IF ALL THE WORLD WERE PAPER

The IPKat's friend Tom O'Shea has drawn his attention to the following item.

MSNBC reports that the US Patent and Trademark Office is in danger of drowning in a sea of paperwork. Unless long-overdue reforms are put in place and the agency’s budget is expanded, it is reported, the current backlog of patent applications will escalate and the average time it takes to win a patent — now more than two years — will double in five years, according to the acting head of the agency, Jon W. Dudas. And that, he says, could have a chilling effect on innovation:

“At what point will venture capitalists feel like it’s no longer useful to invest in certain technologies because they don’t know that they’re going to get a patent and actually get a return on their investment?”.

The impact of allowing the patent logjam to worsen would be felt by more than just the companies and individuals currently waiting to hear the fate of nearly 500,000 patent applications that are collecting dust until an examiner can be assigned to review them.

According to John R. Allison, a professor of Intellectual Property Law at the University of Texas at Austin:

“Depending on the technology area, [review time] ranges from an average of about eight up to maybe 30 or so hours for biotech applications”.

The result is that some patents aren't as thoroughly reviewed as they should be. In the case of a seemingly minor patent — like the "Beerbrella" (U.S. Patent no. 6,637,447) or a method for using a tree swing (U.S. Patent #6,368,227) — there is probably no harm done. But if a duplicate patent is awarded for a far more lucrative and possibly unique idea, a court dispute could cost millions.

Private parties in multimillion-dollar patent infringement cases often have a much greater incentive — and can bring much greater resources to bear – than the examiner who originally issued the patent, said Allison. Someone sued for patent infringement, for example, may be able to conduct a more thorough search that finds prior examples of the technology or invention — successfully challenging a patent that its owner had counted on for big profits.

Money is one of the major reasons for the current patent logjam. In 1991 the financial burden of granting patents was shifted from taxpayers to patent applicants through the establishment of so-called user fees. But over time, those fees became a politically attractive source of funds to help balance the federal budget without raising taxes. So Congress began raiding the patent office piggy bank; as of last year, more than $650 million had been siphoned off to pay bills for other government functions. Meanwhile, the volume of patent applications has mushroomed. At the patent office, they call it “technology creep” — the explosion of new technologies, many of which didn’t exist 20 years ago, when most patent applications were evenly divided among electrical, chemical and mechanical inventions. Today, far more complex fields like semiconductors, biotechnology and, increasingly, entirely new areas like nanotechnology make up a much a bigger share of the agency’s workload. And the number of new applications continues to set records every year.

In the 145 years from its founding in 1790 until 1935, the U.S. Patent Office issued its first 2 million patents. It took just 41 years to grant the next 2 million patents. The next 2 million patents took only 23 years.

Today patent examiners have to slog through 50 percent more existing patents than they did 25 years ago; every new patent issued just adds to the pile that the next examiner has to search. And with more applications being filed, the pressure on examiners from applicants has increased, according to Ronald Stern, head of the Patent Office Professional Association, the patent examiners union. Exacerbating the patent office's struggle to keep up with an ever increasing number of applications is its own primitive technology. Despite the flood of patents issued each year for advances in collecting, analyzing and storing information, the office is still transitioning from a paper-based system that hasn’t changed much in 200 years. Although more than half of applications are now made electronically, the new system — which stores electronic images of paper-based applications — fails to take full advantage of electronic document handling.

In the meantime, the office isn't waiting for Congress to cough up more money. More than 1,000 employees now telecommute, saving office space. Operations housed in 18 buildings spread over a mile and half are being consolidated into some 2 million square feet in five linked buildings.

The IPKat thinks this nightmare scenario is an inevitable consequence of incompetence, ineptitude and underinvestment; after all, no other patent office in the world seems to be suffering in the same way. His friend Merpel, in contrast, wonders if the fact that the USPTO is being engulfed in all this innovative paper is a sign of the rampant success of the patent system as an incentive for inventing and investing.

The paperless patent office here
Patents for paper here and here
Swamped by paper here
Paper from swamps here