better still, talk to seven and get seven different answers.

    Wait, what this art needs is some patents in order to promote some useful coherence here. Mayhap, this could even actually be turned into a science…

  23. “Government spending PROLONGED the Great Depression!”

    Adam Smith, please talk to an actual economist and not same “Follower of Friedman.” If we had still been practicing keynesian economics, we would not be in the mess we are today.

    Having said that, let me find common ground and say, I absolutely opposed and any of the bailouts and the solution to too big to fail is to simply let them fail. It would have tanked the dow jones, but contrary to the out of touch right wingnuts and the ball-less dems, the lives of the average worker would not be worse than today.

  24. Malcolm, spending on infrastructure is OK by me because such spending has long term benefits.

    However, merely expanding government employment thru temporary dead end jobs as did FDR is not a good thing.

    Moreover, like Hoover, maintaining wage levels in a deflationary environment (read unions), or increasing costs of employment (read hiking the minimum wage or increasing the cost of already expensive health insurance) can only lead to massive layoffs and a resistance to hiring new employees.

    We need to cut taxes, reduce union wages, cut the minimum wage and reduce health care expenses. But what we seem to have done is the opposite.

  25. “prevents the negative effects of long-term unemployment which are just as much a “steel ball” keeping the economy down as this deficit you are so worried about.”

    Idk about the “negative effects” of long term unemployment MM. It always seemed like the media always just took the correlation between long term unemployment and failure to find high pay work etc. and turned it magically into a causal relationship. The one, however, doesn’t necessarily create the other, they just tend to go hand in hand. That could be because those unable to find work for a long time are the more undesirable employees, generally speaking.

    Don’t even get me started on automation and % women in the workforce.

  26. Ned Harding cut taxes. Bingo, depression over to be replace by years of enormous expansion.

    Wow, Ned, you make it all sound so … simple.

    Adam Smith, you need to explain to the ignorami that anything that drains money from the economy, whether it is in the form of taxes or higher interest rates due to government borrowing is harmful to the economy.

    Yes, Adam. Please explain this to the ignorami. You’re so much more convincing than Rush and FOX News who will be peddling this baloney non-stop until November.

    Those who believe that increasing the size of the steel ball shackled to ankle of the economy will magically free the economy to run faster

    It’s not about “magically freeing the economy to run faster” Ned. It’s about doing something about unemployment that (1) lowers the rate of unemployment and (2) benefits everyone. Providing money for projects that create beneficial employment (e.g., infrastructure repair or creation) or keep jobs secure (e.g., teaching, police, fire departments) accomplishes that more quickly than any other measure *and* prevents the negative effects of long-term unemployment which are just as much a “steel ball” keeping the economy down as this deficit you are so worried about.

    I’ve already explained why Republicans are opposed to such projects ideologically. It’s clear that Republicans are not opposed to deficits ideologically. As for your own opposition to stimulus projects, Ned, it appears to be based mostly in ignorance, with a touch of incoherent philosophy tossed in for good measure.

  27. Adam Smith, you need to explain to the ignorami that anything that drains money from the economy, whether it is in the form of taxes or higher interest rates due to government borrowing is harmful to the economy.

    Governments jobs per se are harmful to the economy.

    Government jobs are the government giving people money. The opposite of draining money from the economy.

    Another thing that is harmful to the economy unions that keep wage rates high. As we found even in Hoover’s time, when wage rates remain high, workers find themselves without jobs in a depression.

    Ditto mandatory benefits for workers.

    Ditto the minimum wage.

    Hey, the economy’s bad. What a perfect time to reminisce about the good old days when workers could be freely exploited. But hey, at least they had jobs, right? They should consider themselves lucky.

    Without minimum wages, benefits, and unions, there would be no middle class at all. Without a middle class buying luxury goods and consumer electronics and putting all its savings into the stock market, our economy as we know it would not exist. Wealthy people would be merely rich, limited to the profits they could generate directly from whatever factories they owned.

    If the top earners are richer than they’ve ever been, it’s because they are standing on the shoulders of the middle class.

  28. Cut taxes, reduce regulation, and generally, get the government out of the way.

    That’s our ticket out of the current economic situation? A little hair of the dog?

    Count me out.

  29. Adam Smith, you need to explain to the ignorami that anything that drains money from the economy, whether it is in the form of taxes or higher interest rates due to government borrowing is harmful to the economy.

