Is the Patent System Strangling Innovation?

By George H. Baptiste

nooseAfter reading your article on U.S. Patent and Trademark Office Director David Kappos (Yes He Can? – January 2010), I urgently need to share my depressing experience with the uncaring and illogical patent process.

I filed my provisional patent in October 2005. I then filed the actual patent application in October 2006.

In July of 2009, my attorney Tim Maier (at an hourly rate of $300), responded to the various claims issued by the examiner for action via a personal interview. My attorney advised me the interview would help expedite the process.

I acquiesced and I thought that the process would move straightforward from this point. However, my thoughts were based on logic and common sense. The patent process is based on bureaucracy and duplication of efforts.

Consider the events that unfolded in November 2009. My attorney received the notice of publication, which we anticipated and received with glee. I was truly elated at the smooth transition and thought that the process, in terms of timeliness, would operate similarly to the trademark process that I experienced.

At this point, I was only waiting to determine if there was any feedback from the waiting period from the publication. However, the publication was completed, and the process period for any objections and requirements were successfully met.

The examiner did not have any additional questions or concerns. Given the fact my application was in the possession of the examiners office for several years, I expected my application was thoroughly reviewed and that any concerns would have been addressed during the earlier meeting with my attorney at the interview.

Yet I shockingly received a second notice in December 2009 from the examiner requesting more information. I am angry and frustrated.

First and foremost, all the claims that I am now required to address have no relation to my product at all. Not even by a long-shot. Some of the arguments make absolutely no sense whatsoever and do not even warrant mention.

Second, in another act of adding salt to an open wound, one of the claims I must answer is for a product with an uncanny resemblance to mine that was filed in January 2008. This is two full years after I had filed my application.

Third, this application got published four months before mine in July 2009. How in God’s name is that possible? How could this have occurred?

My application was languishing in some bureaucratic abyss for two years with no action and then someone using my very same idea gets to move faster through the patent process than I did.

Finally, the unwarranted claims are causing a monumental financial burden.  Attorney fees, time spent to respond to the claim(s), and independent advisement is beyond costly.

Unfortunately, bankruptcy is more foreseeable now than a fully approved patent. The process is fundamentally flawed and exhibits some extortion-like traits. My frustration is akin to feeling like a New York City tourist sitting in the backseat of an unscrupulous taxi taking me for a long ride through every major bridge, tunnel and toll. Sadly, I am at the mercy of the driver, and I must pay whatever the cost requested in order to get to me to my desired destination.

At the start of the patent filing, I was like a bright-eyed and bushy-tailed kid on the first day of school. Full of eagerness and optimism to be part of an experience that could have beneficial consequences for all involved

But hope has turned into despair and disdain. I honestly wanted to use this experience as a learning tool for my 12-year-old son and our family, but I am baffled at the indifference of our patent agency.

The sheer cost and time alone would have been enough to prevent Columbus from discovering the Americas. This great nation once thrived from manufacturing ingenuity with the help of the small inventor. At the current rate, the patent process is killing the very spirit of the American inventor and the very essence of what makes our country so special.

The USPTO Responds

There is no doubt that it takes far too long for inventors in all industries to get patents. Reducing pendency is one of Director David Kappos’ top priorities.

We are working hard to turn around the backlog that the new USPTO administration inherited. This challenge has been compounded by budget constraints, which severely limits our ability to hire more examiners.

The technology center to which Mr. Baptiste’s application was assigned has an average pendency of 36 months. The pendency of Mr. Baptiste’s application was 31 months – shorter than average. The patent examiner to whom his application was assigned did a very good job.

The application went from assignment to final rejection with an interview within nine months, which is quite efficient. During the interview, the examiner indicated there was allowable subject matter, but that an updated search of prior art was required.

The examiner performed an additional search and found new prior art that was properly applied to some of the claims. However, the examiner indicated that there are some claims that would be allowable with some additional work by Mr. Baptiste and his attorney. I would encourage Mr. Baptiste to continue to work with our dedicated examiners to achieve a favorable result.

As was reported in the recent Inventors Digest interview with Director Kappos (Yes He Can? – January 2010), he has adopted an ambitious agenda to address the significant challenges facing the agency since taking office last year.

Mr. Baptiste’s concern about the time it takes for the USPTO to process patents is valid, and Director Kappos fully concurs that current average pendency stifles innovation and is unacceptable.

Peter Pappas
Chief Communications Officer, USPTO

Editor’s note: These articles appear in the March 2010 print edition.