Friday, November 17, 2006

USPTO Strategic Plan 2007-2012 and Related Intellectual Property Matters : Three Clicks Required Where ONE is Enough

The patent world is in a state of expansion. The USPTO issued its 7 millionth patent earlier this year. See USPTO and J. Douglas Miller. The Patent Librarian's Notebook informs us that more than 600,000 patents were granted worldwide in 2004. For newer patent trends, see Science and Engineering Indicators 2006.

To obtain a patent, it can not be anticipated by prior art. Are you aware that for any patent application, the patent examiner at the USPTO - on average - has only a few hours in which to find prior art? That was the congressional testimony of Ronald J. Stern, President of POPA (Patent Office Professional Association).

In that time frame, finding prior art is surely often a hopeless task in complicated patent matters, and yet, patents are being granted at a pace to try to match the patent explosion which has occurred ever since business methods and software were foolishly deemed patentable by the short-sighted legal establishment. Companies such as IBM have thus supported recent efforts to improve patent quality. See also the Peer to Patent Project (Community Peer Review of Patents) and Open Collaboration is Medicine for Our Ailing Patent System.

Patents are state-granted and state-supported monopolies and the people who generally profit the most from such monopolies are monopolists at heart to begin with. Why compete if you can gain exclusive rights to a business?

One need only to look to the postal monopolies of history to see that monopolies, once granted, in the money that they make, long exceed in their monetary influence on society the patent protection periods of law. For example, the fortune made through the postal monopoly of Thurn and Taxis, a monopoly which originated in a PATENT from the Emperor, survives down to our day. How stupid the mass of our legislators are.

And then there is the other side of the patent equation, the outdated management of the USPTO. As written by the Senate Appropriations Committee Report on the USPTO:

"Since fiscal year 2004, the Committee has provided a 45 percent increase in funding for PTO, including funding to hire thousands of new patent examiners. Yet during the same time period, the backlog of pending patent applications has grown to over 500,000, and it still takes an average of over 2.5 years to process a patent application. Meanwhile, the Inspector General has received repeated complaints that PTO has allowed or encouraged unfair personnel practices. The IG has identified these problems as one of the top 10 management challenges of the Department of Commerce. Even with increased funding, the problems at PTO are getting worse, evidence that what is needed is better management."

THE USPTO

The United State Patent and Trademark Office (USPTO) exemplifies the problems encountered in intellectual property issues in general. As written in the GAO (US Government Accountability Office) Intellectual Property Report on the USPTO as submitted to Congress in June, 2005:

"The U.S. Patent and Trademark Office (USPTO) is responsible for issuing U.S. patents that protect new ideas and investments in innovation and creativity. Recent increases in both the complexity and volume of patent applications have increased the time it takes to process patents and have raised concerns about the validity of the patents USPTO issues. Adding to these challenges is the difficulty that USPTO has had attracting and retaining qualified staff."

THE USPTO WEBSITE : SUPERFLUOUS CLICKS
Three Clicks are Required where ONE is Enough


In our view, the problems that the USPTO faces are exemplified by its non-intuitive website, where a click on the menu item "About USPTO" takes the user to no less than 9 submenu items - except for Reports, EIGHT of which (Programs & Offices, Under Secretary, Policies and Procedures, Intellectual Property Options, Education, Hours, Maps, Mail and Phone, Website Disclosure, U.S. Government & Commerce), when clicked, take the user to the exact same subsequent web page, and thus already involve one totally useless, superfluous click, just to start.

At that subsequent page, the user is then not presented with a page "about the USPTO" but finds EIGHT list boxes, each of which AGAIN consists of a menu list. The actual "about page", Our Business : An Introduction to the USPTO, is then found under the menu item Introduction at Programs & Offices. THREE clicks are required where ONE is enough. Commercial websites bloat their menus this way to increase the number of ads viewed by users by increasing the number of pages a user has to view to get where he wants to go, but there is no excuse for this at the USPTO website.

That a click to Reports takes the user to a separate page is remarkable since that subsequent page also simply consists of a few boxes with links and could easily be incorporated into the same page as the other eight menu items. Totally superfluous. If the rest of the USPTO operates this way, there is no wonder that it is in the quagmire that it is.

The philosophy seems to be: why simple, when one can make it complicated?