    Governments jobs per se are harmful to the economy. Thus it is important that a government job is necessary before we should authorize it.

    Another thing that is harmful to the economy unions that keep wage rates high. As we found even in Hoover’s time, when wage rates remain high, workers find themselves without jobs in a depression.

    Ditto mandatory benefits for workers.

    Ditto the minimum wage.

    We could go on and on in this vein, but there is no free lunch. Those who believe that increasing the size of the steel ball shackled to ankle of the economy will magically free the economy to run faster, are drinking the cool aid.

  30. If you want the private sector to grow, you need to pump money into the private economy, not take it out.

    Harding cut taxes. Bingo, depression over to be replace by years of enormous expansion.

    Then we elected Hoover. He who opposed Harding’s tax cuts. He did a number of things that reinforced the recession of 1929 and forced us into a great depression. He advocate that wage rates remain high. Ditto dividends. As a result, profits fell driving down stock prices even further. By keeping wage rates high, businesses had to lay workers off as their revenues declined.

    As the economy contracted, the budget went into deficit. Hoover raised taxes dramatically and imposed tariffs. This further drained money — increasing the economic decline.

    Along came FDR. He increased government spending and created make work jobs, but he also raises the cost of doing business by several “reforms” including the minimum wage. All this did was do delay recovery. He also raised taxes and the economy collapsed again.

    Only when the Republican/conservatives took power and cut taxes at the end of WWII did the economy fully recover. At that time, the people also had a lot of “cash” on hand to spend in the form of war bonds. The combination allowed the American economy to recover.

    Note that most if not all economies not blessed with Hoover and FDR recovered long before the US did. It is clear that Hoover and FDR did a lot to make things worse.

    In the words of Bill Clinton, “It’s the economy st***d.”

    Cut taxes, reduce regulation, and generally, get the government out of the way.

    Government is the problem, not the solution.

  31. “freeing up so many of their old jobs in America that companies had to resort to hiring women.”

    A shudder just went up my spine.

  32. Government spending PROLONGED the Great Depression!

    The Great Depression ended in a hurry as soon as the government got really serious about spending. You know, employing lots of people to build all that equipment the US was buying to ship overseas for destruction and replacement, that little foreign-exchange make-work project where so many Americans in their prime were given overseas jobs for the rest of their lives, freeing up so many of their old jobs in America that companies had to resort to hiring women.

    That’s a level of government spending you just don’t see every day.

  33. “And what got us out of the Great Depression was massive government spending. ”

    Mooney/Hutz/INSANE/et al. can’t recognize the truth when it hits you in the head. (Hint: you see all of Mooney’s sock puppets come out when you toss out the political bait)

    Government spending PROLONGED the Great Depression!

  34. Republican Governors watching their states go to hxll in a handbasket are starting to go off-message, after realizing that a bunch of Federal government aid might not be forthcoming thanks to …. Republicans.

    “I’m very concerned about the level of federal spending and what it would mean for the long term,” said Gov. Jim Douglas of Vermont, a Republican and chairman of the National Governors Association. “But for the short term, states need this bridge to sustain the safety net of human services programs and education.”

    link to nytimes.com

    Sxck it up, Jim Douglas! So what if people suffer or fail to receive an education? The important thing is to keep blaming everything on the deficit, which is the Democrats fault, as anyone who watches FOX knows.

  35. “It’ll serve them right for trying to get sick and die or lose their home due to unpaid medical bills, a privilege normally reserved for the wealthy.”

    I couldn’t agree more with you, comrade.

  36. Especially if they don’t have health insurance. We’ll show them’s that try to dodge taxes ;)

    It’ll serve them right for trying to get sick and die or lose their home due to unpaid medical bills, a privilege normally reserved for the wealthy.

    Who is that Kenyan socialist to tell me when I can or can’t live? It’s a clear violation of my 5th Amendment rights!

  37. ” And of course people who aren’t working aren’t paying taxes.”

    O don’t you worry MM, I hear Obama has plans to get them to be paying taxes here soon. Especially if they don’t have health insurance. We’ll show them’s that try to dodge taxes ;)

  38. Adam

    The economic situation in 1920 was grim. By that year unemployment had jumped from 4 percent to nearly 12 percent, and GNP declined 17 percent. … 2 By the late summer of 1921, signs of recovery were already visible. The following year, unemployment was back down to 6.7 percent and was only 2.4 percent by 1923.

    There is/was no possible way for such measures to have the same effects in this recession.

