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3 Problems With How Patents Are Vetted

By William Vogeler, Esq. on December 28, 2017 | Last updated on March 21, 2019

Like the Darwin Awards, the Stupid Patent of the Month began as a way to point out the idiots in the human experiment.

Stupid patents, like stupid people, got what was coming to them. Following their stories, we laughed; we cried; they died.

Now it seems there was also some science to it all. Those stupid patents came from flawed DNA -- problems in the PTO. Here are three of them:

Fee Schedules

The Electronic Frontier Foundation, which publishes the Stupid Patent blog, says the U.S. Patent and Trademark Office issues too many invalid patents. Researchers say part of the reason stems from the fee structure.

Michael Frakes and Melissa Wasserman argue that the patent office needs to restructure its fee schedule "to minimize the risk that fee collections will be insufficient to cover its operational costs, while also diminishing its financial incentive to grant patents when collections are insufficient."

The law professors made the same observation in a paper years ago, but they really mean it now. Actually, they have more empirical data this time.

Repeat Applications

Another problem is the number of repeat applications that applicants can file for the same invention. That has led to many complaints by Ars Technica, a religious follower of the Stupid Patent evolution.

The tech site recast the new research this way: "Unlimited opportunities to refile rejected applications means sometimes granting a patent is the only way to get rid of a persistent applicant."

Review Time

Wasserman and Frakes also say the PTO needs to increase the time examiners spend on reviewing patent applications. EFF, a non-profit organization focused on digital rights, has been calling for reforms in patent review for years.

So are they blaming the PTO for stupid patents? Will the critics or the PTO go the way of the dinosaur?

In the meantime, a federal judge said EFF's stupid patent blog is protected speech. No word here whether the PTO is stupid.

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