THE USPTO DRAFT Strategic Plan 2007-2012

The USPTO has issued its DRAFT Strategic Plan 2007-2012 v6 of 24 August 2006 (recently modified on 31 October 2006). As written at the USPTO website:

"The Government Performance and Results Act of 1993 [link added by LawPundit] requires Federal agencies to establish a strategic plan covering not less than a five-year period, and to solicit the views and suggestions of those entities potentially affected by or interested in the plan. On March 14, 2006, the USPTO posted a notice soliciting public input and establishing an e-mail box (StrategicPlanning1@uspto.gov) for the public’s use in submitting suggestions, ideas and comments that the agency should consider in developing the new plan. USPTO employees also were given the opportunity to provide input, either via e-mail or anonymously via USPTO’s intranet site.

The draft plan includes the USPTO’s mission statement, vision statement and a description of the strategic goals, objectives and significant actions that the USPTO plans to take in order to accomplish its mission and achieve its vision. Full details on how the USPTO plans to implement the strategic plan, including funding and performance metrics, will be included in the USPTO’s fiscal year 2008 President’s Budget.

The USPTO would like to receive input from a wide range of organizations (both national and international), public bodies, and other stakeholders. We especially encourage the views and suggestions of individuals and entities holding or dealing with intellectual property, and USPTO employees. The USPTO anticipates publishing the final plan in early calendar year 2007, and making it available on our Web site at that time. "

21st Century Strategic Plan (the predecessor plan) and Interim Adjustments

The 2007-2012 draft plan should be viewed in the context of and with the benefit of hindsight to the USPTO's 21st Century Strategic Plan for the years 2002-2007 and the Interim Adjustments thereto.

GAO Intellectual Property Report on the USPTO

Moreover, one should take notice of the following footnote found in the USPTO Interim Adjustments:

"In June 2005, the Government Accountability Office completed a review -- Intellectual Property: USPTO Has Made Progress in Hiring Examiners, but Challenges to Retention Remain (GAO-05-720 – June 2005) [link added by LawPundit] -- of many of the USPTO’s strategic planning initiatives. Of the 39 initiatives they reviewed, they reported that 11 were implemented, 21 were partially implemented and 7 were not implemented."

See in this regard the comment to that GAO Report at:

Peter Zura's Two-Seventy-One Patent Blog, which points to recommendations for USPTO reform as made in a 298 page report by NAPA, the National Academy of Public Administration, referred to at IPCentral, and summarized at I/P Updates and also here by Florence Olsen .

Related Articles

Alexander George, Law firms beef up patent lawyer ranks
William R. Haulbrook, Ph.D., Getting a Handle on the Software Patent Explosion
D.J. Dykeman, Patent Strategy in the Nanotech Patent Explosion (abstract)
Bronwyn H Hall, Exploring the Patent Explosion
Patently O, Patent Explosion (blog)
Richard A. Epstein, Patent's Downward Spiral

Legal Effect of Design Infringement Threats without Accompanying Legal Action

Just how far things have gone wrong in intellectual property law is illustrated by a recent High Court case (via Outlaw.com) involving a designer who was able to stop a company (Quads4Kids, a company not affiliated with the designer) from selling quad bikes on eBay because the designer claimed that those bikes infringed upon his design rights, as allegedly found in 16 European Community designs for bikes which he had registered in February of 2006, but whose publication at registration had been deferred by the designer.

The absurdity of the situation was thus that there was no way that the alleged infringer could possibly have been aware of the actual designs for which infringements were being claimed, unless the alleged infringer had had some secret access to the 16 registrations.

Moreover, no legal action had been taken against the alleged infringer by the designer. Rather, the designer had simply invoked something on eBay called VeRO, Verified Rights Owner.

VeRO is system implemented by e-Bay whereby, as Outlaw.com writes: "owners [can] stop sales of goods in which they have rights and which are being sold without their permission."

As we can read at eBay:

"... eBay has created the Verified Rights Owner (VeRO) Programme so rights owners can report listings that infringe their rights. Any person or company who holds intellectual property rights (such as a copyright, trademark or patent) which may be infringed by listings or items sold on eBay is encouraged to participate in the VeRO Programme."

In other words, due to the errant intellectual property law ideas which currently have the force of law, the designer in this case felt himself empowered by the legal status quo to force a commercial enterprise from selling commercial goods on eBay, just on his say-so alone.

This was too much - even for the High Court.

Outlaw.com writes:

"Quads4Kids, wishing to resume its sales through eBay, took a case against [the designer] by saying that his statements to VeRO were groundless threats, actionable under the Community Design Regulations of 2005. It asked for an interim injunction to prevent [the designer] from making any more threats.