    Adam, you need to look at the graph again. Try to understand it. It’s pretty clear.

    link to calculatedriskimages.blogspot.com

    This is a deep recession and the current rate of unemployment is going to stay with us for a while unless some action is taken. When someone is unemployed for a long time, it is harder to get a job and when the job is gotten, it almost always pays less. And of course people who aren’t working aren’t paying taxes.

  39. And what got us out of the Great Depression was massive government spending. The only reason it took so long is FDR was held back by all those shouting for fiscal responsibility. That ended when the War began.

    However, prior to the War the economic situation improved almost every year except the one year he unfortunately listened too closely to the fiscal conservatives and cut spending.

  40. “The conventional wisdom holds that in the absence of government countercyclical policy, whether fiscal or monetary (or both), we cannot expect economic recovery—at least, not without an intolerably long delay. Yet the very opposite policies were followed during the depression of 1920–21, and recovery was in fact not long in coming.

    The economic situation in 1920 was grim. By that year unemployment had jumped from 4 percent to nearly 12 percent, and GNP declined 17 percent. No wonder, then, that Secretary of Commerce Herbert Hoover—falsely characterized as a supporter of laissez-faire economics—urged President Harding to consider an array of interventions to turn the economy around. Hoover was ignored.

    Instead of “fiscal stimulus,” Harding cut the government’s budget nearly in half between 1920 and 1922. The rest of Harding’s approach was equally laissez-faire. Tax rates were slashed for all income groups. The national debt was reduced by one-third. The Federal Reserve’s activity, moreover, was hardly noticeable. As one economic historian puts it, “Despite the severity of the contraction, the Fed did not move to use its powers to turn the money supply around and fight the contraction.” 2 By the late summer of 1921, signs of recovery were already visible. The following year, unemployment was back down to 6.7 percent and was only 2.4 percent by 1923.”

    Once again Mooney, you’re squarely on the wrong side of history…

  41. I’d rather have a government monopoly than a corporate monopoly. I find it funny that the anti-government people in this country cannot see that the corporate hegemony in the US does us much greater harm than the government ever has.

  42. Well, Malcolm, you strongly object to my suggestion that we “privatize” examination. Only wish to point out that the essential tools used by examiners worldwide were not developed by various governments but by private entities at the behest of the private industry. I think that private industry not only can develop excellent search engines, but can search patents just as well as any examiner.

    Now the next step would be for the private entity to do two things: demonstrate how the claims are supported the specification, and show what in the claims is not in the prior art.

    This is all but required in the request expedited prosecution. I would suggest that the role of an examiner in reviewing a patent application with such a private “patentability” report would be to review it for sufficiency. If it is not sufficient, my simple suggestion would be to reject the report in place examination back into the normal queue.

    My other suggestion, consistent with the good professor’s suggestion, would be to allow patents to issue “unexamined.” These patents would have no presumption of validity until examined. However, they could still be enforced.

    We could add a third variation: allow the patents at issue unexamined by the patent office if the applicant files a private “patentability” report.

    Now these private patentability reports would have to be by government certified independent firms or by certified foreign patent offices. These entities would of course compete on price, quality and time, giving the public what they need in contrast to what the government is willing to provide.

  43. IANAE wrote, Do I detect a hint of large-entity snobbery?

    No. Let me clarify. The article implied that the big companies would have a significant impact because they wouldn’t be deterred by the higher fee for the expedited process. I don’t believe that implication is fair because the big companies, if high volume filers, *would* be deterred (as I explained above), or if low volume, wouldn’t have any more substantial impact than a small entity. Thus, who cares about the size of the companies?

    Your observation raises an interesting possibility: a large number of low volume filers might see their few cases as sufficiently valuable to pay the expedited fee.

    I suspect, however, that the bulk of low volume filers may be cost conscious, as evidenced by their relative few number of filings, and thus might want to defer prosecution costs rather than paying for the expedited fee.

  44. which puzzles me a little, because I had thought that was what they were already doing

    You thought correctly, MD.

    Malcolm, who designed the search engines and databases used by examiners? Surely not the government?

    The government also didn’t design the vending machines in the basement. What is your point, Ned?

  45. Malcolm, you write:

    “We can start, I suppose, by letting British Petroleum set their own safety standards.”

    which puzzles me a little, because I had thought that was what they were already doing. BP were filling out the Forms, and the US Government Control Authority then signed them. Isn’t that how it was?

