Comment by throwawaykf | Hacker News Reader

Comment by throwawaykf | Hacker News Reader

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Another frequently repeated myth. Actually:

1) Pretty much each and every action has a fee attached [1].

2) Each rejection has a 3 - 6 month time limit to be responded to.

3) Most applicants will fight every rejection to preserve their rights.

4) Granted patents have (admittedly higher [3]) fees due only every 3, 7 and 11 years, whereas patents in prosecution typically have fees due every 3 - 6 months. However, granted patents are not guaranteed to be renewed, which means their contribution is reduced [4, 5].

So if you want to talk perverse incentives, the USPTO actually have greater incentive to issue more rejections and collect frequent short-term fees on applicant responses, than they do to issue patents and collect infrequent long-term fees on renewals.

[1] http://www.uspto.gov/web/offices/ac/qs/ope/fee031913.htm

[2] http://www.uspto.gov/web/offices/ac/qs/ope/fee031913.htm#mai...

[3] http://www.patentlyo.com/patent/2010/06/patent-maintenance-f...

[4] http://btlj.org/data/articles/20_04_02.pdf

[5] http://www.uspto.gov/about/stratplan/ar/2011/mda_06_01_03.ht...

This myopic myth-busting of yours assumes that the number of patent applications remains unchanged regardless of how many are granted when in reality more granted patents fuels the fire of more applications. If the USPTO did the right thing and severely limited or even eliminated software patents there's no question that the number of applications, and thus the USPTO's overall budget and staffing levels, would decrease dramatically.

Apologies for the late response. I don't check regularly.

1. There is no evidence to back your thesis that "more granted patents fuels the fire of more applications". See this graph [1] of allowance rates in 2000 - 2005 (for an explanation, ask a patent attorney or agent about "Dudas") and this table [2] for number of applications over that time period. There is zero correlation with the steep drop in allowance rates and the rate of new patent applications over the relevant time periods.

2. Why do you think your idea of "the right thing" is actually the right thing, if any such thing exists? Just because the HN echo chamber agrees with you? As I have shown time and time again, the Internet, especially tech media, has no real knowledge of how patents work.

3. The Supreme Court, let alone the CAFC, the PTO and various courts, cannot even define what "software patents" are. How would you begin to limit or eliminate them?

4. None of the above entities have found sufficient rationale to exclude business method patents, let alone software patents. Contrary to popular belief, it's not because they are stupid or technically illiterate, it's because they are very careful thinkers and make the best of what they can given their boundaries.

5. The budget and staffing of the USPTO is, unfortunately, mostly independent of the number of patent applications they receive. Currently, they generate more fees than they are allocated a budget for, and the federal government siphons away the rest.

[1] http://www.patentlyo.com/patent/PatentlyO2006059.jpg [2] http://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm

1. Thanks for the second link - both "Total Patent Applications" and "Total Patent Grants" show a similar upward trajectory, both roughly doubling since the late nineties. The first link is uninteresting - acceptance rate fluctuations don't matter much in the face of steadily rising numbers of both applications and grants.

2.3.4. I come to my opinions as a veteran professional programmer, a named inventor on three US software patents (which I now regret signing off on), a software business owner, and a long-time avid follower of this issue. I'm sure that others, perhaps yourself included, may know more about the ins and outs of the patent legal system than I do, but I submit that you and your patent-defending ilk can't see the forest for the trees. The forest is that the vast majority of software-related patents are total bullshit. Given your role here as patent apologist, I don't think I will try to make a case to you why that is; I don't think that would be time well spent.

5. Find me a chart like your second link which shows the staffing levels of the USPTO over time. I'll bet it shows the same upward trend as patent applications and grants.

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