John Miller from Rockwell Automation and I did a joint presentation about how to “deal with” Patent Trolls (namely, don’t feed them). Surprisingly, I got the largest reaction of the event from the crowd when I proposed raise the patent filing fee to $50,000. There was literally a “gasp” followed by several vocal protests that finally resolved to some nervous laughter. In any event, there were several folks lined up outside the room to discuss the idea with me and more than a few that thought it was a novel approach that should be explored. The GC of the USPTO was asked about raising the filing fee during his presentation later in the conference and he responded that they floated that idea several years back and it was shot down by practicioners. So, he continued the new rules are the approach the USPTO has decided to take, and you will have to adjust.
Monday, October 29, 2007
Monday, October 8, 2007
The Government Accountability Office (GAO) recently published a study where the title says it all: “Hiring Efforts Are Not Sufficient to Reduce the Patent Application Backlog.” The full report is here. First, the report found that over the past 5 years, the PTO has based its hiring upon its funding rather than on the backlog and expected workload. Second, 70% of attrition was from examiners who have less than 5 years of experience. Finally, the report notes that 67% of examiners identified production goals as the primary reason that they consider leaving.
Thursday, October 4, 2007
Wednesday, October 3, 2007
The theory behind this blog is simple: when fees for patent applications are raised, companies will respond by filing fewer, higher-quality patent applications. Of course, that would mean that we should be able to show a negative relationship between filing fees and patent applications filed (stay tuned for the actual data). However, filing fees have been and remain so low (currently $1,000) that they are below the demand curve so the impact of raising the fees will only be felt if the fees are increased on a massive scale, say to $50,000 per application.
Consider this, the AIPLA, in its annual economic survey states that the median charges for US Utility Patents of minimal complexity is $6,500, relative complexity is $8,600 to $12,000 depending on the field of invention (should a minimally complex case be filed at all?). So, the last thing a company considers in filing a patent application is the cost of the filing fees. They should be much more interested in squeezing the outside counsel bills --- “Don’t do a prior art search, that will cost more than the filing fee.” This is a small price to pay to file a case that may someday be worth millions in reduced license fees or litigation expense, no wonder the default position is to file every application possible.
What might happen to the decision process if the fee was raised to $50,000:
Prior art may be found and considered to help define the scope of the invention;
In-house IP counsel may be called upon to make tough choices between filing cases or not (the most important cases would get filed);
Attorneys fees will go from being the largest to the smallest portion of the cost of the application (this may allow the flat fees to rise);
And, most importantly, fewer cases will be filed permitting the USPTO to actually do its job (more about this later).
By now creating a limited resource (the number of cases to be filed), market forces would naturally begin to separate wheat from chaff and improve the quality of patent applications well before the USPTO gets involved in the process.