    Did not the Deepwater just win a prize from that self-same Government Authority for conspicuous achievements in the field of safety (prize-giving hastily cancelled).

    Did that Government Authority ever, in all its recent history, ever find a breach of safety regulations anywhere? Why was the Deepwater ocean-going vessel registered in The Marshall Islands?

    I read that BP were the Goldman Sachs of the oil industry. BP itself, I think it was.

  46. Malcolm, who designed the search engines and databases used by examiners? Surely not the government?

  47. Malcolm, who designed the search engines and databases used by examiners? Surely not the government?

  48. “Well Sunshine, not only are you wrong – you couldn’t be more wrong. In no small measure, it is because of the record level of crxp rejections from the era of reject-reject-reject that the RCE level is at its record heights. When the political party rants are done, turn the brain back on.”

    Look on the bright side, come monday (maybe mon after that) the reject, reject, reject of yesteryear will look like allow, allow, allow when the new Bilski rule is handed down. At least in your scamster practice.

  49. Not if all those new Examiners start rejecting the crxp that they should be rejecting.

    Well Sunshine, not only are you wrong – you couldn’t be more wrong. In no small measure, it is because of the record level of crxp rejections from the era of reject-reject-reject that the RCE level is at its record heights. When the political party rants are done, turn the brain back on.

  50. “Really? We don’t have the money? When did we start “not having the money”? When GWB took a surplus and turned it into history’s largest deficit while the economy drifted into the tank and unemployment rose, I didn’t hear Boehner squawking about how we didn’t have the money.”

    Actually it was before we started having the Clinton surplus. That was a surplus in terms of the budget btw, not in terms of our overall balance sheet that includes the debt we owed. Although, you could say that what GWB didn’t help things. It’s pretty hard to blame the C student with having bonked the country. That’s like blaming a re tard who has been put at the wheel of a monster truck for running over all the cars on the road. The fault is not the re tard’s, the fault lies with who put him in the driver’s seat if anyone.

    “The bottom line is that the stimulus package that Congress passed was woefully inadequate, as most credible economists realized.”

    Well of course, but political reality stops some things from happening. You can’t spend infinite? dollars on the taxpayer’s bill without them getting a tiny bit POed.

    I don’t know about pumping a lot more stimulus money into the econ to help it. It could help sure, but I’m against it even so. No more debt, especially on that magnitude. Period. If we don’t have the money, we don’t spend it on anything. Jebus I don’t see how this is so hard for politicianlols on either side o the aisle, up the aisle, up the creek, or any fin where.

    And fyi, I associate with no political party, nor do I really have leanings either way, or any way (including independent “ways”).

  51. Work expands to fill the time. Trying to make the system work this way is more than simply futile.

    Not if all those new Examiners start rejecting the crxp that they should be rejecting.

  52. RWA, until we privatize the system and let our dollars talk, we will not have an efficient system and can never have an efficient system. Government monopolies are inefficient per se.

    Ah yes: privatize everything! What a great philosophy. Deep thinking at its finest.

    We can start, I suppose, by letting British Petroleum set their own safety standards. After all, the market provides every incentive for them to do everything they can to prevent an unstoppable oil leak from occurring. Right? We can trust them.

  53. each examiner had enough of a queue that he was always busy.

    Work expands to fill the time. Trying to make the system work this way is more than simply futile.

  54. 6: The US’s main economic accountant general dude (his specific title eludes me off hand) INSISTS upon spending cuts because we just do not have the money.

    Really? We don’t have the money? When did we start “not having the money”? When GWB took a surplus and turned it into history’s largest deficit while the economy drifted into the tank and unemployment rose, I didn’t hear Boehner squawking about how we didn’t have the money.

    Except of course when the subject of Social Security came up. Curious.

    literally cannot believe that I’m hearing this “spend our way out of crisis” nonsense from you MM. Sure, it works in certain areas to a limited extent, and that’s fine, but is by no means the overall answer.

    As I said, I’m all for appropriate cuts to spending. When Boehner proposes substantial cuts in military spending and pulling troops from Afghanistan, I’ll pay attention. Otherwise, his just full of crxp.

