Cumbersome and costly, patent process ripe for reform
Published: April 4, 2011
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Despite having a relatively low public profile, one innovation strategy seeks to revive the Founding Fathers’ respect for invention.
A combination of both legislative and process reform is being planned to streamline and refine the patent system — the conduit for protection of intellectual property. The patent plan could reduce the enormous backlog of applications at the U.S. Patent and Trademark Office (USPTO) and, in the process, encourage the launch of innovative goods and services.
The proposed three-track reform model for the USPTO is designed to allow applicants to prioritize their patent applications, enabling the most valuable patents to come to market within 12 months. If successful, the reforms will meet the goals of reducing the average delay in patent processing times from 35 months to 20 months, adequately fund USPTO operations through user fees, and improve patent quality.
Atty. Abigail Byman says copyright and patent protections are an integral part of America’s historic fabric. This system has its beginnings within Article I, Section VIII of the United States Constitution, because the nation’s Founding Fathers wanted to spark discovery, innovation and invention. “It’s the efficiency of the current patent system that’s in question,” says Byman. “It takes a very long time to obtain a patent, and the process costs many thousands of dollars.”
Legal exclusion
Atty. Charles Riddle, owner of Riddle Patent Law, describes a patent as a legal right to exclude others from new inventions being sold, offered or published. The owner of the patent is responsible for legally enforcing his rights, and a different process must be followed for American, as opposed to foreign, patents.
Riddle can trace the patent concept to an era before the birth of America, when other countries respected the protection of intellectual property. This included exclusive rights to writings and discoveries, as well as the promotion of science and “useful arts.”
“Throughout American history there have been many vocal supporters of the patent system — such as Mark Twain,” says Riddle.
According to current law, an inventor cannot “sit” on a new discovery and expect protection. They must file for a patent one year from the first offer of sale and, if this step is ignored, the discovery becomes part of the public domain.
Patent protection ends 20 years from the first filing date. As a rule, the protection laws of foreign countries vary and many employ a stricter process.
Riddle emphasizes that a patentable invention must be novel and not obvious. Therefore, it is a huge undertaking to research this criteria.
“This process is mostly the inventor’s job,” says Riddle. “Patent attorneys can provide some legal help, but monetary restrictions with an attorney’s involvement in this phase are a harsh reality.”
Difficult process
At the USPTO, the patent attorney becomes the representative for the inventor in a very paper-intensive process. The case eventually goes before a patent examiner after a typical delay of 18 months to two years, followed by an additional long wait for the examiner’s decision.
“This is an uncaring system,” says Riddle. “The examiners, who are swamped with cases, regularly deny patents without offering articulated reasons why. The system has actually included rewards to the examiners for denial. An appeal process after a rejection consumes even more time.”
Riddle says the current system routinely creates a disastrous backlog of patent cases, thereby extending the delays inventors must endure. Additionally, examiners must be proficient in the technology associated with the patent, although it is unrealistic to expect anyone to know all of the details of modern science.
The fix for the patent system, according to Riddle, would include an increase in qualified technical staff at the USPTO. This would speed up the process, improve the quality of a first exam, and offer better feedback after rejection.
“The examiner should not put the burden for patentability on the client,” says Riddle. “Bringing a discovery to market is already so difficult. No one is just going to hand an inventor a bag of cash for an invention, and the subsequent commercialization of an invention creates great headaches.”
To further “tax” the inventor, a patent case can cost $10,000 to $15,000, depending on the situation’s complexity and amount of client preparation needed. Appeals add to these costs.
“The USPTO is a huge government operation, and I just don’t think much real change will occur, despite Obama’s call for revision to the process,” says Riddle. “Maybe the office will be able to cut the initial wait down to one year, but we’ll have to see.”
Hefty prices
Dan Flynn, Ph.D., associate dean of research and economic development at The Commonwealth Medical College, says the new school has already filed for one domestic patent at a cost of $40,000. International protection carries a hefty $250,000 price tag.
Dr. Flynn explains that an inventor can’t risk commercializing a discovery and generating revenue through a start-up company until patent protection is established. Because the USPTO has a backlog of 700,000 cases pending, it is obvious that profits from innovation can take a long time to materialize.
“Effective reform would be especially valuable for smaller companies who have a discovery and must generate revenues from commercialization as quickly as possible. On the global stage, with new technology, being the first to file is the only way to go.”