The Regulations do not permit people who claim to be rights holders to make threats which they cannot back up with legal action. The law is designed to allow the threatened party to challenge a supposed rights holder's rights in court, so that baseless threats cannot be made.

"It is entirely wrong for owners of intellectual property rights to attempt to assert them without litigation, or without the threat of litigation, in reply," said the High Court judge, Judge Pumfrey, in his ruling. "If somebody goes around saying, 'I will sue you for infringement of patent unless you stop buying your goods from X', then the natural response of anybody to whom that statement is made was to stop buying the goods of X."

"You can't simply make a threat of infringement proceedings without having a good basis for doing so," said John Mackenzie, a litigation specialist with Pinsent Masons, the law firm behind OUT-LAW. "It is a new example of a process for protecting IP but it still falls within the groundless threats law.""

Essentially, the entire idea of business method, software and design trolling, which the legal establishment has foolishly permitted in the patent field and which numerous firms today are turning into a big money business, is just the scam outlined by the High Court, nor does the High Court's decision give the patent system much relief in the future.

Pursuant to that decision, all any patent troll has to do is to lodge legal proceedings regarding his patented business method, software or design and he no longer falls under the rationale of the above decision, since whether the threat is then groundless or not is decided subsequently by the judicial system, and that can take a long time, given the vagaries of court delay. In the interim, the groundless threat standard is of no help to an alleged - and even wrongfully accused - infringer whose business can potentially - and wrongfully - be brought to its knees by the invocation of overly broad intellectual property rights, as foolishly granted by the legal system to owners of such rights.

USPTO Strategic Plan 2007-2012 and Related Intellectual Property Matters : Three Clicks Required Where ONE is Enough

The patent world is in a state of expansion. The USPTO issued its 7 millionth patent earlier this year. See USPTO and J. Douglas Miller. The Patent Librarian's Notebook informs us that more than 600,000 patents were granted worldwide in 2004. For newer patent trends, see Science and Engineering Indicators 2006.

To obtain a patent, it can not be anticipated by prior art. Are you aware that for any patent application, the patent examiner at the USPTO - on average - has only a few hours in which to find prior art? That was the congressional testimony of Ronald J. Stern, President of POPA (Patent Office Professional Association).

In that time frame, finding prior art is surely often a hopeless task in complicated patent matters, and yet, patents are being granted at a pace to try to match the patent explosion which has occurred ever since business methods and software were foolishly deemed patentable by the short-sighted legal establishment. Companies such as IBM have thus supported recent efforts to improve patent quality. See also the Peer to Patent Project (Community Peer Review of Patents) and Open Collaboration is Medicine for Our Ailing Patent System.

Patents are state-granted and state-supported monopolies and the people who generally profit the most from such monopolies are monopolists at heart to begin with. Why compete if you can gain exclusive rights to a business?

One need only to look to the postal monopolies of history to see that monopolies, once granted, in the money that they make, long exceed in their monetary influence on society the patent protection periods of law. For example, the fortune made through the postal monopoly of Thurn and Taxis, a monopoly which originated in a PATENT from the Emperor, survives down to our day. How stupid the mass of our legislators are.

And then there is the other side of the patent equation, the outdated management of the USPTO. As written by the Senate Appropriations Committee Report on the USPTO:

"Since fiscal year 2004, the Committee has provided a 45 percent increase in funding for PTO, including funding to hire thousands of new patent examiners. Yet during the same time period, the backlog of pending patent applications has grown to over 500,000, and it still takes an average of over 2.5 years to process a patent application. Meanwhile, the Inspector General has received repeated complaints that PTO has allowed or encouraged unfair personnel practices. The IG has identified these problems as one of the top 10 management challenges of the Department of Commerce. Even with increased funding, the problems at PTO are getting worse, evidence that what is needed is better management."

THE USPTO

The United State Patent and Trademark Office (USPTO) exemplifies the problems encountered in intellectual property issues in general. As written in the GAO (US Government Accountability Office) Intellectual Property Report on the USPTO as submitted to Congress in June, 2005:

"The U.S. Patent and Trademark Office (USPTO) is responsible for issuing U.S. patents that protect new ideas and investments in innovation and creativity. Recent increases in both the complexity and volume of patent applications have increased the time it takes to process patents and have raised concerns about the validity of the patents USPTO issues. Adding to these challenges is the difficulty that USPTO has had attracting and retaining qualified staff."