    The bottom line is that the stimulus package that Congress passed was woefully inadequate, as most credible economists realized. That is why unemployment is high and and that is why it is going to stay high for the foreseeable future, unless and until more stimulus money is pumped into the sytem. And let’s be clear again: the people who make these decisions are not unemployed and are listening mainly to the banksters on Wall Street. As long as the stock market stays reasonably high, the rate of unemployment means absolutely nothing to these people because their steaks taste just as delicious whether 10% or 1% of people have jobs. The longer people are out of work, the harder it will be for them to find jobs that paid as well as the jobs they lost.

    Republicans favor austerity measures because the starvation of government systems designed to help citizens ultimately destroys those systems. Bringing them back is often impossible. At the same time, the government that fails to function for its citizens will be vociferously maligned as worthless by the same people who work tirelessly to ensure that the government will fail to function. This is the Republican agenda, as anyone with open eyes can see. We know who benefits from it (hint: it’s not the home-schooled Dittohead from Kansas).

  55. Matt, you obviously do not fully appreciate the thrust of her proposal. I think she is right and is moving in the right direction. I offered a couple of practical implementations. See my posts above.

  56. The estemed Professor Kristen Osenga sounds like a person who has little practical experience as a patent pratcitioner. All three of her proposed options are already in place: (1) statutory invention registration; 2)expedited examination; and (3) regular examination. The only thing truly novel here is the proposed reduced patent term which doesn’t make much sense in most cases because litigation can be a 5 to 15 year trailing edge. If there is any chance a patentee will want to enforce a patent, there is only one option for them under the professor’s scheme, which sounds a lot like what Kappos is proposing; except Kappos will get higher fees for it, and maybe be able to afford better examiners.

  57. Should I get my issued patent tomorrow for an application I filed today?

    Obviously not, because you’d have way too many examiners if one was sitting around idle when you decided to file your application. Even leaving aside the high probability that your first action would be a rejection.

    If not, then what is a reasonable time? If you say 6 months, why not, 12, or 18? At some point it becomes clear that the “backlog” is not the problem everyone seems to think is it.

    You’re right. Numbers are a continuum, so clearly none of them are reasonable.

    Just for fun, though, I’m sure someone could do some math based on the variance in filing rate to find the maximum staffing level for each art unit such that each examiner had enough of a queue that he was always busy. Whatever backlog would remain in that model would be the best we could reasonably hope for. Which, of course, would be unreasonable to hope for, but it’s important to have a target figure.

    Based on pure speculation, I’d say that if you staffed the PTO optimally the vast majority of applications not claiming priority would be first published as issued patents.

  58. “While, according to Mooney, everyone is so worked up about the backlog, no one has proposed what a reasonable pendency should be.”

    As soon as it can be processed? Classification, examination. Maybe a week give or take.

  59. “Government monopolies are inefficient per se.”

    Including exclusive rights to exclude?

    Ned, you’re on a slippery slope…

  60. RWA, until we privatize the system and let our dollars talk, we will not have an efficient system and can never have an efficient system.

    Government monopolies are inefficient per se.

  61. While, according to Mooney, everyone is so worked up about the backlog, no one has proposed what a reasonable pendency should be. Should I get my issued patent tomorrow for an application I filed today?

    If not, then what is a reasonable time? If you say 6 months, why not, 12, or 18? At some point it becomes clear that the “backlog” is not the problem everyone seems to think is it.

    It’s just another chicken little talking point to justify attempts at gratuitous deconstructionist intermeddling masquerading as “reform” conduced in reponse to “the backlog.”

  62. Bad Joke, I would add, let the examiners work for private companies or foreign patent offices anywhere in the world and essentially convert public examination into a private examination.

  63. “Why don’t we simply register patents, give them no presumption of validity until actually examined, and conduct examinations via the re-examinations option.”

    Ned, if this is really how you feel, why don’t you just move your practice to Europe or Japan – bastions of IP protection.

    LOL

    Posted by: RWA | Jun 04, 2010 at 12:15 PM

    RWA, since you seem to have read the article, you know that this is what in fact was proposed by the good professor — in essence if not in detail.

    I would add in addition to this a new “private examination” that could be filed at any time with an appropriate fee that would require the patent office to review the private examination for sufficiency, and if sufficient, grant the claims based upon the private examination. But unless the patent office agreed that the private examination was sufficient, the claims would continue to be unexamined and essentially unenforceable.

    Today, many of the patent office in the world provide such “private examinations” in the form of validity opinions. I would extend this further to allow any private entity to conduct such examinations for any fee they willing to charge. In this manner, price would control quality and time. We would no longer have to trade off price, quality and time in a one solution takes all environment.

