Much has been made of recent patent applications--such as one involving emoticons on cell phones--that seem a far cry from real breakthroughs like the lightbulb. And while many of the weakest patent applications are eventually rejected, some experts believe that an overworked and underfunded U.S. Patent and Trademark Office is issuing more and more patents that never should have passed their first review.
Increasingly, patents of dubious quality are ending up at the heart of legal disputes. And when those disputes turn ugly, the results can hurt everyone, making all of us pay more for technology products and wasting our time through increased inconvenience.
For example, as we went to press, a patent case between NTP and Research in Motion threatened to force 3.2 million BlackBerry users to find another wireless e-mail device. And patent disputes affecting Microsoft have necessitated changes to the way software updates over the Internet and added extra clicks to the process required to run ActiveX controls in a browser.
Even IBM, which receives far and away the most patents, acknowledges the problems. As a result of patent fights, consumers have to pay more for software and hardware--"and ultimately there are fewer products in the market because companies decide not to make [them]," says David Kappos, IBM's vice president and assistant general counsel for intellectual property.
The patent office faces a perfect storm: According to USPTO commissioner John Doll, the greatest number of new patent applications are for business processes or computer hardware and software innovations. And the former is one of the most difficult types of patent to evaluate.
"We do not have the ability to examine all the new cases that are being filed, and that's especially true in the high-tech areas," Doll says. The USPTO started 2005 with a backlog of 500,000 new patent applications, and ended the year with a backlog of nearly 600,000.
Examiners are supposed to evaluate applications against "prior art"--similar, earlier inventions. But in areas like software, "it's impossible for everyone to have their hands on every relevant piece of art" in the given time, says Kappos.
Patent examiners have a set amount of time--an average of 20 to 30 hours for computer software and hardware--to review a patent, handling any appeals and updates from the applicants as well, before issuing a final approval or rejection, says Robert Budens, president of the Patent Office Professional Association that represents examiners.
That time frame, Budens says, has not changed since 1976, despite added procedural complexity and accelerating technological advancement. If examiners exceed the time limits, they lose their jobs.
"From an examiner's point of view," says Budens, "the quality [of patent examinations] is suffering" as a result.
To help alleviate the patent backlog, the USPTO plans to hire 1000 new examiners every year for the next five years, training each examiner for eight months before they're put on the job.
IBM and the Open Source Development Labs are working on several reform initiatives, including a source-code database that examiners can search for examples of prior art. They also want outside experts and specialized software to provide early feedback to examiners on patent applications' quality and complexity.
Other long-term solutions under discussion include shifting more of the burden of proving that an invention is unique onto patent applicants.
But none of these solutions are a panacea, says patent attorney Peter Zura, who writes the 271 Patent Blog: "As long as modern patent examination has existed, there have always been, and always will be, bad patents."