Confidence in the Patent System

By David Freese

Acknowledgements

Erica Wissolik

Erin File

Michael Meehan

Sandy Yeigh

Long Answer – “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof”

Patents - An Overview

What it is: Right to Exclude

What Qualifies:

What is Required: Novel, Useful, Nonobvious

What is Prior Art:

Short Answer – Most Things

Quantifying the Issues

Quantifying the Issues

Examiner Limitations

1. 8 to 24 hours to do all of the work associated with examining one patent

2. Guidance on how to apply “novel” and “obvious” changes quickly

3. Must apply guidance to new technology not directly addressed

Examiner LimitationsMust be able to interpret this:

“A method for implementing quality of service (QoS) request information, comprising: a policy enforcement functional entity (PE-FE) sending a policy decision functional entity (PD-FE) a QoS request message including predetermined parameters; wherein the predetermined parameters are used to represent the QoS request information of the transport layer.”

-Patent application 709/223000

And then determine if it’s been done before, anywhere.

The Current Situation

Policy Objectives

1. Increase the confidence in the validity of the patents accepted by the USPTO

2. Strengthen the value of patent disclosures to the public domain and their definition of the scope of patent claims.

3. Maintain the strength of patent system as a tool for innovation across industries and size of companies (from independent inventor to multinational corporation)

Policy Alternatives

Expansion of the Peer-To-Patent System

Lowering the Legal Standard for Patent Invalidity

Developing Memorandums of Understanding with Standards Developing Organizations

Concept

Expansion of the Peer-to-Patent System

Relevant Prior

Art

Examiner

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ant

Relevant Prior

Art

Examiner

Applicant

Current

Lowering the Legal Standard for Patent Invalidity

Beyond Reasonable Doubt

Clear and Convincing Evidence

Preponderance of the Evidence

Developing Memorandums of Understanding with SDO

Contributions Drafts Standard

Recommendations

Congress Lower the Legal Standard for Patent Invalidity

USPTO Begin to Develop Memorandums of Understanding with SDO

Continue to Study Expansion of the Peer-to-Patent System

Questions