    The good professor essentially proposes the system of private examination when she proposes an expedited examination that requires the submission of a detailed search report an explanation as to patentability. This essentially is the same thing as what I propose to be the “private examination.”

  64. James Daily, you’re saying what I’ve been on about for years now. If you want good examiners cheap, let them live anywhere.

    Especially if you’re hiring licensed patent attorneys, there’s just no reason that they MUST live in DC except bureaucracy. Do away with that, and you’ll fix a lot of the examination problems.

  65. Mooney, what in the world does your misinformed rant have to do with patent pendency?

  66. “There are no credible economists who believe that “spending cuts” will “boost the economy.” Or if there are, they can’t explain how such “spending cuts” could work to achieve that goal. ”

    Are you out of your gourd? The US’s main economic accountant general dude (his specific title eludes me off hand) INSISTS upon spending cuts because we just do not have the money. Yet Congress ignored him for the past 10 years or so. Maybe you didn’t notice the 11 trillion dollars we’re in debt for?

    link to brillig.com

    Sorry, 13 trillion.

    But you’re right, he didn’t say it would “boost the economy” he says that the spending cuts are necessary to prevent all out collapse of the economy.

    “And of course Boehner would never dream of cutting the most wasteful spending by our government, which is the money we are spending to fight pointless wars.”

    Actually the accountant general dude specified that as one of the major things to cut.

    I can get back to you later on if you’re interested in knowing who the (apparently) only man in washington with his fiscal head on straight. If you’re interested in the subject you can hear him make a speech in one of the Lawyer2lawyer podcasts that they host.

    And just btw, word on the street is that a huge number of economists and investors are now believing that there is a national debt crisis (mostly european, but it will effect the whole world) brewing that’ll make the housing bubble look like a children’s bday party.

    I literally cannot believe that I’m hearing this “spend our way out of crisis” nonsense from you MM. Sure, it works in certain areas to a limited extent, and that’s fine, but is by no means the overall answer. The answer is to stop being rtarded by not taking on so much debt.

  67. What does the most powerful Republican in the country think about the current unemployment rate? Here’s Minority Leader John Boehner:

    Jobs report underscores the need to repeal & replace #ObamaCare, & pass the spending cuts economists say we need to boost the economy.

    There are no credible economists who believe that “spending cuts” will “boost the economy.” Or if there are, they can’t explain how such “spending cuts” could work to achieve that goal. There is no evidence that “spending cuts” have ever succeeded in “boosting the economy.” And of course Boehner would never dream of cutting the most wasteful spending by our government, which is the money we are spending to fight pointless wars.

    You want to get people back to work? Give them something contructive to do. That puts money back into the system and it actually gets things done that need to be done. Including examining patent applications so the good ones get granted and the crxppy ones get tossed in the trash can.

  68. If you have a cite for that I’d like to read it that’s lolable.

    He said it during his interview on 60 Minutes.

    It’s not “lolable” so much as terrifying, considering the source.

  69. “On the obliviousness scale, that’s right up there with Scalia’s statement that torture isn’t “cruel and unusual punishment” because nobody ever said torture is punishment.”

    If you have a cite for that I’d like to read it that’s lolable.

  70. I must admit Dennis, your website is quickly replacingg Chism and Horwitz. Look out Thompson West might be coming to publish your articles

  71. 1) who said the backlog is a problem?

    About a hundred different commenters here, on a bi-weekly basis, at least, every week for the past four or five years.

    Unless they were all sockpuppets.

  72. 1) who said the backlog is a problem?

    The PTO’s only job is examining applications, which it is required by law to do, and you’re not convinced its inability to examine applications is a problem?

    On the obliviousness scale, that’s right up there with Scalia’s statement that torture isn’t “cruel and unusual punishment” because nobody ever said torture is punishment.

  73. Remember: Republicans vehemently opposed additional stimulus measures that would create longer-lasting jobs (e.g., repair of the country’s old, failing infrastructure; development of new rail systems; more research grants, etc.).

    You thought they’d be lining up to provide long-term employment to a bunch of Democrats? That’s just what the Democrats want!

  74. “I haven’t a clue how to address an ever-growing backlog of applications awaiting examination”

    1) who said the backlog is a problem?

    2) how bout the Office revise the count system (which they have done) the examiner stop trying to game for counts, and just getting the f#$k to work?

  75. Quite frankly, I haven’t a clue how to address an ever-growing backlog of applications awaiting examination short of either changing, in whole or in part, to a registration system or hiring a flood of new examiners.