THE USPTO WEBSITE : SUPERFLUOUS CLICKS
Three Clicks are Required where ONE is Enough


In our view, the problems that the USPTO faces are exemplified by its non-intuitive website, where a click on the menu item "About USPTO" takes the user to no less than 9 submenu items - except for Reports, EIGHT of which (Programs & Offices, Under Secretary, Policies and Procedures, Intellectual Property Options, Education, Hours, Maps, Mail and Phone, Website Disclosure, U.S. Government & Commerce), when clicked, take the user to the exact same subsequent web page, and thus already involve one totally useless, superfluous click, just to start.

At that subsequent page, the user is then not presented with a page "about the USPTO" but finds EIGHT list boxes, each of which AGAIN consists of a menu list. The actual "about page", Our Business : An Introduction to the USPTO, is then found under the menu item Introduction at Programs & Offices. THREE clicks are required where ONE is enough. Commercial websites bloat their menus this way to increase the number of ads viewed by users by increasing the number of pages a user has to view to get where he wants to go, but there is no excuse for this at the USPTO website.

That a click to Reports takes the user to a separate page is remarkable since that subsequent page also simply consists of a few boxes with links and could easily be incorporated into the same page as the other eight menu items. Totally superfluous. If the rest of the USPTO operates this way, there is no wonder that it is in the quagmire that it is.

The philosophy seems to be: why simple, when one can make it complicated?

THE USPTO DRAFT Strategic Plan 2007-2012

The USPTO has issued its DRAFT Strategic Plan 2007-2012 v6 of 24 August 2006 (recently modified on 31 October 2006). As written at the USPTO website:

"The Government Performance and Results Act of 1993 [link added by LawPundit] requires Federal agencies to establish a strategic plan covering not less than a five-year period, and to solicit the views and suggestions of those entities potentially affected by or interested in the plan. On March 14, 2006, the USPTO posted a notice soliciting public input and establishing an e-mail box (StrategicPlanning1@uspto.gov) for the public’s use in submitting suggestions, ideas and comments that the agency should consider in developing the new plan. USPTO employees also were given the opportunity to provide input, either via e-mail or anonymously via USPTO’s intranet site.

The draft plan includes the USPTO’s mission statement, vision statement and a description of the strategic goals, objectives and significant actions that the USPTO plans to take in order to accomplish its mission and achieve its vision. Full details on how the USPTO plans to implement the strategic plan, including funding and performance metrics, will be included in the USPTO’s fiscal year 2008 President’s Budget.

The USPTO would like to receive input from a wide range of organizations (both national and international), public bodies, and other stakeholders. We especially encourage the views and suggestions of individuals and entities holding or dealing with intellectual property, and USPTO employees. The USPTO anticipates publishing the final plan in early calendar year 2007, and making it available on our Web site at that time. "

21st Century Strategic Plan (the predecessor plan) and Interim Adjustments

The 2007-2012 draft plan should be viewed in the context of and with the benefit of hindsight to the USPTO's 21st Century Strategic Plan for the years 2002-2007 and the Interim Adjustments thereto.

GAO Intellectual Property Report on the USPTO

Moreover, one should take notice of the following footnote found in the USPTO Interim Adjustments:

"In June 2005, the Government Accountability Office completed a review -- Intellectual Property: USPTO Has Made Progress in Hiring Examiners, but Challenges to Retention Remain (GAO-05-720 – June 2005) [link added by LawPundit] -- of many of the USPTO’s strategic planning initiatives. Of the 39 initiatives they reviewed, they reported that 11 were implemented, 21 were partially implemented and 7 were not implemented."

See in this regard the comment to that GAO Report at:

Peter Zura's Two-Seventy-One Patent Blog, which points to recommendations for USPTO reform as made in a 298 page report by NAPA, the National Academy of Public Administration, referred to at IPCentral, and summarized at I/P Updates and also here by Florence Olsen .

Related Articles

Alexander George, Law firms beef up patent lawyer ranks
William R. Haulbrook, Ph.D., Getting a Handle on the Software Patent Explosion
D.J. Dykeman, Patent Strategy in the Nanotech Patent Explosion (abstract)
Bronwyn H Hall, Exploring the Patent Explosion
Patently O, Patent Explosion (blog)
Richard A. Epstein, Patent's Downward Spiral

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