While I agree the USPTO should be better funded and examiners should have more time, what I find problematic is the attitude of the current approach, and of your solutions. That there is a torrent of bad patents, and the USPTO needs enough resources to fight them off, or they'll break through.
No! The USPTO is not a defending army trying to keep out barbarians. It grants patents. If it does not have time, or resources, then it does not grant patents. If the patent examiner feels they don't have enough time, the patent is denied - too bad. You can re-file, paying a fee for extended examination.
I feel any reform which does not change this approach will have only limited effectiveness, as patents will simply increase their complexity to make them more difficult to examine, until junk makes it through again. The USPTO must have the ability to say no.
P.S.: I feel I should bring up non-obviousness - prior-art is not the only disqualifier. It should disqualify all of these "do specific but obvious thing, on a computer" "inventions", prior-art or not. Perhaps the filer could be required to explain why their invention is non-obvious, saving the examiner some time.
> No! The USPTO is not a defending army trying to keep out barbarians. It grants patents. If it does not have time, or resources, then it does not grant patents. If the patent examiner feels they don't have enough time, the patent is denied - too bad. You can re-file, paying a fee for extended examination.
Rejections can not be arbitrary. If the examiner can't find prior art but wants to reject the application, what are they going to write in their office action, the response to the patent application? "I couldn't find anything, but I don't like your application, so I'm going to reject you." As a junior examiner, everything I did had to be approved by someone. There's no way that would get approved. I'd be told by my primary examiner to go back and find something if I want to reject, and by the way, I don't get any extra time.
I haven't heard of any examiner being fired for poor quality, but repeatedly writing rejections with no basis would probably get an examiner fired for poor quality eventually.
And the applicant can appeal. As far as I'm aware the examiner gets no time at all to respond to an appeal! (I didn't get any time for the one appeal that I had.) The examiner does get time to respond to an RCE or continuation. It doesn't take too many appeals to seriously impact an examiner's productivity metrics, and if the examiner falls below 95% of their target for too long, they're likely to be fired. [0]
A lot of attorneys complain that the USPTO is far too harsh. And I think they have some fair points. Only about half of patent applications are issued as patents within 3 years. The vast majority of applications (over 80% last I checked) are rejected in the first action. (I rejected every application I received in the first action.) The process needs to be fair. So there need to be mechanisms to prevent the USPTO from simply rejecting everything to be safe. If the USPTO rejects everything, why even bother having a patent system? (Note that I'm not defending the USPTO's current system, which I think is absurd to give the examiner no time for an appeal.)
> P.S.: I feel I should bring up non-obviousness - prior-art is not the only disqualifier.
I'm afraid that you don't know what you're talking about here. Obviousness is a prior art rejection, and it's the most common type of prior art rejection. An examiner could go on "official notice" and just declare something obvious or known without prior art, but as far as I'm aware that never works.
[0] The way these metrics work (roughly) is that certain actions get a time added to a counter. Then your "production" is calculated as the amount of time you earned (the counter) divided by the amount of time you spent in examination.
You are telling me how things currently work, I am talking about how they should work.
I never said to reject things arbitrarily. Only if there is not enough time for an examination. Think of it as putting things on a backlog. If faster turn-around is wanted, more funding can be provided. Lack of funding should only make the work slower, not broaden patentability.
> I'm afraid that you don't know what you're talking about here. Obviousness is a prior art rejection
I'm sorry but this is absurd, and if the patent office functions using this definition makes it no less absurd. Why would US patent law require both non-obviousness and lack of prior art, if the two are the same? The fact that claiming obviousness without prior art "never works" in the USPTO is just evidence of its deep dysfunction.
I sympathize with working in a bureaucracy that seems built to produce bad outcomes, but conflating arbitrary rejections with asking for more time/putting things on a back-log, obviousness, and prior art, really does not inspire confidence. It smells like reasoning deformed by a broken bureaucracy, rather than sensible application of principles or the spirit of the law.
> Why would US patent law require both non-obviousness and lack of prior art, if the two are the same? The fact that claiming obviousness without prior art "never works" in the USPTO is just evidence of its deep dysfunction.
I agree that this conflicts with the colloquial use, which may be why European law says "lacks inventive step" instead of "non-obvious".
I get the impression that "prior art" to you means that the claimed invention was previously disclosed, which is a rejection under 35 USC 102. But that has to be exactly as disclosed. It's a high bar to meet.
> It smells like reasoning deformed by a broken bureaucracy, rather than sensible application of principles or the spirit of the law.
> I agree that this conflicts with the colloquial use
The law you cite says, distilled:
A patent [..] may not be obtained [..] if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious [..] to a person having ordinary skill in the art to which the claimed invention pertains.
This is, if anything, a superset of the colloquial use of obvious. It covers not only everything obvious to practitioners in the field, but also things that are only obvious if you are familiar with every latest invention in that field.
To clarify: You seem to believe that looking at it in terms of "differences" narrows the scope of what is obvious. Why? "Prior art" is, literally, the sum of human knowledge and invention (up to some date). To say something is obvious in terms of differences from prior art means that, if there is an obvious way (to someone skilled in the art) to accomplish the claimed invention using any prior knowledge or invention, then that invention is itself obvious.
How could you read this any other way? How could something be obvious, but become not-obvious if you referred to prior art?
No! The USPTO is not a defending army trying to keep out barbarians. It grants patents. If it does not have time, or resources, then it does not grant patents. If the patent examiner feels they don't have enough time, the patent is denied - too bad. You can re-file, paying a fee for extended examination.
I feel any reform which does not change this approach will have only limited effectiveness, as patents will simply increase their complexity to make them more difficult to examine, until junk makes it through again. The USPTO must have the ability to say no.
P.S.: I feel I should bring up non-obviousness - prior-art is not the only disqualifier. It should disqualify all of these "do specific but obvious thing, on a computer" "inventions", prior-art or not. Perhaps the filer could be required to explain why their invention is non-obvious, saving the examiner some time.