    Ding! Ding! Ding!

    How many years have I been proposing this?

  76. OT

    Our recession, factoring out the temporary, government-created census jobs:

    link to calculatedriskimages.blogspot.com

    Remember: Republicans vehemently opposed additional stimulus measures that would create longer-lasting jobs (e.g., repair of the country’s old, failing infrastructure; development of new rail systems; more research grants, etc.).

  77. In any event, surely there are now enough out-of-work patent attorneys who can hit the ground running and examine those patent applications on the cheap.

    Yes, but how many of them can move to Alexandria? I know at least one who would jump at the chance to become an examiner except that he has a mortgage and family tying him to his current location. The PTO needs to embrace either satellite offices or, better yet, on-site training followed by working from anywhere.

    Anyway, from the Inventive Step blog (since the PDF of Prof. Osenga’s essay is blank for me):

    Second, she proposes a shorter patent term for applications that are examined quickly, maybe five or six years. She envisions this track being used in technology areas that change quickly where new inventions have short lives and are quickly outdated.

    If the invention has a short life and is quickly outdated, then the patentee will simply stop paying the maintenance fees once the invention ceases to be commercially valuable. I’m not sure there’s a need to complicate things with different patent terms, at least not for those reasons.

  78. As a professor at my law school alma mater, I’m pleased to see Kristen is getting some notice here on Patently-O. Also, unlike some other IP law professors who have become “notorious” for what they say about patent law even though THEY HAVE ABSOLUTELY NO SCIENTIFIC OR ENGINEERING DEGREE, Kristen does and in a tough discipline at that (EE): link to law.richmond.edu

    Same holds for Chris Cotropia (EE from Northwestern), also from my law school alma mater, and who has significaant litigation experience: link to law.richmond.edu

  79. Zippity Dudas’ claim that the PTO cannot hire its way out of the backlog problem never rang true to me. In any event, surely there are now enough out-of-work patent attorneys who can hit the ground running and examine those patent applications on the cheap.

  80. @Amy “As for the proposal for the 5-year patent term, some thought would have to be given to TRIPS Art. 33, which seems to lock members into a 20 year minimum.”

    I’d need to give TRIPS a thorough read. However, I sense that it could be easily circumvented through the use of terminal disclaimers.

    Initially I was somewhat intrigued by a 5-year patent idea because I’d like to see some kind of incentive for putting the technology into public domain quicker. However, after some thought I came to the conclusion that the inventors/assignees in the U.S. already have an opportunity to disclaim a portion of the term or fail to pay the maintenance fees and thus obtain a shorter term patent. I still think that we should break out more technologies into bins of different durations so as not to stifle the rapid advancement of certain rapidly developing fields. Varying the term based on the area is not a novel idea. We already have design and plant patents of different durations.

    As for all the fast track ideas that require additional payment, they involve moral hazard in that, given a more lucrative fast track option, the USPTO will have an incentive to become even more backlogged on the regular and deferred track applications. Ultimately this will only result in increased fees. Also, if we couple the fast track with an issuance deadline, then we have a good chance of seeing examination quality go down. In the worse case, we will have more expensive lower quality examination. The latter can cuts both ways, either more “bad” patents or narrower patents issued depending on other factors not to exclude the skill/motivation of the examiners.

  81. Quite frankly, I haven’t a clue how to address an ever-growing backlog of applications awaiting examination short of either changing, in whole or in part, to a registration system or hiring a flood of new examiners.

    This proposal for a tiered system strikes me as a band-aid that would likely have no meaningful effect for addressing the growing backlog. As things now stand all applications basically sit in a single to-be-examined inbox. All this proposal appears to do is convert a one inbox system into a three inbox system. The same number of applications remain to be examined, and as new applications come in they will be consigned to one of the three.

    In terms of absolute numbers, the backlog would not be affected. The only thing that can change this state of affairs is an examination process that significantly speeds up examination to the point that the current backlog is meaningfully reduced and newly filed applications are likewise rapidly examined such that the backlog continues to decrease.

    I am pleased to see some “out of the box” thinking being brought into the executive ranks of the USPTO, but I simply do not see how this specific proposal would result in any meaningful reduction in the number of current and future applications comprising the backlog.

    I would be quite interested in learning about other approaches holding some measure of promise to actually ameliorate the situation.

