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 The U.S.
Patent and Trademark Office (USPTO) is constantly advertising for examiners. Its workload is
overwhelming and the consequences are significant. Based on information on an extremely
well-written and researched article in the July/August 2016 issue of Popular
Mechanics magazine titled "The Greatest American Invention," the situation is practically
out of control. Similar to many other pieces published in the last few years, author
Scott Eden meticulously outlines the systematic failures of the current patent bureaucracy
and how, as is typical, mostly unqualified (i.e.,
utterly technically
ignorant) lawmakers in an attempt to 'reform' it pass regulations that
make matters worse. Unless you happen to be a large corporation, that is, thanks
largely to the 2011 Leahy-Smith "America Invents Act" (AIA).
The USPTO's attempt to quash the disruptive domain of the 'Patent Troll'
(a term coined by Intel lawyers) phenomenon of the
last two decades has resulted in scores of duly assigned patents being IPR'd
(inter partes review) by the very office whose examiners
declared the inventions to be original in the first place. The unexpected consequence
of the AIA is that the very same procedures designed to help invalidate intellectual
property (IP) claims contained in the massive portfolios
of patent trolls are being effectively used against small-time patent holders. Teams
of lawyers, paralegals, and specialized prior art searchers perform extensive USPTO
archive document hunts, and are having a lot of success.
The burden of proof of originality is and always has been primarily the responsibility
of the applicant. Patent examiners can only allocate a relatively small amount of
time to research. The best defense, as the football analogy goes, is a strong offense.
Hiring a legal team is no guarantee of a bullet-proof patent. When you file a patent
application, be sure to have exhaustively searched for prior art yourself, and do
not be surprised to learn what you honestly thought was an original idea is in fact
not. The USPTO has an entire section devoted to
prior art searching, so be sure to use it.
"The Greatest American Invention," is a fairly long article, but
well worth reading - especially if you are a patent holder or expect to be one someday.
Posted November 3, 2016
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