Saving the Patent Office

The New York Times has once again published an intellectually challenged superficial story that fails to delve into what is wrong with the patent system. In "U.S. Sets 21st-Century Goal: Building a Better Patent Office" the Times seems to consider the problems with obtaining a patent to be essentially administrative in nature.  The Times writes: "The delays and inefficiencies are more than a nuisance for inventors. Patentable ideas are the basis for many start-up companies and small businesses. Venture capitalists often require start-ups to have a patent before offering financing. That means that patent delays cost jobs, slow the economy and threaten the ability of American companies to compete with foreign businesses. ... Much of the patent office’s decline has occurred in the last 13 years, as the Internet age created a surge in applications. In 1997, 2.25 patents were pending for every one issued. By 2008, that rate had nearly tripled, to 6.6 patents pending for every one issued. The figure fell below six last year."

While antiquated and inefficient administrative concerns may play a roll, the Times failed to dig deeper.  The Times notes that: "Much of the patent office’s decline has occurred in the last 13 years, as the Internet age created a surge in applications."(emphasis added).  It was not the internet that created the surge in applications, but a lousy court decision (State Street Bank v. Signature Financial Group, 1998) which opened the door for numerous patents on abstract concepts, specifically allowing patents of business methods. Since 1998 the scope of what people believe can be patented has continued to expand to the point that entire concepts have become patented. Patents are even being granted on natural products such as genes.  Consequently, the US Patent Office is being flooded with patent applications that would never have been granted prior to the State Street decision.

The Electronic Frontier Foundation has a webpage concerning "bad" patents, which makes for an excellent read.

Also, given the existing absurdity of patent law today, there is a growing body of research that demonstrates that patents actually retard progress rather than promote progress.  The reason is simple, by being able to patent concepts the patent holder asserts that any competition using a vaguely similar method constitutes an infringing activity and promptly sues the competitor.  So much for free-market principles.

Building a better patent office is not simply a case of modernizing the USPTO office or adding more staff as the Times would have us believe.  The patent system itself needs to be overhauled to eliminate the ability to patent business methods, abstract concepts, and natural products.