  82. “Why don’t we simply register patents, give them no presumption of validity until actually examined, and conduct examinations via the re-examinations option.”

    Ned, if this is really how you feel, why don’t you just move your practice to Europe or Japan – bastions of IP protection.

    LOL

  83. “The proposed system does too little to deter applicants from choosing the prioritized
    examination track, which in the end will just end up with the prioritized track
    suffering from the same backlog as the current system (or even worse, with the
    Patent Office issuing patents without sufficient scrutiny, resulting in even more bad
    patents)”

    The only thing you really need to read in this paper.

  84. Why don’t we simply register patents, give them no presumption of validity until actually examined, and conduct examinations via the re-examinations option.

    This procedure would reserve examination of those patents that would actually be enforced.

  85. Just curious: how many practitioners out there are noticing an increase in clients requesting accellerated examination?

  86. Ms. Osenga appears to be a Sunday Driver on the patent prosecution road…

    Everyone on the patent prosecution road (highway?) to Pharmaceutical Towne is a Sunday driver. What’s the point of putting in a toll road if nobody needs to get there any faster?

  87. …with all due respect to her impeccable clerking and teaching credentials, only two years of actual prosecution.

  88. But if they are low volume filers, who cares what they do?

    Considering that low-volume employers are cumulatively the most significant creators of jobs, why so dismissive of the possibility that low-volume filers might make up a significant part of the PTO’s workload? Do I detect a hint of large-entity snobbery?

  89. “It seems to me that such an instrument would be a patent in name only.”

    Any patent “in name only” should carry the right to exclude. If it doesn’t, it ain’t a “patent.”

    A primary patent without a right to exclude. What’s the point, what a silly sophomoric idea. Why not just put mud flaps and air freshners on the PTO, or better yet, pink fuzzy dice (for the ladies).

  90. From the article: “However, making this track an option simply upon payment of an additional fee will not discourage many big companies from taking the quicker route, regardless of the
    technology involved.”

    Wrong. Inhouse counsel always feels pressure to keep total prosecution costs within their budget. They simply can’t afford to take the more expensive quicker route regardless of the technology at issue because it hampers their ability to file and prosecute the maximum number of patent applications.

    Of course, inhouse counsel for big companies may not be deterred from the more expensive route in individual cases that are sufficiently important. But they surely would be deterred from wholesale use of the more expensive quicker route — unless they are low volume filers. But if they are low volume filers, who cares what they do?

  91. It seems to me that such an instrument would be a patent in name only.

    The greatest economic effect of most issued patents under the current system is to promote the sale of file cabinets.

    That, and line the pockets of those companies that pay maintenance fees.

  92. I scanned Prof. Osenga’s article, but was completely thrown by her suggestion of a “primary patent” that carries no right to exclude. It seems to me that such an instrument would be a patent in name only.

  93. I agree completely with Amy, options are definitely a good thing, it’s just a matter of what the options are. At least the current PTO administration is trying to think outside the box to come up with creative solutions. Also, it is important to forget that whatever we wind up with might not be what is currently proposed, as we still have the whole comment period to get through.

  94. While listed as a registered practiioner, Kristen Osenga is a professor and thus apparently does not make her daily bread from patent prosecution. However she notes that she has “thought about patent pendency quite a bit.”

    Perhaps. But so have we all.

    The ideas about patentLITE (5 years – straight out of the quirky Lessig repetiore) and a “Sunday Driver” patent are just diluting the strength and purpose of real patents. If people just want recognition, then file really narrow claims that are easily allowed and worked around. If you want a 5 year patent, how about this – don’t get a patent at all.

  95. I like several of the points made in Osenga’s paper. Also, there is something to said about both Osenga’s and Kappo’s proposal in that both are seeking to accomplish some measure of patent reform based on patentee choice. As for the proposal for a 5-year patent term, some thought would have to be given to TRIPS Art. 33, which seems to lock members into a 20 year minimum. Thanks Dennis for hosting a forum for these short papers–they provide valuable insights always.

  96. All of this smells like old fish wrapped in new newspaper.

    You want to get a patent faster? You do the work of the Office with an ESD type of “pre” examination.

    Gee, we got a lot of work here – Hmmm, maybe the customer will just go away, that’ll solve the problem, won’t it?

    The Office cannot even deliver on current promises of timely examination – why the f’n h_ll should anyone believe that promises of even quicker examination will mean anything?

    Here’s a novel idea – roll up your sleeves and get to work.

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