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[eric stasik]

The Economist has published an editorial decrying the state of the patent system. An example:

"Unfortunately most patent offices, swamped by applications that can run to thousands of pages and confronted by companies wielding teams of lawyers, are no longer applying these tests strictly or reliably."

Of course, The Economist is ignoring the fact that the overwhelming majority of patent applications are competently examined and properly issued.

Mark Lemley wrote an interesting piece last year entitled "Rational Ignorance and the USPTO" taking the position that the cost of perfect examination may be more burdensome to innovation than allowing a few bad apples to slip out.

http://economist.com/opinion/displayStory.cfm?story_id=3376181

Is there a need to reform the patent system, or is the need simply to improve the operations at the world's national patent offices? If the latter, is it practical to believe that any government bureaucracy can achieve perfection?

[Wiscagent]

The article was alarmist and uninformed.  I chose to take a close look at one particular statement:  "Unfortunately most patent offices, swamped by applications that can run to thousands of pages ..."

I suppose that patent applications CAN run thousands of pages.  But I was curious to find out how long patent applications ACTUALLY are.  I looked at the first 100 patent applications published by the USPTO on November 11, 2004.  This was my data base.  The published patent applications do include drawings, but do not include attachments such as genetic codes - which can be quite lengthy.  Examiners don't normally read those lines of code anyway, so the omission should not impact the effort required by an examiner to review a patent application.

Among those 100 published applications, the longest was 68 pages, the shortest was 2 pages.  The mean length was 12.9 pages, standard deviation 10.4.  

To estimate the frequency of very long patent applications, i.e. "thousands of pages" or at least 2000 pages long, I used a log-normal distribution.*  Based on this model: 10% of the app's are more than 23 pages long; 1% of the app's are more than 51 pages long; only 1 in 1000 is more than 89 pages long; and only 1 in 10,000,000 applications is longer than 430 pages.

In other words, it is unlikely that the USPTO ever received a patent application was thousands of pages long.

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*For the statistically inclined, I actually constructed a log-normal distribution on the number of pages - 1, and then added the 1 back in at the end of the analysis.  I subtracted 1, because the minimum length of a published application is 2 pages.  The USPTO adds a cover sheet.  Also, there is no particular reason to assume that the distribution of application lengths closely approximates a log-normal distribution, but given the results, precision is not critical to the analysis.

[JimIvey]

I have to agree with Wiscagent.  The following statement from the article is just blatantly false:

"In 1998 America introduced so-called “business-method” patents, granting for the first time patent monopolies simply for new ways of doing business, many of which were not so new."

Business methods were never an accepted class of inventions ineligible for patent protection.

As for Professor Lemley's article, I found it rather interesting and mostly persuasive.  The main conclusion is the recommended abolition of the presumption of validity.  My biggest problem with that was the res judicata effect of Blonder-Tongue -- that invalidity of a claim once against one accused party is invalidity forever for all future accused parties.  He response to me included a lot of civil procedure stuff that, frankly, went over my head -- but he thought that current civil procedure law may support a loosening of Blonder-Tongue's holding to allow for his proposal without undue unfairness and uncertainty.  I suppose if all that made sense to me, I'd be a litigator and not a patent attorney.  His economic analysis seemed compelling though.

Regards.